Monthly Archives: April 2020

Four late-stage cancer patients granted legal exemption to use magic mushrooms for therapy

Federal Minister of Health Patty Hajdu has approved the application by four terminal Canadian cancer patients to use psilocybin, commonly known as magic mushrooms or shrooms, for their end-of-life therapy.

The patients’ application invoked s. 56 (1) of the Controlled Drugs and Substances Act, SC 1996, c 19, which gives the federal health minister the power to grant an exemption from any provision of the legislation upon the belief that the exemption is needed for a medical or scientific purpose or is in the public interest.

This is the first time that anyone has been publicly granted an exemption to access psychedelic therapy under the legislation, and also the first time that any patient has legally used the compound since it was first declared illegal in the country back in 1974, said a news release from TheraPsil, a non-profit coalition that fights for compassionate legal access to psilocybin therapy for palliative Canadians.

“Although it has taken a long time we are impressed with [the federal health minister’s and the government’s] willingness to listen to patients who have not been heard and to shift focus and policy to accommodate their interests and protect their needs,” said Dr. Bruce Tobin, founder and chairman of TheraPsil.

Tobin and TheraPsil had supported the four patients with their application, which was initiated in 2017 and initially denied in March this year. Upon review, however, the four patients received approvals on compassionate grounds.

Laurie Brooks, one of the four patients granted an approval, said that she hoped that “this is just the beginning and that soon all Canadians will be able to access psilocybin, for therapeutic use, to help with the pain they are experiencing, without having to petition the government for months to gain permission.”

TheraPsil said in the news release that it expected other applications seeking exemptions under the legislation to follow.

“The recent grant of the section 56 exemption by the Minister of Health for the legal use of psilocybin may represent a watershed moment for further exemptions on a similar basis,” said McMillan LLP in a news release.

Personal costs ordered for trustees who showed ‘persistent lack of self-awareness’

In a recent case before the Ontario Superior Court of Justice, a testamentary trustee and estate trustee both sought costs following their conduct during the litigation that the court described as showing a “continued and persistent lack of self-awareness.”

Cardinal v. Perreault, 2020 ONSC 4825 involved the issue of costs in two court applications in connection with the estate of Joseph Edmond Beaulieu, which had an estimated gross value of $339,000. The first is an application for directions filed by Roger Cardinal, the testamentary trustee. The second is an application for the passing of accounts filed by Ginette Perreault, the estate trustee.

Various actions undertaken by both parties caused difficulties and delays in the court proceedings. On the part of Perreault, she initially resisted Cardinal’s reasonable request for accounting. Her counsel also complained about the court proceedings being conducted in French and about the translation costs he had to spend.

Justice Ria Tzimas, writing for the Superior Court, said that Perreault’s conduct showed a lack of understanding about her obligations as estate trustee. On the other hand, Cardinal attacked Perreault’s integrity and personal dignity and made allegations of bad faith and misappropriation of funds.

Tzimas cited Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which contains a non-exhaustive list of factors that the court will consider when exercising its discretion to award fair and reasonable costs, with the overriding principle being reasonableness.

“In the context of estates litigation, it is useful to note the Ontario Court of Appeal’s direction that the modern approach to fixing costs in such cases is to carefully scrutinize the litigation and to follow the costs rules that apply in civil litigation, unless public policy considerations dictated otherwise,” wrote Tzimas.

Tzimas tackled a few of the factors under Rule 57.01. As to the complexity and importance of the issues of the case, both sides became entrenched in their respective legal positions, which complicated the issues and the proceedings, wrote Tzimas. As to the parties’ conduct, Cardinal’s allegations against Perreault were reprehensible, while Perreault’s actions, though lacking in efficiency, were not reprehensible, Tzimas wrote.

The court, considering Rule 57.01 factors and the proportionality of costs in relation to what was in issue and to the size of the estate, awarded Cardinal costs of the application for directions at $18,000, which was 60 per cent of his full indemnity costs, and awarded Perreault costs of the application for the passing of accounts at $48,000. The net amount came to $30,000 in favour of Perreault. The court disallowed the translation costs sought by Perreault’s counsel.