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PLANNING AND DEVELOPMENT - Zoning regulations - Bylaws - Enforcement

Wednesday, July 03, 2019 @ 8:06 AM  


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Application by the appellants for a stay of a 2018 injunction enjoining the appellants from operating dispensaries in non-compliant locations in the respondent City. The appellants operated dispensaries that sold cannabis in the City. None of the appellants had a business licence from the City. The appellants would not qualify for a business licence because they did not meet the distancing requirements of the City’s Zoning By-law. Pursuant to the court order, the appellants were ordered to cease carrying on business at specific locations in the City. The appellants argued that the federal regulations concerning access to medical cannabis violated s. 7 of the Charter, the bylaw unduly restricted access to medical cannabis dispensaries to certain limited areas of the City, and that the impugned bylaws were of no force and effect on a division of powers basis. The Cannabis Act and the Cannabis Regulations established a legal and regulatory framework for the distribution and sale of recreational cannabis requiring any party wishing to sell cannabis from a retail location in the City to have a provincial licence issued through the provincial statutory regime and a business licence issued by the City. There were 24 retail stores selling cannabis in the City which were not operating under provincial licences but which, because they met the distancing requirements of the bylaw, were not been impeded by the City from operating at their location.

HELD: Application dismissed. Only the narrow issue of whether two of the City’s bylaws were ultra vires as colourable attempts to regulate sales of cannabis met the low merits threshold for purposes of a stay application. The evidence was not clear that the appellants would be put out of business if the stay was refused. The City was not proposing to interfere with retail cannabis stores that complied with its distancing requirements, and the appellants could presumably move to avoid the impact of the injunction. The balance of convenience was against granting the stay. This was not a question of placing unreasonable restraints on access to medical cannabis. Rather, the City was insisting that retail cannabis operators be restricted to largely commercial areas. The argument that this requirement constituted an unreasonable restriction on individuals who required cannabis for medical purposes was unconvincing. The balance of convenience weighed heavily in favour of compliance with the bylaws unless and until they were invalidated. The availability of cannabis in prescribed form by licensed retailers and in unregulated form by the 24 unlicensed outlets that complied with the City’s distancing requirements, together with the failure of any affected party to challenge the federal government’s medical cannabis requirements directly, were all factors against a stay of the injunction. The jurisprudence concerning the enforcement of municipal bylaws also leaned against staying a statutory injunction based on such bylaws.

Vancouver (City) v. Karuna Health Foundation, [2019] B.C.J. No. 962, British Columbia Court of Appeal, J.J.L. Hunter J.A., May 31, 2019. Digest No. TLD-July12019005