Ontario Land Tribunal
Tribunal ontarien de l'aménagement du territoire
ISSUE DATE: June 18, 2021
CASE NO(S).: PL200194
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Carmel Pharms Corp.
Appellant: 10982377 Canada Inc.
Appellant: 2541005 Ontario Limited
Subject: By-law No. 2020-046
Municipality: Township of Oro-Medonte
LPAT Case No.: PL200194
LPAT File No.: PL200194
LPAT Case Name: Carmel Pharms Corp. v. Oro-Medonte (Township)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Motion By: Township of Oro-Medonte
Purpose of Motion: Request for Determination/Directions
Subject: By-law No. 2020-046
Municipality: Township of Oro-Medonte
OLT Case No.: PL200194
OLT File No.: PL200194
OLT Case Name: Carmel Pharms Corp. v. Oro-Medonte (Township)
Heard: April 23, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Township of Oro-Medonte
L. Dean
Carmel Pharms Corp.
R. Uukkivi
2541005 Ontario Limited
S. Nadler and W. Friedman
10982377 Canada Inc.
B. Vakili*
Oro-Medonte Community Coalition Corp.
Y. Peer (articling student)
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
Background
1This Decision arises from the third Case Management Conference ("CMC") regarding appeals of the passage of Zoning By-law Amendment No. 2020-046 ("proposed Zoning By-law Amendment") by the Township of Oro-Medonte ("Township"). The proposed Zoning By-law Amendment would amend the Township's comprehensive Zoning By-law No. 97-95 ("Zoning By-law") to regulate cannabis production and processing facilities in the Township.
2There are three appeals of the proposed Zoning By-law Amendment that were filed. The appeals were filed by:
a. 10982377 Canada Inc. ("Organibis"), which own property located at 250 Ridge Road West at which it proposes the development of greenhouses and facilities for cannabis production and processing;
b. 2541005 Ontario Limited ("2541005 Ontario"), which owns property located at 918 Line 3 South at which it has undertaken the construction of facilities for the cultivation of industrial hemp. Its property lies in prime agricultural lands and is zoned "Agricultural/Rural" under the Zoning By-law; and,
c. Carmel Pharms Corp. ("Carmel Pharms"), which owns property at 837 Line 7 South, which is developed with cannabis production facilities. The facilities include a processing building and a greenhouse and are operated pursuant to a license from Health Canada. Its lands are designated "Rural" under the Township's Official Plan and zoned "Agricultural/Rural" under the Zoning By-law.
3At the first CMC in these proceedings, held on October 23, 2020, the Tribunal granted Party status to the Oro-Medonte Community Coalition Corp. ("Coalition").
4Subsequent to the first CMC, the Parties prepared a draft Procedural Order and Issues List. The appropriateness of an issue proposed by Organibis and 2541005 Ontario regarding normal farm practices remained in dispute.
5At the second CMC, held on February 11, 2021, the Parties provided the Tribunal with a status update. The dispute over the appropriateness of the normal farm practices issue remained unresolved. The Tribunal directed the Township to serve and file a motion to have the appropriateness of the normal farm practices issue determined.
6At the third CMC, held on April 23, 2021, the Tribunal heard the Township's motion. The motion seeks an Order that:
a. the normal farm practices issue proposed by Organibis and 2541005 Ontario not be included in any of the Appellants' Issues Lists;
b. the appeals be heard separately; and,
c. the Organibis Cannabis appeal be consolidated with its appeal of the Township's Development Charges By-law No. 2019-100 in Tribunal Case No. DC190047.
At this CMC, the Parties also discussed opportunities for settlement discussions, the number and types of witnesses to be produced at a hearing, and the estimated duration of the hearing. At the conclusion of these submissions, the Tribunal set hearing dates.
A. The Township's Motion
7As noted above, the Township seeks an Order that: the normal farm practices issue not be included in the Issues Lists; the appeals be heard separately; and, the Organibis proceeding be consolidated with its proceeding under the Development Charges Act.
8The Coalition supports the Township's motion, but did not make legal submissions.
9Each issue is addressed below.
a. Normal Farm Practices Issue
Parties' Submissions
10The Township argues that pursuant to the Farming and Food Production Protection Act, 1998, the Normal Farm Practices Protection Board has the jurisdiction to determine whether a zoning by-law restricts a normal farm practice carried on as part of an agricultural operation. It submits that this is exactly the issue that Organibis and 2541005 Ontario wish to have the Tribunal adjudicate. Referring to the Ontario Court of Appeal's decision in Country Pork Ltd. v. Ashfield (Township), 2002 CanLII 41578 (ON CA), at paragraph 32, the Township submits that where the legislature has assigned jurisdiction to a specific administrative tribunal, there is a strong policy argument for the Court to defer to the jurisdiction of that tribunal on such matters. It submits that the Normal Farm Practices Protection Board is constituted with the expertise to address the issue raised by Organibis and 2541005 Ontario and the Tribunal should defer to the jurisdiction of the Board as intended by the legislature.
11Organibis argues that the Normal Farm Practices Protection Board does not have the jurisdiction to address land use issues such as the issue proposed here. It submits that the Board has jurisdiction to determine whether a restrictive zoning provision applies to a farm, but not whether a particular use is permitted. It also submits that the Normal Farm Practices Protection Board does not have exclusive jurisdiction over this issue so as to exclude the Tribunal from adjudicating on it.
12Like Organibis, 2541005 Ontario argues that the Farming and Food Production Protection Act, 1998 permits the Normal Farm Practices Protection Board to determine whether a practice is a normal farm practice, but Planning Act issues are outside of the Board's jurisdiction and it does not have the authority to adjudicate on them. It submits that the proposed issue is relevant to whether the proposed Zoning By-law Amendment is consistent with the policies on permitted uses in agricultural areas and the protection of normal farm practices in the Provincial Policy Statement, 2020 ("PPS") and must be adjudicated by the Tribunal.
Analysis and Findings
13The issues to be adjudicated at a hearing must be triable and capable of adjudication. An issue must lie within the Tribunal's statutory jurisdiction to adjudicate and must be capable of support by reference to evidence. An issue should be derived from the grounds for appeal and be relevant to the matter in dispute.
14In the present case, the impugned issue proposed by Organibis and 2541005 Ontario is:
Does the [proposed Zoning By-law Amendment] restrict a normal farm practice carried on as part of an agricultural operation, in contravention of section 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1?
15The Township argues that this is not an appropriate issue for the Tribunal to adjudicate and the Tribunal should defer to the jurisdiction of the Normal Farm Practices Protection Board to address the application of the Farming and Food Production Protection Act, 1998.
16The Farming and Food Production Protection Act, 1998 sets out the role and functions of the Normal Farm Practices Protection Board, which include the determination of whether a farming practice is a normal farm practice carried on as part of an agricultural operation. Its s. 6(1), (2) and (6) state:
6 (1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.
(2) A person described in subsection (3) or a municipality may apply to the Board, in a form acceptable to it, for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.
(6) Subject to subsection (5) and section 8, upon receiving an application under subsection (2), the Board shall hold a hearing to determine whether the practice in question is a normal farm practice.
17In Hill and Hill Farms Ltd. v. Bluewater (Municipality), 2006 CanLII 31802 (ON CA), the Ontario Court of Appeal addressed the role of the Normal Farm Practices Protection Board. It found, at paragraph 19, that "because [the Farming and Food Production Protection Act, 1998] is intended to address competing land uses, an inference can be drawn that the legislature intended the [Normal Farm Practices Protection Board] to have the power to consider zoning by-laws which regulate the use of land in a municipality". This was clarified by the Court in Oakville (Town) v. Read 2011 ONCA 22, at paragraphs 38 and 41-42, where it stated that the Board may have the power to consider zoning by-laws, but it does not have the authority to grant relief from the use provisions of a zoning by-law.
18In the present case, the proposed Zoning By-law Amendment addresses permitted uses. Among other things, the proposed Zoning By-law Amendment would amend the Zoning By-law to:
a. revise the Industrial Zones Permitted Uses by adding "Cannabis Production and Processing Facility" to the permitted uses in the Rural Industrial (IR) and Economic Development (ED) Zones;
b. add the following sentence at the end of the definition of "Agricultural Use": "An Agricultural Use does not include a Cannabis Production and Processing Facility or the outdoor growing of Cannabis"; and,
c. add the following sentence at the end of the definition of "Agricultural Use, Specialized": "A Specialized Agricultural Use does not include a Cannabis Production and Processing Facility or the outdoor growing of Cannabis".
19Under s. 3(5) of the Planning Act, the Tribunal's decision in a zoning by-law amendment appeal is required to be consistent with the PPS. PPS policy 1.1.5.2 states that in rural lands (such as those apparently in the present appeals), permitted uses include normal farm practices. It states:
1.1.5.2 On rural lands located in municipalities, permitted uses are:
d) agricultural uses, agriculture-related uses, on-farm diversified uses and normal farm practices, in accordance with provincial standards;
Moreover, PPS policy 2.3.3.2 requires that normal farm practices shall be promoted in prime agricultural areas. Policy 2.3.3.2 states:
2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.
20In determining consistency with the PPS, the Tribunal is to consider these policies, among others, and to determine, among other things, whether the proposed Zoning By-law Amendment restricts normal farm practices on rural lands and whether it promotes normal farm practices in prime agricultural areas.
21Under s. 8(2) of the Ontario Land Tribunal Act, the Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act. In the present case, the Tribunal has the jurisdiction to adjudicate issues arising from the Planning Act and determine whether the proposed Zoning By-law Amendment constitutes good planning. The determination of whether a zoning by-law amendment constitutes good planning includes consideration of relevant legislation, such as, in the present case, the Farming and Food Production Protection Act, 1998. However, there was no statutory authority presented to the Tribunal stating that it has the jurisdiction to declare whether the proposed Zoning By-law Amendment is in contravention of section 6 of the Farming and Food Production Protection Act, 1998. The Tribunal can consider the provisions of the Act when determining whether the proposed Zoning By-law Amendment constitutes good planning, but it cannot make a declaration on whether there has been a contravention of the Farming and Food Production Protection Act, 1998.
22As a result, the Tribunal finds that it has the authority to address whether the proposed Zoning By-law Amendment restricts normal farm practices and it may consider the provisions of the Farming and Food Production Protection Act, 1998. This evaluation does not require the Tribunal to formally issue a declaration as to whether the proposed Zoning By-law Amendment is in contravention of section 6 of the Farming and Food Production Protection Act, 1998. That would neither be within the Tribunal's mandate nor would it be necessary to determine the merits of the proposed Zoning By-law Amendment.
b. Bifurcation of the Appeals
Parties' Submissions
23The Township argues that the circumstances regarding each of the appeals is distinct and that each appeal should each be heard separately. It argues that Organibis proposes the development of a cannabis facility, 2541005 Ontario is presently unlicensed but wishes to cultivate industrial hemp, and Carmel Pharms is an operating licensed cannabis facility. It submits that each appeal is specific to the operations of each different appellant. It submits that each Appellant is carrying out or proposing to carry out substantively different operations and each is at a different stage of the planning approval process. It submits that the Appellants will produce little evidence in common and that hearing each appeal separately would simplify the hearing procedure, reduce the possibility of delays, and avoid the need for the Parties to sit through irrelevant evidence to their appeals.
24The Appellants each argues that the appeals are not site specific and that they should be consolidated or heard together. They submit that their interests and issues are practically the same and the bifurcation of the appeals would result in the possibility of inconsistent hearing results and inefficient and unnecessarily repetitive proceedings.
Analysis and Findings
25Based on the Appellants' proposed issues as set out in their Issues Lists, the Tribunal finds that they are similar and that it would be inefficient, duplicative, and would risk inconsistent outcomes if the appeals were heard separately. The Tribunal finds that to ensure the fair, just and expeditious determination of each proceeding, the zoning by-law amendment appeals shall be consolidated.
c. Consolidation of Organibis Proceedings
Parties' Submissions
26The Township submits that Organibis' zoning by-law amendment appeal should be consolidated with an appeal that Organibis has filed under the Development Charges Act. It submits that the Organibis zoning by-law amendment and Development Charges Act appeals are inextricably linked, the determination of one will have consequences for the other, and there will likely be overlapping evidence. It also argues that Organibis should appeal a site plan application that it has filed with the Township so that all these planning matters can be adjudicated at one hearing.
27Organibis opposes the consolidation of its zoning by-law amendment appeal and Development Charges Act appeal. It states that the decision on whether it will proceed with the Development Charges Act appeal will depend on the outcome of the present zoning by-law amendment appeal proceeding. It seeks to have the Development Charges Act proceeding deferred until after the present proceeding is disposed of.
Analysis and Findings
28The issues to be adjudicated in a Development Charges Act appeal are distinct from those to be addressed in a zoning by-law amendment appeal under the Planning Act. Although both proceedings relate to a single property, the distinct issues and the fact that Organibis' decision on whether to continue with the Development Charges Act appeal will depend on the outcome of its zoning by-law amendment appeal, makes it unreasonable and impractical for the Tribunal to require that these proceedings be consolidated. Given these circumstances, the Tribunal finds that it is not appropriate to consolidate Organibis' Development Charges Act and Planning Act proceedings at this time.
Conclusions at the CMC regarding the Township's Motion
29At the conclusion of oral submissions, the Tribunal dismissed the Township's motion for the bifurcation of the zoning by-law amendment appeal hearing and for the consolidation of the Organibis' zoning by-law amendment and Development Charges Act appeals. The Tribunal reserved on the appropriateness of the normal farm practices issue.
B. Settlement Discussion Opportunities and the Setting of Hearing Dates
30At the conclusion of the Township's motion, the Tribunal canvassed the Parties regarding preparations for the hearing.
31The Parties were pessimistic on the prospects of possible settlement discussions given fundamental differences in their positions and were not optimistic at this stage about the value of engaging in mediation.
32The Parties each described the number and types of witnesses that they plan to call at the hearing. Based on these submissions, the Tribunal scheduled an 11-day hearing for March 2022.
33The Tribunal directed the Parties to file a draft Procedural Order and Issues List with the Tribunal's Case Coordinator promptly after the Tribunal's issuance of a written Decision on the Township's motion.
ORDER
34The Tribunal grants the Township's motion in part.
35The Tribunal directs that the issue of "whether the proposed Zoning By-law Amendment restricts a normal farm practice carried on as part of an agricultural operation" is an appropriate issue, which could be included in the Appellants' Issues Lists.
36The Tribunal orders that the Organibis, 2541005 Ontario, and Carmel Pharms zoning by-law amendment appeal proceedings are consolidated.
37The Tribunal directs the Parties to file a draft Procedural Order and Issues List with the Tribunal forthwith for the Tribunal's review and approval.
38The Tribunal orders that the hearing of the appeal will commence by video hearing on Tuesday, March 22, 2022 at 10 a.m. Eleven (11) days have been set aside for the hearing.
39Parties 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/344010701
Access code: 344 010 701
40Parties 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.
41Persons 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: (Toll Free): 1 888 299 1889 or +1 (647) 497-9373. The access code is 344 010 701.
42Individuals 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.
43There will be no further notice.
44This Member is not seized.
"Hugh S. Wilkins"
HUGH S. WILKINS
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.