RESTAURANT OWNER FIGHTS BACK IN POT SMOKING CASE

TORONTO - Federal government lawyers will ask a judge Monday to throw
out the case of an Ontario restaurant owner who wants one of his
former patrons stripped of his right to smoke medical marijuana.

This is the latest manoeuvre in the legal battle between Ted Kindos,
owner of Gator Ted's Tap and Grill in Burlington, Ont., and former
customer Steve Gibson.

The restaurant owner is facing a human rights complaint for asking
Gibson not to light up outside his business.

So Kindos is looking for a declaration from the Federal Court that
people with a permit to smoke medicinal marijuana cannot do so in a
public place or any licensed establishment.

He also wants the court to order Health Canada not to renew the permit
of his former patron, arguing Gibson has not been in compliance with
its terms of use.

Gibson contends in his human rights complaint that he's being
discriminated against because he has a disability. Kindos argues he
could lose his liquor licence if he allows Gibson to smoke or hold the
controlled substance in or out front of his restaurant.

In court documents, federal government lawyers said they are seeking
to dismiss the case, arguing there is no dispute that requires
adjudication because Health Canada does not purport to authorize
permit holders to smoke marijuana in violation of any applicable law
or in an establishment subject to Ontario's liquor licensing laws.

The regulations are "completely silent" in terms of where and when
Gibson is authorized to use marijuana for medical reasons and there is
no evidence he disregarded the terms of his permit in any way,
according to the documents.

In addition, they argue Kindos lacks the standing to challenge
Gibson's permit renewal and that the regulations do not authorize
Health Canada to refuse renewal of a permit on the basis an applicant
has "flagrantly disregarded its terms."

But Kindos's lawyer, Gary Graham, said in court documents the medical
marijuana regulations do allow Health Canada to refuse to renew a
permit if any information, statement or other item in the renewal
application is false or misleading.

He said compliance with the regulations also includes following an
information document issued to permit holders advising that controlled
substances should not be consumed in public places or in contravention
of other applicable federal or provincial laws.

"Gibson clearly was not in compliance," with the terms of his permit
because he was using marijuana in the restaurant contrary to
provincial law that prohibits controlled substances where alcohol is
served, according to Graham's court submissions.

By filling out an application for renewal while violating the terms of
the information document, Gibson was "effectively making a statement
which was false or misleading," Graham wrote.