Date: 20020227
Docket: T-2048-00
Neutral Citation: 2002 FCT 220
BETWEEN:
MICHEL LAVOIE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
HUGESSENJ.
[1] The plaintiff, an inmate in a federal penitentiary, sued the government for damages, claiming that the Correctional Service had failed to provide the health care that he required. In this motion, he is seeking an interlocutory injunction compelling the government to give him certain medical treatments during the proceeding.
[2] The principal allegations in the affidavit filed by the plaintiff in support of his motion are as follows:
[TRANSLATION]
6. I returned to custody on October 2, 2001, after my mandatory release was suspended by a Correctional Service officer.
7. When I arrived at the Donnacona penitentiary, I immediately asked to see the doctor.
8. Dr. Vermette, the doctor for the penitentiary, examined me and detected by palpation that my liver was enlarged.
9. Dr.Vermette referred me to Dr. Paré, a gastroenterologist on contract with the Correctional Service.
10. Dr. Paré did not order any tests, and told me that the only thing I needed to do was to see a doctor when I was released.
11. I have been experiencing pain in my abdominal area since April 2000.
12. Since April 2000 I have been telling the Correctional Service employees at the health services centre in the pentitentiary about my pain.
13. After an ultrasound on June 20, 2001, I was told that my pain was being caused by the onset of cirrhosis of the liver.
14. The doctors on contract with the Correctional Service are refusing to acknowledge the diagnosis made by the radiologist on June 20, 2001, at the Cité de la Santé de Laval Hospital.
[3] In response to the motion for an injunction, the defendant merely filed argument of a technical and procedural nature. In particular, the defendant did not cross-examine the plaintiff, and did not file an affidavit in response to the plaintiff's allegations about his medical condition. As a result of this strategy, the Court, at least for purposes of this motion for an injunction, must treat the plaintiff's statements as proved. It is therefore established at this stage that the plaintiff suffers from cirrhosis of the liver, a disease that can be fatal, and that Dr. Paré, despite being authorized by the defendant to do so, has refused to acknowledge the diagnosis made by the Cité de la Santé de Laval, to properly examine the plaintiff, or to provide health care to him prior to his release from the penitentiary.
[4] Notwithstanding the defendant's submissions to the contrary, this case does not involve an administrative decision that must be challenged by an application for judicial review or even by a grievance. The plaintiff has the right to receive the health care required by his medical condition, and the defendant has the obligation to provide it, at least within reasonable limits. On that subject, reference can be made to the provisions of the Corrections and Conditional Release Act, R.S.C., 1992, c. 20, section 86, and Commissioner's Directive 800.
[5] The motion for an injunction is properly brought within the plaintiff's action and is, in fact, the only speedy and effective method for him to exercise his rights that are recognized by the statute.
[6] It is certainly quite possible that Dr. Paré had excellent reasons, whether medical or otherwise, justifying the attitude he took towards the plaintiff, but the defendant did not see fit to disclose those to us or even to dispute the accuracy of the plaintiff's account. Therefore, the result is that as the matter stands now, the plaintiff has an apparent right to the relief sought, that he may suffer irreparable harm if his motion is not granted, and that the balance of convenience lies in his favour.
[7] However, the plaintiff does not have the right to insist that he be seen and examined by a doctor who is not on contract with the Correctional Service. He can only request that he be examined by a specialist in gastroenterology, other than Dr. Paré, and the Court will grant an injunction to that effect.
ORDER
Within seven days of the date of this order, the defendant shall take all necessary steps to ensure that the plaintiff is seen and examined by a doctor specializing in gastroenterology, other than Dr. Paré, and, if necessary, that the plaintiff receive any medical treatment prescribed by that doctor.
Judge
Ottawa, Ontario
February 27, 2002
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2048-00
STYLE OF CAUSE: MICHEL LAVOIE
AND
HER MAJESTY THE QUEEN
MOTION IN WRITING CONSIDERED AT OTTAWA WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER AND ORDER OF HUGESSEN J.
DATED: FEBRUARY 27, 2002
WRITTEN SUBMISSIONS BY:
Michel Lavoie ACTING FOR HIMSELF
Sébastien Gagné FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada