Next week, I am travelling for a conference, and so there will be no SEAR for Sunday, June 2. The newsletter will resume on Sunday, June 9. As always, please feel free to send any cases that you think should be featured in the newsletter.
Lance v Canada (Attorney General), 2024 FC 787 (May 24, 2024)
Category: Charter.
**Thank you to a SEAR reader for sending this case**
Context: This is a decision of a Delegate of the Minister of Health, rejecting Lance and his doctor’s request under Health Canada’s Special Access Program [SAP]. The SAP provides an exemption from criminal laws and regulations prohibiting the purchase and possession of unapproved drugs. The SAP is designed to address specific and limited situations involving patients with demonstrated need or in medical emergency. Lance and his doctor applied under the SAP for a time-limited amount of psilocybin (mushrooms) capsules to treat “cluster headaches,” “which are capable of inflicting some of the most severe pain known to medical science” [1]. Lance supported his application (1) his doctor’s account of Lance’s medical history; (2) the literature concerning psilocybin medical treatment; and (3) legal arguments under the Charter, s.7, Lance applied under the SAP.
The Delegate refused the request “on the grounds that the medical efficacy of psilocybin to treat cluster headaches had not been established, and alternative conventional treatments had not been ruled out” [4, 35]. The reasons of the Delegate were brief [46].
Issues: (1) What are the “Minister’s reasons”? (2) Was the decision reasonable?
Holding: (1) The Minister’s (Delegate’s) reasons include certain extra-record material; (2) The decision is unreasonable.
Analysis: On one hand, this case is a confirmation of principles developing in the post-Vavilov world: the submissions of the parties are super-strong constraints on administrative discretion. But there are other reasons why this case is important.
First, as I noted last week, the universe of materials that comprise “reasons for decision” is seemingly becoming broader: see Rockcliffe Park Residents Association, 2024 ONSC 2690. The “culture of justification” is, here, making a difference. The point is not that litigants are now given an opportunity to bootstrap the record because it would “better” foster the culture of justification. Instead, and as Fothergill J here notes, materials that pre or post date the decision can form the “record” that was “before the decision-maker,” and is therefore appropriate for consideration on judicial review [57-59]. This is particularly so where submissions are at issue: “Where a person affected by a decision communicates with the decision maker, this may inform the reasons for the decision. The exchange is not only part of the history of the matter in respect of which the decision was rendered; it is a part of the history which the applicant itself created” [60]. In other words, any communication between the affected party and the decision-maker is likely to find its way into the record, affecting how the decision-maker must justify itself.
I think it is important to keep in mind that the purpose of construing the record this way is to give concrete reality to the culture of justification. Keeping this purpose in mind can help us to decide which materials should be part of the record. On one hand, and interestingly, there was a phone call that took place between Lance’s doctor and the Delegate. There was a transcript of this call. For Fothergill J, this call formed part of the record of proceedings between the applicant and the decision-maker [61]. This is right: it is a live conversation between the affected individual and the decision-maker prior to the decision. However, an “internal rationale” provided by the Delegate to his colleagues after the decision was made was not communicated to Lance, and so this rationale does not engage the culture of justification [62].
On the merits, there are two important parts of this case. First, this case is proof-positive of the role of the parties’ submissions under the Vavilov framework. In absence of clear evidence to the contrary, a decision-maker’s failure to clearly address submissions will be fatal. We have seen this theme sounded by the Supreme Court in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108). So, here, where “[t]he SAP request was accompanied by lengthy legal submissions respecting Mr. Lance’s right under s 7 of the Charter to be granted access to psilocybin…” and those submissions “were wholly disregarded by the Minister’s delegate” we cannot read the sparse reasons to try to find an “implicit” rationale [85]. That would be the Court arrogating to itself the decision-making role. After Commission scolaire, 2023 SCC 31 (Issue #117), this is especially so when it comes to Charter arguments. Importantly, it is not that a decision-maker must come to a particular view on the Charter arguments. But they must be addressed by the decision-maker.
Second, readers will recall Toth v Canada (Mental Health and Addictions), 2023 FC 1283 (Issue #108). Toth was an application from healthcare practitioners to use psilocybin themselves so that they may better understand treatment using the drug. The Minister rejected the clinical use of the drugs in this way, reasoning that the doctors could have applied for a clinical trial. In Toth, Charter arguments were similarly raised by the doctors, but the Court (per Pallotta J) found that the decision-maker essentially addressed and dispatched the Charter arguments by questioning their very premise: that healthcare practitioners need experiential training to provide effective care to patients (Toth, at paras 112-113).
Fothergill J distinguishes Toth, suggesting that it involved healthcare practitioners, whereas this case involves the use of psilocybin for the patient himself. Unlike in Toth, the Minister’s Delegate “did not question the safety and efficacy of psilocybin in Mr. Lance’s particular circumstances” [88]. This is one way to distinguish Toth. But to call a spade a spade, and as I noted in Issue #108, Toth could be read to justify a sort of review that asks courts to look deeply at the record to find an implicit discussion of Charter rights. Better, in my view, to insist on a high bar for the finding of such implicit decision-making: see Zeifmans LLP v Canada, 2022 FCA 160 at para 10. This is another theme evident from Mason.
This is even so, here, where the respondent advanced practical, institutional reasons for insisting on a lower bar for engaging with arguments: “Mr. MacKay states in his affidavit that the SAP is a small team that handles a large number of requests of varying complexity and urgency. With approximately 13 employees, the SAP processes roughly 1,000 requests and 800 phone calls each month. The SAP receives an average of 60 requests per day, of which one quarter represent medical emergencies and must be managed within minutes or hours. Requests for a new indication can lengthen the processing time” [67]. In other settings this sort of argument has met success: see Peterson v College of Psychologists of Ontario, 2023 ONSC 4623 (Issue #103). And, of course, we must be alive to practical realities of cash and resource-strapped administrative decision-makers. Nonetheless, I’ve always been wary of taking this argument too far. All state actors, regardless of their resourcing, are subject to the law—and this must be so, even if “the heavens may fall.”
Casa Loma Residents Association v 555 Davenport Holdings Ltd, 2024 ONSC 2297 (April 18, 2024)
Category: Practice and procedure.
Context: I have included this case from April because it deals with an interesting practice issue: after the Supreme Court’s decision in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (Issue #129), how are courts dealing with concurrent judicial review applications alongside rights of appeal, usually limited to questions of law? In this case, the added wrinkle was a leave provision: “Subsection 24 (1) of the Ontario Land Tribunal Act, 2021, SO 2021, c 4, Sch 6, provides that a person who wishes to appeal a decision of the board requires permission or leave to appeal. If leave to appeal is granted, an appeal is then available but only on a question of law” [4]. Here, the applicant sought leave to appeal on a question of law and judicial review on questions of evidence (mixed fact and law).
The question in this case is how to schedule an efficient proceeding where the leave requirement must be met, first. A motion for leave would typically be heard before a single judge, with three judge panels hearing the appeal and the application for judicial reivew If the leave requirement is met, then the usual practice post-Yatar can work: the appeal and judicial review can be heard before the same panel. But the applicant in this case also wanted the same panel “to hear the motion for leave to appeal, the appeal, and the judicial review application together on the same day,” because the leave proceeding is inextricably tied to the merits [21].
Here, Myers J is keen to keep the leave to appeal requirement and the appeal/judicial review separate. This is because of the weight he affords to the legislature’s design choice: here, the imposition of a leave requirement to weed out unmeritorious cases that do not raise a transcendent point of law. Moreover, combining the leave requirement with either the judicial review application or the appeal leads to practical problems [23-24]. Myers J says the following:
[27] I do think it is important to give effect to the legislative deference implicit in the leave to appeal requirement.
[…]
[29] I do not rule out the use of combined hearings of motions for leave to appeal and the appeal in future cases. This is the norm, for example, in the Superior Court of Justice on appeals from commercial arbitration where leave to appeal is required. However, before I simply opt for the most affordable route, I need to be satisfied that the combined hearing still does justice to the legislative deference afforded to this particular tribunal. It seems to me that once we have developed a body of jurisprudence concerning combining appeals with judicial review proceedings under Yatar, this issue may be ripe for review.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.