Normal Farm Practices Protection Board 1 Stone Road West, 2^nd Floor Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca

Commission de protection des pratiques agricoles normales 1 Stone Road West, 2^e étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

The Discovery House Project vs Clearview Township 2022ONNFPPB 01

DATE OF DECISION:

2022-06-16

005Discovery21

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

BETWEEN:

The Discovery House Project – Applicants

and

Clearview Township – Respondents

FILE NO.: 005Discovery21

DATE: 2022/06/13

IN THE MATTER OF the Farming and Food Production Protection Act, 1998.

AND IN THE MATTER OF an application to the Normal Farm Practices Protection Board (the “Board”) under Section 6 of the Farming and Food Production Protection Act, 1998 (the “Act”) for a determination as to whether a municipal by-law restricts a normal farm practice.

AND IN THE MATTER OF a hearing on the issue of the Board’s jurisdiction.

BETWEEN:

The Discovery House Project Applicant – and – Clearview Township Respondent

Represented by Andrew Biggart

Represented by H.G. Elston

HEARD: February 2, 3, 2022; March 28, 2022 and May 2, 2022 by way of video conference

Before:

Glenn Walker, Chair; John Lohuis, Member; Robert Brander, Member.

Appearances:

Andrew Biggart, Counsel for the Applicant

H.G. Elston, Counsel for the Respondent

Patrick Casey, Applicant

Rossalyn Workman, Community Planner

Rob Stovel, Consultant

JURISDICTION HEARING DECISION

Introduction

1The Applicant, The Discovery House Project, made an application to the Board under Section 6(3)(b) of the Act purporting to be a person who wants to engage in a normal farm practice as part of an agricultural operation on land in the respondent municipality and has demonstrable plans for it

2After a Pre-Hearing Conference, the Board determined there that should be a Jurisdiction Hearing to deal with two discreet issues, which were later, by further order¹, framed as follows:

(a) Is the practice which the Applicant wishes to engage in part of an agricultural operation within the meaning of the Farming and Food Production Protection Act, 1998?

(b) Does the Board lack jurisdiction as a result of the decision of the Ontario Court of Appeal in Oakville (Town) v. Read, 2011 ONCA 22?

Factual Background

3The applicant, The Discovery House Project (“Discovery House”), purports to be an unincorporated association consisting of approximately 26 members including numerous indigenous communities, who have the objective of developing small to medium scale farming operation². The standing of Discovery House as an unincorporated association will be dealt with at the subsequent hearing if this matter proceeds. Discovery House is a non-profit entity.

4Bricktown Co-operative Development Corporation (“Bricktown”) is a Co-operative Without Share Capital incorporated under the Co-operative Corporations Act, R.S.O. 1990, c. C.35 on April 5, 2016. It is a “for profit” co-operative.

5Patrick Casey, the Executive Director of Discovery House, testified that Discovery House is a member of the Bricktown co-operative.

6The site of the subject farmland is located at 5929 Concession 5, Clearview Township (“the farm” or “subject lands”). These lands are owned by Bricktown having been purchased from the Casey family.

7Bricktown proposes to construct a large multi-use building (the “project building”) on the farm consisting of 32 residential units on the ground floor and a greenhouse on the second level. Vegetables and cut flowers will be produced in the greenhouse and sold in a retail store to be located on the ground floor as well as to the usual purchasers of these types of products. Labour for the operation will be provided by members of Discovery House who will be housed in the residential units.

8For the purpose of this decision, it is unnecessary to go into great detail concerning all facets of the proposed project building, but it is intended that it will operate in a self-sufficient manner.

9Bricktown obtained a loan from the Royal Bank of Canada to purchase the farm and construct the project building in the approximate amount of $5.1 million. Bricktown also obtained a loan guarantee for $3.0 million from the federal government under the Canadian Agricultural Loans Act (“CALA”). In order to obtain the guarantee, Bricktown needed to show that it would be operating an agricultural operation within the meaning of that statute.

10The loan is also secured by a mortgage on the farm, loan guarantees from tribal councils, who are members of Bricktown and/or Discovery House and a general security agreement covering revenue from the residential units.

11The evidence is that the revenue from the operation will be paid to Bricktown, which will use the revenue to pay expenses including the Royal Bank of Canada mortgage and realty taxes on its lands. Any excess will be kept as retained earnings or divided among the members of the Bricktown co-operative, of which Discovery House is one.

12The evidence concerning how rental on the residential unit is paid by the members of Discovery House who provide the labour for the operation was not so clear. It appears that rent is not actually paid but there is a credit owed to Bricktown by the occupant.

13During the hearing, the Board questioned why Bricktown was not the applicant and, although given the opportunity, Discovery House chose not to amend the application. Discovery House asserts that it is acting as agent for Bricktown.

14The farm owned by Bricktown is approximately 3.89 hectares (9.6 acres). The land is not farmed nor does it contain any existing agricultural operation. There is an existing single detached dwelling on the property, along with detached accessory buildings, all of which are a permitted use.

15These lands are designated “Agricultural” in the County of Simcoe Official Plan and “Agricultural” in the Official Plan of Clearview. The subject lands are zoned “Agricultural (AG)” in the Township of Clearview Zoning By-law 2006-54 and are not located within a “Settlement Area”.

16Permitted Primary Uses in the AG Zone are conservation uses, equestrian facility, farm help accommodation building, forestry and maple syrup production, passive recreation uses, plant nursery, produce farm or a livestock farm, and single detached dwelling.

17Permitted Accessory Uses in the AG Zone are accessory agricultural open storage; accessory agricultural processing plant, which involves processing only produce from the farm operation; accessory bed and breakfast; accessory dwelling unit; accessory farm office; accessory farm produce roadside retail stand; accessory farm produce sales outlet; accessory farm winery or cidery; accessory small scale bio-generation facilities; home occupation; home industry; single accessory apartment; temporary agricultural fair or exhibition; and temporary accessory seasonal outdoor attraction such as a farm tour, a maze, an agricultural related play or activity area.

18Aside from the many agricultural uses permitted on the subject lands, under the current Official Plans and zoning, only one single-detached dwelling unit and one accessory dwelling unit are permitted on the subject lands.

19Discovery Project made two pre-consultation requests to the municipality in connection with the proposed project, one in 2014 and another in 2017.

20The planner for the municipality was of the opinion that because of the 32 unit residential component of the project building the proposal is comparable to a development that would occur on land zoned “Residential High Density (RS6)” zone in the Zoning By-law.

21Consequently, the applicant would be required to seek and obtain amendments to the two Official Plans and the Zoning By-law and obtain Site Plan approval.

22The applicant has never applied for Official Plan Amendments, a Zoning By-law amendment or sought to obtain Site Plan Approval. Instead, the applicant has applied to this Board for relief.

Analysis and Discussion

Agricultural Operation Within the Meaning of the Act

23The first issue to be considered is whether the proposed project will be an agricultural operation within the meaning of the Act. If it is not, then the Board has no jurisdiction as the alleged normal farm practice must be carried on as part of an agricultural operation.

24The Act defines “agricultural operation” as being an agricultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward. This includes the production of greenhouse crops.

25There is no doubt that the greenhouse component of the proposed operation would qualify for the first part of the agricultural operation definition. More problematic is the expectation of gain or reward.

26Bricktown is the owner of the farm, not Discovery House. Bricktown, as a for profit co-operative, will receive the revenue from the sale of produce and pay the expenses for the operation, such as the mortgage and taxes, not Discovery House. Discovery House, as a non-profit entity, could not profit from the operation in any event.

27Discovery House cannot have a derivative expectation of gain or reward through Bricktown. The Board finds that the legislation intends that the expectation of gain or reward be that of the applicant farmer.

28Bricktown, who can establish that the greenhouse component of the proposed operation will be an agricultural operation within the meaning of the Act, would have been the proper applicant, not Discovery House.

29Furthermore, it is Bricktown as owner of the subject lands, who would require relief from the Zoning By-law; not Discovery House.

30The Board therefore finds that the applicant, The Discovery House Project, will not be carrying on an agricultural operation within the meaning of the Act

Does the Court of Appeal Decision in Oakville (Town) v. Read Deprive the Board of Jurisdiction

31In Oakville (Town) v. Read, (“Oakville”)³, the Divisional Court considered the distinction between farming practice and land use stating at paragraph 58:

In my view, conflating the terms “agricultural operation” which is a land use, and “farm practice” which is an activity forming part of the manner in which the use is performed, would result in an unintended expansion of the Board’s jurisdiction, and would authorize the Board to permit a new land use not permitted by a properly enacted zoning by-law. This is, in turn, would undermine the scheme of the Planning Act.

32The Court of Appeal⁴ upheld the decision of the Divisional Court and further stated at paragraph 42 that the Board has no jurisdiction to grant relief from the use provisions of a zoning by-law. And further at paragraph 46:

Therefore, when s. 6(1) is read in conjunction with the preamble and other provisions of the Act, it is readily apparent that the Board only has jurisdiction to consider the applicability of by-laws to normal farm practices that are carried out on agricultural lands. The Act does not permit circumvention of legitimate municipal planning regarding land use designations of various lands.

33Although the applicant in Oakville was attempting to carry out a farm use on lands zoned industrial, the converse is also applicable here where the applicant wishes to carry out a high- density residential use on lands zoned agricultural. In our opinion, the fact that the subject lands are zoned agricultural does not permit the Board to circumvent the land use provisions within the agricultural zone, that is to permit a 32 unit residential building within a zone which limits residential units to one dwelling house and one accessory dwelling house.

34Before applying the law as decided in Oakville, the Board should first consider whether a land use issue is involved and where it is, decline jurisdiction based on the judicial instructions in the Oakville cases.

35The Board finds that the proposed project on the subject lands is a land use issue. The agricultural component of the project cannot be divorced from the residential use which the planner has termed to be high density. The uses cannot be separated as they compliment each other.

36The Board is basically being asked to rezone the subject lands to accommodate the project.

37In addition, the Board has no jurisdiction to grant relief to the applicant with respect to the application of the Official Plans as they are not by-laws

38Consequently, the Board finds that it does not have jurisdiction to grant the relief requested.

Decision and Order

39The Board finds that the applicant, The Discovery House Project, will not be carrying on an agricultural operation within the meaning of the Act and as a result it has no jurisdiction.

40The Board further finds that it has no jurisdiction in these circumstances as a result of its interpretation of the Oakville decisions in the Divisional Court and the Court of Appeal.

41Consequently, this application must be dismissed.

Footnotes

1. 1Board Order dated July 27, 2021
2. 2Application cover letter dated February 25, 2021
3. 32010 ONSC 170
4. 42011 ONCA 22