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.
 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.
 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.
 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.
 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.
 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?
 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
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
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:  Claim Long Processing Time violates S.7
FACT02: Damages are Value lost during undue delay
FACT03:  Plaintiff has Medical Document
FACT04:  Date submitted: June 11 2017
FACT05: Date processed: Oct 11 2017
FACT06: Date expired: Mar 23 2018
FACT07:  MMAR time less than 4 weeks
FACT08:  ACMPR time over 30 weeks
FACT09: Only 10 data fields to process
FACT10:  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:  Claim over 6 months to process unconscionable
FACT15: Claim short-changing gets less than full term
FACT16:  Wants Restitution of time on next permit
FACT17:  Seeing doctor more often costs more often
FACT18: Looming expiry waiting for renewal causes stress
17. Crown alleges speculation, bald allegations dressed up
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
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
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
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
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
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
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
- 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
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