Dispensaries fight back

Photo: Nicholas Johansen

The City of West Kelowna and two dispensaries have filed petitions in Kelowna Supreme Court.

UPDATE: 5:20 p.m.

The lawyer representing two dispensaries that were denied business licences from the City of West Kelowna argued Wednesday the city was not allowed to just change their mind "willy nilly," after granting Black Crow Herbals a business licence for three years. 

The city granted a business licence to Black Crow Herbals in October 2014, and the medical cannabis dispensary renewed the licence in two subsequent years, until the city revoked it in 2017 and denied their application in 2018.

“They cannot for instance give you a licence to have a shoe factory and then take away the licence to have a shoe factory if nothing changed,” argued Stan Tessmer, counsel for Black Crow Herbals and Okanagan Cannabis Solutions Society.

Justice Murray Block asked if the city had the authority to simply change their mind.

“It's not reasonable to use a reason you could have used and you decided not to use, to then use it after somebody goes to that expense and sets up the business based on your consent,” Tessmer said.

“They have to treat business people fairly and they have to treat land owners fairly.”

Additionally, Tessmer argued the amendment West Kelowna made to their bylaws in 2015 that prohibited giving a licence to a business in contravention of the Controlled Drugs and Substances Act was unconstitutional.

“The bylaw prohibiting a class of business from being licensed is contrary to municipal powers,” he said, explaining the city lacks the jurisdiction to exercise criminal law power. 

During his arguments, Tessmer pointed to the cities of Vancouver and Victoria that have chosen to license medical cannabis dispensaries.

Arguments are expected to conclude Thursday.

ORIGINAL: 2:45 p.m.

The City of West Kelowna is looking to shut down two cannabis dispensaries, but the pot shops are pushing back.

The city is petitioning the courts to apply an injunction against Black Crow Herbal Association and Okanagan Cannabis Solutions Society, which are run by the same people, that will stop them from selling cannabis from locations on Westgate Road and Main Street.

On Tuesday, the city's lawyers began arguing the dispensaries are contravening zoning and licensing bylaws, as the city no longer issues business licences for cannabis dispensaries.

“The city has ordered the respondents to cease carrying on or permitting the sale or dispensing of marijuana at the properties, but such activities have continued at both properties,” the city says.

The dispensaries, meanwhile, have filed their own petition, seeking a judicial review of West Kelowna's decision to cancel Black Crow's business licence. Additionally, they are looking to the courts to cancel all bylaw tickets against the dispensaries.

Stan Tessmer, who's representing the two dispensaries, appealed the denial of the business licences in January, but council ultimately denied the appeal, forcing the issue before the courts. 

Black Crow was granted a business licence by the city and began operating in October 2014. The city renewed the licence twice.  

In June 2016, Black Crow owner Robert Jaenicke opened Okanagan Cannabis Solutions Society as a non-profit society, which at the time, did not require a business licence.

A year later, the city amended its bylaws to require non-profits to carry a business licence. Three months later, West Kelowna council cancelled Black Crow's business licence due to "the illegal sales of marijuana."

“The decision to revoke Black Crow's business licence on Oct. 10, 2017 represented a sudden and arbitrary change in the city's policy towards medicinal cannabis dispensaries,” the dispensaries' petition reads.

The dispensaries claim the City of West Kelowna has “stepped into the shoes of the federal government,” by incorporating the Criminal Code and Controlled Drugs and Substances Act into its bylaw.

“The RCMP ... has declined to take enforcement action,” the petition states. “The city is using the business licensing process as a backdoor enforcement mechanism to usurp jurisdiction over the criminal process.”