Date: 20081001
Docket: A-76-08
Citation: 2008 FCA 290
CORAM: DÉCARY J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
WILLIAM
A. JOHNSON
Appellant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
Heard at by
teleconference (Toronto and Warkworth Institution, Ontario) on September
29, 2008.
Judgment delivered at Toronto,
Ontario, on October
1, 2008.
REASONS FOR JUDGMENT BY: SHARLOW
J.A.
CONCURRED
IN BY: DÉCARY
J.A.
SEXTON
J.A.
Date: 20081001
Docket: A-76-08
Citation: 2008 FCA 290
CORAM: DÉCARY
J.A.
SEXTON
J.A.
SHARLOW
J.A.
BETWEEN:
WILLIAM A. JOHNSON
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
Mr.
Johnson is appealing a judgment of Justice Hughes (2008 FC 119). That judgment
dismissed an appeal from an order of Prothonotary Aalto which, among other
things, refused Mr. Johnson’s motion for directions for the commencement of contempt
proceedings against certain officials of Warkworth Institution, where Mr.
Johnson is incarcerated.
[2]
In his
motion, Mr. Johnson alleges that the prison officials delayed repairs to his
computer, thus impeding his ability to pursue four applications for judicial
review that he has filed in the Federal Court. In support of his motion, Mr.
Johnson argued that, because he has a legal right to have access to a computer
to pursue his litigation, the failure on the part of the prison officials to
ensure that his computer is repaired on a timely basis puts them in contempt of
court.
[3]
Prothonotary
Aalto denied Mr. Johnson’s motion because he found that Mr. Johnson had not in
fact been deprived of the means to continue his litigation. Justice Hughes
refused to intervene because he found no error on the part of Prothonotary
Aalto warranting his intervention.
[4]
Mr.
Johnson raises a number of grounds of appeal. I will address each of them in
the order in which they appear in his memorandum of fact and law.
[5]
First, Mr.
Johnson alleges bias or a reasonable apprehension of bias on the part of
Justice Hughes. There is no basis for that allegation.
[6]
Second,
Mr. Johnson argues that Justice Hughes misconstrued the facts by referring to
his applications as “actions”. There is no merit to this submission. The word
“actions” is used in its most general sense, as synonymous with “proceedings”.
[7]
Third, Mr.
Johnson argues that Justice Hughes misinterpreted Rule 466 and in his approach
to the appeal of Prothonotary Aalto’s order. There is no such error. In the
circumstances of this case, contempt of court cannot be established in the
absence of evidence of conduct on the part of the prison officials that fits
within Rule 466 of the Federal Courts Rules. As a practical matter that
would require, at least, evidence of conduct that is in breach of an order of
the Federal Court, or that would impair the orderly administration of justice.
The record presented by Mr. Johnson falls considerably short of what would be
required to justify contempt proceedings. However, even if such evidence had
been presented, the order sought by Mr. Johnson was a discretionary one. In
other words, it was within the discretion of Prothonotary Aalto to refuse to permit
contempt proceedings to be commenced. On the appeal, Justice Hughes was obliged
to consider whether the order of Prothonotary Aalto was based on an error of
law, but he was not entitled to exercise the discretion anew. That is what Justice
Hughes explains in paragraph 5 of his reasons.
[8]
Fourth,
Mr. Johnson alleges that Justice Hughes erred in awarding costs in each of the
four proceedings when he made an identical order in each. Mr. Johnson cannot
complain of being assessed costs in all four proceedings in the Federal Court,
when he brought motions in four separate proceedings.
[9]
Fifth, Mr.
Johnson alleges that Justice Hughes erred in awarding costs against him rather
than to him. There is no error in requiring a moving party to pay costs when a
motion is dismissed.
[10]
In his
oral submissions, Mr. Johnson emphasized his belief that Justice Hughes and
Prothonotary Aalto did not understand the factual basis of his motion, which
was that the prison officials had unreasonably delayed approving the repair of
his computer in a deliberate attempt to impede his ability to pursue his
applications for judicial review on a timely basis, forcing him to borrow
someone else’s computer in order to file motions to extend the time for taking
certain steps. He also explained that at least one of his applications involves
a complaint about the same individual who, according to Mr. Johnson, failed to
approve his computer repairs. I appreciate that Mr. Johnson believes that his
motion should have been granted, but there is no basis for concluding that the
facts were not understood.
[11]
I
conclude, in summary, that the record before this Court, read in light of Mr.
Johnson’s written and oral submissions, discloses no error on the part of Justice
Hughes that warrants the intervention of this Court.
[12]
This
appeal will be dismissed. As the respondent did not appear, no costs will be
awarded.
“K.
Sharlow”
“I
agree
Robert
Décary J.A.”
“I
agree
J. Edgar Sexton J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-76-08
(APPEAL FROM
AN ORDER OF THE HONOURABLE MR. JUSTICE HUGHES DATED JANUARY 29, 2008, DOCKET
NO. T-1317-07.)
STYLE OF CAUSE: WILLIAM A. JOHNSON v. THE ATTORNEY
GENERAL OF CANADA
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: SEPTEMBER 29, 2008
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: DÉCARY J.A.
SEXTON
J.A.
DATED: OCTOBER 1, 2008
APPEARANCES:
|
WILLIAM A. JOHNSON
|
FOR THE
APPELLANT (On his own behalf)
|
|
No
appearance
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
William A. Johnson
Warkworth Institution
Campbellford, Ontario
|
FOR THE
APPELLANT (On his own behalf)
|
|
No solicitor
on record
|
FOR THE RESPONDENT
|
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