Docket: T-875-11
Citation: 2011 FC 1449
Ottawa,
Ontario, December 12, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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MICHAEL AARON SPIDEL
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Applicant
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and
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CANADA (ATTORNEY GENERAL)
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Spidel, a prison inmate, has filed an application for judicial review with
respect to what he considers the systemic failure of the Correctional Service
of Canada to deal with inmate grievances in an expeditious manner as required
by its governing act, natural justice and our Charter of Rights and Freedoms.
Corrections Canada filed an
affidavit from Michael Côté, its Director General of Rights, Redress and
Resolution. Mr. Spidel decided to cross-examine him by way of written
examination. The respondent refused to answer, and instead moved to have all
the questions struck. Apart from ordering the production of an “action plan”
referred to by Mr. Côté, Prothonotary Lafrenière granted the motion. These are
the reasons in Mr. Spidel’s appeal from that decision.
[2]
It
is clear that the Prothonotary’s decision was discretionary in nature. In such
cases, the judge who sits in appeal can only exercise discretion de novo
if the questions raised were vital to the final issue in the case, or the order
was clearly wrong in that the exercise of discretion was based on a wrong
principle or upon a misapprehension of the facts (Canada v Aqua-Gem
Investments Ltd, [1993] 2 FC 425, [1993] FCJ No 103 (QL) (FCA); Z.I.
Pompey Industrie v ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450; Merck
& Co Inc v Apotex Inc, 2003 FCA 488, [2004] 2 FCR 459).
[3]
I
shall first deal with the decision which is subject to judicial review, then Mr.
Côté’s affidavit, and finally the Prothonotary’s decision.
OFFENDER
GRIEVANCE RESPONSE (THIRD LEVEL)
[4]
Mr.
Spidel submitted a third level grievance in which he asserted that there were
systemic delays surrounding all levels of the grievance process, more
specifically with respect to the failure to deal with matters expeditiously. He
submitted a great deal of reference material including a copy of the Corrections
and Conditional Release Act and Commissioner’s Directive 081 entitled
“Offender Complaints and Grievances”. The Commissioner’s Directive provides
that correctional decisions are to be made in a forthright and fair manner
“with access by the offender to an effective grievance procedure.”
[5]
In
addition to his own lengthy affidavit, he filed affidavits from three other
inmates. However, the grievance was not submitted as a group grievance as
contemplated in section 45 of Commissioner’s Directive 081 and therefore
that part of the grievance was rejected.
[6]
Turning
to his individual grievances, Mr. Spidel identified at least three grievances
in which the response times had extended beyond one year for a single stage in
the process. In one, the delays to respond were unilaterally extended
eight times, and in another two, seven times.
[7]
Ian
McCowan, Assistant Commissioner, Policy, upheld that part of the grievance. In
fact, it was found that the responses to five grievances took longer than
the prescribed time as stated in section 35 of Commissioner’s Directive 081.
However, it was decided that no further action was required. The reason given
is that corrective action was underway in that in November 2010, the Regional
Deputy Commissioner from the Pacific Region put in place an action plan to
resolve the current backlog and delays.
[8]
Not
happy with that decision, Mr. Spidel has applied for judicial review. At its
broadest, the application seeks a declaration that the entire inmate
grievance process is invalid, that the Commissioner capriciously abuses
correctional policy to produce ongoing administrative delays which violate
natural justice and statutory requirements, and an order in the nature of mandamus
compelling the Commissioner to review grievances in accordance with statutory
and policy requirements and to respect the law.
[9]
Applications
are dealt with pursuant to Rules 300 and following of the Federal Courts
Rules. After the filing of Mr. Spidel’s affidavit, the respondent was
entitled to file its supporting affidavits and documentary evidence. This is
how Mr. Côté’s affidavit was produced.
MR. CÔTÉ’S
AFFIDAVIT
[10]
As
noted by Prothonotary Lafrenière, Mr. Côté’s affidavit is only ten paragraphs
in length. In the first paragraph, he identifies himself. In paragraphs 2
through 5, he simply refers to the redress procedure, various directives, and
part of the record before Mr. McCowan. He added at paragraphs 6 through 10:
6. As of June 2011, there
are 14,476 federally incarcerated offenders.
7. In 2010-2011, CSC
received 28,948 grievances from federal offenders.
8. Between April 2011
and June 2011, CSC received 5542 complaints and grievances.
9. In November 2010,
the Regional Deputy Commissioner in the Pacific Region implemented an action
plan to resolve the complaint and grievance backlogs and delays in that region.
10. In November 2010, the Pacific
Region had 296 active 2nd level grievances. The Region currently has
149 active 2nd level grievances in process. This represents a 50%
reduction in the regional backlog as a result of the action plan.
[11]
Mr.
Spidel posed 49 written questions in cross-examination. In addition, he asked
for a copy of the Pacific Region’s “action plan”. He asked a great many
questions with respect to the 28,948 grievances referred to, whether there were
similar action plans in other regions, and other broad questions of like
nature. In other words, Mr. Spidel is attempting to conduct his own Royal
Commission, notwithstanding that this is not a class proceeding.
THE
PROTHONOTARY’S DECISION
[12]
The
Prothonotary correctly summarized the affidavit as follows:
Paragraphs
2, 3 and 4 of the Côté Affidavit provide general information on the nature of
the grievance process and attach two policy documents which outline CSC’s
grievance process. Paragraph 5 attaches a copy of pages that were included in
the certified tribunal record that were omitted from the Applicant’s affidavit.
Paragraphs 6, 7 and 8 provide general statistics on the volume of grievances
handled by the CSC. Finally, paragraphs 9 and 10 confirm that an action plan
exists in the Pacific Region and that the action plan has resulted in a
reduction in the regional grievance backlog.
[13]
The
Prothonotary was of the view that the questions posed were an improper attempt
to conduct a wide-range discovery and to convert the application for judicial
review into a forum to assess the effectiveness of the action plan. He
concluded that the questions were not legally relevant. His assessment was not
unreasonable. In any event, I agree.
ANALYSIS
[14]
Despite
Mr. Spidel’s eloquence, I am of the view that the decision to strike questions
posed in this cross-examination is not vital to the outcome of the case (Trevor
Nicholas Construction v Canada (Minister of Public Works), 2008 FC 306, 165
ACWS (3d) 807; Spidel v Canada (AG), an unreported decision of Mr.
Justice Lemieux in 2010 under Docket number T-1544-09).
[15]
Nor
do I find that the Prothonotary misdirected himself on the law or erred in his
finding of facts.
[16]
I
do, however, have a somewhat different point of view on the significance of Mr.
Côté’s affidavit. The general rule is that the Court is provided only with the
documents which were before the tribunal when it made its decision. It is
not intended as a means of obtaining discovery of all documents that may be in
the tribunal’s possession (Access Information Agency Inc v Canada
(Transport), 2007 FCA 224, 162 ACWS (3d) 570; 1185740 Ontario Ltd v
Canada (Minister of National Revenue) (1999), 247 NR 287, 91 ACWS (3d) 922
(FCA)).
[17]
Neither
the action plan nor any of the statistics cited by Mr. Côté are to be found in
the certified tribunal record. It follows that either these documents were
not before Mr. McCowan or the tribunal record is incomplete. Did he simply make
a bald statement, without support, that an action plan was in place? It seems
to me that Mr. Côté’s affidavit was made in an attempt to shore up the
decision.
[18]
It
will be up to the applications judge, after the records are complete, to
determine what should be done with the affidavit, and if moved under Rule 312,
to determine whether a supplementary record should be filed.
[19]
Given
my concerns about the purpose of the affidavit, although I am dismissing the
appeal, I am only awarding the respondent costs in the appeal in the amount of
$250, all inclusive. The cost order issued by the Prothonotary remains in
place.
ORDER
FOR
REASONS GIVEN;
THIS COURT
ORDERS that the appeal is dismissed, with costs in the amount of
$250, all inclusive.
“Sean Harrington”
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