Provincial protections from inappropriate municipal control of cannabis production
In Ontario, municipal control of cannabis or any other agricultural production is restricted under the Farming and Food Production Protection Act, 1998 ("FFPPA"). Based on the language of the FFPPA, it is our view that municipalities have no authority over the control of agricultural products, including cannabis.
Where a municipality attempts to restrict the establishment of a cannabis production facility through site-specific zoning by-law amendments prohibiting such facilities as a permitted use, section 6(1) of the FFPPA provides that "No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation."[1] A normal farm practice is defined as a practice "conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or makes use of innovative technology in a manner consistent with proper advanced farm management practices."[2] An agricultural operation includes an "agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward."[3] Based on this, cannabis production is classified as an agricultural use, which is exempt from any by-law restriction imposed on it. Therefore, where farming of cannabis is not a permitted use under a zoning by-law, section 6(1) of the FFPPA may prevent municipal by-laws, including zoning by-laws, from restricting such uses.
Section 6(1) of the FFPPA was recently considered by the Ontario Superior Court of Justice in Leamington v. DeGoey, 2021 ONSC 694. A home owner in Leamington installed plastic covered hoop greenhouses on his farm, which was zoned "agricultural hobby farm," and began cultivating cannabis for others in those greenhouses.[4] His operation was permitted by the issuance of site-specific licences from Health Canada. The Municipality of Leamington argued that the home owner was growing and processing cannabis contrary to several municipal by-laws. Leamington brought an application against the home owner, seeking relief, which included an injunction restraining him from using his property for the growing or processing of cannabis; an order to comply with its cannabis regulation By-law 35-18; and an order for the home owner to remove and dispose of all of his cannabis. By-law 35-18 governs two types of cannabis facilities, and sets out rules for how such facilities are required to operate. Leamington took the position that the home owner's operations were a Part II cannabis facility under By-law 35-18, and as such the home owner's operations were subject to nine requirements.
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