Docket:
T-1730-12
Citation: 2013 FC 1209
Ottawa, Ontario, December 3,
2013
PRESENT: The Honourable Mr. Justice Scott
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BETWEEN:
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JOHN DEREK MILLS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
John Derek Mills (Mr. Mills) is asking this
Court to review the decision of the Senior Deputy Commissioner [SDC] of
Correctional Service Canada [CSC], taken on July 13, 2012, denying him in part
his third level grievance (number V30A00041936) (the Decision), pursuant to
section 18.1 of the Federal Courts Act, 1985, c F-7 [the FCA].
[2]
The Decision dismissed part of the Mills’
grievance relating to the timeliness of the response to his first level
grievance, because they were processed within the prescribed timeframes.
[3]
Mr. Mills’ grievance relating to alleged
discrimination was upheld because the Institution Head [IH] had not
substantiated his findings that Mr. Mills’ allegations, if proven, would not
constitute discrimination contrary to Commissioner’s Directive 081, Offender
Complaints and Grievances, October 31st, 2008 [CD 081] (which
has since been amended). The SDC decided that it would be more reasonable to
consider the allegations of discrimination rather than returning the matter to
IH because the initial grievance was submitted in 2010.
[4]
The SDC, after reviewing Mr. Mills’ allegations,
concluded that if proven they could constitute discrimination. The Aboriginal
Initiatives Directorate [AID] was consulted to ensure a proper treatment of Mr.
Mills’ allegations. However, it concluded that staff actions, language or
decisions were not made in a discriminatory manner, therefore the definition of
discrimination found in paragraph 12 of CD 081 had not been met and this part
of Mr. Mills’ grievance was denied. Finally, with regards to his claim that his
religious and cultural needs were not fully met, that portion of the grievance
was upheld.
[5]
The Decision also notes that although Mr. Mills
chose to grieve substantive issues related to his correctional plan and
aboriginal culture, both were denied, but he failed to submit this decision to
the next level of the grievance process for further review (see page 4 of the
Decision).
[6]
As to Mr. Mills’ grievance related to the
timeliness of the response to his second level grievance, the Decision
determined that it was not responded in the prescribed timeframe. This portion
of the grievance was upheld. However, it was determined that his grievance was
extended in accordance with policy, even though the timeline was not respected.
The policy was nevertheless adhered to as Mr. Mills was provided with extension
letters indicating the reasons for the delays. The Decision stated that no
further action was needed on that score.
[7]
Finally, on the issue of corrective action, the
Decision states that this response will serve as a reminder to the IH of the
Port-Cartier Institution to ensure that responses to grievances containing
allegations of discrimination must be dealt with in compliance with CD 081. It
also states that corrective action has been implemented to address second level
grievances within established timelines. The Decision does not address the fact
that Mr. Mills’ religious and cultural needs were not fully met.
[8]
For the reasons that follow,
this Court finds that the Decision is reasonable and that there was no breach
of procedural fairness; consequently, the application for judicial review is
dismissed.
II. Facts
[9]
Mr. Mills is an aboriginal federal prisoner who
is serving a life maximum sentence. He is currently incarcerated at a
Saskatchewan Institution. His grievances relate to allegations of
discrimination based on his aboriginal heritage while he was incarcerated at
the Port-Cartier Institution.
[10]
On March 1, 2010, Mr. Mills filed a first level
grievance with the Port-Cartier Institution in which he raised a number of
issues: i) he claimed to have been punished for submitting his last grievance; ii)
he alleged to have been submitted to racism; iii) he claimed that his correctional
plan had been changed; iv) that he had been prevented from participating in
aboriginal cultural events; and v) that his Charter right to freedom of
religion had been violated by officials at that institution.
[11]
This grievance was denied on March 19, 2010, on
the basis that it did not meet the definition of discrimination but was rather
related to Mr. Mills’ dissatisfaction with the services offered to aboriginal
inmates at Port-Cartier.
[12]
On March 26, 2010, Mr. Mills filed another
complaint raising concerns about threats to his Aboriginal religious cultural
practices because he was refused matches and sage which are used for praying.
That complaint was also denied.
[13]
On March 29, 2010, Mr. Mills was informed by his
Parole Officer that he would be transferred to a Saskatchewan Penitentiary. He
continued his grievances nonetheless because he wanted his holistic activities
and native programs reinserted into his correctional plan, as they had been
cancelled.
[14]
On April 4, 2010, Mr. Mills filed a second level
grievance claiming that his grievances had not been answered to his
satisfaction. He listed several incidents in which his aboriginal rights had
been ignored; and particularly that he had been deprived of a sweat lodge
ceremony for three years.
[15]
On June 20, 2010, Mr. Mills filed a complaint
about the response given to two issues related to his correctional plan
concerning his progress and motivation. That complaint was also denied.
[16]
On December 13, 2011, Mr. Mills’ second level
grievance was rejected, upholding the first level grievance decision that the
alleged circumstances failed to meet the definition of discrimination. The
Applicant had stated that Correctional Officers desecrated his medicine pouch
and that he had been deprived of a sweat lodge ceremony for three years. The
second level decision noted that Directive CD 566-7 calls for periodic security
examinations, Aboriginal medicine bundles and other spiritual articles are not
exempt. Mr. Mills refused to cooperate and allow the manipulation of his
medical pouch for visual inspection. Officers ignoring the contents of the
pouch manipulated it themselves to ensure that security of the institution was
not compromised. The second level decision determined that this event failed to
meet the definition of discrimination..
[17]
On January 3, 2012, Mr. Mills filed a third
level grievance to National Headquarters of CSC challenging the second level
decisions. It was received by CSC on January 23, 2012 and upheld in part on
July 13, 2012. A document entitled “Offender Grievance Executive Summary (Third
Level)” (Executive Summary) was used in the preparation of the Decision but was
not submitted to the Applicant for his comments before the Decision was
rendered by the SDC.
[18]
The same day that the Decision was rendered, a
letter was sent by CSC to the Director of the Port-Cartier Institution
confirming that Mr. Mills’ religious and cultural needs had not been fully met.
It also requested that the Port-Cartier Institution ensure that the religious
and cultural needs of aboriginal inmates be respected and taken into account
when making decisions.
[19]
On September 18, 2012, Mr. Mills filed his
Notice of Application for judicial review of the Decision.
[20]
Mr. Mills contends that procedural fairness was
breached because he was not provided with the Executive Summary before the
decision under review was rendered. He argues that his material, religious and
cultural needs were not met and that his grievances were improperly handled.
III. Legislation
[21]
The applicable provisions of the Corrections
and Conditional Release Act, SC 1992, c 20, [the CCRA], the Corrections
and Conditional Release Regulations, SOR/92-620 [the CCRR], the Federal
Courts Act, cited above, the Commissioner’s Directive 081, Offender
Complaints and Grievances, October 31st, 2008 [CD 081] are
reproduced in an appendix to this decision.
IV. Issues
[22]
Mr. Mills claims that his application raises the
following issues:
1) What is the standard of
review?
2) Did the SDC err in fact,
law and jurisdiction by improperly withholding from the Applicant, the
information of the analyst (Executive Summary) under paragraphs 4(f) and
4(g), subsections 27(1), 27(2) and 27(3), and section 90 of the CCRA?
3) Did the SDC err in fact,
law and jurisdiction by failing to observe a principle of natural justice of
procedural fairness by denying/failing to provide appropriate corrective
action, and or conducting an inadequate investigation into the complaint?
[23]
The Respondent alleges that this application
raises the following issues:
1) What are the applicable
standards of review?
2) Did the failure to
provide the Applicant with an opportunity to comment on the Offender Grievance
Executive Summary (Third Level) before the final Decision was rendered
constitute a breach of procedural fairness?
3) Is the Decision reasonable?
[24]
The Court finds that the
relevant issues in this case are firstly to determine whether the Decision on
the third level grievances was reasonable and secondly whether there was a
breach of procedural fairness.
V. Standard of review
[25]
It has been
determined by previous jurisprudence that findings of mixed fact and law made
in the course of the CSC offender grievance process and under the CCRA
are reviewable under the standard of reasonableness (see Yu v Canada
(Attorney General), 2012 FC 970 at para 15 [Yu], Crawshaw v
Canada (Attorney General), 2011 FC 133 at paras 24-27). Issues of
procedural fairness are dealt with under the correctness standard of review
(see Fischer v Canada (Attorney General), 2013 FC 861).
[26]
This Court must determine whether the Decision
under review “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]) and whether the Applicant was
afforded procedural fairness.
VI. Positions of the parties
A. Mr. Mills’ position
Reasonableness of the decision
[27]
Mr. Mills contends that the SDC erred by
improperly withholding the information of the analyst (the Executive Summary)
under paragraphs 4(f) and 4(g), subsections 27(1), 27(2) and 27(3),
and section 90 of the CCRA.
[28]
He submits that the SDC erred in concluding that
he had not been treated in an adverse and differential manner. He claims that
he has suffered four years of ongoing acts of discrimination stemming from the
failure to accommodate his spiritual needs, modifying his correctional plan to
remove the original aboriginal focus after he initiated the grievance process,
thereby having his religious privileges restricted. At the hearing he explained
that he had been deprived of his access to his aboriginal spiritual needs
primarily because he questioned the services provided to aboriginals.
[29]
Mr. Mills also alleges that CSC failed to
accommodate his aboriginal spirituality by omitting to explore all options to
accommodate these needs in a timely and effective manner and that CSC provided
no justification for failing to provide these Charter protected
accommodations for his religion.
[30]
Mr. Mills claims that he was discriminated
against and that discrimination is proven if it is one of the factors that
influenced a decision, it does not have to be the sole or even the primary
consideration. Mr. Mills relies on Canada (Human Rights Commission) v
Canada (Department of National Health and Welfare) (1998) 146 FTR 106 at
paras 11-12.
[31]
Mr. Mills also argues that CSC was obligated to
exhaust all possible options to accommodate his particular aboriginal cultural
and spiritual needs in order to avoid discrimination and cites British
Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of
Human Rights), [1999] 3 S.C.R. 868 at paras 20 and 32 [British Columbia].
[32]
Mr. Mills submits that the SDC erred in law by
failing to look into alternative spiritual accommodations that could have been
considered. He also omitted to explore whether alternative religious
accommodations existed for similarly situated prisoners. Mr. Mills claims that
the decision-maker simply accepted CSC’s failure without considering
pre-existing available accommodation options or providing corrective
accommodation action.
[33]
In sum, Mr. Mills contends that the Decision
does not fall “within a range of possible acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir, cited above, at para 47).
[34]
At the hearing, Mr. Mills insisted that the
aboriginal focus in his correctional plan had been modified primarily because
he complained about the lack of services provided to aboriginal inmates at Port-Cartier.
Procedural
fairness
[35]
Mr. Mills claims that by improperly withholding
the information of the analyst under paragraphs 4(f) and 4(g), subsections
27(1), 27(2) and 27(3), and section 90 of the CCRA, the SDC failed to
observe a principle of procedural fairness. The Applicant refers to Lewis v Canada (Correctional Service), 2011 FC 1233 at paras 18-24 [Lewis] in
support of his contention. The SDC provided the Institutional Head and others
with the opportunity to comment on the draft decision prior to the Decision
being taken but Mr. Mills was not afforded the same opportunity.
[36]
Mr. Mills also claims that the Respondent failed
to observe the principles of natural justice by conducting an inadequate
investigation into his grievances. He alleges that the Decision was neither
neutral nor thorough since it failed to consider crucial evidence (Panacci v
Canada (Attorney General), 2010 FC 114 at para 69 and Egan v Canada (Attorney General), 2008 FC 649 [Egan] at para 5).
[37]
Mr. Mills submits that the SDC failed to
interview witnesses who could have provided important evidence related to the
issues contained in his grievances thereby committing a reviewable error. Mr.
Mills refers to Busch v Canada (Attorney General), 2008 FC 1211 at para
15. He explained to the Court that the institution was allowing non aboriginals
to partake in activities demised for aboriginals, which lead to some incidents
that were not properly investigated.
[38]
It is equally argued by Mr. Mills that the
Deputy Commissioner did not address fundamental issues raised in response to
the Investigation.
[39]
Mr. Mills concludes that the Court should issue
an order in the nature of certiorari to quash the Decision to deny his
grievances with directions for re-consideration and an order to the
Saskatchewan Penitentiary to reinstate his original Correctional Plan.
B.
Respondent’s position
Reasonableness of the decision
[40]
The Respondent submits that the Decision is
reasonable as Mr. Mills relies on the Canadian Human Rights Commission [CHRC]
and Tribunal jurisprudence that are not applicable to the present case.
[41]
The Respondent claims that contrary to Mr.
Mills’ submissions, corrective measures were taken following the finding by the
AID and the SDC that his religious and cultural needs were not fully met at the
Port-Cartier Institution. In fact, a letter was sent to the Director of the Port-Cartier
Institution on this matter and the Respondent claims that this was a reasonable
corrective action.
[42]
As to Mr. Mills’ arguments on failure to respond
within prescribed timelines, the Respondent submits that the SDC’s conclusion
that the timelines were extended in accordance with policy is reasonable and in
accordance with CD 081.
[43]
The Respondent argues that there is no evidence
in the record that Mr. Mills’ former correctional plan at the Port-Cartier
Institution was modified. The Respondent argues that this plan was not before
the SDC when the Decision was rendered; therefore it is inadmissible in the
present proceedings. The Respondent further notes that correctional plans are
developed after an offender arrives in a penitentiary (section 15.1 of the CCRA
and subsection 102(1) of the CCRR), therefore his Port-Cartier
correctional plan is not necessarily identical to his new correctional plan
developed following his transfer to the Saskatchewan Institution.
[44]
Lastly, the Respondent argues that CSC is not
required to respond to each and every specific allegation raised by an offender
and refers to Ouellette v Canada (Attorney General), 2012 FC 801 at para
32 and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62.
Procedural
fairness
[45]
The Respondent submits that failing to provide Mr.
Mills with an opportunity to comment on the Executive Summary before the
Decision was rendered does not constitute a breach of procedural fairness. The
Respondent argues that Mr. Mills’ participatory rights in the grievance process
do not include a right to review or comment on the Executive Summary.
[46]
The Respondent submits that this Court should
decline to follow the Lewis case cited above, which is relied upon by Mr.
Mills in support of his contention that he should have received the Executive
Summary. The Respondent alleges that the Lewis case was wrongly decided
and the statements it contains concerning the Executive Summary are obiter
dicta.
[47]
The Respondent notes that the Court, in Lewis,
recognized that the respondents did not argue the extent of the common law duty
to act fairly nor did they discuss the statutory obligations under section 27
of the CCRA because the main question was the fact that the issues
raised by the Applicant at the third level had not been raised in the first and
second levels (see paras 25 to 26 of the Lewis decision).
[48]
The Respondent argues that the case law relied
upon in the Lewis case did not deal with the obligation to share the executive
summary with the inmate before the decision was rendered but rather
dealt with the obligation to provide the information that was the basis for the
decision being grieved after that decision was rendered.
[49]
The Respondent also submits that subsection
27(1) of the CCRA did not apply to the facts of Lewis, nor does
it apply in the present case, because subsection 27 (1) only applies to cases
in which inmates are entitled to make representations in relation to a decision
to be taken about them by the Service under Part I of the CCRA and the CCRR,
sections 2-98. The right to make representations entails a right to disclosure
of all relevant information prior to a decision being taken. However, the
Respondent argues that Part I of the CCRA and the CCRR do not
entitle offenders who have submitted a grievance to make representations before
a grievance decision is rendered, therefore they do not have a statutory or
regulatory right to respond to a proposed grievance decision, which includes an
executive summary.
[50]
The Respondent submits that subsection 27(2) of
the CCRA is the applicable section to the facts of this case. It entitles
an offender to receive reasons for a decision taken about the offender after
said decision is taken. Subsections 27(1) and (2) read as follows:
“27. (1) Where an offender is
entitled by this Part or the regulations to make representations in relation to
a decision to be taken by the Service about the offender, the person or body
that is to take the decision shall, subject to subsection (3), give the
offender, a reasonable period before the decision is to be taken, all the
information to be considered in the taking of the decision or a summary of that
information.
(2) Where an offender is entitled by
this Part or the regulations to be given reasons for a decision taken by the
Service about the offender, the person or body that takes the decision shall,
subject to subsection (3), give the offender, forthwith after the decision
is taken, all the information that was considered in the taking of the decision
or a summary of that information”. [Emphasis added]
[51]
The Respondent refers to section 80 of the CCRR
which creates the subsection.27 (2) obligation of providing the offender
with the reasons for a decision after it is taken in the grievance context.
[52]
The Respondent notes that the Court, in Lewis,
found that subsection 27 (2) did not apply, but claims this is wrong (see
para 26 of the Lewis decision). Consequently it is submitted that the
Court decline to follow Lewis even though the principles of judicial
comity call for following the prior conclusions of law of a Federal Court judge
unless the other judge is convinced that the departure from those conclusions
is necessary (the Respondent refers to Allergan Inc v Canada (Minister of
Health), 2012 FCA 308 at para 48 and Janssen Pharmaceutica Inc v Apotex
Inc, [1997] FCJ No 169 at para 2).
[53]
The Respondent argues that the test to be
applied in considering the rare exceptions where a decision of the Federal
Court should not be followed is when it can be shown that the decision failed
to consider legislation or binding authorities which would have produced a
different result (Kumarasamy v Canada (Minister of Citizenship and
Immigration), 2008 FC 597 at para 13, Stone v Canada (Attorney General),
2012 FC 81 at para 12 and Fernandez v Canada (Attorney General), 2011 FC
275 at paras 53-65).
[54]
The Respondent points out that the Lewis
case failed to consider subsection 27 (2) of the CCRA and section 80 of
the CCRR which are the applicable provisions on the facts of that case.
The Respondent adds that the content of the common law duty of procedural
fairness in the present context is minimal and, in any event, has been met by
the CSC (Yu, cited above, at paras 30-44), but if subsection 27 (2) of
the CCRA is held to define the applicable procedural rights of offenders
in the grievance context, this Court should not apply a common law rule in the
face of a clear statutory direction (Ocean Port Hotel Ltd v British Columbia
(General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para
22).
[55]
The Respondent suggested that in the event the
Court decides it is bound to follow Lewis, the comments on the
disclosure of the Executive Summary are obiter dicta and do not bind the
Court.
[56]
As to the other arguments on procedural fairness
raised by Mr. Mills (failing to conduct an investigation of the grievance which
met the conditions of neutrality and thoroughness), the Respondent submits that
they should also be rejected, because they are founded on cases concerning the
CHRC and the Canadian Human Rights Act, RCS 1985, c H-6 [the CHRA]
and are not applicable in the present context because the CHRA was
relied upon by Mr. Mills for the first time in this judicial review and thus
fails to exhaust the applicable administrative remedies as part of the
grievance process.
VII. Analysis
1) Is the Decision reasonable?
[57]
Mr. Mills claims that the Decision is
unreasonable for several reasons: 1) he was not provided with the Executive
Summary before it was rendered; 2) it concluded that he had not been
discriminated against; 3) it failed to accommodate his needs or to explore how
to accommodate them and provided no justification for failing to accommodate
them. It did not specify corrective accommodation action; it simply accepted the
CSC’s failure.
[58]
The Court disagrees with Mr. Mills’ contention
that the Decision is unreasonable because he was not provided with the
Executive Summary. After reviewing the Decision, as such, the Court notes that
the Executive Summary is just a more concise repetition of the recommendations
found in the Decision and this Court finds that the Respondent had no
obligation to communicate that document. This issue is further addressed in
greater detail in the following section of this judgment. The Court also notes
that the Executive Summary for the second level decision was not communicated
to Mr. Mills either and this was not grieved.
[59]
The conclusion that Mr. Mills was not
discriminated comes from an independent review by the AID. The AID determined
that the issues raised by Mr. Mills did not meet the definition of
discrimination found in paragraph 12 of CD 081, because CSC staff actions,
language or decisions were not made or taken in a discriminatory manner.
Rather, there was a lack of consideration of his Aboriginal Social History by
his case management team when decisions were taken concerning Mr. Mills. This
conclusion “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir, cited above,
at para 47).
[60]
Mr. Mills referred to the British Columbia
case, cited above, to support his contention that in order to avoid
discrimination the CSC must exhaust all possible options to accommodate.
However, the Court finds that the British Columbia case does not stand
for such a broad proposition. In that case discrimination had clearly been
established. The Court was analyzing whether it was justifiable and necessary
in such circumstances because the defendant had proven that the institution was
incapable of accommodating the person. The present case is different as
discrimination was not established on a prima facie basis.
[61]
As for Mr. Mills’ contention that the Decision
is unreasonable because it did not accommodate his needs or provide any
corrective accommodation action, the Court agrees that the Decision does not
refer to the actions that would be taken after having upheld the Applicant’s
grievance on that point. On that score it is lacking, however, a letter was
sent to the Port-Cartier Institution asking that it ensures that religious and
cultural needs of aboriginal inmates be respected and taken into account by the
Institution’s personnel. At that time, Mr. Mills was already transferred to the
Saskatchewan Penitentiary. The Decision needed to address the situation at
Port-Cartier in order to avoid recurring incidents with aboriginal inmates
detained in that institution. Although it should have listed the corrective
accommodation actions that would be taken (the letter that would be sent); this
does not have any practical implications on Mr. Mills, who is no longer
incarcerated there.
[62]
The Court notes that according to the
Respondent’s record, an Offender Complaint Response was communicated to Mr.
Mills in the summer of 2010 (the exact date is unreadable) which stated that
“as for the description of your aboriginal background, they are developed in
your assessment for transfer dated 2010-05-11” (see Respondent’s Record, volume
1 at page 67). Therefore, it appears that Mr. Mills’ aboriginal background was
considered for his transfer to the Saskatchewan Penitentiary.
[63]
The Court also notes that according to the
Respondent’s Record, a correctional officer from the Port-Cartier Institution
met with Mr. Mills in February 2010 and suggested that he involve himself with the native brotherhood, which he
refused to do. Mr. Mills justified his refusal by claiming that the brotherhood
is “a bunch of phonies who are running the circles” (see Respondent’s Record,
volume 1, page 57). At the hearing Mr. Mills explained that this comment was
based on his view that the Institution was allowing non aboriginals to
participate in aboriginal activities.
[64]
The Court also notes that Mr. Mills failed to bring
his complaints related to his correctional plan to the third level. As such
this issue is unfortunately beyond the Court’s purview.
[65]
For these reasons, the Court concludes that the
Decision is reasonable.
2) Is
there a breach of procedural fairness?
[66]
Mr. Mills claims that he was not accorded
procedural fairness for the following reasons: 1) he was not provided with the
Executive Summary before the Decision was rendered; 2) the investigation into
the grievance was not neutral and thorough and failed to look into crucial
evidence; 3) important witnesses were not interviewed; and 4) the Decision did
not address fundamental issues.
[67]
With regards to Mr. Mills’ claim that the CSC
failed to provide the Executive Summary before the Decision was rendered, the
Court agrees with the Respondent’s position that no such statutory obligation exists.
Subsection 27 (1) of the CCRA applies to situations considered in the
Act which provide for a right to make representations, such as section 34. When
a party can make representations it is only normal that it should receive all
the relevant information before the Decision is taken in order for that party
to prepare adequately. However, section 90 of the CCRA which applies in
the present case does not afford a right to make representations; therefore
subsection 27(1) does not apply. The Court finds that it is rather subsection
27 (2) which applies to the facts of the present case. Pursuant to subsection
80 (3) of the CCRR, Mr. Mills was entitled to receive reasons for the
Decision. This subsection reads as follows:
“80. (3) The head of
the region or the Commissioner, as the case may be, shall give the offender a
copy of the head of the region's or Commissioner's decision, including the
reasons for the decision, as soon as practicable after the offender
submits an appeal”. [Emphasis added]
[68]
The Applicant therefore only had the right to
receive reasons and the Executive Summary after he filed an appeal.
[69]
The main issue in the Lewis case cited
above was not the statutory obligations under s.27 of the CCRA. The
Court specifically stated that the Respondent’s had not argued the extent of
the common law duty to act fairly nor did he challenge the statutory
obligations under section 27. Therefore the opinion rendered with regards to
the obligation of disclosing an Executive Summary was not determinative of that
case and that aspect of the judgment is not binding on this Court. As was
stated in Falvo Enterprises Ltd v Price Waterhouse Ltd (1982), 34 OR 2nd
336 at para 31:
“An obiter dictum is an opinion
expressed by a judge in giving judgment which was unnecessary for the
determination of the case and on which such determination did not rest: see Landreville
v. Gouin (1884), 6 O.R. 455 at 464 (C.A.); Samson v. Minister of
National Revenue, [1943] Ex. C.R. 17, [1943] 2 D.L.R. 349. Dicta are not of
binding authority unless they can be shown to express a legal proposition which
is a necessary step to the judgment pronounced by the court in the case in
which the dicta are found …”
[70]
The Federal Court of
Appeal, in a more recent decision, considered the issue of obiter dicta
and whether courts are bound by them and affirmed:
“30. The real question is the extent
to which a later court should consider itself bound by earlier obiter. Some
obiter is purely gratuitous in the circumstances and is not grounded on the
full submissions of opposing parties. However, some obiter is prompted by
circumstances of strong practicality and justice, and is informed by full
submissions from adverse parties represented by counsel.
31. In my view, we should consider ourselves bound by the obiter
determination in Savard. That Court was prompted by strong practicality and
justice and had the benefit, a rare one in this context, of full submissions by
adverse parties who were represented . . . ” (see Gill v Canada (Attorney General), 2010 FCA 182).
[71]
The Lewis decision is clearly
distinguishable, as we have explained. Consequently this Court is not bound by
the opinion stated in that case.
[72]
As for Mr. Mills’, claim that the investigation
which was conducted into his grievance breached procedural fairness, the Court
disagrees, for reasons others than those argued by the Respondent. The
Respondent contends that the case-law presented by Mr. Mills concerning the
CHRC, is inapplicable. The Court disagrees. The Egan case, cited by Mr.
Mills, is relevant in the present proceedings. The Court in that case stated
that:
“ . . . It is clear
from the decision of the Federal Court of Appeal in Sketchley v. Canada
(Attorney General), [2006] 3 F.C.R. 392 that failure by administrative
decision makers to investigate obviously crucial evidence where an omission has
been made that cannot be compensated for by making further submissions, there
has been a lack of procedural fairness such that the decision must be set aside . . .
” (see Egan, cited above, at para 5).
[73]
The case considers the obligation to investigate
broadly. In a grievance process, the CSC must investigate an inmate’s complaint
and must therefore do so thoroughly, without omitting to consider obviously
crucial evidence because such an omission cannot be compensated by making
further submissions. However, in the present instance, Mr. Mills has failed to
convince this Court that crucial evidence was left out or that important
witnesses were not interviewed. At the hearing Mr. Mills provided explanations
which were not presented in the original complaints and which could have
potentially resulted in a different outcome. Unfortunately these facts were
never before the grievance officer; consequently the Decision cannot be
challenged on that count.
[74]
Lastly, with regards to Mr. Mills’ claim that
the Decision failed to consider a crucial aspect of his complaint relating to
the removal of spiritual aspects from his correctional plan, the Court agrees
with the Respondent’s argument that the correctional plan was not before the
SDC. As was mentioned above, the Decision states that the Applicant chose to
grieve the issues of his correctional plan and aboriginal culture in complaints
which were denied and he failed to submit these complaints to the next level of
the grievance process for further review (see page 4 of the Decision,
Respondent’s Record, volume 1, page 15). Therefore, this is not a reviewable
issue in this application (see section 30 of the CD 081).
[75]
Consequently the Court concludes that the
Applicant was accorded procedural fairness.
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