When it comes to cultivating large quantities of cannabis plants for medical purposes, jurisdictional zoning bylaws can sometimes be murky, as was evident in the recent Ontario Superior Court of Justice ruling on an injunction motion.
In Tay (Township) v. Fan (2018), Zhangjian Fan and four other others were authorized to grow 800 marijuana plants for personal, medicinal use, but the township, located in Simcoe County in the southern Georgian Bay region, argued that the individuals were growing cannabis in a neighbourhood not zoned for that type of activity. Fan had also previously been warned by the township.
The question was how is the area considered a village commercial ‚ÄúC1‚ÄĚ zone garden centre and a general industrial ‚ÄúM1‚ÄĚ zone production facility in the Township of Tay.
‚ÄúIt‚Äôs not exactly clear where that line would be drawn for it to be considered [a processing facility]. We know that it would be a contextual analysis,‚ÄĚ says lawyer Caryma Sa‚Äôd of [S]advocacy in Toronto.
The court conducted a three-part test, first used in RJR-MacDonald Inc. v. Canada (Attorney General)  1 S.C.R. 311, and issued an interlocutory injunction to the respondents, which will take effect Jan. 15, 2019, preventing them from producing cannabis at the current address on that date and giving them time to move to another licensed facility in a properly zoned area until then.
Russell Bennett, lawyer at Cannabis Law and Bennett & Company in Toronto, says this case is troublesome from a constitutional perspective because the personal production of medicinal cannabis is constitutionally protected under s. 7 of the Charter (also seen similarly in R. v. Smith  and Allard v. Canada ).
‚ÄúThe real issue here is how townships and municipalities can best accommodate personal medical cannabis production instead of prohibiting it or restricting it,‚ÄĚ he says.
He says that Tay (Township) v. Fan could have been appealed based on ‚Äúan error of law‚ÄĚ on applying the test of an interlocutory injunction, as one of the key components of proving irreparable harm wasn‚Äôt met.
‚ÄúThe error of law in applying the third branch of the RJR-MacDonald test is failing to see that when balancing the public interest with the inconvenience of the defendants, that it will be the defendants who will suffer the greater harm from the granting of the interlocutory injunction, pending a decision on the merits,‚ÄĚ says Bennett. ‚ÄúPublic interest also includes the particular interests of identifiable groups, such as people who grow their own medical cannabis for their own medical therapy.‚ÄĚ
Daniel Walker, of Bobila Walker Law LLP, disagrees, saying he doesn‚Äôt find the court‚Äôs decision to grant the injunction surprising and that the court‚Äôs decision is clear.
‚ÄúIf you‚Äôre growing 800 plants, you are not just the tiny, little man in the community that was growing plants for his own benefit. He was growing plants for four people,‚ÄĚ he says. ‚ÄúNumber two, he was given three years almost to comply with the bylaw.”
There could potentially be a big shift toward issues where individuals who grow cannabis may have the proper paperwork to authorize cultivation but have not done the due diligence to ensure they‚Äôre meeting municipal bylaws, says Walker.
The judge overseeing this case, Justice R. Cary Boswell, said not granting the interlocutory relief in the circumstances of this case would send a ‚Äúvery poor message‚ÄĚ because it would undermine the jurisdictional authority of the Township of Tay and its ability to enforce its bylaws.
‚ÄúWhat would be useful is fleshing out those [zoning bylaw] details because it‚Äôs not clear where the line [between garden centre and processing plant] was,‚ÄĚ says Sa‚Äôd. ‚ÄúIt might be worthwhile to have black-and-white rules that people can follow.‚ÄĚ
Ultimately, municipal bylaw cases for cultivating medical marijuana could vary on a case-by-case basis. It comes down to the individual township and what discussions were had at the time a certain bylaw was passed.
Bennett and Sa‚Äôd predict cannabis cultivation zoning bylaw cases similar to Tay (Township) v. Fan will continue to become commonplace, now that recreational cannabis is legal in Canada.
‚ÄúThis case shows how both the people of a township and a member of the judiciary do not understand the difference between growing medical cannabis for personal use, as licensed by Health Canada, and growing medical cannabis as a business,‚ÄĚ says Bennett. ‚ÄúThe two are very different.‚ÄĚ
First published at http://feedproxy.google.com/~r/LegalFeedsBlog/~3/lkID0VocLLg/.
For more questions, answers and tips join Canada Immigration Forum REGISTER NOW
Need Immigration Help? Contact us below. ***We respond faster to people who post questions on the Forum. Be sure to post your question in the forum!!
***We respond faster to people who post questions on the Forum. Be sure to make at least one post now!! Join our Immigration Discussion Forum Now: REGISTER for FORUM