Date: 20060511
Docket: T-1583-05
Citation: 2006
FC 593
Ottawa, Ontario, May 11, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
JEAN
RICHER
Applicant
and
THE CORRECTIONAL SERVICE OF CANADA
AND ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
appeal of the decision of Prothonotary Aronovitch dated December 21, 2005.
[2]
The
applicant brought an application for judicial review to quash the decision of
the Commissioner of the Correctional Service of Canada dated July 22, 2005.
[3]
Attached
to the application was a Rule 317 request. The respondent raised objections to
the Rule 317 request on October 6, 2005.
[4]
A
certified copy of record was prepared by the Correctional Service of Canada and
provided to the applicant on October 11, 2005. On October 14, 2005, the
applicant served a motion record dated October 12, 2005, requesting compliance
of the respondent with Rule 317.
[5]
On
December 21, 2005, Prothonotary Aronovitch granted the motion in part and
ordered that having regard to the applicant’s circumstances, the respondent was
to provide the applicant with a copy of the CRTC policy within 20 days of the order.
[6]
The
respondent complied with the order and the applicant was provided with a copy
of the CRTC policy on January 5, 2006.
[7]
On March
28, 2006, the respondent filed and served a motion to appeal Prothonotary Aronovitch’s
order.
ISSUE
[8]
Should the
order of Prothonotary Aronovitch dated December 21, 2005 be set aside?
[9]
The
standard of review on appeal of a discretionary decision of a prothonotary has
been established by Canada v. Aqua-Gem Investments Ltd., [1993] 149 N.R. 273
(F.C.A.), and Z.I. Pompey Industrie v. ECU-Line N.V., [2003] S.C.J. No.
23 (QL). Justice Michel Bastarache stated at paragraph 18:
Discretionary orders of prothonotaries
ought to be disturbed by a motions judge only where (a) they are clearly wrong,
in the sense that the exercise of discretion was based upon a wrong principle
or a misapprehension of facts, or (b) in making them, the prothonotary
improperly exercised his or her discretion on a question vital to the final
issue of the case.
[10]
The
applicant alleges in his motion that the respondent has failed to provide all
the materials which were before the decision maker when the decision was made
regarding the applicant’s third level grievance.
[11]
The
applicant also alleges that there were additional materials before the decision
maker of which he was not provided a copy including: i) Prior third level
grievance decisions; and ii) CRTC policy.
[12]
The
respondent suggests that the reference to the prior third level grievance
decisions at page 11 of the certified copy of record “has been misinterpreted
and that the statement serves not only to clarify the role and involvement of
both Mr. Price and the Security Branch, but also to explain the rationale
behind such policy decisions. This explanation is a result of the applicant’s
request that Mr. Price not be involved in determining the grievance as it
arises in part from his policy determination dated April 1, 2005.”
[13]
The
respondent also suggests that this reference is to the applicant’s own prior
third level grievance decisions.
[14]
Obviously,
Rule 317 provides access to documents which are not in the applicant’s
possession. The respondent suggests that there is no obligation to provide
documents in the file for which copies could already be in possession of the
applicant.
[15]
Regarding
the CRTC policy, in my view, the documents were already provided and this issue
is now moot.
[16]
In reply,
the applicant has filed written representations supported by an affidavit which
mentioned that the applicant discussed the decision which is the subject of
this judicial review with the decision maker Mr. Matthew Campbell. The applicant
elaborates on the content of those discussions, questions asked to the decision
maker, responses, discussions of the decision maker with other employees at the
Department of Justice, recommendations and responses by third parties.
[17]
In my
view, it is clear that the discussions by the applicant with the decision maker
are improper given that they were made for the purpose of discussing and
looking at what motivated the decision.
[18]
The
respondent also suggests that it was also improper to suggest as a remedy that
the respondent be ordered to provide an affidavit from the decision maker as to
what he meant by the particular wording of his decision.
[19]
In my
view, this action by the applicant when the issues are before the courts, is
totally inappropriate and vitiates the whole process.
[20]
After
reviewing the whole file, I have no hesitation to conclude that the applicant
has failed to demonstrate that Prothonotary Aronovitch’s decision is clearly
wrong or that the question raised is vital to the final issue in this case.
[21]
I also add
that the applicant, by his own means, vitiated the process by acting
improperly.
[22]
For all those
reasons, this appeal of Prothonotary Aronovitch's decision is dismissed with
costs in favour of the respondent.
ORDER
THIS COURT ORDERS that
The appeal of Prothonotary Aronovitch’s decision
be dismissed with costs in favour of the respondent.
“Pierre
Blais”
Email this Content