Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 20, 2021

CASE NO(S).: PL200426

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: CannTrust Inc. Appellant: Redecan & Redecan Pharm Appellant: Woodstock Biomed Inc. Subject: Proposed Official Plan Amendment No. OPA 09 Municipality: Town of Pelham OLT Case No.: PL200426 OLT File No.: PL200426 OLT Case Name: Woodstock Biomed Inc. v. Pelham (Town)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: CannTrust Inc. Appellant: Redecan & Redecan Pharm Appellant: Woodstock Biomed Inc. Subject: By-law No. BL 4252(2020) Municipality: Town of Pelham OLT Case No.: PL200426 OLT File No.: PL200427

Heard: June 29, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
Woodstock Biomed Inc.	M. Russell W. Friedman
CannTrust Inc.	S. Premi
9037136 Canada Inc. (Redecan & Redecan Pharm)	B. Duxbury A. Pelletier
Town of Pelham	L. Dean P. Harrington

MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON JUNE 19, 2021 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference (“CMC”). The matter arises out of appeals under s. 17(24) and s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) by multiple appellants as a result of the Town of Pelham’s (the “Town”) amendments of the Town Official Plan and the Town’s Zoning By-law No. 1136 (1987) through enactment of By-law Nos. 4251 (2020) and 4252 (2020).

2The notice of service for the CMC was duly recorded as Exhibit 1.

PARTIES AND PARTICIPANTS

3No additional requests for granting of party or participant status were received by the Tribunal and none were so granted.

UPDATES

4The matters in these appeals relate to the operation and processing of Cannabis. The parties in agreement stated that active discussions are continuing between all towards resolution. However, the parties also agreed to and requested of the Tribunal to set up a future merits hearing. The parties discussed the general scope of numbers of witnesses and their specializations. As a result, a request was made of the Tribunal to set up a four day hearing.

5The parties agreed to submit to the Tribunal a draft Procedural Order for review and issuance by August 16, 2021. This was since received.

6The Tribunal having received submissions from all the parties, sets a hearing for four days duration commencing on Monday, January 24, 2022, starting at 10 a.m. and to be conducted by video. The Procedural Order attached to this Decision (Attachment 1) shall govern this hearing.

HEARING TECHNICAL DETAILS

7Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/287108853

Access code: 287-108-853

8Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9391 or (Toll free) 1 (888) 455-1389. The access code is 287-108-853.

10Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

11There will be no further notice.

12This Member is not seized but may be contacted for case management purposes.

13The directions in this Decision are so ordered.

“Jatinder Bhullar”

JATINDER BHULLAR MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

ONTARIO LAND TRIBUNAL

PROCEDURAL ORDER

CASE NO. PL200426

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c.P.13, as amended

Appellant: CannTrust Inc. Appellant: Redecan & Redecan Pharm Appellant: Woodstock Biomed Inc. Subject: Proposed Official Plan Amendment No. 09 Municipality: Town of Pelham OLT Case No.: PL200426 OLT File No.: PL200426 OLT Case Name: Woodstock Biomed Inc. v. Pelham (Town)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c.P.13, as amended

Appellant: CannTrust Inc. Appellant: Redecan & Redecan Pharm Appellant: Woodstock Biomed Inc. Subject: By-law No. BL 4252(2020) Municipality: Town of Pelham OLT Case No.: PL200426 OLT File No.: PL200427 OLT Case Name: Woodstock Biomed Inc. v. Pelham (Town)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on January 24, 2022 at 10 a.m. by Video Hearing. The hearing will be set for four (4) days.

3. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified in the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/wp-content/uploads/2020/08/LPAT-Video-Hearing-Guide-effective-July-2-2020.pdf).

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before November 1, 2021 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before January 1, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and issues with the OLT case co-ordinator on or before January 14, 2022

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outlie of the witness’ evidence, as in paragraph 13 below.

13. On or before December 23, 2021, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before December 23, 2021, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before January 7, 2022, the parties shall provide copies of their reply witness statements to the other parties and to the OLT case coordinator in accordance with paragraph 21 below.

16. On or before January 14, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 14, 2022.

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing pursuant to the directions provided by the OLT case co-ordinator, on before January 20, 2022.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the parties notify the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 7, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statements should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

PARTIES

Parties

1. CannTrust Inc.
2. Redecan & Redecan Pharm
3. Woodstock Biomed Inc.
4. Town of Pelham

ATTACHMENT 2

ISSUES LIST

1. Is Official Plan Amendment No. 9 (the “OPA”) consistent with the Provincial Policy Statement, including with Policies 1.1.1 a), 1.1.4.1 a), e), f), and i), 1.3.1 a), b), c), and e), 1.7.1 a), c) and i), 2.3.1, 2.3.3.1, and 2.3.3.2?

2. Does the OPA: a. restrict cannabis cultivation contrary to the PPS? b. frustrate growth and expansion of permitted agricultural uses contrary to the PPS?

3. Does the OPA conform to the Growth Plan for the Greater Golden Horseshoe, including sections 1.2.1, 2.2.5.1, 2.2.9, 4.1, 4.2.6.1, 4.2.6.2, 4.2.6.3 4.2.6.6, and 4.2.6.7?

4. Does the OPA: a. restrict cannabis cultivation contrary to the Growth Plan? b. frustrate growth and expansion of permitted agricultural uses contrary to the Growth Plan?

5. Is the proposed use considered to be a Normal Farm Practice by the OMAFRA?

6. Does the proposed ZBA restrict a Normal Farm Practice that is undertaken as part of an agricultural operation, under Section 6 of the Farming and Food Production Protection Act?

7. Does the OPA conform to the policies and objectives of the Niagara Regional Official Plan including sections 2.5, 5.A.2, 5.A.6, 5.A.7, 5.A.8, and 5.B.6?

8. Does the OPA restrict cannabis cultivation contrary to the Niagara Region Official Plan?

9. Does S.B2.2.1.5 of the OPA establish or require appropriate development criteria, required studies and setbacks relating to the siting, location and development approval of indoor cannabis and industrial hemp cultivation?

10. Does the OPA constitute good land use planning?

11. Is Zoning By-Law 4252 (2020) (the “ZBA”) consistent with the Provincial Policy Statement sections 1.1.1 a), 1.1.4.1 a), e), f), and i), 1.3.1 a), b), c) and e), 1.7.1 a), c) and i), 2.3.1, 2.3.3.1, and 2.3.3.2?

12. Does the ZBA conform to the Growth Plan for the Greater Golden Horseshoe, sections 1.2.1, 2.2.5.1, 2.2.9, 4.14.2.6.1, 4.2.6.2, 4.2.6.3, 4.2.6.6 and 4.2.6.7?

13. Does the ZBA conform to the policies and objectives of the Niagara Regional Official Plan sections 2.5, 5.A.2, 5.A.6, 5.A.7, 5.A.8, and 5.B.6?

14. Do the OPA and ZBA conform to Town of Pelham By-law No. 4202 (2020) Odorous Industries Nuisance By-law?

15. Does the ZBA contravene section 42(2) of the Cannabis Licence Act, 2018?

16. Does the ZBA contravene the Cannabis Act, S.C. 2018, c. 16?

17. Is the ZBA consistent with the Farming and Food Production Protection Act?

18. Does the ZBA restrict a Normal Farm Practice that is undertaken as part of an agricultural operation, under Section 6 of the Farming and Food Production Protection Act?

19. Does the ZBA discriminate against cannabis operators?

20. Does the ZBA constitute good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. CannTrust Inc.
2. Redecan & Redecan Pharm
3. Woodstock Biomed Inc.
4. Town of Pelham