Law Times

Law Times • November 5, 2018 Page 3 www.lawtimesnews.com Cannabis cultivation zoning bylaws can be ambiguous BY ALEXIA KAPRALOS For Law Times W hen it comes to cul- tivating large quan- tities of cannabis plants for medical purposes, jurisdictional zoning bylaws can sometimes be murky, as was evident in the recent On- tario 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 Geor- gian Bay region, argued that the individuals were growing can- nabis 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 com- mercial "C1" zone garden centre and a general industrial "M1" zone production facility in the Township of Tay. "It's not exactly clear where that line would be drawn for it to be considered [a processing fa- cility]. We know that it would be a contextual analysis," says law- yer Caryma Sa'd of [S]advocacy in Toronto. The court conducted a three- part test, first used in RJR MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311, and issued an inter- locutory injunction to the re- spondents, 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 an- other licensed facility in a prop- erly zoned area until then. Russell Bennett, lawyer at Cannabis Law and Bennett & Company in Toronto, says this case is troublesome from a con- stitutional perspective because the personal production of me- dicinal cannabis is constitution- ally protected under s. 7 of the Charter (also seen similarly in R. v. Smith [2015] and Allard v. Canada [2016]). "The real issue here is how townships and municipalities can best accommodate personal medical cannabis production instead of prohibiting it or re- stricting it," he says. He says that Tay (Township) v. Fan could have been appealed based on "an error of law" on ap- plying the test of an interlocu- tory injunction, as one of the key components of proving irrepa- rable harm wasn't met. "The error of law in apply- ing the third branch of the RJR- MacDonald test is failing to see that, when balancing the public interest with the inconvenience of the defendants, it will be the defendants who will suffer the greater harm from the granting of the interlocutory injunction, pending a decision on the mer- its," says Bennett. "Public inter- est also includes the particular interests of identifiable groups, such as people who grow their own medical cannabis for their own medical therapy." Daniel Walker, of Bobila Walker Law LLP, disagrees, say- ing he doesn't find the court's decision to grant the injunction surprising and that the court's decision is clear. "If you're growing 800 plants, you are not just the tiny, little man in the community that was growing plants for his own ben- efit. He was growing plants for four people," he says. "Number two, he was given three years al- most 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 en- sure they're 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 "very poor mes- sage" because it would under- mine the jurisdictional authority of the Township of Tay and its ability to enforce its bylaws. "What would be useful is f leshing out those [zoning bylaw] details because it's not clear where the line [between garden centre and processing plant] was," says Sa'd. "It might be worthwhile to have black-and-white rules that people can follow." 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'd predict can- nabis cultivation zoning bylaw cases similar to Tay (Township) v. Fan will continue to become commonplace, now that rec- reational cannabis is legal in Canada. "This case shows how both the people of a township and a member of the judiciary do not understand the difference be- tween growing medical canna- bis for personal use, as licensed by Health Canada, and growing medical cannabis as a business," says Bennett. "The two are very different." LT NEWS • Transfer Rights • Amending Agreements • Notice Of Lease & Nda • Smoke Gets in Your Eyes: Issues Involved in the use of Recreational and Medical Cannabis • Landlord's Security/Tenant Financing • Estoppel Certificates • Miscellaneous Agreements COURSE HIGHLIGHTS: COURSE LEADER: STEPHEN J. MESSINGER, SENIOR PARTNER, MINDEN GROSS LLP *Discount applies to in-class only REGISTER BEFORE NOVEMBER 9 AND SAVE UP TO $300* DEALING WITH THE LEASE SUPPLEMENTARY LEASE DOCUMENTATION Toronto In-Class Course • Online Live Webinar | November 21 Register online at www.lexpert.ca/legal-programs For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • • Email: cpd.centre@thomsonreuters.com Untitled-3 1 2018-11-01 9:10 AM Caryma Sa'd says that when it comes to zoning around cultivating cannabis for medical use, exact details on what con- stitutes a garden centre and a process- ing plant should be laid out to make the bylaws clearer. The real issue here is how townships and municipalities can best accommodate personal medical cannabis production instead of prohibiting it or restricting it. Russell Bennett

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