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BYLAWS AND RESOLUTIONS - Statutory authority - Purpose of bylaw - Grounds for invalidity

Tuesday, March 17, 2020 @ 9:54 AM  


Appeal by business owners from an order granting the City an injunction enjoining them from carrying on business as marijuana dispensaries without business licences issued by the City. The chambers judge dismissed the appellants’ argument that the municipal bylaws regulating their businesses exceeded the City’s delegated powers and tickets issued for violations of those bylaws should be declared void. He found the pith and substance of the City’s Medical Marijuana-Related Use bylaws to be land‑use control and regulation of business and that such matters fell within provincial jurisdiction with respect to Property and Civil Rights in the Province. He found the purpose of the bylaws was not to legalize the sale of cannabis but to create a land use where marijuana advocacy use could occur. He found the effect of the bylaws was to regulate businesses and land‑use, and to facilitate community planning, not to allow the sale of cannabis. He found the doctrine of paramountcy had no application in this case as there was no operational conflict between the impugned bylaws and any federal law or enactment. The chambers judge concluded the appellants did not demonstrate that the bylaws engaged s.7 of the Canadian Charter of Rights and Freedoms (Charter) as the bylaws did not unnecessarily limit patients’ right to reasonable access to medical cannabis. Section 7 demanded that individuals be given reasonable access to medical cannabis, not unrestricted access. Individuals might be inconvenienced, but such inconvenience did not engage s. 7. The appellants argued the chambers judge erred in law by finding the impugned bylaws did not exceed the statutory authority of the municipality and by finding the impugned bylaws did not contravene medically approved patients’ right to reasonable access to cannabis, protected by s. 7 of the Charter.

HELD: Appeal dismissed. The appellants identified no legal error in the chambers judge’s analysis of the purpose and effect of the Medical Marijuana-Related Use bylaws. The chambers judge did not err in his analysis of the purpose and effects of the bylaws when assessing their pith and substance. He did not misapprehend the evidence with respect to either the purpose or the effect of the bylaws. Those provisions that were clearly directly related to the sale of cannabis were regarded by the chambers judge as provisions included in the bylaw in anticipation of a change in the federal regulatory regime. The City clearly had statutory authority to pass bylaws regulating the location of businesses in the city and might include provisions that would apply in the event of changes in the legislative regime governing the legality of business pursuits. There was no indication that any dispensaries began to sell cannabis because they received business licenses from the City or that the effect of the bylaws was to encourage the selling of cannabis. The chambers judge did not err in describing either the test that should be applied in determining whether a s. 7 right to access medical treatment had been infringed or the evidence with respect to infringement in this case. There was no palpable and overriding error in his application of that test to the evidence before him.

Vancouver (City) v. Karuna Health Foundation (Appeal by Weeds Glass & Gifts Ltd.), [2020] B.C.J. No. 152, British Columbia Court of Appeal, D.F. Tysoe, P.M. Willcock and DeWitt-Van Oosten JJ.A., February 4, 2020. Digest No. TLD-March162020004