Date: 20101022
Docket: T-32-10
Citation: 2010 FC 1040
Ottawa, Ontario, October 22,
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]
The
Applicant is a self-represented litigant serving a life sentence at Ferndale
Institution (Institution) in Mission, British Columbia. He seeks
judicial review of a third level grievance decision dated December 16, 2009.
II. BACKGROUND
[2]
Prior
to this grievance, the Applicant filed 17 grievances covering a number of
different subject matters. Extensions of time in which to respond were taken under
the grievance procedure on the grounds that the volume of complaints and the
complexity of the issues raised required additional time in which to provide a
proper response.
[3]
The
Applicant then took a third level grievance which is described:
This grievance is concerning several
lengthy delays I have been experiencing with Responses from the second level.
The body of the grievance complains in more
detail about the delay in the grievance process and the fact that some of the
second level grievances were not designated “high priority”.
[4]
The
third level decision (Decision) dismissed the grievance in large measure but
did find that there was one incidence of delay, of two days, in responding to a
particular grievance.
[5]
The
Notice of Application for Judicial Review does not identify with any precision
what is being reviewed and merely recites the grounds in section 18.1 for (a),
(b), (d) and (e) of the Federal Courts Act. It is clear, however, that
the Decision was the target of the challenge.
[6]
In
the course of the filing of materials in this judicial review, the Applicant
added in copious amounts of evidence that was not before the third level
grievance decision maker. The evidence included affidavits of different
individuals complaining of delays in the processing of their own grievances, and
articles and other information including the Annual Reports of the Office of
the Correctional Investigator.
The
Respondent quite properly takes objection to the filing of materials not before
the decision maker.
[7]
At
the judicial review hearing, it appeared that the Applicant’s complaint is threefold:
that the Institution used form letters to advise that an extension of time was
being taken to respond to a grievance; that there was no justification for the
extensions taken; and that the Institution was engaged in a systemic course of
activity designed to frustrate the grievance process by using unjustified
extensions of time.
[8]
The
issues before the Court are:
(a) Whether
the Commissioner committed a reviewable error in rendering the Decision;
(b) Whether
the Applicant’s challenge to the CSC’s grievance procedure in respect of extensions
of time is within the proper scope of this application; and
(c) If
so, whether the Applicant is entitled to the remedy sought.
[9]
Rather
than dealing with the objection to the additional evidence as a preliminary
matter, the Court heard the Applicant’s case and the full response.
III. ANALYSIS
A. Impugned
Decision
[10]
In
respect of the Decision, the standard of review, as referred to in Johnson
v. Canada (Attorney
General),
2008 FC 1357, is that of reasonableness because the issues are essentially
findings of fact and mixed law and fact.
[11]
The
Applicant seeks a declaration that the current grievance procedure is not an
adequate substitute for judicial review. This raises issues of natural justice
and procedural fairness which, if relevant, would be assessed on the standard
of correctness (Bonamy v. Canada (Attorney General), 2010 FC
153).
[12]
With
respect to the Decision, the Applicant in the hearing indicated that he was not
attacking this Decision but attacking the system; however, his Notice of Application
was directed towards that Decision, and stated that the Decision is in error.
[13]
The
Applicant has failed to address the specifics of any error committed in respect
of that Decision. Aside from arguing that the grievance process is systemically
flawed and the Institution is taking liberties with the treatment of
grievances, the Applicant has not pointed to any evidence that the extensions
of time taken by the Commissioner on the grounds of volume of complaints and
complexity of complaints is unjustified.
[14]
On
this ground alone this application should be dismissed. A judicial review of a
decision is not a free-ranging attack on each and every aspect of the operation
of the prison grievance system without some focus on the specific facts of the
case.
B. Grievance
Procedure
[15]
The
Applicant submitted a large body of evidence to allege that the internal CSC
grievance procedure is inadequate. The additional evidence was also designed to
address the deficiencies that Justice Mainville found in the Bonamy case
and in a real sense to “boot strap” this judicial review by providing evidence
not provided in the Bonamy case. A difficulty with the Applicant’s
approach is that all of this was done after the Decision was rendered.
[16]
While
there should generally be separate judicial reviews in respect of each
decision, one judicial review can be submitted in respect of “a continuous
course of conduct” or a “matter”.
[17]
The
difficulty with the Applicant’s position concerning the inadequacy of the
grievance procedure is that there is no evidence that such an adequacy arose in
his case. Indeed the internal grievance procedure appeared to function
adequately and reasonably. The one area in which the grievance procedure fell short
was in respect of the two-day delay which was addressed by the Institution.
[18]
The
Applicant says that his complaint is about more than merely the fact that extensions
of time were taken, or that there were delays in giving notice of extensions of
time, but rather that there was no merit in claiming extensions of time.
However, there is no evidence in this case that the extensions asserted in
respect of the Applicant’s grievances were not justified. To a large extent,
the Applicant is seeking to raise, within the context of the Decision and the
treatment of his own grievances which are not infirmed, a claim on behalf of
himself and other inmates that the whole process of claiming extensions is
being misused.
[19]
This
is not a proper case for the Court to consider the adequacy of the grievance
process generally. The Applicant would appear to wish the Court to embark upon
a review of systemic failures in the system. However, there is no adequate
record upon which to make that determination, even if the Court was inclined to
do so.
[20]
In
the absence of the Commissioner dealing with a complaint that takes up the
issues which the Applicant attempted to have this Court decide, this Court
should not embark upon that type of review without a decision by the
Institution on those issues.
C. Remedies
[21]
Since
the Applicant has failed to establish that the Decision is legally infirmed and
the Court is unprepared to embark on the review of systemic problems, the
remedies sought are academic even if they were available – a point of
considerable doubt.
IV. CONCLUSION
[22]
This
application for judicial review is dismissed.
[23]
The
Respondent has asked for costs in this matter and under the circumstances where
the Applicant has failed to address the very Decision under attack, the Court
is prepared to award the Respondent costs in the amount of $2,500 plus
disbursements.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed with costs to the Respondent in
the amount of $2,500 plus disbursements.
“Michael
L. Phelan”
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