Lewis v. Canada (Correctional Service), 2011 FC 1233

 Date: 20111031

Docket: T-241-10

Citation: 2011 FC 1233

Ottawa, Ontario, October 31, 2011

PRESENT:     The Honourable Mr. Justice Martineau

 

 

BETWEEN:

	JASON LEWIS
		Applicant
	and
	ASSISTANT COMMISSIONER IAN MCCOWAN OF CORRECTIONAL SERVICE OF CANADA AND THE ATTORNEY GENERAL OF CANADA
		Respondents

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The present application for judicial review pertains to the Correctional Service of Canada (CSC) third level grievance decision (the impugned decision) rendered on December 18, 2009 in file n° V40A00033184 by Assistant Commissioner Ian McCowan (the respondent Assistant Commissioner), in which he rejected four out of five issues raised by Mr. Jason Lewis (the applicant) on the grounds that they had not been previously raised at the lower levels of the grievance procedure.

 

[2]               For the reasons that follow, I have concluded that the impugned decision should be set aside.

 

BACKGROUND

[3]               In May 2008, while housed in segregation following an incident that took place in his unit, the applicant filed a request for transfer from Warkworth Institution, a medium security institution in Ontario, to Cowansville Institution in Quebec, in order to alleviate his segregated status at Warkworth.

[4]               In June 2008, nine days after submitting his application for transfer, the applicant was eventually cleared and released from segregation after further information was received indicating that he did not participate in the incident.

 

[5]               On September 2, 2008, a Security Reclassification Scale (SRS) was made by Acting Parole Officer (APO) Amanda Benett, increasing the applicant’s Offender Security Level (OSL) to medium (Security Classification Score increased from 19.5 to 25). The applicant’s OSL was afterwards increased to maximum on July 6, 2009 when a second SRS was made by Acting Parole Officer Lisa Charles. Although another grievance is filed against the July 6, 2009 SRS in file n° V40A00034604, the applicant continuously alleged that the second SRS negatively affected – and was negatively affected by – the contested Assessment for Decision (AD).

 

[6]               On October 3, 2008, following up on the applicant’s transfer request, an AD was completed by APO Amanda Benett and Manager of Assessment and Interventions (MAI) Cal MacAusland. The AD contained two recommendations for decisions to be made: (1) a recommendation to refuse the applicant’s institutional transfer request (decision 76); and (2) a recommendation, using the September 2, 2008 SRS, that the applicant’s Institutional Adjustment score be increased from low to moderate (decision 77). The applicant contends that he was never consulted during the AD process or provided with a copy of the information used to render the decisions. On March 5, 2009, both recommendations were finalized by Acting Warden Angie Vankoughnett.

 

[7]               On April 3, 2009, the applicant filed a first level grievance against the October 3, 2008 AD, arguing that it had not been completed within the required timeframe set forth in Commissioner’s Directive 710, and requested that the negative AD be removed from his file in the Offender’s Management System (OMS). On June 17, 2009, the grievance was upheld in part. Although the transfer application was in fact not dealt with within the allotted timeframe, the applicant’s request to have the AD removed from the OMS was denied because his transfer application was not withdrawn.

 

[8]               The first level grievance response also notes that the applicant refused to meet with MAI MacAusland on June 2, 2009 when the MAI attempted to meet with him to obtain more information about his concerns. The applicant contends that the reason for his refusal was that MAI MacAusland was himself involved in the completion of the impugned AD.

 

[9]               On June 23, 2009, the applicant filed a second level grievance asking that the transfer write-up be unlocked and that his SRS score be returned to what it was prior to September 2, 2008. On August 26, 2009, the second level grievance was denied entirely on the basis that the increase in the applicant’s Security Level and Institutional Adjustment was a result of ongoing behavioural concerns and that there was no additional information to justify what the applicant requested.

 

[10]           On October 8, 2009, the applicant filed a third level grievance making a number of allegations which were resumed in five issues in the impugned decision. The four issues of importance to this judicial review were rejected pursuant to Commissioner’s Directives (CD) 081, paragraph 1, for not having been raised at the lower level. The provision states as follows:

 

[11]           More specifically, the applicant contended in his third level grievance that 1) MAI MacAusland was involved as analyst in the first level grievance while he participated in the completion of the October 3, 2008, AD; 2) Assistant Warden Vankoughnett (Institutional Head) responded to the first level grievance which concerned a decision she rendered herself; 3) APO Benett accessed the applicant’s OMS file while he was no longer on her caseload at the time the October 3, 2008 AD was completed; and 4) the finalization of decision 77 on March 5, 2009 based the calculation of his SRS score after he was cleared and released from segregation was not accurate.

 

[12]           It is worth noting that the respondents in this case have not filed any affidavits contradicting the applicant’s version of facts or made any allegations to this effect.

 

ARGUMENTS OF THE PARTIES

[13]           The applicant alleges that the impugned decision is made in breach of procedural fairness and the principle of audi alteram partem as the Executive Summary recommendations completed on December 12, 2009 by Analyst Dwight Lalonde, were not made available to him prior to the making of the impugned decision. Had he been given the opportunity to take cognizance of the information relied upon, the applicant contends he would have been able to clarify to the decision maker why he was not able to raise the issues at the lower levels.

 

[14]           In addition to the Common law duty of procedural fairness, the applicant contends that the Assistant Commissioner acted in breach of his statutory duty pursuant to subsection 27(1) of the Corrections and Conditional Release Act, SC 1992, c 20 (the CCRA) which requires the decision maker to provide the offender with “all the information to be considered in the taking of the decision”.

 

[15]           Similarly, the applicant alleges that subsection 80(3) of the Corrections and Conditional Release Regulations, SOR/92-620 (the CCRR) requires the Commissioner to provide the offender with a copy of his or her “decision, including the reasons for the decision, as soon as practicable after the offender submits an appeal”.

 

[16]           The applicant also submits that the Assistant Commissioner erred in deciding that paragraph 1 of CD 081 could be used to reject issues not previously raised. It is submitted that the Assistant Commissioner erred in rejecting the above-mentioned issues, contrary to paragraph 47 of CD 081, which states that only when “portions of a complaint or grievance are considered frivolous, vexatious, offensive or not made in good faith, the decision maker may reject the entire grievance or portions thereof”. Furthermore, the applicant submits that paragraph 37 of CD 081 requires the decision maker to “ensure that grievers are provided with complete, written responses to all issues raised in complaints and grievances”.

 

[17]           The applicant finally contends that the respondent Assistant Commissioner Policy acted beyond the scope of his delegated powers by exercising the decision making authority under subsection 80(3) of the CCRR. It is submitted that although the Assistant Commissioner was provided authorization to exercise the powers, duties and functions of Commissioner under subsection 80(2) of the CCRR, no provision authorizes him to carry out the decision on behalf of the Commissioner.

 

[18]           The respondents submit that the impugned decision is correct and reasonable in holding that since the applicant’s initial submission in this grievance concerned only the timeframe in which the AD regarding his transfer application was completed, no other allegations can be raised at the national level that were not raised at the lower levels. In support of this argument, the respondents allege that, as is well-settled in the jurisprudence, a plaintiff should exhaust the internal grievance procedure with regard to any new claim before seeking a judicial review: McMaster v Canada (Attorney General), 2008 FC 647 at paras 24-25; Olah v Canada (Attorney General), 2006 FC 1245 at paras 13-14.

 

 

[19]           With respect to the delegation of power by the Commissioner, the respondents submit that paragraphs 5 and 29 of CD 081 authorize the Commissioner to delegate his decision making power in accordance with the CCRA.

 

STATUTORY AND REGULATORY FRAMEWORK

[20]           The relevant sections of the legislation are as follows:

Corrections and Conditional Release Act, SC 1992 c 20

 

 

Corrections and Conditional Release Regulations, SOR/92-620

 

Commissioner’s Directive 081

 

ANALYSIS

[21]           The question of delegation of power by the Commissioner to the Acting Assistant Commissioner for the purpose of addressing a third level grievance or rendering a final decision in the grievance process has been dealt with by this Court in Mennes v McClung et al, [2001] FCJ 1830 at paras 20-27. Relying particularly on subsection 2(2) and sections 97-98 of the CCRA, as well as CD 081 and the inclusion printed at the bottom of the decision of the Commissioner (Third level grievance - National), the Court concluded that there is “no requirement under the Act or the Regulations for the Commissioner of Corrections, to individually or directly review complaints at the Third level appeal or at any other level” and that the Acting Assistant Commissioner in that case “held the proper authority by virtue of the aforementioned sources in rendering her final decision of the grievance process under subsections 80(2) and 80(3) of the Act”.

 

[22]           In the present case, the authority has been delegated to the respondent Assistant Commissioner Policy who was, in light of the above jurisprudence, properly authorized to decide the grievance submitted by the applicant. The other question to be addressed is whether the Assistant Commissioner breached the duty of procedural fairness owed to the applicant or committed a reviewable error in deciding the grievance.

 

[23]           It is not disputed that the applicable standard of review for procedural fairness and the interpretation of legislation is correctness while merits of decisions made by the CSC on offender grievances should be reviewed against the standard of reasonableness: Tehrankari v Canada (Attorney General), 2011 FC 628 at para 24.

 

[24]           In deciding whether the applicant was treated fairly during the grievance process, the Court shall determine whether the process followed by the decision maker satisfied the level of fairness required in the administrative context generally (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Gallant v Canada (Deputy Commissioner, Correctional Service Canada, [1989] FCJ 70 (CA)) and respected the procedural rights afforded to offenders through the relevant legislative and regulatory provisions.

 

[25]           The jurisprudence is constant that subsection 27(1) of the CCRA gives the offender an additional right to receive all the relevant information prior to any decision being taken on a transfer request, although the extent of this right varies when the decision is more or less discretionary in nature (Leblanc v Canada (Attorney General), 2006 FC 1337 at paras 20-22; Mallette v Canada (Attorney General), 2004 FC 151 at paras 39-42). Similarly, in Mymryk v Canada (Attorney General), 2010 FC 632 at para 20, while reviewing a decision of the Appeal Division of the National Parole Board, this Court held that the statutory disclosure obligations (such as sections 27 and 141 of the CCRA) incumbent on CSC when making a decision that concerns an offender, entitles the offender to be supplied with a summary of the information that is going to be relied on in circumstances where CSC justifies the necessity to withhold certain information (subsections 27(3) and 141(4) of CCRA). As the Court mentioned in Mymryk, this approach is consistent with the Supreme Court conclusion in May v Ferndale Institution, 2005 SCC 82 at para 95, that “s. 27(1) of the CCRA imposes an onerous disclosure obligation on CSC”.

 

[26]           Having reviewed the third level Executive Summary, the Court is satisfied that the recommendations contained in this document have been wholly relied upon and have negatively impacted the decision maker. Since there is no indication in this case that subsections 27(2) and (3) of the CCRA (which permit the withholding of information under certain circumstances) apply here, it is clear that CSC’s failure to follow the procedure prescribed by law kept the applicant from eventually clarifying his issues against the contested AD and resulted in a violation of the applicant’s right to be treated fairly.

 

[27]           Be that as it may, in the case at bar, the respondents do not argue the extent of the common law duty to act fairly, nor do they challenge the statutory obligations under section 27 of the CCRA. Rather the respondents take issue with the fact that the issues raised by the applicant at the third level depart from his initial claim in this grievance which concerned the timeframe to complete the October 3, 2008 AD.

 

[28]           It is nonetheless clear that all of the issues raised by the applicant both in the second and the third level grievances were related to the contested AD of which the applicant sought the removal from his OMS file following his release from segregation. In fact, the applicant’s issues either concerned the persons involved in the making of decisions at different levels of grievance or were related to decision 77 and the material on the basis of which it was made, namely the September 2, 2008 SRS. The fact that the applicant requested that the negative AD be removed from his OMS file shows that he also took issue with the content of the AD. Furthermore, it is obvious that the SRS, which determines the appropriate level of security throughout the offender's sentence, is of a continuous nature and contains referential information for CSC decision makers. Therefore the applicant’s SRS issue in the third level grievance was not an entirely new one.

 

[29]           I agree with the respondents that, as this Court has stated on many occasions (see for example: Condo v Canada (Attorney General), 2003 FCA 99; Giesbrecht v Canada, [1998] FCJ 621; Collin v Canada (Attorney General), 2006 FC 544; McMaster v Canada (Attorney General), 2008 FC 647; Olah v Canada (Attorney General), 2006 FC 1245; and Ferndale Institution, above at paras 52-58), the CSC internal grievance process constitutes an adequate alternative remedy which should generally be pursued by applicants prior to a judicial review. However, the respondent’s reliance on this jurisprudence is misplaced in the present case because, in my view, the applicant’s grievance has entirely been disposed of internally.

 

[30]           Furthermore, it is important to note that every appeal under the CSC grievance procedure is conducted de novo and cannot be strictly limited to the allegations as raised in the first level grievance. In Tyrrell v Canada (Attorney General), 2008 FC 42 at paras 37-38, Justice Snider stated:

Grievance procedures under the Corrections and Conditional Release Act, S.C. 1992, c. 20 are governed by the Corrections and Conditional Release Regulations, S.O.R./92-620, ss. 74-82). The procedure was described by Justice Rothstein in the case of Giesbrecht v. Canada, [1998] F.C.J. No. 621 at para. 10 (T.D.) (QL):

Grievances are to be handled expeditiously and time limits are provided in the Commissioner's Directives...Through the grievance procedure an inmate may appeal a decision on the merits and an appeal tribunal may substitute its decision for that of the tribunal appealed from (see also Wild v. Canada, [2006] F.C.J. No. 999, 2006 FC 777 at para. 9).

 

In other words, at each higher level of the grievance procedure, the decision maker may substitute its decision for that rendered by the decision maker below. Therefore, although technically an “appeal”, the nature of the grievance process allows each subsequent decision maker to approach a grievance as a de novo review and to hear new evidence (see, for example, Besse v. Canada (Minister of National Revenue - M.N.R.), [1999] F.C.J. No. 1790 at para. 5 (C.A.) (QL)).

 

[31]           Thus, in the circumstances, I agree with the applicant that it is contrary to the rationale and the objective of the offender grievance procedure as set out in section 90 of the CCRA and sections 74 to 82 of the CCRR to ask the applicant to restart from square one, should he wish to raise any of the above-mentioned issues against the contested AD. Furthermore, the respondents have not alleged that they suffered any prejudice and there is no evidence of prejudice on their side, while there is definitively a prejudice suffered by the applicant.

 

[32]           I therefore conclude that the CSC also failed to comply with paragraph 37 of CD 081, which provides that the decision maker will ensure that the griever is provided with complete responses “to all issues raised” in his or her grievance. The impugned decision is thus unreasonable.

 

[33]           In view of the above reasons, the present application for judicial review shall be allowed. In addition, the applicant, who is self-represented, has asked the Court to grant him the costs of his application. In the exercise of the Court’s discretion and considering that in view of the second and the third level grievance responses the applicant was in some way forced into this judicial review, I consider it reasonable to award him costs in the amount of $350, all inclusive, payable forthwith.

 

JUDGMENT

THIS COURT ADJUGES AND ORDERS:

1.      The application for judicial review is granted;

2.      The third level grievance decision rendered on December 18, 2009 in file n° V40A00033184 is set aside and remitted to the Correctional Service of Canada to be determined in accordance with these reasons; and

3.      The applicant shall be entitled to costs in the amount of $350, all inclusive, payable forthwith.

 

“Luc Martineau"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-241-10

 

STYLE OF CAUSE:                          JASON LEWIS AND ASSISTANT COMMISSIONER

                                                            IAN MCCOWAN OF CORRECTIONAL

                                                            SERVICE OF CANADA AND

                                                            THE ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    Montreal, Quebec

 

DATE OF HEARING:                      October 18, 2011

 

REASONS FOR JUDGMENT:       MARTINEAU J.

 

DATED:                                             October 31, 2011

 

 

APPEARANCES:

 

Jason Lewis	FOR THE APPLICANT (ON HIS OWN BEHALF)
Toni Abi Nasr	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Jason Lewis Port Cartier, Quebec	FOR THE APPLICANT (ON HIS OWN BEHALF)
Myles J. Kirvan, Deputy Attorney General of Canada Montreal, Quebec	FOR THE RESPONDENTS