Date: 20010621
Docket: T-578-01
MONTRÉAL, QUEBEC, JUNE 21, 2001
Before: RICHARD MORNEAU, PROTHONOTARY
Between:
MICHEL LAVOIE
Plaintiff
AND
CORRECTIONAL SERVICE OF CANADA
Defendant
ORDER
The motion by the Attorney General of Canada is allowed. The Court orders that the plaintiff's application for judicial review be struck out and his application for judicial review be dismissed on the ground that it discloses no valid cause of action: the whole without costs.
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Richard Morneau
Prothonotary
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Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
Date: 20010621
Docket: T-578-01
Neutral reference: 2001 FCT 686
Between:
MICHEL LAVOIE
Plaintiff
AND
CORRECTIONAL SERVICE OF CANADA
Defendant
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This case concerns a motion by the Attorney General of Canada under Rules 221(1)(a) and 369 of the Federal Court Rules,1998 ("the Rules") to strike the plaintiff's application for judicial review ("the application") and dismiss the latter on the ground that it discloses no valid cause of action.
[2] It appeared that the plaintiff is currently an inmate at the Federal Training Centre penitentiary in Laval. For the purposes of this case, he represented himself.
[3] As appeared from the remedies set out by the plaintiff in his application, he sought to obtain an order from this Court that the Correctional Service of Canada should set up a system for processing complaints and grievances which is impartial, fair and equitable. The plaintiff also explained what he meant by an impartial, fair and equitable system and set out the various things he wishes to see in such a system.
[4] Under ss. 90, 91, 96(u), 97 and 98 of the Corrections and Conditional Release Act (CCRA), ss. 74 to 82 of the Corrections and Conditional Release Regulations and Commissioner's Directive 081, Parliament has already created a procedure for handling complaints and grievances.
[5] The plaintiff was apparently not seeking the enactment of new legislation. What he wanted was the enactment of a new set of regulations. Although this distinction does not appear anywhere in his notice of application, in para. 9 of his reply to the motion under review ("the plaintiff's reply") the plaintiff indicated that he [TRANSLATION] ". . . is not in any way interested in an amendment to the Act: on the contrary, he wants the Act to be applied and observed as it should be and consequently is asking that the Court order the creation of effective, real and compliant regulatory provisions . . .".
[6] It is clear that this Court cannot compel the Governor in Council to legislate to create regulations meeting the plaintiff's requirements. Consequently, since [TRANSLATION] "order[ing] the creation of regulatory provisions" is not a remedy which the Court can grant in response to an application, it follows that the application discloses no reasonable cause of action and for that reason should be struck out.
[7] Additionally, it appeared from paragraph 4 of the plaintiff's reply that it was through the processing under the existing Regulations of past complaints and grievances that the plaintiff managed to formulate his application that new regulations be created. In fact, in para. 26 of his reply - and not as part of his application - the plaintiff claimed that the present Regulations were enacted ultra vires. (More specifically, as appeared from para. 18 of the plaintiff's reply, only ss. 74 to 82 of the existing Regulations were objected to by the plaintiff. Those sections deal with the grievance settlement procedure.)
[8] However, as we saw earlier, the plaintiff did not claim in his application that ss. 74 to 82 were enacted ultra vires. In his application he simply asked that new regulations be introduced. As mentioned earlier, this Court cannot accede to such a request.
[9] In theory, abolition of the said sections of the existing Regulations is within the powers of this Court in response to an application. However, the sections of the Regulations in question deal with a grievance settlement procedure and it does not appear to the Court that it can be said that these sections have "ongoing application" to the plaintiff. The sections apply to him, as to any other inmate, when specific acts or a decision cover or involve the plaintiff. Accordingly, there is no basis here for applying the case law discussed in Mennes v. Canada (Attorney General), [1998] F.C.J. No. 1674 (Q.L.) (F.C.), in paras. 10 et seq., so as to argue that the sections of the Regulations are an "ongoing decision" and so evade the necessity of relating any challenge to the sections to a specific factual situation for purposes of the deadline to be observed under s. 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.
[10] Accordingly, if the plaintiff seeks a declaration that ss. 74 to 82 of the existing Regulations are ultra vires, he must make this challenge as part of an application dealing with the application of those sections to a specific factual situation. Any application will have to filed within the deadline mentioned in s. 18.1(2) of the Federal Court Act. In this connection, if the plaintiff wishes to have the legality of the sections of the Regulations reviewed in light of a past factual situation, he will probably, before filing an application as such, have to obtain an extension of the 30-day deadline under s. 18.1(2). Finally, the plaintiff will note that any application regarding regulations must implead the Governor in Council as respondent.
[11] For all these reasons, the Attorney General of Canada's motion will be allowed and the Court will order that the plaintiff's application be struck out and his application dismissed on the ground that it discloses no valid cause of action.
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Richard Morneau
Prothonotary
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MONTRÉAL, QUEBEC
June 21, 2001
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-578-01
STYLE OF CAUSE: MICHEL LAVOIE
Plaintiff
AND
CORRECTIONAL SERVICE OF CANADA
Defendant
WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT
APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: June 21, 2001
WRITTEN SUBMISSIONS BY:
Michel Lavoie for the plaintiff
Nadia Hudon for the defendant
SOLICITORS OF RECORD:
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010621
Docket: T-578-01
Between:
MICHEL LAVOIE
Plaintiff
AND
CORRECTIONAL SERVICE OF CANADA
Defendant
REASONS FOR ORDER
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