Love, Logic, Compassion Farms Inc. v. Caledon, 2023 ONNFPPB 2

Normal Farm Practices Protection Board

Commission de protection des pratiques agricoles normales

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca

1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

v Caledon

FILE NO.: 003LLC22

2023 ONNFPPB02

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 for a determination as to whether a municipal by-law is restricting a normal farm practice.

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

BETWEEN:

Love, Logic, Compassion Farms Inc., Emilia Sciarra and Angelo Sciarra

Applicants

– and –

The Corporation of Town of Caledon

Respondent

Self Represented

Represented by Colleen Butler

HEARD: March 28, 2023, via Video Conference

Before:

Glenn C. Walker, Chair; Rod de Wolde, Member; John Lohuis, Member

Appearances:

Love, Logic, Compassion Farms Inc., Applicant, by its majority shareholder, Anthony Sciarra

Emilia Sciarra, Applicant

Angelo Sciarra, Applicant

Mark Sraga, Director, Chief Building Officer, Building Services, Municipal Law Enforcement, Caledon

Colleen Butler, counsel for the Respondent

JURISDICTION HEARING DECISION

BACKGROUND

1On June 7, 2022, Love, Logic, Compassion Farms Inc. (hereinafter referred to as “LLC”), Kelly Roldo, Richard Rameharitar, Emilia Sciarra and Angelo Sciarra made an application to the Board pursuant to Section 6 of the Farming and Food Production Protection Act, 1998 (the “Act”) seeking relief with respect to By-law 2021-36, being a by-law to amend the Comprehensive Zoning By-law of the Corporation of the Town of Caledon (“Caledon”).

2A Pre-Hearing Conference was held before Member Fuller on August 18, 2022 at which time it was determined that Emilia and Angelo Sciarra were the owners of 2049 Highpoint Sideroad, Caledon, Ontario (the “subject property”) and that at the time of the application the portion of the subject property relevant to these proceedings was leased to LLC.

3All applicants were present at the Pre-Hearing Conference and were not represented by counsel at that time.

4LLC operates a business on the leased portion of the subject property and is a licensed producer of cannabis.

5Kelly Roldo and Richard Rameharitar were at that time officers and shareholders of LLC but had no personal interest in the business or lease. On consent, they were removed as parties to these proceedings.

6Because the by-law in question is a zoning by-law and considering the possible impact of the Ontario Court of Appeal decision in Oakville (Town) v. Read,¹ the Board found that it was necessary to hold a Jurisdiction Hearing to determine whether the Board had jurisdiction.

7The Board then scheduled a Jurisdiction Hearing for November 14 and 15, 2022. This hearing was cancelled on November 10, 2022 at the request of the applicant LLC, who had recently retained counsel, to allow its counsel to prepare for the Jurisdiction Hearing and work with counsel for Caledon to prepare an Agreed Statement of Facts (“ASF”).

8The Jurisdiction Hearing was subsequently re-scheduled for March 28, 2023. In the meantime, on approximately January 13, 2023, Anthony Sciarra, the son of the landowners, Emilia and Angelo Sciarra, acquired the shares of Kelly Roldo and Richard Rameharitar in LLC becoming the owner of 90 per cent of the common shares with his parents, Emilia and Angelo Sciarra retaining a 10 per cent interest.

9On January 31, 2023, counsel for the applicant LLC withdrew.

10As a result of the change in ownership of LLC, LLC brought a motion for a further adjournment of the Jurisdiction Hearing for 3 to 6 months. That motion was dismissed by the Board on March 14, 2023.

11The Jurisdiction Hearing proceeded on March 28, 2023, at which time the applicants remained unrepresented.

12The two issues to be determined at the Jurisdiction Hearing were set out in paragraph 18 of the Amended Pre-Hearing Conference Order dated September 16, 2022. They are:

a. Do the applicants operate an Agricultural Operation as defined by Subsection 1(1) of the Act?

b. Does the Ontario Court of Appeal decision in Oakville (Town) v. Read², deprive the Board of jurisdiction because the relief being sought is properly an issue of legitimate municipal planning?

PRELIMINARY ISSUE

13After the Pre-Hearing Conference, counsel for Caledon and Kelly Roldo, who was then the Chief Executive Officer of LLC, prepared and agreed upon an ASF intended to shorten the evidentiary portion of the Jurisdiction Hearing. This statement was subsequently approved by counsel for LLC. The ASF was not signed by any of the parties.

14At the hearing, Anthony Sciarra on behalf of LLC objected to the ASF being admitted as evidence on the grounds that he did not approve the ASF and that some of the statements in the ASF were no longer true.

15After due consideration, the Board decided to review with Anthony Sciarra each paragraph of the ASF. He agreed with all paragraphs in the ASF with the exception of paragraph 2. All other paragraphs in the ASF were accepted by the Board as evidentiary proof of the facts stated therein.

THE FACTS

16The following statements in the ASF are found by the Board to be relevant facts for the purpose of this Jurisdiction Hearing.

17The property legally described as Part W. ½ Lot 25, Concession 2 WHS Caledon Pt 6 43R23006; Caledon, municipally known as 2049 Highpoint Sideroad, is owned by the Applicants, Angelo and Emilia Sciarra (the “Sciarras”). The Property is approximately 10.12 ha (25 acres) in size. It has an existing dwelling and accessory building on the Property.

18LLC conducts an outdoor cannabis grow area on the 1 acre parcel of land on the Property. The grow area is fenced in. LLC Farms uses the accessory building as a drying room, packaging room, office and storage for the cannabis. Anthony Sciarra states that the grow area is approximately 1.4 acres.

19LLC is licensed by Health Canada to cultivate cannabis. The licence was issued January 29, 2021 and is effective until January 29, 2024.

20On April 27, 2021, the Town of Caledon Council passed By-law 2021-36, which amended the Town’s Comprehensive Zoning By-law 2006-50, to establish standards and provisions for cannabis-related uses and hemp-related uses in agricultural and rural areas. By-law 2021-36 was not appealed.

21The Property is zoned A2 –Rural in accordance with the Town of Caledon’s Zoning By-law 2006-50. Section 10.2 of the Zoning by-law permits cannabis-related use-outdoor, subject to footnote (8) which states that Cannabis-Related Use-Outdoor and Industrial Hemp-Related Uses must comply with Section 4.7 Cannabis or Industrial Hemp Uses. An accessory building that is required to support these uses for the packaging, labelling, storage, sampling and testing for pesticides is permitted provided it complies with Section 4.7.11.

22Section 4.7.6 of the Zoning by-law requires that a cannabis use shall require Site Plan approval, pursuant to Section 41 of the Planning Act, R.S.O. 1990, as amended, and in accordance with the Town of Caledon Site Plan Control By-law, as amended. The property owner(s) shall be required to enter into a development agreement with the Town prior to the use of any land or any development of the land.

23Section 4.7.11(a) of the Zoning By-law states that an outdoor cannabis-related use and an accessory building required to support the outdoor cannabis use shall be set back a minimum of 300 metres from a lot line of a lot containing a residential use or zone.

24In July 2021, the Town of Caledon received a complaint about a cannabis operation at the property. The Town investigated the complaint on July 22, 2021. The Town sent a letter to the Sciarras and LLC dated August 10, 2021 notifying them that a Site Plan Approval was required before operations could begin and that the outdoor growing area with the cannabis plants did not meet the required minimum 300 metre setback from the lot line to other lots containing residential uses.

25The neighbouring properties to the east, west, north and south of the cannabis grow area are lots containing residential uses.

26Each of the neighbouring properties is within 300 metres of the outdoor cannabis grow area and the accessory building.

27The Town surveyed the accessory building and the outdoor cannabis grow area to measure the setback in relation to the property to the east.

28The setbacks of the outdoor grow area to the east property line are as follows:

a. Northeast corner of the outdoor grow area is 15.95m

b. Southeast corner of the outdoor grow area is 16.02m.

29The setbacks of the accessory building to the east property line are as follows:

a. Northwest corner of the accessory building is 27.20m

b. Northeast corner of the accessory building is 13.42m.

30On March 30, 2022, the Applicants were charged for failing to comply with the Town’s Zoning by-law under the Provincial Offences Act. The prosecution is ongoing.

RELEVANT EVIDENCE OF ANTHONY SCIARRA

31The witness testified that he had acquired the common shares of Kelly Roldo and Richard Rameharitar and was now the majority shareholder of LLC with his parents remaining as minority shareholders.

32Since he acquired his shares, the lease between Emilia and Angelo Sciarra and LLC was no longer necessary since this is now a business fully owned by the family.

33The accessory building was built in approximately 2009 but was retrofitted to comply with Health Canada regulations in order to obtain the cannabis licence.

34LLC grows its cannabis outdoors in the grow area described above.

35It is his understanding that the cultivation of cannabis is accepted by OMAFRA as being an agricultural crop.

36LLC sells its product wholesale, usually to a single purchaser.

RELEVANT EVIDENCE OF THE RESPONDENT

37Mark Sraga, the Director, Chief Building Officer, Building Services and Municipal Law Enforcement was called as a witness by Caledon for the purpose of introducing certain relevant documents on behalf of the respondent. These documents were then made exhibits.

ANALYSIS

AGRICULTURAL OPERATION

38Caledon conceded that the cannabis operation carried on by LLC meets the definition of “agricultural operation” as defined in the Act.

39The Board finds that this operation is an agricultural operation as defined by the Act because it consists of the production and processing of an agricultural crop with the expectation of gain or reward.

IMPACT OF OAKVILLE (TOWN) V. READ

CASES RELATING TO THE ISSUE OF THE BOARD’S JURISDICTION

40In Hill and Hill Farms Ltd. v. The Municipality of Bluewater (“Bluewater”)³, the Court of Appeal reversed a decision of the Divisional Court, on an appeal from a Board decision. The Divisional Court had found that a “municipal by-law” as used in section 6 of the Act did not include a zoning by-law but was intended to refer to municipal by-laws which deal with matters prohibiting or regulating nuisances of the type referred to in the preamble of the Act.

41The Court of Appeal disagreed and held that the Board had an implied authority, when considering whether a farm practice was a normal farm practice, to deal with a municipal zoning by-law.

42In Oakville (Town) v. Read ⁴ (“Oakville”), the Board again had to consider whether a farm practice was a normal farm practice which was restricted by a zoning by-law. On appeal from a Board decision granting the Applicant’s Section 6 application, the Divisional Court allowed the appeal and dismissed the application on the grounds that “farming” was not a “farm practice”. In this case, the lands were zoned for commercial uses and not for agriculture.

43The Divisional Court also had this to say concerning the jurisdiction of the Board:

“It is significant to note the zoning by-law that was under consideration in Bluewater was entirely different than the one under consideration here. Bluewater concerned By-law 22-1985 of the Township of Stanley. By-law 22-1985 set out minimum distance separation requirements for new or expanding livestock facilities from existing (or approved) development. That by-law, quite obviously, was capable of restricting a normal farm practice carried on as part of an agricultural operation. Nothing in that judgment suggests that the Board can stay a zoning by-law governing the permitted uses of land in order to introduce a new agricultural use.”⁵

44On further appeal to the Court of Appeal the appeal was dismissed, the Court stating in conclusion that the Act has no application in these circumstances.

45In its analysis, the Court of Appeal made certain statements which the Board has treated as obiter dicta, meaning not affecting the outcome of the case. Those statements are found at paragraphs 42, 44 and 45 and are reproduced below:

“[42] … The Board may have power to order that some restrictive provision of a zoning by-law does not apply so as to restrict a normal farm practice which is carried on as part of an agricultural operation, but it has no jurisdiction to grant relief from the use provisions of a zoning by-law.

44The modern approach to statutory interpretation requires the courts to consider the applicable legislation in its entirety and to read the impugned provision harmoniously with the scheme of the statute in question. In addition to the preamble making reference to “agricultural lands”, s. 10 of the Act makes reference to certain regulations that the Act allows the Minister to make. Section 10(a)(iii) says that the Minister may make regulations, “prescribing, for the purpose of the definition of ‘agricultural operation’, other agricultural activity, conducted on, in or over agricultural land” (emphasis added).

45The fact that the normal farming practice must be a practice that is carried out on land for which farming is permitted is further confirmed by s. 6(16) of the Act, which sets out the three types of decisions that the Board can issue. Section 6(16)(c) says that the Board can determine that a farm practice will be a normal farm practice “if the farmer makes specific modifications in the practice within the time set out in the decision.” If the subject lands in question are not zoned for agricultural purposes, there is nothing a farmer can do to bring his farm practice in compliance with the definition of “normal farm practice” in the Act. This is because s. 6(1) deals only with restricted practices, not with land uses.” (underlined emphasis by the Board)⁶

46In David Buurma et al. v. Municipality of Brooke-Alvinston⁷, the alleged normal farm practice was being conducted on lands zoned for agriculture. The Board found that it had jurisdiction and would only be denied jurisdiction where the Board was requested to permit a normal farm practice on lands not zoned for agriculture.

47In a Jurisdiction Hearing in the matter of The Discovery House Project v. Clearview Township⁸, the Board determined that it did not have jurisdiction. The applicant proposed to construct a 32-unit residential building within an agricultural zone which limits residential units to one dwelling house and one accessory dwelling house, in essence changing the use provisions of the zoning by-law.

48The Board further considered this issue in Boucher v. Central Huron⁹ and again found that it did not have jurisdiction. In this case, the applicant was not able to use the subject property for agriculture for 2 major reasons; firstly the zoning by-law prohibited the lands being used for an agricultural purpose as they did not front on an open road allowance and secondly, the lands could not be used as they were not of sufficient size. The prohibitions were found to be legitimate land use planning issues depriving the Board of jurisdiction.

LEGITIMATE LAND USE PLANNING ISSUES

49Not all provisions of a zoning by-law are land use planning issues. It is clear from the Bluewater decision in the Divisional Court that the court was of the opinion that minimum distance separation requirements were “quite obviously” capable of restricting a normal farm practice. Minimum distance separation is nothing more than a setback requirement, but one that applies only to livestock operations and is mandated by a Provincial Policy Statement. On appeal to the Court of Appeal¹⁰ the Board’s decision was reversed on the basis that the Board’s decisions must be consistent with policy statements pursuant to subsection 9(1) of the Act.

50To find that all provisions of a zoning by-law, including setbacks and site plan approvals are land use planning issues would be inconsistent with Bluewater and Oakville, where the Court of Appeal acknowledged that the “Board may have power to order that some restrictive provisions of a zoning by-law do not apply so as to restrict a normal farm practice which is carried on as part of an agricultural operation”.

51The subject lands here are zoned A2-Rural and a cannabis operation is a permitted use. The Board finds that the required setbacks and site plan control approval provisions that the applicants seek relief from are not, in the context of this application, legitimate land use planning issues. The land use is legal but may be subject to some regulatory requirements which the Board can consider may be restricting a normal farm practice.

52The proposed uses in Discovery House and Boucher were not permitted uses and these decisions are distinguished from the present application on that basis.

LEAMINGTON V. DEGOEY

53In argument, Caledon raised, in support of its position, the Ontario Superior Court decision in Leamington v. DeGoey¹¹. It also argued that it was fatal to this application as the applicants had made no attempt to try and comply with the by-law by making application for site plan approval before commencing its operation.

54Mr. Degoey’s four-and-a-half-acre parcel of land was zoned agricultural hobby farm, which allowed greenhouses subject to certain conditions. In 2019 he leased the greenhouses on this land to several individuals to allow them to grow cannabis. Each of these individuals had a licence to grow cannabis for their personal medical use issued by Health Canada. Subsequently, Mr. DeGoey obtained a licence to grow medical cannabis for his own use.

55Leamington commenced an application in the Ontario Superior Court of Justice seeking an injunction restraining DeGoey from using the premises for the growing or processing of cannabis alleging that he was in breach of Leamington By-law 35-18.

56By-law 35-18 is not a zoning by-law but a by-law to regulate certain matters relating to cannabis passed under the authority of Section 128(1) of the Municipal Act, 2001.

57DeGoey subsequently commenced an application before this Board requesting relief from By-law 35-18. He then brought a motion before the Superior Court seeking a stay of Leamington’s application against him until the Board had heard his application to it.

58In its decision the Court concluded that such provisions as site plan approval are outside the jurisdiction of the Board because they cannot be characterized as a “disturbance” within section 1(1) of the Act. Section 6 applications do not deal with disturbances, which is a term which applies to Section 5 applications. The effect on abutting land owners is, however, a consideration that the Board must address pursuant to section 6(15) of the Act in determining whether a practice is a normal farm practice. It is not a factor that affects the Board’s jurisdiction.

59At paragraph 65, the Court further states that: “The appropriate remedy for Mr. DeGoey was to either attempt to conform with the applicable by-laws and regulations or make application under the FFPPA¹² prior to commencement of production. Section 6(3)(b) of the FFPPA anticipates an application being entered into prior to commencement of a new activity contrary to an existing by-law. Instead, he elected to begin cannabis cultivation in direct contravention of a number of municipal by-laws and left it to Leamington to catch him and stop him.” (Board emphasis)

60Section 6(3)(a) also anticipates an application by a farmer who is directly affected by a municipal by-law and not just a person who wants to engage in a normal farm practice. The definition of “farmer” in the Act means an owner or operator of an agricultural operation, which, when contrasted with section 6(3)(b) must mean someone who is already conducting an agricultural operation.

61The motion to stay was dismissed and the Court stated that the application before it ought to proceed either prior to, or in tandem with a hearing before the Board.

62This motion decision was not appealed.

63The case of Leamington v. DeGoey can easily be distinguished from the case before the Board and is not fatal to the application as argued by Caledon.

64Although the Court drew several conclusions about the Board’s jurisdiction, it did not find that the Board had no jurisdiction to proceed hearing Mr. DeGoey’s application.

CONCLUSION AND ORDERS

65The Board finds that the operation conducted by LLC at 2049 Highpoint Sideroad, Caledon, Ontario is an “agricultural operation” as defined by the Act.

66The Board further finds that it has jurisdiction to hear this application and that Oakville does not impact its jurisdiction for the reasons given above.

67In the Amended Pre-Hearing Conference Order dated September 16, 2022, the Board determined that should this application proceed, 5 days should be set aside for hearing the remaining issues. The Board Secretary will canvass the parties and counsel for available dates for the hearing.

68The timeline for disclosure for the full hearing is set out in paragraph 25(vii) of the Amended Pre-Hearing Conference Order and is confirmed.

Footnotes

1. 1Oakville (Town) v. Read, 2011 ONCA 22
2. 2ibid
3. 3Hill and Hill Farms Ltd. v. The Municipality of Bluewater, 2006 CanLII 31802 (Ontario Court of Appeal)
4. 4Oakville (Town) v. Read, 2010 ONSC 170 (Divisional Court)
5. 5Ibid, paragraph 57
6. 6Oakville (ONCA), supra
7. 7David Buurma and 1838107 Ontario Ltd. v. The Municipality of Brooke-Alvinston, 2021 ONNFPPB 9
8. 8The Discovery House Project v. Clearview Township, 2022 ONNFPPB 1
9. 9Boucher v. Central Huron, 2022 ONNFPPB 8
10. 10Hill and Hill Farms Ltd supra
11. 11Leamington v. DeGoey, 2021 ONSC 694
12. 12Farming and Food Production Protection Act, 1998