Date: 20080430
Docket: T-2131-06
Citation: 2008 FC 559
Ottawa, Ontario, April 30, 2008
Present:
The Honourable Orville Frenette
BETWEEN:
GILLES
OUELLETTE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision by the National
Headquarters of Correctional Service Canada (CSC), dated
October 30, 2006, refusing the applicant’s grievance V30A00020878.
I. The facts
[2]
The
applicant has been in detention at the La Macaza Institution (the Institution) since
April 2003. He filed a certain number of grievances, alleging that he was
harassed by an employee of the Institution, Sylvain Blais. Most of his
grievances were dismissed. One grievance was upheld in part, grievance V30A00017399,
contemplating the third level decision to the effect that Mr. Blais [translation] “did not manage the situation
in a professional manner,” but that his action did not amount to [translation] “a case of harassment
according to the definition of the policy in effect.” Another grievance, regarding
the time period for registering the last complaint, was also upheld in part,
recognizing that the time period was too long, but that this was the result of uncontrollable
circumstances.
[3]
On
January
25, 2006,
the applicant filed the grievance at issue at the first level, i.e. before the
prison Warden, after he was transferred from his workspace to another building,
where Mr. Blais did not work. In this building, the applicant alleges that
he did not have access to running water, toilets, or to many departments such
as the recreation and social area of the life group, the gym, the library, or
the meeting room of Groupe Option-Vie. According to the applicant, this created
an illegal segregation. The appellant argued in his first level complaint that
the workplace transfer confirmed [translation]
“Mr. Blais’ harassment of Mr. Ouellette. To achieve this, [Mr. Blais]
obtained the unconditional support of his wife, the Deputy Warden
Ms. Bergevin.”
[4]
The
prison Warden dismissed this grievance, noting that Ms. Bergevin, as the Institution’s
Deputy Warden, [translation] “made
all of the necessary decisions inherent to this position.” In light of the situation
of conflict between the applicant and Mr. Blais, the management of the Institution
was looking for [translation] “a
viable solution with the fewest repercussions possible.” The Warden also noted
that the applicant had not lost any salary.
[5]
The
applicant filed his grievance at the second level, namely before the head of
the region, alleging that certain specific points had not been addressed at the
first level. Specifically, the applicant submitted that he was not in a
conflict situation with Mr. Blais, but in a situation where he was
subjected to constant harassment from Mr. Blais, in league with his spouse,
Ms. Bergevin.
[6]
The
applicant’s grievance was dismissed at the second level. The head of the region
observed that some of the allegations had already been raised in grievances
V30A00017945 and V30A00017399. In regard to the allegation of suspension, the head
of the region determined that the suspension required an interruption of wages,
which was not the case in this matter. Finally, regarding the services which
the applicant alleged he could not access, the head of the region observed:
[translation]
You have access to the services
offered to the other inmates every evening after 3:00 p.m. and you can continue
to do your work in accordance with the new schedule that was given to you. Finally,
we have been advised [by the Institution authorities] that in the event of a conflict
between your work schedule and access to certain services, other measures could
be considered.
[7]
The
applicant brought his grievance to the third level, before CSC, where he
alleged that Mr. Blais, who had been harassing him for a long time, wanted
him to be dismissed from his employment. He allegedly spoke about it to his
spouse, Ms. Bergevin, so that she could meet with the applicant’s
immediate superior in an attempt to influence the superior to this end. Further,
the applicant alleges that Ms. Bergevin wanted to change the applicant’s
work schedule, despite the objections of his immediate superior, to ultimately
change his place of work so that he “supported his wife no matter what.” The applicant
restated that he did not have access to running water or to the toilets and
that he could not enjoy his free time in the afternoon like the other inmates
because he could not access the building where several recreational activities
were held. The applicant again alleged that he was being harassed by Mr. Blais,
and that Ms. Bergevin was in a conflict of interest situation.
[8]
The
applicant added other allegations to the grievance in a new complaint form but,
as these new allegations were never reviewed at the first level, they were
referred to the first level.
[9]
Following
receipt of an administrative summary prepared by an analyst, CSC communicated
its decision to dismiss the applicant’s grievance on October 30,
2006,
CSC noted that the allegations of Mr. Blais’ harassment had already been
addressed at the third level, in grievance V30A00017399.
[10]
As
for the new allegations, CSC noted that decisions such as the one at
issue were to be made by the Institution Warden, and not by the spouse of the
employee in question, and that the Warden had the authority under section 4 of
the Corrections and Conditional Release Regulations, SOR/92-620, as well
as under a Commissioner’s Directive. CSC added:
[translation]
While this building [where the
applicant works] does not have water or toilets, you are not the only one in
this situation. … You were less than 200 feet away from your cell block and all
you had to do was close your office to go to your cell to access water and use
the toilets.
As for your allegations that
you did not have access to the recreational, social and cultural activities of the
Institution, the Institution Warden confirmed the opposite. You have access to
all of these activities after 3:00
p.m., evenings
and every weekend.
Finally, the Institution Warden
actively tried to find a solution to e solution to offset a potential conflict
situation between you and a member of the staff.
[11]
The
applicant filed an application for judicial review before the Federal Court on
November 30, 2006. Since these events, it was admitted that the
employee Sylvain Blais is deceased. It was also established that since December
2007, the Institution has had a new Warden and that the applicant’s privileges
have been restored.
[12]
My
colleague, Mr. Justice Yvon Pinard, in an order dated November 7, 2007, allowed the
applicant to serve and file a supplemental memorandum of fact and law, bearing
strictly on the issue of procedural fairness in regard to Ms. Bergevin’s
involvement in the decisions relating to the attempt to resolve the conflict between
the applicant and Mr. Blais.
[13]
At
the hearing on the merits, the applicant opined that I had to rehear the recording
of the exchange before Pinard J. He was mistaken on this point, since Pinard J.’s
order states that everything must reconsidered by the judge on the merits.
[14]
Since
Pinard J.’s order, the respondent informed the Court that part of the information
regarding Ms. Bergevin’s involvement in the decision that was the subject
of the grievance before the third level was inaccurate.
[15]
The
respondent indicated that the initial decision had been made on or about
January 18, 2006, by the Deputy Warden, Ms. Bergevin, who was
then acting Warden of the Institution in the absence of the Warden.
[16]
This
revelation is completely inconsistent with the third level decision, which
reads as follows:
[translation]
… You refer to the spouse of
the employee in question as being responsible for the decisions regarding your
schedule as well as your place of work.
On consulting the Warden of
the Institution, I can assure you that it is the management of the Institution
which makes the decisions and not the spouse of the employee in question.
[Emphasis added.]
[17]
Based
on the foregoing, the respondent acknowledges that the third level grievance
decision must be set aside.
II. The issue
[18]
As
the respondent recognized that the third level decision regarding Ms. Bergevin’s
involvement in the decision which was the subject of the applicant’s grievance was
based on inaccurate information, the only issue to decide in this application
is whether the Court has the jurisdiction to award the remedies sought by the applicant.
III. The analysis
[19]
In
the application for judicial review, the following orders were sought:
[translation]
(a) TO DECLARE INVALID OR TO SET
ASIDE the decision made in grievance V30A00020878.
(b) TO ORDER that the federal board,
commission or tribunal at issue, Correctional Service Canada, cease all
restrictive measures imposed specifically on the applicant since the filing of
this grievance V30A00020878.
(c) TO ELIMINATE from the
applicant’s prison record all reports directly or indirectly suggesting or implying
that the applicant acted improperly in this matter.
(d) TO ORDER that serious
sanctions be taken against the respondent to establish that no form of
harassment by a member of CSC will ever be tolerated by
this federal board, commission or tribunal.
(e) TO RECOGNIZE all or part of
the abuse of authority, the harassment caused to the applicant by the actions of
the members of Correctional Service Canada, inter alia more specifically
by Sylvain Blais and his spouse Julie Bergevin.
(f) TO ENSURE that the two
principal respondents, Sylvain Blais and his spouse Julie Bergevin, working
with Correctional Service Canada, can no longer work together in the same Institution,
in order to avoid any future conflict of interest in the decisions made by this
Deputy Warden, Julie Bergevin, regarding the inappropriate conduct of her
spouse, Sylvain Blais.
(g) TO ORDER, if the Court sees
fit, that this application for judicial review be heard as though it were an
action for compensatory damages by the applicant against the respondent.
[20]
Moreover,
in his memorandum of fact and law dated March 20, 2007, the applicant sought
additional orders. Inter alia, he asked the Court to specify to the authorities
involved that in the future he have the same rights and privileges as all of
the other residents of the Institution, to order that Ms. Bergevin and Mr. Blais
write letters of apology to the applicant, that Ms. Bergevin and Mr. Blais
be suspended from their employment without pay, and that the applicant be
awarded punitive and exemplary damages as well as compensation for postal and
clerical expenses.
[21]
I
note that several other remedies sought in the memorandum are not found in the application
for judicial review and therefore are not admissible before this Court.
IV. The conversion of an application for judicial review to
a summary action
[22]
The
applicant submits that his application be amended so that it becomes a summary
action in which he could claim $50,000 in punitive and exemplary damages, given
the respondents’ conduct. The respondent vehemently opposes this change, alleging
that this is not an exceptional case justifying such recourse and that there is
no evidence in the record justifying the damages claimed.
V. The law
[23]
Subsections 18(4)(1)
and (2) of the Federal Courts Act ( R.S. 1985, c. F-7 ) state:
|
Hearings in summary way
18.4 (1) Subject to
subsection (2), an application or reference to the Federal Court under any of
sections 18.1 to 18.3 shall be heard and determined without delay and in a
summary way.
Exception
(2) The Federal Court may,
if it considers it appropriate, direct that an application for judicial
review be treated and proceeded with as an action.
|
Procédure sommaire
d’audition
18.4 (1) Sous réserve du
paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure
sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre
des articles 18.1 à 18.3.
Exception
(2) Elle peut, si elle
l'estime indiqué, ordonner qu'une demande de contrôle judiciare soit
instruite comme s'il s'agissait d'une action.
|
[24]
Clearly,
as section 18 indicates, this is generally an exceptional procedure, particularly
in this case where there is no tangible evidence to establish the alleged prejudice,
above all the amount of damages claimed.
[25]
I
note the remarks of the Federal Court of Appeal in Macinnis v. Canada (Attorney
General), [1994] 2 F.C. 464, at paragraph 9: “It is, in general, only
where facts of whatever nature cannot be satisfactorily established or weighed
through affidavit evidence that consideration should be given to using
subsection 18.4(2) of the Act.” In this case, I cannot see any problem regarding
the Institution or the assessment of facts through affidavits which would
justify resorting to the above-mentioned subsection.
[26]
It
must be held that the applicant’s application, on this point, is unfounded in
fact and law and must therefore be dismissed.
VI. The other findings sought
[27]
The
Court’s jurisdiction in judicial review applications is limited to the powers
set out in subsection 18.1(3) of the Federal Courts Act. The Court
has the power to determine whether the decision-maker erred in fact or in law, and,
if such is the case, to set aside the decision and to refer the issue back to
the federal board, commission or tribunal. In exceptional cases, the Court can
give instructions as to the decision to render (Rafuse v. Canada, 2002
FCA 31, [2002] F.C.J. No. 91 (QL)), but this power is rarely exercised. This
will be the case, for example, when the sole issue to be decided is a pure
question of law which would dispose of the case, or in cases where the
evidence on the
record is so clearly conclusive that there is only one possible conclusion (Simmonds
v. Canada (Minister of National Revenue – M.N.R.), 2006 FC 130, [2006]
F.C.J. No. 184 (QL), at paragraph 38). In my opinion, these
factors do not exist in this case.
[28]
The
judicial review mechanism enables the Court to verify the legality of the
impugned decision, not to substitute its opinion for that of the original
decision-maker.
VII. Conclusion
[29]
For
all of these reasons, it is my opinion that beyond setting aside the impugned
decision, the Court does not have the jurisdiction to allow all of the orders and
all of the relief sought. The decision must therefore be set aside and the
matter referred to the third level, composed of an analyst and a decision-maker
who were not involved in the first decision.
JUDGMENT
THE COURT ORDERS that
(1)
The
decision dated October 30, 2006, in grievance V30A0020878 be set
aside and the matter referred to the third level, composed of an analyst and a
decision-maker who were not involved in the first decision;
(2)
This
reconsideration shall consider the fact that the central decision which is the
subject of grievance V30A00020878 was made by Ms. Bergeron, namely the spouse
of the employee contemplated in the conflict with the applicant;
(3)
The
applicant be authorized to file additional reasons before the decision-maker
who will hear the grievance;
(4)
The
other findings of the application be dismissed; and
(5)
Each
party assume their costs.
“Orville
Frenette”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
Email this Content