Images of allegedly illegal cannabis plants being grown at 770 Foss Road, Fenwick. SUPPLIED

Leviathan Cannabis Group operating “large scale” grow-op on Foss Road; Town Hall unamused

The Town of Pelham has issued a “Part III charge” under the Provincial Offences Act to Woodstock Biomed Inc. (Leviathan Cannabis Group Inc.), at 770 Foss Road in Fenwick, for allegedly violating the Town’s Cannabis Interim Control Bylaw (ICB).

The charge is the result of what is alleged to be a large scale cannabis growing operation at that address, first identified by area residents, who took their concerns to the Town several weeks ago. A source tells the Voice that residents supplied Town Hall with images of “thousands” of cannabis plants that were clearly visible from various vantage points, including from along railroad tracks that border the rural property to the east.

Under the ICB, the use of any land, building or structure for any agricultural, commercial or industrial cannabis purpose whatsoever, except for a use that lawfully existed on the date of the passage of the bylaw, is prohibited.

Initial investigation by Pelham bylaw officers was stymied when company staff on site refused them entry. A follow-up visit that went unopposed by the company, with officers wearing body cameras, resulted in the discovery of the alleged illegal crop.

Satellite view of the Foss Road location, July 2018. GOOGLE EARTH

“The charge falls in line with the standards and expectations of the Town and the community, which were made clear in the Cannabis Interim Control Bylaw,” said Fire Chief and Director of Bylaw Services Bob Lymburner, in a Town statement issued Wednesday, August 19.

“The ICB contained a simple prohibition and the Town is fulfilling its responsibility to residents by enforcing the bylaw.”

Councillors Lisa Haun, Ron Kore, and Mike Ciolfi listen to Leviathan CEO Martin Doane, during a public meeting held at the community centre in late February, 2019. TOWN OF PELHAM VIDEO CAPTURE

During the investigation, lawyers for Leviathan threatened Town staff with trespassing charges, in what was a “presumed attempt to avoid prosecution,” according to the Town statement.

“Their legal counsel made inquiry as to the identity of Town staff who came to inspect,” Pelham CAO David Cribbs told the Voice, “so as to charge them with trespass. The Town did not provide the information.”

Serving notice of the charges against Leviathan turned out to be its own mini drama.

Provincial law permits notice to be served in person by an authorized agent, or by Canada Post. Since Leviathan’s headquarters were in Toronto, the Town opted to save staff resources by using Canada Post. However, Canada Post returned the notice marked as non-deliverable due to an “invalid address.”

The Town then sent a bylaw officer to Toronto to serve notice personally at Leviathan’s corporate office in The Esplanade, a high-end stretch of mixed-use commercial spaces. Yet upon arrival, the officer discovered the building—shared by other firms—to be under renovation, with no sign of Leviathan staff present.

The third try was the charm. The law permits service on a corporation’s directors, which the Town did by serving a Leviathan director at his home address in Toronto.

Leviathan would have a tough time claiming that it was unaware of Pelham’s prohibition on new cannabis operations being established while the ICB was in effect. The company has launched two separate legal challenges against the Town—one in the Superior Court of Justice, to have the firm’s operations exempt from the ICB; the second before the Local Planning Appeal Tribunal (LPAT) to challenge recent Pelham Zoning Bylaw and Official Plan amendments. There are currently no set dates for those proceedings, but the Town’s charges against the company will initially be heard on November 27, 2020, 9 AM, at the Welland Provincial Courthouse.

Penalties for Planning Act violations are financial, with no predetermined amounts.

“The penalty could be a dollar, or it could be $100,000” said a Town source speaking not for attribution, who added that postponements due to COVID-19 are likely to see the legal process delayed by as long as 24 months.

Strategically speaking, Leviathan’s legal challenge against Pelham’s ICB may have the presumably unintended consequence of making it even tougher for the company to establish a legal grow operation in the municipality.

Slide from a Leviathan presentation depicting an artist’s rendering of the company’s proposed Foss Road facility when finished. SUPPLIED GRAPHIC

While the ICB expired in mid-July, when the Town passed a comprehensive new set of regulations to address cannabis operations in the municipality, Leviathan remains bound by the ICB’s restrictions.

According to CAO David Cribbs, speaking with the Voice earlier this year, any “attack on the work product that produced the ICB” automatically extends the ICB for the complainant—in this case Leviathan—until the case is heard and a decision rendered.

In other words, even if Leviathan wanted to bring forward a development proposal that conformed with the Town’s new cannabis-related bylaws, the company must still adhere to the previous interim bylaw, which prohibited the establishment of any new cannabis grow operations in Pelham.

Leviathan Chief Communications Officer Jayne Beckwith told the Voice that the company was still located on The Esplanade in Toronto, but did not respond when asked whether Leviathan had any comment on the substance of the charges being brought against them.

 

Ward 1 by-election candidates react

The Voice requested comment from each of the candidates running to fill the open Pelham Town Council seat in Ward 1, where Leviathan’s Foss Road operation is located.

Wally Braun
Splendid! I am very happy to see our Town starting to push back against corporations with a proven record of contempt for our community. Given the deep pockets of these corporations, we should expect ongoing push-back. We need to make common cause with other municipalities similarly affected through the agency of the Association of Municipalities Ontario (AMO) to share legal costs. Our longer-term objective should include fully investigating the possibility of gaining jurisdiction from senior levels of government over the granting of grow-op permits. With such regulatory teeth we would not only be in a position to take away grow-op permits from offending corporations and offer them to our much more compliant local farmers, but would then be in a position to reap a share of the multi-billion dollar cash flows currently leaving our municipality.

James Federico
I am confident that the Town has leveled the charges correctly in accordance with the Interim Control Bylaw. I am disappointed that charges were necessary at all. I hope that both sides can find a way to move away from an adversarial relationship and toward a collaborative one.

Colleen Kenyon
There is significant economic benefit to having large scale cannabis growing operations located in Pelham; however, we must weigh this benefit against quality of life considerations for citizens residing near the facilities. When deciding how strictly to enforce the ICB with charges or fines, the question to ask is, does the infusion of money into our municipality count for more or less than the infusion of odour and light? This is not a rhetorical question. The conclusion that we come to in answer to this question, based on evidence and consultation with residents, should guide the Town Council and the Cannabis Control Committee in the action they take against Leviathan.

Wayne Olson
The ICB is founded on a strong legal position and the reasonable sentiments of our residents. It is inevitable that the ICB would be challenged by Leviathan. It is disturbing that our employees would be threatened in this way. This behaviour on the part of Leviathan is not behaviour of a responsible company and neighbour. I support enforcement of the ICB to fullest extent.

Steven Soos
I fully support the Town issuing Part III charges onto Leviathan Cannabis Group Inc under the Provincial Offences Act. I would like to give my thanks to Fire Chief and Director of Bylaw services Bob Lymburner for taking the residents’ concerns seriously. It is important that the Town stand its ground in this matter, and not allow a “free for all” when it comes to cannabis operations. It is unbelievable that this company’s lawyers are threatening Town staff with trespassing charges. In Ontario, municipalities may pass bylaws that permit their officers to enter onto private property without notice and without warrant at all “reasonable times.” They can do this in order to pursue an investigation stemming from a complaint, or an inspection following an order by the city, the Town of Pelham has this power given to us through section 436 of the Municipal Act, 2001, and outlined in the Pelham’s Odorous industries by-law. I can personally attest to how overwhelming the odour is on Foss Road after driving through the area a couple days ago. Residents are tired of having their lives uprooted by the public nuisances caused by disorderly cannabis operations who believe that they are above the bylaws governing cannabis in the Town of Pelham.

Candidate Maria Brigantino did not respond.

 

UPDATED August 21, 2020: Edited to reflect Leviathan’s assertion that its offices remain located on The Esplanade in Toronto.

 

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