From: johnturmel@gmail.com   
      
   TURMEL: Gisele Pilon Action dismissed but scored 6-day medpot permit   
      
   JCT: Gisele Pilon applied for an exemption, started early   
   and got busted 3 months later. She's asking for an exemption   
   retroactive to when Health Canada should have processed it.   
      
   Crown moved for dismissal, she responded, the Mozajko Court   
   of Appeal decision came down negative, Crown mentioned it in   
   their Reply. She wants to respond to the new evidence. Judge   
   Brown let her ask, Crown responded, she filed her Reply and   
   Judge Brown handed down his decision:   
      
   Date: 20210329   
      
   Ottawa, Ontario, March 29, 2021   
      
   PRESENT: The Honourable Mr. Justice Brown   
   Docket: T-193-21   
      
   BETWEEN:   
                           GISELE PILON   
                                                     Plaintiff   
                               and   
                      HER MAJESTY THE QUEEN   
                                                     Defendant   
                              ORDER   
      
   Brown J.: UPON INFORMAL MOTION in writing without personal   
   appearance by the Plaintiff for leave to file a sur-reply in   
   connection with the Defendant's motion to dismiss this   
   action, Judgment for which was issued on February 15, 2021;   
      
   AND UPON considering that:   
      
   1. By letter dated February 3, 2021, the Defendant wrote to   
   ask that this action be dismissed because the statement of   
   claim here is substantially similar to the statement of   
   claim in Harris v Canada, 2019 FCA 232, which the Federal   
   Court of Appeal struck without leave to amend because it   
   failed to disclose a reasonable cause of action. This Court   
   has subsequently dismissed other such actions on this same   
   basis. The Defendant also sought costs of $250.00.   
      
   2. By Direction dated February 4, 2021, I gave the Plaintiff   
   time to file a response to the Defendant's letter, and   
   allowed time thereafter for the Defendant to reply.   
      
   3.  The Plaintiff filed a response to the Defendant's   
   informal motion to dismiss on February 5, 2021. The   
   Defendant filed a written reply dated February 11, 2021, as   
   authorized by my Direction.   
      
   4.  Pleadings were therefore closed.   
      
   5.  Judgment was issued on February 15, 2021, dismissing   
   this action with costs.   
      
   6. By subsequent letter, the Plaintiff, without asking the   
   Court's permission, filed additional submissions, and was in   
   effect also seeking reconsideration under Rule 397 of the   
   Federal Courts Rules [Rules] SOR/2004-283 in that she sought   
   to reverse the dismissal of the action.   
      
   7.  Thus, in my view the Plaintiff is seeking to file sur-   
   reply which was not permitted in the February 4, 2021   
   Direction, and seeks to do so after Judgment has been   
   delivered in this case, and the underlying action has been   
   dismissed.   
      
   8. The requested post-Judgment relief will not be considered   
   unless the Plaintiff satisfies me it is justified, per my   
   Direction dated February 18, 2021.   
      
   9. The Plaintiff subsequently filed an informal letter   
   requesting leave to file the sur-reply, the Defendant has   
   responded, and the Plaintiff has filed a reply letter.   
      
   10. In my view, the root issue is whether the sur-reply   
   filing is warranted. In my respectful view, the Plaintiff's   
   request is unfounded.   
      
   JCT: I have to bet not. My life's court strategy has been to   
   never ask for more than what's exactly fair (and who can   
   estimate that best?). So every loss is a denial of fairness   
   if you didn't ask for too much.   
      
   A most famous example was cited by Judge Brown in his   
   granting Lead Plaintiff action to strike the 150-gram cap on   
   medical marijuana possession and a 10-day carry pending   
   trial.   
      
   In the Allard case, John Conroy had asked to strike the   
   "150-gram cap and 30-day supply." The Allard Judge pointed   
   out it was an over-reach and Judge pointed out we had only   
   asked to strike the 150-gram cap and not the 30-day limit in   
   previous legislation. As he let the challenge in, we weren't   
   trying to scrap the whole section like Conroy had, just   
   the cap.   
      
   I'm sure when history reads my cases in the Court archives,.   
   every judge who dismissed the claim failed in rendering   
   justice. A wall of shame. Usual card: Insufficiently shown.   
      
   Brown J.: 11. A responding party has the opportunity to make   
   their case when it responds to a motion. The Plaintiff did   
   this, and the Defendant, as moving party, has answered it in   
   a reply. Now the Plaintiff wishes to add more responding   
   material, known as a sur-reply which is material filed by a   
   responding party after the moving party has filed its reply,   
   which in the normal course closes pleadings.   
      
   12. There are at least three reasons the Plaintiff may not   
   file sur-reply in this case. First, no such permission was   
   granted in my Direction of February 18, 2021. Second, no   
   such permission is set out in the Rules governing motions in   
   writing.   
      
   13. In addition and more generally, to prevent a responding   
   party from splitting their case, and to bring an end to   
   litigation, a responding party must make their case fully in   
   their response to the motion, and may not file additional   
   submissions thereafter without leave. In my view, sur-reply   
   is not available in respect of any matter that could or   
   should have been addressed by the responding party's   
   response to the initial filing, and particularly not after a   
   decision has been made on the matter.   
      
   JCT: But the moving party is not supposed to bring up new   
   evidence... was the point made. They broke the rules to take   
   advantage of new evidence and we're breaking the rules   
   trying to reverse it! Sadly. They had already gotten away   
   with their violation and we had not.   
      
   Brown J.: 14. I am not persuaded that either my Judgment   
   dated February 15, 2021 or Rule 369 governing motions dealt   
   with in writing should be varied in this case. What the   
   Plaintiff wishes to address in the sur-reply, could and in   
   my view should have been fully set out in the Plaintiff's   
   response to the motion. It is too late now.   
      
   15. I will add that I have reviewed the Plaintiff's proposed   
   sur-reply submissions and even if I allowed them to be   
   filed, it would not change the decision reflected in the   
   Judgment of February 15, 2021, dismissing this action.   
      
   JCT: Sadly, the righteousness of the decision may still be   
   put to the test. I'll posting this over at the ACMPR   
   grower' group where I quoted a few who were suffering long   
   delays.   
      
   They all have potential delsc8 claims with the gaps filled   
   so that the Mozajko decision doesn't really matter. The new   
   claims don't have the maybe-problem in the delsc7 claims.   
      
   And if they can't throw out their delsc8 claims because   
   Mozajko doesn't count any more, he really shouldn't have   
   thrown her out.   
      
      
   [continued in next message]   
      
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