COURT FILE NUMBER 2003 15090 COURT COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE EDMONTON PLAINTIFFS TAYLOR ANTHONY MAXEY, AMANDA FRANCES MARIE ERVIN, BYRON BIRD, CAITLYNN WESTGARD, DUSTIN WESLEY ANDERSON, FABIAN POLE, GARY WAYNE FIDDLER, GREGORY LORNE CREOR, KEIGAN TIERNEY, MICHAEL SHANE CARSON, and SHANE PAUL MONETTE DEFENDANT HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA DOCUMENT WRITTEN SUBMISSIONS OF THE PLAINTIFFS ADDRESS FOR SERVICE NANDA & COMPANY AND CONTACT ATTN: Avnish Nanda INFORMATION OF DJ Janjua PARTY FILING THIS Manraj Preet Sidhu (Student-at-Law) DOCUMENT 10007 – 80 Avenue NW Edmonton, AB T6E 1T4 Telephone: 780-916-9860 Facsimile: 587-318-1391 Email: [email protected] File No.: 289.00001 i TABLE OF CONTENTS PART I: OVERVIEW AND RELIEF SOUGHT 1 PART II: STATEMENT OF FACTS 3 A. Opioid Use Disorder 3 B. The Opioid Overdose Crisis 5 i. The Origins of the Crisis 5 ii. The Crisis in Alberta 6 C. Treatment Options for Opioid Use Disorder 9 D. iOAT 11 E. iOAT Therapy in Alberta 13 F. The Impact of iOAT on Albertans Living with Severe Opioid Use Disorder 17 1. The Plaintiffs 17 i. Taylor Anthony Maxey 17 ii. Amanda Frances Marie Ervin 21 iii. Byron Bird 24 iv. Caitlynn Westgard 27 v. Dustin Wesley Anderson 29 vi. Fabian Pole 31 vii. Gary Wayne Fiddler 34 viii. Gary Lorne Creor 36 ix. Keigan Tierney 39 x. Michael Shane Carson 42 xi. Shane Paul Monette 44 2. The Clinical Staff at iOAT 46 i. Dr. Krishna Balachandra 46 ii. Dr. Susan Bornemisza 48 ii iii. Patty Wilson 49 G. The Closure of iOAT, Denial of Treatment for Severe Opioid Use Disorder 50 H. The Harms Resulting from the Closure of iOAT 51 1. The Plaintiffs 52 i. Taylor Anthony Maxey 52 ii. Amanda Frances Marie Ervin 53 iii. Byron Bird 53 iv. Caitlynn Westgard 54 v. Dustin Wesley Anderson 55 vi. Fabian Pole 55 vii. Gary Wayne Fiddler 56 viii. Gary Lorne Creor 57 ix. Keigan Tierney 57 x. Michael Shane Carson 58 xi. Shane Paul Monette 59 xii. iOAT Patients Never Informed of End Date 59 2. The Clinical Staff at iOAT 61 i. Dr. Krishna Balachandra 61 ii. Dr. Susan Bornemisza 61 iii. Patty Wilson 63 3. Expert Evidence on the Impacts of iOAT’s Closure 65 i. Dr. Meera Grover 65 ii. Dr. Donald Scott McDonald 66 iii. Dr. Rupinder Brar 68 iv. Dr. Haitham Kharrat 69 v. Dr. Elaine Hyshka 70 iii vi. Dr. Susan Boyd 71 4. The Evidence of Harm: Consistent, Uncontested, and Overwhelming 73 5. HMQA’s Alternative Proposal to Closing iOAT 74 I. HMQA’s Proposal is not iOAT, Will Impose Harm on iOAT Patients 74 PART III: APPLICABLE LAW AND STATEMENT OF ARGUMENT 76 A. The Test for Injunctive Relief 76 1. The Appropriate Threshold is a Serious Issue to be Tried 76 2. The Plaintiffs Seek a Prohibitive Injunction 78 i. The Plaintiffs Seek an Injunction to Preserve the Status Quo 79 B. The Charter Claims Advanced Raise a Serious Issue to be Tried 79 1. Section 7 of the Charter 80 i. The Anatomy of a Section 7 Charter Claim 80 ii. The Section 7 Charter Claim Advanced 82 2. Section 12 of the Charter 86 i. The Anatomy of a Section 12 Charter Claim 86 ii. The Section 12 Charter Claim Advanced 88 3. Section 15 of the Charter 89 i. The Anatomy of a Section 15 Charter Claim 89 ii. The Section 15 Charter Claim Advanced 90 C. iOAT Patients Will Face Immediate and Serious Harm if the Therapy is Ended 92 D. The Balance of Convenience Strongly Favours Granting an Injunction 93 PART VI: TABLE OF AUTHORITIES 97 -1- PART I: OVERVIEW AND RELIEF SOUGHT 1. Alberta is in the midst of an unprecedented overdose crisis. Approximately 3 Albertans die each day of an opioid overdose. The surge in opioid overdose deaths is linked to the rise in contaminated street opioids. Most opioid users access opioids through the illicit street market, exposing them to extremely potent and dangerous opioids, fueling the opioid overdose crisis. 2. Opioid use disorder is a chronic medical condition that is characterized by a dependency on opioids and a range of debilitating mental and physical impairments. The inability to access opioids leads individuals with opioid use disorder to suffer withdrawal symptoms, which include chills, insomnia, diarrhea, nausea, vomiting, severe aches and pains, increased heart rate, anxiety, and premature death. For these individuals, the need to consume opioids is not a choice but a mental and physical necessity, compelling them to procure and use street-sourced opioids despite the risks they pose. 3. The Defendant Her Majesty the Queen in Right of Alberta (“HMQA”) presently offers individuals suffering from opioid use disorder a range of treatment options to address the varying levels of severity associated with the condition. For instance, Albertans with the most severe form of opioid use disorder are able to access injectable opioid agonist treatment (“iOAT”). iOAT therapy is reserved for individuals who have failed all other forms of treatment or for whom other forms of treatment are unlikely to be effective. In Edmonton and Calgary, where iOAT is delivered through specialized medical clinics operated by Alberta Health Services, there are approximately 100 patients who access this specialized form of daily treatment. 4. However, in March 2020, HMQA announced the closure of iOAT effective March 2021. The closure of iOAT will occur notwithstanding the fact that there are patients in the program who still require the therapy and for whom there are no other effective treatment options. Further, the closure would occur despite the ongoing need for iOAT in Alberta, as the number of opioid overdose deaths continues to soar and the need for effective treatment options for those with severe opioid use disorder grows. HMQA’s decision to stop iOAT therapy will relegate Albertans with severe opioid use disorder to ineffective treatment options and street-sourced opioid use, significantly increasing their likelihood of overdose death and other harms. 5. As a result of HMQA’s announcement, 11 patients of the iOAT programs in Alberta commenced this action, asserting that the decision to shut down iOAT breached their rights and -2- the rights of others requiring iOAT therapy in Alberta at sections 7, 12, and 15 of the Charter of Rights and Freedoms. 6. At the same time of commencing this action, the Plaintiffs filed and served upon HMQA an injunction application seeking the following in relief: a) an Interlocutory Injunction pursuant to section 24(1) of the Charter, the common law, or any statutory authority, prohibiting and restraining the Respondent from denying iOAT to the Plaintiffs, existing iOAT patients, and future iOAT patients until the final determination of this action; b) an Interlocutory Injunction pursuant to section 24(1) of the Charter, the common law, or any statutory authority, declaring that individuals in iOAT are entitled to receive treatment through the program while this action is being determined; c) an Order pursuant to section 24(1) of the Charter, the common law, or any statutory authority, directing the Respondent to provide iOAT to individuals enrolled in the program until the final determination of this action. 7. In support of its application, the Plaintiffs tendered 31 affidavits from program participants, medical staff working in Alberta’s iOAT clinics, the public health researchers who helped develop Alberta’s iOAT program, the world’s leading researchers and medical providers of iOAT, and a health care economist who has researched and published on the economic impacts of offering iOAT therapy in Canada. Their evidence is consistent: the closure of iOAT will cause serious, irreparable harm to existing participants and others who may require the therapy, with no net cost savings to the government and society at large. 8. HMQA has tendered no evidence to challenge or contest the evidence set out in the Plaintiffs’ record. Instead, HMQA advances a proposal that confirms that iOAT therapy in Alberta will come to an end in March 2021, but that patients will still be able to access an injectable opioid in a safe clinical setting. HMQA claims that offering hydromorphone in a supervised setting is essentially iOAT therapy, and therefore, this action and injunction application are moot. However, iOAT is a medical treatment regime that is defined by medical guidelines and a number of core features. What HMQA proposes as a resolution to this matter fails to conform with the requirements of iOAT as set out in established medical guidelines for the treatment. For this reason, the treatment proposed by HMQA cannot be characterized by iOAT. On this basis, the Plaintiffs rejected HMQA’s offer and proceed with the injunction application. 9. The manner and consequences of HMQA’s decision to cease iOAT therapy in Alberta, and the extent to which it breaches section 7, 12, and 15 of the Charter, are serious issues to be tried. -3- Further, allowing HMQA to implement its decision to deny the Plaintiffs and others lifesaving and life sustaining medical treatment while the constitutionality of the decision is being reviewed by this court would impose serious, irreparable harm on the claimants, including premature death. The harm that is likely to be inflicted on individuals who require iOAT therapy if this injunction is not granted far exceeds the potential harm that may be imposed on HMQA in granting this injunction. 10. There is a real possibility that the Plaintiffs or others who require iOAT therapy will die of an opioid overdose or suffer other serious harms if they are denied access to iOAT while this matter is being litigated.