Kevin and Cheryl Kunzler got almost everything they needed to grow cannabis.

They have local government zoning approval for a cultivation facility in the scenic Salt Spring Island of B.C.

Health Canada indicated that it has no major concerns about their application for a cannabis production licence.

The Kunzlers bought property for their farm in a bare land strata corporation. [A bare land strata is composed individual land parcels.]

At the time of their purchase, the strata bylaws did not prohibit cannabis farming.

They set up Skywater Cannabis Ltd., and the company is ready for business.

However, when other owners of the strata corporation learned of their plan, they didn't like the idea of having a cannabis production facility in the community.

They called a special general meeting, and in that meeting in July 2019, a majority of owners voted to change the strata bylaws.

While the old bylaws allowed for agricultural use, but did not specify which activities are not permitted, the new rules now expressly prohibit cannabis production.

The Kunzlers believed that it was not right for the strata to prevent them from doing their business.

The couple filed a petition before the B.C. Supreme Court, and asked that the strata be restrained from enforcing the new bylaws.

As Justice Robert Punnett wrote in his reasons for decision, the Kunzlers submitted that the “passing of the new bylaws represents a significantly unfair action”.

Punnett noted that strata argued that “owners within a strata corporation are entitled to as much freedom as possible to shape the community in which they live”.

Punnett took the side of the strata, and ruled against Kunzlers.

According to Punnett, the Kunzlers claimed that they had “reasonable expectations” when they purchased the property”.

The Kunzlers cited the zoning bylaw, the strata’s old bylaws, as well as a realtor’s confirmation that the property can be used for agricultural purposes, like growing cannabis.

“The effect of the Kunzlers’ position is their expectations limit the right of the strata owners to pass bylaws inconsistent with the Kunzlers’ expectations,” Punnett noted.

Punnett pointed out that a three-quarter majority of the strata owners have the power to make amend bylaws.

“It is not reasonable for the Kunzlers to think their expectations at the time of purchase of their strata lot bind the other owners and that their expectations would be grandfathered and exempt from any amendment…,” Punnett wrote.

According to Punnett, the strata submitted that the passage of the new bylaws prohibiting cannabis production does not meet the test of significant unfairness.

“They argue that in a democratic institution, such as a strata corporation, decisions of the majority will on occasion be unfair to a minority owner or owners,” Punnett noted.

Moreover, Punnett noted that the strata argued that a bylaw “may well restrict the rights of one owner while benefiting another”.

“Such an imbalance in itself does not mean the decision of the strata is unfair,” Punnett wrote about the strata’s position.

Punnett also noted that while the Kunzlers have taken steps to establish a cannabis business on their proprty, they have not started construction of the facility.

“The New Bylaws have not robbed the petitioners of other reasonable uses or value of the Property,” Punnett wrote.

According to Punnett, the curtailment of the property’s intended use “does not rise to an injustice”.

“Despite the various complaints and allegations of the petitioners relating to the behaviour of other strata owners, it has not been shown that their motivation was anything other than maintaining a specific type of strata community, one which did not involve a commercial cannabis growth operation,” Punnett noted.

In a nutshell, as Punnet wrote, “The will of the majority outweighed the desires of the petitioners.”