Docket: T-236-16
Citation:
2017 FC 370
Ottawa, Ontario, April 18, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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WILLIAM A.
JOHNSON
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Applicant
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and
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THE
COMMISSIONER OF CORRECTIONS, AS REPRESENTED BY LARRY MOTIUK, ASSISTANT COMMISSIONER,
POLICY
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Mr. William Johnson, who was
self-represented on this application, is a federally incarcerated inmate at the
Warkworth Institution [WI]. He is residing in Unit 5 (also referred to as the
Eighty Man Unit [EMU]).
[2]
In December 2013, Mr. Johnson submitted a
complaint relating to tobacco use in Unit 5. Specifically Mr. Johnson
complained that despite the smoke-free status of WI, inmates found smoking have
not been disciplined. He argued that this situation is particularly prejudicial
in his case as he suffers from allergies. He submits that exposure to second-hand
smoke is negatively impacting his health and safety.
[3]
Mr. Johnson pursued the complaint through the
Correctional Service of Canada [CSC] Offender Complaint
and Grievance Process [the 2013 Grievance]. In August
2015 the Assistant Commissioner, Policy [Commissioner] of the CSC rejected the 2013
Grievance concluding that the issues raised had been addressed in a prior
grievance at the National level [the 2010 Grievance]. The 2010 Grievance is
before this Court in file T-149-13.
[4]
Mr. Johnson brings the application for judicial
review seeking a number of declarations and is asking that the decision be set
aside and returned for redetermination by the Commissioner. In effect he argues
that he had a legitimate expectation that the issues raised in the 2013
Grievance would be addressed. He submits that the Commissioner erred in
concluding the issues had already been addressed in the 2010 Grievance. The
respondent submits that the decision was reasonable and further submits that this
judicial review application is an abuse of process.
[5]
Having reviewed the record, including the
written submissions of the parties and having heard the parties’ oral arguments
by video-conference I am not persuaded that the Commissioner erred or that the
determination reached was unreasonable. My reasons for dismissing this
application follow.
II.
Background
A.
General
[6]
Mr. Johnson alleges that he suffers from a
medical condition and that smoke adversely affects his breathing. He states
that although federal inmates were permitted to smoke in federal correctional
facilities prior to 2009, he resided in a designated smoke-free unit, Unit 5,
at WI. He submits that the no smoking rules were strictly enforced within Unit
5 prior to 2009.
[7]
Mr. Johnson states that in 2009, CSC introduced
a smoking ban in all federal correctional facilities [the Smoking Ban]. As all
institutions became fully smoke-free upon implementation of the Smoking Ban, Unit
5 was no longer treated as unique. Mr. Johnson alleges that the result of the Smoking
Ban has been the development of a “black market”
for use of tobacco products at the WI including in Unit 5, contrary to CSC
policy, use that has adversely impacted his health.
B.
The 2010 Grievance and related proceeding,
T-149-13
[8]
In 2010, Mr. Johnson initiated a complaint/grievance
alleging smoke from Aboriginal ceremonies in or around Unit 5 was impacting upon
his health. The complaint was denied at the initial level and continued through
the grievance process. At the second level in the complaint/grievance process Mr.
Johnson alleged CSC policies allowing Aboriginal ceremonies were discriminatory.
He also alleged that CSC workers were not enforcing the smoking ban in Unit 5,
but instead were protecting inmate smokers.
[9]
In advancing the 2010 Grievance to the third
level Mr. Johnson referred to his medical condition, argued that the Smoking Ban
had increased second-hand smoke in Unit 5 and clarified that his primary issue
related to second-hand smoke – his allegation that policies allowing Aboriginal
ceremonies were discriminatory, were secondary in his complaint. He maintained
his allegations that CSC staff members were protecting inmate smokers. The
grievance was upheld as it related to procedural defects in the complaint
process that Mr. Johnson had identified but was denied in respect of the issues
relating to second-hand smoke from Aboriginal ceremonies, discrimination, and
the alleged improper conduct of CSC staff.
[10]
In January, 2013, Mr. Johnson sought judicial
review of the negative decision (T-149-13). In pursuing the application Mr.
Johnson filed new information and exhibits. By way of Order dated July 9, 2015,
the Case Management Judge converted the application to an action to “…ensure the real issues in dispute are before the Court and
to avoid a multiplicity of proceedings”. Mr. Johnson subsequently served
and filed a statement of claim and the action in T-149-13 is proceeding.
C.
The 2013 Grievance
[11]
In December 2013 Mr. Johnson initiated the 2013
Grievance that underlies this application for judicial review. In pursuing the 2013
Grievance to the third level he identified the following issues: (1) the Smoking
Ban was ill conceived in that it resulted in less protection for inmates with
medical conditions exacerbated by second-hand smoke; (2) the Smoking Ban
failed to provide for real security measures similar to those established to
detect drugs and there has been a refusal to provide for the necessary measures;
and (3) he relied on the Canadian Charter of Rights and Freedoms
and paragraph 3(a) of the Corrections and Conditional Release Act, SC
1992, c 20, to argue that the CSC must provide a safe living environment.
[12]
In satisfaction of the 2013 Grievance, Mr. Johnson
requested that: (1) Unit 5 rules be restored requiring signed agreements with
inmates, which would lead to removal to a different living unit if found
smoking or creating second-hand smoke; (2) that the Commissioner’s Directives
be modified to provide for tobacco detection devices; (3) that the
Commissioner’s Directives be modified to protect inmates with medical
conditions that would be exacerbated by second-hand smoke from Aboriginal
smudging ceremonies; and (4) that occupants of units housing inmates with
medical conditions exacerbated by second-hand smoke be subject to urinalysis
spot checks.
[13]
In responding to the 2013 Grievance, the
Commissioner noted the issues raised by Mr. Johnson and highlighted the matters
addressed in the 2010 Grievance. The Commissioner reproduced an extract from Annex
C, paragraph 5 of Guideline 081-1, Offender Complaint and Grievance Process,
[Guideline 081-1] which states:
A complaint/grievance may be rejected when:
[…]
5. The issue is being, or has been,
addressed in a separate complaint/grievance. If,
during the analysis of a complaint/grievance at any given level, it is
established that the issue is being, or has been, addressed in a separate
complaint/grievance, the complaint/grievance may be rejected. However, if a submission
is going to be rejected on this basis, it must be clear that the issue was the
same and was addressed in the separate complaint/grievance. The response should
also clearly outline the reason(s) for rejecting the complaint/grievance as
well as the reference number(s) of the submission that already addressed the
issue.
[14]
Relying on Guideline 081-1, the Commissioner then
concluded that Mr. Johnson’s concerns regarding second hand-smoke had been previously
addressed in the 2010 Grievance. The 2013 Grievance was rejected.
III.
Preliminary Issues
[15]
At the outset of the hearing Mr. Johnson raised
two preliminary issues: (1) the respondent’s record was filed outside the time
period provided for in the Federal Courts Rules, SOR/98-106 and he was
unaware of any Order of the Court authorizing the late filing; and (2) the
respondent’s record contained documents that were not before the Commissioner,
and therefore were improperly before the Court on judicial review.
[16]
A review of the Court’s file in this application
confirms that Prothonotary Kevin Alto authorized, by way of oral direction, the
service and filing of the respondent’s record on or before June 23, 2016. The respondent’s
record was served and filed in compliance with Prothonotary Alto’s direction.
[17]
Turning to Mr. Johnson’s objection to documentation
in the respondent’s record, he flags the following documentation as not having
been before the Commissioner: (1) the Certified Tribunal Record [CTR] relating
to the 2011 Grievance; (2) Mr. Johnson’s affidavit and exhibits filed in T-149-13;
(3) the order of the Case Management Judge converting the application to an
action in T-149-13; (4) Mr. Johnson’s Statement of Claim in T-149-13; (5) correspondence
from the respondent dated March 16, 2016 seeking to have this matter stayed on
the basis that it is duplicative of the proceeding in T-149-13; and (6) the
Court’s online docket index in T-149-13.
[18]
The respondent submits that this is background
information taken from the records of the Court and the Court has the authority
to take judicial notice of and consider its own records to avoid an abuse of
its process. In this respect the respondent submits that the Court could, on
its motion, access Court file T-149-13 and the inclusion and consideration of
the material is not inappropriate.
[19]
A review of the CTR in this matter reveals that
portions of the 2010 Grievance, including the final level decision rendered in response
to the 2010 Grievance were before the Commissioner in relation to the 2013
Grievance. The CTR also reflects that the analysts involved in the preparation
and review of the 2013 Grievance for consideration by the Commissioner were
aware of and had sought a copy of Mr. Johnson’s application for judicial review
of the 2010 Grievance decision.
[20]
It is well-established in the jurisprudence that,
subject to specific exceptions none of which apply here, a Court reviewing a
decision is to do so based on the record that was before the decision-maker. In
considering the merits of this judicial review application I have therefore not
considered any material that does not form part of the CTR.
[21]
However a review of the decision is not the only
issue raised on this application. The respondent raised a preliminary
objection, arguing that Mr. Johnson’s application is an abuse of process and it
can properly rely on the documentation and information contained in the Court’s
file in the T-149-13 proceeding to demonstrate this. I agree, it is well-established
that the Court possesses the inherent discretion to prevent misuse of its procedure,
and can stop proceedings that have become unfair or oppressive (Behn v
Moulton Contracting Ltd, 2013 SCC 26 at paras 39-40; Coombs v Canada
(Minister of National Revenue – MNR), 2015 FC 869 at para 28). The Court
will consider those portions of the respondent’s record that did not form part
of the record before the Commissioner for the limited purpose of considering submissions
relating to abuse of process and costs. The Court has not considered those
portions of the record for the purpose of addressing the merits of this
judicial review application.
[22]
In coming to this conclusion I note that Mr.
Johnson was aware that documentation filed in T-149-13 had been placed before
the Court. He has had the opportunity to address that evidence and has taken advantage
of that opportunity. He suffers no prejudice through its use for the limited purpose
set out above.
[23]
The respondent’s abuse of process argument is
addressed below.
IV.
Issues
[24]
The parties raise the following issues:
A.
Did the Commissioner reasonably conclude that
the issues raised in the 2013 Grievance had already been addressed in a
separate grievance?
B.
Does this judicial review application constitute
an abuse of process?
V.
Standard of Review
[25]
Mr. Johnson submits that his legitimate
expectations flowing from what is now section 2 of Commissioner’s Directive 081
- Offender Complaints and Grievances (2014-01-13), [Commissioner’s
Directive 081] have been violated. Section 2 of Commissioner’s
Directive 081 states:
2. Decision makers at all levels will ensure
that grievors are provided with complete, documented, comprehensible and timely
responses to all issues that are related to the subject of the initial
complaint or grievance.
[26]
Mr. Johnson submits that the Commissioner’s
failure to individually address each issue raised in his third level grievance
submissions engages an issue of procedural fairness to be reviewed against a standard
of correctness. I disagree.
[27]
The issue raised in this application relate to
the Commissioner’s interpretation of Annex C paragraph 5 of Guideline 081-1 and
the application of that Guideline to the facts as disclosed in Mr. Johnson’s
2013 Grievance. The Commissioner’s interpretation of the CSC Guidelines and the
determination of questions of mixed fact and law are decisions to which significant
deference is owed by a reviewing Court (Gallant v Canada (Attorney General),
2011 FC 537 at paras 14-15 citing Bonamy v Canada (Attorney General),
2010 FC 153; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47 – 49 [Dunsmuir]).
The decision will be reviewed against a standard of reasonableness.
VI.
Analysis
A.
Did the Commissioner reasonably conclude that
the issues raised in the 2013 Grievance had already been addressed in a
separate grievance?
[28]
Mr. Johnson relies on Section 2 of Commissioner’s
Directive 081 to argue that the Commissioner had an obligation to address each
of the issues raised in the 2013 Grievance and the failure to do so amounts to
a reviewable error warranting the intervention of this Court. He argued that
the core issues in the two grievances are distinct; the 2010 Grievance
addressed second-hand smoke from Aboriginal ceremonies whereas the 2013
Grievance addressed detection tools and enforcement. Having considered Mr.
Johnson’s argument, I am not persuaded.
[29]
In rendering the final level decision the
Commissioner summarized the issues raised in the 2013 Grievance. Mr. Johnson
has taken no issue with the accuracy or completeness of this summary. The
Commissioner then proceeded to summarize and rely upon the first level response
that Mr. Johnson received. That response confirmed the Smoking Ban in federal
correctional institutions, that the CSC policy provides tools to address breaches
of the policy and that the policy is enforced equally in the WI. The first
level response further noted the absence of evidence to substantiate the
allegation that CSC staff was ignoring or actively protecting those found violating
the policy.
[30]
The Commissioner’s decision then summarized the
issues addressed in the 2010 Grievance. This included second-hand smoke from
Aboriginal ceremonies and the substantive issues relating to Mr. Johnson’s
exposure to second-hand smoke. The decision then proceeded to address Mr.
Johnson’s complaint regarding the lack of enforcement and detection tools
stating “…[p]olicy provides tools and measures to
address any inmate who may be caught smoking. The [first level] complaint
response sufficiently addressed your concerns and you have not provided any
subsequent evidence to substantiate your allegations. Furthermore your concerns
regarding second hand smoke have previously been addressed at the National
level”.
[31]
The above statement indicates that the
Commissioner did more than simply conclude the issues raised had previously been
addressed at the National level. The Commissioner reached this conclusion only
after adopting the response provided at the first level and addressing what Mr.
Johnson argues is the unique aspect of the 2013 Grievance, detection tools and enforcement
mechanisms. While Mr. Johnson may disagree with the Commissioner’s conclusions
in this regard and may have preferred the Commissioner engage in a more
detailed or lengthy response, neither of these concerns render the
Commissioner’s decision unreasonable. There was no obligation on the
Commissioner to directly and expressly address each and every argument or
concern raised as Mr. Johnson has argued (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para
16).
[32]
The Commissioner then proceeded to conclude that
while Mr. Johnson in the 2013 Grievance had framed issues in a different manner
than the 2010 Grievance, the substantive issue remained - second hand smoke in
Unit Five at the WI. The Commissioner reasonably concluded that this issue had
been addressed in the 2010 Grievance and was now before this Court in T-149-13.
In light of the record, I am satisfied that it was reasonably open to the
Commissioner to reject the 2013 Grievance relying on Guideline 081-1. The
decision is justified, transparent and intelligible and falls within the range of possible, acceptable outcomes defensible in respect of the
facts and law (Dunsmuir at para 47).
B.
Does the application constitute an abuse of
process?
[33]
In light of my conclusion that the
Commissioner’s decision was reasonable, the abuse of process issue need not be
addressed. However, the respondent has sought “substantial
indemnity costs” on the application, arguing that Mr. Johnson is no
stranger to the Court and that he has an obligation to conduct his litigation
in an efficient manner that avoids the waste of judicial resources. In this
case the respondent submits the issues raised are duplicative of those currently
being litigated in T-149-13. In oral submissions the respondent indicated that costs
in the amount of $2,500.00 would be appropriate.
[34]
In support of its position the respondent
advised the Court that it raised its concerns with the duplicative nature of
this application in writing in the course of case management proceedings in
T-149-13 and further noted that the Case Management Judge converted the
application in T-149-13 to an action to, in part, avoid a multiplicity of
proceedings. Mr Johnson was not receptive to the respondent’s request that this
matter not proceed.
[35]
Mr. Johnson disputes the suggestion that the
application is an abuse of process submitting that he believes he was entitled
to a response to each of the issues raised, that the decision failed to
directly address the question of tobacco detection methods. He also advised
that Court that he is not currently working and lacks the financial resources
to pay a significant costs award.
[36]
Costs are inherently a matter falling within the
discretion of the Court. While I have found that the Commissioner reasonably
concluded that the issues raised in Mr. Johnson’s 2013 Grievance were addressed
in the 2010 Grievance, Mr. Johnson effectively advanced his arguments and I am
satisfied that he has pursued the application on the basis of a good faith
belief that the Commissioner erred in relation to the 2013 Grievance. I am also
mindful of Mr. Johnson’s financial circumstances and note his submissions to
the effect that he is currently unemployed and is not in a position to pay
costs in the amount the respondent seeks. In the circumstances, I am of the
view the costs in the amount of $250.00 would be appropriate.
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