TORONTO – A restaurant owner facing a discrimination complaint for asking a medical marijuana smoker not to light up outside his business says Ottawa needs to step in and clarify its regulations governing where authorized permit holders can smoke.
Ted Kindos, owner of Gator Ted’s Tap and Grill in Burlington, Ont., says he will ask the Federal Court to require Health Canada to expressly condition any medical marijuana permits upon compliance with provincial liquor licensing laws.
The court challenge comes as the Ontario Human Rights Tribunal set aside eight days for hearings this summer to determine whether Kindos discriminated against Steve Gibson when he asked him not to smoke marijuana outside his restaurant.
“We’re really looking to the court for assistance in resolving the tension between the liquor laws that apply to Mr. Kindos, which he is obligated to comply with, and the rights granted to the holder of a permit for the medicinal use of marijuana,” said Kindos’ lawyer Gary Graham.
Gibson’s case is one of three dealing with medical marijuana working its way through the human rights complaints process in Ontario.
Two other men have filed complaints against the province claiming its liquor laws – prohibiting controlled substances where alcohol is served – are discriminatory and should be amended.
Attempts to negotiate a resolution to the dispute between Kindos and Gibson fell apart last spring after Kindos refused to sign a settlement requiring, among other things, he pay Gibson $2,000 and post a sign out front alerting patrons his establishment accommodated customers with medical marijuana exemptions.
Kindos said he could lose his liquor licence if he agrees to allows his former patron to smoke or hold the controlled substance in or out front of his restaurant.
Gibson said he is being treated differently because he has a disability.
The dispute is venturing into uncharted legal waters because there hasn’t been a case addressing where the 2,800 Canadians with medical marijuana exemptions are allowed to smoke.
How and where a licensed patient uses marijuana is not governed by federal regulations but permit holders are expected to use common sense, according to the federal government.
Smoking in public and potentially exposing others to the drug’s effects is “unacceptable,” according to Health Canada.
In submissions to the Ontario Human Rights Tribunal, lawyers for the province said creating an exception to the liquor laws to allow marijuana to be consumed where alcohol is served would leave staff and other patrons vulnerable to the risks and harm caused by contact with marijuana.
Moreover, the province argued the federal government is clear that medical marijuana is not to be smoked in public where the rights of others must also be considered.
In November, the Tribunal declined to order Gibson’s case and that of Marko Ivancicevic, the third man to file a complaint alleging discrimination to be heard together.
Barbara Hall, chief commissioner of the Ontario Human Rights Commission said there is a duty to accommodate people with disabilities.
“This is about the need to balance between the legal and medical rights of one person to smoke marijuana legally because of health issues and the rights of others impacted by that,” she said.
Amateur comedian Russell Barth said permit holders are not asking for special rights only the right to smoke marijuana where others use tobacco.
He said he filed his complaint against the Ontario government after a club where he was performing told him he could not smoke marijuana outside on the patio.
Barth said he wants the province to recognize his requirement to take his medication as needed – just as an asthmatic would use an inhaler.
“We feel nervous every time we go out that we can get hassled by police or some yuppie with their kid is going to get their bum in a knot about it,” Barth said noting when he reached out for help to his city councillor he was told to grow up and stop wasting taxpayers dollars with a frivolous human rights complaint.
His case is set to go to mediation later this month.