This case was heard in the Court of King’s Bench, Trial Division.
Seven plaintiffs residing near Omera Shells Inc. (“Omera”)’s shell processing facility alleged nuisance damages arising from the defendant’s operations. Omera processes shellfish shells for organic fertilizer, chitin/chitosan extraction, and organic livestock feed, operating from 8 p.m. to 8 a.m. The plaintiffs, represented by Guimond, claimed that Omera’s activities have caused “noxious odours, excessive noise, and light pollution” since 2016, unreasonably interfering with their quiet enjoyment of their properties. They sought compensation for general damages due to pain and suffering, as well as special damages for the reduction in property value, and requested an interlocutory injunction to halt Omera’s operations.
Omera admitted that its shell recycling activities emit odors but denied that these odors adversely affect the plaintiffs' quality of life. Additionally, Omera disputed claims of undue noise and light pollution, arguing that such emissions were not excessive. Omera opposed the injunction, contending that the plaintiffs should not pursue their claim under nuisance but rather through an application under the Agricultural Operations Practices Act (the “Act”). They argued that granting the injunction would lead to the closure of their business and thus the injunction should be denied.
The issue before the court was whether the injunction motion could proceed, or if the plaintiffs were required to first apply under S. 16 of the Act. The court noted that the Act provides limited guidance on whether Omera's activities fall within its scope, and there is minimal relevant jurisprudence, particularly in New Brunswick. The court determined that deciding whether the Act applies should be left to the Board established under the Act, which possesses the expertise and authority to adjudicate such matters. Therefore, the court suggested that as a preliminary step, the matter should be referred to the Board for consideration.
The court refrained from making a definitive ruling on the injunction motion, emphasizing that the Board should determine its jurisdiction over the matter. The court observed however, that the Act’s definition of “farm” did not explicitly include or exclude Omera’s operations, and a broader interpretation of “agricultural operations” might be warranted. The court highlighted that only a portion of Omera’s commercial activities involved fertilizer and livestock feed production, potentially exempting it from the Act’s application, but this determination should be left to the Board if the plaintiffs proceed with their complaint.
Consequently, the court dismissed the motion for injunctive relief, citing the need for the matter to be addressed by the appropriate administrative body. Costs were awarded against the plaintiffs of $2,000 plus HST.
View the Decision on CanLII: 2023 NBKB 211 (CanLII) | Vincent Guimond et al. v. Omera Shells Inc. | CanLII
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