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Local resident wins lawsuit against Town of New Tecumseth in favour of cannabis production

June 14, 2024   ·   0 Comments

By Brian Lockhart

A New Tecumseth resident who challenged the Town over a by-law prohibiting medical marijuana production had his day in court and won a judgment in the Ontario Superior Court of Justice.

The judgment was released on February 13, 2024.

Guiseppe Leandro owns a property listed as 11th Line, Cookstown, but is actually in New Tecumseth, and he is the president and sole shareholder of Stinky Greens Organic Limited, which has been issued a license under the Cannabis Act to operate a Micro-Cultivation Facility.

Mr. Leandro’s property has been zoned for agricultural use under the Town’s Zoning By-Law. The relevant by-law’s definition of ‘agriculture’ excludes a ‘medical marijuana production facility.’ That by-law was not amended after the passage of the Cannabis Act in 2018, which legalized cannabis for non-medical use.

The Town took the position that anyone seeking to produce or process cannabis pursuant to a license issued by Health Canada in an agricultural zone required a Zoning By-law Amendment.

Mr. Leandro applied for an amendment but the Town Council denied his application. He then appealed this decision to the Ontario Land Tribunal. He also brought an application before the Normal Farm Practices Protection Board for a determination that the operation of a micro-cultivation cannabis production facility is a normal farm practice and that the Town’s Zoning By-law interferes with this practice.

Mr. Leandro then brought an application to the Ontario Superior Court of Justice seeking a determination that, based on a plain reading of the text of the Town’s Zoning By-law, he was entitled to grow, harvest, dry, and package cannabis on his property. He said he was not operating a medical marijuana production facility. The facility is to cultivate legal recreational cannabis.

Initially, the court said the application was premature because earlier proceedings by the OLT and NFPPB proceedings had not run their course.

That decision was appealed.

The Town’s position was that the Zoning By-law prohibited Mr. Leandro from growing and processing a cannabis crop on the property even though he had a federally issued license to do so. He was advised by the Town that he had to file a rezoning application to obtain permission from the Town to carry on with those activities.

After filing his rezoning application, Town staff released a report recommending that his application be granted.

However, Town Council refused to approve the application.

According to Mr. Leandro, the Zoning By-law permits the growing and processing of field crops within a building on the property. He said cannabis is a field crop.

The Town replied that its position is that interpreting the Zoning By-law requires a consideration of the Town Council’s intent when it passed the by-law. The Town said it had considered the impact of a marijuana production facility as a land use, and determined that the appropriate location for such uses was in ‘industrial zones.’

According to the Town, cannabis is not a regular agricultural crop. The Town said it is heavily regulated and requires significant security measures such as security fencing, lighting, and federally issued licenses for the crop to be grown legally. The Town’s original intention was to prohibit cannabis production in the agricultural and rural zones, and the definition of a Medical Marijuana Production Facility includes the production of medical marijuana or cannabis and is not limited to medical marijuana.

The statement released said, “The Zoning By-law does not prohibit the operation of a micro-cultivation facility pursuant to a license issued under the Cannabis Act.”

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