Residue from the fallout of the country’s largest indoor marijuana bust still lingers.
A $16.5-million civil suit launched by the former owner of Barrie’s defunct Molson brewery, where the clandestine grow operation was discovered in 2004, is being challenged by the Attorney General of Canada in the Ontario Court of Appeal today.
“The Crown unsuccessfully sought summary judgment dismissing the action and lost. This is their appeal against that decision,” said Brian Greenspan, who is representing Fercan Developments Inc., owners of the south-end property at the time.
While the companies did win a costs award for the Crown’s unsuccessful attempt to take over the property through the litigation, the companies now want the government to make up for the earnings lost through that process. That includes compensation for preventing Fercan from selling the property during a robust market, as well as other related business and reputational costs.
“This case is so devoid of merit, so devoid of any suggestion that the principles of Fercan and GRVN had any idea (of) any criminal conduct,” said Greenspan.
Fercan and GRVN Group are accusing the Crown of abuse of legal process and public office and civil conspiracy as well as negligence for malicious, wrongful, or negligent investigation and prosecution for trying to seize the former Molson brewery land, which is located along Big Bay Point Road near Bayview Drive.
The original claim filed against the Attorney General of Canada, the provincial government on behalf of the OPP and OPP detective Stuart Hayhurst in 2017 accused that the Crown “deliberately engaged in unlawful conduct” in bringing the forfeiture applications “in the absence of any reasonable grounds."
On Jan. 10, 2004, police swept down on the former brewery overlooking Highway 400 and uncovered “one of the largest and most sophisticated indoor marijuana growing operations in Canadian history."
Fercan Developments had purchased the 35-acre lot, containing the 450,000-square-foot building, three years earlier and had been renting out portions of it to several small companies.
It was also developing a coffee and a bottled water business on the site.
But when police went inside, they found strict controls including locked doors, surveillance equipment and concrete block walls protecting the two grow-ops from all other activity inside the building.
Police seized more than 20,000 cannabis plants, 300 pounds of weed, and extensive growing equipment.
Police also found grow-ops at three other properties controlled by Fercan, which was owned by Vince DeRosa.
GRVN also owned a property with a strip mall along Highway 11 where another grow-op was discovered.
Police also raided an address at 1408 Rainbow Valley Rd., in Phelpston, where Bob DeRosa had been living and which was owned by GRVN Group, owned by a third DeRosa brother, Nicola. There, they found 10 pounds of packaged marijuana and growing equipment.
Nine people were arrested, including Bob DeRosa, who was working for his brother as manager of the former Molson property and deemed to be a key player in developing the illicit grow-op.
Vince DeRosa maintained all along that he knew nothing about the weed growing inside his buildings. His brother, who was handed a seven-year sentence in 2011, apologized to his brother in court and declared that his brother knew nothing about massive grow-op.
Once most of the criminal charges were dealt with, the federal government launched forfeiture proceedings against Fercan, GRVN and the finance company FirstOntario Credit Union Ltd., to gain control of the properties as proceeds of crime and it restricted what could happen to them in the interim.
“It never made any sense, never, from Day 1. We kept telling the Crown that their theory is absurd,” Greenspan said. “The whole thing, from Day 1, was so ill-conceived and mean-spirited that, quite frankly, this is a matter where they engaged in really reckless conduct.”
But the Crown pursued through the forfeiture hearing and prevented Fercan from selling the property while it remained before the courts.
GRVN did sell its strip-mall lot with the Crown’s consent, but the Crown demanded the $620,000 proceeds be paid to the Seized Property Management Directorate, where it accrued no interest.
After 31 days of the forfeiture hearing, the Crown dropped its case against the finance company, FirstOntario. The Crown permitted it to sell the former Molson land under power of sale, despite Fercan’s protests.
Then, after another five days of hearings spread over several months, a Newmarket judge found there was overwhelming evidence supporting the innocence of Fercan and GRVN and dismissed the forfeiture applications.
After that, the Crown tried to go after the companies through a civil forfeiture application, but the courts wouldn’t let the application go ahead.
Fercan and GRVN, along with FirstOntario, successfully sought a total of nearly $1 million in costs from the Crown related to the forfeiture hearing, charging that the Crown should never have started its forfeiture applications because it knew there was no evidence to linking the properties to the illegal activity taking place inside.
The judge awarded $570,000 to Fercan and GRVN, and $297,347 to FirstOntario, based on the Crown’s misconduct.
The Ontario Court of Appeal unanimously upheld the costs awards.
This latest attempt by Fercan to recoup additional losses is what the appeal court is dealing with this week.
“If the owner of that property knew about the existence of the grow-op, why would he have Christmas parties where he invites the mayor, chief of police, the fire chief, city council … in the office which is immediately adjacent to the grow-op?” said Greenspan.
“If he had any clue that there was illegal activity taking place on the premises, the last people in the world you would invite to a Christmas party would be everybody in a position of authority in Barrie.”