Reasons for Judgment of the Honourable Mr. Justice Esson:

[1] The plaintiff seeks leave to appeal an order of a chambers judge adjourning a summary trial in order to obtain a decision from the Farm Practices Board on the question whether it is "a normal farm practice" for a farmer to have on his water tower a painted sign.

[2] The Farm Practices Board was created by the Farm Practices Protection (Right to Farm) Act, R.S.B.C. 1996, c.131. The question referred to it arose in this way. In June, 1999 the plaintiff District enacted a Land Use Bylaw, s.46(1) which provides:

[1] No person shall erect, construct or place any of the following signs:

[5] wall signs.

[6] portable signs, other than sandwich signs.

[7] bill board or finger signs, excepting signs supplied and installed by the municipality.

[3] The defendant has farmed for 50 years or more and for the last 25 of those years has operated a farm in Central Saanich. He is now one of the few real farmers who survive in that increasingly urbanized area. In October 1999 he painted on his water tower the words "KIMOFF FARM" which is said to be visible from the Patricia Bay highway and two other roads. "KIMOFF" is in letters five feet high above "FARM" in letters three feet high.

[4] Mr. Kimoff applied for a sign permit but was refused on the ground that the sign is a "wall sign" within the meaning of s. 46(1)(e) of the Land Use Bylaw. Upon his refusal to meet demands that the offending words be removed, this action was launched seeking a mandatory injunction requiring him to comply with the bylaw.

[5] In his statement of defence, the defendant admitted the facts pleaded in paras. 1 to 8 of the statement of claim which include this allegation:

[6] Having admitted paras. 1 to 8, the defendant went on to make a number of allegations of which the following are relevant to the present issues.

[7] Section 2 of the Farm Practices Protection (Right to Farm) Act, referred to in para. 6 of the statement of claim, reads as follows:

[1] the farmer is not liable in nuisance to any person for any odour, noise, dust or other disturbance resulting from the farm operation, and

[2] the farmer must not be prevented by injunction or other order of a court from conducting that farm operation,

[8] In relation to the defence raised by para. 6 of the statement of defence, each party adduced evidence. An employee of the District swore:

[9] The defendant in his affidavit had this to say on the subject:

[10] If I am prevented from conducting my normal farming practice of advertising the name of my farm in the prominent manner as it now exists on my water tower it will affect my income and therefore the viability of my farm.

The affidavit concludes on a rather ominous note with this paragraph:

[23] I have advised Central Saanich that if they persist in this action I will bring to bear any and all publicity I can concerning their anti-farming stance and actions and I have suggested that if they don't like my nursery farm operations I'm quite sure they and my residential neighbours will really dislike the feed lot for hogs which I will be forced to install to find additional income to cover my losses from being denied the right to place my farm name on my water tower.

[10] The decision sought to be appealed from is not easily summarized. I therefore will set out the whole of the judge's reasons:

[11] It appears that neither party had submitted that the question should be referred to the Farm Practices Board. Counsel for the District asserts that, if this decision is not promptly reversed, it will frustrate all attempts by municipal authorities to enforce their bylaws. Mr. Sewell, without attempting to support the judge's disposition of the matter as legally sound, argues that to allow an appeal to go forward will serve no useful purpose. He points out that the difficulties created by the order are not insuperable. He points to the judge's observation that the matter 'can be argued a second time before the court'. He suggests that the decision be treated essentially as one to adjourn the trial in order to obtain further guidance and that the soundness of that course should not be passed upon by this Court unless and until there is a final decision.

[12] Mr. Sewell makes the further point that within the last few days the Supreme Court of Canada may have offered solace to Mr. Kimoff by its decision in R. v. Guignard, 2002 S.C.C. 14 in which judgment was pronounced on February 21, 2002. In that case, reversing the decision of the Quebec courts, the Supreme Court held that Mr. Guignard's freedom of expression was breached by his conviction under a bylaw which prohibited the erection of advertising signs outside an industrial zone. Mr. Guignard's sign expressed his dissatisfaction with his property insurer in the following terms:

[13] I express no opinion on the question to what extent, if any, that decision applies to the facts of this case. But I do take into account that Mr. Sewell has amended the statement of defence in this case to raise the Charter issue.

[14] Even without the Charter issue, I would be inclined to hold that it would not be in the interests of justice to allow an appeal to go forward at this stage. The result all too likely would be to increase the existing element of confusion at great cost to the parties in terms both of money and time. I agree that an appeal likely would prove to have no practical utility and might well make matters worse.

[15] The application is refused.