Federal Court sides with medical pot grower

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 “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.