Normal Farm Practices Protection Board
Commission de protection des pratiques agricoles normales
1 Stone Road West, 2nd Floor NW Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca
1 Stone Road West, 2e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
Normal Farm Practices Protection Board
IN THE MATTER OF: The Farming and Food Production Protection Act, 1998
AND IN THE MATTER OF: Application to the Board, under Section 6 of the Farming and Food Production Protection Act, 1998 for a determination as to whether certain municipal by-laws are restricting a normal farm practice.
Board File No.: 001Burnstown 19: Burnstown Farms Cannabis Company v Township of Beckwith
Between:
Burnstown Farms Cannabis Company Ltd. Applicant
And
The Corporation of the Township of Beckwith Respondent
And
Wayne Casselman and Eileen Casselman Third Parties
Appearances:
Before
Glenn Walker, Vice-Chair Marinus Byl, Member Donald Woolcott, Member
REASONS FOR DECISION ON JURISDICTION ISSUE
A. INTRODUCTION
This hearing before a full panel of the Board was convened pursuant to a Pre-Hearing Conference Order dated April 17, 2019 to address three preliminary issues, namely:
i. Is the proposal of the Applicant an “agricultural operation” under the Act?
ii. What proposed farm practice or practices are allegedly restricted by the application of one or more of the by-laws at issue?
iii. What is the extent to which the Board may grant remedies in relation to a federally-licenced activity?
Due to a misreading of the Pre-Hearing Conference Order, some of the parties were not prepared to deal with issues (i) and (ii). The Board agreed to deal only with Issue (iii) and to leave issues (i) and (ii) to be argued and decided at a full hearing if this matter proceeds. The Respondent took no position on the jurisdiction issue. The Third Parties provided written submissions on the issue but did not take a position on this issue during oral argument. William and Linda Johnston provided written submissions pursuant to Rule 56 of the Board’s Rules of Practice and Procedure. Those submissions deal mainly with the issues which would be decided at a full hearing and the Board will consider them together with other possible Rule 56 submissions at the end of the full hearing if this matter proceeds.
B. FACTUAL BACKGROUND
The Applicant has applied to the Government of Canada for a licence under the federal Cannabis Regulations to produce cannabis on a farm located at 733 Ferguson Road, Ashton, Ontario in the Township of Beckwith. The Township has passed by-laws which allegedly restrict farm practices to be used in connection with this proposed operation. There is no issue concerning the authority of the federal government to pass the Cannabis Act, S.C. 2018, Chapter 16 and the regulations thereunder, nor is there an issue concerning the authority of the provincial government to pass the Municipal Act 2001, S.O. 2001, Chapter 25, as amended and the Planning Act, R.S.O. 1990, Chapter P.13, as amended, or the authority of the municipal Respondent to pass the by-laws in question thereunder. Further, there is no issue concerning the authority of the provincial government to pass the Farming and Food Production Protection Act, 1998.
C. DISCUSSION AND ANALYSIS
Issue to be Determined
The issue to be determined by the Board in this hearing is whether the Board’s home statute, the Farming and Food Production Protection Act, 1998 (FFPPA), is repugnant to the Cannabis Act (CA) and its regulations.
Section 95 of the Constitution Act 1867 to 1982 provides as follows:
“In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.”
Assuming that those sections of the CA concerning cultivation are in relation to agriculture and that the FFPPA is in relation to agriculture, we must decide whether the FFPPA is repugnant to the CA. This is not a case where the validity of the statutes is being questioned. If that were the issue, then the matter would have to be taken to the Superior Court. Section 95 of the Constitution Act provides for concurrent jurisdiction as regards laws in relation to agriculture.
This, in the Board’s opinion, is an issue of operability of a provincial law invoking the doctrine of federal paramountcy. There are two branches of the paramountcy test as described by the Supreme Court of Canada in Alberta (Attorney General) v. Moloney, [2015] 3 SCR 327, 2015 SCC 51:
“A conflict is said to arise in one of two situations, which form the two branches of the paramountcy test: (1) there is an operational conflict because it is impossible to comply with both laws, or (2) although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment. What is considered to be the first branch of the test was described as follows in Multiple Access, the seminal decision of the Court on this issue:
In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other. [Emphasis added; p. 191.]”…“If there is no conflict under the first branch of the test, one may still be found under the second branch. In Bank of Montreal v. Hall, 1990 CanLII 157 (SCC), [1990] 1 S.C.R. 121, the Court formulated what is now considered to be the second branch of the test. It framed the question as being “whether operation of the provincial Act is compatible with the federal legislative purpose” (p. 155). In other words, the effect of the provincial law may frustrate the purpose of the federal law, even though it does “not entail a direct violation of the federal law’s provisions”: Western Bank, at para. 73.”
If the Board finds that a proposed farm practice of the Applicant is a normal farm practice and if that normal farm practice is restricted by parts of one or more of the by-laws in question those parts of one or more of the said by-laws will not apply to the Applicant. (FFPPA section 6(1)). It is impossible to determine whether the FFPPA is in conflict with or repugnant to the CA and its regulations until such time as the Board makes a finding as to what the farm practices are. The Board’s remedy is to make a finding that they are or are not normal farm practices, with a finding of normal farm practice leading to the non-applicability of the by-law(s). It is at that point that the Board must consider the doctrine of paramountcy, as the remedy may conflict with or be repugnant to the CA and/or its regulations.
If, for example, a by-law provided that a certain farm practice be conducted only during the night hours and there was valid federal legislation which also stipulated that, the Board would have to consider the doctrine of paramountcy and could not find that conducting that farm practice only during daylight hours was a normal farm practice. To do so would be in direct conflict with the federal legislation.
D. FINDINGS
The Board therefore finds that until such time as a full hearing is held and the farm practices for the proposed operation are determined, the doctrine of paramountcy test cannot be applied.
E. ORDERS
The Board Secretary shall forthwith convene a third Pre-Hearing Conference with the panel and parties by way of telephone conference for the purpose of setting hearing dates and considering orders for disclosure and limiting participation under Rule 55.
So Orders the Board.
DATED this 21st day of June, 2019.