Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 26, 2023

CASE NO(S).: OLT-22-002249 (Formerly 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

OLT Case No.: OLT-22-002249

Legacy Case No.: PL200194

OLT Lead Case No.: OLT-22-002249

Legacy Lead Case No.: PL200194

OLT Case Name: Carmel Pharms Corp. v. Oro-Medonte (Twp.)

Heard: April 4, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Township of Oro-Medonte	C.J. Williams and Andrea Skinner
Carmel Pharms Corp.	Raivo Uukkivi and Jennifer Evola
2541005 Ontario Limited	Stephen Nadler and William Friedman
10982377 Canada Inc.	Bobby Vakili
Oro-Medonte Community Coalition Corp.	Ian Flett

MEMORANDUM OF ORAL DECISION DELIVERED JATINDER BHULLAR ON APRIL 4, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the fourth Case Management Conference (“CMC”) held on March 25, 2022 and the Motion hearing by Carmel Pharms which started at this CMC was continued on April 4, 2022.

2This matter arises out of appeals against 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. There are three appellants and the matter was originally scheduled to be heard as a consolidated hearing lasting about three weeks.

3This decision provides for Tribunal determinations regarding:

a. Carmel Pharms Motion; and

b. Settlement hearing regarding Carmel Pharms appeal.

CARMEL PHARMS MOTION

4Carmel Pharms Corp. (“Carmel Pharms”) reached a settlement with the Township leading up to the hearing. As a result, it requested and was allowed by the Tribunal to carry-out the following:

a. motion of to separate its appeal from the consolidated hearing scheduled to be heard with the other two appellants in the matter. These are 10982377 Canada Inc. (“Organibis”) and hip of Oro-Medonte (“Township”).

b. Should the Tribunal allow the motion, the Carmel settlement hearing will commence immediately prior to the start of appeals by the remaining parties.

5The parties informed the Tribunal that their written records are already before the Tribunal and that further oral arguments or submissions would not be necessary. Carmel Pharms informed that the Affidavit of Derek Witlib in support of the Motion and the settlement reached between the Township and Carmel Pharms is part of their motion record.

Carmel Pharms Motion Requested Relief

6Carmel Pharms’ requests the following in their Motion:

a. That their appeal be separated from the other two Appellants;

b. That their settlement hearing be held once the appeal is separated; and

c. Such further and other relief as counsel may request and as may be granted by the Tribunal.

Evidence, Analysis and Findings

7Information relied upon by the Tribunal:

a. PL200194 By-law 2020-046 Motion Record of Carmel Pharms Corp. February 11, 2022

b. Notice of Response to Motion of 2541005 Ontario Limited on March 23, 2022

c. PL200194Revised Draft Order March 29, 2022

8The Township supported the Carmel Pharms’ Motion but did not file a response.

92541005 Ontario (“254”) opposed the Motion and filed a response. Organibis also opposed the Motion and supported 2541005 Ontario in its submission but filed no response of its own.

10Oro-Medonte Community Coalition Corp. (“Community Coalition”) took no position on the Motion.

11Carmel Pharms submitted that:

1. Given the settlement of the Carmel Pharms’ with the Township, it is appropriate to hear the Carmel Pharms matter separately and in advance of the consolidated proceeding and to determine it without prejudice to the positions of the other Appellants.

2. Pursuant to Rule 16.4 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“OLT Rules”), the Tribunal is empowered to reverse a decision it previously made regarding the consolidation of proceedings at any time it finds that, among other reasons, a party is unduly prejudiced.

3. The Tribunal’s June 18, 2021 decision was concerned that the proceeding would be inefficient, duplicative, and would risk inconsistent outcomes if three contested hearings challenged the same zoning by-law.

4. Carmel Pharms’ request will reduce the length of the hearing. The matter removes the complexity associated with the consideration of a legal, existing, site-specific use by providing it with an exemption. Carmel Pharms’ ongoing operations and its ability to run its business are significantly prejudiced if it cannot proceed with its ongoing expansion. The remaining Appellants are not prejudiced by Carmel Pharms’ settlement with the Township and the approval of By-law No. 2020-046 as it relates to the Lands and are free to continue to challenge By-law No. 2020-046.

12254 submitted that:

1. The By-law is currently the subject of three ongoing appeals, with Carmel's appeal being one of the three. In April 2021, the Township brought a motion for (in part) an order that each of the three appeals be heard separately. All the Appellants, including Carmel Pharms’ opposed the Township's Motion. In its Decision dated June 18, 2021 (copy attached), the Tribunal dismissed the Township's Motion and instead held that all three appeals be consolidated:

to ensure the fair, just and expeditious determination of each proceeding". The Tribunal further held that the appeals "are similar and that it would be inefficient, duplicative, and would risk inconsistent outcomes if the appeals were heard separately": Paragraph 25 of the Decision.

2. 254 took no issue with the proposed exclusions to the By-law that pertain to Carmel Pharms' property on a site-specific basis. Those amendments are set out at sections 4 and 5 of the draft revised By-law attached to Carmel Pharms’ Notice of Motion herein.

3. 254 submitted that the By-law (other than the said proposed amendments) directly impacts each of the co-Appellants' lands, and the propriety of the By-law is to be exclusively determined following the upcoming consolidated appeals hearing.

4. Accordingly, the By-law cannot be approved by way of a motion in advance of the appeals hearing. To do so would obviously prejudice the co-Appellants' ongoing appeals and would deny them procedural fairness.

5. 254 further submitted that Carmel Pharms’ Motion is also premature and that this Tribunal should not hear the Motion in advance of deciding on the entire By-law. The Motion should be brought, if at all, only after the By-law's appeals hearing is determined. If the appeals are successful, then the By-law would be repealed and there would not be any motion to approve an amendment to the By-law. Alternatively, if the appeals are unsuccessful and the By-law is permitted, Carmel Pharms could then seek to have the By-law amended to exclude its property from the By-law's application in accordance with its reported settlement with the Township.

13During the CMC the parties provided further elaboration on their positions in the Motion. The Tribunal notes that the parties did not contest the assertion by 254 that while in developing and finalizing the PO, the parties identified their issues individually. However, there was consensus among the parties and a finding made by the Tribunal in it June 18. 2021 decision that the underlying issues were similar. This is one of the reasons that the Tribunal in its decision of June 18, 2021 rejected the then Motion brought by the Township to have the three hearings to be separated whereas they have been previously consolidated.

14Based on the motion record and submissions of the parties the Tribunal determined and informed the parties as follows orally on April 4, 2022:

a. that the approach taken by Carmel Pharms to not have the hearing carried out as scheduled and directed in the PO has non-specific merit from a planning perspective;

b. Some of the wording in the draft of order requested by Carmel Pharms was potentially problematic in terms of Tribunal’s ability to fairly adjudicate for the remaining appeals of 254 and Organibis. Some excerpted examples from Carmel Pharms requested draft order are noted below:

i. The appeal by Carmel Pharms Corp. of Township of Oro-Medonte Zoning By-law No. 2020-046 is allowed, in part ….

ii. Township of Oro-Medonte Zoning By-law No. 2020-046 is hereby modified in the form attached to this Order as Attachment 1, only as it relates to ….

iii. Notwithstanding the partial approval of By-law 2020-046, as modified and as it relates solely to ….

15The Tribunal concluded that considering the OLT Rules 16.1 and 16.4, that the Carmel Pharms’ Motion; if allowed; has the potential to create at least more complicated, problematic for fair and efficient adjudication versus the single consolidated hearing in the matter.

16The Tribunal thus denied the original Carmel Pharms motion and issued an oral order as follows:

• THE TRIBUNAL ORDERS that the Carmel Pharms Motion seeking that their appeal be heard separately and before the completion of the scheduled consolidated hearing in this matter is denied and that the request to issue an order approving a possible Zoning By-law Amendment agreed to with the Township of Oro-Medonte is denied.

REVISION OF ORIGINAL ORAL ORDER: BACKGROUND

17Once the Tribunal provided the oral decision to the parties on April 4, 2022 with the underlying reasons, Carmel Pharms’, Organibis, 254 and the Township sought a break to consider Tribunal’s decision and order. The parties also volunteered to work together to review Tribunal’s concerns which caused it to deny the Carmel Pharms motion.

18The three Appellants and the Township worked together as the panel stood down. As a result, a revised form of the draft order was submitted to the Tribunal on consent of all the Appellants and the Township. Oro-Medonte Community Coalition Corp. took no position in the matter.

19The Tribunal received the joint submission of the parties. Having reviewed this material in the form of a revised draft order, the Tribunal on its own motion under Rule 10.11 initiated a review of its order made earlier that day per Rule 10.11 of the OLT’s Rules:

• 10.11 Tribunal May Initiate a Motion The Tribunal may, at any time in a proceeding, initiate a motion to inquire into any matter or question of law in relation to its jurisdiction, and may determine the parties to that motion and issue directions necessary to inquire into the matter.

20The Tribunal determined that its concerns were addressed with the revised draft order submitted by Carmel Pharms with consent of the Township and the two other Appellants parties.

21As a result, the Tribunal rescinded its original oral order made that day and ordered as follows:

22The TRIBUNAL ORDERS THAT:

a. the Motion of Carmel Pharms is granted; and

b. The consolidated hearing is separated as follows:

1. Carmel Pharms’ appeal is separated and the other two Appellants and Oro-Medonte Community Coalition Corp. are granted party status in the settlement hearing between Carmel Pharms and the Township; and

2. Organibis and 2541005 Ontario appeals remain consolidated with Oro-Medonte Community Coalition Corp. as a non-Appellant party. For the conduct of this hearing, the PO is revised and Carmel Pharms issues are deleted from the issues list and Carmel Pharms has no standing in the remaining appeals.

CARMEL PHARMS SETTLEMENT HEARING

23The Tribunal received the uncontroverted and uncontested expert opinion evidence Affidavit of Mr. Witlib who opined and summarized that the site specific settlement between Carmel Pharms and the Township has due regard for provincial interest, is consistent with the Provincial Policy Statement 2020, conforms with the County and Township Official Plans and represents good land use planning in the context of a farming operation that was in operation already.

24Based on the testimony of Mr. Witlib, the Tribunal finds that the Carmel Pharms Zoning By-law amendment has appropriate regard for matters of provincial interest, is consistent with the Provincial Policy Statement 2020, conforms with the County and Township Official Plans and represents good land use planning.

ORDER

25THE TRIBUNAL ORDERS as follows:

1. the appeal by Carmel Pharms Corp. of Township of Oro-Medonte Zoning By-law No. 2020-046 is allowed, in part and is without prejudice to the remaining appeals of Township of Oro-Medonte Zoning By-law No. 2020-046;

2. Township of Oro-Medonte Zoning By-law No. 2020-046 is hereby modified in the form attached to this Order as Attachment 1, only as it relates to the Lands municipally known as 837 Line 7 South in the Township of Oro-Medonte (the “Carmel Pharms Lands”), and the Zoning By-law No. 97-95 of the Township of Oro-Medonte shall be amended in accordance with Attachment 1, only as it relates to the Carmel Pharms Lands, immediately upon the issuance of this Decision and Order; and

3. Notwithstanding the partial approval of By-law No. 2020-046, as modified and as it relates solely to the Carmel Pharms Lands, the Tribunal retains jurisdiction to consider the appeals of the remaining Appellants of By-law No. 2020-046, as it relates to the balance of the lands in the Township and, in this regard, shall exercise its jurisdiction under section 34(26) of the Planning Act and it may (a) dismiss the remaining appeals; (b) further amend By-law No. 2020-046, except as it relates to the Carmel Pharms Lands; or (c) repeal in whole or in part, or direct Township Council to repeal in whole or in part, By-law No. 2020-046, except as it relates to the Carmel Pharms Lands, in which case the Township is authorized to make such formatting and stylistic changes to the form of Attachment 1 as may be necessary to reflect such repeal and also the continued application of By-law No. 2020-046 as amended to the Carmel Pharms Lands;

4. For greater certainty, the scope and effect of this order and the Zoning By-law Amendment attached as Attachment 1 to this Order, is restricted only to the Carmel Pharms Lands, and have no effect on or application to any other lands in the Township of Oro-Medonte;

5. The Tribunal authorizes the Municipal Clerk to format and assign a new by-law number to Attachment 1 for record-keeping purposes, as may be necessary and shall provide the following note in highlight for information purposes:

The Township of Oro-Medonte Zoning By-law No. 2020-046 remains under appeal for the entirety of the Township and is not in force and effect save and except as it relates to the lands municipally known as 837 Line 7 South in the Township of Oro-Medonte.

“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

Carmel Pharms Specific Zoning By-law Amendment

“The Township of Oro-Medonte Zoning By-law No. 2020-046 remains under appeal for the entirety of the Township and is not in force and effect save and except as it relates to the lands municipally known as 837 Line 7 South in the Township of Oro-Medonte.”

The Corporation of the Township of Oro-Medonte By-law No. 2022-### (OLT)

A By-law to Amend Zoning By-law 97-95, as amended (Cannabis Production and Processing Facilities)

Whereas the Council of the Corporation of the Township of Oro-Medonte is empowered to pass by-laws to regulate the use of land pursuant to Section 34 of the Planning Act,

R.S.O. 1990, c. P.13;

And Whereas, following a review of the land use policies in the Township related to Cannabis Production and Processing Facilities, and having provided adequate information to the public and having held at least once public meeting, Council deemed it appropriate to adopt By-law 2020-046, being a By-law to Amend Zoning By-law 97-95, as amended, in accordance with the policies of the Official Plan:

And Whereas Council's adoption of By-law 2020-046 was appealed to the Ontario Land Tribunal (File No. PL200194) pursuant to Section 34(19) of the Planning Act, R.S.O., c. P.13; and the Ontario Land Tribunal held a series of hearing events with respect to the appeals;

Now Therefore pursuant to the Order of the Ontario Land Tribunal, By-law 97-95 is further amended as follows:

That Section 3.0 Table A3 - Industrial Zones Permitted Uses is amended by adding "Cannabis Production and Processing Facility" to the permitted uses in the Rural Industrial (IR) and Economic Development (ED) Zones.

That Section 4.0 Table 83- Standards for Industrial Zones is amended by the addition of the following:

"Special Provisions:

1. A Cannabis Production and Processing Facility" in the Economic Development (ED) Zone or the Rural Industrial (IR) Zone shall also be subject to the following provision:

Minimum setback from a Sensitive Land Use

That Section 6.0 - Definitions is hereby amended by:

Adding the following new definitions:

"Cannabis

Means the definition of Cannabis as set out in the Cannabis Act, S.C. 2018, c. 16. For clarity, "Cannabis" also includes "industrial hemp" as defined in the Industrial Hemp Regulations, SOR/2018-145."

"Cannabis Production and Processing Facility

Means any building, structure or land in or upon which is carried out any activity authorized pursuant to the Cannabis Act, S.C. 2018, c. 16 or the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and any regulations made pursuant to these statutes.

For clarity, a Cannabis Production and Processing Facility does not include: the production of up to four (4) Cannabis plants at any one time in a dwelling house; the production of Cannabis by a person who is authorized by Health Canada to produce Cannabis for their own medical purposes; or the production of Cannabis by a person who has been designated to produce Cannabis for the medical

purposes of a person registered with Health Canada in accordance with the Cannabis Act, the Controlled Drugs and Substances Act or any regulations made pursuant to these statutes."

"Sensitive Land Use

Means an existing residential building, existing place of worship building, or lands containing or zoned to permit a public or private school, a day nursery, a public park, a public trail or a community centre."

Adding 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."

Adding 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."

4. Schedules 'A4' and 'A5' to Zoning By-law 97-95, as amended, are hereby further amended by changing the zone symbol applying to the lands located in Part of Lot 25 South of CNR, Concession 8 (Oro), Township of Oro-Medonte, from the Agricultural/Rural (A/RU) Zone to Agricultural/Rural Exception XXX (Holding) (A/RU*XXX# (H)) Zone, as shown on Schedule "A" attached and forming part of this By-law.

5. Section 7.0 - to Zoning By-law 97-95, as amended, is hereby further amended by adding the following subsection:

6. Section 7.0 - to Zoning By-law 97-95, as amended, is hereby further amended by adding the following subsection:

"7.XXX *XXX - Part of Lot 25 South of CNR, Concession 8 (Oro), Township of Oro-Medonte

1. On the lands denoted by the symbol *XXX on the schedule to this By-law:

a) Notwithstanding Table A4 - Permitted Uses, in addition to the permitted uses of the Agricultural/rural (A/RU) Zone, a Cannabis Production and Processing Facility is permitted;

b) Notwithstanding any other provisions of this By-law, the outdoor growing, outdoor producing or outdoor processing of Cannabis is prohibited.

c) Notwithstanding any other provisions of this By-law, the minimum setback for a Cannabis Production and Processing Facility from a Sensitive Land Use is 100 metres."

6. That all Cannabis Production and Processing Facilities will be subject to site plan control pursuant to Section 41 of the Planning Act.