Date: 20010621
Docket: T-939-01
Neutral Citation Number: 2001 FCT 684
BETWEEN:
DONALD APPLEBY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
TEITELBAUM, J:
[1] The applicant, Donald Appleby, filed with the Registry of the Federal Court of Canada, on May 28, 2001, a document which he titled "APPLICATION UNDER Section 18(1) of the Federal Court Act" then states, immediately under the above heading "NOTICE OF MOTION FOR INTERLOCUTORY ORDER OF MANDAMUS (Pursuant to Rule 372.1)".
[2] The applicant then goes on to state:
THE MOTION IS FOR an interim Order of Mandamus pursuant to Rule 372(1) compelling the Respondent to grant an interim Section 56 Exemption until such time as Health Canada convinces the Applicant's doctors that the prescription should be changed and the exemption revoked.
THE GROUNDS ARE that waiting for my prescription to be filled while doctors try to convince a pharmacist they are right violates my right to life; though getting my medicine while the pharmacist tries to convince the doctors to change their prescriptions does not.
[3] Section 18.1 of the Federal Court Act (Act) deals with applications for judicial review while section 18(1) of the Act deals with the issue of the Trial Division's exclusive original jurisdiction relating to extraordinary remedies such as to issue an injunction, a writ of certiorari, writ of prohibition, writ of mandamus or grant declaratory relief against any federal board, commission or other tribunal.
[4] The applicant is representing himself and, unfortunately, is not very familiar with the Federal Court Act or the Federal Court Rules.
[5] In reading through the very brief motion record, it would appear that it is the intention of the applicant to proceed with an application for judicial review and, at the same time, make an application under section 18.2 for an interim order in the form of a mandamus to cause the Minister of Health to issue to the applicant an interim section 56 [of the Controlled Drugs and Substances Act (CDSA)] exemption to use marijuana for medical purposes.
[6] Section 18.1 of the Act states:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(5) Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_:
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
(5) La Section de première instance peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées.
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[7] Section 18.1(2) of the Act clearly states that the judicial review application must be in respect of a decision and must be made within a delay of 30 days after the decision is communicated to the applicant.
[8] The decision referred to by the applicant is dated May 18, 2001 and, for a better comprehension, I believe it necessary to include same as part of my judgment.
May 18, 2001
Mr. Donald Appleby
3 - 412 Blake Boulevard
Vanier, Ontario
K1L 6L2
Dear Mr. Appleby:
This is further to your application under section 56 of the Controlled Drugs and Substances Act (CSDA) for marihuana for a medical purpose. The information you provided has been reviewed. We would like to inform you of our intention to refuse your application for an exemption and to provide you with an opportunity to respond before a decision is made. Based on a review of the information supplied, it has been determined that your application does not satisfy the requirements of section 56.
The ground for the proposed refusal of your application is:
· In determining whether an exemption is necessary for a medical purpose in a particular case, the Minister may consider certain factors, such as "whether therapies currently available in Canada have been reasonably tried but have failed or in cases where therapies have not been tried, such therapies have been reasonably considered and been found to be inappropriate by the treating practitioner." Section 5.1.1 D iii and iv of the Interim Guidance Document refers to the need to provide information on all therapies that have been tried or considered. The reason specified by your physician for requesting the use of marihuana stated in the application form is "antiviral side effect". Your application does not document any therapies that have been tried or considered to relieve symptoms or side effects associated with the use of antiviral medications.
You may wish to provide to the undersigned any additional information or submissions which support why your application should not be refused, based on the above described ground. You must provide this documentation in writing on or before June 1, 2001. If we do not hear from you on or before that date, your application will be refused without any further opportunity to respond. You may send any additional information by fax at (613) 952-2196 or by mail at the address below. Please ensure that you clearly indicate your file number in your communication.
Should you have any questions regarding this matter, you may contact the Evaluation and Research Coordination Division directly at (613) 954-6540 or at the following address:
Evaluation and Research Coordination Division
Drug Strategy and Controlled Substances Programme
Healthy Environments and Consumer Safety Branch
Health Canada
Address Locator: 3503B
Ottawa, Ontario
K1A 1B9
Sincerely,
"J. Gomber"
Jody Gomber
Director General
Drug Strategy and
Controlled Substances Programme
[9] As is apparent from the letter of May 18, 2001, the applicant was informed that he must provide certain documentation by no later than June 1, 2001 and that if this is not done "your application will be refused without further opportunity to respond".
[10] Although at the time the applicant filed his application for what he calls an application for judicial review no final decision had been made as to the "Section 56" application, I am now satisfied that a final decision of refusal has been made and that this decision can be reviewed when all the delays for the filing of evidence has expired.
[11] Federal Court Rules 301 to 310 and following govern the procedure for the filing of affidavits by the parties and the delays that must be followed.
[12] As I have said, the applicant represents himself and it is apparent that he has absolutely no knowledge of how to proceed.
[13] The applicant filed an affidavit with his Notice of Motion. He states in paragraphs 1 to 5, 14, 15, 16, 18 and 19:
1. I am diagnosed as terminally-ill and my doctor summarily signed an application for a Section 56 exemption for me to consume marijuana for medicinal purposes.
2. Exhibit A is May 18 2001 Health Canada Letter of refusal to grant an exemption on the grounds that my physician, Doctor of Medicine Hamdy, failed to sufficiently "document any therapies that have been tried or considered" to the standards demanded by Judy Gomber, Drug Strategy and Controlled Substances Programme Director General and Doctor of Philosophy.
3. On Sep 1 2000, Health Canada pharmacist Sandra Toscano acknowledged my application and informed me that all correspondence would be directed to me because section C, the consent to collection information, was not signed.
4. On Apr 17 2001 eight months later, Ms. Toscano informed me that section C, the consent box, had to be signed to "enable us to contact Dr. Hamdy IN CASE additional information is needed." People with my illness could be dead if it takes 8 months before finding out that we forgot to fill a box on the form.
5. On April 19, I faxed off my consent with a Federal Court 30-day Ultimatum for Section 56 Exemption. On May 18 2001, the full 30 days later, Health Canada sent the official refusal to grant me marijuana in my dying days. My doctor absolutely does not want to fill out any more forms. He wants to hear nothing more about Health Canada red tape. There is no way he will write the essays requested by his examining phamacist (sic).
14. The crux issue is: Will the court allow sick people to wait to have their prescriptions filled until their doctors have convinced the Minister's pharmacists that the prescriptions are correct? Or will the court order that sick people get their medicine until the Minister's pharmacists have convinced the doctors to change their prescriptions and permit revocation of the exemptions?
15. Even if the court does grant that Government pharmacists may examine doctors on reasons for their prescriptions, patients should have their medicine while their doctors write their explanatory essays to the examining pharmacist on their thoughts and philosophies for the various treatments tried and why they were discontinued and on ALL other possible treatments and why they didn't try them first.
16. After all, Health Canada keeps pointing out the many available treatments that could have been used and they could be quizzing the doctors forever. So while the doctors submit to their tests, call it a temporary, even preliminary, but necessary exemption if you will, but let it be cancelled if and when a pharmacist proves the doctors wrong to the satisfaction of, not a medically incompetent Minister Minister (sic) of Health but to other real doctors.
18. Time is of the essence because their Letter of Intent to Refuse gave me two weeks, actually 10 days after I received it in the post, to get my doctor to come up with ALL the documentation and ALL the essays demanded or my Application will be officially "refused without any further opportunity to respond;." It's hard enough to get an appointment in 10 days, let alone his written thoughts on the philosophies on all the issues raised.
19. This Affidavit is made in support of a motion to a judge with the power to do anything that is just for an interim Order of Mandamus compelling the Respondent to grant an interim Section 56 Exemption until such time as Health Canada convinces the Applicant's doctors that the prescription should be changed and the exemption revoked.
[14] By letter dated June 1, 2001, counsel for the respondent has informed the applicant that Health Canada is prepared to postpone the time within which to provide the additional information requested to July 30, 2001.
[15] As can be seen from paragraph 19 of the applicant's affidavit, he makes the request that the Court order the respondent, I believe he means the Minister of Health, to grant to him "an interim Section 56 exemption".
[16] As I have stated, the applicant believes that pursuant to Rule 372 of the Federal Court Rules I have the jurisdiction to issue the interim order of mandamus that he is requesting.
[17] Rule 372 states:
372. (1) A motion under this Part may not be brought before the commencement of a proceeding except in a case of urgency.
Undertaking to commence proceeding
372(2)
(2) A party bringing a motion before the commencement of a proceeding shall undertake to commence the proceeding within the time fixed by the Court.
372. (1) Une requête ne peut être présentée en vertu de la présente partie avant l'introduction de l'instance, sauf en cas d'urgence.
Engagement
372(2)
(2) La personne qui présente une requête visée au paragraphe (1) s'engage à introduire l'instance dans le délai fixé par la Cour.
and is found under Part 8 of the Rules and is titled Preservation of Rights in Proceedings - Partie 8 Sauvegarde des droits.
[18] I am satisfied that even if I were to have sufficient evidence before me that would enable me to grant the interim order requested, Rule 372 is meant to safeguard an applicant's right in the case of an urgency and pending disposition of proceedings.
[19] The issue before me is not a preservation of a right. The applicant will not lose any right if I do not grant the interim order he now requests. It simply means, and I do not minimize the seriousness of his request, that the applicant would have to proceed with an application for judicial review by serving and filing such an application with supporting affidavits from himself and from his doctor or doctors, if that is his desire, and then make a request pursuant to section 18.2 of the Act, again with the necessary evidence.
[20] If this were to be done, the respondent would be granted a reasonably short delay, because of the urgency of the issue, to file its evidence.
[21] In this specific case, I am prepared to allow the present application before me to be the commencement of an application for judicial review. I am prepared to allow the applicant to submit sufficient evidence, one or more affidavits, to show urgency and to show by means of a detailed affidavit from one or more medical doctors why it is necessary that the applicant be permitted the medical use of marijuana and why other treatment is not adequate.
[22] It is up to the applicant to file this evidence as quickly as possible. Within 10 days of serving the affidavits on the respondent, if he wishes to serve and file any further affidavits, the respondent shall file, if that is respondent's wish, whatever affidavit evidence he wishes to place before the Court.
[23] The applicant should request that he be granted an expedited hearing, to which, because of the seriousness of the present request, I am sure the Court will give serious consideration.
[24] I believe it is necessary for me to comment on the attitude of the applicant and of those who attended the hearing with him, who are also applicants in other motions before me.
[25] It must be understood that at the present time in Canada it is a criminal offence to grow and use marijuana even for medicinal purposes unless permitted pursuant to section 56 of the CDSA. Therefore, to be permitted the use of marijuana for medical reasons, the person making such a request must show sufficient evidence that the applicant requires marijuana to alleviate pain or nausea. Having said this, the respondent has a duty not to put impediments in the way of such requests that would make the granting of such a request under section 56 illusory. The respondent should, first of all, ensure that such a request as is being made by the present applicant be dealt with expeditiously and in the matter of a few days, not months as appears to be happening in this case.
[26] Secondly, the consideration of such requests should be given in a generous and sympathetic manner and not in a restrictive or narrow manner. Any doubt, if the person is ill, as it appears in this case, should and must be resolved in favour of the applicant.
O R D E R
[27] The application for an interim order of mandamus is denied. The present application is to be considered an application for judicial review of a decision dated May 18, 2001.
[28] The rules of the Federal Court dealing with judicial review matters shall apply, except that the applicant shall have to the 30th of July 2001 to file whatever affidavit evidence he may wish to file and the respondent shall have up to10 days in which to file his affidavit evidence after being served with the affidavits filed and served by the applicant.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
June 21, 2001
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