Riley v. Nova Scotia (Community Services), 2011 NSSC 387

SUPREME COURT OF NOVA SCOTIA Citation: Riley v. Nova Scotia (Community Services), 2011 NSSC 387 Date: October 21, 2011 Docket: Amh. No. 346690 Registry: Amherst Between: Sam Riley Applicant v. Minister of Community Services, and the Assistance Appeal Board Respondents LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: October 6, 2011 in Amherst, Nova Scotia Subject: Judicial Review of Assistance Appeal Board decision to decline funding of equipment to grow medical marijuana as a “ special need ” .

Summary: The Applicant sought funding under the Employment Support and Assistance Act and Regulations for the purchase of equipment and supplies to grow medical marijuana. It was asserted that the equipment was a “ special need ” . At a previous hearing and at the hearing under review, the Assistance Appeal Board found that the Applicant did not establish that his use of marijuana could be funded as a “ special need ” . As such, the Board determined the equipment could not be characterized as a “ special need ” .

Issue: Did the Board err in concluding that equipment to grow medical marijuana could not be considered a “ special need ” in this case? Held: The Court dismissed the application. The Board did not err in its

interpretation of the regulations - equipment for growing marijuana could not be considered a “ special need ” , if the marijuana did not have the same designation. Further, as the Applicant did not produce any proof of possessing a licence to produce from Health Canada pursuant to the Controlled Drugs and Substances Act , providing funding would be contrary to public policy. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: Riley v. Nova Scotia (Community Services), 2011 NSSC 387 Date: October 21, 2011 Docket: Amh. No. 346690 Registry: Amherst Between: Sam Riley Applicant

v. Minister of Community Services, and the Assistance Appeal Board Respondents Judge: The Honourable Justice Cindy A. Bourgeois Heard: October 6, 2011 in Amherst, Nova Scotia Counsel: Sam Riley, in person Terry D. Potter, for the Department of Community Services By the Court : INTRODUCTION 1 . The Appellant, Mr. Sam Riley, asserts that he is in need of medical marijuana due to a number of health conditions.

He is in receipt of benefits under the Employment Support and Income Assistance Act , S.N.S. 2000, c. 27, and seeks to have the necessary equipment and supplies to grow medical marijuana funded as a "special need". 2 . Mr. Riley's request was denied both initially, and upon administrative review by a supervisor. The Assistance Appeal Board ("the Board") heard a further appeal by Mr. Riley, and dismissed his appeal of the decision to decline funding. Mr. Riley is now seeking a judicial review of the Board's decision. BACKGROUND 3 .

As is required by Civil Procedure Rule 7, a record of the proceedings and material before the Board was filed with the Court. It discloses the following procedural history in relation to Mr. Riley's request for funding for equipment and supplies to grow medical marijuana:

a) On December 7, 2010, Mr. Riley made a request to the Amherst office of the Department of Community Services for funding to purchase equipment and supplies.

b) Mr. Riley's request was denied. This was apparently communicated to him by virtue of correspondence from Mr. Potter, legal counsel for the Department of Community Services, dated December 15, 2010. In explaining why the request for funding was denied, Mr. Potter referenced an earlier decision of the Board, rendered in March of 2010, whereby Mr. Riley's request for funding to purchase medical marijuana was denied. The letter states:

The reason for the denial of your request is based on the denial of your previous request for medical marijuana as a special need. The Department denied your request for the provision of medical marijuana and an appeal hearing was held on March 9, 2010. By written decision, the Assistance Appeal Board denied your appeal and upheld the decision of the Department. That decision of the Assistance Appeal Board stands as unchallenged and confirms that medical marijuana is not a special need in your case. The Department will not provide you with the equipment to obtain something that has already been determined to not be a special need for you. I have attached a copy of the March 9, 2010 decision.

c) Mr. Riley filed an appeal on December 16, 2010 and following an administrative review, the decision to decline his funding request was again denied on December 29, 2010 on the basis that given Mr. Riley had been recently unsuccessful in having medical marijuana approved as a "special need", then his request for funding for equipment to grow it, could not qualify as a "special need".

d) Mr. Riley then sought an appeal to the Board. A hearing was held on February 10, 2011, with a written decision being issued the following day. Mr. Riley's appeal was again dismissed. POSITION OF THE PARTIES 4 . Mr. Riley in his written submissions and oral argument submits that the Board erred in two material fashions:

a) that the necessary information required to have the request considered as a "special need" was, contrary to the Board's written decision, before it, and not properly considered; and

b) that the Board erred in its

interpretation of "special need" as defined in the Employment Support and Assistance Regulations , N.S. Reg 25/2001 (the "Regulations"), and its application to the facts before it. 5 . The Respondent submits that based upon the Record, and considering the information before it, the Board decision was reasonable. The Respondent advances two alternate arguments in support of its request that the application be dismissed:

a) Mr. Riley did not provide the required information, pursuant to

Section 24 of the Regulations in support for a request for a special need; and

b) Mr. Riley's request for equipment to grow marijuana cannot be considered a "special need", when the marijuana itself, had not been found to be a "special need" in a recent and separate unchallenged decision of the Board. PRELIMINARY EVIDENTIARY CONSIDERATIONS 6 . As noted above, the Court was provided with a Record of the evidence and proceedings before the Board. This is required by Civil Procedure Rule 7.09. The purpose of providing a record is to permit this Court, upon review, to be aware of the information and evidence before the particular board or tribunal.

This is essential in order to assess whether the decision under review, depending on the appropriate standard of review, was correct or reasonable. 7 . Proceedings before this particular Board, are not recorded, and as such, there is no transcript available for this Court's review. The Record is to include however, all material which was before the Board. This may include affidavits, exhibits or other documentary material submitted to the Board. In the present case, the Record filed with the Court is certified by Carmen L. LeBlanc, Coordinator of Appeals as follows: a.

Pursuant to the accompanying notice, I herewith return to this Honourable Court the following papers and documents, that is to say: b. (

i) the judgement, order or decision (or as the case may be) and the reasons therefore; c. (ii) the process commencing the proceeding and the warrant issued thereon; d. (iii) the evidence taken at the hearing and all exhibits filed; and e. (iv) all other papers or documents in the proceeding.

f. And I hereby certify to this Honourable Court that I have above truly set forth all the papers and documents in my custody and power in the proceeding set forth in the originating notice. 8 . Given the submissions of Mr. Riley, it is prudent to review the contents of the Record provided to this Court. It includes:

a) a copy of Mr. Riley's Notice for Judicial Review, which attached the decision of the Board, and two Supreme Court decisions, Campbell v. Nova Scotia (Community Services) , 2010 NSSC 116 , and Campbell v. Nova Scotia (Community Services) , 2009 NSSC 176 ;

b) A further copy of the Board decision rendered by Board member, Raymond Gallant;

c) Correspondence dated January 17, 2011 addressed to Mr. Riley, advising of the date, time and place of the Appeal Board hearing;

d) Material described in the Record index as "Appellant's submissions" which contains faxed correspondence from Sally Campbell dated February 9, 2011, as well as two photographs depicting electrical outlets;

e) A document dated December 29, 2010 from Ms. Frank, Casework Supervisor to Mr. Riley advising that the administrative review had been conducted, and that he had a right of appeal;

f) Materials described in the Record index as "Department's Submission" which includes an Administrative Review report, dated December 29, 2010, a letter dated December 16, 2010 to Mr. Riley from Deborah Landry of the Department of Community Services, and Mr. Potter's letter of December 15, 2010 to Mr. Riley; and

g) a "Income Assistance: Appeal Request Form" completed by Mr. Riley and dated December 16, 2010. 9 . Of concern to this Court, is the allegation contained in Mr. Riley's submissions, both oral and written, that there was further information before the Board, that was not considered properly by Mr. Gallant. He points to medical evidence, as well as certain documents relating to the purchase of hydroponic equipment, which he asserts was provided by him. In this vein, Mr.

Riley had attached to his written submission a letter dated January 22, 2010 from a physician at Capital Health to his caseworker at the Department of Social Services. This document clearly pre-dates the Board hearing in February of 2011. It was not in the Record. Mr. Riley, in his submissions, was adamant that he had forwarded this information to the Department of Community Services. 10 . On the other hand, the Court also has the written decision of Mr. Gallant which states: a.

"The Appellant grows and uses marijuana in lieu of other prescription medications to enable him to deal with the effects of his illnesses. b. He did not present any documentation from a qualified Medical Practitioner to support his stated need for marijuana. There was no documentation or other evidence presented that supported the Appellant's claim that his marijuana is or would be more effective than medications prescribed by a qualified physician." 11 . The Court is mindful that Mr. Riley is a self-represented litigant, and that certain procedures may be unfamiliar to him.

He wants the Court to not only consider the Capital Health letter, attached to his written submissions, but to determine that the Board member erred by not giving it consideration. The Record, and the decision itself, would indicate that the material was not before Mr. Gallant. 12 . In the absence of compelling evidence to contradict the veracity of the certification provided by the Co-ordinator of Appeals, or the statement contained in the decision of Mr. Gallant, I must rely on the Record as provided as being accurate.

One would expect, where the completeness of the Record was being challenged, that a concerned party, be it applicant or respondent, would, at a minimum, file an affidavit outlining the specific documents alleging to be missing, and when, and in what context it was provided to the decision making authority. This could be done in advance of the judicial review hearing itself, or perhaps preferably as part of the original or a subsequent motion for directions.

ISSUES 13 . The issues before the Court can be summarized as follows:

a) What is the appropriate standard of review?

b) Did the Board err in declining to find equipment and supplies necessary for the growing of marijuana, a "special need"? Standard of Review 14 . The proper standard of review for Assistance Appeal Board decisions has been considered in two recent decisions of this Court. Moir, J. in Campbell v. Nova Scotia (Community Services) , 2010 NSSC 116 and Legere v. Nova Scotia (Community Services) , 2010 NSSC 67 opined that in such matters, findings of fact would be reviewable on the basis of the reasonableness standard, whereas

interpretation of the governing legislation or regulations, must be correct. I agree. Did the Board err in declining to find equipment and supplies necessary for the growing of marijuana, a "special need"? 15 . The Respondent asserts in its written submissions that Mr. Riley as Applicant has not raised any errors of law, and as such, a standard of reasonableness should apply. With respect, there is a question of law before the Court, and it was raised by the Respondent. 16 .

In my view, in asserting that before growing equipment could be considered a "special need" under the Regulations , the marijuana itself would have to be determined to be a "special need", the Respondent is raising an issue relating to the proper

interpretation of the provisions in question. This would accordingly, need to be assessed on a standard of correctness. 17 . A review of the decision itself is reflective that the Board took the exact approach suggested by the Respondent in its arguments. Mr. Gallant was unable to find that the marijuana itself could be considered a special need, and accordingly concluded that funding for the equipment to "manufacture or otherwise produce the drug is contrary to the intent of the legislation and policies". Was this

interpretation correct? 18 .

Section 2 (ab) of the Regulations define a "special need" as follows: a. (ab) "special need" means a need for b. (

i) an item or service with respect to c. (

A) dental care, d. (

B) optical care, e. (

C) funeral arrangements, f. (

D) special diet g. (

E) transportation, child care; h. (

F) implementation of an employment plan, or i. (ii) another item or service that is in the opinion of a caseworker essential for an applicant, recipient, spouse or dependent child, j. but does not include an item or service that is insured under Provincial insured health services programs or otherwise funded by government; 19 . Sections 24 and 25 of the Regulations address how a "special need" may be established. Those provisions state: a. 24(1) An applicant or recipient may request assistance for an item of special need, and the applicant or recipient shall provide the following information, where applicable, to a caseworker to support the request: b. (

a) an explanation as to why the special need is required; c. (

b) a description of the special need;

d. (

c) any documentation from professionals supporting the special need; e. (

d) the cost of the special need; f. (

e) the resources or alternatives that have been investigated with respect to obtaining the special need from other sources; g. (

f) where the cost of the special need exceeds $200, estimates for the cost of the special need from 2 separate providers; and h. (

g) an invoice or receipt for the item of special need. i.

(2) An applicant or recipient may request assistance for an item of special need in accordance with subsection (1) either before or afer the purchase of the item of special need. j. Health or medical need k. 25 Where an applicant or recipient requests assistance for an item of special need that pertains to the health or medical requirements of the applicant or recipient or the spouse or dependent chid of the applicant or recipient, a caseworker 20 . There is authority from this Court for finding the provision of medical marijuana as a "special need", to be covered pursuant to the statute and regulations.

In Campbell v. Nova Scotia (Community Services) , 2010 NSSC 116 , Moir, J. determined that the Board had not erred in interpreting the regulations, but made an unreasonable finding of fact when it concluded that medical marijuana was not essential for Ms. Campbell. The Court ordered that the Department cover the expense of her medical marijuana. Mr. Riley relies on this decision in support of his own position. 21 . What was not before the court in Campbell, supra , was a request for funding for growing equipment. Accordingly, although it is helpful to Mr.

Riley in the sense that it sets precedent that medical marijuana can be considered a "special need" in appropriate circumstances, that decision does not go further to address the issue of funding equipment.

It is also worthy of note, that in Campbell, supra , the applicant had provided the Board with more information in support of her claim than in the present instance, including "an affidavit, a copy of a letter from her physician describing her need for medical marijuana as ‘essential to her health and well being', and documentation from Health Canada showing the authorization under the Controlled Drugs and Substances Act for her to possess and use marijuana". (paragraph 3) 22 . In the present instance, Board member Gallant made a finding of fact that Mr. Riley did not establish a need for medical marijuana.

In light of the material before the Board, I find that conclusion to be reasonable. Mr. Gallant, based on that finding, then determined, if the marijuana itself was not a "special need", then the equipment required to manufacture it, could not be. I find that

interpretation of the regulation to be correct. Although medical equipment and supplies certainly can fall within the definition of "special need", it would be unreasonable to interpret the regulations in such a way that coverage of growing equipment could fall within that definition, if the very product being grown, had not received the same designation. 23 . Based upon the above determinations, the application cannot succeed. However, the Court will add one further observation which, in its own right, is fatal to the application.

Nowhere in the Record or submissions of either party, is there any indication that Mr. Riley has provided proof that he has been authorized by Health Canada to produce marijuana for medical purposes. Throughout the course of the proceedings, reference has been made to "medical" marijuana, and based upon the submissions the Court can infer that Mr. Riley likely possesses authorization to possess medical marijuana.

However, as the Marihuana Medical Access Regulations SOR/2001-227 makes clear, there is an important distinction between being authorized by Health Canada to possess dried marijuana, and to produce it either by virtue of a "Personal-use Production Licence" or a "Designated-person Production Licence". As the provisions of the Controlled Drugs and Substances Act S.C. 1996, c. 19 makes clear, the growing of marijuana, without one of the production licences provided by Health Canada, is an offence. 24 .

It would, in my view, be contrary to public policy for the Department of Community Services to provide funding either for the purchasing or manufacturing of marijuana, unless an applicant can establish that Health Canada has issued an appropriate licence. CONCLUSION 25 . For the reasons stated above, the application is dismissed. J.