Strykiwsky v. Stony Mountain Institution (Warden) et al., (2000) 193 F.T.R. 59 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: June 27, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 193 F.T.R. 59 (TD)

Strykiwsky v. Stony Mountain Inst. (2000), 193 F.T.R. 59 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. SE.102

Barry William Strykiwsky (applicant) v. David Mills et al. in his capacity as Warden of Stony Mountain Institution, the Commissioner of Corrections and the Correctional Service of Canada (respondent)

(T-389-00)

Indexed As: Strykiwsky v. Stony Mountain Institution (Warden) et al.

Federal Court of Canada

Trial Division

Muldoon, J.

September 1, 2000.

Summary:

An inmate of a prison, who was addicted to heroin unsuccessfully applied for methadone treatment that was offered to only those entering federal prisons who were already enroled in a community methadone maintenance program. He applied for judicial review, asserting that the ongoing refusal to provide him and other inmates with the treatment was contrary to s. 86 of the Corrections and Conditional Release Act and ss. 7, 12 and 15 of the Charter. The inmate moved to receive the treatment in the interim. An agreement was reached and the original refusal to treat was set aside and the matter was referred back for redetermination. The inmate moved to extend the time for filing three affidavits.

The Federal Court of Canada, Trial Division, allowed the motion in part.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - [See all Practice - Topic 3604.7 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - A prison inmate, who was addicted to heroin, unsuccessfully applied for methadone treatment - He applied for judicial review - An agreement was reached, setting aside the original refusal and referring the matter back for redetermination - The inmate moved to extend the time for filing affidavits - The prison officials asserted that the matter was moot because of the agreement and the inmate receiving treatment (Phase I) - The inmate asserted that his application addressed the right which he and every other inmate in Canada had to receive Phase II treatment and the prison officials had not conceded that this right existed - The Federal Court of Canada, Trial Division, held that the matter was "alive" - The Phase II treatment could be taken away from the inmate where he was no longer in urgent medical need of it - See paragraphs 10 to 15.

Practice - Topic 3604.7

Evidence - Affidavits - General - Time for filing - A prison inmate, who was addicted to heroin, unsuccessfully applied for methadone treatment - He applied for judicial review - An agreement was reached, setting aside the original refusal and referring the matter back for redetermination - The inmate moved to extend the time for filing three affidavits - The prison, among others, asserted that because the inmate's case was allegedly closed, the proper test was the four part test applicable when a party sought to extend time to file an application record - The inmate asserted that the proper test was two part, considering the reasons for the delay and whether the affidavits contained relevant and admissible evidence - The Federal Court of Canada, Trial Division, held that if the case was not moot, then the inmate must satisfy the Mapei Inc. v. Flextile Ltd. et al. test - See paragraphs 7 to 9.

Practice - Topic 3604.7

Evidence - Affidavits - General - Time for filing - A prison inmate, who was addicted to heroin, unsuccessfully applied for methadone treatment - He applied for judicial review - An agreement was reached, setting aside the original refusal and referring the matter back for redetermination - The inmate moved to extend the time for filing three affidavits (two were from doctors), asserting that his delay was caused by the doctors' numerous professional obligations, the complexity regarding methadone treatment and him not knowing about the other individual's report and then not being able to obtain a copy of it - The Federal Court of Canada, Trial Division, extended the time to file only the two doctors' affidavits - Only the two doctors' affidavits were relevant and when weighed against the delay should be filed - See paragraphs 16 to 26.

Practice - Topic 3604.7

Evidence - Affidavits - General - Time for filing - The Federal Court of Canada, Trial Division, stated "The requirement to warn the opposing party of forthcoming late filings does not appear, however, to be a rule which this court has enforced by preventing the filings when no warning has issued. Having concluded thus, however, the court cannot condone that counsel for the applicant remained silent for a period of over a month in respect of whether he considered the case still open and revealed nothing about the affidavit evidence he was quietly procuring." - See paragraph 19.

Cases Noticed:

Mapei Inc. v. Flextile Ltd. et al. (1995), 59 C.P.R.(3d) 211 (F.C.T.D.), refd to. [para. 7].

Bellefeuille v. Canadian Human Rights Commission et al. (1993), 66 F.T.R. 1 (T.D.), refd to. [para. 7].

Aircraft Technical Publishers v. ATP Aero Training Products Inc. (1998), 150 F.T.R. 230 (T.D.), refd to. [para. 9].

Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199 (T.D.), refd to. [para. 9].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 11].

Pulp, Paper and Woodworkers of Canada, Local 8 et al. v. Canada (Minister of Agriculture) et al., [1992] 1 F.C. 372; 50 F.T.R. 43 (T.D.), refd to. [para. 14].

Prouvost S.A. v. Munsingwear Inc., [1992] 2 F.C. 541; 141 N.R. 241 (F.C.A.), refd to. [para. 17].

Counsel:

Michael Conner, for the applicant;

Brian Hay, for the respondents.

Solicitors of Record:

Public Interest Law Centre, Winnipeg, Manitoba, for the applicant;

Gindin Wolson Simmonds, Winnipeg, Manitoba, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This motion was heard at Winnipeg, Manitoba, on June 27, 2000, by Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on September 1, 2000.