Rose v. Canada (Attorney General), 2011 FC 1495

 

 Date: 20111219

Docket: T-1839-10

Citation: 2011 FC 1495

Ottawa, Ontario, December 19, 2011

PRESENT:     The Honourable Mr. Justice Martineau

 

 

BETWEEN:

	JEFFREY WILLIAM ROSE, DAVID WILLIAM SHORTREED AND AND RICHARD (“RICK”) SUEN
		Applicants
	and
	THE ATTORNEY GENERAL OF CANADA
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The applicants, Mr. Jeffrey William Rose, Mr. David William Shortreed and Mr. Richard Suen, are inmates currently incarcerated at the Warkworth Institution in Brighton, Ontario. They are self-represented litigants seeking judicial review of the suspension and the subsequent termination of their employment as Inmate Purchasing Clerks at Warkworth by the Program Board of their penitentiary (the Program Board).

 

[2]               The respondent asks that the present application be dismissed on the ground that it is premature because the applicants have not exhausted the offenders’ internal grievance procedure that is available to them.

 

PRELIMINARY REMARKS

[3]               On November 15, 2011, the applicants brought a motion seeking leave from this Court to adduce additional evidence (affidavit material and supplementary record) in their attempt to demonstrate that the grievance procedure is somewhat defective because of its inherent delays and the number of levels (practically speaking, four). Based on the parties’ agreement on this preliminary matter at the hearing, the Court accepts both the applicants’ additional affidavit and the respondent’s sur-reply in support of their respective allegations.

 

[4]               In passing, the respondent has filed the Board’s “tribunal record” by way of affidavit sworn by Ms. Diane Dyke, a legal assistant with the Department of Justice. The applicants presented a preliminary objection submitting that in doing so the respondent prevented them from cross-examining the Programs Manager (Mr. Viens) as they intended to. In fact, a three paragraph affidavit signed by the Programs Manager indicates that the Program Board is composed of a single member when considering a work placement suspension and that in the case of the applicants, he was the sole member of the Board who ordered their termination. Upon the applicants’ request to cross-examine the Programs Manager, Ms. Dyke submitted an additional affidavit stating that the Department of Justice made no inquiries about the Programs Manager’s availability. It is not determinative in this application for judicial review to decide whether or not in seeking to cross-examine the Programs Manager who made the decision for the Board, the applicants could have sought discovery of relevant matters beyond what is contained in the tribunal’s record. The respondent nevertheless submitted that rule 318 of the Federal Courts Rules (SOR/98-106) does not require a tribunal to deliver its certified record by affidavit from the tribunal itself, nor do the Rules give the applicants the right to cross-examine a representative of the tribunal which produces a certified record. The Court agrees with the respondent.

 

[5]               Finally, as a further preliminary observation, the respondent has taken the calculated risk in this judicial review application not to make any submissions on the merit of the case. However, it should be cautioned that “the refusal to hear an application for judicial review on the ground that the applicant has not exhausted the grievance procedure and should first have applied to the Commissioner is a matter for the discretion of the Court” (Poulin v Canada (Attorney General), 2005 FC 1293 at para 7, [2005] FCJ 1574 [Poulin]; see also Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3 at paras 30-32 [Matsqui Indian Band]). As discussed below, the jurisprudence of this Court, and that of the Supreme Court of Canada, do not endorse a mechanical approach to the general principle of prior exhaustion of the grievance procedure. Fortunately for the respondent, I have determined that the present judicial review application is premature.

 

FACTS

[6]               Inmates in federal correctional facilities are encouraged to participate in paid program assignments which may involve work assignments or educational and training activities approved by a Program Board (see Commissioner’s Directive 730 – Inmate Program Assignment and Payment [CD 730]).

 

[7]               As part of their program assignments, the applicants were employed as Inmate Purchasing Clerks at Warkworth and, according to the record before the Court, all three of them had excellent work evaluations throughout their employment with the Correctional Service of Canada (CSC).

 

[8]               Yet things turned out badly for the applicants when, on October 6, 2010, an IT technician found that a CSC-owned computer assigned to the inmate purchasing office where the applicants worked was missing and had been replaced by an inmate-owned computer running banned programs (Windows 98 and Office 97 according to the technician’s report to Mario Viens, Manager, Programs at Warkworth, and Jim Francis, Program Supervisor).

 

[9]               The respondent submits that a black market in contraband computer hardware has developed inside correctional facilities since the October 2002 ban on inmate-owned computers. In fact, inmates are no longer authorised to have personal computers in their cells, save for those which pre-date the ban and which have since then been subject to certain technical requirements.

 

[10]           Upon receiving the technician’s report, the Programs Manager immediately ordered the applicants’ suspension from work, effective October 12, 2010, and the Program Supervisor accordingly suspended the applicants. The suspension notice sent to the applicants reads “[…] during the recent lockdown it was discovered that the computer was removed from the office and cannot be located. In view of this discovery, and your inability to locate the missing computer, you are being suspended from your position as a recreation worker”.

 

[11]           By reference to subsection 104(1) of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA], the “reasons for suspension” section of the CSC Inmate Suspension Form includes the two following options: “you have left your program assignment without authorization” and/or “your actions demonstrate a refusal to participate in your program assignment”. The latter reason is checked on the applicants’ forms.

 

[12]           On October 20, 2010, the Programs Manager ultimately ordered the applicants’ termination of employment when other computer components were allegedly found in the purchasing office upon performance of a further search.

 

[13]           The applicants filed a group complaint against the Program Board on October 20, 2010. On October 25, 2010, Assistant Warden, Interventions, Nancy Pearson, acknowledged receipt of the applicants’ complaint – now deferred pending disposition of the present application for judicial review pursuant to section 81 of the Corrections and Conditional Release Regulations, SOR/92-620 [CCRR] – and advised them in writing that she expected to finalize the response to their grievance by November 26, 2011.

[14]           The applicants however did not await the completion of the grievance process, nor did they await the Assistant Warden’s response to their complaint. Instead, they filed a notice of application for judicial review of the Programs Manager’s decisions on November 4, 2010.

 

ARGUMENTS OF THE PARTIES

[15]           The applicants take issue with their suspension and subsequent termination of employment on two grounds:

 

[16]           First, the applicants submit that they have been subject to backdoor disciplinary sanctions that were permitted by neither paragraphs (a) or (b) of subsection 104(1) of the CCRA, as the applicants never stopped or refused to participate, without reasonable excuse or at all, in the program for which they were paid. The Programs Manager thus exceeded his authority in suspending and terminating the applicants’ program.

 

[17]           In other words, the applicants submit that in the absence of any other grounds for sanction under the CCRA or the CCRR in the circumstances, the decision to suspend and terminate their program was of a disciplinary nature and thus had to be made in compliance with the disciplinary regime set out in sections 39 to 44 of the CCRA.

 

[18]           In fact, the applicants allege that they were arbitrarily denied the procedural protections afforded to inmates subject to a disciplinary sanction under the CCRA. Instead, the decision to suspend and terminate them was made based on incomplete information and without them being properly heard. The applicants submit that the Program Board imposed on them the most severe measure among a range of alternative options that were open to him, without considering their past work records and without hearing their claim that they were not involved in the removal of the CSC-owned computer from their workplace.

 

[19]           Second, the applicants submit that the Programs Manager sat in judgment of his own direction when he later decided to uphold the applicants’ suspension and ordered their termination in his capacity as the Board’s Chairperson, thus raising an issue of bias or reasonable apprehension of bias on his part.

 

[20]           The applicants further allege that their right to an impartial decision-maker, as a component of the duty to act fairly, has been breached because the Programs Manager could not have approached the matter impartially when upholding his own decision.

 

[21]           The respondent has chosen not to deal at all with the applicants’ allegations on the merits. He simply argues that the present application for judicial review is premature and that the applicants should be required to exhaust the internal grievance process before bringing an application for judicial review before this Court (Giesbrecht v Canada, [1998] FCJ 621; Condo v Canada (Attorney General), 2003 FCA 99 at para 5; McMaster v Canada (Attorney General), 2008 FC 647 at paras 23-27 [McMaster]; Marachelian v Canada (Attorney General), [2000] FCJ 1128 at para 10).

 

GRIEVANCE PROCEDURE

[22]           Section 90 of the CCRA mandates the establishment of a formal grievance procedure to guarantee fair and expeditious resolution of offenders’ grievances:

 

[23]           The procedure for resolution of grievances is established by sections 74 to 82 of the CCRR. These provisions provide that an offender who is dissatisfied with an action or decision by a correctional service officer can submit a written complaint to the officer’s supervisor. If the supervisor refuses to review his complaint or makes a decision that does not satisfy the offender, he may then submit a written grievance which would set the grievance process in motion. At the first level, the grievance is considered by the institution head. If the outcome is not satisfactory the grievance can be escalated and successively considered at the second (regional) and the third (national) levels: 

 

[24]           Furthermore, sections 38 to 44 of the CCRA establish an internal disciplinary system that defines what constitutes a disciplinary offence and a disciplinary sanction. The disciplinary regime offers procedural protections for inmates subject to disciplinary charges and specifies that no inmate shall be disciplined otherwise than in accordance with these provisions.

 

[25]           With this statutory and regulatory scheme in mind, we are now in a good position to fully appreciate and analyse the preliminary arguments of the parties in respect of the objection made by the respondent that the present judicial review is premature.

 

PRELIMINARY OBJECTION

[26]           The applicants acknowledge that the CSC grievance procedure is usually a prerequisite to judicial review. However, they wish to pursue a judicial review remedy not only because they claim that the grievance process is neither fair nor expeditious and therefore not an adequate alternative for them, but also because they face institutional bias or reasonable apprehension of bias resulting from the fact that CSC decision-makers routinely sit in judgment of their own decisions and often settle for confirming the decision made by the decision-maker preceding them. To my mind, this raises two issues: first, the viability of the alternative administrative remedy in the applicants’ case, and second, whether in light of the specific facts of this case, as well as the prejudice suffered and the remedy sought by the applicants, the Court should exercise its discretion to examine the claim on its merits prior to the completion of the grievance procedure.

 

[27]           In exercising this discretion, the Court must examine a variety of factors to determine whether a judicial review should be conducted or if the applicants should be required to pursue the statutory procedure to challenge the impugned decisions. As stated in Matsqui Indian Band, above at para 37:

[…] a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.

 

No excessive delays in the applicants’ case

[28]           The applicants presented evidence that the grievance process is excessively slow. I have carefully reviewed the applicants’ first and second affidavits and exhibits therein referred to. Although this evidence is more or less persuasive for the Court, the grievance procedure cannot be found presumptively flawed or ineffective in a case where the applicants refused to await even the response to their complaint. In fact, the grievance procedure per se has not even been initiated in this case. The applicants filed the present application for judicial review on November 4, 2010 – less than ten days after the Assistant Warden acknowledged receipt of their October 20, 2010 complaint which they had submitted, to their own admission, simply “for the record” before this Court.

 

[29]           The applicants rely on excerpts from the 2007-2008 Annual Report of the Office of the Correctional Investigator suggesting that the grievance procedure is inadequate and incapable of answering all complaints and grievances in a timely and effective manner. In brief, this report reviewed the history of the offender grievance procedure with a special focus on the issue of delays. Relying on the 1996 Arbour Report of the Commission of Inquiry Into Certain Events at the Prison for Women, as well as past reports and recommendations of the Correctional Investigator, the Report looked into the re-instatement of response times at the national level. It also recommended outside assistance to ensure timely and fair resolution of third-level grievances.

 

[30]           Although the issue of undue delays is recurrent in the successive annual reports of the Correctional Investigator, such evidence in itself is insufficient to justify the inmates’ bypassing of the grievance system established by legislation.

 

[31]           The applicants also refer to an ad hoc audit conducted by the Inmate Welfare Committee at Warkworth which reports a range of delays in fifty random inmate complaints and first level grievances between January 2009 and January 2010. The reported delays range from 5 to 313 days, while section 18 of the Commissioner’s Directive 081 provides a timeframe of 25 working days, as of their receipt by the Grievance Coordinator, for routine priority complaints and first level grievances to be treated and responded to by the decision-maker. The timeframe is reduced to 15 days in high priority cases.

 

[32]           On the respondent’s side, the reported delays are attributed to a backlog of institutional grievances. Acting Warden Ann Anderson (who was the Assistant Warden in duty at the time the impugned decisions were made by the Programs Manager) states in her affidavit dated November 30, 2011, that the Warkworth management has recently managed to reduce a backlog of approximately 340 late grievances to 20 late grievances. She also attests that recent initiatives have been taken following the Correctional Investigator’s 2010-1011 Annual Report in order to encourage inmates to use informal dispute resolution to resolve their complaints at the lowest level.

 

[33]           The applicants’ second affidavit refers to several first, second and third level grievance decisions rendered in cases concerning fellow inmates at Warkworth, including decisions of the Program Board, as examples of the long delays inherent in the offender grievance procedure.

 

[34]           However, the fact that the complaints and grievances to which the applicants call this Court’s attention were subject to undue delays or ultimately denied under their specific circumstances must be compounded with the fact that judicial recourse itself is subject to delays (in this case, some 13 months) and that the reviewing court is not allowed to render the decision that could have been rendered in the first place at any level of the grievance process. Although the evidentiary record shows that some cases have clearly been subject to excessive delays, in the Court’s view, such statistical and anecdotal evidence is simply insufficient to support a general all-inclusive declaration that the grievance procedure is wrought with delay and thus not an adequate alternative to judicial review, including in the applicants’ case. This is not to say that in another instance, with the proper evidentiary record, the conclusion of the Court would be the same as today.

 

            No exceptional circumstances

[35]           According to the jurisprudence, the Court’s discretion with respect to hearing a judicial review where it is established that an adequate alternative remedy exists is subject to consideration of whether there are exceptional circumstances such as cases of emergency, evident inadequacy in the procedure, or where physical or mental harm is caused to an inmate (Ewert v Canada (Attorney General), 2009 FC 971 at para 34 [Ewert]; Spidel v Canada (Attorney General), 2010 FC 1028 at para 12; Gates v Canada (Attorney General), 2007 FC 1058 at para 26 [Gates]).

 

[36]           First, with respect to the issue of delays, the jurisprudence has recognized that when, as a result of repetitive extensions of time, a grievance has suffered undue delays rendering the process unfair and non-expeditious, the Court can consider the application for judicial review on its merits despite the existence of an adequate alternative remedy (Caruana v Canada (Attorney General), 2006 FC 1355 at paras 40-46). I have already determined that this is not the case of the applicants who refused to submit a grievance or wait for their complaint to be disposed of.

 

[37]           Second, the Programs Manager’s overlapping roles in the applicants’ suspension and subsequent termination of program are alleged to have created a reasonable apprehension of bias on his part. At the hearing, counsel for the respondent asserted that this allegation may give rise to a procedural fairness issue but cannot be used to support the applicants’ allegation of inadequacy of the grievance procedure.

 

[38]           Sections 38-42 of the CD 730 enunciate the rules governing the suspension of inmate program assignments. In fact, the program supervisor has authority to suspend an inmate under certain circumstances. Upon consultation with the program supervisor and consideration of the inmate’s written representations, the Program Board shall then review the decision within 5 working days in order to either cancel, reduce, maintain for an additional period, or confirm the suspension. In this last case, the Program Board can terminate the program assignment and provide the inmate with written reasons for its decision within two working days.

[39]           Whether the applicants can be reasonably apprehensive of bias where the Programs Manager who issued the direction to suspend them ultimately decided for the Program Board that ordered their termination is, in my view, a question of fact and law, requiring factual determinations such as whether there has been confusion in his investigative and adjudicative functions. Moreover, the issue of institutional bias or lack of institutional independence (at least at the final decision level of the grievance process), notably in light of the rights conferred to individuals by the Canadian Bill of Rights and the Canadian Charter of Human Rights and Freedoms, cannot be determined by the Court in a factual vacuum. Accordingly, it is appropriate not to express any opinion on this subject.

 

[40]           Coming back to the exceptions recognized by caselaw, in Gates, above at para 26, the Court stated that “in cases of compelling circumstances, such as where there is actual physical or mental harm or clear inadequacy of the process […] a departure from the complaints process would be justified”. The Court also specified that this should not be regarded as an exhaustive list of circumstances justifying a departure from the principle. I believe, however, that the prejudice suffered by the applicants as a result of the termination of their respective program assignments does not amount to what the jurisprudence of this Court generally considers as urgent or exceptional and compelling circumstances. For instance, in Poulin, a case where discrimination based on the applicant’s physical disability was at issue, this Court did not hesitate to proceed to an examination of the claim on its merits although he had not sought internal grievance remedies beyond the first level.

 

[41]           Third, the applicants raise the question of whether the sanctions imposed on them are of a disciplinary nature or are administrative decisions, and submit that the impugned decisions should be set aside because they were not made in compliance with the disciplinary regime established under the CCRA. The applicants submit that this question is one of law and should thus be determined by the Court rather than by the grievance procedure.

 

[42]           The respondent relies on Ewert, above at para 36, to suggest that where a case raises both legal and operational issues, the legal and operational issues should be addressed together as a package in the grievance procedure.

 

[43]           In fact, by implicit reference to subsection 104(1) of the CCRA, section 38 of the CD 730 provides that “the program supervisor may suspend an inmate who leaves a program assignment without authorization or whose actions demonstrate a refusal to participate in a program assignment”, and goes on to specify that “this includes any negative behavior or action that necessitates the removal of the inmate from the program assignment”. In my view, the question of whether the loss of a CSC-owned computer from the applicants’ workplace constitutes a negative behaviour or action on their part so as to necessitate their suspension is not a difficult one, but it is a question to which the institution head and, if need be, the appellate bodies of the grievance procedure are best placed to answer.

 

[44]           In Gallant v Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 FC 329 at para 28, the Court of Appeal distinguished administrative and disciplinary decisions made by CSC officers as follows:

In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more.

 

Thus, in my view, this case raises questions of fact and law requiring an examination of its specific facts; a task for which the internal grievance procedure remains the appropriate forum.

 

[45]           The convenience of the alternative remedy and the remedial capacities of the grievance procedure also justify this approach. I agree with the respondent that given that the remedy sought is the quashing of the impugned decisions and the applicants’ immediate reinstatement in their respective program assignments, the internal grievance system rather that the Court is the appropriate forum to grant such a remedy to the applicants. It is also worth noting that the nature of the offender grievance procedure allows each subsequent decision-maker to conduct a de novo review and to substitute its decision for that made by the precedent decision-maker (Lewis v Canada (Correctional Service), 2011 FC 1233 at para 30).

[46]           The applicants rely on May v Ferndale Institution, 2005 SCC 82 [May] to suggest that their case should be allowed to go directly to judicial review. However, the question in that case was whether provincial superior courts should decline their habeas corpus jurisdiction over CSC decisions affecting the residual liberty of inmates, merely because an alternative remedy exists and seems sufficiently convenient. The Supreme Court of Canada ruled that courts would only be required to decline such jurisdiction if the legislator had put in place a “complete, comprehensive and expert procedure for review of an administrative decision”, such as the scheme created for immigration matters, and concluded that this was not the case of the offender grievance procedure.

 

[47]           More particularly, the Supreme Court of Canada held in May that the language of the CCRA and its regulations made it clear that Parliament did not intend to bar federal inmates’ access to habeas corpus. Accordingly, timely judicial oversight, in which provincial superior courts are called to exercise the habeas corpus jurisdiction, was still necessary to safeguard the human rights and civil liberties of inmates, and to ensure that the rule of law applies within penitentiary walls.

 

[48]           The applicants acknowledge that the May does not indicate that the offender grievance procedure fails to constitute adequate alternative remedy, nor does it relieve inmates from pursuing the internal grievance procedure before seeking a discretionary relief by way of judicial review (McMaster, above at para 29). The Court wishes to add that the nature of the impugned sanctions, namely the applicants’ suspension and termination of a program assignment for which they remain eligible to reapply, does not justify the applicants’ reliance on the May decision.

 

[49]           Finally, the applicants argued that Canada (Attorney General) v TeleZone Inc, [2010] 3 S.C.R. 585 suggests that they can ask judicial review of the Programs Manager’s decision instead of challenging them through the grievance procedure because the choice of procedure is theirs and “the legal remedy supersedes the grievance procedure”. The Telezone cases do not stand for such a proposition. They rather suggest that judicial review is no longer required as a preliminary step when a claim in damages is made against the federal Crown before a provincial superior court.

 

[50]           In view of the above reasons, the present application for judicial review shall be dismissed. In the exercise of my discretion, considering all relevant factors, including the limited ground for which this application is dismissed by the Court and the fact that the respondent has not addressed in his memorandum the merit of the case, all parties shall bear their own costs.

JUDGMENT

THIS COURT’S ADJUDGES that the present application for judicial review is dismissed. There are no costs.

 

“Luc Martineau”

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1839-10

 

STYLE OF CAUSE:                          JEFFREY WILLIAM ROSE,

                                                            DAVID WILLIAM SHORTREED AND

                                                            AND RICHARD (“RICK”) SUEN and

                                                            THE ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      December 7, 2011

 

REASONS FOR JUDGMENT:       MARTINEAU J.

 

DATED:                                             December 19, 2011

 

 

 

APPEARANCES:

 

Mr. Jeffrey Rose Mr. David William Shortreed Mr. Richard (“Rick”) Suen	FOR THE APPLICANTS (ON THEIR OWN BEHALF)
Mr. Michael J. Sims	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Mr. Jeffrey Rose Mr. David William Shortreed Mr. Richard (“Rick”) Suen Campbellford, Ontario	FOR THE APPLICANTS (ON THEIR OWN BEHALF)
Myles J. Kirvan, Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT