Date: 20110330
Docket: T-1285-10
Citation: 2011 FC 393
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, March
30, 2011
PRESENT: The
Honourable Madam Justice Gauthier
BETWEEN:
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RICHARD TIMM
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Considering
the applicant Richard Timm’s application for judicial review against the
decision by Correctional Service Canada (the decision-maker) rejecting his third
level grievance because it was submitted well after the timeframe in
Commissioner’s Directive 081 (CD 081).
[2]
After
reviewing the records and considering the parties’ oral representations at the
video‑conference hearing on March 29, 2011.
[3]
Considering
that the applicant contends that the decision is unreasonable because the
decision‑maker itself noted that it could not be [translation] “conclusively” established that the applicant received
the second level decision on or about September 24, 2009.
[4]
Considering
that the applicant also maintains that the decision‑maker should have
extended the timeframe for filing his third level grievance under paragraph 34
of CD 081 so that justice on the merits could be ensured.
[5]
Considering
that, in this case, the primary issue in this grievance is whether Patrick Johnson,
Correctional Manager, Operations, who is responsible for the major court
at La Macaza, breached paragraph 8 of the Offender Complaint and Grievance Manual by responding to the request made by Johanne Visocchi,
grievance and complaints coordinator, to provide the two documents requested by
the applicant in a complaint form that indicated the complaint was [translation] “against Patrick Johnson”
and by signing the response to the complaint.
[6]
Considering
that the interpretation and application of this internal procedures manual is
not a pure question of law (Dearnley v. Canada (Attorney
General),
2007 FC 219 at paragraph 33). Also considering that, prior to rejecting
the grievance because it had been filed several months beyond the timeframe, the
decision-maker clearly indicated that there was nothing to show that a real
conflict of interest existed instead of a simple problem of applying paragraph
8 of the manual too literally to a complaint that was, in fact, nothing more
than a request to provide documents for which Mr. Johnson was ultimately
responsible. In addition, considering that the applicant clearly stated at the
hearing that he had just followed the instructions of the coordinator,
complaints and grievances, who had told him to file a complaint to obtain the
documents.
[7]
Considering
that the personnel responsible for implementing the manual should be more
careful to avoid mistakes like this. The Court understands why the applicant,
who is self‑represented, contested the decision because, on its face, it
appears that the administration did not comply with its own manual.
[8]
Nonetheless,
the Court is satisfied that there is no evidence of a breach of the duty of
procedural fairness and that the only issue to be determined on this
application is whether the decision-maker could validly reject the grievance
because it was filed a number of months after the timeframe under CD 081.
[9]
Considering
that the reasonableness standard applies to this question of mixed fact and
law. As the Supreme Court of Canada stated in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at paragraphs 47 to 50, this means the following:
[47] . . . Tribunals have a
margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[10]
Considering,
as the decision-maker stated, that paragraph 36 of CD 081 applies
because this is a third level grievance, and not paragraph 34 cited by the
applicant, which applies to a first level grievance.
[11]
Considering
that, unlike paragraph 34, paragraph 36 does not provide that the 20‑day
timeframe prescribed therein can be extended.
[12]
Considering
that, as stated at the hearing, the decision-maker had to determine, on a
balance of probabilities, whether the applicant did in fact receive the second
level decision on or about September 24, 2009.
[13]
The
Court is satisfied that there is no real inconsistency between the decision and
the passage noted by the applicant when read in its context. It is clear that,
since inmates do not have to sign an acknowledgement of receipt when these types
of decisions are given to them, it could not be [translation] “conclusively” established that he in fact
received it. The decision-maker had to assess the probative value of the
evidence before it, including the circumstantial evidence. That is exactly what
it did in this case, and its conclusion was justifiable on the facts and the
law. The decision clearly sets out the factors it considered and is reasonable.
Absent a reviewable error as in this case, there is no basis for the Court to
intervene to exercise its own discretion in the place and stead of the decision‑maker.
[14]
The
Court also notes that, although it is not essential to discuss this evidence
because the decision does not refer directly to it, grievance V30A00038383 cited
in the applicant’s letter dated February 19, 2010 (tab “P”), and referred
to by the respondent in its memorandum at paragraphs 40 and 41, does not
support the applicant’s position. Indeed, unless another part of the
November 5, 2009, decision that is not before me indicates otherwise, the
only thing that the passage cited by the applicant shows is that on September 9,
2009, the date that grievance V30A00038383 was analyzed, the regional administration
had not yet responded to grievance V30A00034834, which had been submitted at
the second level on April 23, 2009. In this case, the second level
decision was actually rendered shortly thereafter, on September 16. Since
the regional administration agreed that the delay of more than 99 days (ending
on September 9) was excessive, there was no logical reason to check the
system again on or just before November 5. Thus, there is no apparent inconsistency
in the record between the decision on the other grievance and the decision that
is the subject of this dispute.
[15]
For
these reasons, this application for judicial review is therefore dismissed.
[16]
The
respondent is insisting on costs. Considering all the circumstances, the Court awards
costs and fixes them at $200 (inclusive of disbursements).
ORDER
The application is dismissed. The respondent is entitled to
costs fixed at $200 (all‑inclusive).
“Johanne Gauthier”
Certified
true translation
Mary
Jo Egan, LLB
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