Ross v. Warden of Bowden Institution #2, 2002 FCT 360

Date: 20020328

Docket: T-2063-01

Neutral citation: 2002 FCT 360

BETWEEN:

                                                                     ARTHUR ROSS

                                                                                                                              Respondent (Applicant)

                                                                              - and -

                                      THE WARDEN OF BOWDEN INSTITUTION #2

           THE DIRECTOR OF INMATE AFFAIRS OTTAWA, MR. YVAN ZHIBAULT,

                                 AND 3^rd LEVEL ANALYST, CHRISTINE LACHANCE

                                                                                                                          Applicants (Respondents)

                                                            REASONS FOR ORDER

MARTINEAU, J.:

[1]                 This is a motion on behalf of Her Majesty the Queen, in writing under Rule 369(1) of the Federal Court Rules, 1998, for:

1.         An order pursuant to Federal Court Rule 4 or the inherent jurisdiction of the Federal Court Rules, 1998, to dismiss the judicial review application on the ground that it seeks relief that is not possible pursuant to the Federal Court Act, subsection 18.1(3) thus being bereft of any possibility of success.

2.         Costs of this application and on the judicial review; and

3.         Such further and other relief as this Honourable Court may find just and expedient.

[2]                 The respondents have failed to convince me that the applicant's originating notice of application under section 18.1 of the Federal Court Act is "... so clearly improper as to be bereft of any possibility of success" (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588) that it should not be allowed to proceed further.

[3]                 The applicant contests the validity of a decision rendered by the respondents acting as a "federal board, commission or other tribunal" which had the effect of reducing his pay in retroactive fashion, and led to the rejection (at the third level) of the applicant's grievance contesting this reduction.

[4]                 The applicant, who represents himself, argues among other things, that the impugned decision is arbitrary and contrary to law, that it is based on erroneous facts which were not or could not be proved, that it is contrary to certain directives, that proper written notification was not given within a specified delay, and that it could not be made retroactive.

[5]                 The respondents have not asserted that this application for judicial review has no chance of success, that the grounds alleged are devoid of any merit, that it is scandalous, frivolous or vexatious, or that it is otherwise an abuse of the process of the Court.

[6]                 The respondents simply question the authority of this Court pursuant to subsection 18.1(3) of the Federal Court Act to award damages. Reference has been made to the following cases: De-Nobile v. Canada (Attorney General) [1999] F.C.J. No. 1727; Tench v. Canada (Attorney General) [1999] F.C.J. No. 1716; Bouchard v. Canada (Minister of National Defence) [1998] F.C.J. 1507.

[7]                 Subsection 18.1(3) of the Federal Court Act stipulates:

18.1 (3)Powers of Trial Division - On an application for judicial review, the Trial Division may

18.1 (3)Pouvoirs de la Section de première instance - Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut :

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.

[8]                 Although the applicant has indicated that it will seek his "lost pay of $3.30 per day" and "treble damages", nothing permits the Court to infer that he is not also claiming any available relief under subsection 18.1(3) of the Federal Court Act. It is debatable at this point that he is not also asking the Court to declare the impugned decision invalid and remit the matter back to the respondents. This would mean that the respondents would have no right to reduce his pay and would have to reimburse the applicant for any salary lost.

[9]                 It is apparent that the legality of the impugned decision is questioned by the applicant who refers to Buyens v. Head (William) Institution Disciplinary Court (Independent Chairperson) (No. 1) (1992), 52 F.T.R. 95, and relies more particularly on the following comments of Muldoon J.:

... It makes a mockery of the rule of law to express this unfair application of the directives: "I shall abide by those directives which suit me, but I shall ignore those directives which suit you, the inmate." To the extent that attitude prevails, to such an extent is recidivism explained.

[10]            In this case, I conclude that the ultimate adequacy of the allegations and grounds of review invoked by the applicant should be referred to a judge hearing the application on its merits. The ancillary questions of the "relief" the Court would order and of determining if the applicant is in fact requesting "damages", which may be debatable issues, will be better dealt with, if necessary, at the hearing of the application for judicial review itself.

[11]            For those reasons, the motion made by the respondents is dismissed.

OTTAWA, Ontario

March 28, 2002

                                                                                                        Judge