• TURMEL: Harris Memo on Crown appeal to strike Delay claims (2/3)

    From John KingofthePaupers Turmel@1:229/2 to All on Wed Mar 6 20:33:07 2019
    [continued from previous message]

    claims does not assist the Defendant; rather, it
    underscores the importance of the duty lying upon the
    Minister of Health to establish administrative
    mechanisms that deliver on Charter-protected rights
    determined not only by the Governor in Council - in the
    ACMPRs - but by the Supreme Court of Canada.
    [39] In this connection, the Court keeps in mind that
    the Plaintiff has a medical condition and a prescription
    for marijuana to treat his medical condition. It may be
    found that the Minister of Health may not unreasonably
    delay issuing permits to the Plaintiff in his
    circumstances, if that is in fact his or her position.
    The Plaintiff wishes to grow his own marijuana, which
    with a permit in hand, he is entitled to do. But he
    cannot do that until he has the permit or renewal.
    [40] And if he needs to renew a production permit, and
    the renewal application is unreasonably delayed with the
    result his original permit expires, "everything would
    have to be destroyed" as he claims; otherwise, he is
    would be subject to fine and imprisonment for the
    possession of unused plants and stored marijuana grown
    previously. As to the stress referred to in the
    pleadings, this is also a matter for evidence. The
    Plaintiff may or may not succeed; that will be
    determined by the evidence. The Defendant has not
    established it is plain and obvious such that this claim
    should be struck.
    [42] Nothing in what is stated above should be taken as
    determining whether the Plaintiff will succeed or fail
    in his action. I make no finding of whether there is a
    cause of action for unreasonable delay, or if so, what
    constitutes unreasonable delay. It may be that a delay
    of four months in processing the Plaintiff's permit
    application was reasonable; the point of today's ruling
    is that the Plaintiff has a chance of succeeding in his
    claim. However, it may be that the delay in the
    Plaintiff's case was reasonable. In that case the
    Defendant will succeed.
    [43] In terms of damages, I am not persuaded it is plain
    and obvious that no damages would be awarded if the
    Plaintiff establishes his Charter-protected rights were
    infringed or denied contrary to subsection 24(1) of the
    Charter. It is well-established, again by the Supreme
    Court of Canada, that Charter breaches may be remedied
    under subsection 24(1) by an award of monetary damages:
    see for example, Vancouver (City) v Ward, 2010 SCC 27.
    [44] In this respect, the Court is performing a gate-
    keeping function. The onus was on the Defendant and in
    my respectful view she failed to meet the test: it is
    not plain and obvious that these pleadings disclose no
    reasonable cause of action.
    B. Is the action frivolous and vexatious?
    [45] The Court has determined that it is not plain and
    obvious that this action discloses no reasonable cause
    of action. The essence of the Defendant's submission
    that the action is frivolous and vexatious is that the
    Plaintiff's claims are so lacking in material facts, and
    unintelligible, that it is frivolous and vexatious. The
    argument in this respect is contained in a single
    paragraph in the Defendant's memorandum of fact and law.
    The Defendant only states that the action should be
    struck as frivolous and vexatious. In my respectful view
    there is insufficient merit in that submission to
    warrant its further consideration.
    1. The motion to strike the Amended Statement of Claim
    is dismissed in part.
    3. There is no order as to costs.
    "Henry S. Brown" Judge

    7. Canada failed to file an appeal against the dismissal
    within 30 days.

    8. Canada fell into default of filing the required Statement
    of Defence within 30 days.

    9. Allan Harris did appeal within 30 days that losing months
    subtracted off the permits of 15,000 patients that can cost
    over $2,000 and could easily be added back isn't too trivial
    a remedy to grant.

    10. The Defendant further avoids adjudication of those
    claims of damages from unconscionable short-staffing delays
    for which Canada has failed to file a Statement of Defence
    by now cross-appealing on grounds that were not originally
    worthy of being appealed directly within 30 days:
    27. The issue on Canada's cross-appeal is whether the
    Motions Judge erred in failing to strike the claim
    concerning the registration processing time. The issue
    on the plaintiff's appeal is whether the Motions Judge
    erred in striking the claim concerning the period of
    registration.

    PART II - ISSUES

    11. Crown in Harris appeal for damages claims argues:
    1. It is plain and obvious that this claim fails to
    disclose a reasonable cause of action. The claim alleges
    that the processing time for registration to personally
    produce cannabis for medical purposes violates section 7
    of the Charter. However, it contains no material facts
    to show that the processing time for registration
    deprived the plaintiff of life, liberty or security of
    the person, or that the processing time in his case was
    inconsistent with the principles of fundamental justice.
    29. The Motions Judge made three errors of law in
    failing to strike the claim concerning the registration
    processing tune for personal and designated production.
    First, he erred in finding that Canadian courts have
    recognized a constitutional right to produce cannabis
    for medical purposes.
    Second, he failed to consider whether the amended claim,
    contained material facts to demonstrate a violation of
    section 7.
    Third, he failed to consider whether the claim disclosed
    facts to warrant Charter damages. Alternatively, if he
    considered the second and third issues, the Motions
    Judge made palpable and overriding errors of fact or
    inextricably mixed fact and law in concluding that the
    facts pleaded were sufficient.

    PART III - SUBMISSIONS

    1) RIGHT TO GROW

    12. Canada argues no constitutional right to produce:
    40. In stating that the courts have confirmed a right
    for patients to produce cannabis, the Motions Judge
    appears to have relied on the Supreme Court of Canada
    decision in R v Smith ("Smith") and the Federal Court
    decision in Allard v Canada ("Allard").55 However,
    neither case recognizes a constitutional right for
    patients to produce cannabis.

    13. Maybe those courts do not so clearly recognize a
    constitutional right for patients to produce cannabis but
    the new Cannabis Regulations does say the Minister "must
    register" an applicant who met the requirements:
    Registration with Minister
    313 (1) If the requirements set out in section 312 are
    met, the Minister must, subject to section 317, register
    the applicant and issue them a registration certificate.

    14. If the Minister must register the qualified applicant,
    then the qualified applicant has to right to what the
    Minister must do. It's persuasive that the Allard and Smith
    Courts interpret "must" in the same way.

    2) INSUFFICIENT FACTS TO ESTABLISH VIOLATION

    15. Canada argues:
    45. Having incorrectly held that the plaintiff had a
    constitutional right to produce cannabis, the Motions
    Judge proceeded to consider whether the amended claim
    contained facts to show that the processing time for
    initial registration to produce cannabis was
    unreasonable.61 The Motions Judge failed to consider the
    correct question, which was whether the claim disclosed
    material facts to show a deprivation of the plaintiffs
    life, liberty or security of the person that was
    inconsistent with the principles of fundamental justice.

    16. Brown J. spends paragraphs 16-18 explaining the need for
    sufficient facts and then spends paragraphs 19-28 laying out
    many facts which were taken as proven:
    FACT01: [19] Claim Long Processing Time violates S.7
    FACT02: Damages are Value lost during undue delay
    FACT03: [21] Plaintiff has Medical Document
    FACT04: [22] Date submitted: June 11 2017
    FACT05: Date processed: Oct 11 2017
    FACT06: Date expired: Mar 23 2018
    FACT07: [23] MMAR time less than 4 weeks
    FACT08: [24] ACMPR time over 30 weeks
    FACT09: Only 10 data fields to process
    FACT10: [25] MMAR renewed on date of original issuance
    FACT11: ACMPR back-dating to date doctor signed
    FACT12: Period of exemption is thus reduced.
    FACT13: Harris Permit lasted only five or so months
    FACT14: [26] Claim over 6 months to process unconscionable
    FACT15: Claim short-changing gets less than full term
    FACT16: [27] Wants Restitution of time on next permit
    FACT17: [28] Seeing doctor more often costs more often
    FACT18: Looming expiry waiting for renewal causes stress

    17. Crown alleges speculation, bald allegations dressed up
    as facts:
    B. THE PRINCIPLES ON A MOTION TO STRIKE
    32. The test on a motion to strike for no reasonable
    cause of action is whether it is "plain and obvious"
    that the claim does not disclose a reasonable cause of
    action.41 A claim discloses a reasonable cause of action
    if it contains facts capable of supporting each element
    of the cause of action.42 The requirement to plead facts
    in support of each element is supplemented in the
    Federal Courts Rules, which mandate that parties plead
    all material facts on which they rely and particulars of
    every allegation.43
    33. While courts must generally accept the facts pleaded
    as true for the purposes of a motion to strike, they are
    not required to accept speculation, bald allegations or
    conclusory statements of law dressed up as facts.44
    Plaintiffs are also not permitted to make broad
    allegations in hopes of later discovering facts to
    support them or to file inadequate pleadings and rely on
    the defendant to request particulars.45

    18. The Cross-Appellant fails to indicate which "facts"
    Judge Brown had taken as proven were "speculation, bald
    allegations or conclusory statements of law dressed up as
    facts" but only makes the the bald assertion that the judge
    had taken speculation, bald allegations or conclusory
    statements of law dressed up as proven facts without citing
    one example.

    19. Some facts the Crown does admit:
    19. The amended claim alleges that the plaintiff is
    medically authorized to use cannabis and that he applied
    to Health Canada on June 11, 2017, for registration to
    produce cannabis for medical purposes. It alleges that
    registration. was granted on October 11, 2017, and was
    scheduled to expire on March 23, 2018.28 The claim also
    alleges that the processing time is up to 30 weeks for
    some patients, and that the processing time for a
    personal or designated production licence under the
    former Marihuana Medical Access Regulations ("MMAR") was
    much shorter.
    20. The amended claim alleges that the plaintiff
    experienced stress due to the prospect of having to
    destroy his cannabis plants if Health Canada ever failed
    to renew his registration before his existing
    registration expired.
    21. The amended claim seeks a declaration that the
    registration processing time violates section 7 and
    "unspecified damages under s, 24 of the Charter in the
    amount off the value of the Applicant's prescription
    during any delay which this Court may rule
    inappropriate."
    C. OTHER CLAIMS
    22. The plaintiff's claim is based on a "kit" downloaded
    from the website of medical cannabis activist John
    Turmel.32 Since August 2017, more than 250 plaintiffs
    have filed similar claims in Federal Court. Like the
    plaintiffs claim, the other claims allege that the
    plaintiffs are medically authorized to use cannabis
    (FACT) and have applied to Health Canada for
    registration for personal or designated production.
    (FACT) In cases -where Health Canada has granted the
    application, the claims indicate the date of
    registration (FACT) and when it will expire (FACT).

    20. All plaintiffs submitted those same main facts on Judge
    Brown's list to establish that there were long processing
    delays. Not facts that the delays for medication violated
    rights, Chaoulli v. Quebec established that medication
    delays violated rights. Should not have to show evidence
    delays harm again. Delays do cause harm. Proving delays in
    due treatment proves the harm.

    21. Facts that Canada has said are needed:
    22.. The claims are otherwise boilerplate and contain
    virtually no details concerning each plaintiff's
    circumstances or how they were personally affected by
    the registration processing time or period of
    registration.

    22. The Crown had told the Court they needed to know:
    - What medical condition? is not a fact Judge Brown needed
    to know to adjudicate whether the time for processing was
    unconscionably long.
    - Why he doesn't choose other medication available? is not a
    fact Judge Brown needed to know to adjudicate whether the
    time for processing was unconscionably long.
    - Why he chooses to grow rather than purchase? is not a fact
    Judge Brown needed to know to adjudicate whether the time
    for processing was unconscionably long.

    23. The facts the Defendant says are missing to make the
    case are not facts Judge Brown needed to know to adjudicate
    whether the time for processing was unconscionably long.
    Knowing only the start and expiry dates of the permit, the
    judge did not need to know any of these other facts
    Defendant argues are missing. The facts identified as
    lacking by the Defendant were not deemed relevant facts by
    the judge. Why would he need to know what illness the
    patient was suffering while waiting 9 months for his permit?
    Or why he prefers herbals over chemicals or why he isn't
    buying from an L.P.

    CHAOULLI: DELAY VIOLATES RIGHT

    24. The only facts needed and proffered were to prove the
    delay. Chaoulli v. Quebec had the material facts
    establishing that delays in receiving medication deprived
    the plaintiff of life, liberty or security of the person.
    The processing time in plaintiff's case was inconsistent
    with the principles of fundamental justice. And that the
    short-staffing bureaucratic delays unconscionably shortened
    the periods of use.

    3) FACTS FOR DAMAGES

    25. Chaoulli also found damages appropriate. Brown J. said
    there was the hope here too. Damages for delays in obtaining
    medication by screw-ups in government bureaucracy was sought
    and not deemed inappropriate. This isn't damages over bad
    legislation, it's damages over bad administration. No need
    to show malice. Just incompetence.

    26. The Value of the Damages can be tabulated. Rent and
    fixed expenses and the value of the product that should have
    been grown during the unconscionable delay. The damages can
    be evaluated.

    27. Crown says claim concerning renewal is now moot:
    56. While the Motions Judge failed to address life,
    liberty or security of the person as they relate to the
    plaintiff's application for initial registration, he did
    rely on the possibility that Health Canada might fail to
    renew his registration in a timely manner and that the
    plaintiff would have to destroy his existing cannabis
    plants.76 This was improper speculation and the current
    Regulations have rendered this concern moot.
    57. Although the facts pleaded are generally assumed to
    be true on a motion to strike, a claim cannot rest on
    speculation or allegations about hypothetical future
    events.77 The amended claim notes that the plaintiff

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