Court action against Shinimicas farmer dismissed by Supreme Court

Published on July 22, 2014

AMHERST – Nova Scotia’s Supreme Court has dismissed an action against a Shinimicas Farm, launched by a neighbour who claimed herbicide was causing property and health damage.

Justice John D. Murphy issued a 13-page written decision on July 18 after a one-day hearing in Truro in March. The action had earlier been stayed by Justice Murphy because there was no evidence to suggest the actions of John Waalderbos and Viking Crest Farm were contrary to normal farming practices.

“I have concluded that the plaintiffs’ claim must be dismissed as no issues would remain for adjudication if the action were to proceed,” Justice Murphy wrote. “The stay was imposed when I ruled this civil action in negligence could not proceed until the board determined whether the defendants’ activities were normal farm practices. The board held a hearing and found the defendants’ activities were normal farm practices.”

In their action, launched in 2008, organic farmers John and Linda Nauss alleged their neighbour John Waalderbos of Viking Crest Farm sprayed his lands with a herbicide that drifted onto their property, causing them loss and damage.

The plaintiffs said Mrs. Nauss suffered health issues, their crops were damaged and four horses miscarried as a result of exposure to the herbicide overspray.

The Nausses also alleged that the defendant’s ditching activities led to contaminated run-off that caused additional loss and damage.

While advised by the Department of Environment to take their concerns to the Farm Practices Board, they instead launched a court action alleging negligence.

Waalderbos denied he was negligent and said his farm’s activities were conducted in accordance with normal farm practice and in accordance with required certification and government regulations.

During discovery hearings in April 2009, the defendant requested a motion for an order dismissing or staying the Nauss’ claim on the basis that the Farm Practices Act ruled out the commencement of a civil action in negligence in circumstances of this case. Waalderbos said he could not be the subject of a civil action unless an agricultural operation did not comply with normal farm practices.

As a result, the proceedings were stayed by Justice Murphy in October 2011.

The Nauss’ made an application to the board in December 2011 and a hearing was held in June 2012. The board ruled in January 2013 that the defendants did not act in a manner inconsistent with normal farm practices. It also said its mandate did not extend to considering Mrs. Nauss’ health issues.

The case was appealed to the Nova Scotia Supreme Court and it was dismissed last August with a written decision a month later. At that time, Justice J.E. Scanlan ordered Justice Murphy to issue a ruling on the stay of proceedings.

Both the Nausses and Waalderbos requested the stay be lifted, while Waalderbos applied for its dismissal and the Nauss family applied for it to proceed because the Farm Practices Board recognized it did not have a mandate to consider all the issues before it – particularly the impact of the defendant’s actions upon Mrs. Nauss’ health and the health of the horses.