April 28, 2015, Superior Court Justice, Michael H Kaplan passed his judgement that would free Medical Marijuana of Massachusetts Inc (MMM) from a long and tumultuous road to being denied by the Department of Health; the Judge set aside the Department’s denial at the conclusion of the judicial review that was started some 9 months earlier.

What got them there, and what happened to MMM bears an ironically and eerily similar set of circumstances as a number of licensed producer applicants in Canada.

As what is slated, in the pleadings, as ‘one of several pending in the Superior Court out of the process…’, MMM was initially selected for provisional certificates, but then was later rejected, or in the Court’s word, “non-selected”.  I guess this was the Department’s attempt to thwart the term ‘denied’.

Nevertheless, upon MMM’s ‘non-selection’ after receiving a provisional license, they selected to proceed to a judicial review.

The next few months in the judicial review were somewhat a bit of litigation push and pull.  The Plaintiff, MMM, eventually had to compel the Department of Health to produce records for the Courts eyes as part of the judicial review.  Within the same period of time, MMM also applied to the Courts for an emergency motion to operate in one location as they had sunk considerable costs into their operations.  Even though the motion was denied, Judge Billings concluded that “….MMM was likely to succeed on the merits of it’s claim that the Department had not complied with the application and review process set out in it’s own regulations!”

Now this sounds strikingly familiar….

In Canada, a number of applicants have complained, publicly, that Health Canada continues to move the goal posts to a point that the applicant cannot complete their application as costs start to impact their projects.

Also, it bares the questions, that this Court answers in it’s ruling, if a Federal regulator isn’t following their OWN process, they themselves laid out, that are the consequences to the Department of Health and the applicant?

The Statutory framework in Massachusetts in a bit different than in Canada, but would appear to have the appropriate levels of checks and balances to substantiate a successful or unsuccessful application.  These requirements were scored and evaluated on a number of details.  Seems reasonable.  That is until the media gets involved.

For some reason, even not determined by the Courts, the Plaintiff’s owner, whom not only sunk costs in a number of locations to supply medical cannabis across Massachusetts, also sent the Department of Health a $50,000 fee for registration – they didn’t have a problem cashing that – in order to proceed to the final stages of the application process.

This is where, the Courts found, the Department of Health started to fail to follow their own regulation and process…..a term of ‘re-evaluation’…..not laid out in the process, and ironically, a similar behavior with Health Canada to ‘re-evaluate’ their applicants as many times as they saw fit…..were they looking for loopholes given Minister Ambrose’s admittance in public they defy the Courts and will continue to fight patient access to medical cannabis?

This process of delay via means of ‘re-evaluation’ gave the media, in MMM’s case, lots of time to write stories casting them in a negative light; and not just MMM, but other applicants as well.  This led to political attention (of course!!) suggesting the process and it’s applicants should be further scrutinized.

Sound familiar, Canada?

What led MMM down the rabbit hold of no return was with the Department of Health then informed MMM of a new ‘verification process’?

Sound familiar, Canada?

As the Court concluded, this was the first time MMM or any other applicant was notified of a change to the process, especially at the expense of negative media stories that had no relevant consideration to the applicants.  Rather more a political smear campaign perhaps.

Sound familiar, Canada?

The notice of now ‘non-selection’ to MMM after substantial investment invoked what the Courts must apply the ‘arbitrary and capricious’ standard in conducting it’s review against the agency’s actions.

Their conclusion?

First and foremost, the Courts found that MMM was expecting to be licensed and operational within months.  The Department’s actions to ‘re-evaluate’ based on media reports that had little to no relevance whatsoever to the regulatory scheme is exactly the type of prejudice the regulatory scheme is intended to prevent….key word PREJUDICE!

Second, the Department failed to follow their own regulations, and that failure caused MMM substantial losses and prejudice.

Third, the Department’s decision of ‘non-selection’ was vacated.

What this means for Canada, and other jurisdictions around the world is simply put; the regulation must be fair, laid out, full outright known of all procedural steps to applicants, and finally, media interference simply is just that; chatter.  If a regulatory body wants their decision to stick, then they are held by appropriate administrative review to ensure they (as in the Federal or local regulators) must follow their regulation to the letter first.

The regulations are established to ensure any applicant is given the appropriate remedies, in Massachusetts case, to address any shortfall.  In Canada, Health Canada appears to use their website to display to the world applicants are denied without opportunities to address any deficiency that is substantiated in their own regulations.  Capricious?  You be the ‘Judge’.

More information on this judicial review can be found at the County of Suffolk Civil Division of the Superior Court of Massachusetts – Action number: 2014-BLS1

The MMJ.TODAY News Desk.

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