Garber v. Canada (Attorney General) et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Saunders, Bennett and Garson, JJ.A.
• Citation: 2015 BCCA 385,(2015), 377 B.C.A.C. 75 (CA)
• Date: 27 May 2015

Garber v. Can. (A.G.) (2015), 377 B.C.A.C. 75 (CA);

    648 W.A.C. 75

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. SE.012

Kevin Garber (respondent/plaintiff) v. Her Majesty the Queen in the Right of Canada as represented by the Attorney General of Canada and Her Majesty the Queen in the Right of Canada as represented by the Minister of Health (appellants/defendants)

(CA41883)

Philip Newmarch (respondent/plaintiff) v. Her Majesty the Queen in the Right of Canada as represented by the Attorney General of Canada and Her Majesty the Queen in the Right of Canada as represented by the Minister of Health (appellants/defendants)

(CA41919)

Timothy Sproule (respondent/plaintiff) v. Her Majesty the Queen in the Right of Canada as represented by the Attorney General of Canada and Her Majesty the Queen in the Right of Canada as represented by the Minister of Health (appellants/defendants)

(CA41920; 2015 BCCA 385)

Indexed As: Garber v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Saunders, Bennett and Garson, JJ.A.

September 16, 2015.

Summary:

Canada applied for a temporary stay of three actions in which the plaintiffs challenged the constitutional validity of the Marihuana for Medical Purposes Regulations, SOR/2013-119. The actions were similar to claims brought by different plaintiffs in a Federal Court action known as Allard v. Her Majesty the Queen in Right of Canada ("Allard").

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 835, dismissed the application. Canada appealed, submitting that the judge erred by failing to consider: (1) the national application of a Federal Court decision on the constitutionality of the Regulations, and the resulting legal consequences of potentially inconsistent orders from the Federal Court and the Supreme Court of British Columbia; and (2) the fact that Canada was treating Allard as a national test case and that it agreed that it would be bound nationally by the outcome in that case.

The British Columbia Court of Appeal dismissed the appeal. Neither ground of appeal established an error in principle, nor did the judge's reasons demonstrate that she failed to give sufficient weight to all relevant considerations. The judge weighed various factors, considering always that Allard, in any event, would not produce a final order in these actions and that these plaintiffs had raised some issues that differed from those being addressed in Allard.

Courts - Topic 5696

Provincial courts - Jurisdiction or powers - Stay pending litigation of constitutional issue - See paragraphs 1 to 29.

Courts - Topic 5696.2

Provincial courts - General - Jurisdiction or powers - Stay in favour of jurisdiction of Federal Court of Canada - See paragraphs 1 to 29.

Practice - Topic 5276

Trials - General - Stay of proceedings - Stay of trial - See paragraphs 1 to 29.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - See paragraphs 1 to 29.

Cases Noticed:

R. v. Smith (O.E.) (2015), 472 N.R. 1; 372 B.C.A.C. 1; 640 W.A.C. 1; 2015 SCC 34, refd to. [para. 6].

Allard et al. v. Canada (2014), 451 F.T.R. 45 (F.C.), affd. (2014), 466 N.R. 173 (F.C.A.), refd to. [para. 8].

Conseil Scolaire Francophone de la Colombie-Britannique et al. v. British Columbia et al., [2013] B.C.T.C. Uned. 751; 2013 BCSC 751, refd to. [para. 11].

472900 B.C. Ltd. v. Thrifty Canada Ltd. (1998), 116 B.C.A.C. 233; 190 W.A.C. 233; 168 D.L.R.(4th) 602; 57 B.C.L.R.(3d) 332 (C.A.), dist. [para. 16].

Wenngatz v. 371431 Alberta Ltd. et al. (2013), 337 B.C.A.C. 291; 576 W.A.C. 291; 2013 BCCA 225, dist. [para. 16].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 18].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, refd to. [para. 18].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 18].

Ainsworth Lumber Co. v. Canada (Attorney General) et al. (2001), 149 B.C.A.C. 263; 244 W.A.C. 263; 2001 BCCA 105, dist. [para. 25].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia et al.

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 25].

Counsel:

J.E. Brongers and B.J. Wray, for the appellants;

K.I. Tousaw, for the respondents.

This appeal was heard, at Vancouver, B.C.,on May 27, 2015, by Saunders, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following decision for the court on September 16, 2015.