Brad Styles and Cindy Pendergast of Happy Buddha Cannabis have much to smile about after a court ruled in their favour in their dispute with the Town of Sidney over whether their proposed business can operate on Beacon Avenue as B.C. Supreme Court Justice Jennifer Power ordered the municipality to reconsider the application. (Black Press Media File)

Brad Styles and Cindy Pendergast of Happy Buddha Cannabis have much to smile about after a court ruled in their favour in their dispute with the Town of Sidney over whether their proposed business can operate on Beacon Avenue as B.C. Supreme Court Justice Jennifer Power ordered the municipality to reconsider the application. (Black Press Media File)

Court strikes down Sidney’s denial of proposed cannabis store

Justice Jennifer Power orders municipality to reconsider application and pay court costs

A court has set aside Sidney’s decision to deny what would have been the community’s first recreational cannabis store for reasons of “illegality,” according to the lawyer representing the business.

John Alexander, representing Happy Buddha Cannabis, said the municipality’s policy requiring transparent windows along Beacon Avenue directly contradicted provincial regulations from the Liquor Control and Licensing Branch (LCRB) that at the time required opaque windows.

Sidney council had denied plans by Cindy Pendergast and Brad Styles to open Happy Buddha Cannabis in the 2400 block of Beacon Avenue by a vote of 4-3, with opponents pointing to the municipality’s requirement for transparent windows on Beacon Avenue among other reasons.

Several weeks later, the business started legal proceedings against the municipality, in part on the basis that the municipality cannot require the business to do something that is against provincial law.

“A municipal government cannot require what a provincial government prohibits,” said Alexander at the time. “Provincial law trumps local municipal law.”

Justice Jennifer Power of the British Columbia Supreme Court appears to have agreed with this argument in Wednesday’s ruling.

“While the judge hasn’t made any specific orders about it, the judge said that the consideration, whether it is in the policy or not, should not conflict with the provincial regulation,” said Alexander.

“She didn’t go so far as to strike out the policy, but she certainly made the comment that it was a direct contradiction, and when they [council] reconsider it [the application], they can’t reconsider it in a way that continues that direct contradiction.”

RELATED: Plans for pot shop in Sidney spark back to life

RELATED: Sidney’s first-ever pot store application flames out before council

Ironies of ironies: the provincial government dropped the requirement for opaque windows last month, well before the ruling. In other words, the previous conflict between municipal and provincial regulations has disappeared, leaving the application in compliance with both.

Alexander also said that the judgment found that the municipality failed to follow process in hearing the application. “They didn’t conduct the public consultation properly and they did not report to the province the information,” he said.

“They were supposed to have gathered the views of the residents, provided those views to the province and also confirm what they did in order to gather those views. This is purely my own speculation, but the Town council would have been hard pressed to say that there were residents who were opposed to this. My understanding is nobody was opposed.”

While the proposal generated some voices of opposition at the time of council’s decision, public submissions largely ran in favour of the application.

The ruling means that council must reconsider its response to the province and “to do so properly, taking into account the view of residents,” said Alexander, adding that the court did not set a deadline.

Finally, the court also ordered Sidney to pay the business’ court fees. “It could be $10,000, $12,000, $14,000, something around there,” said Alexander.

The timing of Wednesday’s ruling raises questions about why the case continued in light of the recent regulatory changes and conciliatory signals from the business following the provincial announcement.

“I don’t really know the answer to that other than to say that the lawyers were in the process of talking and the judge yesterday [Tuesday] basically sent a note to us, saying ‘I’m releasing my reasons tomorrow [Wednesday] morning.’ In fairness to the discussions between the lawyers, the judge had obviously made up her mind, made a decision and didn’t think that this recent provincial change really affected her decision. So she just decided to release it.”

This timing suggests that Sidney’s apparent failure to consult rather than the regulatory issues around windows might have played a bigger role in the ruling.

Randy Humble, Sidney’s chief administrative officer, said in a note to the Peninsula News Review that the municipality is currently reviewing the details of the decision after being made aware of it.

“Given the recent significant changes to the LCRB’s regulations regarding the elimination of the requirement for opaque windows, staff recently received a revised referral from the LCRB based upon a revised window design from Happy Buddha,” he said. “Prior to the judge’s decision, staff intended to bring the revised referral forward to council for review and consideration as soon as practicable at a future council meeting.”

Pendergast welcomed the court’s decision in promising that the business would soon re-submit its application, while also lowering expectations.

“A massive thank you to our Judge Power, our families and friends and the wonderful folks from this community who have reached out to us and supported us in one of the most challenging times of our lives,” she said. “And we’re not there yet. We still need council approval to proceed and we will be asking folks to let Sidney know they support us.”

Alexander, for his part, predicts that this decision will be a “shot in the arm” for local retail along Beacon Avenue.


Like us on Facebook and follow @wolfgang_depner

wolfgang.depner@peninsulanewsreview.com

cannabisfeaturedSidney

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A video captured by Twitter user Teddy Jenner of a fire in Beacon Hill Park the night of Jan. 21, 2021. (Twitter/@OfftheCrosseBar)
Fire rips through tents, wooden structures in Beacon Hill Park

Emergency crews say there was no injuries in the blaze

Victoria police say a missing teen has been located safe. (Black Press Media file photo)
Missing teen located safe: Victoria police

Missing person alert ended for high-risk missing 14-year-old

Central Saanich installed a temporary portable along Lochside Trail near Michell’s Farm Market and remains in discussion with the Capital Regional District about finding what Mayor Ryan Windsor called a ‘permanent solution’ to ensuring washroom access at the popular location. (Wolf Depner/News Staff)
Central Saanich in talks with CRD about ‘permanent’ washroom facility near Lochside Trail

The municipality installed a temporary portable washroom near Michell’s Farm Market last week

There are many options for enjoying a meal out locally during Dine Around and Stay in Town, on now through Feb. 7. (10 Acres Commons)
Dine Around Stay in Town Victoria carries added importance during pandemic

Special menu items for eat in or takeout/delivery, staycation deals available through Feb. 7

(Black Press Media file photo)
Bylaw officers called to Saanich park for COVID-19 protocol violations on pickleball court

Raquet sport players reminded to avoid doubles play amid pandemic

Businesses continue to struggle under COVID-19 restrictions as the pandemic reaches the one-year mark. (B.C. government)
Another 564 COVID-19 cases, mass vaccine plan coming Friday

15 more deaths, community cluster declared in Williams Lake

A specialized RCMP team is investigating a suspicious trailer, which might have connections to the illicit drug trade, found abandoned outside a Cache Creek motel. (Photo credit: <em>Journal</em> files)
Police probe U-Haul trailer linked to illicit drugs left outside Cache Creek motel

Hazardous materials found inside believed to be consistent with the production of illicit drugs

Premier John Horgan leaves the podium following his first press conference of the year as he comments on various questions from the media in the Press Gallery at B.C. Legislature in Victoria, B.C., on Monday, January 13, 2020. THE CANADIAN PRESS/Chad Hipolito
Interprovincial travel restrictions a no-go, Horgan says after reviewing legal options

The B.C. NDP government sought legal advice as concerns of travel continue

Gem Lake Top, at Big White Ski Resort, seen at Jan. 8. (Big White Ski Resort)
Big White cancels $7.3M in lift tickets, accommodations due to COVID-19 orders

Since November, the ski resort has been forced to make several changes

Reader’s Lens
The surf’s up at Whiffin Spit. Joan Stiebel snapped this photo on a recent windy day in Sooke. To submit a photo to Reader’s Lens, please email editor@sookenewsmirror.com. (Contributed photo)
Reader’s Lens

Reader’s Lens The surf’s up at Whiffin Spit. Joan Stiebel snapped this… Continue reading

Darlene Curylo scratched a $3M ticket, BCLC’s largest ever scratch and win prize. (BCLC)
Kelowna woman in shock after winning BCLC’s largest-ever instant-ticket prize

Darlene Curylo couldn’t believe her eyes when she saw the amount of money she’d won from a scratch ticket

While each person has different reasons for becoming homeless, a UBCO study shows they learn through their interactions with different services to perform ‘as homeless’ based on the expectations of service providers. (Contributed)
Kelowna homeless forced to ‘perform’ for resources, says UBCO study

One participant in the study said ‘It is about looking homeless, but not too homeless’

Aquaculture employee from Vancouver Island, Michelle, poses with a comment that she received on social media. Facebook group Women in Canadian Salmon Farming started an online campaign #enoughisenough to highlight the harassment they were facing online after debates about Discovery Islands fish farms intensified on social media. (Submitted photo)
Female aquaculture employees report online bullying, say divisive debate has turned sexist

Vancouver Island’s female aquaculture employees start #enoughisenough to address misogynistic comments aimed at them

Mowi Canada West’s Sheep Pass salmon farm, the company’s final B.C. operation to receive certification from the Aquaculture Steward Council. The Canadian Federation of Agriculture (CFA) is questioning a government decision to phase out salmon farms in the Discovery Islands. (Photo supplied by Mowi Canada West)
Canadian Federation of Agriculture backs B.C. salmon farmers

Letter to prime minister calls for federal “champion” for aquaculture growth

Most Read