Date: 20091217
Docket: T-1431-09
Citation: 2009
FC 1286
Ottawa, Ontario, December 17, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
WARREN
MCDOUGALL
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
By motion
in writing dated November 12, 2009 the applicant, Warren McDougall, appeals the
order of Prothonotary Lafrenière dated November 3, 2009 dismissing the
applicant’s requests:
(a) to proceed in forma pauperis pursuant
to section 19 of the Federal Courts Rules, SOR/98-106 (the “Rules”); and
(b) to be provided with all of the
requested material in the notice of application pursuant to section 317 of the
Rules.
[2]
The
applicant is a federally incarcerated inmate.
[3]
On August
26, 2009 the applicant issued a notice of application commencing a judicial
review of a third level grievance decision made by the Senior Deputy
Commissioner (the “SDC”) of the Correctional Service of Canada (“CSC”) on June
2, 2009.
[4]
The
applicant claims that his application for judicial review is not only with
regards to the third level grievance decision made by the SDC on June 2, 2009
but is also an application for an order in certiorari to quash the
“Security Bulletin” of the Security Operations and Procedures Division at CSC
National Headquarters sent to staff members on June 30, 2008 to clarify the
procedures relating to the new Institutional Standing Order (ISO) 770 – Inmate
Visits.
[5]
The notice
of application included requests for materials, pursuant to Rule 317(2). In
addition to requesting the record of proceedings before the SDC, which the
applicant received on September 16, 2009, the applicant requested:
a)
information
that identifies visitors who visit more than one inmate or more than one
penitentiary as an area of concern for the introduction of drugs into federal penitentiaries,
including any evidence allegedly supporting or corroborating that information
and any evidence suggesting that families present a lesser risk than friends
and other persons from outside the penitentiary;
b)
the
minutes from the Matsqui Visitors’ Advisory Committee meetings, where Noelle
Anderson is on record as an active member; and
c)
the
applicant’s visiting records, pertaining to Noelle Anderson and Ralna Burridge.
Decision Under Appeal
[6]
In his November
3, 2009 order, Prothonotary Lafrenière found that there were insufficient facts
to demonstrate the special circumstances necessary to waive filing fees: Pearson
v. Canada, (2000), 195 F.T.R. 31, [2000] F.C.J. No. 1444. Acknowledging
that the applicant clearly has limited funds, the prothonotary found that he is
not an indigent person. As the applicant admitted that he could pay the modest
filing fee to file a requisition for hearing if required, the prothonotary
concluded that the application to proceed in forma pauperis could not be
granted.
[7]
With
regards to the requested material in the applicant’s notice of application,
Prothonotary Lafrenière indicated that for the applicant to obtain relief
pursuant to Rule 318 he must first establish that the material is relevant to
the application. In considering the material requested by the applicant, described
above at paragraph 5, the prothonotary noted that the applicant is challenging
the third level decision made by the SDC on June 2, 2009 denying the applicant’s
grievance.
[8]
Prothonotary
Lafrenière determined that the applicant had failed to establish that the
requested documents were before the SDC when he rejected the applicant’s
grievance. It is mentioned in the order that the motion for production of documents
should be dismissed on this ground alone.
[9]
In
addition, it was determined that the applicant had failed to establish that the
documents requested are relevant to the issues raised in the application.
[10]
Lastly, it
is stated in Prothonotary Lafrenière’s order that Rule 318 is not intended as a
means of obtaining discovery of all documents that may be in the possession of
CSC.
Issue
[11]
The issue
on this appeal is whether Prothonotary Lafrenière erred in dismissing both of
the applicant’s requests: (a) to proceed in forma pauperis and (b) to be
provided with all of the requested material in the notice of application?
Standard of Review
[12]
The
standard of review applicable to a prothonotary's discretionary decision was
established by the Federal Court of Appeal in Canada v. Aqua-Gem Investments
Ltd., [1993] 2 F.C. 425 (C.A.), [1993] F.C.J. No. 103, and endorsed with
approval by the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU-LINE
N.V., [2003] 1 S.C.R. 450, [2003] S.C.J. No. 23, at para. 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 the 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.
[13]
The Aqua-Gem
test was reformulated in Merck & Co. v. Apotex Inc., (2003), 315
N.R. 175, [2003] F.C.J. No. 1925, as follows:
Discretionary orders of prothonotaries
ought not to be disturbed on appeal to a judge unless:
a) the questions in
the motion are vital to the final issue of the case, or
b) the
orders are clearly wrong, in the sense that the exercise of
discretion
by the prothonotary was based upon a wrong principle or
upon a
misapprehension of facts.
Analysis
[14]
The final
issue before this Court on judicial review in this matter is the SDC’s
application of the visiting policy established in ISO 770 – Inmate Visits.
The question whether the applicant is indigent, or can proceed in forma
pauperis, is not vital to that issue.
[15]
Moreover,
in this case, there is no reason to depart from the general principle that an
applicant’s request for an order for documents is not a matter that is vital to
the final issue: Gaudes v. Canada (Attorney General), 2005 FC 351, [2005]
F.C.J. No. 434, at para. 8; Deer Lake Regional Airport Authority Inc. v. Canada (Attorney General), 2008 FC 1281, [2008] F.C.J.
No. 1707, at para. 37.
[16]
In his
application for judicial review, the applicant seeks to challenge (1) the
application of the ISO 770 policy to his approved list of visitors and (2) the
implementation of that policy by CSC. As there is no evidence that the
requested documents were before the SDC, I conclude that this matter is not
vital to the final issue, and accordingly, the prothonotary's order should be
assessed on whether the order is clearly wrong: as set out in the second part
of the test in Merck & Co. v. Apotex Inc., above.
[17]
This Court
should only interfere with the order of Prothonotary Lafrenière if satisfied
that he was "clearly wrong" in that he based his decision upon an
incorrect principle of law or upon a misapprehension of the facts and then,
only if upon conducting a de novo review of the evidence, the Court
reaches a different conclusion on the facts and the law.
[18]
A de
novo review may only consider the evidence that was before the
prothonotary. The respondent has properly objected to the inclusion of additional
evidence in the applicant’s motion record. This new evidence, which will not be
admitted, is the applicant’s affidavit sworn on November 12, 2009. As this
affidavit was not before Prothonotary Lafrenière, I am unable to give it consideration
in arriving at a decision: Apotex Inc. v. Wellcome Foundation Ltd., 2003
FC 1229, [2003] F.C.J. No. 1551, at para. 10. What I will be considering is the
applicant’s affidavit filed in support of the original motion.
[19]
I disagree
with the applicant’s view that the prothonotary misapprehended the facts as he based
his decision on the mistaken belief that the applicant seeks judicial review of
the singular grievance decision of June 2, 2009. When reading the first
paragraph at page 3 of the order, it is clear that the prothonotary understood
that the applicant was challenging the grievance before the SDC and was also
taking issue with the implementation and application of a CSC policy placing
restrictions on inmate visits.
[20]
I agree
with the respondent that the prothonotary’s order dismissing leave for the
applicant to proceed in forma pauperis is not clearly wrong. I note that
the record indicates that while incarcerated, Mr. McDougall has limited
financial resources but is able to pay monthly expenditures for cable
television, school tuition, telephone services, etc., and could sell some of
his paintings to earn some money to pay for these proceedings. Noting that the
applicant has limited funds, I cannot find that the prothonotary was clearly
wrong when he also noted that the applicant’s own evidence was that he could
pay for the modest filing fee to requisition a hearing: Merck & Co. v.
Apotex Inc., supra.
[21]
Again, I
do not find that the Prothonotary was clearly wrong when he found that the
requested documents are not relevant. The Prothonotary was aware that the
applicant takes issue with both the implementation and application of the CSC
policy restricting inmate visits. Prothonotary Lafrenière found that the
applicant did not submit evidence demonstrating that the documents provided in
the certified tribunal record, pursuant to Rule 317, were incomplete. In the
absence of evidence to the contrary, there is no basis upon which this Court
could find that he was clearly wrong in concluding that the certified tribunal
record provided is complete and sufficient.
[22]
I agree
with the respondent that the applicant is seeking documents in order to
demonstrate that the ISO 770 (restricting inmate visits) is an unfair policy.
However, procedural fairness in the legal sense is not concerned with the fairness
of a policy. Rather, procedural fairness relates to fair play in the decision
making process: Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co.,
2006 FCA 398, [2006] F.C.J. No. 1837, at para. 7. Again, I cannot find that the
prothonotary was clearly wrong when he determined that the documents, relating
to the CSC policy, are not relevant pursuant to the allegation of procedural
unfairness in the notice of application.
[23]
There is
no evidence that the requested documents were before the SDC when he rejected
the applicant’s grievance.
[24]
The
applicant’s document request amounts to a discovery of documents. That is not
the purpose of a Rule 317 request. I agree with the respondent that the purpose
of Rule 317 and Rule 318 is to limit discovery to documents which were before
the decision-maker when the decision was made and which are not in the
possession of the person making the request: 1185740 Ontario Ltd. v. Canada
(Minister of National Revenue), (1999), 247 N.R. 287, [1999] F.C.J. No.
1432.
[25]
This is consistent
with the summary nature of judicial review. I find that the prothonotary
correctly applied the above principles relating to Rule 317 in his order: Access
Information Agency Inc. v. Canada (Transport), 2007 FCA 224, [2007] F.C.J. No. 814, at paras. 20-21; Beno
v. Canada (Commission of Inquiry into
the Deployment of Canadian Forces in Somalia - Létourneau Commission), (1997), 130 F.T.R. 183, [1997]
F.C.J. No. 535, at paras. 15-17.
[26]
The
respondent requests an order dismissing the applicant’s appeal with costs. While
they would normally follow the result, I will exercise my discretion in this
matter not to award them. I take into consideration that the applicant is a
federally incarcerated inmate with limited financial resources.
ORDER
THIS COURT ORDERS that:
1. The applicant’s appeal is
dismissed.
2. The parties
will bear their own costs.
“Richard
G. Mosley”
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