[2017] 3 F.C.R. D-7
Food and Drugs
Appeal from Federal Court decision (2015 FC 1331) dismissing application for judicial review of Minister of Health’s failure to respond to appellants’ request to make submissions to Health Canada on application of respondent International Herbs Medical Marijuana Ltd. (proponent) to become licensed medical marijuana producer pursuant to Marihuana for Medical Purposes Regulations, SOR/2013-119 (repealed), to establish production facility in Delta, British Columbia — Appellants, corporation, union conducting business on adjacent property of proposed production facility opposing respondent’s application since believing in particular that proximate operation of marijuana cultivation detrimental to health, safety, security of members, employees — Federal Court determining that neither Regulations nor common law providing appellants with right to participate in licensing process for medical marijuana production — Appellant P&S Holdings Ltd. owning neighbouring property to proposed production site — Property used in particular as offices, trade school, restaurant — Municipality of Delta controlling location of medical marijuana production facilities by way of site-specific approval given coming into force of Regulations — Proponent submitting application to Delta Municipality to rezone proposed production site for medical marijuana production; appellants expressing concerns orally, in writing — Nevertheless, Delta proceeding with proposed rezoning as recommended by municipality’s Community Planning and Development Department — Thereafter, appellants applying to Minister for participatory standing in licensing process — In judicial review, seeking to be heard on how interests stand to be affected by licensing of marijuana growing operation adjacent to property, seeking order of mandamus directing Minister to grant their request for participatory standing, opportunity to be heard in licensing process — Federal Court determining that Regulations not affording participatory rights to strangers to licensing process such as appellants — Only various parties directly implicated in licensing process afforded right to be heard since Regulations not contemplating any role for parties such as appellants in licensing process; therefore, strangers to licensing process excluded from entitlement to participation in process by necessary implication — As to zoning process, Federal Court determining that appellants’ objections generic in nature, that appellants having right to participate in municipal zoning process if having concerns regarding proposed use for neighbouring property but having no right (statutory or common law) to participate in licensing process — Whether Federal Court erring in finding that Minister not owing appellants duty of procedural fairness, therefore not having to grant them participatory rights in licensing process; whether Federal Court could find that any common law duty of procedural fairness having been ousted by regulatory scheme — Federal Court aware of distinction between application of duty of fairness, content in particular setting — In determining whether Minister owing applicants duty of fairness such that entitled to participate in licensing process, Federal Court entitled to look at nature, purpose of statutory scheme at issue — Common law duty of fairness not free-standing; reviewing courts must examine scheme according to which impugned administrative decision taken — Federal Court considering nature, purpose of regulatory scheme, finding that appellants strangers to process; therefore, not entitled to minimum degree of participation — Appellants emphasizing Regulations, s. 26(1)(h) pertaining to public health, safety, security in arguing that interests thereof standing to be affected by outcome of Minister’s determination given proximity of proposed site to appellants’ property but clear from reading of licensing scheme set by Regulations, Regulatory Impact Analysis Statement that security key concern for Health Canada — Conditions to be met before licence can issue reflecting those preoccupations — Based on Regulations, clear that Minister’s foremost concern when deciding whether to issue licence must be to ensure security, safety of commercial production, distribution of marijuana for medical purposes — Parliament would exceed jurisdiction, trench upon provincial heads of power if it were to delegate to Minister power to determine where marijuana production facilities may be geographically located — Location of production facilities pure zoning issue falling either within power of provincial legislation to make laws in relation to municipal institutions or in relation to local or private matters — Federal, provincial levels of government harmonizing legislation, deferring to one another for matters not squarely falling within jurisdiction — Appellants’ concerns not relating to health, safety, security as argued but rather generic in nature, pertaining to location of proposed production site — Therefore, Federal Court perfectly justified to find that appellants’ objections having nothing to do with licence being granted to applicant in particular but rather general in nature relating to anyone building marijuana production facility next to property — Concerns pertaining to location dealt with by local authorities in exercise of jurisdiction respecting zoning, other local matters — Whether appellants having further opportunity or right to participate in rezoning process immaterial to issue as to whether appellants having right to participate in medical marijuana production licensing process — Regulatory licensing scheme cannot be used to bypass decision that has been delegated to municipal authorities, to broaden impermissibly Minister’s mandate — While determination sufficient to dismiss appeal, other comments made regarding implications to be drawn from Regulations’ silence as to participatory rights of third parties — In present case, no express language abrogating participatory rights of third parties but Regulations addressing explicitly participatory rights of those directly affected by licensing scheme — However, Regulations silent on participatory rights of opponents to licence like appellants but also specifically granting such rights to number of individuals — Clear from sections mentioned in Regulations that Governor in Council, Minister, in drafting Regulations knew exactly to whom offering procedural fairness rights; omission of third parties like appellants thus not oversight — Construction of Regulations by Federal Court therefore entirely reasonable — Appeal dismissed.
P. & S. Holdings Ltd. v. Canada (A-561-15, 2017 FCA 41, de Montigny J.A., judgment dated March 1, 2017, 19 pp.)