Date: 20080905
Docket: T-270-08
Citation: 2008 FC 992
Ottawa, Ontario, September 5, 2008
PRESENT:
The Honourable Mr. Justice Noël
BETWEEN:
PIERRE-PAUL
POULIN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant
(Mr. Poulin), representing himself, is asking for the judicial review of a
third level grievance procedure decision by the Assistant Commissioner of the
Correctional Service of Canada (the CSC).
In this decision dated January 21, 2008, this grievance was allowed in part as
follows:
-
the staff
of the Mission Institution (the Institution), where the applicant is serving a
life sentence for four counts of murder in the first degree, should not have
withheld the inmate’s computer until it had been registered in the inmate’s
personal property record;
-
the
request for an extended warranty and for compensation for depreciation for the
period during which the computer was being withheld is denied but the value of
the computer will be that of the purchase cost on the inmate’s personal
property record in accordance with CSC
policy;
-
the
request for reimbursement of the monthly payments for the purchase of the
computer for the period that the computer was withheld is denied;
-
further, the
CSC will not pay for the installation of Intel Duo 2 Extreme X6800 or the video
card for the inmate’s computer;
[2]
Contrary
to CSC policy, which does not allow
inmates to use computers, the CSC exceptionally allowed the applicant to use a
computer because he is visually impaired, providing that the safety standards
of the Institution were satisfied. Permission was granted before the applicant
purchased it.
[3]
This
matter raises primarily just questions of fact, and calls into question the
discretion exercised by the Assistant Commissioner of the CSC in making his
decision on January 21, 2008. In a situation such as this, the
standard of review is that of reasonableness (see Dunsmuir v. New Brunswick
2008 CSC 9, at paragraphs 51 and 53).
[4]
Further,
the applicant also raises a breach of the duty of procedural fairness.
According to his version of the facts, the warden of the Institution was in a
conflict of interest because, as he was involved at the first level of the
grievance procedure, he decided on the circumstances of his own decision: the
decision to withhold the computer upon its delivery to the Institution. He
added that he should have held a hearing in the context of examining the
grievance. On the first point, the record indicates that the Institution warden
was not involved in the decision to withhold the computer when it was delivered.
On the second point, the right to a hearing is not a requirement for the
purposes of the grievance procedure and the decision made on January 21, 2008, because
the facts in the record do not justify such an obligation. It is not a matter
of credibility requiring testimony, but rather of the application of a CSC directive and the exercise of the Assistant
Commissioner’s discretionary power (see Canada (Attorney General) v. Flynn,
2007 FCA 356, paragraph 15).
[5]
During his
submissions, the applicant told the Court that he was withdrawing his Charter
argument based on section 15.
[6]
The only
issue for the purposes of resolving this litigation is: “is the decision of the
Assistant Commissioner dated January 21, 2008, reasonable taking into account
the facts of this matter?”
[7]
The CSC withheld the computer when it was delivered
despite the fact that certain CSC officers had authorized its purchase. The
applicant filed a first grievance and he was successful in a decision at the
third level dated July
27, 2007.
Accordingly, the CSC recognized that the computer should not have been withheld,
but that the computer had to be adapted so that it was safe for the purposes of
the Institution. The CSC would assume the costs of
these modifications. This decision was not the subject of an application for
judicial review.
[8]
The
computer was withheld for nine months. Accordingly, the applicant filed a
second grievance in which he asked to be compensated for the period that the computer
had been withheld (reimbursement of depreciation, extension of warranty, reimbursement
of the monthly purchase payments, etc…). In the decision of the Assistant
Commissioner at the third level dated January 21, 2008, the large
majority of claims were refused (see paragraph 1 of this decision).
[9]
In this
decision, the Assistant Commissioner was very brief, refusing the request for a
warranty extension on the basis that such a request was not part of the grievance
procedure. There was no explanation given on this point. The Court record
clearly establishes that the applicant was simply requesting that the CSC
assume the repairs for an additional warranty period from the time he took
possession (see
the grievance presentation form at the third level in the applicant’s record, tab
N, page 246, as well as the addendum to this same grievance at tab O, page 255).
There were three months left on the manufacturer’s warranty.
[10]
The
CSC recognized
that it withheld the applicant’s computer in error (CSC mistakenly withheld
your computer from you and has acknowledged its mistake … see decision dated January 21, 2008, page 1 at
the third paragraph). Respondent’s counsel argued that the applicant did not
establish prejudice. However, the Court observes that the applicant did not use
the computer for nine months of the warranty period and was unable to enjoy the
use of his computer during this period, nor the benefits of the manufacturer’s
warranty if necessary.
[11]
On this point, the Court cannot read into the decision
the explanation for the refusal of such a request in view of the brief reasons.
This is not reasonable when taking into account the facts and the admissions on
which this matter is founded. The Supreme Court of Canada in Dunsmuir v. New Brunswick notes at paragraph 47:
“[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.”
[12]
There is perhaps a
valid justification for this refusal, but the Court cannot assess it without being
informed of the CSC’s reasons. According to the Federal Court of Appeal in VIA Rail Canada
Inc. v. National Transportation Agency and Jean Lemonde, [2001] 2 F.C. 25 at paragraphs 17-19:
The
duty to provide reasons is a salutary one. Reasons serve a number of beneficial
purposes including that of focusing the decision maker on the relevant factors
and evidence …
Reasons
also provide the parties with the assurance that their representations have
been considered.
In
addition, reasons allow the parties to effectuate any right of appeal or
judicial review that they might have. They provide a basis for an assessment of
possible grounds for appeal or review. They allow the appellate or reviewing
body to determine whether the decision maker erred and thereby render him or
her accountable to that body …
[13]
As for the
refusal of the other requests (request for depreciation, reimbursement of
payments for the purchase of the computer, etc …), there are supporting reasons
and the Commissioner used his discretion. Even though the Court may have a
different opinion, it must not intervene on this basis alone. The determination
must be unreasonable to justify such an intervention.
[14]
The matter
will therefore be returned to the Assistant Commissioner for reassessment of
his decision to refuse the request for a warranty extension, while taking into
account the grievance procedure, the admission that the computer should not
have been withheld, and the applicant not having use of the computer for nine
months of the manufacturer’s one-year warranty period.
[15]
The
applicant, representing himself, will be awarded costs limited to the amount of
$300.00, to cover the stationary and administration costs of the matter.
JUDGMENT
THE COURT ORDERS AS FOLLOWS:
-
The
application for judicial review is allowed in part.
-
The
decision of the Assistant Commissioner is set aside with respect to request for
a warranty extension.
-
The matter
is referred to the Assistant Commissioner for reassessment of the warranty
extension request in accordance with the remarks in this decision.
-
Costs in
the amount of $300.00 are awarded to the applicant.
“Simon
Noël”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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