Docket: T-832-16
Citation:
2016 FC 1409
Ottawa, Ontario, December 23, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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DENNIS PEARCE,
WILLIAM STODDART, DENNIS DEFOE AND KEVIN BRYANT
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Applicants
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
The Applicants are federal inmates who, until
April 1, 2016, were being prescribed a drug by the name of Gabapentin to treat
chronic or ongoing pain conditions. As a result of changes to the medications’
Formulary of the Correctional Services of Canada (CSC), no new prescriptions of
Gabapentin, as of that date, is permitted for inmates within the CSC health
care system. Some exceptions are allowed for those who suffer from three
specific conditions, namely epilepsy, diabetic neuropathic pain or shingles, or
for those for which Gabapentin is deemed necessary to treat another condition
upon a “non-formulary” or “extra-ordinary” request being made by an attending
physician and granted by the Regional Pharmacist of the inmate’s institution.
[2]
On May 25, 2016, the Applicants, who no longer
have access to Gabapentin, filed the present judicial review application in
order to challenge the legality of these changes in the CSC Formulary. They claim
that these changes are contrary to the Corrections and Conditional Release
Act, SC 1992, c 20 (the Act) and related regulations and policies. They
further claim that these changes offend their rights under sections 7 and 12 of
the Canadian Charter of Rights and Freedoms (the Charter) and do
not conform to accepted policy regarding proper use of Gabapentin. The
Applicants seek various remedies, including Orders requiring the Respondent:
(i)
to immediately repeal these changes in the CSC’s
Formulary;
(ii)
to re-institute prescription of Gabapentin to
them as well as to other inmates who have been denied that drug under the
amended Formulary; and
(iii)
to ensure that they have prompt access to a
second opinion from a specialist if denied Gabapentin or other medications, and
that any such opinion is reasonably considered by the institution’s physician.
[3]
On November 18, 2016, two of these Applicants,
Mr. Dennis Pearce and Mr. William Stoddart (also referred to herein
as the “Moving Parties”), moved for interlocutory relief pending the outcome of
the judicial review application. They claim that their pain can only be
reduced by prescribed Gabapentin and that absent an Order enjoining the
Respondent from continuing to deprive them access to that drug pending the
resolution of the said application, they will “foreseeably
continue to suffer pain and related harm”.
[4]
In the alternative, the Moving Parties seek an
Order exempting them from the application of the amended Formulary insofar as
it relates to prescription of Gabapentin. In the further alternative, they seek
an Order requiring the Respondent to immediately permit a physician of their
choice to submit, on their behalf, a non-formulary request for prescription of
Gabapentin.
[5]
This is the motion the Court is being asked to
determine in the present instance.
[6]
It is now firmly established that, in order to
be successful, the Moving Parties must satisfy each branch of the following
tri-partite test:
a.
The underlying judicial review application
raises a serious issue, that is an issue which is neither vexatious nor frivolous
or destined to fail;
b.
They will suffer irreparable harm if the
interlocutory relief is not granted; and
c.
The balance of convenience favours the granting
of such relief (RJR-MacDonald v Canada (Attorney General), [1994] 1 SCR
311, at p 334 [RJR-MacDonald]).
[7]
It is well-settled too that when, as in the case
here, the interlocutory relief sought is for all intents and purposes similar
to that sought in the underlying proceeding, the Court must engaged in a more
extensive review of the merits of the underlying application in order to be
satisfied that it raises a serious issue (Ahousaht Indian Band v Canada
(Minister of Fisheries and Oceans), 2014 FC 197 at para 23).
[8]
The Moving Parties contend that the issues
raised in the underlying judicial review application are serious and will have
a significant impact on the conduct of health services within CSC. The
Respondent claims that the Moving Parties have to do more than simply list the
issues to be tried, especially where the relief sought in the interlocutory
injunction proceeding amounts to essentially granting the remedy sought in the
judicial review application. The Respondent contends in this regard that the
issues raised are not fleshed out to any appreciable degree to allow the Court
to engage in the type of review of the merits of the underlying application
warranted in the circumstances. The Respondent further claims that the
underlying application was filed out of time and should not be considered in
any event as the grievance procedure set out in the Act has not been exhausted.
[9]
While the Respondent raises some serious
concerns regarding the first branch of the tri-partite test, I need not to rule
on them as I am of the view that the Moving Parties have failed to establish
that they will suffer irreparable harm if the interim relief they are seeking
is not granted.
[10]
As stated by the Supreme Court in RJR-MacDonald,
above, the notion of “irreparable harm”
refers to the nature of the harm rather than its magnitude (at p 341).
However, it is trite law that when addressing this criterion of the tri-partite
test, the moving party has to meet a high threshold. As explained by the
Federal Court of Appeal in Glooscap Heritage Society v Canada (Minister of
National Revenue), 2012 FCA 255 [Glooscap],
[31] To establish irreparable harm,
there must be evidence at a convincing level of particularity that demonstrates
a real probability that unavoidable irreparable harm will result unless a stay
is granted. Assumptions, speculations, hypotheticals and arguable assertions,
unsupported by evidence, carry no weight. (References omitted)
[11]
Here, the Court is faced with conflicting
evidence as to whether the Moving Parties’ conditions and related pain can only
be alleviated by Gabapentin. As previously indicated, the Moving Parties claim
to be suffering ongoing pain that can only be effectively managed by
Gabapentin. Mr. Stoddart goes as far as alleging that he is living a “hellish existence” since Gabapentin is no longer made
available to him. However, these assertions are not supported by any medical
evidence and are contradicted by their assigned physician, Dr. Diana Wyatt,
whose evidence is that the Moving Parties are fully functional, able to engage
in their regular daily activities and do not require Gabapentin which, she
opines, will not treat their pain.
[12]
Dr. Wyatt is not an employee of CSC. She is an
independent and self-employed physician practicing medicine within the CSC’s
heath care system. Her evidence is that pain management should focus on
improving function and enabling patients to engage in their regular and every
day activities and that pain is successfully managed if a patient can do what
he or she wants to do without significant interference from pain. She claims
that this is the case for both Mr. Pearce and Mr. Stoddart.
[13]
Over the last 18 months, Mr. Pearce has
complained on two occasions to the College of Physician and Surgeons of Ontario
about Dr. Wyatt’s approach to pain management, including her approach to
Gabapentin. These complaints were dismissed. The College concluded that Dr. Wyatt
had performed an appropriate assessment of Mr. Pearce’s condition and that it
was reasonable for her to focus on Mr. Pearce’s ability to function in making
her treatment decisions.
[14]
Mr. Pearce says he disagrees with the College’s
findings. However, for the purposes of this motion, these findings can simply
not be ignored. Moreover, the Court cannot help but draw negative inferences
from the fact that Mr. Pearce has refused Dr. Wyatt’s offer to be referred, at
the CSC’s expense, to the Kingston Orthopedic Pain Management Institute [KOPI]
in May 2016 and that Mr. Stoddard has ceased to consult Dr. Wyatt.
[15]
At the hearing, counsel for the Moving Parties
recognised that his clients are not claiming that the pain they are suffering
is unbearable. He says that his clients are concerned with the pace of the
proceedings and the effect this has on their physical and psychological
well-being. This would explain why they did not move for interim relief when
they filed the underlying judicial review application. I note, in this
respect, that the other two Applicants, Mr. Bryant and Mr. Defoe, although they
are allegedly facing the exact same situation as the Moving Parties, have yet
to seek interim relief and there is no indication before me that they will do
so.
[16]
I cannot ignore either the fact that a few days
after Mr. Pearce’s transfer to the institution he is currently detained, a
search of Mr. Pearce’s cell revealed “an astronomical
amount” of Gabapentin and Tylenol 3 in his cell. In the case of Mr.
Stoddart, who had been receiving Gabapentin since 2006, he has had drug related
issues with CSC on at least two occasions. On the first occasion, he failed a
card audit for the medication in is possession while in the second instance, he
was found to take less than the prescribed amount.
[17]
The evidence before me is that pain management
within correctional settings is challenging because of the importance to strike
balance between treating pain and avoiding abuse of pain killers and trafficking
within these settings. In particular, the evidence shows that drugs like
Gabapentin, which is valuable in prison due to its psychoactive properties, are
susceptible to abuse and are, therefore, a risk to the medical well-being of
inmates and the safety and security of correctional institutions. In
particular, diversion, that is inmates who choose, or are coerced into,
diverting medications and selling or giving them away, is an ongoing challenge
for CSC.
[18]
I agree with the Respondent that when the evidence
is considered as a whole, Dr. Wyatt’s professional opinion that the Moving
Parties are fully functional, have received adequate treatment and do not
require Gabapentin must be preferred to the Moving Parties’ own assertions that
being deprived of Gabapentin amounts to irreparable harm. In other words, the
Moving Parties have failed to establish with clear and convincing evidence the
existence of a real probability that unavoidable irreparable harm will result
unless interim relief is granted (Glooscap, at para 31).
[19]
The tripartite test being a conjunctive test,
the failure on the part of the Moving Parties to satisfy the irreparable harm
criterion suffices to dispose of the present motion. In any event, I would
also have dismissed the motion on the basis that the balance of convenience
does not favour the granting of the interim relief sought. In my view, the
public interest in prescribing Gabapentin only in exceptional circumstances to
those who do not satisfy the requirements of the CSC Formulary because of the
nature of this drug and its potential for abuse within correctional settings,
outweighs in the circumstances of this case the interest of the Moving Parties
in enjoining CSC to give them access to Gabapentin.
[20]
The Respondent is seeking costs in the amount of
$2,203.90, disbursements included. The Moving Parties were not seeking costs on
the motion. They claim that the Court should not order costs in this case or,
should it decide to do so, that it takes into consideration their limited
financial means. The Court has full discretion over the amount of costs to be
awarded (Shotclose v Stoney First Nation, 2011 FC 1051) and I find an
award of costs in the amount of $400, including disbursements, to be an
appropriate one in the circumstances of this case.
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