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

Rachna Singh, MLA for Surrey-Green Timbers, is the Parliamentary Secretary for Anti-Racism Initiatives. (Photo courtesy of flickr.com/photos/bcgovphotos)
Traffic waits at the intersection of Highway 17 and Beacon Avenue. A study found failing levels of service at the intersection of Highway 17 and Sidney’s Beacon Avenue for multiple movements during morning peak traffic and for all left-moving traffic during afternoon peak traffic. (Wolf Depner/News Staff)
Province supports potential interim improvements to Sidney intersection

Province says interchange is the long-term plan for intersection of Beacon Avenue and Highway 17

A micro brewery is being eyed for Jordan River. However, the site where the brewery is proposed still needs to go through the rezoning process. (Black Press Media file)
Micro brewery proposed for Jordan River

Jordan River Brewing Company envisions to build wholesale, sit-in brewery along Highway 14

Oak Bay local Lachlan Kratz (red, middle) has signed with pro rugby team NOLO Gold in Louisiana. (Contributed photo)
Oak Bay local signs with pro rugby team

Lachlan Kratz at 21 is now NOLO Gold’s youngest member

Vancouver resident Beryl Pye was witness to a “concerning,” spontaneous dance party that spread throughout social groups at Kitsilano Beach on April 16. (Screen grab/Beryl Pye)
VIDEO: Dance party erupts at Vancouver’s Kitsilano Beach to the dismay of onlookers

‘It was a complete disregard for current COVID-19 public health orders,’ says Vancouver resident Beryl Pye

Russ Ball (left) and some of the team show off the specimen after they were able to remove it Friday. Photo supplied
Courtenay fossil hunter finds ancient turtle on local river

The specimen will now make its home at the Royal BC Museum

Pall Bearers carrying the coffin of the Duke of Edinburgh, followed by the Prince of Wales, left and Princess Anne, right, into St George’s Chapel for his funeral, at Windsor Castle, in Windsor, England, Saturday April 17, 2021. (Danny Lawson/Pool via AP)
Trudeau announces $200K donation to Duke of Edinburgh award as Prince Philip laid to rest

A tribute to the late prince’s ‘remarkable life and his selfless service,’ the Prime Minister said Saturday

B.C. homeowners are being urged to take steps to prepare for the possibility of a flood by moving equipment and other assets to higher ground. (J.R. Rardon)
‘Entire province faces risk’: B.C. citizens urged to prepare for above-average spring flooding

Larger-than-normal melting snowpack poses a threat to the province as warmer weather touches down

Vancouver-based Doubleview Gold Corp. is developing claims in an area north of Telegraph Creek that occupies an important place in Tahltan oral histories, said Chad Norman Day, president of the Tahltan Central Government. (THE CANADIAN PRESS/HO)
B.C. Indigenous nation opposes mineral exploration in culturally sensitive area

There’s “no way” the Tahltan would ever support a mine there, says Chad Norman Day, president of its central government

Stz’uminus Elder George Harris, Ladysmith Mayor Aaron Stone, and Stz’uminus Chief Roxanne Harris opened the ceremony. (Cole Schisler photo)
Symbolic red dresses rehung along B.C. highway after vandals tore them down

Leaders from Stz’uminus First Nation and the Town of Ladysmith hung new dresses on Sat. April 17

A Western toadlet crosses the centre line of Elk View Road in Chilliwack on Aug. 26, 2010. A tunnel underneath the road has since been installed to help them migrate cross the road. Saturday, April 24 is Save the Frogs Day. (Jenna Hauck/ Progress File)
Unofficial holidays: Here’s what people are celebrating for the week of April 18 to 24

Save the Frogs Day, Love Your Thighs Day and Scream Day are all coming up this week

The Attorney General’s Ministry says certain disputes may now be resolved through either a tribunal or the court system, pending its appeal of a B.C. Supreme Court decision that reduced the tribunal’s jurisdiction. (AP Photo/Mark J. Terrill)
Court of Appeal grants partial stay in ruling on B.C. auto injuries

B.C. trial lawyers challenged legislation brought in to cap minor injury awards and move smaller court disputes to the Civil Resolution Tribunal

A vial of some of the first 500,000 AstraZeneca COVID-19 vaccine doses that Canada secured. THE CANADIAN PRESS/Carlos Osorio
Canada’s 2nd blood clot confirmed in Alberta after AstraZeneca vaccine

The male patient, who is in his 60s, is said to be recovering

Most Read