TURMEL: Crown Response to Mozajko Supreme Court Leave Application

JCT: Igor Mozajko filed his Application for Leave to Appeal
the Court of Appeal's decision overturning the decision of
Federal Court Justice Brown to dismiss the Crown's motion to
strike Igor's Statement of Claim for damages due to permit
processing delays after Lead Plaintiff Jeff Harris refused
the Application for Leave to Appeal I had prepared for him.

Because I had Igor coming up the rear with the same
arguments, Justice Brown had dismissed the Crown's strike
motion for the same reason as cited in Harris, I didn't mind
Jeff giving up his Supreme Court appeal, he'd been driven
over the edge by having to deal with foul-mouthed Scott
McCluskey. Quite the fluke that the Crown had filed a motion
to dismiss his action that gave him the right to appeal too.

It took a long time for processing the leave application due
to Covid but Igor Mozajko's Application for Leave to Appeal
against dismissal of his action for damages due to delay in
processing his permit has been accepted for filing:

Supreme Court of Canada
Registry
October 20, 2022

Dear Igor Mozajko,

RE: Igor Mozajko v. His Majesty the King

File No.: 40395

This will acknowledge receipt of your application for leave
to appeal and amended notice of application, on April 12,
2021 and September 3, 2021, respectively. I apologize for
the delay in responding to you. We have completed our review
of your material and I can now confirm that your application
for leave to appeal has been accepted for filing. The court
file number in this case is 40395. However, the application
for leave to appeal may not be submitted until you provide
the documents listed below:

JCT: All the other almost 400 plaintiffs for damages due to
delay had their actions dismissed for fear of $150 costs
except for Steve Vetricek whose 9 month delay before they
opened his letter to then hop to it was so egregious it was
worth him risking the $150 to continue the fight.

The Crown had 30 days to file a response to Igor's
Application at http://SmartestMan.Ca/delmnscc.pdf and now
has:

Department of Justice Canada
Ontario Regional Office
National Litigation Sector

120 Adelaide Street West Suite #400
Toronto, ON M5H 1T1
Email/Courriel: Jon.Bricker@justice.gc.ca

VIA EMAIL

November 17, 2022
Ms. Chantal Carbonneau, Registrar
Supreme Court of Canada,
301 Wellington Street
Ottawa, Ontario K1A 0J1
Email: registry-greffe@scc-csc.ca

CR: Dear Registrar:

Re: MOZAJKO, Igor v His Majesty the King, File No. 40395

Please accept this letter as the response of His Majesty the
King in Right of Canada ("Canada"), to the application for
leave to appeal in this matter. The proposed appeal does not
raise an issue of public importance, and Canada accordingly
requests that the application be dismissed, with costs.

JCT: Igor suffered an 11-month wait for his prescription
along with many thousands of others including almost 400
who filed damages claims in Federal Court too and almost 80
whose motions for interim exemptions pending receipt of
their permits compelled a slow Health Canada to hop to it to
issue their permits to mooten the hearings before Justice
Brown. He witnessed Health Canada's dirty deeds unlike the
Court of Appeal that overturned his decision to let their
damages claims be heard. But it does not raise an issue of
public importance?

CR: A. Background

Since 2017, more than 300 self-represented plaintiffs have
filed Federal Court ("FC") claims for declarations that the
processing time for registration to personally produce
cannabis and/or the period of registration under the former
Access to Cannabis for Medical Purposes Regulations
("ACMPR"), infringe the Charter section 7 rights of medical
cannabis users, and for damages.

JCT: That "the period of registration" infringes the Charter
is because the doctor prescribed a 6-month exemption and the
permit was not processed before the 6 months expired and
Igor had to file anew. The doctor then prescribed a 12-month
exemption and it took another 5 months before he got it. And
the permit started when the doctor signed. So 11 months out
of 18 months were wasted and he had to go pay a doctor
again. So he asked that they add the 11 months they wasted
to his next permit and start dating permits when they are
issued so patients get the full period they paid for.

More proof that the back-dating of permits was wrong is that
when Justice Brown demanded Health Canada explain the back-
dating, Health Canada stopped back-dating and began starting
the permits when issued so patients do now get their full
period. So Igor lost 11 months, they stopped back-dating
but he has not grounds to complain?

CR: The claims are virtually identical, and are based on
templates developed and distributed by medical cannabis
activist and vexatious litigant John Turmel.1
1 Harris v Canada, 2018 FC 765, paras 1, 19 ("Harris FC"),
aff'd 2019 FCA 232, paras 4, 5 ("Harris FCA"); Canada v
Turmel, 2022 FC 1526, paras 4, 7, 28(d), 47

The FC designated Harris v HMQ ("Harris") as the lead claim,
and Canada brought motions to strike this claim as well as
Mozajko v HMQ ("Mozajko"). While the FC largely dismissed
Canada's motions,2
2 Harris FC; Mozajko v Canada (Federal Court Order dated
October 2, 2018), Application
Record, Tab 2, p 3-4

the Federal Court of Appeal ("FCA") set aside the FC
decisions and struck the Harris and Mozajko claims without
leave to amend as they failed to disclose a reasonable cause
of action,

JCT: They found it wasn't reasonable to want their permits
in a timely fashion. Not unreasonable for sick and dying
people to wait for their medicine. Nothing more heartless
than a judge.

CR: and as the ACMPR had been repealed, which rendered the
requested declarations meaningless.3
3 Harris FCA, paras 3, 19-24; Canada v Mozajko, 2021 FCA 25,
paras 4, 10 ("Mozajko FCA")

JCT: The fact the ACMPR has been replaced by a new regime
doesn't mean that they should not receive compensation for
damages suffered under Health Canada's old regime.

CR: The applicant, Mr. Mozajko, now seeks leave to appeal
the FCA decision striking his claim.

A. The proposed appeal does not raise an issue of public
importance

The proposed appeal does not raise an issue of public
importance. The applicant argues that it raises:
(1) whether there is a legislative right to personally
produce cannabis for medical purposes,

JCT: Because the law says the Minister "must" grant a permit
to people sick enough to qualify. Seems like a legislated
right but not if the court has its eyes closed.

CR: (2) whether the facts pleaded in this case are
sufficient to establish a section 7 infringement,

JCT: Those who cannot see cannot see the facts they cannot
see.

CR: (3) whether the alternative methods of accessing
cannabis are affordable,

JCT: So if patients can afford alternative methods, then
delaying their permits and shorting them on the period
before they have to pay for a new medical document is all
okay?

CR: (4) whether "restitution" should be made for the fact
the plaintiff's period of registration was shorter than his
period of medical authorization to use cannabis, and

JCT: Yes, the applicant did argue his period of registration
was shorter than his period of medical authorization
received.

CR: (5) whether the FCA could strike the claim absent a
notice of constitutional question.

JCT: The Applicant did not argue whether the FCA could
strike the claim absent a notice of constitutional question
because a Notice of Constitutional Question must be filed 30
days before a hearing to strike down a law, not to strike
down a claim.

CR: The applicant does not explain how any of these issues
transcend the immediate dispute between the parties. While
the existence of a legislative right to produce cannabis for
medical purposes may have resonance beyond this case, there
is no dispute that individuals who met the ACMPR
registration requirements had such a right,4
4 Access to Cannabis for Medical Purposes Regulations,
SOR/2016-230, s 178(1)

JCT: But not the right to get their medication in a timely
way despite the right to their cannabis for medical
purposes.

CR: and there is no need for this Court to affirm this
right.

JCT: There is when the Crown argued there was no legislated
right to produce their marijuana.

CR: Nor is there any conflicting jurisprudence on any of
these issues that warrants consideration by this Court. The
applicant suggests the FCA decision is in conflict with
Chaoulli v Quebec and Allard v Canada.5
5 Chaoulli v Quebec, 2005 SCC 35; Allard v Canada, 2016 FC
236

However, he has identified no conflict between the FCA
decision in this case, which was based on well-established
pleadings principles and the absence of pleaded facts
capable of supporting a section 7 infringement, and those
decisions, which concerned broader issues relating to the
scope of section 7.6
6 Harris FCA, paras 19-20; Mozajko FCA, para 10

JCT: Notice how they always say they see no facts.

CR: In any event, even if the issues somehow transcended the
parties or there were conflict in the jurisprudence, these
issues would be better addressed in a future case that has
been properly pleaded and that is based on extant
regulations rather than the former ACMPR.

JCT: So damages for delays under the ACMPR should await new
damages under a new regime?

CR: Canada therefore requests that the application for leave
to appeal be dismissed, with costs.
Yours truly,
Jon Bricker, Senior Counsel
National Litigation Sector

cc Igor Mozajko, Applicant
Christopher Rupar, Agent for the Respondent

JCT: Igor has to file his reply by Monday Nov 28 based on
these comments.

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