When it comes to cultivating large quantities of cannabis plants for medical purposes, jurisdictional zoning bylaws can sometimes be murky, as was evident in the recent Ontario Superior Court of Justice ruling on an injunction motion.
The question was how is the area considered a village commercial “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 facility]. We know that it would be a contextual analysis,” says lawyer 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)  1 S.C.R. 311, and issued an interlocutory injunction to the respondents, 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 another licensed facility in a properly zoned area until then.
Russell Bennett, lawyer at Cannabis Law and Bennett & Company in Toronto, says this case is troublesome from a constitutional perspective because the personal production of medicinal cannabis is constitutionally protected under s. 7 of the Charter (also seen similarly in R. v. Smith  and Allard v. Canada ).
“The real issue here is how townships and municipalities can best accommodate personal medical cannabis production instead of prohibiting it or restricting it,” he says.
He says that Tay (Township) v. Fan could have been appealed based on “an error of law” on applying the test of an interlocutory injunction, as one of the key components of proving irreparable harm wasn’t met.
“The error of law in applying the third branch of the RJR-MacDonald test is failing to see that when balancing the public interest with the inconvenience of the defendants, that it will be the defendants who will suffer the greater harm from the granting of the interlocutory injunction, pending a decision on the merits,” says Bennett. “Public interest 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, saying 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 benefit. He was growing plants for four people,” he says. “Number two, he was given three years almost 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 ensure 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 message” because it would undermine the jurisdictional authority of the Township of Tay and its ability to enforce its bylaws.
“What would be useful is fleshing 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 cannabis cultivation zoning bylaw cases similar to Tay (Township) v. Fan will continue to become commonplace, now that recreational 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 between growing medical cannabis for personal use, as licensed by Health Canada, and growing medical cannabis as a business,” says Bennett. “The two are very different.”