Date: 20091123
Docket: T-649-09
Citation: 2009 FC 1201
Ottawa, Ontario, November 23, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ESMOND
JACK YU
Applicant
and
ATTORNEY
GENERAL OF CANADA
or
CORRECTIONAL
SERVICE OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Mr. Esmond Jack Yu,
the Applicant, is currently serving an indeterminate life sentence in Canada’s penitentiary system. He was incarcerated at Matsqui
Institution on January16, 1997. After an incident on November 1, 2007, Mr. Yu
was moved from his cell to a segregation unit at Matsqui and, on December 7,
2007, he was transferred to Kent Institution.
[2]
Mr. Yu claims that
some of his personal belongings never made it to his new home at Kent. On April 9, 2009, Mr. Yu filed an Inmate Claim for Lost or Damaged Property
(Inmate Claim) for $463.11, listing 13 allegedly missing items. His claim
followed the established procedures up to a Third Level Grievance considered by
a Senior Deputy Commissioner (SDC). Dissatisfied with the results of the
decision of his final grievance, Mr. Yu commenced this application for judicial
review. In addition to other remedies, Mr. Yu asks this Court to overturn the
Third Level Grievance Decision, dated March 11, 2009, in which the Correctional
Services Canada (the Service) was found liable for $198.00.
II. Issues
[3]
In my
view, this application raises the following issues:
1.
What is the
appropriate standard of review of the Third Level Grievance Decision?
2.
Was the Third Level
Grievance Decision made in breach of procedural fairness because copies of
certain documents were not provided to Mr. Yu before the decision was made?
3.
Was the Third Level
Grievance Decision reasonable?
4.
Are the remedies
sought (mandamus, costs, and damages) appropriate in this instance?
[4]
For the reasons that
follow, I am satisfied that this application should be dismissed. Accordingly,
there is no need to address the final issue listed.
III. Background
A. Procedure followed
[5]
When Mr.
Yu was removed from his cell on November 7, in accordance with policy, his cell
was locked. His personal effects were removed from the cell about three hours
later. At that time, an initial Personal Property (Cell Property Removal) form
(CPR) was completed. Once it was determined that Mr. Yu would be transferred to
Kent Institution, his belongings were packed by two Correctional Officers and a
second or final CPR was completed. As noted, Mr. Yu filed his Inmate Claim on
April 8, 2009. Two of the items (a Cord and guitar strings) “resurfaced” and are
no longer claimed by Mr. Yu.
B. First Decision
[6]
An official with the Service
rendered the first decision (Claim Decision) on July 3, 2008. The Decision was
based on Commissioner’s Directive 566-12 (CD 566-12), which states that the
Applicant has responsibility to ensure that his Personal Property Record (PPR)
is kept current. Mr. Yu had not done so and only two items that he claimed
were lost had been properly documented on his PPR: a printer and a book with
CD. Since the printer was not listed on the final CPR, the claim was upheld for
$24.00, an approximation of the value of the “Speed Mechanics” book and CD.
C. Second
Level Decision
[7]
Mr. Yu submitted a
second level grievance on July 24, 2008.
[8]
In the Second Level
Grievance Decision dated October 31, 2008, the Assistant Deputy Commissioner
Institutional Operations (Assistant Deputy Commissioner) upheld the grievance
in part and granted Mr. Yu $177.06 for his claim, in respect of five items:
·
two language
learning CDs ($65.40);
·
a
long-sleeve black shirt ($9.99);
·
two
T-shirts ($24.99);
·
the “Speed
Mechanics” book and CD ($25.39); and
·
pants
($51.29)
[9]
Even
though the language learning CDs, the black shirt, the t-shirts and the pants
were not listed on Mr. Yu’s PPR, the Assistant Deputy Commissioner determined
that these items were listed on the final CPR. In other words, the Assistant
Deputy Commissioner had evidence beyond the PPR that these items had, at the
time he was removed from his cell at Matsqui, been in the possession of Mr. Yu.
Mr. Yu’s claim was denied for the remaining items.
D. Third Level Grievance
[10]
Mr. Yu
submitted a third level grievance on November 10, 2008.
[11]
In a
decision dated March 11, 2009 (the decision under review in this application),
the SDC reviewed each item on the list and, with the exception of one item,
denied the claims. The only exception was the claim for the printer. The SDC noted
that the printer had been in Mr. Yu’s cell when he was moved to segregation:
Although the [printer] does not appear on
the CPR form, a thorough analysis into the whereabouts of your printer has
revealed that it was in your cell, as a cellular telephone was found hidden it.
However, there was no record as to where the printer was stored following the
seizure. As it can be determined that the Service was responsible for the
safekeeping of your printer and that it cannot be demonstrated that it took all
reasonable steps to protect your property, this part of your grievance is
upheld.
[12]
Mr. Yu’s claim
for the printer was allowed at $198, that being the amount that had been listed
on Mr. Yu’s PPR.
[13]
The SDC’s
reasons for rejecting the other claims fall into three categories:
(a)
For the
claim to “clothing-pant”, the SDC found that Mr. Yu had not clearly identified
the pants and that “it cannot be clearly ascertained which pair of pants you
are claiming”;
(b)
For the
claim to the “Book with Compact Disc – “Speed Mechanics””, the SDC noted that
this item was now listed on Mr. Yu’s current PPR at Kent. As such, it appears that the Book and
the CD were not missing;
(c)
For all of
the other items, the SDC rejected the claims on the basis that they were not
listed on his PPR from before he was transferred from Matsqui.
IV. Statutory
Framework for the Issues
[14]
Mr. Yu claims
that his personal effects have been lost by the Service and he has not received
adequate compensation. He has gone through the grievance system established and
mandated under the Corrections and Conditional Release Act, S.C. 1992,
c.20 (CCRA). Mr. Yu highlights s. 4(g) of CCRA where correctional
decisions are to “be made in a forthright and fair manner, with access by the
offender to an effective grievance procedure”.
[15]
The CCRA
stipulates, at ss. 90-91, that a fair and expeditious procedure must exist to
resolve offenders’ grievances on matters within the jurisdiction of the
Commissioner. Every offender must have complete access to the grievance
procedure without negative consequences.
[16]
The grievance
procedure that Mr. Yu went through, from the original claim, to the Second
Level Grievance and finally the Third Level Grievance, all correspond with ss.
74-80 of the Corrections and Conditional Release Regulations, SOR/92-620
(CCRR). At each level of grievance, Mr. Yu’s claims are assessed de
novo. In this case, that means that the SDC was not in any way constrained
by the determinations at the Second Level Grievance.
[17]
Mr. Yu argues that,
under s. 84 of CCRR, the institutional head must take all reasonable
steps to ensure that his property within the penitentiary is protected from
loss or damage.
[18]
Mr. Yu also raises
the Service’s liability under Crown Liability and Proceedings Act,
R.S.C. 1985, c. C-50 (CLPA). Under s. 3(b), the Crown is liable for
damages in any Canadian province for a tort committed by a servant of the
Crown, or for a breach of duty attaching to the ownership, occupation,
possession or control of property.
[19]
An issue raised by
Mr. Yu is that essential documents were not provided to him prior to the
decision on March 11, 2009. Under s. 27(1) of CCRA, the offender, Mr.
Yu, is entitled to make representations, and the administrative body is
mandated to give him all information to be considered in the decision-making
process. This is to be done within a reasonable period before the decision is
to be made. The parties agree that Mr. Yu was not given a copy of the CPR until
after the Third Level Grievance Decision was made.
V. Analysis
A. Standard of Review
[20]
The first
task of the Court is to establish an appropriate standard of review of for the
Third Level Grievance Decision. Justice Mosley in Johnson v. Canada (AG),
2008 FC 1357, 337 F.T.R. 306 at paragraphs. 35-39 examined the standard of
review on decisions made at hearings conducted under CCRA. Correctness
is applied to issues of procedural fairness (Johnson, at para. 36).
The standard of reasonableness is applied on decisions of whether the Service properly
compensated the Applicant for the destruction or loss of items (Johnson,
at paras. 38-39).
[21]
The
argument that the SDC did not provide Mr. Yu with relevant documents prior to
the decision is a question of procedural fairness. This should be reviewed on a
standard of correctness.
[22]
The issue
of whether the compensation was adequate is reviewable on a standard of
reasonableness. According to
the Supreme Court in Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47, the Court
should not intervene unless decisions are outside the realm of reasonable
outcomes, and they are not intelligible, not supported by evidence, or not
defensible in law and on the facts.
B. Breach of Procedural Fairness
[23]
It is
acknowledged by the Respondent that Mr. Yu was not provided with a copy of the
CPR prior to the Third Level Grievance Decision.
[24]
Mr. Yu
argues that the Service breached the duty of fair procedure by not disclosing
relevant and essential documents used in the decision-making process. Mr. Yu
relies on Lee v. Canada (Deputy Commissioner,
Correctional Service, Pacific Region), [1994] F.C. 15, [1993] F.C.J. No. 759
at paragraph 21 and May v. Ferndale Institution, 2005 SCC 82, [2005] 3
S.C.R. 809 at paragraphs 92‑94. These cases stand for the
proposition that failure to disclose relevant information relied upon by the
decision-maker is a reviewable error.
[25]
According
to Mr. Yu, because the documents were revealed after the decision was made, he
was denied the opportunity to fully challenge the legality, validity and
accuracy of the documents. Having now seen the document in question, Mr. Yu
argues that the drafting of the CPR violated the Service’s Policy CD 566-12
(para. 74), which stipulates that CPR forms are to be filled out by two
correctional officers. Mr. Yu also raises inaccuracies in the CPR forms. In Mr.
Yu’s submission, the disclosure of these documents would have allowed him to
challenge their accuracy and validity, thus resulting in a different decision
by the SDC.
[26]
The
Respondent submits that the late disclosure of any documents does not amount to
a breach of procedural fairness.
[27]
The
Respondent relies on Sweet v. Canada (AG), 2005 FCA 51, 332 N.R. 87 at
paragraphs 31-40 to argue that the level of procedural fairness is low in
the context of an inmate’s claim at a Third Level Grievance decision. I agree
that the prison context calls for a lower degree of procedural fairness as set
out by the Federal Court of Appeal in Sweet (at para. 34). It may also be
true that the rules of disclosure in an administrative context within the
prison system are not as high as they are in criminal proceedings (May v.
Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 91).
However, the Supreme Court in May, at paragraph 92, was clear in stating
that there is a legal duty to provide relevant documents in the prison context.
[28]
I am
satisfied that there was a breach of procedural fairness by the failure to
provide timely disclosure of the CPR to Mr. Yu. However, where a Court is
satisfied that there is no prejudice from the non-disclosure of a document or
that the breach was inconsequential, the Court need not intervene (see Uniboard Surfaces Inc. v. Kronotex
Fussboden GmbH and Co.,
2006 FCA 398, [2007] 4 F.C.R. 101, at paras. 17-24 and Yang v. Canada (Minister of
Public Safety and Emergency Preparedness),, 2008 FC 158, 324 F.T.R. 22, at
para. 29 aff’d by Yang v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FCA 281, 380 N.R. 387, at paras. 14-15). As stated by
Justice Décary in Uniboard, at paragraph 22:
. . .where the breach of the duty
of procedural fairness consists of a failure to disclose some evidence, as a
general rule the court, in the exercise of its discretion, will intervene if
the court is in no position to determine whether the breach might have worked
to the disadvantage of the complainant. Conversely, as a general rule, where
the court has before it the evidence which was not disclosed at the hearing
before the tribunal, and where the court is satisfied that it is in a position
to conclude that there was no prejudice and no possibility or likelihood of
prejudice, the court will not intervene.
[29]
In my view, the facts
of this case fall squarely within the exception described by Justice Décary.
[30]
The SDC’s decision,
with respect to all of the claimed items, was based completely on the PPR.
Although reference is made to the CPR, this document was not relied on in the
final determinations for each claimed item. Accordingly, I am satisfied that
there was no prejudice and no possibility or likelihood of prejudice caused by
the failure to disclose the CPR. In other words, there is no way in which the
decision would be any different because of the disclosure of the CPR. Any
alleged irregularities in the execution of the CPR are simply not relevant.
[31]
Accordingly, in spite
of the breach of duty of procedural fairness, I will not overturn the decision
on this basis.
C. Reasonableness
of Decision
[32]
Mr. Yu submits that
the Third Level Grievance Decision was wrong for a number of reasons. In
general terms, Mr. Yu objects to the refusal by the SDC of most of his claims
simply because they were not included on his PPR. In Mr. Yu’s opinion, the SDC
was obliged to consider his other evidence – such as receipts and other
explanations offered by him – in assessing his claim. He also asserts that the
duty of completing and keeping the PPR current rests with the Service. Finally,
he claims that the $198 for the printer should have included an amount for
sales tax.
[33]
There is no question
that there was a
duty on the Service’s staff to take proper care of an inmate’s effects when he
is transferred, either internally or from one institution to another. This is
seen in s. 84 of CCRR, in the Commissioner’s Directives pointed out by
Mr. Yu and the Respondent. However, this duty can only assist where there has
been an accurate listing of the inmate’s property before any such transfer. This
is where the PPR becomes critical. If an item is not described in the PPR, how
can it be ascertained that a claimed item or an item removed from the cell was
actually the property of the inmate? As noted by the SDC, “The Service could
not be responsible to protect your property when it was not aware the said
property was in your effects.”
[34]
In this case,
the SDC was not unreasonable in finding that Mr. Yu had a responsibility to
make sure that his PPR was updated. Mr. Yu had not done so. Thus, it was not unreasonable
for the SDC to find that it cannot be verified whether the items were in Mr.
Yu’s cell or not at the time he was segregated. Mr. Yu’s responsibility is
clearly set out in two Commissioner’s Directives – CD090 (para. 9) and CD566-12
(para. 16).
[35]
Moreover, the
receipts presented by Mr. Yu are not entirely helpful. While the receipts show
that Mr. Yu purchased items during his time in prison, they do not prove
whether these items remained in his possession. The SDC considered the receipts
and found that some were “unclear and confusing”.
[36]
Finally, Mr.
Yu argues that the printer should have received a valuation of $225.72, to
include applicable sales taxes. The printer was listed on Mr. Yu’s PPR for an
amount of $198. Having determined that the printer claim was to be allowed, the
SDC applied Commissioner’s Directive 234, paragraph 39. Pursuant to this
Directive Mr. Yu was to be compensated on the lesser of the amount claimed (in
this case, $225.72) and the value assigned to the item on his PPR (in this case
$198). I see no error in the SDC’s application of the Directive, CD 234, in
determining that Mr. Yu should be compensated in the amount of $198 for
the printer.
[37]
In sum, I am
satisfied that the Third Level Grievance Decision was reasonable
VI. Conclusion
[38]
For the
reasons above, I will dismiss the application for judicial review. The
Respondent seeks costs in this matter. As noted above, there was a breach of
procedural fairness by the Respondent in the processing of Mr. Yu’s claim,
albeit not a breach that warrants this Court’s intervention. In the
circumstances, I believe it fair and just to award no costs to either party.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The application for judicial review is dismissed.
2.
No costs are awarded.
“Judith
A. Snider”
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