Dell v. Selwyn (Township), 2023 CanLII 123252

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 21, 2023

CASE NO(S).: OLT-23-001469

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

Appellant: 2799568 Ontario Inc.

Subject: Zoning By-law 2021-066

Description: ZBA for Cannabis Land Uses

Reference Number: C-08-21

Property Address: City Wide

Municipality/UT: Township of Selwyn

OLT Case No: OLT-21-001469

OLT Case Name: Dell v. Selwyn (Township)

Heard: November 24, 2023 by video hearing

APPEARANCES:

Parties	Counsel
2799568 Ontario Inc.	Russell Cheeseman, Stephanie Fleming
Township of Selwyn	Meaghan Barrett

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON NOVEMBER 24, 2023 AND ORDER OF THE TRIBUNAL

1This decision arises from the second Case Management Conference (“CMC”) regarding an appeal brought by 2799568 Ontario Inc (“Appellant”) regarding the approval by the Township of Selwyn (“Township”) of Zoning By-law No. 2021-066.

2At the CMC, the Parties discussed the finalization of a draft Procedural Order and Issues List, opportunities for settlement discussions, and the setting of hearing dates.

3The Parties stated that, apart from the wording for one proposed issue, they were in agreement regarding the contents of the Issues List. After some discussion, the Appellant agreed to revise the issue in question and file the finalized Issues List and draft Procedural Order with the Tribunal by December 1, 2023, which it did. The Tribunal has now received and reviewed it and approves the Issues List and Procedural Order attached as Schedule 1 to this Order and Decision.

4The Parties stated that they have previously undertaken settlement discussions without a successful result. They agreed that this is not a case that is amenable to mediation.

5The Parties described the witnesses that they each intend to call at the Hearing and estimated that a five-day Hearing is required.

6The Tribunal scheduled a five-day Hearing commencing on Monday, May 6, 2024 at 10 a.m. by video Hearing.

7Parties 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:

GoTo Meeting: https://meet.goto.com/348282861

Access code: 348-282-861

8Parties 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 at: 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) 497-9373 or (Toll-Free) 1 888 299 1889. The access code is 348-282-861.

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 Case Coordinator having carriage of this case.

11There will be no further notice.

12No Member is seized.

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE-CHAIR

Ontario Land Tribunal

Website: www.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.

SCHEDULE 1

CASE NO(S).: OLT-21-001469

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

Appellant: 2799568 Ontario Inc.

Subject: Zoning By-law 2021-066

Description: ZBA for Cannabis Land Uses

Reference Number: C-08-21

Property Address: City Wide

Municipality/UT: Township of Selwyn

OLT Case No: OLT-21-001469

OLT Case Name: Dell v. Selwyn (Township)

PROCEDURAL ORDER

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 Monday, May 6, 2024 at 10:00AM.

3. The parties’ initial estimation for the length of the hearing is 5 days. 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 at the case management conference are set out in Attachment 2 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 3. 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 4 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.

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 Friday, February 2, 2024 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 Friday, February 16, 2024 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 Thursday, February 29, 2024.

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 outline of the witness’ evidence, as in paragraph 13 below.

13. On or before Friday, March 15, 2024, 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 Friday, March 15, 2024, 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 Friday, April 5, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, April 26, 2024, 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten days after the evidence is received Thursday, March 28, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, April 27, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

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 party notifies 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 Friday, April 26, 2024 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 filings shall be submitted electronically 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 the 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 1: SUMMARY OF DATES

DATE	EVENT
Friday, February 2, 2024	Exchange of witness lists (names, disciplines and order to be called)
Friday, February 16, 2024	Experts meeting prior to this date
Thursday, February 29, 2024	Agreed statement of facts and issues
Friday, March 15, 2024	Exchange of witness statements and expert witness statements; and Exchange of participant statements
Thursday, March 28, 2024	Exchange of reply witness statements
Thursday, April 5, 2024	Confirm with Tribunal if all reserved hearings dates are required
Friday, April 26, 2024	Exchange of visual evidence, if any
Friday, April 26, 2024	File hearing plan with Tribunal
Friday, April 26, 2024	File joint document book with Tribunal
May 6, 2024	Hearing commences (5 days)

ATTACHMENT 2: LIST OF PARTIES AND PARTICIPANTS

PARTIES

2799568 Ontario Inc. Municipal Law Chambers TD Canada Trust Tower 161 Bay Street, Suite 2700 Toronto, Ontario M5J 2S1 Russell Cheeseman (rdcheese@aol.com) Stephanie Fleming (sfleming@mlawc.com)

Township of Selwyn Aird & Berlis LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, Ontario M5J 2T9 Laura Dean (ldean@airdberlis.com)

ATTACHMENT 3: ISSUES LIST

NOTE: The identification of an issue on the Issues List does not meant that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and/or argument at the hearing.

ISSUES LIST OF THE APPELLANT

1. Does Zoning By-law 2021-066 (the “Zoning By-law”) have regard to the matters of provincial interest in s.2 of the Planning Act, R.S.O. 1990, c. P. 13, as amended, specifically those items listed below?

   1. (b) the protection of the agricultural resources of the Province;
   2. (k) the adequate provision of employment opportunities;
   3. (l) the protection of the financial and economic well-being of the Province and its municipalities;
   4. (n) the resolution of planning conflicts involving public and private interests;

2. Is the Zoning By-law consistent with the policies of the Provincial Policy Statement, including policies:

   1. 1.1.4.1(f),(i),
   2. 1.1.5.2 (d),
   3. 1.1.5.7
   4. Definitions:
      • Agricultural Uses
      • Normal Farm Practices

3. Does the Zoning By-law conform with the policies of the Growth Plan for the Greater Golden Horseshoe 2020, including policies:

   1. 1.2 (Vision),
   2. 2.2.5(8),
   3. 2.2.9 (1),
   4. 2.2.9 (3)(a),
   5. 4.2.6(3)

4. Does the Zoning Bylaw conform with the policies of the County of Peterborough’s Official Plan 1994, with amendments consolidated to March 2020, including policies:

   1. 4.3.1
      • to preserve and enhance the rural character of the County as a cultural resource and ensure the viability of the agricultural industry
   2. 4.3.2
      • to ensure that the agricultural industry remains viable;
      • to preserve prime agricultural soils and protect farms, where possible, from activities and land uses which would limit productivity or efficiency;
      • to encourage compatible economic diversification including greater flexibility for on-farm activities, home-based businesses and agri-tourism;
      • to preserve the farm community as an important social resource;
   3. 4.6.3.4,
      • The County’s rural areas are a valued cultural resource. Agriculture is and will continue to be a significant economic sector in the County. The County will:
        • promote farm practices that maintain and enhance natural resources;
        • promote complementary on-farm activities that contribute to the ongoing financial viability of the farm operation;
        • investigate, promote and where appropriate, administer programs supportive of agriculture;
      • In recognition of the rural nature of local municipalities in the County and their need for economic growth, and in recognition of the farming community and its need for diversified on-farm and additional off-farm employment opportunities:
        • the non-agricultural and non-tourism oriented industrial and commercial uses permitted outside identified settlement areas will be limited to uses which consider and support the cultural and rural character of the area, as identified in Section 4.3 Rural and Cultural Landscape.
   4. 6.2.2.1
      • The Rural designation applies to areas where Class 4, 5, 6 and 7 and Organic soils under the Canada Land Inventory Soil Capability for Agriculture predominate and areas where previous non-farm development has effectively limited the future of intensive farm activity.
   5. 6.2.2.2
      • The predominant use of land within the Rural designation may include all agricultural uses outlined in Section 6.2.1 of this Plan. Other permitted uses shall include forestry, passive outdoor recreation uses and activities connected with the conservation of soil and wildlife.
   6. 6.2.2.11
      • a) Town of Selwyn ii) Cannabis Cultivation and Processing
      • c) Outdoor cannabis cultivation is an agricultural use and is required to be set back a minimum of 50 metres from adjacent lot lines.

5. Would the uses proposed by the Appellant, being the packaging of product for retail sale and the shipping of same from the site in bulk, be barred under the Zoning By-law?

6. Are the restrictions imposed by the Zoning By-law, specifically those dealing with the definition of “cannabis cultivation – outdoor”, Section 3.49.1, and Section 3.49.3 consistent with those permitted by a cultivation and/or processing license issued in accordance with the Cannabis Regulations SOR/2018-144, to the Cannabis Act S.C. 2018, c. 16?

7. Does the Zoning By-law permit the packaging of crop product for retail sale and bulk shipping, as would be a “normal farm practice” as per the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1?

8. Are the minimum setback standards from “Sensitive Land uses” appropriate and reasonable?

ATTACHMENT 4: ORDER OF EVIDENCE

1. 2799568 Ontario Inc.
2. Township of Selwyn
3. 2799568 Ontario Inc. (in reply, if necessary)

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 statement 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.

55058802.1