SUPREME COURT OF Nova Scotia
Citation: Brady and Ellingsen v. Nova Scotia (Attorney General), 2023 NSSC 385
Date: 20231201
Docket: 516523, 516524
Registry: Halifax
Between:
Jennifer Brady
Applicant
v.
The Minister of the Department of Health and Wellness, and Attorney General of Nova Scotia
Respondent
Crystal Ellingsen
Applicant
v.
The Minister of the Department of Health and Wellness, and Attorney General of Nova Scotia
Respondent
Judge: |
The Honourable Justice Timothy Gabriel |
Heard: |
By written submissions |
Final Written Submissions:
Decision: |
October 27, 2023
December 1, 2023 |
Counsel: |
Richard W. Norman, for the Applicant Myles Thompson, for the Respondent |
By the Court:
[1] Jennifer Brady and Crystal Ellingsen ("the Applicants") challenge decisions made by the respondent Minister of the Department of Health and Wellness (“the Department”). Both suffer from debilitating medical conditions. In order for the Applicants to be reimbursed for the surgeries that they required, they needed to go through an approval process with the Department beforehand. The Respondents each ultimately had the surgery performed abroad without the necessary approval.
[2] Each applicant has filed a Notice for judicial review, as amended on August 16, 2022 ("the Notice"). They are represented by the same lawyer, and, in the interests of fiscal and judicial economy, have agreed that their matters may be heard at the same time. The Respondent was not opposed to proceeding in this fashion. I will touch upon the background shortly.
[3] Ms. Brady’s Notice says that she seeks Judicial Review on the following bases:
1. Jennifer Brady is a resident of the Province of Nova Scotia and a single mother of two small children.
2. The Attorney General of Nova Scotia represents the Department of Health and Wellness, a provincial ministry, and the Ministers of the Department of Health and Wellness.
3. Ms. Brady suffers from secondary lymphedema, a rare medical condition. Lymphedema is a painful, chronic, and progressive condition with life-threatening complications, including recurring cellulitis and blood infection.
4. Recently Ms. Brady has had serious adverse health effects as a result of her lymphedema and has been required to seek emergency care in Nova Scotia.
5. Medical practitioners have advised Ms. Brady that the non-surgical, conservative treatment for her form of lymphedema that she has pursed in recent years is no longer sufficient. She requires surgical treatment.
6. The surgical treatment is not available in Nova Scotia. The treatment is available on a very limited basis in Canada with a wait time of several years. The treatment is available outside of Canada on an urgent basis.
7. Based on her recent adverse health experiences, the surgical treatment was urgently required by Ms. Brady. It was not elective.
8. Although the treatment was urgently required, Ms. Brady sought advance approval for coverage for the medically required treatment out of country from the Administrator of the Medical Services Insurance Program (the “Administrator”).
9. Ms. Brady was told that she required an opinion from a provincially licensed specialist in the treatment of secondary lymphedema supporting her request for out of country treatment.
10. There is no provincially qualified specialist in Nova Scotia. On that basis, her request was denied.
11. With her request for coverage denied by the Administrator, Ms. Brady sought a review of that decision from the Department of Health and Wellness. By decision dated June 23, 2022, the Department of Health and Wellness denied her request.
12. Around this time Ms. Brady was advised by the Department of Health that a new process was being established to deal with people in her situation as a result of her advocacy. However, she was advised that the new process would not be retroactive and it would be of no benefit to her.
13. In late June 2022, Ms. Brady flew to Japan to seek urgent treatment from a Japanese hospital on an in-patient basis. She borrowed against her home in order to pay fees of approximately $80,000.
14. Ms. Brady says that the Department of Health and Wellness’s Decision should be quashed or set aside on the following basis:
a) it was unreasonable and/or incorrect;
b) it was made in a procedurally unfair manner;
c) it violated Ms. Brady’s right to equality pursuant to section 15 of the Charter of Rights and Freedoms insofar as it discriminated against Ms. Brady by requiring a person like her who suffers from a rare condition to obtain an opinion from a Nova Scotia specialist who does not exist as compared to a person who has a more common illness and for whom specialists in Nova Scotia do exist.
Furthermore, the Applicant seeks a declaration that s. 8 of the Hospital Insurance Regulations made pursuant to the Health Services and Insurance Act is of no force and effect pursuant to s. 52 of the Constitution Act, 1982 because it violates her Charter right as described above, and the violation cannot be justified as reasonable in a free and democratic society.
15. Ms. Brady seeks costs of her judicial review.
[Underlining in original]
[4] Ms. Ellingsen’s Notice sets out the following:
1. Crystal Ellingsen is a resident of the Province of Nova Scotia.
2. The Attorney General of Nova Scotia represents the Department of Health and Wellness, a provincial ministry, and the Ministers of the Department of Health and Wellness.
3. Ms. Ellingsen suffers from lipedema, an under-diagnosed, chronic, and progressive medical condition which results in debilitating pain, impaired mobility, and other adverse effects. The condition causes accumulation of excess fat, typically in the lower body, regardless of caloric intake. Lipedema is poorly understood by health care professionals.
4. Ms. Ellingsen has sought and received all recommended conservative treatments for lipedema that are available in Nova Scotia.
5. She has received medical advice that she requires surgical treatment to address the debilitating progression of her condition. The surgery she requires is not elective.
6. The surgical treatment is not available in Nova Scotia or Canada.
7. Ms. Ellingsen sought advance approval from the Administrator of the Medical Services Insurance Program for coverage for the medically required treatment in Germany.
8. Ms. Ellingsen was told that she required an opinion from a provincially licensed specialist in the treatment of lipedema supporting her request for out of country treatment.
9. There is no provincially qualified specialist in Nova Scotia. The Administrator first indicated a referral from her family physician would be sufficient, but then indicated it was not. She was then directed to a plastic surgeon who would be an acceptable referral source. The plastic surgeon’s office indicated that he was not currently seeking lipedema patients and it would be approximately five years before she could be seen. Ms. Ellingsen has contacted may other plastic surgeons in Nova Scotia but has been told that they will not provide consultations because they do not treat lipedema.
10. With her request for coverage denied by the Administrator, Ms. Ellingsen sought a review of that decision from the Department of Health and Wellness. By decision dated June 23, 2022, the Department of Health and Wellness denied her request.
11. Ms. Ellingsen says that the Department of Health and Wellness’s Decision should be quashed or set aside on the following basis:
d) it was unreasonable and/or incorrect;
e) it was made in a procedurally unfair manner;
f) it violated Ms. Ellingsen’s right to equality pursuant to section 15 of the Charter of Rights and Freedoms
a. insofar as it discriminated against Ms. Brady by requiring a person like her who suffers from a rare condition to obtain an opinion from a Nova Scotia specialist who does not exist as compared to a person who has a more common illness and for whom specialists in Nova Scotia do exist; and/or
b. insofar as it discriminated against her on the basis of weight and/or obesity.
Furthermore, the Applicant seeks a declaration that s. 8 of the Hospital Insurance Regulations made pursuant to the Health Services and Insurance Act is of no force and effect pursuant to s. 52 of the Constitution Act, 1982 because it violates her Charter right as described above, and the violation cannot be justified as reasonable in a free and democratic society.
12. Ms. Ellingsen seeks costs of her judicial review.
[Underlining in original]
[5] The proposed form of order is uniformly stated in both Notices:
The applicant requests an order:
1. quashing the decision;
2. such further and other relief's counsel may advise and this Honourable
Court considers just in the circumstances;
3. awarding the applicant the costs of this proceeding.
[6] Notice has been provided to the respondent, Attorney General of Nova Scotia, of the constitutional issue raised in each notice.
[7] The applications are presently scheduled to be heard on January 3-4, 2024.
[8] The Applicants have brought a preliminary motion pursuant to Civil Procedure Rule 7.28. They seek to augment the Record. Ms. Brady asks permission to file an affidavit from herself sworn December 22, 2022. Ms. Ellingsen asks permission to file an affidavit from herself sworn December 20, 2022, as well as affidavits from four other individuals: E. L-C, T.S., K.F.(1), and K.F.(2).
[9] The Applicants say that this additional material is properly admissible because it falls into two of the recognized exceptions to the general rule against evidence beyond the Record being admitted on judicial review.
[10] On the other hand, the Respondents argue that much of what the Applicants are attempting to enter is duplicative of evidence already to be found in the record, and in many cases the material written contains inadmissible hearsay. They further argue that if, nonetheless, the Applicants are permitted to file any additional evidence, the Respondents ought to be permitted to do so as well in order to respond to it.
[11] I will proceed to set out some of the relevant background with respect to each applicant.
Jennifer Brady
[12] Ms. Brady is afflicted with secondary lymphedema. She contracted the condition in the aftermath of a radical hysterectomy with lymph node dissection to treat cervical cancer. The condition causes her to experience chronic, debilitating pain and negatively impacts her mobility. She obtained information pertinent to MSI's “out of Province” health services program. She corresponded with the coordinator during the spring and summer of 2021. She says that at first she was told that coverage for the required treatment was contingent upon a referral from her nurse practitioner. Subsequently, she was told by the same department that she needed a referral from a specialist. She says there are no lymphedema specialists in Nova Scotia.
[13] Next, she says that she was advised that a referral from her oncologist, Dr. Bentley would suffice, and she was thereby able to obtain a consultation with a specialist in Montréal. Her application for coverage of the procedure was again denied on the ostensible basis that she did not have a referral from a Nova Scotia-based vascular surgeon. So, she pursued such a referral.
[14] She met with vascular surgeon Dr. Herman in the fall of 2021. She then heard from the surgeon in Montréal that COVID delays had negatively impacted surgery, to the point that hers was unlikely to occur. So, she looked into other options.
[15] In November 2021, Ms. Brady developed cellulitis and a blood infection and was hospitalized. These were complications linked to her lymphedema. Later that year, she contacted the respondent department to seek an exemption from the requirement for a vascular surgeon referral, as she had been waiting for months and her condition was deteriorating. She subsequently filed an appeal regarding the denial by the Department with respect to coverage of her expenses for the Montréal appointment on February 9, 2022.
[16] This Applicant says she was next told by the Department that the appropriate referral, in the circumstances, needed to come from a plastic surgeon, Dr. Williams. Although he does not treat lymphedema, he does specialize in Brandt's breast cancer reconstruction. She obtained a referral to Dr. Williams, and found out that he had a five-year waitlist.
[17] Ms. Brady’s appeal with respect to the Montreal expenses was denied on the basis that she had not provided a referral from a provincially licensed specialist supporting her application letter. Also noted was the fact that her primary health care provider could decide what specialist referral was needed. The applicant feels that this contradicted what had earlier been told her by the department – that she required a referral from a vascular surgeon.
[18] Her counsel describes the aftermath:
Ms. Brady had a consultation with Dr. Mihara, a surgeon in Japan, in January 2022, where her case was discussed. Dr. Mihara agreed to perform surgery on Ms. Brady. Ms. Brady’s oncologist, Dr. Bentley, followed up with [plastic surgeon] Dr. Williams and was told he did not need to see or treat lymphedema or lipedema patients. In May 2022, Dr. Bentley wrote a letter to the Department supporting Ms. Brady’s request for out-of-country surgical treatment.
Ms. Brady paid for her surgery in Japan and the travel to Japan. She submitted a request for MSI coverage. She travelled to Japan for surgery in June 2022. She requested a review of the decision from the Department of Health and Wellness. By decision on June 23, 2022, the Department denied this request. She was advised a new process would be established for dealing with out-of-province care requests, but that it would not be retroactive. Ms. Brady brought a judicial review of the June 23, 2022, decision.
(Brief, p. 3)
Crystal Ellingsen
[19] This Applicant suffers from lipedema. It is a condition that causes an excess buildup of fatty tissue in the legs and arms. Although she has received medical advice to the effect that she requires surgery to remove the diseased tissue and increase mobility and relieve chronic pain, these surgeries are not available in Nova Scotia.
[20] Ms. Ellingsen was referred to a physician in Germany. She was told that he would be able to provide the necessary surgery and avert permanent disability. She spoke with the Department on January 28, 2022, after applying for coverage. She says that she was told that a referral from a general practitioner would suffice.
[21] Later, on March 10, 2022, Ms. Ellingsen says that she was told that she needed a provincially licensed specialist in lipedema to refer her, in order to obtain coverage. Since Nova Scotia did not have such a specialist, she was also advised that a plastic surgeon's referral would suffice and she, too, was referred to Dr. Williams. However, when contacting his office, the office advised her that he did not see lymphedema or lipedema patients. As a consequence, in November 2022, March 2023, July 2023, and October 2023 Ms. Ellingsen travelled to Germany for treatments. She did so without the referral. She is not scheduled for any more treatments.
[22] She, too, seeks judicial review of the department’s decision disentitling her to reimbursement for her medical treatment.
Law and Analysis
[23] The law to this preliminary motion appears to be largely uncontroverted. For example, it was canvassed in Sorflaten v. Nova Scotia (Environment), 2018 NSSC 7:
[15] In Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency 2012 FCA 22:
[20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review, and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker (described in paragraphs 17 – 18, above). In fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker. Three such exceptions are as follows:
(a) Sometimes the court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: (authorities removed). Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfill its role of reviewing for procedural unfairness: e.g. Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980) 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.
(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra.
[24] The Applicants rely on two main categories of exceptions noted above. They say that the additional evidence which they seek to tender is either background evidence, or evidence relating to procedural fairness.
[25] In Delios v. Canada (Attorney General), 2015 FCA 117, Justice Stratas described the "general background exception" in the following terms:
[45] The “general background” exception applies to non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker. In judicial reviews of complex administrative decisions where there is procedural and factual complexity and a record comprised of hundreds or thousands of documents, reviewing courts find it useful to receive an affidavit that briefly reviews in a neutral and uncontroversial way the procedures that took place below and the categories of evidence that the parties placed before the administrator. As long as the affidavit does not engage in spin or advocacy – that is the role of the memorandum of fact and law – it is admissible as an exception to the general rule.
[26] The Applicants contend that the affidavits offered by each of them are really only factual accounts of the background related to this matter. They contend that they have not "crossed the line" and attempted to advance an argument or put a "spin" on the matter by virtue of these additional materials. When there is reference to phone conversations in the applicants' affidavits, these conversations (the argument continues) "are relevant as they pertain to information that was in front of the decision-maker at the time they made the decisions but does not appear in the file record" (Applicants' brief, October 3, 2023, pp 6-7).
[27] Insofar as the materials relate to the issue of the procedural fairness afforded to the applicants, they argue that appellate courts across the country, including that of Nova Scotia, have recognized that evidence extraneous to the record is admissible to permit a reviewing court to assess this issue.
[28] For example, in Nova Scotia (Attorney General) v. Judges of the Provincial and Family Court of Nova Scotia, 2018 NSCA 83, the court observed:
73. On the judicial review from a decision of an administrative tribunal, the reviewing court may receive fresh evidence to assess the exercise of procedural fairness at the tribunal... Similarly, an appeal court may receive fresh evidence respecting the regularity of the trial courts process...
[29] In Air Canada v. British Columbia (Worker's Compensation Appeal Tribunal), 2018 BCCA 387, that court remarked, appositely:
[39] In determining whether an affidavit is admissible on judicial review, the key question is whether the admission of the evidence is consistent with the limited supervisory jurisdiction of the court. Evidence that was before the tribunal is clearly admissible before the court. Evidence that casts light on the manner in which the tribunal made its decision will also be admissible within tight limits. Factual evidence setting out the procedures followed by the tribunal, or providing information showing that the tribunal was not impartial will also be admissible. I will proceed to consider all of the affidavits that have been submitted in light of these and other authorities with respect to appropriate procedure upon administrative review.
A. Duplication
[30] I begin with the Respondents’ concerns as to the duplication in some of the exhibits to the affidavits that have been submitted by the Applicants. I do not propose to exhaustively go through the (at times) voluminous exhibits that have been attached to the affidavits. Having done so in a non-exhaustive fashion, it is clear that there are many instances in which documents that are already in the Record have been duplicated and attached to the affidavits as exhibits, which the Applicants wish to submit as “fresh” evidence.
[31] It seems to me that this would violate the rule that fresh evidence is not to put any particular argument or spin on the case for either side. By repeating or duplicating documents that are already contained in the record, it may be interpreted as an attempt to place additional emphasis or strengthen the significance of the evidence in that document. In any event, such duplication is not helpful in providing background to the court, or insight into the milieu within which the Department's decisions were reached. In order to qualify as fresh evidence, it must necessarily be “fresh”.
[32] The parties shall agree upon the "Record documents" that are duplicated in the affidavits, and they shall be removed from the latter. It is difficult to foresee any potential for disagreement between the parties on this point, but if a particular document is not consensually duplicative, I will hear further (very brief) submissions from counsel with respect to such disagreement. Those portions of the affidavits that remain extant after these reasons, will be modified to refer to pages in the record itself, rather than to a copy of the same document attached as an exhibit.
B. Which portions of the affidavits proffered for admission qualify either as "background" or "narrative", or are necessary to consider the procedural fairness or Charter arguments raised by the Applicants?
(i) Affidavit of Jennifer Brady
[33] Paragraphs 1 to 3 are simply introductory. Paras 4-5 simply repeats information that is already contained in a large number of the documents that comprise the Record. They are inadmissible.
[34] Paragraph 6 says:
The progression of lymphedema is driven by the chronic inflammation of tissues and surrounding the lymphatic vessels in which lymphatic fluid accumulates. Recurring cellulitis and blood infection also causes progression of the disease because of the damage to the lymphatic vessels... Surgeries are widely recognized treatment option for those with intractable lymphedema that does not respond to CDT [complete decongestive therapy]... This information comes from my personal experience, my own research reviewing academic journals, and discussions with healthcare providers, all of which I believe.
[35] This is essentially opinion evidence. Moreover, it does not assist the court in determining any of the issues which are germane to this review. It is inadmissible.
[36] Paragraph 8 is replete with words such as "devastating" (repeated several times), "fear and stress", phrases such as "the considerable physical, psychological, emotional, and financial repercussions of lymphedema, which are made worse by a lack of knowledge within the medical community and poor management and treatment options has been well-documented in the research literature."
[37] This clearly constitutes "spin", or argument, or whichever similar descriptor one chooses to employ. What Ms. Brady appears to be attempting to say is that the disease has had a significant effect on her life and that prior to surgery this effect worsened over time. It negatively impacted her ability to do many of her activities, and limited her ability look after her children. Because there is no publicly funded conservative therapy or treatment of which she is aware, she has had to spend a lot of time and energy trying to secure care and treatment.
[38] Much, if not all, of the substantive information in para 8 is contained in the Record already (for example, see Brady record, volume 1, Tab 1). Paragraph 8 is inadmissible.
[39] Paragraphs 11 and 12 provide comment on Exhibit A, in the Record. I note that the Record at pp 349, 351 and 353 contains materials included in Exhibit A, and there appear to be other redundancies scattered through the Record as well. Paragraphs 11 and 12 shall be modified to provide comment only with respect to material not already in the Record.
[40] Paragraphs 16, 17, 18, 20, 21, 22 and 23 essentially repeat what is already in the record (see, for example, Vol 1, tab one, pages 3-6 of 1064, and also Tab 2). They provide no additional detail that is not already referenced in the Record. They are inadmissible.
[41] Paragraph 26 shall be struck, as it essentially repeats information clearly in the Record (see Tab 1, para 5).
[42] Paragraph 27 shall be condensed simply to read "I also began research on surgical treatment options outside of Canada, and learned that L VA and VLN T is available for lymphedema patients for whom CDT is insufficient throughout the United States, East Asia, and Europe."
[43] Paragraph 30 is inadmissible as it provides information already in the Record (see Tab 2, pp 205-211).
[44] Paragraph 31 is similarly problematic. It shall end with the sentence: “Per Ms. Bouchard’s request, I followed up with her via an email listing the details of my disease. Attached as Exhibit U is a copy of my email correspondence with Ms. Bouchard dated Feb 18/22.” The exhibit itself shall only consist of the letter to Ms. Bouchard. The remainder of the exhibit is identical to what appears at p. 483 of the Record and shall be removed.
[45] Paragraph 33 essentially repeats what is already part of the Record at pp. 371, 437, 493 and 515. It shall be entirely removed.
[46] Paragraph 41similarily provides information already in the Record (see pp. 191-195). It is thus redundant and is to be removed.
[47] Paragraph 45 up to the end of the words "single mother", may remain.
[48] Paragraph 46 references an article published by a reporter with CBC. In that article appears a reference to a statement issued by Khalela Perrault which states that "there are specialists in Nova Scotia will provide care for lipedema and lymphedema patients, including primary care providers, vascular surgeons, plastic surgeons, massage therapists, physical therapists, occupational therapist and dermatologist”. The paragraph also details attempts Ms. Brady had undertaken to find the names of the people in Nova Scotia providing such care, and that the response received from the reporter via Ms. Perrault was essentially nonresponsive.
[49] There is nothing in paragraph 46 which is relevant to, or germane to, the issues with which this Court must concern itself. Moreover, it is hearsay which cannot survive a principled analysis. It is inadmissible.
(ii) Affidavit of Crystal Ellingsen dated December 20, 2022
[50] I will not repeat my comments with respect to the duplication of documents in the affidavit that are already contained in the record. Those comments apply equally to the affidavit of Ms. Ellingsen.
[51] In considering Ms. Ellingsen's affidavit, I will begin by dealing with the hearsay and opinion components. For example, paragraphs 28, 29 and 30 are reproduced below:
28. As a woman in Nova Scotia I am lucky to have a doctor at all, even more fortunate to have a female doctor who takes me seriously and is trying to help me navigate this. I have a specialist, Doctor Thomas Ransom MSc, MD, FRCP C, associate Professor division of endocrinology and metabolism, Department of Medicine, Department of Obstetrics and Gynecology, and he is advocating for my treatment has received a denial letter as well. When he asked about appealing the decision, he was met with very little assistance from DOH. Exhibit Q is a true copy of the letter justifying my denial from a specialist, Giselle Marier, medical consultant.
29. I feel fortunate to finally have a healthcare plan that helps me manage my symptoms, but I spend thousands a year on copayments alone not to mention time, pain and the continuous decline in my mobility and health.
30. Frustrated by the denial of my request for out of country care, I went to the media. There were some stories written. The health department, in a statement made to CBC published on August 3, 2022, indicated that there were specialists in Nova Scotia who provide treatment for lipedema, but have not specify who these individuals are. I still do not know who they are to this day. Exhibit R is a true copy of the letter asking who the specialists are and the training they possess in lipedema and lymphedema by an associate of mine named Doctor Jennifer Brady, PhD.
[52] These paragraphs clearly contain opinion and hearsay evidence, as well as spin. They are inadmissible.
[53] Much of the remaining portions of Ms. Ellingsen's affidavit are repetitive of information that is to be found in the Record. The respondent has pointed out, for example:
The comments made in paragraphs 4, 5, 22 to 24 of Ms. Ellingsen's affidavit are also captured in her submissions to the department at page 8-9 of the Ellingsen record. Likewise, paragraph 8 of the Ellingsen affidavit is captured at page 55 of the Ellingsen record. With respect to paragraph 11 and information regarding Dr. Ghod's lipedema treatment in Germany, that information was also before the department at page 280 well in the Ellingsen record. Finally, Ms. Ellingsen ‘s statement in paragraph 20 of her affidavit was also made as a submission to the Department. It can be found at page 1 of the Ellingsen record. (Respondent brief, October 20 23, p. 7)
[54] I am in agreement with the general thrust of the Respondent's submission noted above. While the wording in some instances is not identical in the affidavit to what was contained in the documents captured by the Record, the pith and substance is essentially the same in those paragraphs noted above. Moreover, in some instances, the impugned portions of the affidavit lapse into argument or spin which would be more properly contained within the parties’ briefs and closing submissions. Those paragraphs noted above are similarly inadmissible.
[55] Paragraphs 25, 26 and 27 of Ms. Ellingsen's affidavit describe symptoms of lipedema in general and their impact upon Ms. Ellingsen in particular. This information was before the Department in the copious record which was before it. Nothing is added by further repetition of the symptoms in her affidavit. These paragraphs shall be struck.
(iii) Affidavits of E. L-C, T.S. , K.F.(1), and K.F.(2)
[56] Ms. Ellingsen has tendered these affidavits and seeks that they be introduced into evidence. As I understand it, counsel's argument appears to be that they demonstrate that the Department relied on incorrect evidence garnered as a result of its jurisdictional scan to determine whether liposuction was an insured service in other parts of Canada. These efforts are referenced at pages 179 – 192 of the Ellingsen record.
[57] The Respondent contends that the information which was before the Department was obtained from authorities in the several Provinces who responded to the inquiry. The information provided was that liposuction is not covered as an insured service for lipedema and that there were no exceptions that they were aware of, nor were they aware of any consideration actively underway to consider the procedure as an insured service.
[58] The affidavits of the four individuals noted above essentially maintain that they were, in fact, provided with this service either in their respective Provinces, or that their Province covered the expense. I will consider them individually.
[59] E. L-C, a resident of Manitoba, says that she has stage III, type 4 lipedema (E. L-C affidavit, December 13, 2022, para four). She goes on to say:
16. I travelled for and had three rounds of lymphatic sparing liposuction and manual lipedema extraction for lipedema.
17. I paid for the first surgery personally and was reimbursed for the entire cost from M HSC. The second and third surgeries were paid for directly by M HSC. Additionally, M HSC paid for private duty nursing care at a hotel – based facility for each of my subsequent surgeries. They also reimbursed me for my flights.
18. For two of my surgeries, M HSC cover the cost of my companion travelling with me.
[60] Her affidavit ends, however, with this:
21. After receiving these surgeries, I was informed by M HSC on September 23, 2022 that no further surgeries would be covered as they were considered experimental. This had never been raised in my initial applications or approvals nor the subsequent documents disclosed by M HSC to Nova Scotia on June 6, 2022. A true copy of the denial letter is accent is attached as exhibit H to this affidavit.
[Emphasis added]
[61] K.F.(1) and K.F.(2) are also Manitoba residents. Each deposes that she has lipedema and that she had liposuction surgery to treat it on April 22, 2022, in Palo Alto California (para 5 of each affidavit). Both also attest that the surgery was covered by Manitoba Health, Seniors and Active Living (MHSAL) (para 6) and that neither paid personally for the surgery (para 7).
[62] T.S. is a British Columbia resident. She, too, confirms that she suffers from lipedema, that she had surgery performed in British Columbia to treat her lipedema on March 16, 2022, that the surgery was covered by the medical services program of British Columbia, and that she did not pay personally for the surgery (T.S. affidavit, December 16, 2022, paras 6-8).
[63] I note that the information in the Record expressly mentions that British Columbia does provide this treatment. However, that Province only covers B.C. residents. (Record, Vol. 1, Tab 2, p. 28) T.S., as pointed out, is a B.C. resident.
[64] Patently, these four affidavits are being tendered in an attempt to establish that the Department relied upon incorrect evidence. However, there is no suggestion in any of the above affidavits that the Department had been made aware of the facts to which each of the deponents have sworn.
[65] Moreover, the individuals who swore the four affidavits are (and were) entitled to confidentiality. There is no way that their individual circumstances could have been divulged to the Respondent or otherwise been before the Department when it made its determinations with respect to Ms. Brady and Ms. Ellingsen. In fact, the information in these four affidavits would not even be known now, had the individuals not subsequently come forward and made the disclosures themselves.
[66] As noted earlier, E. L-C’s affidavit expressly references the fact that her surgery, which was carried out within the Province of Manitoba, was part of an experimental program. The affidavits of K.F.(1) and K.F.(2) establish that they also were Manitoba residents, albeit two who received their surgery out of the province rather than within it.
[67] One of the issues to be determined will be whether the Department acted reasonably in relying upon the extra provincial information obtained from the sources from whom they received it. These affidavits have no bearing upon that issue, nor do they relate to whether the Applicants were accorded procedural fairness.
[68] These four affidavits are inadmissible.
Conclusion
[69] With respect to the affidavits of Ms. Brady and Ms. Ellingsen, those paragraphs, or those portions of them, and the exhibits which have survived the above scrutiny may be entered as fresh evidence, should the Applicants wish to do so. None of the affidavits of E. L-C, T.S., K.F.(1) or K.F.(2) may be entered. If the Applicants wish to enter the remainder of these affidavits, modified as per my earlier comments, the Respondents may enter responding affidavits, if they choose to.
[70] However, it may be more helpful to the Court if counsel were instead to simply summarize and organize the information already in the Record and make the appropriate references to that information in their briefs. This may be a more efficacious manner in which to provide to the Court the chronological sequence of events that have occurred, and the emphasis to which they may wish to accord certain of the events in accordance with the submissions that they intend to make.
Costs
[71] Costs shall be in the cause.
Gabriel, J.