A highly-anticipated decision was released by Madam Justice Pollak of the Ontario Superior Court on October 16, 2017, granting the City of Toronto an interlocutory injunction against illegal cannabis dispensaries and their landlords which prohibits the dispensaries from operating until a final hearing is conducted in December 2018.
In her 46-paragraph decision, Justice Pollak focused heavily on whether the balance of convenience fell in favour of granting the City’s requested injunction vs. allowing the dispensaries to remain open pending a final adjudication in December 2018.
Justice Pollak summarized the lengthy amount of evidence put forward by each side before stating that
“this court cannot find, on the basis of the evidence before it, that the public interest would be greater served by the continued operation of the clinics than maintaining the existing regulatory scheme. Rather, I find that the balance of convenience lies with Toronto as the public interest would be greater served by granting interlocutory relief to Toronto.”
In reaching this conclusion Justice Pollak noted that the dispensaries carried a high burden of proof in light of the fact that at law there exists a presumption that a validly enacted law produces a public good.
Also of note is that the court distinguished the Allard decision, agreeing with the City and the Attorney General that Allard is a factually very different and distinguishable case.
Although the balance of convenience branch was the primary factor in the decision, Justice Pollak also went on to find that the City had established that it would suffer irreparable harm if the injunction was not granted.
In the result, the dispensaries and their owner / operators were ordered not to use the subject properties or any other properties in the City of Toronto to sell, store or distribute marijuana.
The dispensaries did make out with a very small victory, with the court declining to make an order that the properties be closed down in the event that the dispensaries failed to adhere to the injunctive relief ordered and directing the police to enforce said closure. Justice Pollak noted that the City of Toronto Act, 2006 did not authorize such relief.
However, it is unlikely that police involvement will be necessary to ensure compliance as the landlord / land owners of the subject properties were also ordered by the court to prohibit the use of the subject properties that they own to sell, store or distribute marijuana. One seriously doubts whether any commercial landlord would be willing to put their neck on the line and violate a court order simply to allow an illegal business to continue to operate from their premises.