Executive Summary: Key Legal and Evidentiary Issues

• The Applicant, a cannabis processor start-up, brought a motion pursuant to Rule 318 to compel the Mohawk Council of Kahnawà:ke to transmit a certified tribunal record of materials requested under Rule 317 of the Federal Courts Rules, in connection with a judicial review of a licence refusal.

• Rule 317 limits document production to the "tribunal whose order is the subject of the application," and the Court found the Kahnawà:ke Cannabis Control Board — not the Council — issued the decision under review.

• No direct evidence was presented to establish that the Council participated in or influenced the Board's October 25, 2024 decision to refuse the standard processing licence.

• Allegations that the Council acted as a de facto tribunal in conjunction with the Board were unsupported on a balance of probabilities, and the Court characterized the Applicant's request as a classic example of a fishing expedition.

• Chief Tonya Perron's uncontested affidavit confirmed the Council had no involvement in the Board's licensing decision, consistent with the arm's-length relationship mandated by the Kahnawà:ke Cannabis Control Law.

• A late request under Rules 4 and 313 was declined by the Court for lack of proper notice to the Respondent Council.

The cannabis licensing dispute in Kahnawà:ke

Treena Delisle, operating as The Kannabis Shop ("TKS"), is a cannabis processor start-up based in the Mohawk Territory of Kahnawà:ke. TKS applied for a standard processing licence under the Kahnawà:ke Cannabis Control Law (KCC Law), which prohibits the cultivation, processing, distribution, sale, possession, and use of cannabis within and from the Mohawk Territory of Kahnawà:ke, unless authorized by the KCC Law or the accompanying regulations. On October 25, 2024, the Kahnawà:ke Cannabis Control Board ("Board") refused TKS's application for a standard processing licence. Delisle subsequently commenced an application for judicial review of the Board's decision in the Federal Court of Canada, Docket T-2628-25.

The motion to compel production from the Mohawk Council

In the course of the judicial review, TKS requested a certified tribunal record ("CTR") from the Board pursuant to Rule 317. The Board delivered the CTR materials within the time limits set by the Rules, and the Applicant does not challenge the CTR provided by the Board. However, on August 21, 2025, TKS sought and was ultimately granted leave of the Court to make a further request for materials under Rule 317. The requested materials included Mohawk Council of Kahnawà:ke records pertaining to TKS, including meeting minutes of any open or in camera sessions; internal communications between or among members of either respondent pertaining to TKS, sent or received between June 2022 and October 2024, inclusive; and any and all correspondence, meeting minutes, or other material to, from, or about Mr. Ryan McComber in the respondents' possession. The Council filed a Rule 318(2) objection, asserting it was not a tribunal pursuant to Rule 317, did not render any decision or judgement, and that the only relevant documents were those in the possession of the Board when it rendered the impugned decision.

The legislative framework and arm's-length relationship

The KCC Law establishes a licensing regime for commercial cannabis activity within or from the Mohawk Territory of Kahnawà:ke and also establishes the Board explicitly for the purpose of regulating, enforcing, and administering the law. The Board has the authority to "issue, suspend and revoke the licences provided in this Law and the regulations." Pursuant to section 13.1, the Board functions "at arm's length from the Council." The Council also enacted the Regulation Concerning Licensing Requirements and Procedures, which sets out application requirements for cannabis-related licences and gives the Board the discretion to approve or deny all such applications. Neither the KCC Law nor the Regulation gives the Council any role in the decision-making process in respect of applications for standard processing licences.

The Applicant's argument and the evidence presented

TKS argued that the Council had "acted and operated as a de facto tribunal in conjunction with the Board" and therefore should be compelled to disclose documents pursuant to Rules 317 and 318. In support, TKS pointed to a contentious history between the Applicant and the Council, including: discussions and negotiations resulting in a proposed agreement where the Council agreed to forego any ownership interest in TKS's proposed "Kannabis Shop," with the agreement expressly stating that the Council "does not make any guarantees that the Applicant will be awarded a licence from Health Canada or the Board"; evidence that the Council interacted with Health Canada to prevent the Applicant from receiving a Health Canada license; evidence of dismissals and resignations among Board members and staff; evidence that, after some confusion, the Applicant was instructed to make payments for application fees to the Council and not the Board; and evidence that, after the release of the October 25, 2024 decision, the Board and the Council refused to communicate with the Applicant, instead referring the Applicant to an administrative tribunal that was not yet operational.

The Court's analysis and finding on the de facto tribunal claim

Associate Judge Shannon found the evidence insufficient to establish, on a balance of probabilities, that the Council acted as a de facto tribunal within the meaning of Rule 317. The decision under review was issued by the Board, on Board letterhead, with no indication in the text of the Board's October 25, 2024 decision that it was being issued in conjunction with — or at the direction of — the Respondent Council. Chief Tonya Perron's affidavit testimony — which the Applicant chose neither to object to nor to cross-examine her on — confirmed that the Council did not participate in or influence any decision of the Board and that "no members of the Council were involved in the Board's Decision to refuse TKS's application for a standard processing license." The Applicant's own counsel acknowledged during the motion hearing that there was no direct evidence of any involvement by the Council in the decision-making process that led to the October 25, 2024 decision issued by the Board. The Court noted that the evidence presented largely related to the parallel Health Canada licensing process, which counsel for the Applicant acknowledged was separate and distinct from the Board's application process for standard processing licenses. The Court characterized the Applicant's document request as a "classic example of a fishing expedition," noting that even where there are allegations of bias, Rule 317 does not allow a party to engage in a fishing expedition in the hopes of discovering documents to establish their claim.

The ruling and outcome

The motion was dismissed. The Court also declined to consider a request raised by the Applicant for the first time at the hearing for an order pursuant to Rules 4 and 313 for the disclosure of the same documents requested under Rule 317, as the Respondent Council was not given proper notice and had inadequate time to provide a response. The Respondent Mohawk Council of Kahnawà:ke, being the successful party on this motion, was awarded costs fixed in the amount of $2,000.00, inclusive of disbursements and taxes, to be paid forthwith by the Applicant. The Court further ordered that all cross-examinations on affidavits shall be completed in accordance with Rule 308 of the Rules by no later than April 30, 2026.