Local Planning Appeal Tribunal Tribunal d’appel de l’aménagement local

ISSUE DATE: March 26, 2020 CASE NO(S).: PL190456

The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal. PROCEEDING COMMENCED UNDER subsection 38(4.1) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: 2470689 Ontario Inc. Appellant: Tweed Farms Inc. Subject: Interim Control By-law No. 5089-18 Municipality: Town of Niagara-on-the-Lake LPAT Case No.: PL190456 LPAT File No.: PL190456 LPAT Case Name: Tweed Farms Inc. & 2470689 Ontario Inc. v. Niagara-on-the-Lake (Town) Heard: February 11, 2020 in Virgil, Ontario

APPEARANCES: Parties Counsel 2470689 Ontario Inc. R.D. Cheeseman Tweed Farms Inc. R. Aburto C. Campos Town of Niagara-on-the-Lake C. Shedden R. Di Lallo

Background

[1] The Corporation of the Town of Niagara-on-the-Lake (the “Town”) passed Interim Control By-law No. 5089-18 (the “Original ICBL”) on August 27, 2018 restricting the use of all lands in the Municipality for any cannabis related land use for a period of one (1) year until August 27, 2019, pending the completion of the review or study undertaken in respect of land use planning policies in the Municipality.

[2] On July 15, 2019, the Town passed Interim Control By-law No. 5169-19 (the “Extension ICBL”) which was intended to extend the period of prohibition of cannabis related land use until July 15, 2020 and the appeals arose out of the passage of these Interim Control By-laws (“ICBLs”).

[3] Despite the Parties’ attempt to resolve issues, the Parties could neither agree on the issues for the hearing nor on the subject matter for the Tribunal to adjudicate with respect to the appeals.

[4] Subsequently, both the Town and 2470689 Ontario Inc. and Tweed Farms Inc. (the “Appellants”) filed Notices of Motion to the Tribunal to express their respective positions in the matters raised in the appeals.

Notice of Motion

Town’s Notice of Motion

[5] The Town’s motion dated January 30, 2020 main relief is an order from the Tribunal directing that the only issue before the Tribunal in this proceeding is whether the decision to extend the period of time that By-law No. 5089-18 will be in effect was permissible in the circumstances pursuant to s. 38(2) of the Planning Act, R.S.O. 1990, c.P.13, as amended (the “Act”) [The Notice of Motion and grounds are in the Town’s Motion Record marked as Exhibit 1, Tab 1].

Appellants’ Notice of Motion

[6] The Appellants’ motion dated January 31, 2020 seeks the approval of the Tribunal for a procedural order (“PO”) establishing a list of five issues [The Notice of Motion and grounds are in the Appellants’ Motion Record marked as Exhibit 3, Tab 1].

[7] These motions are answered in turn starting with the Town’s motion. The issue as determined by the Tribunal that is raised in this motion is:

(a) Does the Tribunal have jurisdiction pursuant to an appeal under s. 38(4.1) of the Act to consider and adjudicate on the underlying reasons and issues for the enactment of the Original ICBL when it hears the appeal of the Extension ICBL?

Town’s Motion and Grounds

[8] The Appellants took a preliminary objection that the Town’s Affidavit in support made legal arguments at several paragraphs and those paragraphs should be struck or given no weight. The Tribunal will give no weight to those paragraphs and instead has relied on the legal submissions of counsel for the Town at the hearing.

[9] Counsel for the Town advanced the specific grounds in support of the motion. The thrust of the arguments relate to what the Town said is before the Tribunal for adjudication, that (a) only the Extension ICBL is under appeal and not the Original ICBL; (b) the sole issue is whether the decision of the Council to pass the Extension ICBL is permissible or not; and (c) the jurisdiction of the Tribunal under the Act derives from the extension of a by-law under s. 38(2) of the Act, i.e. an appeal referred to the Tribunal pursuant to the specific provisions of s. 38(4.1) of the Act.

[10] Before the amendments to s. 38 (as it read until April 2, 2018), there was no differentiation of appeal rights of a by-law passed pursuant to s. 38(1) or s. 38(2). A notice of the passing of the by-law was required under s. 38(3) and any person or public body could appeal to the Board (now Tribunal) pursuant to s. 38(4) within the time stipulated by setting out the objection to the by-law and the reasons in support of the objection.

[11] However, after the amendments to s. 38 of the Act, the appeal rights were changed. The current version of the Act gives the Minister the appeal rights with respect to a by-law [passed under s. 38(1)] to appeal to the Tribunal pursuant to s. 38(4) of the Act within the time stipulated by setting out the objection and the reasons in support of the objection. At the same time the current version gives the person notified [under s. 38(3)] of the passing of a by-law under s. 38(2), the appeal rights to appeal to the Tribunal pursuant to s. 38(4.1) of the Act within the stipulated time by setting out the objection and the reasons in support of the objection. In other words, only the Minister has the right to appeal a by-law passed by a municipality under s 38(1) for the first year it is to take effect.

[12] As such, according to counsel for the Town, in the present appeal by the Appellants pursuant to s. 38(4.1) of the Act, the appeal rights derived from the s. 38(2) passing of the Extension ICBL, the Appellants can only question the propriety of the passing of the Extension By-law and not the Original ICBL which is exclusively an appeal right of the Minister.

[13] Counsel for the Town additionally stated that the Appellants’ motion represents a collateral attack on the above stated reasoning since in raising issues that pertain to the Original ICBL, they are doing something indirectly that which they could not directly. The Tribunal is to deal with matters in the Extension ICBL only and not with matters of the Original ICBL.

[14] Unsurprisingly, the Appellants’ counsel disagreed with the Town’s whittling down of s. 38(4.1) in the current version that provides, that a person notified of the passing of the Extension ICBL may appeal to the Tribunal setting out the objection to the by-law and the reasons in support of the objection. The “reasons” are worded in plural and meant to be broad. It is not restricted only as to “whether the decision to extend time was permissible” as this would make appeal “reasons” meaningless if so restricted as suggested by the Town.

Appellants’ Notice of Motion

[15] This motion also seeks an order of the Tribunal to approve the five proposed issues for the hearing as drafted in the draft PO.

[16] The Appellants argue that the Town’s contention that the only issue relevant on an appeal under s. 38(4.1) of the Act is in respect of “whether the decision to extend time is permissible” of an extension as it relates to the passing of the Original ICBL is unreasonably narrow, given the context within which the Extension ICBL applies. The resolutions of council on the Extension ICBL show a clear nexus to the matters canvassed in the Appellants’ Issues List.

[17] The Town’s stated reason for extending the Original ICBL was to conduct further review of the research it had conducted to date and to hold public meetings and consultations with stakeholders. However, Council simultaneously directed staff to prepare a prescriptive cannabis by-law that is (allegedly) not supported by any study. Hence the Appellants argue that the Council’s direction to staff and the decision to pass the extension by-law are part of the same resolution and are inextricably linked. Thus this forms part of the subject matter on appeal before the Tribunal.

[18] The Appellants’ counsel reiterated that interim control by-laws are extraordinary remedies and their application must be done with extreme caution. In particular, there must be a genuine planning justification for the use of the interim control by law. Furthermore, the enactment of an interim by-law, given its powerful nature and potential draconian effect on affected landowners, enhances the need for transparency and accountability.

Key Principles of Statutory Interpretation

[19] Section 1.1 of the Act lists purposes to include at (d) to provide for planning processes that are fair by making them open, accessible, timely and efficient; and at (f) to recognize the decision-making authority and accountability of municipal councils in planning.

[20] The Interim Control by-law in s. 38 of the Act is set out as follows:

38(1) Where the council of a local municipality has, by by-law or resolution, directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by-law (hereinafter referred to as an interim control by-law) to be in effect for a period of time specified in the by-law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by-law.

(2) The council of the municipality may amend an interim control by-law to extend the period of time during which it will be in effect, provided the total period of time does not exceed two years from the date of the passing of the interim control by-law.

(3) No notice or hearing is required prior to the passing of a by-law under subsection (1) or (2) but the clerk of the municipality shall, in the manner and to the persons and public bodies and containing the information prescribed, give notice of a by-law passed under subsection (1) or (2) within thirty days of the passing thereof.

(4) The Minister may, within 60 days after the date of the passing of a by-law under subsection (1), appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.

(4.1) Any person or public body who was given notice of the passing of a by-law under subsection (2) may, within 60 days after the date of the passing of the by-law, appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.

[21] Section 38(1) to (4.1) of the Act read in context can be briefly stated as, where the municipality has directed a review or study on land use policies, it may without notice pass an interim control by-law to restrict land use for one year in the municipality, which the Minister may appeal to the Tribunal. Thereafter the municipality may without notice extend that interim control by-law for another year but must notify persons and public bodies of the extension, which notified persons/public bodies (objectors) may appeal to the Tribunal.

[22] Section 38(4.1) allows an appeal by any person or public body notified of the passing of a by-law within 60 days of its passing to appeal to the Tribunal by filing a notice of appeal setting out the objection to the by-law and the reasons in support of the objection. The Appellants have done that. They have set out the reasons in the notices of appeal.

[23] The purpose of the Act is to encourage transparency and accountability of Municipalities. The past repealed version of s. 38 provided two bites at the cherry. The current version of s. 38 instituted a freeze of one year to permit the Council to undertake a study and review without hindrance. The Tribunal’s view is that the purpose of the extension provision is to enable an extension, but then the Municipality is to show why there is a need for the extension and transparency and accountability for the decision dictates that reasons founding the original by-law need be disclosed by the Municipality in establishing their passing of the Extension ICBL.

[24] Section 38 of the Act must be interpreted and read in context of the Act. Interpretation of s. 38(4.1) and its construction should not render parts of it meaningless. The Supreme Court of Canada in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CarswellNfld 211, at para. 29, quoting E.A. Driedger, “it is appropriate to adopt a construction “that gives effect to the whole of the statute…in preference to the one that renders part thereof meaningless” Construction of Statutes (2nd ed.1983, at pg.92).

[25] The Tribunal had in the past as the Ontario Municipal Board described interim by-laws as “extraordinary remedies given to cities and their application must be done with extreme caution” in Scarborough (City) Interim Control By-law 22169-81, Re (1998), 22 O.M.B.R. 129 (O.M.B.). In the Supreme Court of Canada RSJ Holdings Inc. v London (City), 2007 SCC 29, 2007 CarswellOnt 3919, Charron J. at para. 4 concluded “If anything, the enactment of an interim by-law, given its powerful nature and potential draconian effect on affected landowners, enhances the need for transparency and accountability”.

[26] The Tribunal’s view is that s. 38(4.1) of the Act is to be read in context of the Act and harmoniously with the purpose of the Act and the intent of Parliament. This is consistent with the principle of interpretation of statutes with which the courts approach their tasks. In the Ontario Court of Appeal’s case TRG-KFH (Lakeside) Inc. v Muskoka Lakes (Township) 2019 ONCA 443, 2019 CarswellOnt 8675, in para. 34, on a matter under s. 34(9) of the Act, the Court stated “In interpreting s. 34(9)(b), the words are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Planning Act, the object of the Planning Act and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.) at para 21. Further, the words of the statute should be given a broad and purposive interpretation. As noted in United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485 (S.C.C.) at para 8: “A broad and purposive approach to the interpretation of municipal legislation is also consistent with this court’s approach to statutory interpretation generally.”

Analysis and Findings

[27] The Tribunal finds the Appellants’ arguments persuasive and conversely the Town’s arguments not persuasive for the reasons that follow. The extension by-law is termed an interim control by-law in its very title: “THE CORPORATION OF THE TOWN OF NIAGARA-ON-THE-LAKE BY-LAW NO.5169-19 BEING AN INTERIM CONTROL BY-LAW OF THE TOWN OF NIAGARA-ON-THE-LAKE UNDER SECTION 38 OF THE PLANNING ACT”. Despite its stated purpose on being only an amendment, the Extension ICBL was enacted by a resolution that involves prescriptive measures for prohibitions on cannabis land use matters. The Tribunal disagrees with the Town that By-law No. 5169-19 is not an interim control by-law as that was indeed the heading in the instrument. Further, the Extension ICBL was enacted to continue the effect of the Original ICBL for another period of one year. The Tribunal holds that issues related to the purpose or rationale for the Original ICBL can be canvassed since the extension was allegedly made for the Original ICBL to continue its land use prohibition pending further study and review. The underlying study and review of the Original ICBL needs to be looked at to see if a further study and review is required to support the extension.

[28] The Town contends that on an appeal of an extension by-law only matters relating to the extension of time are considered, not the enactment of the original by-law itself. Two cases were cited, Re Oshawa (City) Interim Control By-law 134-89 [1991] O.M.B.D. No. 910 (“Re Oshawa”) and Raghubir v Toronto (City) [1998] O.M.B.D. No. 251 (“Raghubir”). In Re Oshawa, the Board noted: “It could be argued that the appeal being pursued at this point in time is that of (appellant) relating to the time extension since the (original by-law) appeals have been withdrawn. The Board hastens to emphasize, however, that it does not rely on the latter observation. It relies on the finding that it would be more appropriate for any application for exemption to be made to council for proper consideration.” In that case, the Board was also taken through exhibits relating to subject reviews and studies. In Raghubir, Mr. Raghubir opposed the Interim control by-law (though he did not appeal it) and the Board afforded him a full range of matters that he raised at the opposition of the extension of the interim control by-law. He complained that the Interim control by-law contravened the Rental Housing Protection Act, that the City was biased against him and a whole host of matters. Indeed in the case before this Tribunal, the Town’s contention that the only issue relates to the Extension ICBL and the conduct at this relevant time may only be dealt with is not consonant with the purpose of the Extension ICBL, which is to give effect to the land use restrictions as stated in the Original ICBL. This means the Town’s conduct relates back to the proposed study and review undertaken then and at the time of passing of the Extension ICBL.

[29] The Town’s stated purpose of the amendment Extension ICBL was to extend the Original ICBL with the amendments replacing s. 5 of the Original ICBL. This would represent an adoption of the policy and proposed study and review of the Original ICBL. The two ICBLs’ stated purpose is the same or similar and the description of the purpose links both ICBLs inextricably.

[30] The Tribunal finds that factors relevant to the enactment of the Original ICBL are pertinent to determination of the appeals of the Extension ICBL. The Town’s insistence of the narrow scope of matters and the suggested scoping of appeal rights for appeals under s 38(4.1) is not consistent with the purpose and objective of the sections and of the Act. Once the Tribunal finds that the Appellants may raise pertinent matters relating to the Original ICBL and issues relating to the appeal, that will not amount to collateral attacks on the Original ICBL. Those issues will be relevant to decide whether the Extension ICBL is founded on a study or a need for further study and review.

[31] In reading the s. 38 of the Act in context and in relation to the purpose and intent of the Act, the Tribunal finds that given the principle of statutory interpretation established by high authority, it is proper to read s. 38(4.1) within the context and purpose of the Act which expressed purposes in s. 1.1(d) and s. 1.1(f) of the Act are to provide for planning processes that are fair by making them open, accessible, timely and efficient; and to recognize the decision-making authority and accountability of municipal councils in planning. Towards those stated purposes, the Tribunal is constrained to hold that the provisions in s. 38 of the Act is to regulate the municipality’s decision making authority and to ensure the exercise of this authority is properly undertaken. The Town should welcome the scrutiny which will only enhance its reputation for transparency, fairness and good land use planning practices.

[32] The Tribunal has taken a broad and purposive approach to s. 38(4.1) of the Act where the appeal is referred to the Tribunal under this section, to challenge the continuation for another year of the Original ICBL by an Extension ICBL. The reasons in support of the objection to the Extension ICBL may include matters from the time of passing of the Original ICBL up to and including matters of the passing of the Extension ICBL. This is in keeping with the purpose of the Act in ensuring transparency and accountability of municipalities of the decision making authority. This is to provide for planning processes that are fair by making them open, accessible, timely and efficient. The Tribunal has the jurisdiction under s. 38(4.1) of the Act to consider and adjudicate on the underlying reasons and issues for the enactment of the ICBLs in the appeals. There is merit in the Town’s contention that it is not for the Tribunal to rule whether a cannabis-related land use is a normal farm practice which is an issue for another forum and not the Tribunal. Therefore, the Tribunal will decline to do so.

Decision of Tribunal on the Motions

[33] For the reasons stated, the Tribunal rules that:

(i) the Town’s motion is dismissed.

(ii) the Appellants’ motion is allowed in part.

[34] The Procedural Order is allowed save as to the proposed issues, which are modified and reworded as follows:

• Issue (a): Is Interim Control By-law No. 5169-19 passed ultra vires the Town of Niagara-on-the Lake in that it does not authorize the continuation of a bona fide study?

• Issue (b): Is Interim Control By-law No. 5169-19 passed ultra vires the Town of Niagara-on the-Lake in that it is not passed for legitimate land use planning grounds?

• Issue (c) is struck out. Issues (d) and (e) are combined and reworded as:

Issue (c): Does the Town of Niagara-on-the-Lake have authority to review and regulate cannabis-related land uses through an interim control by-law?

[35] Two days are to be set aside for hearing of the appeals.

[36] The Parties may contact the Case Coordinator to schedule a hearing of the appeals. The Parties shall file an Expert Witness List, file and serve Witness Statements, and all relevant documents for the hearing 30 days before the hearing date for the appeal.

[37] The Tribunal so orders.

“T.F. Ng”

T.F. NG

MEMBER

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Local Planning Appeal Tribunal

A constituent tribunal of Tribunals Ontario - Environment and Land Division

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