TORONTO - A Burlington Ont. restaurant owner facing a human rights complaint for refusing to allow a patron with a medical marijuana licence to smoke outside his establishment said he plans to take the dispute to court.
Ted Kindos, owner of Gator Ted's Tap and Grill, said he will seek a declaration from the Ontario Superior Court that the provincial laws - prohibiting marijuana possession or consumption in licensed establishments - trump former patron Steve Gibson's right to light up.
Attempts to negotiate a resolution to the dispute fell apart earlier this year 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.
"We think this is a fundamental issue that needs to be determined by a court and not by the (Ontario Human Rights) Commission," said Kindos' lawyer Gary Graham.
Gibson filed a complaint with the OHRC alleging Kindos discriminated against him by not allowing him to smoke his marijuana outside the bar and for making no effort to find any solution - such as smoking outside the back door.
For three years, the case has been working its way through the Ontario Human Rights Commission and was to be heard by the Ontario Human Rights Tribunal in the spring.
Kindos said he could lose his liquor licence if he agrees to allows Gibson to smoke or hold the controlled substance in or out front of his restaurant.
The Ontario Human Rights Commission maintains Gibson's case is about the bar owner's duty to accommodate someone with a disability.
The Human Rights Code has primacy over all other provincial legislation unless there is a specific exemption to exclude it written into a law, said Commission spokesman Jeff Poirier.
"The individuals have disabling conditions and they are using legally obtained medical supplies and they are looking to access something available to other patrons, an area to smoke where bylaws permit."
But Graham said that is open to interpretation and he is working on filing an application to Superior Court.
"You have a human right not be refused service because you have a disability but that is quite different from saying you have a human right to consume marijuana to treat your disability on my premises," Graham said.
Osgoode Hall law professor Alan Young said the dispute is venturing into uncharted waters because there hasn't been a court case addressing where Canadians with medical marijuana exemptions are allowed to smoke.
The federal government's Marijuana Medical Access Regulations do not specify where marijuana can be consumed for medical purposes. But anyone who has an exemption is advised in an information package not to consume controlled substances in a public place and not to expose others to any effects related to the inhalation of secondary smoke, a spokesman for Health Canada said.
Two other Ontario men federally licensed to use marijuana for medical purposes have also filed human rights complaints claiming that Liquor Licence Act provisions prohibiting controlled substances where alcohol is served are discriminatory and should be amended.
Young said the issue of "where" has been divisive in the medical marijuana community.
"There are lot of patients that want to assert their right to smoke in public places and others think it is actually undercutting respectability of this growing movement because it looks like medical marijuana users are trying to acquire greater rights than ordinary citizens," Young said.
© Canwest News Service 2008