Case law
Municipality Can Refuse to Issue Businesses License to Marijuana Dispensary – Abbotsford (City) v. Weeds Glass & Gifts Ltd., [2016] BCSC 135
Most of us are familiar with the recent decision of the Federal Court of Canada in Allard v. The Queen, [2016] F.C.J. No. 195, which reaffirmed that an individual’s right to access medical marijuana is protected by section 7 of the Charter of Rights and Freedoms, and that this right may extend to personal production in the home. Less well known is Abbotsford (City) v. Weeds Glass & Gifts Ltd., [2016] BCSC 135, a recent case from the British Columbia Supreme Court. The Abbotsford case serves as a reminder that the right to access medical marijuana has limits and does not, at present, extend to protect marijuana dispensaries, which are currently illegal under federal law. Although the Abbotsford case reaffirms a local government’s power to refuse to issue a business license to such dispensaries, the case also sounds a note of caution concerning municipal powers in the future in light of the shifting landscape concerning Canada’s marijuana laws.
Facts
The City of Abbotsford (the “City” or “Abbotsford”) sought a permanent injunction enjoining the respondents, Weeds Glass & Gifts (the “Company”) and the Canadian Weed Cannabis Society (the “Society”), from operating a business within the City. The Company and the Society, prior to its dissolution, operated a marijuana dispensary that sold cannabis and related projects. Under Abbotsford’s consolidated Business Bylaw, it was required that every business operating within the City hold a valid business license or an exemption from the requirement. In addition, the Business Bylaw mandated that in addition to complying with all of the City’s bylaws, a person who carries on business in the City shall comply with all applicable federal and provincial laws:
“Every person who carries on business in the City, shall comply with all bylaws of the City and all applicable laws, rules, codes, regulations and orders of all Federal or Provincial authorities having jurisdiction over such business.”
To ensure compliance with this provision, Abbotsford’s Business Bylaw also gives the City’s license inspectors the authority to require business license applicants to provide proof of certification or qualification required by a federal, provincial or local government authority with jurisdiction over a business.
The City had rejected the application for a business license for the dispensary on the basis that the retail sale of marijuana was unlawful. Despite not having a business license or being exempted from the requirement, the respondents continued to operate the dispensary. The City sought injunctive relief preventing the respondents’ continued operation.
Law
The Court held that the City’s right to bring this application is a statutory right brought pursuant to the Community Charter, S.B.C. 2003, c. 26. Because it is a statutory right to seek the injunction, the grounds on which the Court may exercise its discretion to decline to grant it are much narrower than where injunctions sought are based on the common law: North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494 at para. 37. The Court quoted the following principle from North Pender Island:
“...The requested injunction is a statutory remedy that engages the public interest. The discretion of the court to decline an injunction to enforce a bylaw is very narrow and is reserved for rare cases with exceptional circumstances. This is not one of those rare cases.”
The Court held that the City met all of the requirements necessary to engage the Court’s jurisdiction and to support the injunction sought. The injunction bound the Company but not the Society due to its dissolution. Given the intention of Society members to continue the retail business, the injunction was granted against every director, officer, liquidator and member of the Society.
Conclusions
Although the decision appears to be a straightforward application of established legal principles, the Court suggested the possibility that the injunction could be challenged in the future should the retail sale of marijuana ever become legal.
Therefore, given the uncertainty with the direction of Canada’s marijuana laws, local governments may have to be braced for the prospect that it may not be within their power to refuse to license dispensaries in the future. If so, local governments should be prepared to regulate the licensing and zoning of these businesses. The City of Vancouver is proceeding with a licensing regime for marijuana dispensaries, though the question of the legality of such municipal bylaws – which license businesses that are illegal under federal law – is perhaps best left for another day.
Summary of section activity
Meeting on February 12, 2015 – The featured speaker was Michael Quattrocchi, a partner at Young, Anderson, who provided a round-up of legal issues pertaining to the British Columbia local government elections in 2014.
Meeting on April 10, 2015 – The featured speaker was Shelley Hahn, Director of Business Services, Municipal Finance Authority, who spoke about the workings of the BC Municipal Finance Authority.
Meeting on May 14, 2015 – The annual Municipal Subsection Meeting with staff from the Ministry of Community, Sport and Cultural Development (Ministry for Local Governments in B.C.). Staff provided an update on key initiatives and developments in legislations, such as the Northwest Community Readiness Project and associated tax and service negotiations, and a statute revision of the Local Government Act. The 2015/2016 Municipal Law Section Executive was also ratified to include the following:
- Co-Chair, Troy DeSouza;
- Co-Chair, Philip Huynh;
- Secretary, Michael Hargraves;
- Treasurer, Lynda Stokes.
Subsequent to this meeting, Joe Scafe was acclaimed as Legislative Liaison following an online election.
Meeting on September 17, 2015 – This was a social and case law review to kick off the 2015/16 year. It was held at Rogue Kitchen with a dinner and cases in the British Columbia superior courts, the Supreme Court of Canada, and the Canadian Transportation Agency were discussed for CLE credits.
Meeting on October 16, 2015 – The featured speaker was Mike Thomson, the Surveyor General of British Columbia, who provided a primer for lawyers on land surveying.
Meeting on November 20, 2015 – The featured speaker was Bruno De Vita, the Managing Partner of Alexander, Holburn, Beaudin & Lang. Mr. De Vita is a senior member of the insurance bar who provided guidance on liability insurance and the additional insured endorsement for municipalities.
Meeting on February 19, 2016 – The featured speakers were Lorena Staples, Q.C., and Bill Buholzer, partner at Young, Anderson, who provided insight on and analysis of the new BC Building Act.
Philip Huynh and Troy DeSouza
Co-Chairs, Municipal Law Section – CBA British Columbia