Date: 20100510
Docket: T-561-09
Citation: 2010 FC 506
Ottawa, Ontario, May 10,
2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
RIDGEVIEW
RESTAURANT LIMITED
Applicant
and
THE ATTORNEY GENERAL OF CANADA
and STEVE
GIBSON
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Attorney General of Canada appeals from the Order of a Prothonotary
refusing to strike Ridgeview Restaurant Limited’s Notice of Application brought
in relation to an authorization to possess dried marihuana issued by Health
Canada to the respondent Steve Gibson.
[2]
For the reasons that follow, I have concluded that the appeal must be
allowed, and the Notice of Application struck out. In light of my conclusion
that the Notice of Application should be struck out, Ridgeview’s motion to
amend its Notice of Application will be dismissed.
Background
[3]
On June 4, 2004, Health Canada issued an authorization to possess dried
marihuana for medical purposes (an “ATP”) to Mr. Gibson, pursuant to the Marihuana
Medical Access Regulations, SOR/2001-227(or
“MMAR”). The ATP allowed Mr. Gibson to possess and use dried marihuana
to mitigate severe pain and persistent muscle spasms associated with a spinal
cord injury. Health Canada has renewed Mr. Gibson’s ATP on an annual basis,
most recently on May 7, 2009.
[4]
Ridgeview is the corporate owner of a restaurant located in Burlington, Ontario,
that carries on business as “Gator Ted’s Tap & Grill”. Ridgeview holds a
license to sell liquor at the restaurant under the Ontario Liquor Licence
Act, R.S.O. 1990, c. L.19.
[5]
Gator Ted’s is described as being a family-style restaurant. The owners
of Ridgeview are active in the community, and participate in many fundraising
activities for local charitable organizations. Gator Ted’s also has a presence
in the community through its sponsorship of local sports teams.
[6]
Mr. Gibson was a long-time patron of Gator Ted’s. It is alleged that
while on the premises of Gator Ted’s, Mr. Gibson displayed his marihuana to
restaurant patrons and offered marihuana to others. Mr. Gibson has also
allegedly smoked his marihuana on the sidewalk directly in front of the
restaurant.
[7]
It is also alleged that while on a bus trip organized by the restaurant
to take patrons of Gator Ted’s and their families to see a hockey game in
Hamilton, Mr. Gibson consumed marihuana either near the front of the bus or by
the front door of the bus, and that he had entered the bus with a “joint” in
his hand. Mr. Gibson’s conduct resulted in a number of customer complaints.
[8]
In 2005, Mr. Gibson was barred from Gator Ted’s because of his conduct.
This resulted in Mr. Gibson filing a complaint against Ridgeview and one of its
owners, Ted Kindos, with the Ontario Human Rights Commission. Mr. Gibson’s
complaint is currently pending before the Ontario Human Rights Tribunal.
[9]
In 2008, three complaints were filed with Ronald Denault, the Manager of
the Marihuana Medical Access Division at Health Canada’s Tobacco and Drugs
Directorate pursuant to section 68 of the MMAR. These complaints were brought
by Mr. Kindos, a restaurant employee and a restaurant patron. The complaints
relate to Mr. Gibson’s use of marihuana near the premises of Gator Ted’s, as
well as his alleged sale of marihuana to patrons of the restaurant. Ridgeview
says that despite having received these complaints, Health Canada has taken no
steps to revoke Mr. Gibson’s ATP, or to otherwise require his compliance with
the permit.
[10]
Ridgeview asserts that Mr. Gibson’s conduct is not in keeping with the
family tone of the restaurant, and has the potential to significantly and
adversely affect the business of Gator Ted’s. By engaging in conduct that
violates the Ontario Liquor Licence Act, Mr. Gibson has jeopardized the
business and threatened the livelihood of the restaurant’s owners and
employees. In particular, Ridgeview asserts that Mr. Gibson’s conduct puts it
at risk of being subject to fines of up to $250,000, together with the loss of
its liquor licence. In addition, Ridgeview faces potential liability before the
Ontario Human Rights Tribunal.
[11]
In 2009, Ridgeview commenced this application for judicial review. In
its current form, Ridgeview’s application seeks:
1. A
declaration that the smoking of marihuana by the Respondent Steve Gibson in a
public place, or at any establishment licensed under the Liquor Licence Act
of Ontario, R.R.O. 1990, c. L. 19 (the “LLA”), is not authorized by the
Permit;
2. A
declaration that Health Canada does not have authority to authorize the
possession or use of dried marihuana for medical purposes by anyone in a manner
that is contrary to the express laws of the Province of Ontario prohibiting the
holding or consumption of controlled substances on the premises of a holder of
a license issued under the LLA;
3. An order
in the nature of prohibition, prohibiting Health Canada from renewing the
Permit on account of the flagrant disregard of its terms by the Respondent
Steve Gibson;
The Motion before the
Prothonotary
[12]
The Attorney General brought a motion to strike Ridgeview’s Notice of
Application before a Prothonotary, asserting that the declarations sought by Ridgeview
are nothing more than statements of the law, and are therefore meaningless. The
Attorney General further claimed that by challenging Health Canada’s issuance
of the ATP to Mr. Gibson, Ridgeview was seeking prerogative relief from the
Federal Court for strictly collateral purposes: that is, to defend its position
in the human rights proceeding, and/or to shield itself in the event that
charges are laid against Ridgeview in the future under the Liquor Licence
Act of Ontario.
[13]
The Attorney General also argued that Ridgeview is a stranger to the
relationship between Health Canada and Mr. Gibson, and does not have standing
to challenge the issuance of the ATP to Mr. Gibson.
[14]
Finally, the Attorney General submitted that the MMAR does not
authorize Health Canada to refuse to renew an ATP on the grounds asserted by
Ridgeview. Consequently, even if the facts alleged by Ridgeview are true, they
would not provide a legal basis for Health Canada to refuse to renew Mr.
Gibson’s ATP.
[15]
The Prothonotary did not accept any of the Attorney General’s arguments
and dismissed the motion to strike.
[16]
Insofar as the issue of standing was concerned, the Prothonotary found
that Ridgeview was “directly affected” by Health Canada’s decision in a number
of ways. On top of its commercial interest, Gator Ted’s reputation was also in
issue. Moreover, the restaurant’s staff and patrons, together with those it
supports in the community, are subjected to Mr. Gibson’s allegedly improper use
of marihuana. The Prothonotary concluded that “[t]his may ultimately be found
to be sufficient to support direct standing, however, and in any event, the
issue of standing is not determinative of this motion.”
[17]
The Prothonotary also did not accept the Attorney General’s submission
that the MMAR does not confer discretion on the Minister of Health to
refuse to grant a renewal of Mr. Gibson’s ATP. According to the Prothonotary,
the complaints made by Mr. Kindos and others gave rise to a “legitimate
expectation” on the part of Ridgeview that Health Canada would comply with its
obligations under the MMAR.
[18]
The Prothonotary rejected the Attorney General’s argument that Ridgeview
was seeking declarations solely for collateral purposes. The Prothonotary
distinguished the decision in Schreiber
v. Canada (Attorney General), [2000] 1 F.C. 427, holding that the focus of the
Notice of Application in this case was not to clarify Canadian law for another
jurisdiction. In this regard, the Prothonotary observed that there are no
prosecutions currently under way in which Ridgeview could make use of pure
declarations of law. According to the Prothonotary, what was being sought were
“declarations and remedies directly related to Ridgeview’s role in the
community”. As such, they were not “vacuous declarations of law in light of
the factual matrix giving rise to this application”.
[19]
As Ridgeview was caught between the MMAR on the one hand, and its
obligations under the Liquor Licence Act of Ontario on the other, the
Prothonotary concluded that it ought to have its day in this Court in order to
have an applications judge determine whether the declarations sought are
meaningless, on the basis of a full evidentiary record.
Standard of Review
[20]
The first issue for the Court is to identify the standard of review to
be applied to the Prothonotary’s decision. As the Federal Court of Appeal
observed in Merck & Co. v. Apotex Inc., 2003 FCA 488, 30 C.P.R.
(4th) 40 at paras. 18-19, discretionary orders of Prothonotaries ought not to
be disturbed on appeal unless the questions raised in the motion are vital to
the final issue of the case, or the orders are clearly wrong, in the sense that
the exercise of discretion was based upon a wrong principle or a
misapprehension of the facts.
[21]
The Attorney General submits that in identifying the appropriate
standard of review, the Court should have regard to the nature of the motion
before the Prothonotary, rather than its outcome. Given that a motion to
strike clearly raises a question that is vital to the final issue in the case,
the Attorney General says that the Court should consider the matter de novo.
In support of this argument, the Attorney General relies on the decisions of
this Court in Coffey v. Canada (Minister of Justice), 2005 FC 554, 273
F.T.R. 92 and Professional Institute of the Public Service of Canada v.
Canada (Customs and Revenue Agency), 2002 FCT 119, 216 F.T.R. 96 [P.I.P.S.C.].
[22]
Ridgeview made no substantive submissions with respect to the standard
of review, submitting just that the Prothonotary’s decision should not be
interfered with, whichever standard is applied. Mr. Gibson has not participated
in these proceedings.
[23]
A review of the jurisprudence
reveals that the law is divided on this question. In P.I.P.S.C., the
Court observed that if the respondent’s motion to strike had succeeded before
the Prothonotary, the application would be at an end. As a consequence, the
Court held that the motion raised a “question vital to the final issue of the
case”, with the result that the Court was required to approach the appeal on a de
novo basis: see para. 18. A similar conclusion was reached by the same
judge in Coffey at para. 10.
[24]
However, the more recent jurisprudence of this Court has
held that an appeal from the dismissal of a motion to strike does not raise a
question that is vital to the final issues of the case, with the result that
such a decision is subject to the more deferential standard of review: see, for
example, Peter G. White Management Ltd. v. Canada, 2007 FC 686, 158
A.C.W.S. (3d) 696; Chrysler Canada Inc. v. Canada, 2008 FC 1049, [2009]
1 C.T.C. 14 at para. 4; Apotex Inc. v. AstraZeneca Canada Inc.,
2009 FC 120, [2009] F.C.J. No. 179 at para. 25; AYC Pharmacy Ltd. v. Canada
(Minister of Health), 2009 FC 554, 95 Admin. L.R. (4th) 265 at para. 9; and
Horseman v. Horse Lake First Nation, [2009] F.C.J. No. 476, 2009 FC 368,
at para. 2. See also Sierra Club of Canada v. Canada
(Minister of Finance), [1999] 2 F.C. 211 at para. 21, a decision that pre-dates
P.I.P.S.C. and Coffey.
[25]
I do not need to resolve this question in this case, as I am satisfied
that the Prothonotary erred in law by exercising his discretion based upon a misunderstanding
of the legislative scheme and a misapprehension of the facts.
Legal Principles Governing Motions to Strike
[26]
Applications for judicial review are intended to be summary proceedings,
and motions to strike Notices of Application add greatly to the cost and time
required to deal with such matters. Moreover, as the Federal Court of Appeal
observed in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1995]
1 F.C. 588, 51 A.C.W.S. (3d) 799, the striking out process is more feasible in
actions than in applications for judicial review. This is because there are
numerous rules governing actions which require precise pleadings as to the nature
of the claim or the defence, and the facts upon which the claim is based. There
are no comparable rules governing Notices of Application for judicial review.
[27]
As a consequence, the Federal Court of Appeal has observed that it is
far more risky for a court to strike out a Notice of Application than a
conventional pleading. Different economic considerations also come into play in
relation to applications for judicial review as opposed to actions. That is,
applications for judicial review do not involve examinations for discovery and
a trial - matters which can be avoided in actions by a decision to strike: David
Bull at para.10. In contrast, the full hearing of an application for
judicial review proceeds in much the same way that a motion to strike the
Notice of Application would proceed, namely on the basis of affidavit evidence
and argument before a judge of this Court.
[28]
As a result, the Federal Court of Appeal has determined that
applications for judicial review should not be struck out prior to a hearing on
the merits of the application, unless the application is “so clearly improper
as to be bereft of any possibility of success”. Moreover, “[s]uch cases must
be very exceptional and cannot include cases ... where there is simply a
debatable issue as to the adequacy of the allegations in the notice of motion”:
David Bull at para.15.
[29]
Unless a moving party can meet this very stringent standard, the “direct
and proper way to contest an originating notice of motion which the respondent
thinks to be without merit is to appear and argue at the hearing of the motion
itself.” David Bull at para. 10. See also Addison & Leyen Ltd. v.
Canada, 2006 FCA 107, [2006] 4 F.C.R. 532 at para. 5, rev’d on other
grounds 2007 SCC 33, [2007] 2 S.C.R. 793.
[30]
The reason why the test is so strict is that it is ordinarily more
efficient for the Court to deal with a preliminary argument at the hearing of
the application for judicial review itself, rather than as a preliminary
motion: see the comments of the Federal Court of Appeal in Addison &
Leyen at para. 5.
[31]
It is clear from a review of the Prothonotary’s reasons that he was
mindful of these principles. The question is whether he erred in their
application in this case.
The Question of Standing
[32]
Section 18.1(1) of the Federal Courts Act, R.S.C. 1985, c.
F-7, affords anyone “directly
affected” by the matter in respect of which relief is sought the right to
seek judicial review of that decision.
[33]
The Attorney General submits that Ridgeview does not have standing to
bring this application as it is not directly affected by the renewal of Mr.
Gibson’s ATP. The regulatory relationship created by the MMAR exists
only between Health Canada and Mr. Gibson, and Ridgeview is a stranger to that
relationship.
[34]
To the extent that Ridgeview asserts a commercial interest in the issues
raised in the application, the Attorney General says that this does not provide
a sufficient basis for standing: Canwest Mediaworks Inc. v. Canada (Minister
of Health), 2007 FC 752, 159 A.C.W.S. (3d) 193 at paras.16-17, aff’d 2008
FCA 207, 382 N.R. 365.
[35]
Moreover, the Attorney General argues that the degree of proximity
between Health Canada’s renewal of Mr. Gibson’s ATP and the harm alleged by
Ridgeview is too remote to justify the relief sought in the application. That
is, any potential harm to Ridgeview’s reputation is not directly attributable
to Health Canada’s renewal of Mr. Gibson’s ATP. Rather, it is a result of where
it is that Mr. Gibson chooses to use his marihuana, and attacking the
regulatory decision that allows him to use dried marihuana for a medical
purpose “overshoots the mark”.
[36]
The Attorney General further argues that the Prothonotary was wrong in
asserting that “the issue of standing is not determinative of this motion”.
Clearly, if Ridgeview has no standing to challenge the renewal of Mr. Gibson’s
ATP, the application must be struck.
[37]
Relying on the decision of the Federal Court of Appeal in Apotex Inc.
v. Canada (Governor in Council), 2007 FCA 374, 63 C.P.R.
(4th) 151 at paras. 13-14 (Apotex) at paras. 13 and 14, Ridgeview
argues that the Court should not exercise its discretion to determine standing
at this stage in the proceeding. According to Ridgeview, the Court does not have
all the necessary facts in order to properly consider the issue of standing.
[38]
In the alternative, Ridgeview submits that it is not plain and obvious
that it lacks standing to bring this application. The restaurant’s staff and
patrons and those whom it supports in the community are subjected to Mr. Gibson’s
improper use of marihuana. Ridgeview says that this conduct is attributable to
Health Canada’s decision to renew Mr. Gibson’s ATP, as Mr. Gibson would have no
legal basis to obtain or use dried marihuana in public places in the absence of
this decision.
[39]
According to Ridgeview, Health Canada cannot ignore its obligations
under the MMAR when renewing an ATP, and then claim that it is not
responsible to those affected by the misuse of that permit.
[40]
Ridgeview further asserts that Health Canada’s failure to give due
consideration to the complaints filed with respect to Mr. Gibson’s alleged misuse
of his ATP has placed Ridgeview at risk. Not only has it been left vulnerable
to significant fines, the potential non-renewal of its lease and the loss of
its liquor licence, but Ridgeview also faces the risk of sanctions from the
Ontario Human Rights Tribunal. Moreover, the business and reputation of the
restaurant have also been adversely affected by Mr. Gibson’s continued improper
use of his ATP and Health Canada’s refusal to adhere to the MMAR.
[41]
The Federal Court of Appeal observed in Apotex that it will not
always be appropriate to make a binding decision on a question of standing in
the context of a motion to strike, particularly when the motion is to strike
out a Notice of Application for judicial review. The Court should exercise its
discretion sparingly in this regard, and should only terminate applications for
judicial review for lack of standing on motions to strike in very clear cases.
[42]
Because the Court may not have all the necessary facts or the benefit of
full legal argument, the Court must decide whether it is appropriate in the
circumstances of a particular case to render a decision on standing at the
preliminary stage, or whether the question should be left for the hearing of
the merits of the application: Apotex at paras. 13-14.
[43]
It is unclear from the Prothonotary’s reasons whether he chose to
exercise his discretion to decide the issue of standing on the motion to strike
or not.
[44]
On the one hand, the Prothonotary rejected the Attorney General’s
arguments on the standing question, stating that “Ridgeview is directly
affected and has standing because it is affected in more ways than simply
its commercial interest which in and of itself would not be sufficient to
provide it with standing” [emphasis added]. This appears to be an unequivocal
determination of the standing question.
[45]
However, after reviewing the ways in which Ridgeview’s interests are
allegedly affected, the Prothonotary goes on to state that “This may ultimately
be found to be sufficient to support direct standing”. This suggests that the
Prothonotary was leaving the ultimate decision on standing to the applications
judge.
[46]
In the absence of an explicit exercise of discretion by the Prothonotary
to finally decide the question of standing, Apotex teaches that “the
legal standard to grant a motion to strike must inform all legal questions”:
para. 14. That is, the question for the Prothonotary was whether it was
plain and obvious that Ridgeview’s application is so clearly improper as to be
bereft of any possibility of success. As will be explained below, I am
satisfied that this is indeed the case, and that the Prothonotary’s decision
concluding otherwise was based upon a misunderstanding of the legislative
scheme and a misapprehension of the facts.
[47]
A review of the regulatory scheme discloses that Ridgeview is indeed a
stranger to the ATP process. The applications process is set out at Part 1 of
the MMAR, and does not contemplate any role for third parties such as
Ridgeview. Can it nevertheless be said that Ridgeview is “directly affected”
by the grant of an ATP to Mr. Gibson?
[48]
In Friends of the Island Inc. v. Canada (Minister of Public Works)
[1993] 2 F.C. 229 (T.D.), rev'd on other grounds (1995), 185 N.R. 48, 56
A.C.W.S. (3d) 316, and Nova Scotia (Attorney General) v. Ultramar Canada
Inc., [1995] 3 F.C. 713 (T.D.) this Court rejected arguments that the words
“directly affected” in subsection 18.1(1) of the Federal Courts Act
should be given a relatively restricted meaning.
[49]
That said, the jurisprudence teaches that in order to be “directly
affected” by a matter in respect of which relief is sought for the purposes of section
18.1 of the Federal Courts Act, the decision at issue must be one which
directly affects the party’s rights, imposes legal obligations on it, or
prejudicially affects it directly: Pall Mall Canada Ltd. v. Canada (Minister
of National Revenue), [1976] 2 C.F. 500, 67 D.L.R. (3d) 505 (F.C.A.). A
party who is only affected in the commercial sense by a decision, but who was
not a party to that decision, has no standing to seek judicial review: Canwest
Mediaworks at paras. 16-17.
[50]
I have considered Ridgeview’s contention that it is not appropriate to
decide the question of standing at this stage in the proceedings as the record
in this matter is not yet complete. Ridgeview says that it is still waiting for
information from the Attorney General as to what happens with complaints
brought under section 68 of the MMAR. However, as will be explained
further on in these reasons, it is clear on the face of the Regulations that
the existence of a complaints process in Part 3 of the MMAR is not
linked in any way to the applications process described in Part 1. Thus the
information still being sought by Ridgeview could have no bearing on the issue
of standing.
[51]
The fact that there is no linkage between the complaints and
applications processes also means that Ridgeview could have no legitimate
expectation that the complaints filed with respect to Mr. Gibson’s conduct
would create a “direct connection” sufficient to give it standing in this
matter. The MMAR creates no duty on the Minister with respect to the ATP
renewals process that Ridgeview has a right to enforce.
[52]
I am thus satisfied that it is plain and obvious that this application
cannot succeed because Ridgeview lacks standing. As such, the application is
bereft of any possibility of success. There is no decision or “matter” here
directly affecting the rights or obligations of Ridgeview. The difficulties
that Ridgeview has encountered with Mr. Gibson that have given rise to this
application for judicial review are clearly not the direct result of Health
Canada’s issuance of an ATP to Mr. Gibson. Rather, they are the result of Mr.
Gibson’s alleged failure to comply with federal, provincial and/or municipal
laws. Consequently, Ridgeview is not “directly affected” by Health Canada’s
decision to renew Mr. Gibson’s ATP.
[53]
While this finding is sufficient to dispose of this appeal, I will
address the Attorney General’s other arguments in the event that a reviewing
Court takes a different view of this matter.
Relief by Way of Prohibition is Not Available
[54]
The Attorney General also submits that the relief sought by Ridgeview in
this application is not available to it. This is because the MMAR does
not authorize Health Canada to refuse to renew an ATP on the grounds alleged by
Ridgeview. It therefore follows that to the extent that the application seeks
relief by way of prohibition, it is bereft of any possibility of success.
[55]
Ridgeview argues that it had the legitimate expectation that the
complaint made under section 68 of the MMAR with respect to Mr. Gibson’s
conduct would be provided to the Minister, and that steps would be taken to
ensure the proper administration and enforcement of the Regulations. This
would include the complaint being given due consideration by the Minister in
the renewal process. Ridgeview further argues that without a complete
evidentiary record, it cannot be determined how any of the formal complaints
were dealt with, or if they were provided to the Minister as required.
[56]
The Prothonotary appears to have accepted that Ridgeview had such a
legitimate expectation. As a consequence, he was not persuaded that this
application should be struck.
[57]
The difficulty with this finding is that there is no linkage between
the complaints process contained in Part 3 of the MMAR and the renewals
process in Part I. Section 18 of the MMAR states that the Minister shall
refuse to renew an ATP for any of the reasons set out in section 12. The only
reasons identified in section 12 for refusing to renew an ATP are that the
person is not ordinarily resident in Canada, or because information, statements
or other items included in the application are false or misleading. As the
Prothonotary himself observed, the MMAR are completely silent as to
where, when and how a party holding an ATP can use marihuana for medical
reasons.
[58]
Insofar as the complaints process is concerned, section 68 of the MMAR
provides that:
(1) An
inspector shall receive and make a written record of any complaint from the
public concerning a person who is a holder of an authorization to possess or
license to produce with respect to their possession or production of marihuana.
(2) The
inspector shall report to the Minister any complaint recorded under subsection
(1).
(3) The
Minister is authorized to communicate to any Canadian police force or any
member of a Canadian police force, any information contained in the report of
the inspector, subject to that information being used only for the proper
administration or enforcement of the Act or these Regulations.
[59]
Thus while complaints under section 68 of the MMAR may
potentially result in the Minister reporting the holder of an ATP to the
police, the fact that the permit holder may have failed to comply with federal,
provincial or municipal legislation does not, on the face of the Regulations,
provide the Minister with the authority to refuse to renew the permit.
[60]
It also bears noting that there is no request in the application form
for the renewal of an ATP for a representation or warranty regarding the
applicant’s compliance with federal, provincial and municipal legislation.
Consequently, there could be no false or misleading representation in this
regard that could lead to the refusal of a renewal.
[61]
As a consequence, to the extent that Ridgeview seeks to prohibit Health Canada
from renewing Mr. Gibson’s ATP because of his alleged non-compliance with
federal and provincial legislation, it is plain and obvious that the
application is bereft of any chance of success.
The Application is Brought for a Collateral Purpose
[62]
I am also satisfied that the Prothonotary’s conclusion that this
application was not being brought for a collateral purpose was based upon a
misapprehension of the facts.
[63]
In the Schreiber case, Justice MacKay held that it is “not within
this Court’s practice to issue a declaration about the state of the law,
without argument based on conflicting interests, for use in another forum”: at
para. 42.
[64]
The Prothonotary distinguished Schreiber, in part because of his
belief that “there are no current prosecutions under way for which Ridgeview
could make use of pure declarations of law”. With respect, that is not
entirely accurate. While the proceeding before the Ontario Human Rights
Tribunal is not technically a “prosecution”, it is an ongoing legal proceeding
in another forum.
[65]
The fact that Ridgeview is seeking declaratory relief in this Court to
assist it in its human rights case was made very clear by counsel for
Ridgeview’s submission at the hearing of the appeal that his client is coming
to the Federal Court to have it declared “that by not welcoming this gentleman
[Mr. Gibson] into his premises he is not being discriminatory, he [Mr. Kindos]
is just complying with the law”.
[66]
There are also no “conflicting interests” between Ridgeview and the
Attorney General in this case with respect to the declaratory relief being
sought. The Attorney General does not dispute the basic legal propositions
that Ridgeview asks this Court to declare.
[67]
That is, the Attorney General agrees with Ridgeview that the smoking of
marihuana in a public place, or at any establishment licensed under the Liquor
Licence Act of Ontario, is not authorized by the permits issued by Health Canada.
The Attorney General also agrees that Health Canada does not have authority to
authorize the possession or use of medical marihuana by anyone in a manner that
is contrary to the laws of Ontario.
[68]
It appears that the only practical benefit to be derived by Ridgeview
from such declarations would be to assist it in its defence in the human rights
proceeding, and in any future potential proceedings under Ontario liquor laws.
In the circumstances, I am satisfied that the application is improper.
Conclusion on the Appeal
[69]
For the foregoing reasons, I conclude that the Prothonotary’s decision
was clearly wrong, as it was based upon a misunderstanding of the legislative
scheme and a misapprehension of the facts. I am also satisfied that it is
plain and obvious that the application for judicial review is bereft of any
chance of success. Consequently, the appeal will be allowed, and the Notice of
Application is struck as against the Attorney General of Canada.
Costs
[70]
I see no reason why costs should not follow the event, both here and for
the proceeding before the Prothonotary. Counsel for the Attorney General has
suggested a total of $3,000 as being an appropriate figure for costs for both
proceedings. Counsel for Ridgeview suggested that it should be entitled to
costs in the amount of $15,000 if it was successful in resisting the appeal. In
my view, the figure suggested by the Attorney General is far more appropriate.
The Motion to Amend the Notice of Application
[71]
After the Attorney General filed his appeal of the Prothonotary’s Order,
Ridgeview brought a motion seeking leave to amend its Notice of Application to
include a request for the following additional relief:
3A. an order
in the nature of mandamus requiring Health Canada to comply with section
68 of the Marihuana Medical Access Regulations, SOR/2001-227, in respect
of the formal complaints made in relation to the conduct of the Respondent
Steve Gibson;
[72]
The relief sought through the amendment is directed specifically at
Health Canada, who is represented in this proceeding by the Attorney General of
Canada. Given that Ridgeview’s Notice of Application has been struck out as
against the Attorney General of Canada, it follows that there is no longer
anything to amend, and the motion is dismissed without prejudice to Ridgeview’s
right to commence a separate application for mandamus. The Attorney
General shall have his costs of this motion, fixed in the amount of $300.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The Attorney General of Canada’s appeal is allowed. The Order
of the Prothonotary is set aside, and the Notice of Application for judicial review
is struck out as against the Attorney General of Canada.
2. The Attorney General of Canada shall have his costs relating
to the motion to strike, both here and before the Prothonotary, in the total
amount of $3,000.
3. Ridgeview’s motion to amend its Notice of Application is
dismissed without prejudice to Ridgeview’s right to commence a separate
application for mandamus Costs of the motion are awarded to the Attorney
General in the amount of $300.
“Anne
Mactavish”
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