Docket: T-1442-14
Citation: 2016 FC 187
Ottawa, Ontario, February 11,
2016
PRESENT: The Honourable Madam Justice Roussel
BETWEEN:
TIMOTHY MITCHEL NOME
Applicant
and
THE ATTORNEY GENERAL OF CANADA and
THE COMMISSIONER OF CORRECTIONS
Respondents
JUDGMENT AND REASONS
[1]
The Applicant, Timothy Mitchel Nome, is
currently incarcerated at Millhaven Institution, a maximum-security facility
located in Ontario, where he has remained in segregation since July 15, 2015.
On June 18, 2014, he commenced this application for judicial review seeking
relief in respect of an alleged refusal by Correctional Service of Canada [CSC],
to provide him access to various health treatments and services.
[2]
In a separate motion filed with the Court on
September 15, 2015, the Applicant also sought relief under Rule 373 of the Federal
Courts Rules, SOR/98-106, enjoining the Respondents from transferring him
out of the Ontario region pending the determination of this application for
judicial review.
[3]
For the reasons set out below, the application
for judicial review is dismissed. As a result, there is no need for this Court
to dispose of the motion for interlocutory relief.
I.
Background
[4]
On January 27, 2011, while incarcerated at the
Special Handling Unit of the Regional Reception Centre in
Saint-Anne-des-Plaines, Québec, the Applicant was injured in an altercation
with CSC officers. During this incident, the Applicant asserts that he suffered
a broken nose, broken finger and two (2) chipped teeth.
[5]
Since the incident in 2011, the Applicant has
been transferred to four (4) different institutions, including: Kent
Institution, British Columbia in March 2012; Mountain Institution, British
Columbia in August 2012; Atlantic Institution, New Brunswick in January 2013;
and his current location, Millhaven Institution, Ontario in October 2013.
[6]
Throughout his incarceration, the Applicant has
requested that CSC provide health treatment and services for his aforementioned
injuries, including rhinoplasty to reconfigure his nose, replacement of the two
(2) teeth with dental implants, surgery to his left hand fifth finger, and a
new pair of eye glasses.
[7]
On July 12, 2013, the Applicant submitted an
offender complaint for being denied reasonable and timely access to healthcare
(#V20R00005982). Claiming to have been scheduled for surgery in March 2012,
before his transfer to Kent Institution, the Applicant requested that he be
scheduled for surgery for repairs to his left hand fifth finger and a
rhinoplasty procedure for his nose.
[8]
In a response dated August 8, 2013, the
Applicant’s complaint was upheld in part by the Acting Chief of Health Services
at Atlantic Institution. The Acting Chief found that there was indeed a delay
in receiving services, but noted that the Applicant’s medical needs had been
addressed: his nose and left hand fifth finger had been x-rayed on July 31,
2013. The response also indicated that once the results of these x-rays were
received, the Applicant would be referred, if required, to specialists.
[9]
On August 22, 2013, the Applicant grieved this
decision to the first level of the grievance process, maintaining that he was
still being denied health treatment and services. He indicated that he may be
transferred to Ontario and asked whether CSC would fly him back to the Atlantic
region so that the surgeries could be done in a timely manner.
[10]
In a response dated November 1, 2013, the first
level grievance was upheld in part, again on the basis that there was an
initial delay in having x-rays completed. With respect to the Applicant’s
request that he be flown back to the Atlantic region for treatment, the
response indicated that this request was beyond the authority of CSC Health
Services.
[11]
On June 18, 2014, the Applicant commenced this application
for judicial review.
[12]
On September 6, 2015, the Applicant submitted a
final level grievance with respect to the delays in obtaining his requested
health treatment and services, namely, rhinoplasty surgery, surgery to his left
hand fifth finger, dental implants, and proper fitting eye glasses. A final level
grievance decision remains pending.
[13]
On September 15, 2015, a Notice of Involuntary
Transfer Recommendation was issued, recommending that the Applicant be
transferred to Stony Mountain Institution, Manitoba. The Applicant was advised
that the transfer was recommended to alleviate his segregation status and to
provide him with a safe environment in which to reside, considering that
attempts to integrate the Applicant into the prison population had been
unsuccessful.
[14]
The decision to transfer the Applicant from
Millhaven Institution to Stony Mountain Institution was finalized on October
16, 2015, and communicated to the Applicant on October 28, 2015.
II.
Issues to be determined
[15]
Having considered the submissions of the
parties, the following issues arise from this application for judicial review:
A. Has the Applicant exhausted his alternative remedies and if not, are
there compelling circumstances such that this Court should entertain the
application for judicial review?
B.
Is the application for judicial review moot?
C.
Did CSC reasonably address the Applicant’s
requests for health treatment and services? If not, what is the appropriate
remedy?
III.
Analysis
A.
Preliminary issue
[16]
Before addressing the above-noted issues, a
preliminary issue arises as to what the underlying matter consists of and what
relief is being sought by the Applicant. In his Notice of Application filed
June 18, 2014, the Applicant indicates that he is seeking judicial review of
the “decision of the [CSC] on or about June 10, 2014
continuing to deny him access to needed health service treatments that they had
undertaken would be implemented many months ago”. Specifically, he seeks
the following:
A.
an order in the nature of certiorari quashing
the Respondent Commissioner’s decision to continually refuse to provide the
Applicant’s needed evaluations and treatments;
B.
an order declaring that the Respondents have
acted contrary to section 7 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, Schedule B to the Canada Act
1982 (UK), 1982, c 11 [Charter];
C.
an order declaring that the Respondents breached
their obligations under the Corrections and Conditional Release Act, SC
1992, c 20 [CCRA] and in particular its health services obligations under
sections 85 to 87 thereof, as well as its obligation to provide safe and
healthful custody under section 70 thereof; and,
D.
an order requiring the Respondents to provide
the Applicant his health service evaluations and treatments immediately.
[17]
In light of his pending transfer to Manitoba,
the Applicant has included in his Memorandum of Fact and Law, filed November
27, 2015, request for relief which is appreciably different than the relief
sought in the Notice of Application. The Applicant now seeks the following in
his Memorandum of Fact and Law:
A.
an order quashing the decision of the Warden, on
October 15, 2015, to involuntarily transfer the Applicant to Stony Mountain
Institution;
B.
an order declaring that this decision violated
the Applicant’s rights under sections 86 and 87(a) the CCRA;
C.
an order declaring that the decision violated
the Applicant’s rights under section 7 of the Charter; and
D.
an order requiring the Respondents not to
proceed with a transfer outside the Kingston area until the Applicant has
accessed the health services and treatment which he currently seeks.
[18]
While the Applicant’s pending transfer to Stony
Mountain Institution may be a relevant factor to consider in this matter, the
Applicant has failed to challenge this decision through the proper channels. At
the date of the hearing, counsel for the Applicant informed the Court that the
Applicant had not grieved the transfer decision. The proper recourse for the
Applicant is to challenge his pending transfer within the CCRA’s internal
grievance process and if unsatisfied, to seek judicial review of the final
decision before this Court. If this Court were to grant the relief sought in
the Applicant’s Memorandum of Fact and Law, it would allow the Applicant to
circumvent his obligation to exhaust his statutory remedies before bringing
this matter before the Court. Moreover, the decision to transfer the Applicant
out of the province to Stony Mountain Institution is based on factual and legal
considerations which are beyond the scope of this application for judicial
review. For these reasons, the relief sought and the issues to be adjudicated
will remain as defined in the Notice of Application.
B.
Has the Applicant exhausted his alternative
remedies, and if not, are there compelling circumstances such that this Court
should entertain the application for judicial review?
[19]
It is trite law that the Court has the
discretion to decline to exercise its jurisdiction to hear an application for
judicial review where an adequate alternative avenue of relief remains
available to an applicant (C.B. Powell Ltd. v Canada (Border Services
Agency), 2010 FCA 61 at paras 31-32, [2011] 2 FCR 332; Froom v Canada
(Minister of Justice), 2004 FCA 352 at para 12, [2005] 2 FCR 195).
[20]
Under sections 90 and 91 of the CCRA, offenders
are entitled to the fair and expeditious resolution of their grievances. The
grievance procedure is set forth in sections 74 to 82 of the Corrections and
Conditional Release Regulations, SOR/92-620 [CCRR].
[21]
In Giesbrecht v Canada, 148 FTR 81, [1998]
FCJ No 621 (QL), Justice Rothstein found that the grievance procedure set out
in the CCRA and the CCRR affords an adequate alternative remedy to judicial
review:
[10]
On its face, the legislative scheme providing for
grievances is an adequate alternative remedy to judicial review. Grievances are
to be handled expeditiously and time limits are provided in the Commissioner's
Directives. There is no suggestion that the process is costly. If anything it
is less costly than judicial review and more simple and straightforward.
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. Judicial review does not deal with the merits and a favourable
result to an inmate would simply return the matter for redetermination to the
tribunal appealed from.
[22]
This Court has consistently recognized CSC’s
grievance process as an adequate alternative remedy and judicial review will
generally only be appropriate after a final decision is rendered in the
grievance process (Robertson v Canada (Attorney General), 2015 FC 303 at
para 33; MacInnes v Mountain Institution, 2014 FC 212 at para 17; Leach
v Warden of Fenbrook Institution, 2004 FC 1570 at para 10; Ewert v
Canada (Attorney General), 2009 FC 971 at paras 31-32).
[23]
The policy reasons for declining to hear a
judicial review where an adequate alternative remedy exists were discussed by
Justice Pelletier in Marachelian v Attorney General of Canada, [2001] 1
FCR 17 at para 10:
The policy reasons
for requiring applicants to exhaust their internal remedies are compelling. To
hold otherwise is to undermine the legitimacy of alternate remedies by
assigning them to a secondary position when there are many reasons why they
should occupy a primary role in the resolution of disputes. In the context of
correctional facilities, one could identify timeliness, familiarity with a
unique environment, adequate procedural safeguards and economy as reasons for
which internal remedies ought to be exhausted before approaching this Court.
[24]
In addition, exhausting an internal remedy may
eliminate the need for judicial review by resolving the substantive issue in
favour of the griever. If not, when the matter ultimately proceeds to judicial
review, a decision reached by a final decision-maker will provide the Court
with the benefit of the decision-maker’s expertise on the matter, as well as a
complete record.
[25]
That is not to say that there may be
circumstances where a judge may be persuaded to exercise their discretionary
jurisdiction to hear the application for judicial review despite the availability
of an alternative remedy. In Gates v Canada (Attorney General), 2007 FC 1058, Justice Phelan allowed an application for judicial review where the temperature in a
detention unit was repeatedly falling between O˚C and -12˚C, thus
jeopardizing the Applicants’ health. He found that the matter was therefore
immediate and urgent, and the Applicants were not required to exhaust their
remedies through the grievance process. While expressing hesitance in
interfering with the CCRA grievance process, he provided guidance on when
intervention by the Court is warranted:
[26] In my view, the
Court should not lightly interfere with the complaints process. There are
strong policy and statutory reasons for requiring inmates to use this process.
It is in cases of compelling circumstances, such as where there is actual
physical or mental harm or clear inadequacy of the process that a departure
from the complaints process would be justified (this is not an exhaustive list
of the circumstances justifying departure from the usual process).
[26]
Thus, the issue to be decided is whether there
are compelling circumstances in this case which would justify departing from
the general principle that the Court shall refuse to entertain an application
for judicial review unless all adequate alternative remedies have been
exhausted.
[27]
When the Applicant initiated these proceedings
in June 2014, he had not pursued his grievance beyond the first level. The
Applicant maintains that he was not made aware of the first level grievance
decision until September 2015, when he was finally allowed access to his
documents which were stored following his transfer from Atlantic Institution.
[28]
In an affidavit sworn August 21, 2015, the
Applicant’s parole officer at Millhaven Institution asserts that the Applicant
received a response to his first level grievance on November 21, 2013. However,
there is no indication in the record that the decision was communicated to the
Applicant in November 2013. As the Applicant was transferred out of Atlantic
Institution on October 22, 2013, it is not unreasonable to infer that the
decision may not have been communicated to him, as he had already been
transferred to Millhaven Institution when the decision was issued by Atlantic
Institution in November 2013.
[29]
While I accept that the Applicant may not have
been provided a copy of the first level grievance decision when it was first
issued, I am not persuaded that this constitutes compelling circumstances. In
my view, the Applicant is in part responsible for the delay incurred before the
final level grievance was initiated in failing to follow up with CSC
authorities for a response. It appears from the material filed before the Court
that the Applicant is no stranger to the grievance process at CSC. In addition
to the several grievances lodged by the Applicant on a variety of issues, the
Applicant has not shown any hesitation in making countless requests with CSC
officials and in expressing his discontent with their responses.
[30]
Moreover, in determining whether there are
compelling circumstances in this case that would justify a departure from the
general principle, it is important to consider the nature of the treatments and
services requested by the Applicant, which I will now review.
(1)
Rhinoplasty surgery
[31]
The Applicant has requested rhinoplasty surgery
to correct the shape of his nose. This issue was included in both his first
level and final level grievances.
[32]
On March 5, 2015, the Applicant underwent a
septoplasty that he had requested to correct a deviated nasal septum. The
surgery did not involve rhinoplasty. In reports dated December 4, 2014, and
March 5, 2015, Dr. Qureshy, the surgeon who performed the operation, indicated
that he explained to the Applicant that rhinoplasty would likely only allow the
Applicant’s glasses to sit more evenly on his nose. He opined that this was not
a good reason to have the rhinoplasty surgery. He further indicated that the
Applicant’s nose was only very mildly deviated and that the rhinoplasty may not
even address his main concern regarding how his glasses do not sit evenly on
his nose. Dr. Qureshy wrote that he felt that it would be best to have the
glasses fit the Applicant’s nose as opposed to having the Applicant’s nose fit
the glasses. On the day of his septoplasty surgery, Dr. Qureshy again
reiterated to the Applicant that rhinoplasty was not the answer but offered to
seek another opinion from one of his colleagues.
[33]
On October 26, 2015, the Applicant was seen by
another specialist, Dr. Hollins, who advised the Applicant that his issue was
essentially cosmetic. He further indicated that any surgical correction was
likely to have a fairly limited chance of success and that it was questionable
whether a rhinoplasty would be of benefit. He stated that he does not do
cosmetic surgery but noted there were a couple of surgeons in Ottawa who could
be considered for the procedure. He also added that if cosmetic rhinoplasty was
not covered under the CSC plan, the Applicant would have to pay for the
procedure. With respect to the Applicant’s difficulty wearing glasses, he
suggested that the Applicant be provided with glasses that have adjustable
positioning of the nasal bridge pads.
[34]
Pursuant to CSC’s National Essential Health
Service Framework dated July 23, 2015, surgical procedures solely for aesthetic
reasons, including external nasal deviation (acquired or congenital), are not
covered.
[35]
The Applicant continues to request this
treatment, and is willing to pay for it.
(2)
Dental implants
[36]
The Applicant requests the full replacement of
two chipped teeth with implants. This request was not included in the August
2013 grievance. It was subsequently included in the September 2015 final level
grievance.
[37]
A review of the record indicates that the
Applicant made requests to see a dentist about his chipped teeth on March 22,
2011, June 12, 2011, September 19, 2011 and September 26, 2011, while at the
Special Handling Unit of the Regional Reception Centre in Saint-Anne-des
Plaines, Quebec. He also appears to have requested on October 2, 2013, a
meeting with the Chief of Health Care Services at Atlantic Institution to
discuss several issues, including consulting the dentist.
[38]
According to the Applicant’s parole officer, the
Applicant did not request to see a dentist since his transfer to Millhaven
Institution (Affidavit dated October 5, 2015, para 4). His request was only
submitted after the commencement of the application for judicial review. On
July 10, 2014, the Applicant made an inquiry as to the cost of replacing two
teeth with implants. He was advised on July 21, 2014, that the cost would be
anywhere between $3000 to $6000, that the procedure could not be done at any
institution, and that it would have to be completed after the Applicant is
released.
[39]
On August 24, 2015, the institution dentist, Dr.
Erwin, advised the Applicant that dental implants, dental implant related
procedures and orthodontics do not fall under the National Essential Health
Services Framework. All costs associated with consultations and treatment,
including security escort costs and any overtime are to be borne by the inmate.
He recommended that the Applicant’s first consultation appointment be made with
Dr. Nguyen, as she would coordinate the implant procedure. The Applicant was
further advised that should he wish to proceed, Dr. Erwin would need to prepare
the necessary consultation report and contact Dr. Nguyen’s office to get an
estimate for the consultation. Upon receipt, the Applicant would be notified of
such costs and he could then complete and submit a form to healthcare to cover
the costs.
[40]
On October 26, 2015, a referral for consultation
and report was made by Dr. Erwin to Dr. Nguyen requesting an appointment for
initial assessment and asking that prior to booking the appointment, the cost
of the appointment, including any radiographs, be provided. A note to the
Applicant’s dental record on October 26, 2015, indicates that the procedure is
not medically necessary.
[41]
Despite his request for implants, the Applicant
has already been fitted with a dental bridge.
[42]
Under the terms of CSC’s National Essential
Health Service Framework dated July 23, 2015, dental implants are not covered.
[43]
The Applicant is willing to pay for the
requested dental implants, although he expects to be compensated because, in
his view, the injuries were caused by CSC staff.
(3)
Finger surgery
[44]
According to the Applicant, his left hand was
injured during the January 27, 2011 use of force incident. He requests surgery
to repair the tendons in his left hand fifth finger. This issue was included in
the first and final level grievances. I note upon review of the record before
the Court that August 9, 2010, the Applicant made a request for healthcare for
a “BROKEN left pinkie finger @ joint”.
[45]
Notwithstanding how and when the injury
occurred, the Applicant has had several x-rays taken of his left hand.
According to the record, x-rays of the Applicant’s left hand were interpreted
January 27, 2011, May 9, 2011 and April 17, 2012, and none of them revealed a
fracture. An x-ray of the Applicant’s left hand was also requested on July 21,
2013; the results however do not form part of the record.
[46]
Nevertheless, on September 11, 2015, the
Applicant again received a referral for his left hand. On September 14, 2015,
CSC staff at Millhaven Institution deferred the referral as the injury was not
considered urgent or life threatening and could be followed up at the Applicant’s
receiving institution.
(4)
Eye glasses
[47]
The Applicant has requested a new pair of
glasses that properly fit his nose. This issue was only included in his final
level grievance. The Applicant is willing to pay for a new pair, again under
the expectation that he will be compensated at a later date.
[48]
The CSC maintains that the Applicant must wear
glasses purchased through CSC contractors. On July 16, 2014, the Applicant was
fitted with “CORCAN” glasses by Dr. Kogan, an optometrist. The Applicant
requested glasses that better fit his face, but he was informed that he must
reduce his personal effects in order to purchase another pair, as the glasses
would exceed his $1500 personal effects limit.
[49]
As stated earlier, the specialist who was
consulted with respect to the value of performing rhinoplasty surgery indicated
that the Applicant should be provided with glasses that have adjustable
positioning of the nasal bridge pads to address his difficulty in wearing
glasses. On October 28, 2015, the Applicant was listed with Dr. Kogan to obtain
glasses that better fit his nose. CSC has also permitted the Applicant to pay
for any further upgrades in accordance with CSC guidelines.
[50]
While the Applicant has made a compelling
argument that the health treatment and services he has requested over the years
have not been forthcoming because he has been transferred to four different
institutions since the January 27, 2011 incident and thus finds himself at the
end of waitlists, resulting in further delay and inconvenience, the Respondents
have also demonstrated that several of the Applicant’s requests have been
accommodated in the last year in one form or another.
[51]
The Court is faced with the difficult decision
of determining whether the final grievance process should run its course,
knowing that the Applicant is facing an imminent transfer out of the province.
Had the Applicant initiated a grievance challenging his transfer to Manitoba,
he might have succeeded in either preventing or delaying his transfer long
enough to be able to access further treatment.
[52]
The evidentiary record is also lacking with
respect to the “essential” nature of the assessments and treatments requested
by the Applicant. While section 86 of the CCRA provides that every inmate shall
be provided with essential healthcare that shall conform to professionally
accepted standards, the determination about which service is required for an
inmate must rely on the judgment of the healthcare professionals. While the
Applicant may not agree with the diagnoses provided by the professionals he has
seen to date, this Court has not been provided with any evidence to dismiss
their evaluations or recommended treatment. The Court has also not been
provided with any evidence regarding professionally accepted standards in the
general community or any evidence that the Applicant will suffer harm, let
alone irreparable harm, if he is required to wait for further consultations.
[53]
The Applicant’s parole officer has indicated
that when the Applicant is transferred from Millhaven Institution to Stony
Mountain Institution, Millhaven Institution will first send a “Healthcare
Transfer Summary” to the receiving institution in respect of the Applicant. The
purpose of this summary is to provide the receiving institution with advance
notice of an inmate’s health concerns. If the Applicant is successful on any of
the matters he is grieving, I expect that the decision will be communicated to
the receiving institution, which in turn will be required to act upon the
matters identified.
[54]
When the final level grievance decision is
issued, the Applicant will be in a position to assess whether there are any
outstanding issues with which he is in disagreement. If he chooses to pursue
the matter, his application for judicial review will likely be more focussed
both factually and legally, and the Court will then be in a better position to
adjudicate whether he has been denied access to essential health services and
whether his rights have been violated under the Charter.
[55]
Given my finding that the application for
judicial review is premature due to a failure to exhaust alternative remedies,
it is not necessary for me to decide whether the application for judicial review
is moot or whether the CSC reasonably addressed the Applicant’s requests for
treatment and health services.
[56]
In addition, having dismissed and disposed of
the application for judicial review, it is not necessary for me to rule on the
Applicant’s motion for an interlocutory injunction.
IV.
Costs
[57]
Both the Applicant and the Respondents seek
costs. Considering that the Applicant’s septoplasty surgery and subsequent
referrals have all been conducted following the Applicant initiating his
application for judicial review, and considering the lack of clarity
surrounding the communication of the first level grievance decision, I have
decided, in the exercise of my discretion, that there shall be no costs.
THIS COURT’S
JUDGMENT is that the
application for judicial review is dismissed and each party will bear their own
costs.
"Sylvie E. Roussel"
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