Citation: 2010 FC 1028
Ottawa, Ontario, October 21,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MICHAEL
AARON SPIDEL
Applicant
and
CANADA (ATTORNEY
GENERAL)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Michael
Aaron Spidel, the Applicant, is a prisoner incarcerated at Ferndale Institution
(Ferndale) in Mission, British
Columbia. He seeks judicial review of a decision made by a prison official
which required the Applicant to choose between two paid jobs within the prison
in accordance with a prison policy that no prisoner could hold more than one
paid position.
II. BACKGROUND
[2]
In
January 2009 the Inmate Committee at Ferndale created the new
position of Secretary-Treasurer. Previously, the Inmate Committee had been composed
of two positions. The third position was approved by the Institutional Head at Ferndale, the Warden.
[3]
The
Applicant at the time was a Social Development Clerk which was a paid position
within Ferndale.
[4]
In
July 2009 the Applicant was elected to the new position of Secretary-Treasurer
by acclamation.
[5]
The
position of Secretary-Treasurer fell within the Commissioner’s Directive 083
which stipulates that all such positions are to be held as full-time paid
positions.
[6]
Shortly
after being elected Secretary-Treasurer of the Committee, the Applicant was
advised that he could not occupy two full-time paid positions at once, and that
he had to choose between his job as Social Development Clerk and his new
position as Secretary-Treasurer of the Inmate Committee.
[7]
On
September 2, 2009, the Applicant filed a First-Level Offender Grievance
Presentation (First Level Grievance). He subsequently advised that the
grievance would be put on hold pending the outcome of this judicial review
application, which he filed before receiving any response to his initial
grievance.
[8]
This
litigation has been the subject of several motions, five in all, brought by the
Applicant without success.
[9]
The
Applicant takes the position that he is not seeking to obtain double the inmate
pay for holding two positions, as he contends that the Regulations preclude such
“double dipping”. He further indicates that he is not challenging the policies,
the Corrections and Conditional Release Act, or the Regulations. Therefore,
it is difficult to know on what precise legal basis the Applicant says that the
decision is ultra vires.
[10]
This
judicial review presents two issues:
(a) Whether
the Court should hear the judicial review in spite of the Applicant failing to
exhaust his remedies under the grievance process; and
(b) Whether
the decision is unreasonable or otherwise without merit.
[11]
In
view of the Court’s disposition on the first issue, it will refrain from making
comment on the merits, if any, of the second issue.
III. ANALYSIS
[12]
There
is no standard of review in respect of the first issue. The Court is required
to consider relevant factors and to reach a reasonable conclusion regarding the
exercise of its discretion. The Court’s discretion with respect to hearing a
judicial review where there is an adequate alternative remedy is subject to
consideration of whether there are exceptional circumstances which might
otherwise require the Court to hear a matter despite the existence of an
adequate alternative remedy (see Froom v. Canada (Minister of Justice),
2004 FCA 352 and McMaster v. Canada (Attorney General), 2008 FC 647 at
paras. 23 and 27).
[13]
The
Applicant raises a number of arguments, not always easy to follow, to establish
that there are exceptional circumstances. These arguments include that the
grievance process outcome is a foregone conclusion since the policy concerning
two paid positions was established by the Head of Ferndale; that there are
systemic delays within the prison grievance process; that this particular
grievance was subject to mishandling and should have been dealt with at a
higher priority level.
[14]
The
Applicant has claimed that the Regulations anticipate and permit the processing
of a judicial review before the internal grievance process has been exhausted
and relies on section 81(1) of the Regulations which provides for a stay of the
grievance process when an inmate pursues an alternate remedy. That argument was
specifically rejected by Justice Dawson in McMaster, above, at paragraphs
32-33 and I concur with that conclusion.
32 Subsection
81(1) operates to stay the grievance procedure while an inmate pursues an
alternate remedy. That regulatory stay cannot operate to take away or limit the
Court's discretion on judicial review. Similarly, the Supreme Court did nothing
more than recognize that the existence of the grievance procedure did not
preclude an inmate from pursuing a legal remedy. The Court did not alter
existing jurisprudence concerning how a reviewing court would treat an
application for judicial review where existing grievance procedures were not
followed.
33 I
find support for this interpretation of subsection 81(1) in the Giesbrecht
decision, cited above. There, Justice Rothstein wrote at paragraph 13:
In the present
case, it is the filing of the judicial review itself that precludes the
grievance from proceeding by reason of subsection 81(1). However the judicial
review is within the control of the Court, as contrasted with the Canadian
Human Rights proceeding in Hutton over which the Court had no control. It would
be anomalous if an applicant, by filing a judicial review application, could
arrogate to himself the determination of whether the grievance process
constituted an adequate alternative remedy. That is a decision for the Court.
Judicial review is a discretionary remedy and the Court cannot be precluded
from determining that an adequate alternative remedy exists simply because an
applicant has filed a judicial review application. Subsection 81(1) of the
Regulations is not intended to detract from the Court's discretion in this
respect. It is simply a statutory stay of grievance procedures where another
proceeding is commenced in order to avoid a multiplicity of concurrent
proceedings involving the same matter. Subsection 81(1) does not act as a bar
to the grievance proceeding should the Court find that procedure to be an
adequate alternative remedy and thereby dismiss the judicial review. This
argument of the applicant must therefore fail.
[15]
In
Gates v. Canada (Attorney General), 2007 FC
1058, I held the following:
26 In
my view, the Court should not lightly interfere with the complaints process.
There are strong policy and statutory reasons for requiring inmates to use this
process. It is in cases of compelling circumstances, such as where there is
actual physical or mental harm or clear inadequacy of the process that a
departure from the complaints process would be justified (this is not an
exhaustive list of the circumstances justifying departure from the usual
process).
27 As
recognized in May v. Ferndale Institution, [2005]
3 S.C.R. 809, the complaints process is not a complete statutory code. While
not dealing with freedom issues, as in Ferndale, the
Court is faced with health issues which are serious matters. In addition, the
factual background as to cold temperatures in the TDU is not substantially
challenged which gives credence to the health concerns brought on by cold
temperatures.
28 As
outlined earlier in these Reasons, s. 81 specifically contemplated an inmate
seeking alternative legal remedies to those internal remedies. It is consistent
with this regulatory scheme that, where there are urgent substantive matters
and evident inadequacy in the internal procedures, it is open to the Court to
consider the issue of remedial action.
[16]
Therefore,
there must be compelling or exceptional circumstances before the Court will
exercise its discretion to trump the grievance process. Those circumstances do
not exist in this case.
[17]
The
grievance process generally has been held to be adequate (see Giesbrecht v.
Canada (1998), 148 F.T.R. 81 (T.D.) and Ewert v. Canada (Attorney
General),
2009 FC 971).
[18]
There
is no evidence that the conclusion of the Applicant’s grievance process is a
foregone conclusion nor is there any reason to believe that the grievance will
not be fairly considered. In any event those claims are not “exceptional
circumstances” which require Court intervention at this point in the grievance
process.
[19]
Concerning
the Applicant’s claims of systemic delays, it is noteworthy that there is no
indication that this particular grievance has been unduly delayed. Any delay
has been caused by the Applicant’s choice of seeking judicial review which
operates as a stay of the grievance process. It is therefore impossible at this
stage to claim a systemic delay when no delay exists.
[20]
With
respect to the Applicant’s arguments that his grievance has been frustrated,
that it has not been forwarded properly up the chain of command and that
somehow his case is related to another prisoner, a Mr. McDougal, it is less
than clear how these arguments are relevant. If there is improper handling of
the grievance, that may be rectified within the process or upon later review.
[21]
The
Court is unable to find any exceptional circumstances which would justify
departing from the general proposition that an applicant ought to exhaust his
or her available remedies within the grievance process before coming to this
Court.
[22]
Indeed,
given the nature of this case, it would be a more useful record if, in the
future, there was a complete process before the Court upon review.
[23]
As
stated earlier, given the Court’s finding that this is a case which it ought
not to hear at this stage, it will make no comment with respect to the merits
of the Applicant’s grievance.
[24]
The
issue of costs was briefly addressed before the Court. Under the circumstances,
there will be no award of costs.
IV. CONCLUSION
[25]
This
application for judicial review is dismissed without prejudice to the right to
bring a judicial review at the conclusion of the grievance process.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed without prejudice to the right to bring a
judicial review at the conclusion of the grievance process.
“Michael
L. Phelan”
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