Date: 20040123
Docket: A-389-02
(T-2173-01)
Citation: 2004 FCA 31
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
ARTHUR ROSS
Appellant
and
THE WARDEN OF BOWDEN INSTITUTION #3
THE COMMISSIONER OF CORRECTIONS CANADA
Respondents
Heard at Saskatoon, Saskatchewan on Monday, January 12, 2004
JUDGMENT delivered at Ottawa, Ontario on Friday, January 23, 2004
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A
Date: 20040123
Docket: A-389-02
(T-2173-01)
Citation: 2004 FCA 31
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
ARTHUR ROSS
Appellant
-and-
THE WARDEN OF BOWDEN INSTITUTION #3
THE COMMISSIONER OF CORRECTIONS CANADA
Respondents
REASONS FOR JUDGMENT
STRAYER J.A.
[1] The appellant is an inmate of the federal penitentiary system.
[2] He has objected to the fact that in order for him to receive calls from, or to call, his father by telephone he must give his father's address to the institution where he is held. He objects to this as an invasion of his father's privacy and insists that if the authorities want such personal information they should seek it directly from its owner, i.e. his father which he says is required by section 5 of the Privacy Act. He confirmed to the Court, however, that he now has telephone privileges in respect of his father.
[3] He first grieved in 1998 against a decision at the Edmonton Institution requiring this information. Later in October, 2000 when his telephone privileges were cut off at Bowden Institution he grieved to the Warden. This failed so he grieved to the Commissioner of Corrections Canada, again unsuccessfully. He then complained to the Privacy Commissioner in October, 2000. On November 16, 2001 the Privacy Commissioner rejected his complaint, saying that the Corrections Canada policy to require such information from the inmates did not violate section 5 of the Privacy Act.
[4] On December 10, 2001 the appellant commenced proceeding T-2173-01 in the Trial Division against the Warden of Bowden Institution ("the Warden"), the Commissioner of Corrections Canada ("Corrections Canada") and the Privacy Commissioner seeking judicial review of their decisions. By direction of a prothonotary he filed on May 15, 2002 a further application in file T-2173-01 naming only the Privacy Commissioner as respondent.
[5] After numerous motions and cross-motions to strike out, Pinard J. on May 22, 2002 issued a number of orders which in effect struck out the Warden and Corrections Canada in one order, struck out the Privacy Commissioner in another order, and also struck out the appellant's applications for judicial review including the one commenced on May 15, 2002.
[6] On June 17, 2002 the appellant filed an appeal in this Court against the order of Pinard J. that
the application for Judicial Review herein against the Warden of Bowden #3 and the Commissioner of Corrections Canada is struck out, with costs.
The Court understood this to be the issue involved in this appeal.
[7] It has emerged, and it is not disputed, that the decision of which the appellant actually seeks judicial review is that of the Privacy Commissioner. To this end after filing on June 17, 2002 an appeal against the order as quoted by him above, he later sought to file an appeal from one of the decisions of Pinard J. of May 22, 2002 which struck the application against the Privacy Commissioner. That appeal was filed beyond the 30 day period for filing appeals. He sought an extension of time and that was denied on September 30, 2002.
[8] I am concerned that a legal issue, whether serious or not, might be denied judicial consideration simply because of procedural problems, and am alert to the fact that this appellant is self-represented. However, I am unable to say that this matter can and should be advanced any further.
[9] The very appeal which was described in the appellant's notice of appeal, and put before us, involves judicial review which in fact he no longer seeks (in respect of the Warden and Corrections Canada). The appeal which he does want heard (vis-à-vis the Privacy Commissioner) has already failed due to his delay in filing the notice of appeal. He has already tried unsuccessfully to obtain an extension of time for that purpose, and such an extension was refused.
[10] It may also be noted that the particular problem which motivated these proceedings is now moot as the appellant's telephone privileges with his father have been restored.
[11] Finally, it may be noted that the appellant was on August 8, 2002 found to be a vexatious litigant and prohibited from bringing any new appeals in this proceeding without special leave.
[12] Having regard to all these factors, I believe this Court has no option but to dismiss the present appeal. There is no other initiative open to us which would not affect the rights of the Privacy Commissioner who is not a party here.
[13] The appeal is therefore dismissed with costs.
(s) "B.L. Strayer"
J.A.
I agree
"Marshall Rothstein" J.A.
I agree
"K. Sharlow" J.A..
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-389-02
STYLE OF CAUSE: Arthur Ross v. The Warden of Bowden Institution #3, The Commissioner of Corrections Canada
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: January 12, 2004
REASONS FOR JUDGMENT: STRAYER J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
DATED: January 23, 2004
APPEARANCES:
Mr. Arthur Ross
Prince Albert, Saskatchewan ON HIS OWN BEHALF
Chris Bernier
Saskatoon, Saskatchewan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Arthur Ross
Prince Albert, Saskatchewan ON HIS OWN BEHALF
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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