Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 08, 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: 10982377 Canada Inc. Appellant: 2541005 Ontario Limited Subject: By-law No. 2020-046 Reference Number: OR01/20 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.)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Motion By: 10982377 Canada Inc. Purpose of Motion: Request for partial approval of By-law 2020-046 as it related to 250 Ridge Road West in the Township of Oro-Medonte Subject: By-law No. 2020-046 Municipality: Township of Oro-Medonte

Heard: June 27, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel
10982377 Canada Inc. (“Appellant”)	Bobby Vakili
2541005 Ontario Limited (“Appellant”)	Stephen Nadler, William Friedman
Township of Oro-Medonte (“Township”)	Christopher Williams, Andrea Skinner
Oro-Medonte Community Coalition Corp. (“OMCCC”)	Ian Flett

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting a re-hearing of an appeal by 10982377 Canada Inc. (“109 Inc.”) and 2541005 Ontario Limited (“254 Limited”). Both Appellants appealed the Municipal-wide passing of By-law No. 2020-046 (“Cannabis ZBL”), amending the Township’s comprehensive Zoning By-law No. 97-95 (“Comprehensive ZBL”), to permit and regulate cannabis production and processing facilities as a permitted use within Rural Industrial and Economic Development Zones within the Township.

2Prior to the present CMC, the Tribunal received a Notice of a Motion to settle the appeal (“Settlement Motion”) by 109 Inc. on a site-specific basis. Evidence and submissions in support of the settlement were heard. For the reasons detailed below, and in accordance with the below Order, the Tribunal approves the proposed settlement.

3Regarding the remaining Municipal-wide appeal by 254 Limited, the Tribunal conducted the CMC and, among other directions, set future hearing dates.

Background: original merit hearing and order for re-hearing

4This matter was originally heard by the Tribunal from April 4 to April 29, 2022, with a written Decision rendered January 25, 2023, ordering the Township to repeal the Municipal-wide Cannabis ZBL (Carmel Pharms Corp. v Oro-Medonte (Township), 2023 CanLII 5427 (ON LT)).

5However, pursuant to the Tribunal’s disposition letter dated March 13, 2023, and Order issued April 11, 2023 (Carmel Pharms Corp. v Oro-Medonte (Twp.), 2023 CanLII 77903 (ON LT)), the Chair of the Tribunal directed that the Municipal-wide appeal be re-heard¹. Reasons included in the disposition letter are copied below:

Specifically, I would note that the Decision provided no justification in providing the relief that it did, in ordering the repeal of the entire ZBLA. Given the novel nature of the cannabis industry in Canada, the Decision, at minimum, should have included discussion of the consultation that led to the ZBLA. Further, I would note that this matter consisted of an additional settlement [Carmel Pharms Corp.], which was approved by the same presiding Member. If the underlying concerns about inconsistency with the PPS and conformity with the Grown Plan, the County OP and the Township OP were determinative for this Member, the Decision should have addressed how a settlement of the ZBLA could have been approved in the related matter. This was foundational to the central issues in dispute, and I am convinced that this was not properly before the Tribunal. [emphasis added]

6As indicated in the above quoted passage, the matter originally involved three Appellants: 1) 109 Inc.; 2) 254 Limited; and 3) Carmel Pharms Corp. However, the appeal by Carmel Pharms Corp. settled just prior to the Merit Hearing on a site-specific basis. This left the contested Merit Hearing to deal with the other two Appellants’ appeals on a Municipal-wide basis.

7The Tribunal endorsed the Carmel Pharms Corp. site-specific settlement by way of a separate Decision issued January 26, 2023 (Carmel Pharms Corp. v Oro-Medonte (Township), 2023 CanLII 5429 (ON LT)). That Decision was delivered orally at the time, just before the commencement of the Municipal-wide Merit Hearing, and has the effect of permitting cannabis production/facilities on Carmel Pharms Corp.’s property only, subject to various limitations specific to the context and characteristics of that particular site.

8As it now stands, the Decision concerning the Carmel Pharms Corp.’s settlement remains unaffected because only the Decision which determined the 109 Inc.’s and 254 Limited’s Municipal-wide appeals were subject to the Chair’s review and subsequent order for a re-hearing. Currently, at least until the matters concerning the Municipal-wide appeals of the same Cannabis ZBL are resolved, these circumstances create a peculiar situation, whereby cannabis operations within the Township are technically unregulated, except at the Carmel Pharms Corp.’s property, where it is an explicitly permitted use but subject to specified limitations.

9This history of the case and the timing and outcome of Carmel Pharms Corp.’s settlement is notable concerning the present Settlement Motion because the Tribunal is now trusted to similarly deal with settlement of 109 Inc.’s appeal on a site-specific basis – once again in advance of hearing the related underlying Municipal-wide appeal. Therefore, the Tribunal is in a similar position as it was previously when it determined the Carmel Pharms Corp.’s site-specific appeal in advance of hearing the Municipal-wide appeals. Given these repeated circumstances and chronology, combined with the concerns expressed by the Chair regarding reconciliation between the two prior Decisions of the Tribunal (one of which is now being re-heard), the Tribunal finds that it must take appropriate precautions in handling 109 Inc.’s settlement to avoid a similar outcome; insofar as it may be seemingly irreconcilable with the eventual decision concerning the Municipal-wide appeal if it is not adequately explained.

Can a site-specific settlement be approved prior to determining the merits of an underlying Municipal-wide appeal?

10The 109 Inc. settlement that the Tribunal is now considering is similarly structured to that of the Carmel Pharms Corp. settlement – both of which were originally on a Municipal-wide basis, but were then scoped to be considered on a site-specific basis for settlement purposes. While the Carmel Pharms Corp. settlement Decision remains in effect regardless of the outcome of the present Decision, the Tribunal must nevertheless determine whether it is prudent or even possible to approve the 109 Inc. settlement prior to considering the Municipal-wide appeal by 254 Limited.

11It is evident from the reasons set out in the Chair’s disposition letter that the decision to approve the Carmel Pharms Corp.’s site-specific settlement, where the presiding Tribunal Member found it to be policy supported, appears incongruent with the same Member’s later finding that the Cannabis ZBL is not policy supported on a Municipal-wide basis. At minimum, such a finding requires greater explanation to reconcile what appears to be inconsistent findings. However, more generally, the Tribunal must consider whether rendering a decision concerning a site-specific settlement can or should be issued prior to considering a Municipal-wide appeal of the underlying Cannabis ZBL. As inferred by the Chair in his disposition letter, there must be a way to reconcile multiple Decisions of a single matter without unexplained inconsistencies.

12There is also a question of mechanics concerning successive Orders in the case of a settlement on a site-specific basis preceding a final determination concerning the underlying Cannabis ZBL on a Municipal-wide basis. The Tribunal must be careful to avoid issuing an Order in the first instance that may be mechanically undermined later if the underlying Municipal-wide By-law is not approved. Ideally, from such a standpoint, the Municipal-wide appeal is dealt with first, so that any site-specific matters can be considered in light of an approved, and in-effect, Municipal-wide By-law. Despite this, the Tribunal recognizes that such an approach may conflict with efficiency and timing objectives promoted as part of settlement efforts. Consequently, wherever possible and despite certain challenges, the Tribunal finds that it remains prudent to consider site-specific settlements in advance of contested hearings concerning the same or similar subject matter on a Municipal-wide basis. The Tribunal emphasizes “wherever possible”, acknowledging that it is not necessarily appropriate in each and every case.

13In addition to the mechanical concerns expressed above, the Tribunal must also be careful to not issue a preceding settlement Decision that has the effect of pre-determining or otherwise influencing the outcome of a subsequent related Merit Hearing. For example, in the present case, the Tribunal must not issue a settlement Decision which limits the potential outcomes of the eventual Municipal-wide appeal (i.e. a settlement Decision should not seemingly oblige either approval or rejection of the Municipal-wide By-law to avoid undermining, conflicting with or being inconsistent with the Tribunal’s previous site-specific settlement findings).

14If it is not possible to issue a settlement Decision without pre-determining or influencing the outcome of a subsequent Merit Hearing, then a settlement Decision must wait to be considered in light of the Municipal-wide appeal Decision. On the other hand, if it is possible, then the Tribunal must nevertheless take care to explain in the settlement Decision how it will not pre-determine or influence the outcome of the subsequent Merit Hearing.

15Fortunately, in the present case, Derek Witlib was available to provide evidence to assist the Tribunal with assessing the above noted concerns. He is the Township’s Land Use Planner (duly qualified to provide expert testimony on the subject of land use planning) and was at the present Hearing to provide uncontroverted evidence in support of the 109 Inc. settlement. He also happened to testify at the Carmel Pharms Corp. settlement Hearing to provide evidence in support of that settlement. Therefore, he was capable of providing an opinion concerning the viability of both settlements on a site-specific basis, while also considering the implications of the fact that the Municipal-wide merit re-hearing has not yet taken place.

16Mr. Witlib testified that both Zoning By-law Amendment (“ZBA”) instruments associated with each respective settlement are mechanically constructed in such a way as to potentially stand alone if the underlying Municipal-wide Cannabis ZBL is repealed following a merit hearing. Upon review of the proposed instrument to give effect to the 109 Inc. settlement, the Tribunal accepts Mr. Witlib’s opinion and similarly finds that, mechanically, it is capable of standing alone regardless of the outcome of the Municipal-wide appeal. This satisfies the first requirement that the Tribunal finds necessary to consider prior to determining the proposed settlement.

17Additionally, Mr. Witlib opined that approval of both the present and previous settlements should not consequently influence or otherwise necessarily pre-determine a decision regarding the merits of the remaining Municipal-wide appeal. He explained that the Township envisions the Cannabis ZBL as operating in such a way as to permit cannabis production and processing facilities as-of-right in Rural Industrial and Economic Development Zones (pursuant to specific limitations), while cannabis operations proposed to be located in other areas, such as where agricultural uses are permitted, would have to be subject to a site-specific ZBA to be permitted. Mr. Witlib went on to explain that the rationale for such an approval process would enable the Township to assess each proposal on a case-by-case basis, in light of a respective properties’ individual characteristics (i.e. proximity and impact on surrounding sensitive lands uses), much like they did with the Carmel Pharms Corp. and 109 Inc. settlements (both of Carmel Pharms Corp.’s and 109 Inc.’s properties permit agricultural uses, but neither are zoned Rural Industrial and/or Economic Development Zones; consequently, the Township demanded a site-specific ZBA for both to permit cannabis operations).²

18Further, Mr. Witlib opined that approval of the previous and present settlements will not cause any particular prejudice to 254 Limited’s remaining Municipal-wide appeal. He testified that, assuming that the present settlement is approved, the outcomes of both settlements mean that only cannabis production and/or processing facilities are permitted (subject to site-specific limitations) on both sites, which have been considered according to their respective specific contexts. If the present settlement is approved, Mr. Witlib testified that it will remain conceivable to either allow or dismiss the Municipal-wide appeal, or modify the Cannabis ZBL as the Tribunal sees fit, notwithstanding the fact that limited cannabis operations are permitted at the two settlement sites.

19For example, Mr. Witlib opined that the Tribunal can still potentially repeal the Cannabis ZBL on a Municipal-wide basis despite approving the settlements. This is because a repeal of the Cannabis By-law on a Municipal-wide basis will only have the effect of repealing the limitations and regulations imposed on cannabis production and/or processing on a Municipal-wide basis. The only exceptions would be the two settlement sites, where cannabis operations are still permitted, albeit with limitations that consider each of the site’s respective context (i.e. presence, proximity and type of area sensitive land uses). Alternatively, if the Municipal-wide appeal is dismissed, or if the Tribunal approves a modified version of the Cannabis ZBL, the Cannabis ZBL will then apply Municipal-wide except, again, as it relates to the settlement sites, which will continue to be regulated pursuant to the site-specific settlement instruments. Mr. Witlib opined that, in either case, the settlement sites will be regulated in a specified manner which appropriately reflects the properties’ respective context, while the Tribunal will be unencumbered to determine whether the Municipal-wide appeal should be allowed, dismissed or whether a modified version of the Cannabis ZBL should be imposed.

20Mr. Witlib went on to confirm that his evidence in support of the previous and present Settlement Motions are entirely site-specific and do not necessarily apply Municipal-wide. Therefore, he opined that the context associated with the two settlement sites are readily distinguishable from the rest of the Township, simply by virtue of it being possible to identify the particular sensitive land uses in the immediate area of the settlement sites (i.e. residences). As a result, Mr. Witlib opined that it may be policy supportive to accept the site-specific settlements, while still finding that the underlying Cannabis By-law is not policy supported on a Municipal-wide basis, without coming to inconsistent findings.

21It is this account of evidence and opinion that is absent in the original Tribunal decisions, resulting in a failure to adequately explain what appears on its face to be unreconcilable Decisions.

22To summarize, the following findings are necessary to allow the Tribunal to consider 109 Inc.’s site-specific settlement in advance of the Municipal-wide appeal:

1. Mechanically, the Tribunal is satisfied that the proposed settlement ZBA instrument can stand alone even if the Municipal-wide Cannabis ZBL is repealed;
2. The present site-specific settlement may be approved without a risk of influencing or otherwise pre-determining the Municipal-wide appeal hearing; and
3. The policy considerations concerning the site-specific settlement are sufficiently distinguishable from the yet-to-be-heard Municipal-wide appeal so that the Tribunal may find that the site-specific settlement is policy supported, while also finding that it may or may not be policy supported to approve the Cannabis By-law on a Municipal-wide basis, without coming to inconsistent findings.

SETTLEMENT OF 109 Inc.’s APPEAL

23Mr. Witlib began his evidence in support of 109 Inc.’s proposed settlement by re-capping the purported purpose and effect of the Cannabis ZBL, as initially adopted, being to permit cannabis production and processing facilities only in the Township's Rural Industrial and Economic Development Zones, to impose a general minimum setback of 150 metres from sensitive land uses, add definitions of "Cannabis" and "Cannabis Production and Processing Facility" and "Sensitive Land Use", and to amend the definitions of "Agricultural Use" and "Agricultural Use, Specialized" in the Comprehensive ZBL.

Terms of the Settlement

24Mr. Witlib explained that, on June 5, 2023, the Township and 109 Inc. entered into Minutes of Settlement with a view to resolve 109 Inc.'s appeal, as well as an appeal of the Township's Development Charge By-law 2019-100, which was filed by 109 Inc. on November 29, 2019. The appeal of the Development Charge By-law has been held in abeyance, pending the outcome of 109 Inc.'s appeal of the Cannabis ZBL (OLT Case No. OLT-22-002667 (Formerly DC190047)).

25The settlement Parties agreed to a site-specific amended version of the Cannabis ZBL (“proposed settlement ZBA”) to provide a site-specific exception for the 109 Inc. Lands, which includes the following:

1. Re-zones the 109 Inc. Lands from Agricultural/Rural Exception 201 (A/RU201) Zone to Agricultural/Rural Exception 201 (Holding) (A/RU201 (H)) Zone;
2. Prohibits a single detached dwelling on the 109 Inc. Lands;
3. Permits the outdoor growing of cannabis on the 109 Inc. Lands, subject to a 12-metre setback from all lot lines, without Site Plan Approval;
4. Permits a Cannabis Production and Processing Facility to locate on the 109 Inc. Lands provided that that following setbacks are adhered to: a. Minimum front yard - 94 metres; b. Minimum rear yard - 15 metres; c. Minimum westerly interior side yard - 79 metres; d. Minimum easterly interior side yard - 15 metres;
5. Adds a holding provision which requires the landowner to apply for and obtain Site Plan Approval pursuant to section 41 of the Planning Act, if 109 Inc. decides to move forward with its development plan as previously submitted, including entering into a Development Agreement and providing any securities required by that agreement, addressing matters including but not limited to stormwater management, and the mitigation of odour, light and noise impacts, to the satisfaction of the Township; and,
6. Requires all Cannabis Production and Processing Facilities be subject to Site Plan control pursuant to section 41 of the Planning Act.

26The settlement also includes agreements respecting a concept Site Plan showing the proposed location of the proposed cannabis production and processing facilities, as well as a draft Development Agreement between 109 Inc. and the Township.

Policy Considerations

27As part of his testimony respecting policy considerations in support of the proposed settlement ZBA, Mr. Witlib emphasized that the scope of his opinion pertaining to the settlement is limited to the relative context of 109 Inc.’s property. For clarity, he testified that policy considerations respecting the proposed Cannabis ZBL on a Municipal-wide basis are not necessarily the same, given that not every policy considered respecting the present site-specific analysis will apply on a Municipal-wide basis, and vice versa. He emphasized that what principally distinguishes such analyses is the known context of a specific site area (especially as it relates to the presence, proximity and/or type of potentially conflicting sensitive land uses). He noted that sensitive land uses in the vicinity of a specific site can be known and individually assessed, while a Municipal-wide matter must attempt to address a variety of conceivable potential conflicts, which may or may not apply to any particular site. For this reason, Mr. Witlib was careful to articulate that his evidence and opinions related to the present settlement are site-specific, concerning only the 109 Inc. Lands, and do not necessarily apply Municipal-wide.

28Mr. Witlib opined that the proposed settlement ZBA has regard to matters of provincial interest in accordance with section 2 of the Planning Act. In particular, he opined that the proposed settlement ZBA has regard to:

1. Subsection 2(b) regarding the protection of the agricultural resources of the Province;
2. Subsection 2(h) regarding the orderly development of safe and healthy communities;
3. Subsection 2(k) regarding the adequate provision of employment opportunities;
4. Subsection 2(l) regarding the protection of the financial and economic well-being of the Province and its municipalities;
5. Subsection 2(o) regarding the protection of public health and safety; and,
6. Subsection 2(p) regarding the appropriate location of growth and development.

29As it relates to the Provincial Policy Statement (“PPS”), Mr. Witlib confirmed that the 109 Inc. Lands are designated as Rural Areas and, more specifically, Prime Agricultural Areas, where prime agricultural lands (i.e. specialty crop areas and/or Canada Land Inventory Class 1, 2, and 3 lands) predominate. Further, he highlighted the following sections of the PPS as being particularly relevant and supportive of the proposed settlement ZBA:

1. Section 1.1.4.1(f) which outlines that healthy, integrated and viable rural areas should be supported by: “promoting diversification of the economic base and employment opportunities through goods and services, including value-added products and the sustainable management or use of resources”;
2. Section 1.1.4.1(i) which outlines that healthy, integrated and viable rural areas should be supported by: “providing opportunities for economic activities in prime agricultural areas, in accordance with policy 2.3”;
3. Section 1.3.1 of the PPS which directs planning authorities to promote economic development and competitiveness by: “providing for an appropriate mix and range of employment, institutional, and broader mixed uses to meet long-term needs”, as well as to provide “opportunities for a diversified economic base, including maintaining a range and choice of suitable sites for employment uses which support a wide range of economic activities and ancillary uses, and take into account the needs of existing and future businesses”;
4. Section 2.3.3.1 which provides that: In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses. Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives;
5. Section 2.3.3.2 which provides that, “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”; and,
6. Section 2.3.3.3 which provides that, “New land uses in prime agricultural areas, including the creation of lots and new or expanding livestock facilities, shall comply with the minimum distance separation formulae”.

30Further, Mr. Witlib testified that cannabis, in his opinion, while it may be an agricultural use, is a unique crop insofar as it may have compatibility issues (such as odour, noise and lighting impacts) in relation to rural residential and other potentially sensitive land uses. At the same time, unlike in the case of livestock facilities, which may have similar compatibility implications, there are no set minimum distance separation (“MDS”) formulae available to apply to compatibility concerns involving cannabis production and/or facilities. Consequently, Mr. Witlib opined, the limitations (i.e. setbacks) set out in the proposed settlement ZBA are consistent with the PPS by striking an appropriate balance between PPS policies which are designed to encourage and promote all types and intensities of agricultural uses, and those designed to minimize land use conflicts (i.e. protecting residents from noxious impacts typical of cannabis operations, such as odour, noise and lighting).

31Regarding A Place to Grow: Growth Plan for the Greater Golden Horseshoe ("Growth Plan"), Mr. Witlib confirmed that the 109 Inc. Lands continue to be recognized as Prime Agricultural Areas. He further highlighted the following sections of the Growth Plan as being particularly relevant and supportive of the proposed settlement ZBA:

1. Section 2.1 recognizes that healthy rural communities are important to the economic success, vitality and well-being of the larger Greater Golden Horseshoe (“GGH”).
2. Section 2.2.5 directs that economic development and competitiveness in the GGH be promoted by integrating and aligning land use planning and economic development goals.
3. Section 4.1 recognizes that the GGH contains a vibrant and diverse agricultural land base, which are essential for the long-term quality of life, economic prosperity, environmental health, and ecological integrity of the GGH.

32Upon considering the above noted policies of the Growth Plan, together with recognition of the limitations set out in the proposed settlement ZBA, Mr. Witlib opined that the settlement conforms with the Growth Plan as it relates to the 109 Inc. Lands by, again, striking an appropriate balance between policies designed to promote agricultural uses on agricultural lands and those concerned with minimizing land use conflicts.

33Turning his attention to the County of Simcoe Official Plan ("County OP"), Mr. Witlib confirmed that the 109 Inc. Lands are designated Agricultural within Schedule 5.1 of the County OP. Additionally, he highlighted the following sections of the County OP as being particularly relevant and supportive of the proposed settlement ZBA:

1. Section 1.3 outlines several County OP goals, including, • To protect, conserve, and enhance the County's natural and cultural heritage; • To achieve wise management and use of the County's resources; • To further community economic development, which promotes economic sustainability and provides employment and business opportunities; and, • To promote, protect and enhance public health and safety;
2. Section 3.6.6 of the County OP permits agricultural uses, agriculture-related uses, processing of agricultural products, and on-farm diversified uses within the Agricultural designation; and,
3. Section 5.8 of the County OP continues to define agricultural uses as meaning the growing of crops.

34Upon considering the above noted policies of the County OP, together with recognition of the limitations set out in the proposed settlement ZBA, Mr. Witlib opined that the settlement achieves the goals set out in the County OP and otherwise conforms with the policies of the County OP by, again, striking an appropriate balance between policies designed to promote agricultural uses on agricultural lands and those meant to protect area residents’ quality of life and minimize conflicts.

35As it relates to the Township of Oro-Medonte Official Plan ("Township OP"), Mr. Witlib confirmed that the Township OP designates the 109 Inc. Lands as Agricultural. Mr. Witlib then highlighted the following sections as being particularly relevant and supportive of the proposed settlement ZBA:

1. Pursuant to section C1.1, the objectives of the Agricultural designation are to: a) To maintain and preserve the agricultural resource base of the Township. b) To protect land suitable for agricultural production from development and land uses unrelated to agriculture. c) To promote the agricultural industry and associated activities and enhance their capacity to contribute to the economy of the Township. d) To preserve and promote the agricultural character of the Township and the maintenance of the open countryside.
2. Section C.1.2 confirms agriculture, farm related tourism establishments, agriculturally-related commercial uses, commercial uses on farm properties, and greenhouses uses are permitted uses within the Agricultural designation.

36Upon considering the above noted policies of the Township OP, together with recognition of the limitations set out in the proposed settlement ZBA, Mr. Witlib opined that the settlement conforms to the policies of the Township OP by, again, striking an appropriate balance between policies designed to promote agricultural uses on agricultural lands and those concerned with minimizing land use conflicts.

37In summary and conclusion, Mr. Witlib opined that the proposed settlement ZBA, as it relates to the settlement and 109 Inc. Lands, represents good planning, has regard to the relevant provincial interests under section 2 of the Planning Act, is consistent with the PPS, and conforms to the Growth Plan, the County OP and the Township OP.

38The Tribunal accepts Mr. Witlib’s evidence and opinion pursuant to the policies highlighted above. As stated earlier in this Decision, the Tribunal finds that the merits of the 109 Inc.’s site-specific settlement may be determined in advance of hearing the Municipal-wide appeal. Furthermore, the Tribunal finds that Mr. Witlib’s evidence is sufficiently context-laden from a policy standpoint to allow this settlement decision to be made without impacting or influencing the eventual Municipal-wide appeal. All options remain open to the Member hearing the future Municipal-wide appeal. As opined by Mr. Witlib, the Tribunal finds that the present settlement and related proposed settlement ZBA conform to the PPS and are consistent with the Growth Plan and County/Township OPs by striking an appropriate balance between policies designed to promote agricultural uses on agricultural lands and those meant to protect area residents’ quality of life and minimize land use conflicts.

HEARING PLAN

39Upon determining the 109 Inc. appeal pursuant to the proposed settlement ZBA, the Tribunal shifts focus to the 254 Limited Municipal-wide appeal; however, as explained by Counsel for 254 Limited, the path to that hearing is complicated by a Motion for leave to appeal to the Divisional Court concerning the Tribunal Chair’s review and Order for the present re-hearing of the Decision issued January 25, 2023.

40The Tribunal finds that it makes sense to delay the present proceedings, at least long enough for the Divisional Court to render a decision on the Motion for leave to appeal. At the same time, the Tribunal is sensitive to the Township’s interests in having the present matter re-heard at the earliest opportunity in order to provide some certainty with respect to the fate of the Cannabis ZBL, which, while in limbo, continues to impact any future applications to develop a cannabis operation within the Township.

41The Tribunal notes that 254 Limited has additionally indicated that their agrology expert is not available until October of 2024; therefore, they wish to have the matter heard no earlier than that time.

42While the Tribunal will always make its best efforts to accommodate both Counsels’ and witnesses’ schedules, it finds that a request to delay proceeding for more that a year to accommodate a single witness is unreasonable. This is especially true in the current circumstances given that the appellant’s expert should require relatively little time to prepare as he already prepared to testify at the original Hearing. Furthermore, as a witness who only needs to attend the Hearing for the time required to provide his testimony, surely there is a way for him to be available for one to two days within the next calendar year.

43Therefore, the Tribunal will schedule dates approximately a year away (from the hearing of the CMC), from July 15 to 24, 2024.

44The Tribunal also finds it prudent to schedule another CMC on December 11, 2023, to deal with the potential consequences, if any, arising from 254 Limited’s Motion for leave to appeal to the Divisional Court. If leave is not granted, then that CMC can be used to review and approve a draft Procedural Order (“PO”) concerning the remaining Municipal-wide appeal.

45In addition, the Tribunal has determined that it is also prudent to have the Parties work together to produce an alternative version of the Cannabis ZBL, which permits some form of cannabis operations (to be determined by the Parties) on lands where agricultural uses are generally permitted, including applicable setbacks and recognition of sensitive land uses that are appropriate to be applied on a Municipal-wide basis. The Tribunal notes that the Parties may consider adoption or reference to MDS formulae designed for livestock operations, or a modified version thereof, as set out in The Minimum Distance Separation (MDS) Document: Formulae and Guidelines for Livestock Facility and Anaerobic Digester Odour Setbacks; Publication 853. In the event that the Parties cannot agree on a common version of such an alternative ZBL, then the Parties shall each produce a version to be considered by the Tribunal as an alternative to each of their respective primary positions.

SUBSEQUENT CMC AND HEARING

46The Tribunal set a subsequent CMC Hearing commencing on Monday, December 11, 2023 at 10 a.m. by VH. No further Notice is required.

47The CMC Hearing is scheduled to proceed by video as follows:

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

Audio-only line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only access code: 979-388-733

48The Tribunal set an eight (8)-day Merit Hearing, commencing on Monday, July 15, 2024 at 10 a.m. by VH. No further Notice is required for the Hearing.

49The Hearing is scheduled to proceed by video as follows:

GoTo Meeting: https://global.gotomeeting.com/join/719383509

Access code: 719-383-509

Audio-only line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only access code: 719-383-509

50Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections.

51Parties 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

52Persons 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.

53Individuals 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.

ORDER

54In relation to the 10982377 Canada Inc.’s Settlement Motion, the Tribunal Orders that:

1. The appeal by 10982377 Canada Inc. of Township of Oro-Medonte Zoning By-law No. 2020-046 is allowed, in part, and is without prejudice to the remaining appeal of Township of Oro-Medonte Zoning By-law No. 2020-046 by the appellant, 2541005 Ontario Limited;
2. Township of Oro-Medonte Zoning By-law No. 2020-046, as originally passed, is hereby modified in the form attached to this Decision as Attachment 1, to relate solely to the lands municipally known as 250 Ridge Road West in the Township of Oro-Medonte (“10982377 Canada Inc.’s Lands”); and 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 10982377 Canada Inc.’s Lands, immediately upon the issuance of this Decision;
3. Notwithstanding the above, the Tribunal retains jurisdiction to consider the appeal of the remaining appellant of By-law 2020-046, 2541005 Ontario Limited, 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. For greater certainty, this may include findings which: a. dismiss the remaining appeal; b. amend By-law 2020-046, or direct Township Council to amend, except as it relates to: i. the 10982377 Canada Inc.’s Lands; and ii. Carmel Pharms Corp.’s Lands (which lands were the subject of an oral Decision on April 4, 2022 and written disposition and Order dated January 26, 2023 approving a modified form of By-law 2020-046 (being Township By-law 2023-019) as it relates to the lands municipally known as 837 Line 7 South in the Township of Oro-Medonte); or c. repeal By-law 2020-046 in whole or in part, or direct Township Council to repeal in whole or in part, but which will have no effect on the approval of those site-specific settlement instruments which have been approved in relation to 10982377 Canada Inc.’s and Carmel Pharms Corp.’s Lands.
4. The Township is authorized to make such formatting and stylistic changes to the form of Attachment 1 as may be necessary to reflect a repeal of By-law 2020-046, and also the continued application of the site-specific settlement instruments, which have been approved in relation to 10982377 Canada Inc.’s and Carmel Pharms Corp.’s Lands;
5. For greater certainty, the scope and effect of this Order and the Zoning By-law Amendment attached as Attachment 1 to this Decision is restricted only to the 10982377 Canada Inc.’s Lands and have no effect on, or application to, any other lands in the Township of Oro-Medonte, or on/to the remaining appeal of Township of Oro-Medonte Zoning By-law No. 2020-046 by the appellant, 2541005 Ontario Limited;
6. 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.

55In relation to the remaining 2541005 Ontario Limited Municipal-wide appeal, the Tribunal Orders that:

1. The date and particulars of a subsequent Case Management Conference and Merit Hearing are set out above;
2. In the event that 2541005 Ontario Limited’s Motion for leave to appeal to the Divisional Court is dismissed, the Parties shall deliver a draft Procedural Order to the Tribunal in advance of the next Case Management Conference; and,
3. The Parties shall make best efforts to produce a joint alternative version of the draft Cannabis Zoning By-law for the Tribunal to consider, which permits some form of cannabis operations, including production, on lands where agricultural uses are otherwise permitted within the Township. This shall include, at minimum, proposed setbacks for cannabis operations and identification of relevant sensitive lands uses in the area on a Municipal-wide basis. In the event that the Parties cannot agree on a common version of such a draft Zoning By-law, then the Parties shall each produce a version to be considered by the Tribunal as an alternative to each of their respective positions. The above-described draft Cannabis Zoning By-law(s) shall be delivered to the Tribunal at the same time as the draft Procedural Order is due.

56The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS MEMBER

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.

ATTACHMENT 1

The Corporation of the Township of Oro-Medonte By-law No. 2023-### 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 one 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. OLT-22-002249) 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 as further amended as follows:

1. 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.

2. That Section 4.0 Table B3 – 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 150 metres”

2. That Section 6.0 – Definitions is hereby amended by:

a) 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.”

b) 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.”

c) 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. Schedule ‘A4’ to Zoning By-law 97-95, as amended, is hereby further amended by changing the zone symbol applying to the lands located in Part of West Half of Lot 24 and Part of Lot 25, Concession 7 (Oro) Township of Oro-Medonte, County of Simcoe (PIN 58550-0204 LT), from the Agricultural/Rural Exception 201 (A/RU201) Zone to Agricultural/Rural Exception 201 (Holding) (A/RU201 (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 deleting the text in Section 7.201 and replacing it with the following text:

“7.201 *201 – Part of West Half of Lot 24 and Part of Lot 25, Concession 7 (Oro), Township of Oro-Medonte

1. On the lands denoted by the symbol *201 on the schedule to this By-law: a) Notwithstanding Table A1-Permitted Uses, a single detached dwelling is not permitted; b) Notwithstanding Section 6 – Definitions for Agricultural Use and Agricultural Use, Specialized, the outdoor growing of Cannabis is permitted; c) 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; d) Notwithstanding any other provisions of this By-law to the contrary, the following provisions apply: i. For a Cannabis Production and Processing Facility: - Minimum Front Yard 94 metres - Minimum Rear Yard 15 metres - Minimum Westerly Interior side Yard 79 metres - Minimum Easterly Interior Side Yard 15 metres ii. For the outdoor growing of Cannabis: - Minimum distance from all lot lines 12 metres

2. Conditions for Removal of Holding Provision: The Holding Provision shall apply only for the purposes of regulating a Cannabis Production and Processing Facility and associated structures and features; and, upon application by the landowner, may be removed by way of an amending Zoning By-law, from all or part of the lands subject to this provision when the following condition has been satisfied: a) That the landowner apply for and obtain Site Plan Approval pursuant to Section 41 of the Planning Act, including entering into a Development Agreement and providing any securities required by said Agreement, addressing matters including but not limited to stormwater management, and the mitigation of odour, light and noise impacts, to the satisfaction of the Township of Oro-Medonte.”

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

Schedule “A” To By-Law No. 2023-### The Corporation of the Township of Oro-Medonte

Footnotes

1. 1Note: 254 Limited has sought leave to the Divisional Court to appeal the Chair’s Decision to order the re-hearing. As of the date of this Decision, the Divisional Court has not issued its Decision.
2. 2To be clear, the Tribunal currently makes no finding nor determination regarding the merits of the Township’s approach to permitting and/or regulating cannabis production and/or processing facilities within the Township on a Municipal-wide basis. Mr. Witlib’s explanation is summarized here for background and contextual purposes only.