Alicia Yashcheshen Appellant (Plaintiff/Applicant) v. Ministry of Health, Ministry of, 2022 SKCA 68

Court of Appeal for Saskatchewan Docket: CACV3580 Citation: Yashcheshen v Saskatchewan (Ministry of Health) , 2022 SKCA 68 Date: 2022-06-02 Between: Alicia Yashcheshen Appellant (Plaintiff/Applicant) And Ministry of Health, Ministry of Social Services and Attorney General for Saskatchewan Respondents (Defendants/Respondents) Before: Barrington-Foote, Tholl and Kalmakoff JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Kalmakoff On appeal from: 2020 SKQB 4 , Saskatoon Appeal heard: February 8, 2022 Counsel: Alicia Yashcheshen on her own behalf Johnna Van Parys for the Ministry of Health and the Ministry of Social Services Noah Wernikowski for the Attorney General for Saskatchewan Tholl J.A. I. INTRODUCTION [ 1 ] Alicia Yashcheshen has significant medical issues, which she believes are best treated through the use of cannabis.

In a judicial review application, she challenged two separate decisions by two ministries of the Government of Saskatchewan – the Ministry of Health and the Ministry of Social Services [collectively Ministries] – to not pay for the cannabis products she asserts are necessary to effectively address her medical conditions. Additionally, she asserted that this failure by the Ministries represented a violation of her rights under s. 7 of the Charter . She sought various orders and declarations, plus reimbursement for the amounts she had already expended on cannabis.

Her application was dismissed in its entirety by the Chambers judge: Yashcheshen v Saskatchewan (Ministry of Health) , 2020 SKQB 4 , 69 Admin LR (6th) 146 [ Chambers Decision ]. [ 2 ] Ms. Yashcheshen appeals the whole of the Chambers Decision , arguing that the Chambers judge erred by applying the incorrect standard of review, making an unreasonable decision, incorrectly interpreting the applicable legislation and not finding a s. 7 Charter violation. On appeal, she asserts that the refusals by the Ministries also violated her rights under s. 15 of the Charter .

This latter Charter issue was not raised in front of the Court of Queen’s Bench. [ 3 ] For the reasons that follow, the appeal with regard to the decision of the Ministry of Social Services is allowed and the remainder of the appeal is dismissed. II. BACKGROUND [ 4 ] Ms. Yashcheshen has various medical conditions, including Crohn’s disease, chronic pain, irritable bowel syndrome and drug hypersensitivity syndrome. She believes that her conditions are most effectively treated by using organic Cannabis sativa L. administered through capsules, edibles and oils: cannabis is also known as medical marijuana. Ms.

Yashcheshen is on social assistance and cannot afford to pay for these products on her own. She sought help with funding her purchases by engaging with the Ministries. In the meantime, Ms. Yashcheshen has relied on her parents to assist with this expense. [ 5 ] On January 3, 2018, Ms. Yashcheshen applied to the Drug Plan and Extended Health Benefits Branch of the Ministry of Health and asked that her cannabis products receive exception drug status [EDS] and be paid for through that program.

By way of an email on January 12, 2018, confirmed by a letter dated January 15, 2018, the Ministry of Health denied her request. It indicated that medical marijuana is not covered under the Saskatchewan Formulary, or any other provincial or territorial drug plan. The letter further stated that marijuana for medical use is not an approved therapeutic product and has not been assessed by Health Canada for safety, efficacy and quality as required under the Food and Drugs Act , RSC 1985, c F-27 , and its associated regulations. In response to her inquiry about an appeal process, Ms.

Yashcheshen was told by the Ministry of Health that there was no such appeal mechanism available. [ 6 ] Ms. Yashcheshen applied to the Ministry of Social Services for social assistance on May 24, 2018, under the Saskatchewan Assured Income for Disability [SAID] program, but her application was not complete. Under SAID, the Ministry of Social Assistance can provide enhanced benefits for persons who have an enduring and significant disability. On June 4, 2018, she also applied for social assistance under the Social Assistance Program [SAP].

On June 15, 2018, monthly SAP benefits of $784 were approved, retroactive to the

application date. On June 27, 2018, Ms. Yashcheshen wrote to the Ministry of Social Services and asserted that she was erroneously approved under SAP when she should have been approved under SAID. In that same letter, she also asked that the Ministry of Social Services provide her $200 per month for medical cannabis oil, $69.75 per month for Vega shakes, and $100 per month for yoga therapy. The Ministry of Social Services accepted the letter as an appeal of its June 15, 2018, decision and scheduled a hearing in front of the Centre Regional Appeal Committee [Committee].

In the meantime, additional information was sought from Ms. Yashcheshen in relation to her SAID eligibility and additional correspondence was exchanged. On July 17 and 18, 2018, the Ministry of Social Services advised Ms. Yashcheshen that it would not pay for most of the various items for which she had sought coverage. However, her request for funding for Vega shakes was approved on August 20, 2018. [ 7 ] The appeal was heard by the Committee on August 22, 2018, and a decision rendered on that same date. The Committee noted that Ms.

Yashcheshen was now receiving SAID pending benefits , which appears would continue if she completed all of the required steps to confirm her eligibility. In the relevant part of its notice of decision, the Committee denied Ms. Yashcheshen’s request for the Ministry of Social Services to pay for her cannabis products on the basis that it “has no ability to fund drug related benefits and all such benefits are governed by the Ministry of Health”. In its appeal report, this conclusion is expressed as “The disability related costs that Ms.

Yashcheshen is requesting are health related needs which are not covered under social assistance programs. Health related expenses, and decisions regarding what medication / health needs will be covered, is managed by the Ministry of Health”. [ 8 ] On August 24, 2018, Ms. Yashcheshen further appealed this decision to the Social Services Appeal Board.

On September 4, 2018, the Social Services Appeal Board denied that appeal, finding that it did not have jurisdiction to hear her appeal, and concluded as follows: The Social Services Appeal Board can only hear grievances administered under the Saskatchewan Assistance Program. Your appeal appears to be requesting assistance to pay for a drug. Drugs do not fall under the Social Assistance Program. Cannabis oil is a prescription item, whether it is used as a supplement or otherwise. [ 9 ] Dissatisfied with the refusals to pay for her cannabis products, Ms.

Yashcheshen sought judicial review of the decisions rendered by the Ministries. At the same time, she alleged that her rights under s. 7 of the Charter were being violated by the government’s rejection of her requests for these expenses to be covered. More specifically, in her originating application filed at the Court of Queen’s Bench on September 18, 2018, Ms. Yashcheshen asked for the following: [1] ORDER: pursuant to Rule 10-3 and/or Rule 3-49(g)&(h) [ sic ] of The Queen’s Bench Rules , compelling the:

(1) Ministry of Social Services, under the Saskatchewan Assistance and/or Saskatchewan Assure Income for Disability Regulations S-8 REG 11 & 12, at 18 and 15: Special Food Items (monthly) during “convalescence”, to cover the cost of the applicant’s infused Cannabis supplements as part of her physician prescribed treatment plan; overturning their appeal board decision to deny it; and/or the

(2) Ministry of Health, under

section 7 of the Canadian Charter of Rights and Freedoms , to provide a constitutionally acceptable exemption from the ban on coverage under the special support program’s non-insured supplementary health benefits for medical Cannabis oil to accommodate the applicant’s case by providing coverage. [2] DECLARATION: the court concludes that the applicant’s liberty and security interests are engaged by the access restrictions imposed by the denial of special support program coverage of her Cannabis oil, and that the access restrictions have not been proven to be in accordance with the principles of fundamental justice under s. 7 , and are not saved by s. 1. [3] REMEDY: retroactive reimbursement of the cost of the applicant’s Cannabis oil dating back to March 20th, 2011 until present, since the applicant was eligible for coverage, under the Special Support Program, but was denied based upon unconstitutional bureaucratic red tape over a “DIN” [Drug Identification Number]. [4] This remedy is requested pursuant to QB Rule 3-49(1)(

h) and section 24(1) of the Canadian Charter of Rights and Freedoms : $63,000.00. … [8] Emergency relief for Cannabis oil under Social Services legislation. [ 10 ] Ms. Yashcheshen filed two of her own affidavits on the application. Appended to one of those affidavits were two letters from her family physician, Dr. Thomas Mitchell, advising of her medical conditions and recommending cannabis infused products be used to relieve her symptoms. She later filed an affidavit from Dr. Mitchell, who expressed his hope that the full cost of her cannabis products would be paid for by the government.

In his affidavit, he confirmed Ms. Yashcheshen’s medical conditions, described the extensive testing she had undergone, set out some of the medical research that had been conducted on the issue, and extolled the benefits and potential efficacy of the treatment she wanted. The following excerpts from Dr.

Mitchell’s affidavit best reflect the gist of his opinion and recommendations: [3] THAT I am writing this affidavit pro bono for a patient with a low income and specific circumstance, which is rather urgent; my hope is that benefit coverage will be granted indefinitely for the full cost of her Cannabis treatment, under EDS [exceptional drug status], due to her lack of response to conventional treatments, chronic intractable pain and need to stop the inflammation, which causes painful damage to her bowel, stomach and colon from severe Crohn’s Disease.

The applicant suffers from drug hypersensitivity syndrome (“DHS”), rarely severe enough to cause an overlap between Stevens-Johnson syndrome and DHS, which means she had immune-mediated reactions to several drugs. This is a life-threatening condition, the inability to metabolize the primary medication or its toxic metabolites (slow acetylators), which puts her at an increased risk of death. Avoidance of drug exposure is key here.

The use of FECO [full extract cannabis oil] suppositories are her last attempt at relief when all other pharmaceuticals have failed her. … [9] THAT the applicant ought to be granted Exception Drug Status (“EDS”) for Cannabis sativa L (1–5 ml-THC and 1–5 ml-CBD oil daily) and that this patient meets the coverage criteria because pharmaceutical drugs are always contraindicated to her due to the danger that drugs will cause her reactions. This is a rare occasion where full extraction Cannabis sativa L oil: THC & CBD is the only therapeutic

substance that can send the applicant’s Crohn’s Disease into remission, control her chronic pain, force hunger, and give her the quality oflife which no other drug could. The lone side effect is its cost. The applicant has trialed and been deemed unresponsive to all treatmentsavailable for Crohn’s Disease and opiate addiction. (Emphasis in original) [11] The Ministries each filed a certified record of proceedings in response to the judicial review application.

Additionally, theMinistry of Health filed an affidavit from Arlene Kuntz, the director of the Professional Practice Unit, Drug Plan and Extended BenefitsBranch. In her affidavit, Ms. Kuntz described, inter alia, the Saskatchewan Formulary and the EDS program and confirmed that theMinistry of Health does not consider cannabis products, with one exception that is not relevant to the matter at hand, to be eligible forcoverage under the EDS program. III. CHAMBERS DECISION [12] The Chambers judge commenced her judgment by providing an overview of the background and summarizingMs. Yashcheshen’s requests as follows: (

a) judicial review of the Ministries’ decisions to deny coverage for cannabis with an order compelling them to cover the ongoingcosts; (

b) a declaration that her Charter rights had been violated; and (

c) damages in the amount of $63,000, representing payment for cannabis she had purchased in the past. [13] Turning to the standard of review to be applied in a judicial review application, the Chambers judge noted the principles fromDunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Alberta (Information and Privacy Commissioner) v Alberta Teachers’Association, 2011 SCC 61, [2011] 3 SCR 654; and Canada (Ministry of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR(4th) 1 [Vavilov].

Based on this jurisprudence, she determined the standard of review to be applied to both Ministries’ denials was that ofreasonableness. [14] The Chambers judge reviewed the facts, including Ms. Yashcheshen’s medical challenges and the opinions of Dr. Mitchell,which were further explained in two letters he had written. She noted that the factual background was largely not in dispute. In the courseof comprehensively reviewing the communications, procedure and decisions related to each of the Ministries, she noted the various Acts,regulations and policies that are applicable to the matter.

She then turned to a separate assessment of the decisions of each of theMinistries. [15] Beginning with the Ministry of Social Services, the Chambers judge described the issue to be addressed in the following terms: [49] The essence of the MSS [Ministry of Social Services] Appeal Board’s decision that is to be reviewed by me, using the standard ofreasonableness, is that Ms. Yashcheshen’s appeal was not a grievance arising out of the administration of SAP because it related tocoverage for drug related costs. At the heart of that decision is the conclusion that, contrary to Ms.

Yashcheshen’s contention, Cannabis isa drug and not a “special food item” regardless of the fact that Ms. Yashcheshen uses Cannabis in edible form. [16] The Chambers judge dismissed the application for judicial review of the decision by the Ministry of Social Services. Thefollowing excerpts from her judgment encapsulate her reasons for doing so: [50] As stated above, MSS does have the discretion to provide exceptional disability support coverage for benefits such as “Special FoodItems”.

Special Food Items include “special food during pregnancy, lactation, convalescence or for treatment purposes is recommended bya health professional recognized by the minister” and the benefit is for the purpose of paying for those special food items. … [54] … Looking at the key phrases relating to exceptional disability support benefits, within the overall context of the SAID Regulationsand the SAID Policy, it becomes clear that Cannabis does not fall within the ambit of such benefits. The term “special food item” isdefined as a benefit paid for a special diet that costs more than “ordinary food costs”.

The term “special diet” is tied to “food supplements”and specific examples of food supplements are given – enriched food products such as Boost and Ensure. Even if the SAID Regulationsand SAID Policy are interpreted broadly, Cannabis cannot reasonably be seen as food in the sense intended by the legislation. [55] Recipients of SAP benefits or SAID benefits cannot unilaterally make themselves eligible for exceptional disability support coveragesimply by choosing to use Cannabis in edible form.

The mere fact that Cannabis is ingested does not convert it from a drug to a food suchthat it falls under the umbrella of social assistance benefits provided by MSS. To so conclude would be to strain the language of the[Saskatchewan Assistance] Regulations, the SAID Regulations, and the SAID Policy to the point of absurdity. This would be contrary toone of the foundational principles of statutory

interpretation. See Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR27. [56] It must also be remembered that it is an entirely discretionary decision as to whether MSS will provide exceptional disability supportcoverage at all. Even if Cannabis could be seen as a special food item, Table 2 of the SAID Regulations provides that benefits may be paidfor special food items.

Section 10.2.2 of the SAID Policy states that a benefit for special food items may be provided. In other words, thereis no entitlement to coverage for a special food item at all, even if the item could conceivably fall within a category set out in the SAIDPolicy. …

[58] In sum, even if I would have exercised the discretion granted by the SAID Regulations and the SAID Policy differently than MSS did in this case, it is not for me to substitute my own view in the place of the discretion that was exercised by MSS. To do so would be to abandon the principle of deference and to improperly step into the shoes of MSS and examine the merits of its decision. That is not my role. [59] The Appeal Board’s conclusion that Cannabis is a drug and not a food, even if taken in edible form, lies entirely in the realm of reasonable and is insulated from Ms.

Yashcheshen’s challenge. [60] Furthermore, the Appeal Board’s overarching decision that Ms. Yashcheshen’s appeal was not a grievance subject to its review logically flowed from its conclusion that Cannabis is a drug and therefore a matter for the Ministry of Health. Drug coverage falls squarely within the statutory mandate of the Ministry of Health and the Appeal Board correctly and reasonably declined jurisdiction to hear Ms.

Yashcheshen’s second appeal. (Emphasis in original) [ 17 ] Pivoting to the challenge to the decision by the Ministry of Health, the Chambers judge also found that she could not intervene in that decision. She did so for the following reasons: [61] … I begin my review with the first route to coverage for a drug – whether or not the drug is included in the Formulary. Cannabis is not. Whether it should be or not is not for me to say.

The Drug Advisory Committee is a committee that includes public representatives and clinical specialists who are specifically selected and uniquely positioned to decide what drugs will be added and what drugs will be removed from the Formulary. The Formulary itself is a living document. The decision as to which drugs will be included in the Formulary is clearly a discretionary decision to which deference must be applied and I will not intervene. [62] The second route to coverage for a drug that is not included in the Formulary is by way of Exception Drug Status coverage.

Under the EDS Program, the minister may make a payment for a drug even if it does not appear in the Formulary on any terms and conditions that the minister considers appropriate. In this case, the Ministry of Health decided that Cannabis did not qualify for Exception Drug Status because, in the view of the Ministry of Health, it had not been sufficiently assessed for safety, efficacy and quality. [63] To allow Ms.

Yashcheshen’s challenge would open the floodgate and, in the case of the Ministry of Health, remove the necessary discretion of the Ministry of Health to add or remove drugs from the Formulary or to determine whether a particular drug and a particular individual fall within Exception Drug Status. [64] Even if I would have exercised my discretion differently than the Ministry of Health in denying coverage for Cannabis, it was a wholly discretionary decision made by the Ministry of Health and is not a decision in which I will intervene. (Emphasis in original) [ 18 ] Ms.

Yashcheshen had also asserted that her right to life, liberty and security of the person, as guaranteed by s. 7 of the Charter , had been violated by the actions of each of the Ministries. The Chambers judge reviewed relevant jurisprudence and academic commentary, which she concluded established that s. 7 does not create a free-standing constitutional right to health care or compel a positive obligation on the part of governments to fund health care.

This review included Gosselin v Québec (Attorney General) , 2002 SCC 84 , [2002] 4 SCR 429 [ Gosselin ], and Flora v Ontario Health Insurance Plan , 2008 ONCA 538 , 295 DLR (4th) 309 [ Flora ]. Based on this analysis, she concluded as follows on this issue: “Thus, I find that the current state of the law is that s. 7 does not impose a positive obligation on government to provide services – in this case coverage for a particular drug. Ms.

Yashcheshen has failed to establish a breach of her Charter rights by MSS or the Ministry of Health” ( Chambers Decision at para 73). [ 19 ] Neither Ministry sought costs of the application in the Court of Queen’s Bench, so none were ordered. IV. ISSUES [ 20 ] The issues in this matter can be stated as follows: (

a) Did the Chambers judge, in the judicial review application, err in upholding the decision by the Ministry of Health? (

b) Did the Chambers judge, in the judicial review application, err in upholding the decision by the Ministry of Social Services? (

c) Did the Government of Saskatchewan, through the actions of its Ministries, violate Ms. Yashcheshen’s rights under s. 7 of the Charter ? (

d) Should this Court adjudicate the alleged violation of Ms. Yashcheshen’s rights under s. 15 of the Charter ? [ 21 ] Appeals from judicial review decisions might, in some matters, be best approached by not segregating the Charter issues from the administrative decision that is being examined. However, I find that separating them in this matter provides a better format for the analysis. [ 22 ] As a final point with regard to the issues, I note that this judgment does not involve an adjudication on whether cannabis products are a safe, an effective and a less costly treatment option for a person in Ms.

Yashcheshen’s circumstances or whether such a course of treatment is superior to the use of pharmaceutical products contained in the Saskatchewan Formulary. The issue of whether cannabis should be on the Saskatchewan Formulary or have a Drug Identification Number is also not before us. V. ANALYSIS

A. Judicial review 1. Decision by the Ministry of Health [ 23 ] Ms. Yashcheshen has a firmly held belief, backed up by the evidence of her family physician, her personal experience and her extensive reference to academic research on the subject, that cannabis products are the only effective form of treatment for her personal medical situation. The veracity and legitimacy of that assertion, while not conceded, was not challenged by the respondents. It was clear that no one was seeking to prevent Ms. Yashcheshen from undergoing her chosen form of care.

However, not standing in the way of a course of treatment is not the same as funding it. The Ministry of Health considered Ms. Yashcheshen’s request to pay for her cannabis products under the EDS program and determined that it would not do so. The Chambers judge found that this was a reasonable decision. [ 24 ] The standard of review that the Chambers judge was required to apply to the Ministry of Health’s decision was presumptively that of reasonableness: Vavilov at paras 10–32 . The decision to refuse funding under the EDS program does not fall into any of the exceptions that would rebut this presumption.

As such, the Chambers judge did not err in choosing the reasonableness standard of review. Having made this determination, this Court must apply a correctness standard in reviewing her determination that the Ministry of Health’s decision was not unreasonable: Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras 43–44 , [2003] 1 SCR 226, and Kupsar v Regina Provincial Correctional Centre , 2020 SKCA 142 at para 36 , 474 CRR (2d) 285 [ Kupsar ].

In effect, this Court steps into the shoes of the Chambers judge and re-examines the decision made by the Ministry of Health to determine if it was reasonable. [ 25 ] As set out in Vavilov , when judicially reviewing an administrative decision for reasonableness, the following framework must be applied: [83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.

The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v.

Canada (Attorney General) , 2015 FCA 117 , 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan [2003 SCC 20], at paras. 50–51.

Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [84] As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first.

A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion … . [85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable.

As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.

The reasonableness standard requires that a reviewing court defer to such a decision. [86] … Reasonableness, according to Dunsmuir , “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid . In short, it is not enough for the outcome of a decision to be justifiable .

Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. (Emphasis in original) [ 26 ] The Ministry of Health’s decision was made in the context of s. 5.1 of The Prescription Drugs Act , RSS 1978, c P-23 : Payments for exceptional drugs 5.1 Notwithstanding any other provision of this Act or the regulations, the minister may make a payment, in any amount and in accordance with any terms and conditions that the minister considers appropriate, to or on behalf of any resident who has received a drug whether or not the drug is listed in the formulary. [ 27 ] This

section vests significant discretion in the Minister or their delegate with regard to the payment for drugs, including those not listed in the Saskatchewan Formulary. However, this authority is not wholly discretionary , as stated by the Chambers judge, given that it remains subject to constraints that govern its proper exercise: Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119, and Kot v Kot , 2021 SKCA 4 at paras 16–17 , 63 ETR (4th) 161. [ 28 ] The Ministry of Health does not suggest otherwise.

To the contrary, it submits that the decision to refuse EDS status was reasonable and reflected an appropriate exercise of discretion based on the statute. More specifically, it asserts that it made its decision based on the lack of information regarding the safety, quality and efficacy of marijuana as a therapeutic product. That concern was clearly reflected in the reasons provided by the Ministry of Health for refusing to pay for Ms.

Yashcheshen’s cannabis products, which are contained in the following excerpt from its January 15, 2018, letter: As you may know, Health Canada is responsible for the national framework and regulations by which marijuana for medical use is available in Canada. Medical marijuana is not covered under the Saskatchewan Formulary or any other provincial or territorial drug plan formularies.

Unlike the drug products listed in the Saskatchewan Formulary, marijuana for medical use is not an approved therapeutic product. It has not been assessed by Health Canada for safety, efficacy and quality as required under the Food and Drugs Act and regulations. [ 29 ] Ms. Yashcheshen was requesting funding through the EDS program because the product for which she sought funding is not included in the Saskatchewan Formulary and, therefore, is not paid for by the government under the Saskatchewan Drug Plan.

As such, the first paragraph quoted above merely confirmed the status of cannabis in relation to that approved list. [ 30 ] The second paragraph of the decision letter contains the reasons why Ms. Yashcheshen’s request was denied. As stated in the affidavit of Ms. Kuntz, and the policy documents attached to it, coverage for drugs not included in the Saskatchewan Formulary may be approved under the EDS program, where certain criteria are met. One of those criteria relates to the safety and efficacy of a product.

There is no question that the Ministry of Health is entitled to take account of safety and efficacy when considering whether to approve EDS applications, and, in this case, it had determined that – absent a Health Canada assessment of safety, efficacy and quality – it was not prepared to approve Ms. Yashcheshen’s application. In my view, the reasons of the Ministry of Health in its decision letter provided a transparent and intelligible justification for its decision within the context of the applicable statutory authority. [ 31 ] Included in Ms.

Yashcheshen’s concerns with the Chambers judge’s decision is the absence of any analysis of the comparative costs of medication that the Ministry of Health would fund versus the cost of cannabis products. Her calculations purport to demonstrate that the expense associated with covered pharmaceutical options far exceeds the cost of cannabis products. In her view, it is nonsensical to pay more for a treatment that does not work, but refuse to cover a less expensive, yet effective, alternative. [ 32 ] This line of argument is of no assistance to Ms. Yashcheshen.

The Ministry of Health did not purport to make its decision on the basis of relative costs. It justified its decision on its view of the safety, efficacy and quality of cannabis products, not cost; and, as I have indicated, it was entitled to make this discretionary decision on that basis. While Ms. Yashcheshen wanted the Chambers judge, and now this Court, to determine whether the Ministry of Health was correct in refusing to approve her application for funding under the EDS program, that was not the role of the Chambers judge nor is it the role of this Court.

That was a decision to be made by the Ministry of Health, provided that the decision was reasonable within the meaning of Vavilov . In my view, it was. 2. Decision by the Ministry of Social Services [ 33 ] A review of the decision by the Ministry of Social Services is more nuanced than the review of the decision from the Ministry of Health because this decision to deny funding was subject to two layers of statutory appeal before it arrived on the Chambers judge’s desk for the judicial review application. [ 34 ] As noted, on May 24, 2018, Ms.

Yashcheshen applied for SAID benefits, pursuant to The Saskatchewan Assured Income for Disability Regulations, 2012 , RRS c S-8 Reg 11 [ SAID Regulations ], but only partially completed the application form. In her application, she requested, inter alia , funding for cannabis and dispensers. On June 4, 2018, she also completed an application for SAP benefits under The Saskatchewan Assistance Regulations, 2014 , RRS c S-8 Reg 12 [ SA Regulations ] . On June 15, 2018, she was approved for SAP benefits of $784 per month.

This included an amount of $50 under the category of disability, but no specific funding was included for cannabis products. The income assistance worker assigned to Ms. Yashcheshen advised her that she would be nominating her for supplementary health coverage and that she would be receiving a letter from the Ministry of Health in relation to that coverage in due course. Ms. Yashcheshen appealed the decision to provide her with SAP benefits as opposed to SAID benefits.

In her appeal letter to the Ministry of Social Services, dated June 27, 2018, she requested funding of $200 per month for medical cannabis oil. [ 35 ] The first-level appeal was made to the Committee, pursuant to s. 37(2) of the SAID Regulations . A hearing was set pursuant to s. 38 of those same regulations. [ 36 ] In the meantime, the Ministry of Social Services issued two letters to Ms. Yashcheshen.

The one sent on July 17, 2018, contained the following paragraph: “I am writing to advise you that your request for reimbursement of V RSO oil in 5 ml dispenser and CBD 24.40% Hemp Flower Oil in 5 ml, dispenser have been denied because this is not a benefit available through the social assistance program”. [ 37 ] The letter dated July 18, 2018, was slightly different, but still refused payment for cannabis products: “I am writing to advise you that your request for reimbursement of V RSO oil, CBD 24.40% Hemp Flower Oil and Yoga Therapy have been denied because this is not a benefit available through the social assistance program”. [ 38 ] Ms.

Yashcheshen’s appeal to the Committee was heard on August 22, 2018. This first appeal considered the issue of funding for cannabis products. The portion of the notice of decision that dealt with this issue is as follows: REASON FOR APPEAL: You are appealing the Ministry’s denial of full SAID benefits, denial of your special diet requirements and medical costs related to cannabis oil. MINISTRY’S POSITION: … The Ministry further indicated that there are no provisions in policy or regulations to allow funding to cover cannabis oil expenses.

All such drug related costs are the responsibility of the Ministry of Health. CLIENT’S POSITION: Your position is that you are aware of the SAID eligibility process and the retroactive benefits you will be entitled to if deemed eligible. You also acknowledge that the Ministry is now covering your special diet needs.

You indicate that your only course of treatment for your medical needs remains to be the use of cannabis oil. You also indicated that you are aware that decisions on the funding for this treatment falls under the control of the Ministry of Health. … DECISION: … We find that the Ministry is providing all financial benefits available to you as a pending SAID beneficiary. The Ministry is also providing the special diet supplements required.

We further find that the Ministry has no ability to fund drug related benefits and all such benefits are governed by the Ministry of Health. [ 39 ] The Committee’s decision was further appealed by Ms. Yashcheshen to the Social Services Appeal Board [SSAB] pursuant to s. 39 of the SAID Regulations . The relevant portions of those regulations are as follows: Appeals to the appeal board 39

(1) An applicant or eligible beneficiary who is dissatisfied with the decision of an appeal committee made pursuant to

section 38 may notify the minister in writing of: (

a) his or her intention to appeal the appeal committee’s decision to the appeal board; and (

b) the grounds of the appeal. …

(5) If the minister is notified of an appeal by the applicant or eligible beneficiary pursuant to subsection (1) or if the minister intends to appeal pursuant to subsection (3), the minister shall: (

a) in the case of an appeal by an applicant or eligible beneficiary, send the notice of appeal and the grounds of appeal to the secretary of the appeal board; (

b) transmit to the secretary of the appeal board: (

i) any documents and records in the possession of the minister relating to the matter under appeal; (ii) a copy of the written decision and reasons of the appeal committee received pursuant to subsection 38(13); and (iii) promptly on their being received pursuant to subsection (6), a

summary of the issues and evidence presented before the appeal committee; and (

c) notify the appeal committee of the appeal.

(6) On being notified pursuant to subsection (5), the appeal committee shall promptly provide to the minister a

summary of the issues and evidence presented before the appeal committee.

(7) The appeal board shall commence an appeal hearing within 30 days after receipt of the notice of appeal by the secretary of the appeal board.

(8) The appeal board shall give not less than five days’ written notice of the date, time and place of the hearing to the minister and the applicant or eligible beneficiary. …

(9.3) The testimony of the applicant or eligible beneficiary and any other witnesses at the hearing must relate to the issue under appeal.

(9.4) The minister must be given the opportunity to present additional evidence and to question the applicant or eligible beneficiary or his or her representative or advocate.

(9.5) The applicant or eligible beneficiary, or his or her representative or advocate, must be given the opportunity: (

a) to question the representative of the minister who attends the hearing and the minister’s witnesses; (

b) to examine any documents submitted by the minister; and (

c) to present additional evidence related to the issue under appeal. [ 40 ] Ms. Yashcheshen filed her notice of appeal with the SSAB on August 24, 2018. Below, I set out her notice of appeal in full because, in addition to the grounds of appeal, it also contains submissions and additional evidence in the form of information from her family physician: 1. THAT the denial for reimbursement of the appellant’s medical Cannabis, under the Ministry’s regulations, breaches them in their broader language, while violates her constitutional rights, by interfering with her therapeutic needs, therein forcing her to be under- medicated greatly, risking her disease coming out of remission.

2. THAT the appellant is entitled to accommodation under British Columbia (Public Service Employee Relations Commission) v.BCGSEU, (SCC), [1999] 3 S.C.R. 3. The Ministry has a legal obligation to accommodate the appellant’s disability needsaccording to Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 to provide exceptional need income for herCannabis cost related to the impact of her disability. 3.

THAT pursuant to the Saskatchewan Assistance and/or Saskatchewan Assured Income for Disability Regulations S-8 REG 11 & 12,under 18 and 15: “Special Food Items (monthly)” during “convalescence” [meaning time spent recovering from an illness] ought toinclude her Cannabis because it is edible to her and for treatment purposes recommended by the appellant’s health care professional(Dr. Adams and Dr. Mitchell) for a digestive system and eating disorder in which she is in chronic recuperation. 4.

THAT according to Health Canada Cannabis sativa L is not a drug with a DIN (drug identification number) under the Food and DrugsAct, therefore, it is not considered a compensable “drug” benefit to the meaning that Saskatchewan Health would even have jurisdictionover covering it. Cannabis is considered a therapeutic nutritional product like Hemp or Honey; therefore, the liability of coverageconvenes to the “special food items” allowable under the regulations governing the Ministry.

Thus, the law must be interpreted literally asit is written, allowing for Cannabis as a supplement when it is eaten, as in this case. 5. THAT since Cannabis has no Drug Identification Number and it is not included in the Saskatchewan drug formulary, which is a list ofeligible drugs. Saskatchewan Health cannot add it to their drug benefits plans due to it having no DIN. Therefore, the funding must comefrom the Ministry of Social Services, under their exceptional need income determining basics entrenched in their policy. 6. THAT on or about July 3rd, 2012, Dr.

Adams, the appellant’s family physician since 2005, wrote “pt has IBS and Crohn’s Disease andcame to have cannabis forms filled; she makes a concoction and drinks it and apparently has some relief”. (attached hereto as Exhibit“A”). 7. THAT on or about November 3rd, 2014, Dr. Adams wrote “pt said she uses about 20 gm of marijuana daily because she makes it intoshakes and drinks it.

She said it doesn’t make her feel high because it is cold”. (attached hereto as Exhibit “B”). [41] The parties agree that an oral hearing was not held by the SSAB, and further evidence or submissions were not requested orreceived from either of them before the SSAB rendered its decision. As such, procedures set out under ss. 39(7), (8), (9.3), (9.4) and (9.5)of the Said Regulations were not followed. [42] On September 4, 2018, the SSAB dismissed Ms. Yashcheshen’s appeal.

The following excerpts from its September 4, 2018,decision letter are relevant: The Social Services Appeal Board has no jurisdiction to hear this appeal. Under the Social Services Administration Act, 10(1) page 5,says: “The minister may establish appeal committees, that shall review or hear any grievances, arising out of the administration of this Act orany other Act administered by the ministry, that are submitted by persons who feel that they are aggrieved by a decision, act or omissionof an official or representative of the ministry”.

Under Roles and Responsibilities of Appeal Committees – Tab 1 (page 1 of 12) Appointment of Appeal Committees, says: “Appeal Committees are established pursuant to

Section 10 of The Department of Social Services Act. This Act allows the Minister toestablish an Appeal Committee to review or hear any grievances arising out of the administration of the Saskatchewan AssistanceProgram.” The Social Services Appeal Board can only hear grievances administered under the Saskatchewan Assistance Program. Your appealappears to be requesting assistance to pay for a drug. Drugs do not fall under the Social Assistance Program. Cannabis oil is a prescriptionitem, whether it is used as a supplement or otherwise. [43] There is no further statutory appeal from a decision by the SSAB.

Accordingly, Ms. Yashcheshen’s only available remedy wasjudicial review: Welk v Social Services Appeal Board (Sask.) (1985), (SK KB), 44 Sask R 252 at para 12 (QB), leave toappeal to SCC refused, (1986), (SK CA), 28 DLR (4th) 475n. While Ms. Yashcheshen’s originating application is not amodel of clarity, it was properly treated by the Chambers judge as a request to judicially review the SSAB’s decision. However, this wasnot simply a judicial review of an administrative decision; it was a judicial review of a decision from a second level of appeal.

As such, theissue of the standard of review that the Committee, the SSAB and the Court of Queen’s Bench were required to apply requires furtherexamination. 3. Standard of review for the Ministry of Social Services decision [44] Beginning with the Committee, I note that the standard of review that should be applied by an internal appeal board to a firstinstance decision-maker was set out by Whitmore J.A. in City Centre Equities Inc. v Regina (City), 2018 SKCA 43, 75 MPLR (5th) 179[City Centre]. This decision was most recently discussed by Barrington-Foote J.A. in E.Z.

Automotive Ltd. v Regina (City), 2021 SKCA109, [2022] 4 WWR 55, which confirmed that the approach taken in City Centre remained the proper approach after taking into accountthe Supreme Court’s subsequent guidance from Vavilov. [45] City Centre established that the standard of review that internal appeal boards should apply will be discerned from thelegislation itself and the intent of the drafters. It is not open to a court to simply apply its own standards of review to internaladministrative appeal boards when their decisions are under review.

Instead, when conducting a judicial review of an internal appealboard decision, the reviewing court must first determine what the legislation mandates as the appropriate standard of review to be appliedby the internal appeal board. This will necessarily become an exercise in statutory

interpretation.

[ 46 ] An examination of s. 38 of the SAID Regulations clearly reveals that the appeal process that must be undertaken by the Committee constitutes a hearing de novo . Section 38(2) defines what issues the Committee will hear. Section 38(4) onwards then goes on to set out what procedures must be followed for the appeal process: Appeal with regard to financial benefits 38

(4) The minister shall advise the applicant or eligible beneficiary making the appeal in writing of: (

a) the date, time and place of the hearing; and (

b) the right of the applicant or eligible beneficiary: (

i) to present supporting evidence and witnesses at the hearing; and (ii) to designate a representative or advocate.

(5) The testimony of the applicant or eligible beneficiary and any other witnesses at the hearing must relate to the issue under appeal.

(5.1) A hearing pursuant to this

section must be conducted in an informal manner and the appeal committee is not bound by the rules of law concerning evidence.

(5.2) Recording devices must not be used at a hearing.

(6) The minister must be given the opportunity to present additional evidence and to question the applicant or eligible beneficiary or his or her representative or advocate.

(7) The applicant or eligible beneficiary, or his or her representative or advocate, must be given the opportunity: (

a) to question the representative of the minister who attends the hearing and witnesses of the minister; and (

b) to examine any documents submitted by the minister.

(8) The appeal committee or its representative may: (

a) examine: (

i) the applicant or eligible beneficiary or his or her representative or advocate. (ii) the minister. (iii) any other witnesses; and (

b) inspect any document submitted at the hearing. [ 47 ] As can be seen from these excerpts, the appellant and the Ministry of Social Services have a right to call witnesses and other evidence. This feature of the appeal process indicates that the Committee was required to view the issues and make the decision as if it had come before it for the first time. This is a hallmark of a de novo hearing: Abouhamra v Prairie North Regional Health Authority , 2016 SKQB 293 at paras 73–74 , 16 Admin LR (6th) 265.

Such a hearing was held by the Committee and no concerns arise with respect to that aspect of this matter. [ 48 ] Turning to the second level appeal, the SSAB is a statutory review board established by s. 10(2) of The Social Services Administration Act , RSS 1978, c S-52.01 [ SS Admin Act ] . Pursuant to s. 2 (

b) of the SAID Regulation s , appeal board means the SSAB .

Section 39 of the SAID Regulations provides for the appeal regime and procedure which the SSAB must follow when hearing appeals under those regulations. The relevant portions of s. 39 of the SAID Regulations are set out above and will not be repeated here.

In my examination of the provisions, I observe that the only significant difference in the process outlined for the conduct of an appeal in front of the Committee versus that of one in front of the SSAB is the transmission of the record of the proceedings before the Committee to the SSAB pursuant to s. 39(5). [ 49 ] Because appeals before the SSAB require the record of the proceedings before the Committee to be considered, these appeals cannot simply be categorized as true de novo hearings.

However, other than this one difference, the procedure outlined for both appeals before the Committee and the SSAB have virtually all the same features. Particularly, they both allow for a full hearing with a right to tender new evidence, including viva voce evidence. While the requirement to consider the existing record indicates that the SSAB does not conduct an entirely de novo hearing, the right to call new evidence could involve making fresh findings of fact.

Given that both the Committee and the SSAB are mandated to conduct full hearings where the parties can present their position afresh, provide new documentary and viva voce evidence and question the other party, it does not appear that the Legislature intended for any level of deference to be afforded by the SSAB to the Minister’s original decision or to the Committee’s decision.

In my view, this is indicative that the SSAB should apply a correctness standard of review to an appeal from the Committee. [ 50 ] This brings me to a consideration of the standard of review to be applied by the Chambers judge and, consequently, by this Court. Here, the SSAB decided that it did not have jurisdiction to consider the appeal from the Committee. It made this determination in the absence of a hearing where Ms. Yashcheshen could call further evidence or make representations, which raises an issue of procedural fairness.

The SSAB’s decision that it did not have jurisdiction to hear the appeal is subject to a reasonableness standard of review: Vavilov at paras 65–68 . However, the procedural fairness issue is reviewable on a standard of correctness: Kupsar at para 37 . 4. Analysis of the SSAB’s decision

[51] The SSAB considered the very narrow issue that Ms. Yashcheshen had raised and decided that it did not have jurisdiction tohear the appeal because the product in question was a drug, not a food. In doing so, it concluded that “[t]he Social Services Appeal Boardhas no jurisdiction to hear this appeal. … Your appeal appears to be requesting assistance to pay for a drug. Drugs do not fall under theSocial Assistance Program. Cannabis oil is a prescription item, whether it is used as a supplement or otherwise”. The SSAB found that therelevant cannabis products were drugs, not food.

Based on this factual finding, it decided that it did not have jurisdiction to hear herappeal. However, the very issue at stake in the appeal was whether cannabis products could be categorized as a special food item for thepurposes of benefits under the SAID Regulations. The review of a decision to grant or deny funding for special food items clearly fallswithin the SSAB’s jurisdiction.

More significantly, the SSAB made its findings of fact and its jurisdictional decision without conducting ahearing that complied with s. 39 of the SAID Regulations. [52] As noted by Barrington-Foote J.A. in Akpan v The University of Saskatchewan Council, 2021 SKCA 129, not every failure tocomply with a prescribed procedural rule requires a reviewing court to grant a remedy: [22] Here, there was a failure to comply with a prescribed procedural rule.

However, such a failure – even if the rule is prescribed bystatute – is not always fatal: Potter v Halifax Regional School Board, 2002 NSCA 88 at paras 116–121, leave to appeal to SCC refused[2003] 1 SCR xv; Oates v Royal Newfoundland Constabulary Public Complaints Commissioner, 2003 NLCA 40, 231 DLR (4th) 648;Canadian Tire Corporation Ltd. v Regina (City) Board of Revision, 2001 SKQB 496, 212 Sask R 142; Robertson v Edmonton (City), (AB KB), [1990] 4 WWR 232 at 242–245.

The decision as to the effect of non-compliance has often been made bydistinguishing provisions that are mandatory from provisions that are directory. In M & D Farm Ltd. v Manitoba Agricultural CreditCorp., (SCC), [1999] 2 SCR 961, Binnie J. explained this distinction: [44] The distinction is well established between legislative provisions that are mandatory (in the sense that non-compliance results ininvalidity) and directory (where non-compliance may in certain circumstances be relieved against): Reference re Manitoba LanguageRights, (SCC), [1985] 1 S.C.R. 721, at p. 737.

In determining whether a statutory directive is mandatory or directory, thisCourt must be guided by the object of the statute and the effects of ruling one way or the other: British Columbia (Attorney General) v.Canada (Attorney General);

An Act respecting the Vancouver Island Railway (Re), (SCC), [1994] 2 S.C.R. 41 at pp. 123–24. Indeed, these are the most important considerations: Blueberry River Indian Band v. Canada (Department of Indian Affairs andNorthern Development), (SCC), [1995] 4 S.C.R. 344, per McLachlin J., at para. 42. [53] After examining the relevant portions of the SAID Regulations, it is my view that the procedural requirements in the matter athand were mandatory. This flows from the objects of the SAID Regulations and the effect of denying or awarding benefits to an applicant.Both Ms.

Yashcheshen and the Ministry of Social Services should have had the opportunity to argue the factual and jurisdictional issuesthat were decided by the SSAB. Ms. Yashcheshen was denied procedural fairness with regard to her right to an appeal hearing in front ofthe SSAB. As a result, the matter must be remitted to the SSAB for a proper hearing to be held. [54] In making this determination, I am aware that Ms. Yashcheshen did not initially take issue with the manner in which the SSABappeal was conducted.

She did not raise any procedural issues as a ground of appeal and did not make even tangential complaints aboutany aspect of the SSAB process in this Court or in the Court of Queen’s Bench. When the SSAB procedural issue was raised by this Courtfor the first time at the hearing of this appeal, she did not suggest any further submissions she could have made to the SSAB, point to anyfurther evidence that she would have called, or indicate any potential prejudice arising from not being able to question a representativefrom the Ministry of Social Services. In addition, I note that Ms.

Yashcheshen was able to put at least some of her argument in front of theSSAB in the form of the record from the Committee, her notice of appeal and the supplementary evidence she provided. However,keeping in mind that Ms.

Yashcheshen is a self-represented social assistance recipient, who was not provided with an opportunity to havea procedurally fair proceeding conducted by the SSAB, it is my view that, despite this Court’s hesitancy to address new arguments onappeal, she should be given the chance to present her case to the SSAB in a hearing that complies with s. 39 of the SAID Regulations.Further, counsel for the Ministry of Social Services helpfully agreed that it would be appropriate for the Court to consider this issue [55] As a concluding note, I observe that effective July 5, 2019, the SAID Regulations, the SA Regulations and The SaskatchewanIncome Support Regulations, RRS c S-8 Reg 18, were amended.

Section 28.1 of the SAID Regulations, s. 26.1 of the SA Regulations ands. 3-4 of The Saskatchewan Income Support Regulations now explicitly prohibit any benefit from being paid in relation to cannabisproducts or related accessories under any social assistance program in Saskatchewan. These portions of the regulations were not inexistence when the Ministry of Social Services made its decision, so they were not relevant to its reasoning at the time, but I flag them forthe sake of completeness. B. The Charter issues

Section 7 of the Charter [56]

Section 7 of the Charter provides individuals with “the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice”. The s. 7 issue was raised by Ms. Yashcheshen in heroriginating notice filed in the Court of Queen’s Bench. None of the administrative decision-makers purported to render a decision on theCharter issue. [57] Ms. Yashcheshen submits that s. 7 requires one of the Ministries to pay for her purchases of cannabis products because they aresafe, efficacious and medically necessary in her specific circumstances.

In her oral argument, she clarified her position as an assertion thatany time cannabis is prescribed by a physician, and it represents a person’s last resort for treatment, the government is required to fund thatprescribed treatment. Ms. Yashcheshen argues that the refusal to cover the expense has had an adverse impact on her security of theperson from a health and financial perspective. She contends that the Ministries’ refusal to cover the expense makes her more susceptibleto requiring social assistance. Ms.

Yashcheshen says that she has no choice but to buy cannabis products because this treatment, in hercircumstances, is a matter of life and death. [58] The Attorney General for Saskatchewan argues that Ms. Yashcheshen’s s. 7 rights have not been infringed because she has notestablished that she has been deprived of any interest protected by that

section of the Charter. In his submissions, the Attorney General

asserts that a government decision not to ameliorate a condition, which already exists in the absence of state action, does not represent adeprivation of a s. 7 right. He contends that s. 7 does not impose positive obligations; s. 7 only creates negative obligations. The Ministriesadopt the arguments and position of the Attorney General. [59] An examination of whether s. 7 of the Charter has been violated by a government actor involves a two-step process. First, theclaimant must establish that they have been deprived of their life, liberty or security of the person.

If they successfully do so, the claimantmust prove that the deprivation was not done in accordance with the principles of fundamental justice. Both of these factors must beproven on a balance of probabilities. These principles are set out in Chaoulli v Quebec (Attorney General), 2005 SCC 35 at paras 29–30and 109, [2005] 1 SCR 791 [Chaoulli], and Carter v Canada (Attorney General), 2015 SCC 5 at para 55, [2015] 1 SCR 331. [60] In my view, the Chambers judge was correct to determine that Ms. Yashcheshen’s claim under s. 7 of the Charter fails at thefirst stage of the analysis.

Section 7 does not impose an obligation on a government actor to take any positive action with regard to fundinga chosen form of health care. This principle is well established in Gosselin at paras 81–82 and 208–209; Wynberg v Ontario (2006), (ON CA), 269 DLR (4th) 435 (Ont CA) at paras 218–220, leave to appeal to SCC refused, ; Flora atparas 93–102; C.C.W. v Ontario Health Insurance Plan (2009), (ON SCDC), 305 DLR (4th) 538 (Ont Sup Ct (Div Ct))at paras 94–100; and Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at paras 511–570, 28 Imm LR (4th)1.

In my view, these cases provide a complete answer to Ms. Yashcheshen’s assertions regarding s. 7. [61] Ms. Yashcheshen relies on several cases for the proposition that the failure to fund her treatment violates s. 7 of the Charter.She points out that s. 7 was engaged in each of the following cases related to medical marijuana: R v Parker (2000), (ON CA), 146 CCC (3d) 193 (Ont CA); Hitzig v Canada (2003), (ON CA), 177 CCC (3d) 449 (Ont CA), leave toappeal to SCC refused, [2004] 1 SCR x; Allard v Canada, 2014 FC 280, 451 FTR 45, rev’d in

part 2014 FCA 298, 324 CRR (2d) 78;Allard v Canada, 2016 FC 236, 349 CRR (2d) 86; and R v Smith, 2015 SCC 34, [2015] 2 SCR 602. I note that a comparable situation alsoarose in Chaoulli. However, all of those cases are distinguishable from the matter at hand on the basis that each of them involved thegovernment erecting roadblocks or actively prohibiting access to preferred forms of medical treatment, and it was those barriers thatconstituted s. 7 violations. In the matter at hand, no one is preventing or hindering Ms. Yashcheshen from accessing her chosen form oftreatment.

There is no state interference in relation to her access to her medication of choice. While the Ministries’ funding decisions maylimit her ability to purchase cannabis products, given her personal budgetary constraints, a refusal to pay is not comparable to thesituations in the cases relied on by Ms. Yashcheshen. This line of jurisprudence does not advance her arguments. [62] A positive obligation to cover the cost of Ms. Yashcheshen’s cannabis products cannot be grounded in s. 7 of the Charter.There has been no deprivation through state action.

The Ministries’ unwillingness to cover this expense does not fall into the category ofgovernmental action that attracts the protection of s. 7. Ms. Yashcheshen’s rights under s. 7 are not infringed by the Ministries’ refusal tofund her treatment through the use of cannabis products. The Chambers judge correctly determined that this claim fails at the first stage ofthe test.

Section 15 of the Charter [63] Ms. Yashcheshen raised s. 15 of the Charter for the first time in her notice of appeal and later filed with this Court a notice ofconstitutional question in this regard. Nowhere in her 23-page originating application at the Court of Queen’s Bench did she mention s. 15,although Ms. Yashcheshen points out that she used words such as disabled, disability, discriminatory and discrimination at various placesin her application. This stands in juxtaposition to the frequent explicit references to s. 7 of the Charter in her application and extensiveargument on that issue.

In any event, s. 15 was not raised or argued in front of the Chambers judge; and, consequently, the Chambersjudge did not address it. The Attorney General and the Ministries are opposed to this issue being heard in this appeal for the first time. [64] At the hearing of the appeal, Ms. Yashcheshen made no oral submissions regarding s. 15 of the Charter and, when questionedby the panel, indicated that she was content to rely on s. 7 of the Charter and abandoned her s. 15 arguments. Nevertheless, later in heroral submissions she changed her mind and asked this Court to address s. 15.

The Court permitted her to change her position. However, inmy view, it would be improper for the Court to consider the s. 15 issue. [65] This Court is typically hesitant to hear arguments on appeal that were not raised at the prior level of proceedings. The rationalefor this reluctance is set out by Richards C.J.S. in Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116, 405 DLR (4th) 506, asfollows: [28] The settled rule, of course, is that this Court is generally loath to entertain a wholly new argument on appeal. … [29] That said, this principle is not absolute and it does admit of exceptions.

In this regard, it is important to note that the rule is groundedlargely in the self-evident proposition that it would be unfair to allow an argument to be introduced on appeal in circumstances where theopposing party would have wanted to introduce additional evidence in the court below if it had been aware of the issue. When thoseconcerns are not present, there is necessarily room for more flexibility. … [31] … by raising a point for the first time at this stage of the proceedings, Mr.

Meier has denied the Court the benefit of the analysis andinsight that would have been provided by the Chambers judge’s decision on the point. This is a relevant consideration and, in at least somecases, it might be a determinative one. [66] As stated by Kalmakoff J.A., in A.M. v Ministry of Social Services, 2020 SKCA 114 at para 183, the discretion to hear a newissue raised for the first time on appeal is narrow and is to be exercised sparingly. [67] In the matter at hand, I see no valid reason to permit Ms.

Yashcheshen to raise her s. 15 arguments for the first time on appeal.As noted by the Attorney General, the adjudication of a claim of adverse effect discrimination is an evidence-heavy endeavour and cannotbe decided in the abstract. This assertion finds support in Canadian Broadcasting Corp. v New Brunswick (Attorney General), (SCC), [1996] 3 SCR 480 at para 15; MacKay v Manitoba, (SCC), [1989] 2 SCR 357 at 361–362; and

Kahkewistahaw First Nation v Taypotat , 2015 SCC 30 at para 34 , [2015] 2 SCR 548. Here, the respondents have not had the opportunity to file any such evidence because Ms. Yashcheshen’s application in the Court of Queen’s Bench did not alert them to this issue. As a result, the evidentiary record is insufficient to adjudicate this issue. There is a factual vacuum in relation to s. 15. In addition, we have been deprived of the Chambers judge’s analysis and insight, which would have provided a decision to be reviewed and would have informed our considerations.

In the circumstances at hand, there are no countervailing arguments that can overcome these problems. As a result, we decline to hear and determine the s. 15 issue. VI. CONCLUSION [ 68 ] The appeal with regard to the SSAB decision is allowed and the matter is remitted to the SSAB for a new hearing. The remainder of the appeal is dismissed. The Attorney General did not request costs and, given the Ministries’ reliance on the Attorney General’s arguments on the Charter issues, none are ordered in relation to that portion of the appeal.

As the results have been otherwise mixed, there shall be no order of costs for this appeal or for the associated motions and directions in Court of Appeal Chambers. “Tholl J.A.” Tholl J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.