Ridgeview Restaurant Ltd. v. Canada (Attorney General) et al., (2010) 368 F.T.R. 255 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: April 27, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 368 F.T.R. 255 (FC);2010 FC 506

Ridgeview Restaurant Ltd. v. Can. (A.G.) (2010), 368 F.T.R. 255 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. MY.033

Ridgeview Restaurant Limited (applicant) v. The Attorney General of Canada and Steve Gibson (respondents)

(T-561-09; 2010 FC 506)

Indexed As: Ridgeview Restaurant Ltd. v. Canada (Attorney General) et al.

Federal Court

Mactavish, J.

May 10, 2010.

Summary:

Health Canada issued an authorization to possess (ATP) dried marijuana for medical purposes to Gibson. Ridgeview Restaurant Ltd. alleged that Gibson displayed his marijuana to restaurant patrons, and smoked his marijuana in front of the restaurant. Ridgeview barred Gibson from the restaurant. Gibson filed a complaint with the Ontario Human Rights Commission. The complaint was currently pending. Ridgeview filed three complaints with Health Canada, under s. 68 of the marijuana Medical Access Regulations. It asserted that Gibson's conduct put it at risk of being fined, together with the loss of its liquor licence. Health Canada took no steps. Ridgeview commenced an application for judicial review, seeking certain declarations and an order in the nature of prohibition. The Attorney General brought a motion to strike the application. A Prothonotary dismissed the motion. The Attorney General appealed.

The Federal Court allowed the appeal and struck out the application for judicial review as against the Attorney General. The Prothonotary's decision was based on a misunderstanding of the legislative scheme and a misapprehension of the facts. Also, it was plain and obvious that the application could not succeed because Ridgeview lacked standing.

Administrative Law - Topic 3308

Judicial review - General - Bars - Collateral attack - [See fifth Administrative Law - Topic 3357 ].

Administrative Law - Topic 3346

Judicial review - General - Practice - Orders - [See fourth Administrative Law - Topic 3357 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - [See third Administrative Law - Topic 3357 ].

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (including motion to strike) - The Federal Court set out the legal principles governing motions to strike Notices of Application - "Applications for judicial review are intended to be summary proceedings, and motions to strike Notices of Application add greatly to the cost and time required to deal with such matters. Moreover, ... the striking out process is more feasible in actions than in applications for judicial review. This is because there are numerous rules governing actions which require precise pleadings as to the nature of the claim or the defence, and the facts upon which the claim is based. There are no comparable rules governing Notices of Application for judicial review. As a consequence, the Federal Court of Appeal has observed that it is far more risky for a court to strike out a Notice of Application than a conventional pleading. Different economic considerations also come into play in relation to applications for judicial review as opposed to actions" - See paragraphs 26 and 27.

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (including motion to strike) - The Federal Court stated that "the Federal Court of Appeal has determined that applications for judicial review should not be struck out prior to a hearing on the merits of the application, unless the application is 'so clearly improper as to be bereft of any possibility of success'. Moreover, '[s] uch cases must be very exceptional and cannot include cases ... where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion' ... Unless a moving party can meet this very stringent standard, the 'direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself.' ... The reason why the test is so strict is that it is ordinarily more efficient for the Court to deal with a preliminary argument at the hearing of the application for judicial review itself, rather than as a preliminary motion" - In this case, the court held that the Prothonotary erred in the application of those principles - See paragraphs 28 to 31.

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (including motion to strike) - Health Canada issued an authorization to possess (ATP) dried marijuana for medical purposes to Gibson - Ridgeview Restaurant Ltd. alleged that Gibson displayed his marijuana to restaurant patrons, and smoked his marijuana in front of the restaurant - Ridgeview filed three complaints with Health Canada, under s. 68 of the marijuana Medical Access Regulations - It asserted that Gibson's conduct put it at risk of being fined, together with the loss of its liquor licence - Health Canada took no steps - Ridgeview commenced an application for judicial review - The Attorney General brought a motion to strike the application - A Prothonotary refused to strike the application - The Federal Court allowed the appeal - It was plain and obvious that the application could not succeed because Ridgeview lacked standing - As such, the application was bereft of any possibility of success - There was no decision or "matter" directly affecting the rights or obligations of Ridgeview - The difficulties that Ridgeview had encountered with Gibson were clearly not the direct result of Health Canada's issuance of an "authorization to possess" to Gibson - Rather, they were the result of Gibson's alleged failure to comply with federal, provincial and/or municipal laws - Consequently, Ridgeview was not "directly affected" by Health Canada's decision to renew Gibson's ATP - See paragraph 52.

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (including motion to strike) - A Prothonotary refused to strike the applicant's Notice of Application brought in relation to an authorization to possess (ATP) dried marijuana issued by Health Canada to the respondent Gibson - The Federal Court allowed the Attorney General's appeal - The marijuana Medical Access Regulations were silent as to where, when and how a party holding an ATP could use marijuana for medical reasons - While complaints under s. 68 of the Regulations might potentially result in the Minister reporting the holder of an ATP to the police, the fact that the permit holder might have failed to comply with federal, provincial or municipal legislation did not, on the face of the Regulations, provide the Minister with the authority to refuse to renew the permit - As a consequence, to the extent that the applicant sought to prohibit Health Canada from renewing Gibson's ATP because of his alleged non-compliance with federal and provincial legislation, it was plain and obvious that the application was bereft of any chance of success - See paragraphs 54 to 61.

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (including motion to strike) - A Prothonotary refused to strike the applicant's Notice of Application brought in relation to an authorization to possess (ATP) dried marijuana issued by Health Canada to the respondent Gibson - Gibson had filed a complaint against the applicant and one of its owners, with the Ontario Human Rights Commission; the complaint was currently pending - The Federal Court held that the Prothonotary's conclusion that the application was not being brought for a collateral purpose was based on a misapprehension of the facts - While the proceeding before the Tribunal was not technically a "prosecution", it was an ongoing legal proceeding in another forum - The fact that the applicant was seeking declaratory relief to assist it in its human rights case was made "very clear" in the submission of counsel for the applicant - There were also no "conflicting interests" between the applicant and the Attorney General with respect to the declaratory relief being sought - The only practical benefit to be derived by the applicant would be to assist it in its defence in the human rights proceeding - Thus, the application was improper - In the end result, the court struck the Notice of Application as against the Attorney General - See paragraphs 62 to 68.

Administrative Law - Topic 4603

Judicial review - Declaratory action - Practice - Claiming declaratory relief along with other relief - [See fifth Administrative Law - Topic 3357 ].

Administrative Law - Topic 6411

Judicial review - Prohibition - General principles - When remedy not available - [See fourth Administrative Law - Topic 3357 ].

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review (incl. standard of review) - The first issue for the Federal Court was to identify the standard of review to be applied to the Prothonotary's decision -"[D]iscretionary orders of Prothonotaries ought not to be disturbed on appeal unless the questions raised in the motion are vital to the final issue of the case, or the orders are clearly wrong, in the sense that the exercise of discretion was based upon a wrong principle or a misapprehension of the facts" - The Attorney argued that the court should consider the matter de novo - A review of the jurisprudence revealed that the law was divided on the question, but that "the more recent jurisprudence of this Court has held that an appeal from the dismissal of a motion to strike does not raise a question that is vital to the final issues of the case, with the result that such a decision is subject to the more deferential standard of review - In the end result, the court did not need to resolve the question in this case, as it was satisfied that the Prothonotary erred in law by exercising his discretion based upon a misunderstanding of the legislative scheme and a misapprehension of the facts - See paragraphs 20 to 25.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See fourth Administrative Law - Topic 3357 ].

Food and Drug Control - Topic 1043

Drugs - Controlled drugs - General - Authorization to possess - [See fourth Administrative Law - Topic 3357 ].

Narcotic Control - Topic 6

General - Legislation - Exemptions - [See fourth Administrative Law - Topic 3357 ].

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - [See first Administrative Law - Topic 3357 ].

Practice - Topic 220

Persons who can sue and be sued - Individuals - Status or standing - Respecting validity of administrative action by government official or public body - [See third Administrative Law - Topic 3357 ].

Practice - Topic 2485

Writ of summons, endorsements, originating summons and originating notices - Originating notices (incl. judicial review) - Issue of - Effect of - [See first Administrative Law - Topic 3357 ].

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices (incl. judicial review) - Striking out - [See first and second Administrative Law - Topic 3357 ].

Cases Noticed:

Schreiber v. Canada (Attorney General), [2000] 1 F.C. 427; 174 F.T.R. 221 (T.D.), consd. [para. 18].

Merck & Co. et al. v. Apotex Inc., [2004] 2 F.C.R. 459; 315 N.R. 175; 30 C.P.R.(4th) 40; 2003 FCA 488, refd to. [para. 20].

Coffey v. Canada (Minister of Justice) (2005), 273 F.T.R. 92; 2005 FC 554, refd to. [para. 21].

Professional Institute of the Public Service of Canada v. Canada Customs and Revenue Agency (2002), 216 F.T.R. 96; 2002 FCT 119, refd to. [para. 21].

White (Peter G.) Management Ltd. v. Canada (2007), 314 F.T.R. 284; 158 A.C.W.S.(3d) 696; 2007 FC 686, refd to. [para. 24.

Chrysler Canada Inc. v. Minister of National Revenue et al., [2008] F.T.R. Uned. 746; [2009] 1 C.T.C. 14; 2008 FC 1049, refd to. [para. 24].

Apotex Inc. v. AstraZeneca Canada Inc., [2009] F.T.R. Uned. 71; 2009 FC 120, refd to. [para. 24].

AYC Pharmacy Ltd. et al. v. Canada (Minister of Health) et al., [2009] F.T.R. Uned. 348; 95 Admin. L.R.(4th) 265; 2009 FC 554, refd to. [para. 24].

Horseman v. Horse Lake First Nation, [2009] F.T.R. Uned. 224; 2009 FC 368, refd to. [para. 24].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [1999] 2 F.C. 211; 163 F.T.R. 109, refd to. [para. 24].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.), consd. [para. 26].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Addison & Leyen Ltd. et al. v. Canada Customs and Revenue Agency, [2006] F.C.R. 532; 346 N.R. 238; 2006 FCA 107; revd. on other grounds, [2007] 2 S.C.R. 793; 365 N.R. 62; 2007 SCC 33, refd to. [para. 29].

CanWest Mediaworks Inc. v. Canada (Minister of Health) et al., [2007] F.T.R. Uned. 485; 159 A.C.W.S.(3d) 193; 2007 FC 752, affd. (2008), 382 N.R. 365; 2008 FCA 207, refd to. [para. 34].

Apotex Inc. v. Governor-in-Council et al. (2007), 370 N.R. 336; 63 C.P.R.(4th) 151; 2007 FCA 374, refd to. [para. 37].

Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229; 61 F.T.R. 4; revd. (1995), 185 N.R. 48; 56 A.C.W.S.(3d) 316, refd to. [para. 48].

Nova Scotia (Attorney General) v. Ultramar Canada Inc. et al., [1995] 3 F.C. 713; 100 F.T.R. 161 (T.D.), refd to. [para. 48].

Rothmans of Pall Mall Canada Ltd. and Imperial Tobacco Ltd. v. Minister of National Revenue et al., [1976] 2 F.C. 500; 10 N.R. 153; 67 D.L.R.(3d) 305 (F.C.A.), refd to. [para. 49].

Statutes Noticed:

Controlled Drugs and Substances Act Regulations (Can.), Marihuana Medical Access Regulations, SOR/2001-227, sect. 68 [para. 58].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18.1(1) [para. 32].

Marihuana Medical Access Regulations - see Controlled Drugs and Substances Act Regulations (Can.).

Counsel:

Gary D. Graham and Sean Morrison, for the applicant;

Sean Gaudet and James Gorham, for the respondent (AGC);

No one appearing for the respondent (Steve Gibson).

Solicitors of Record:

Gowling Lafleur Henderson, LLP, Hamilton, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent (AGC).

This appeal was heard at Toronto, Ontario, on April 27, 2010, before Mactavish, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated May 10, 2010.