Medical Marijuana vs. Liquor Licence Feud Continues

[Weedpipe]

TORONTO -- The Federal Court has declined to throw out the case of an Ontario restaurant owner who wants one of his former patrons stripped of his right to smoke medical marijuana.

Ted Kindos, owner of Gator Ted's Tap and Grill in Burlington, Ont., is seeking a declaration from the Federal Court that people with a permit to smoke medicinal marijuana cannot do so in a public place or any licensed establishment.

He also wants the court to order Health Canada not to renew the permit of his former patron, Steve Gibson, arguing Mr. Gibson has not been in compliance with its terms of use.

Federal government lawyers sought to dismiss the case, arguing there is no dispute that requires adjudication because Health Canada does not purport to authorize permit holders to smoke marijuana in violation of any applicable law or in an establishment subject to Ontario's liquor licensing laws.

In his decision released Monday afternoon, Federal Court Prothonotary Kevin Aalto said Gator Ted's is "caught in a conundrum" between Ottawa's medical marijuana regulations and its obligations under the regulations of the Liquor License Act of Ontario.

The restaurant "ought to have its day in this court," the decision said.

A prothonotary performs some of the same functions as a judge in the Federal Court.

Mr. Kindos is facing a human-rights complaint for asking Mr. Gibson not to light up outside his business. Mr. Gibson contends in his human rights complaint that he's being discriminated against because he has a disability.

Mr. Kindos argues he could lose his liquor licence if he allows Mr. Gibson to smoke or hold the controlled substance in or out front of his restaurant.

Where an authorized permit holder uses marijuana is not governed by federal regulations but Ottawa is considering whether it should be.

Health Canada said it is looking at developing options that would "clarify and limit" where permit holders could smoke.



News Hawk- Weedpipe 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: National Post
Author: Jordana Huber
Contact: National Post
Copyright: 2009 National Post Inc
Website:Medical marijuana vs. liquor licence feud continues

 

[fatigues]

While I have not yet read the prothnotory's Endorsement/ Reasons for Decision, everything I have read in this matter leads me to believe this will be appealed to a judge who will throw out the case, as:

• Kindos has no standing to seek any relief in relation to Gibson's Authorization to Possess;
• there is no authorization granted by the issuance of an ATP and where Gibson may choose to smoke cannabis he possesses under it - that's not a matter within the constitutional authority of the Federal Government to regulate. That's property and civil rights - a matter within exclusive provincial jurisdiction;
• the question of where Gibson can or cannot smoke medical marijuana is an issue for the Ontario Human Rights Commission and the Human Rights Tribunal. In fact, he's already been before it and it appears he fel that he was destined to lose there. Kindos already knows how that tribunal is going to rule (in favour of Gibson) - which is why he commenced this application in order to circumvent it;
• Kindos' complaint, if he has one, will be with the LLBO, if they deny him a renewal of his liquor license - which they haven't even done yet Kindos' entire cause of action is speculative!;
• This is a backdoor attempt by a third party to obtain an injunction from the wrong court. If Kindos seeks an injunction against a person in Ontario, he needs to seek that injunction from the Superior Court of Justice;
• Health Canada has no discretion to deny an ATP authorized under the MMAR to a patient who meets the medical criteria necessary to obtain it; and,
• The Federal Court of Canada has no jurisdiction over *any* aspect of this application. How can the Federal Court of Canada purport to judicially review an application for renewal from a patient that has not yet been allowed or denied, let alone purport to do so at the behest of someone other than the patient? The Federal Court of Canada is not a court of inherent jurisdiction.

In short, while I am not inclined to heap public scorn on members of the judiciary (whether that be a Judge, Master of federal Prothnotory), I am inclined to depart from that self-imposed restraint here.

An articling student can see this should have been struck out under Rule 221(1)(a) for failing to disclose a reasonable cause of action. It is plain and obvious.

This is why we have appeals.