Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 15, 2023 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)

Heard: CMC started July 25, 2022 then continued on November 23, 2022 by video hearing

APPEARANCES:

Parties 2799568 Ontario Inc.

Counsel Russell Cheeseman Stephanie Fleming

Parties Township of Selwyn

Counsel Meaghan Barrett Alexander Suriano

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) held on July 25, 2022 and then continued on consent of the parties on November 23, 2022.

22799568 Ontario Inc. (“Appellant”) appealed the enactment of Zoning By-law No. 2021-066 (ZBL) by the Township of Selwyn (the “Township”). The Appellant wished to grow Cannabis on his lands and realized that per the ZBL he could no longer do so as the permission to use the lands to grow/process Cannabis crops on his farmland was no longer a permitted use under the ZBL. The Appellant has lands municipally known as 290 Cork Line in the Township (“Subject Lands”).

3The Tribunal reviewed the Affidavit of Service for the Notice of the first CMC sworn by Natalie Hickey on June 22, 2022. The Notice was marked as Exhibit 1 for the record as it was determined to have been duly served.

4There were no requests received for the grant of Party or Participant status and none were granted.

5The counsel for the Township indicated concerns that the appeal lacked sufficient specificity of issues that the Township could duly address in the matter.

6The counsel for the Appellant submitted that he was retained a few days before the first CMC and he continues to bring himself up on the matter in discussion with the Appellant and through his review of the appropriate material.

7Both counsel agreed and suggested on consent that a follow-up continuation CMC be scheduled. The Tribunal granted this request and a continuing CMC was set for November 23, 2022. The Appellant and the Township agreed to work and assist each other to bring the matter before the Tribunal appropriately at the time of the continued CMC on November 23, 2022.

8In spite of the lack of detail available for all possible issues that a hearing in the matter could address, there was preliminary discussion held with respect to possible engagement of witnesses by the Appellant. The Appellant advised that there could be three witnesses, including a witness who could provide opinion evidence in the area of land use planning.

9The Township informed the Tribunal that they would like to bring forward a Motion on November 23, 2023, at the continuing CMC and requested it be heard in person on the day of the continuing CMC. The Tribunal granted this request and the Motion raised by the Township was heard by video on November 23, 2022.

10The decision of the Tribunal in this regard follows.

TOWNSHIP MOTION FOR DISMISSAL WITHOUT A HEARING

Motion

11The Township made a Motion to dismiss the appeals filed by Appellant in Tribunal Case No. OLT-21-001469 (the “Appeal”). The Township seeks the following in its Motion:

1. An order of the Tribunal, pursuant to subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”) to dismiss the Appeal in its entirety without holding a full hearing;

2. In the alternative, an order of the Tribunal to scope the issues list of the Appellant and that a further Case Management Conference be scheduled in the first quarter of 2023 to schedule a contested hearing of the Appeal.

3. The Township’s costs of this motion; and

4. Such other relief as counsel for the Township may request and the Tribunal may permit.

12The materials before the Tribunal in this Motion are the following:

• Exhibit 2: Affidavit of Service for the Motion sworn by Meaghan Barrett on November 14, 2022;

• Exhibit 3: Motion Record of the Township dated November 8, 2022;

• Exhibit 4: Responding Motion Record of 2799568 Ontario Inc. dated November 16, 2022;

13The Planning Act provides the following authority for the consideration of a matter before the Tribunal and the Tribunal’s authority to dismiss a zoning by-law amendment appeal without a hearing per s. 34(25):

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious,

iii. the appeal is made only for the purpose of delay, or

iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

4. The appellant has not paid the fee charged by the Tribunal.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal. 2019, c. 9, Sched. 12, s. 6 (8); 2021, c. 4, Sched. 6, s. 80 (1).

14The Tribunal also receives additional authority from the Ontario Land Tribunal Act and specifically s. 19(1)(c) as follows:

Dismissal without a hearing

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

Township Grounds for the Motion

15The Township submits that the Township planning operates as follows::

All zoning by-laws passed by the Township must conform to the County of Peterborough Official Plan (the “County Plan”).

On February 19, 2020, County Council adopted Official Plan Amendment 58 (“OPA 58”) to introduce a specific policy framework for cannabis uses within the County and the Township. Prior to the adoption of OPA 58, cannabis uses were not specifically regulated in the Township. There were no appeals of OPA 58 and it has been incorporated into the in-force version of the County Plan.

The County Plan serves a dual purpose for the Township: it establishes a broad, upper level policy framework that applies to all lands in the County of Peterborough (the “County”), and also functions as the lower tier Official Plan for the Township.

The policy directions in the County Plan are primarily implemented at a local level in the Township by the Township of Selwyn Comprehensive Zoning By-law 2009- 21 and any amendments thereto (the “Comprehensive Zoning By-law”).

In concert with OPA 58, the Council of the Corporation of the Township of Selwyn (“Council”) passed Zoning By-law Amendment No. 2020-002 (“By-law 2020-002”) to amend the Comprehensive Zoning By-law and implement the policy framework related to cannabis uses that is set out in the County Plan on January 28, 2020. By-law 2020-002 was not appealed and is in full force and effect in the municipality.

16The Township submits the following grounds and associated information:

The appeal form filed by Appellant also indicated that it would be raising issues of consistency with the Provincial Policy Statement, 2020 (the “PPS”) and conformity with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), but, despite the appeal form specifically stating that reasons for [sic.] were required in support of these grounds, none were provided.

The issues raised in this Appeal do not reveal any genuine land use planning grounds and are frivolous, vexatious and made only for the purpose of delay. This proceeding has no reasonable prospect of success, and should proceed no further.

The Appellant Letter demonstrates that the Appellant is seeking to use this Appeal to improperly circumvent the approvals process contemplated in the County Plan to permit the processing of cannabis.

The draft issues list attached to the Appellant letter purports to raise broader planning issues, but upon closer examination, these are not issues that are worthy of adjudication or justify a hearing given the Appellant’s stated purpose for the Appeal.

17The sworn Affidavit of Alison Luoma in support of the Township Motion asserts that:

14. … the foundational policy approach that outdoor cannabis cultivation be permitted as-of-right and that cannabis processing and indoor cannabis cultivation be permitted subject to a Zoning By-law Amendment and Site Plan Control has been maintained as provided for in Section 4.1.2.2(j)(k) and Section 4.1.3.2(c) of the new County Official Plan.

15. The new County Plan continues to include policy tests for the establishment of a cannabis processing use. Section 4.1.2.2(l) of the new County Official Plan directs that “prior to the approval of a Zoning By-law Amendment for the processing of cannabis, the local Municipality shall be satisfied that the policy tests of the new Official Plan are met. Such policies continue to address matters such as servicing (water supply and sewage disposal), stormwater management, land use compatibility as well as mitigation of negative impacts including but not limited to impacts on water resources, watershed health, fish habitat, odour, noise, and dust. Any such use must also satisfy the requirements of the applicable road authority.

16. By-law 2020-002 which amended the Township Comprehensive Zoning By-law 2009-021, is now in full force and effect. By-law 2020-002 implements the direction of the in-effect County Plan and permits outdoor cannabis cultivation as-of-right in the Agricultural (A) Zone and Rural (R) Zone.

17. The effect of By-law 2020-002 was to establish the existing in-effect zoning requirements for cannabis uses as follows:

(i) Incorporate the following definitions into the Comprehensive Zoning By-law:

o Cannabis analytical testing facility;

o Cannabis cultivation – indoor;

o Cannabis cultivation – outdoor;

o Cannabis drug production facility;

o Cannabis processing facility; and,

o Cannabis research facility.

(ii) Establish a setback of 150 metres from a cannabis processing facility or indoor cannabis cultivation use and any lot containing a number of identified community and/or residential sensitive uses;

(iii) Permit outdoor cannabis cultivation uses as-of-right within the Agricultural (A) Zone and Rural (R) Zone;

(iv) Establish minimum required setbacks for outdoor cannabis cultivation uses within the Agricultural (A) Zone and Rural (R) Zone as follows:

o 50 metres from lot lines; and

o 50 metres for any accessory building associated with an outdoor cannabis cultivation use.

(v) Establish parking and loading standards for cannabis related uses.

18Ms. Luoma further testifies that regarding the Appeal before the Tribunal (By-law No. 2021-066):

By-law 2021-066 further amends the Township’s Comprehensive Zoning By-law 2009-021 in order to provide clarity to existing cannabis related zoning provisions and to better provide for land use compatibility and mitigation of impacts in accordance with the policy framework established in the County Plan. As described in greater detail below, the effect of By-law 2021-066 is to:

(i) Revise the existing definitions for cannabis cultivation – indoor, cannabis cultivation – outdoor, agricultural use and agricultural produce warehouse to provide greater clarity;

(ii) Add new definitions for air treatment control, adverse impact and sensitive land use;

(iii) Establish more detailed zoning regulations for matters such as lighting, planting strips, outdoor storage and other measures to mitigate impacts from cannabis related uses;

(iv) Establish a minimum separation distance of 300 metres between an outdoor cannabis cultivation use and nearby sensitive land use(s);

(v) Provide clarity to ‘farm greenhouse’ and ‘small scale commercial and industrial uses’ as permitted uses in the Agricultural (A) Zone and Rural (R) Zone; and,

(vi) Correct a typo for the parking and loading standard applied to cannabis related uses.

2799568 Ontario Inc., Response (Appellant)

19The Appellant confirms and agrees with the scoping and factual descriptions provided by the Township in terms of hierarchical relationship between the Township Official Plan context as well as the relationship of the Township’s planning instruments to the County of Peterborough Official Plan.

20The Appellant submits that:

The Appellant has been proceeding as expeditiously as possible, has accommodated the request of the Township for a meeting on site, and has explained the proposed operation to the Township staff so there is no misunderstanding as to the land use that is to occur on the site.

The Appellant is the party that is being disadvantaged by any delay in this process. The Appellant wishes to get a crop in the ground as soon as possible, and any delay is not to its advantage in any manner.

The issues of the proper land use definitions, and the ability for the Appellant to use its property as it sees fit are essential to this appeal.

21The Appellant witness Mr. Cieciura, through his Affidavit with land use planning opinion evidence testifies regarding the issues to be addressed in the Appeal per his submitted sworn Affidavit. Mr. Cieciura testifies as follows:

The Appellant Letter details the concerns that the Appellant has concerning the intended use of the property and the proposed effect of the By-law on its property and these uses.

The Appellant seeks to establish an outdoor cannabis agricultural operation within the Township on the property known municipally as 290 Cork Line (the “Property”). On this, it intends to grow cannabis outdoors, harvest said crop, dry, package, and ship the resulting crop (the “Uses”) to the federally or provincially regulated cannabis distributor and/or reseller (the “Regulated Distributor”) for sale to the public, in accordance with the Cannabis Act, S.C. 2018, c. 16 and the attendant Cannabis Regulations, SOR 2018-144. Further to this, the Appellant must apply for certain licences under this Act that would permit these Uses. A requirement of the application for these licences is that the municipality must confirm that the zoning for the Property will permit operation of a cannabis farm.

The Appellant has been advised that it must apply for two licences to carry out the proposed Uses detailed above on the Property. In particular, it must obtain a licence for standard cultivation pursuant to s.8(3)(b) of the Cannabis Regulations to grow, harvest, and dry the cannabis crop. Holders of this licence are entitled to sell to certain parties, but not onto the public. It must also obtain a processing licence pursuant to ss.17(1) and 17(5) of these Regulations to package the harvested crop for retail and to sell and distribute it onto the Regulated Distributor for sale to the public. Without this second licence, the Appellant would not be permitted to sell its crop directly to the Regulated Distributor for sale onto the public, as the standard cultivation licence does not contain the same requirements in respect of quality control for the final crop. This is a necessity for any product sold onto the public.

The definition of “Cannabis processing facility” is defined in Zoning By-law 2020-002 as follows:

“means a facility where the extraction of cannabis oil for the purpose of producing or manufacturing cannabis oil, gels or other edibles is carried out, subject to the regulations of the Cannabis Act, as amended.”

The definition of “Agricultural Use” as proposed in Zoning By-law 2021- 066 is as follows:

“means a use of land, building or structure for the purpose of animal husbandry, bee-keeping, dairying, fallow, field crops, forestry, fruit farming, horticulture, market gardening, pasturage, poultry-keeping, or any other farming use, and includes the growing, raising, packing, treating, storing and sale of produce produced on the premises and other similar uses customarily carried on in the field of general agriculture and which are not noxious but shall not include any other use or establishment as may otherwise be defined herein.”

In land use terms, the appellant’s intended use of growing, harvesting, drying, packaging, and shipping of cannabis, is not a “Cannabis processing facility” as defined in the Zoning By-law.

It would appear that the fact that our client wants to package the material into individually retail sized packages is causing the Township to interpret its by- law in such as way as to deem it to be ‘processing’, due to the fact that the federal licence required to do that packaging is called a “processing licence”. While the federal government may be free to name its licences in any manner it wishes, the name does not change the nature of the land use. It is cultivation of an agricultural crop, and the drying and shipping off the farm in the same purview as any other agricultural crop.

In order to solve this discrepancy, it is my professional planning opinion that a revision is required in the definition section of Zoning By-law 2021-066 to the definition of “Cannabis Cultivation – Outdoor”, to make it clear that the packaging of the cannabis for retail distribution is permitted within the definition. The size of the “container” used to ship the product off the farm property does not change the “land use” of the property.

In my professional opinion, such a change in the definition would solve any confusion that exists and would allow our client to apply for and be issued the required federal licences, pursuant to the Cannabis Act, without any specter of the land use being any type of “Cannabis processing facility” as defined in the Zoning By-law.

By-law 2021-066 itself has two definitions relevant to the appellant’s proposed operation on the subject property. The definition of “Agricultural Use” and “Cannabis Cultivation – Outdoor”. The definition of “Agricultural Use” expressly permits the “packing” of products produced on the property, but the definition of “Cannabis Cultivation – Outdoor” does not, even though the proposed use is what would customarily be considered an “Agricultural Use”. There is no intention to carry out any additional land use beyond “packing” the product produced on the subject property, and therefore it is my opinion that amending the definition of “Cannabis Cultivation – Outdoor” as it specifically applies to the subject property, to permit the “packing” of the product produced on the subject property would be appropriate, would conform to the Official Plan, and would be good planning.

The definition of “Cannabis Cultivation – Outdoor” written to exclude the “packing” of product produced on the subject property is not consistent with traditional and customary farm practices (including normal farm practices) in that the by-law un-necessarily restricts a farm operator from packing the product produced on the property (which is defined and permitted in the “Agricultural Use” zone), and this would have the effect of limiting the “packing” of an agricultural product for transportation and sale unlike any other agricultural product.

The packaging of the product produced on the subject property is necessary to transport the product off site to ultimately be sold to consumers. The appellant does not sell directly to consumers or the public, but sells to an authorized retailer under the Federal Regulations. Whether that package is small or large is not a land use planning issue and therefore should not be regulated by By-Law 2021-066. In interpreting by-law 2021-066 to mean that the appellant’s use of the property (as described in detail in correspondence dated August 29, 2022) is not permitted, would have the effect of regulating the size of the packaging that the appellant can use.

By restricting the “processing” of cannabis on this site in the manner that the by-law specifies, i.e. packaging equals processing, the by-law is not implementing the Official Plan policies, specifically to unnecessarily restrict an agricultural use within the “Rural” designation which permits all agricultural uses.

22Mr. Cieciura concludes that in his opinion:

The requirement for Site Plan Approval is an unnecessary and burdensome requirement that hinders economic development in this specific instance. The packaging of cannabis has no effect on the need for buildings, infrastructure, or anything else related to site plan approval. The packaging of cannabis will take place within the buildings existing by benefit of a building permit, and for which all activities related to the cultivation of cannabis are taking place. All of the physical activities of packaging the cultivated cannabis can already take place within the existing buildings as of right and it is solely the requirement for a "processing licence" by the Federal Government, in order to package the cannabis in a package that the Ontario Cannabis Store or other authorized retailer will accept, that is being restricted by this proposed by-law definition.

FINDINGS

23The Tribunal notes that at the start of the first CMC, parties on consent determined to work together to clarify any ambiguities in the Issues List for the Appeal. It appears that this effort has been less than successful in the opinion of the Township. This is noted by the Tribunal and the Appellant is strongly encouraged to correct any deficiencies if the Appeal is allowed to proceed. The Tribunal has statutory authority to make a Motion on its own in this regard at any times in the processing of a matter through subsection 34(25) of the Planning Act and/or subsection 19(1)(c) of the Ontario Land Tribunal Act.

24The Tribunal has reviewed submissions of the counsel as well as supporting sworn Affidavits providing opinion evidence in the area of land use planning; for the Township that of Alison Luoma sworn on November 8, 2022; and for the Appellant that of Theodore J. Cieciura sworn on November 16, 2022.

25The Tribunal notes that Mr. Cieciura has well laid out the issues in the matter with due review and discussion of planning issues and specific aspects as these impact the Appellant. Mr. Cieciura has opined that from the perspective of duly growing cannabis inclusive of getting it packaged to be shipped from farm is inappropriately defined as well as inappropriately categorized in the context of a farming crop. Mr. Cieciura has shown definitive policy issues while the Township and Ms. Luoma characterize these as minor changes.

26Whereas Ms. Luoma well articulates her opinion with respect to how the planning instruments work and what is required of the Appellant to proceed with his plans, she indirectly substantiates that By-law 2021-066 is not just a minor adjustment. From the evidence of Ms. Luoma, it is clear that an extra step specific to Cannabis farming in its totality has been added, which in essence would require for each such proposal to seek a zoning by-law amendment. Ms. Luoma has characterized these as small changes and additions. However, Mr. Cieciura considers these substantive and of concern on the basis of land use planning and appropriate for assessment in the context of the Appeal.

27The Tribunal makes no finding whether the changes established through the ZBA are appropriate, minor or whether the Appellant has established sufficient and complete detailed arguments to successfully contest the same in the context of land use planning.

28The Tribunal, however, finds that the evidence of Mr. Cieciura shows that there exists a substantive basis for the Appeal to continue due to the underlying planning issues so brought to light jointly through the evidence of Ms. Luoma and Mr. Cieciura. As such the Appeal is not frivolous, vexatious and made only for the purpose of delay.

29The Tribunal thus finds that the Motion for dismissal without a hearing does not meet any of the statutory provisions of subsection 34(25) of the Planning Act.

30The second ground raised by the Township under subsection 19(1)(c) of the Ontario Land Tribunal Act seeks determination if the “proceeding has no reasonable prospect of success”. Based on the Affidavits in support of the dismissal of the Appeal as well as for continuation of the Appeal, the Tribunal finds that the appeal brings forth specific planning issues for which there are differing planning opinions. The veracity of the Appellant’s position is not so lacking for the Tribunal to conclude that the “proceeding has no reasonable prospect of success”.

31The Tribunal thus finds that the Motion does not meet the requirements of subsection 19(1)(c) of the Ontario Land Tribunal Act for dismissal of the appeal without a hearing.

ORDER

32THE TRIBUNAL ORDERS that the Township of Selwyn Motion is denied in part as follows;

a. Township Motion for dismissal of the appeal without a hearing is denied; and,

b. The Township request for costs of the Motion is denied.

33THE TRIBUNAL ORDERS that the request of the Township of Selwyn for the setting up of a second Case Management Conference is allowed.

34THE TRIBUNAL ORDERS that a second Case Management Conference be set for which the Tribunal would issue a Notice. The parties shall provide the following prior to such event:

a. 2799568 Ontario Inc. shall provide a detailed policy specific Issues List to the Township within 30 days of the date of this decision;

b. Ten days before the second Case Management Conference, on consent, the parties shall provide the Tribunal Case Coordinator with a final draft of a Procedural Order inclusive of the final draft of the Issues List;

c. The Parties shall be prepared to provide their plan of evidence at the Second Case Management Conference in the context of calling of evidence and the proposed witnesses to be called so that an appropriate hearing on merits can be scheduled during the second Case Management Conference.

35This Member is seized up to and including the conduct of the second Case Management Conference.

“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.