Federal Court of Appeal sides with licensed pot grower in discrimination claim
The Federal Court has ordered the Canadian Human Rights Commission to reconsider a discrimination claim by a licensed medical marijuana grower after the Bank of Nova Scotia called in his up-todate mortgage.
Wendy Hulton of Dickinson Wright LLP said last week’s ruling reflects the evolution of popular and judicial attitudes to marijuana, particularly with its impending legalization for recreational use less than a year off.
“The facts is this case arose in 2009, which was three sets of regulations ago,” she said. “Justice (Keith) Boswell recognized this, and bent over backwards to send off signals that things have changed since then.”
Boswell found the commission had not reviewed “obviously crucial information” in making its decision. Its investigator did not determine whether the bank had a pre-existing policy for homeowners with grow ops, and failed to consider the import of internal bank emails referring to the growop as an issue and questioning its legality despite the existence of the license.
“A reasonable person would agree that this evidence was crucial because it lends credence to the applicant’s position that his son’s growing of medical marijuana may have been a factor in the bank’s decision to call in the mortgage,” Boswell wrote.
Boswell’s decision came some seven years after Robert McIlvenna of Sudbury, Ont., applied for a line of credit increase for renovations to the home where his son, his daughter-in-law, and their three children resided.
After the work began, an appraiser attended the premises and learned that the son had a licence to grow and consume medical marijuana. The second-storey addition to the house, he also discovered, was to accommodate the marijuana plants required in the treatment of the son’s disabilities.
Not only did the bank deny the increase, but it demanded immediate repayment of the mortgage because McIlvenna had violated its terms. To accommodate the cannabis, McIlvenna had made extensive renovations to the home, which were 40 per cent complete at the time the bank re-appraised the property.
The terms of the mortgage required McIlvenna to keep the property in good condition, inform the bank of planned improvements, provide a plan and not deviate from the plan. The bank alleged that McIlvenna had breached these conditions, reducing the value of the house by $47,000, or $8,900 less than the balance owing.
McIlvenna countered that the bank had called the mortgage only because “it learned that there is cannabis growing on the property.” He filed a complaint with the commission. In 2012, the commission dismissed the complaint, but ultimately the Federal Court of Appeal quashed the decision and referred the case back to the commission.
In a 2016 ruling, the commission again dismissed McIlvenna’s complaint without a hearing, reiterating its view that the bank’s “decision to call in the mortgage was not based on a prohibited ground of discrimination.”
But Boswell concluded that the investigation on which the commission’s ruling was based was “unreasonable” because the investigator had failed to address the issue of the bank’s pre-existing policies and the issues raised by the internal emails in determining whether the presence of marijuana had been a factor in calling the mortgage.
“The Commission’s decision dated June 16, 2016, is set aside and the matter is returned to the commission for re-determination and, if necessary, further investigation in accordance with the reasons for this judgment,” Boswell ordered.
The judge also awarded McIlvenna costs.