Docket: T-2299-14
Citation:
2017 FC 848
Ottawa, Ontario, September 21, 2017
PRESENT: Madam
Prothonotary Mireille Tabib
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BETWEEN:
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FRANK KIM
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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Defendant
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JUDGMENT AND REASONS
I.
Overview
[1]
Frank Kim is an inmate serving an indeterminate
sentence, having been declared a dangerous offender in October 2000.
[2]
He began serving his sentence at the medium
security Mountain Institution in British Colombia. In late September and early
October 2002, copies of two fax communications sent to Mr. Kim by lawyers were
placed on his Case Management file. Two months later, in late November 2002, a
copy of a written complaint addressed by Mr. Kim to the Office of the
Correctional Investigator was shared by Mr. Kim’s Institutional Parole Officer
(IPO) with other staff members and placed on his CM file. Mr. Kim discovered
these facts in May 2011, after requesting and receiving a complete copy of his
CM file.
[3]
Mr. Kim considers that these documents are
privileged and that they were improperly shared and placed on his CM file. In
2011, he filed a complaint with Correctional Service Canada (CSC), requesting
both that the CSC’s “practice” of copying privileged information be stopped and
monetary compensation. The CSC readily agreed that the documents were of a
“privileged nature” and should not have been placed on the CM file. Apologies
were made, but monetary compensation was refused. The CSC noted that there were
no indications of other similar occurrences.
[4]
Mr. Kim pursued the matter through three levels
of grievances. In the process, the CSC initiated and completed a Privacy Risk
Assessment. Mr. Kim also filed a complaint with the Office of the Privacy
Commissioner of Canada about the matter. The results were, throughout,
substantially the same.
[5]
In this action, Mr. Kim seeks an award of
general damages in the amount of $30,000 and punitive damages in the amount of
$20,000 as compensation for these events. For the reasons below, I find that no
liability attaches to the defendant as a result of the communication of the
documents at issue, and that in any event, Mr. Kim has not established that he
has suffered compensable damages from the conduct of CSC’s employees.
II.
Breach of Privacy
[6]
In the fall of 2002, Mr. Kim was appealing his
conviction before the British Columbia Court of Appeal, representing himself
without the assistance of counsel. The Attorney General was represented in the
appeal by Scott Bell, and the BC Court of Appeal had appointed Robert W. Gourlay
to act as amicus curiae.
[7]
Mr. Kim had some 25 to 30 boxes of materials
from his trial which he claimed he needed to keep in his cell in order to
prepare his appeal. Issues arose between Mr. Kim and the authorities at
Mountain Institution as to whether Mr. Kim should be allowed to store all this
material in his cell. The penitentiary authorities felt he could and should be
limited to the content of one metal foot locker; Mr. Kim felt he needed and had
the right to the content of two metal foot lockers. During that period, Mr. Kim
raised this issue and sought relief directly from the Court of Appeal, through
the grievance process and eventually, to the Office of the Correctional
Investigator, the Ombudsman for federal offenders. All of the correspondence at
issue in this action relates, at least in part, to this issue. The details of
the correspondence are as follows:
[8]
On September 24, 2002, Robert Gourlay sent an
8-page fax to Mr. Kim at Mountain, care of Monica Stolte, as IPO for Mr. Kim.
The message on the fax cover sheet indicates that it is being re-sent, contains
two cover sheets and is transmitting a memorandum which Mr. Gourlay intended to
submit to the BC Court of Appeal and a draft Consent Order to facilitate Mr.
Kim’s access to the court file. A copy of that fax was placed on Mr. Kim’s CM
file by Ms. Stolte.
[9]
On October 1, 2002, Scott Bell sent a 4-page fax
to Mr. Kim, also care of Ms. Stolte as IPO. The fax cover sheet indicates that
it is transmitting a summary of the various outstanding matters involving Mr.
Kim for a hearing before the BC Court of Appeal the following day. Page 1
of the summary bears a date stamp of the Court of Appeal Registry in Vancouver,
dated October 1, 2002. The fax cover sheet has the following hand-written note
from Ms. Stolte: “rec’d Oct 2/02 at 8:45 am – fax
machine was not printing properly on Oct 1/02 – M. Stolte”. Ms. Stolte
also placed a copy of the fax on Mr. Kim’s CM file.
[10]
When asked in 2011 why she had placed this
correspondence on file, Ms. Stolte had no recollection of having done so, but
surmised that she might have done so at Mr. Kim’s request because of on-going
issues. Her testimony at trial was to the same effect. The notations on the
cover pages of both faxes bear out the possibility that transmission
difficulties were experienced and that may explain why it was felt necessary to
retain a record. Mr. Kim himself had no specific recollection of these events
to offer at trial.
[11]
Mr. Kim’s complaints concerning the storage of
his legal materials were still unresolved in November 2002. Sometime in
November, he gave to Ms. Stolte a 2-page complaint dated November 21, 2002, to
be faxed to the Correctional Investigator requesting assistance in resolving
these issues. The last page of the document indicates:
“CC: Court of Appeal Registry – Fax # (604)
660-1951
Scott Bell, Crown counsel – Fax # (604)
660-1142”
[12]
In addition to faxing the complaint, Ms. Stolte
made copies of it and sent or delivered one to each of the Warden, Alex
Lubimiv, and to the Unit Manager responsible for the living unit in which Mr.
Kim was housed, John Romaine. In an accompanying handwritten note to the
Warden, Ms. Stolte acknowledged that she made the copies without Mr. Kim’s
knowledge, and that she would not normally do so “but
this issue is different, as the C.I. will no doubt want some explanations, so
we need to know what Kim said”.
[13]
The complaint, together with Ms. Stolte’s note,
was placed on Mr. Kim’s CM file, although why or by whom has not been
ascertained. Ms. Stolte, when asked in 2011, denied placing this document on file,
and she maintained that denial in her testimony at trial.
[14]
Ms. Stolte acknowledged having provided a copy
of the complaint to the Warden’s office and to the Unit Manager, but maintained
throughout that she did so only to facilitate the preparation of the response
she anticipated would be required. Indeed, while a copy of Mr. Kim’s complaint
does not appear to have been provided by the Correctional Investigator to the
Warden, a summary of the complaint was communicated to the Warden and to the
Unit Manager in the course of the investigation of the complaint, as was the
usual practice. I also note that Mr. Kim presented a second level grievance on
November 25, 2002 with respect to the same issue (V80A0004365, included as part
of Exhibit JR-3 to the affidavit of John Romaine), referring to his letter to
the Correctional Investigator and noting that “an
unsigned copy of the letter is attached at the end of this grievance”.
[15]
The documents remained in Mr. Kim’s CM file
until 2012. Mr. Kim submits that he only became aware of their presence on his
file in late May 2011, after receiving a copy of his file pursuant to an access
to information request. Their presence on file is not otherwise referred to,
remarked upon or noted in any documentation. There is no indication that the
documents were digitized or that the information they contain was reproduced or
referred to in the Offender Management System. The OMS is an electronic
database of reports and forms created and maintained in respect of inmates’
security classification and sentence management, such as correctional plans, criminal
profile reports, internal psychological reports, assessment for decisions and
other staff-generated reports.
[16]
It should be noted that Mr. Kim’s CM file is a
paper record, which, as of 2011, consisted of over 27 volumes containing
thousands of pages. CSC staff wishing to consult any of its volumes were
expected to record their name, along with the reason and date of consultation
on the volume’s cover page. Ms. Stolte’s testimony at trial was to the effect
that given the increasing availability of information in the OMS, especially
since the mid-2000’s, access to and reliance on an inmate’s physical CM file
was infrequent. The evidence shows that in the period between October 2002 and
June 2011, excluding those processing Access to Information or Privacy Act
requests, fewer than six individuals accessed the then existing volumes of Mr.
Kim’s CM file and could have come across the communications.
[17]
On the other hand, all three of the documents
were otherwise made public: the document sent to Mr. Kim by Scott Bell appears
to have come from the BC Court of Appeal Registry, and Mr. Kim’s complaint to
the Correctional Investigator was intended to be copied to the BC Court of
Appeal Registry. Mr. Kim attached an unsigned copy of it to an internal
grievance and later filed it as an exhibit in Federal Court file T-442-03. The
correspondence from Mr. Gourlay was filed by Mr. Kim as an exhibit in two
Federal Court applications, T-971-02 and T-442-03.
[18]
Still, when Mr. Kim became aware that the
communications had been placed on his CM file and that his complaint to the Correctional
Investigator had been copied by Ms. Stolte to the Warden and the Unit Manager,
Mr. Kim filed a grievance, considering that his privacy rights had been
breached.
[19]
In order to appreciate the genesis of Mr. Kim’s
complaint and CSC’s prompt acknowledgement of its validity, it helps to
understand CSC’s practices and policies regarding inmate correspondence.
Policies regarding correspondence are set out in Commissioner’s Directive No.
085 “Correspondence and Telephone Communications”. The Directive generally
provides that letters to and from inmates are to be opened and inspected but
may not be read by staff, except where safety and security concerns arise. The
Directive provides additional strictures for correspondence designated as
“privileged correspondence”. This correspondence is generally to be delivered
to inmates unopened, unless, in addition to the existence of security concerns,
the institutional authorities have reasonable grounds to believe that the
communication is not in fact privileged. Further, paragraph 12 of the Directive
provides that “The person intercepting the privileged
correspondence should treat the information contained therein as confidential”.
The definition of what is “privileged correspondence” at paragraph 11 of the
Directive is expansive and does not follow the contours of legal privilege. It
includes correspondence between an inmate and the person listed in Annex “A” of
the Directive. This Annex includes legal counsel, but also judges and
registrars of courts, various government officials, the commissioners of
various government agencies, and ombudspersons, including the Correctional
Investigator.
[20]
The correspondence at issue in this action, by
virtue of being sent by legal counsel (Mr. Gourlay and Mr. Bell) and to
the Correctional Investigator, would therefore automatically have fallen under
the definition of “privileged correspondence” and, had it been sent or received
in sealed envelopes, treated as presumptively privileged.
[21]
The correspondence here was sent and received by
fax, which is not a mode of correspondence expressly covered by the Directive.
Inmates do not have direct access to fax machines, and must rely on their IPO
to send and receive faxes. Faxes are thus inherently less protected than sealed
envelopes, as they must be open to be sent and received by IPOs and must be
read, at a minimum, to ascertain the person to whom they are to be sent.
Nevertheless, Ms. Stolte readily acknowledged at trial that fax
correspondence of inmates should be treated, as far as practicable, in
accordance with the Directive. It appears that this understanding was
prevalent, though not unanimously shared, throughout CSC. Mary Danel, who was
Deputy Warden at Mountain at the time, deposed that she may not have considered
the correspondence to the Correctional Investigator to be confidential, in part
because Mr. Kim chose to give a copy to his IPO for faxing rather than using the
mailbox available to him in his living unit to send confidential documents.
[22]
I should add that section 94 of the Correction
and Conditional Release Regulations, SOR/92-620, similarly provides that communications between
inmates and members of the public cannot be “opened,
read, listened to or otherwise intercepted by a staff member or a mechanical
device” unless there are reasonable grounds to believe that it contains
evidence of a criminal offence or of an act that would jeopardize the security
of the penitentiary or the safety of a person. In the case of presumptively
privileged communications, section 94 also requires the authorities to have
reasonable grounds to believe that privilege does not apply.
[23]
It is clear that Ms. Stolte’s actions, in
copying and communicating Mr. Kim’s letter to the Correctional Investigator to
other CSC personnel without Mr. Kim’s knowledge and permission, constitutes an
unauthorized interception of the communication. Unless Mr. Kim requested or
consented to it, the placing of copies of the fax communications from Messrs. Gourlay
and Bell on the CM file could also be construed as unauthorized interceptions
of communications. Even assuming that, in choosing to send and receive his
correspondence by fax, Mr. Kim implicitly consented to his correspondence being
read by his IPO, the fact that the correspondence was presumptively privileged
by virtue of the identity of their senders and recipients imposed on the
penitentiary’s staff further duties of confidentiality under the Directive and
the Regulations. These duties were breached when the correspondence was copied
to others and placed on the CM file.
[24]
However, the simple breach by a servant of the
Crown of a duty imposed by statute, regulation or directive does not
automatically constitute and actionable wrong, or give rise to a cause of
action for damages. An independent tort of statutory breach is not recognized
in Canadian law. The Supreme Court, in Canada v Saskatchewan Wheat Pool,
[1983] 1 S.C.R. 205, allowed that the formulation of a duty by a statute may, in
some cases, provide a useful indication of the standard of reasonable conduct
expected by society, the breach of which can point to negligence, but that in
the end, the civil consequences of a breach of a statute or regulation are
subsumed in the law of negligence. Mr. Kim has not argued, nor can it
reasonably be suggested, that Ms. Stolte’s conduct, or that of any other
CSC staff who may have handled the correspondence, amounts to negligence.
[25]
It cannot be over-emphasized that the
correspondence at issue only ever attracted the designation of “privileged”
through the regulatory regime created by the Regulations and the Directive,
which require penitentiary authorities to treat as presumptively privileged any
and all communications between an inmate and certain categories of persons.
Considered independently of the Regulations and Directive, it is clear that the
communications were never subject to privilege, and were never even intended or
expected by Mr. Kim to be kept confidential.
[26]
Mr. Kim was not in a solicitor and client
relationship with either Mr. Gourlay or Mr. Bell. The former was appointed as amicus
curiae, and not as counsel for Mr. Kim. The latter was Crown counsel on Mr.
Kim’s appeal. The correspondence therefore could not have attracted
solicitor-client privilege. The correspondence itself was not of a confidential
nature. Mr. Gourlay’s fax sought Mr. Kim’s comments on documents he proposed to
put before the Court. Mr. Bell’s fax transmitted a summary of outstanding motions
drawn from the Court records.
[27]
While inmates’ letters to the Correctional
Investigator are, pursuant to s. 184 of the Corrections and Conditional
Releases Act SC 1992, c 20 (the “CCRA”), to be delivered unopened, Mr. Kim
waived the protection of that provision by sending his correspondence by fax.
He further negated any expectation of confidentiality or privacy by expressly
requesting, by the “C.C.” notation at the end of the letter, that a copy be
faxed to the BC Court of Appeal Registry and to Mr. Bell.
[28]
In the circumstances, employees of the CSC did
not owe Mr. Kim a private duty to ensure that his correspondence be treated
with a particular degree of confidentiality. The internal dissemination of the
complaint among those who would, in any event, be consulted in the course of
the Correctional Investigator’s inquiry, and the placement of the
communications on the internal CM file did not constitute negligence.
[29]
In any event, no damage could possibly have been
caused by the manner in which CSC handled the correspondence: Mr. Kim had no
reasonable expectation of confidentiality in the documents; moreover, he
himself chose to disseminate the complaint internally within CSC by attaching a
copy of it to a second level grievance and to publicly disclose both that
letter and Mr. Gourlay’s letter by filing them in Court. Mr. Kim’s own handling
of the correspondence at issue also negates his contention that dissemination
of the complaint caused the penitentiary authorities to be biased against him.
His claim for reimbursement of the $400 he has paid over the years as fees for
fax transmissions that were not treated with the required confidentiality has
no foundation. Mr. Kim himself did not keep the correspondence at issue as
confidential, and he has not established that any other fax transmission has
been mishandled in the past.
[30]
Mr. Kim says he suffered damage from the
mishandling of the communications because he now constantly worries about what
and how much of his “privileged correspondence” CSC staff has intercepted or
read without authorization. He states that this has caused him stress and
worry, and has inhibited his ability to seek or obtain psychological treatment.
[31]
Mr. Kim’s submissions on psychological damages
are without merit. Mere psychological upset, worry and anxiety that do not rise
to the level of personal injury do not amount to damages and are not
compensable at law (Mustapha v Culligan of Canada Ltd., [2008] 2 S.C.R. 114).
Mr. Kim has led no evidence that his mental state amounts to a psychiatric or
psychological injury. Even if he had, damages for psychological injury can only
be claimed where they are a reasonably foreseeable consequence of the alleged
breach of duty in a person of ordinary fortitude (Mustapha, above). Mr.
Kim has found no other instance where, in the course of his 16-plus years of
incarceration, any other of his documents or correspondence might have been
treated otherwise than in conformity with the existing Regulations and
Directives. A comprehensive Privacy Risk Assessment was conducted by the CSC
following Mr. Kim’s complaint. It revealed no other similar occurrences. Any
worries or fear Mr. Kim may have that truly private or privileged information
concerning him might be disseminated or misused is not rationally supported by
the facts. That one might suffer psychological harm amounting to compensable
injury from such worries is far-fetched and would not have been reasonably
foreseeable.
[32]
Mr. Kim’s action is also framed as a recourse
for breach of privacy. Breach of the Privacy Act RSC 1985 c P-21 is not
a recognized independent cause of action, and this Court has confirmed that
there are no civil remedies available for unauthorized disclosure of personal
information in breach of the Privacy Act (Murdoch v Canada (RCMP),
2005 FC 420. See also the discussion in Gauthier v Canada (Minister of
Consumer and Corporate Affairs), [1992] FCJ No 1040). To the extent the
conduct of the CSC staff was to constitute a breach of the Privacy Act,
any cause of action would, as for any other general breach of statutory duty,
still be subsumed in the law of negligence. As mentioned above, the absence of
compensable damages is fatal to Mr. Kim’s action based on negligence.
[33]
In any event, I am not satisfied that the
conduct of the CSC amounted to a breach of the Privacy Act. Sections 7
and 8 of the Privacy Act limit the use and disclosure, by a government
institution, of personal information under its control. The only document that
may have contained or may arguably have constituted “personal information”, as
defined in the Privacy Act, is Mr. Kim’s letter to the Correctional
Investigator. The correspondence sent to Mr. Kim by Messrs. Gourlay and Scott
does not constitute and does not contain personal information of Mr. Kim.
[34]
The Privacy Commissioner considered that the
letter to the Correctional Investigator was protected under the Privacy Act
for two reasons: that it contained Mr. Kim’s Finger Print Services (FPS)
number, an identifying number assigned to him and defined as personal
information pursuant to s. 3(c) of the Privacy Act, and that it was “correspondence sent to a government institution by the
individual that is implicitly or explicitly of a private or confidential
nature”, as defined in s. 3(f) of the Privacy Act. However, while
the correspondence was indeed sent to a government institution, it was also
explicitly copied to Mr. Bell, acting as Crown counsel adverse to Mr. Kim’s
interest, and to the BC Court of Appeal Registry, and expected to be filed
publicly. The correspondence itself was therefore not implicitly or explicitly
of a private or confidential nature, and did not constitute protected personal
information. Its disclosure by Ms. Stolte to the Warden and the Unit Manager
cannot have been in breach of the Privacy Act.
[35]
Only the FPS number set out in the complaint
might have constituted personal information of Mr. Kim subject to the
protection of the Privacy Act. However, this number appears on all of
the institutional records related to Mr. Kim, and was already well known and
accessible to all CSC staff. The internal communication of the letter did not
result in the disclosure of any protected information that was not already
known to the recipients, and was therefore not in breach of the Privacy Act.
[36]
Finally, Mr. Kim pleaded that the conduct of the
CSC staff in relation to his correspondence constitutes misfeasance in public
office. The tort of misfeasance in public office is an intentional tort that
has two main elements: first, that a public officer engage in deliberate and
unlawful conduct in his or her capacity as public officer, and second, that the
public officer must have been aware that his or her conduct was both unlawful
and that it was likely to harm the plaintiff (Odhavji Estate v Woodhouse,
2003 SCC 69). As mentioned, the conduct of Ms. Stolte, even if one assumes
that she was aware at the time that it breached the Regulations, did not cause
any harm to Mr. Kim, and cannot have been thought to be likely to cause him any
harm. Again, no valid cause of action has been made out by Mr. Kim.
III.
Failure to correct record
[37]
At the trial, Mr. Kim asserted that his
Statement of Claim also pleads a cause of action for damages arising from the
CSC’s reliance on, or failure to correct, false or misleading information
placed on his institutional record.
[38]
Mr. Kim’s Statement of Claim contains over 100
paragraphs, but only paragraphs 47 to 49 might be said to relate to this cause
of action. These paragraphs essentially recite that in early 2009, Mr. Kim
wrote letters to Alex Lubimiv in his capacity as Assistant Deputy Commissioner
of Institutional Operations, Pacific Region, to argue against his
reclassification as maximum security and his consequent involuntary transfer to
the Eastern region, but that Mr. Lubimiv “misapprehended
the Plaintiff’s submissions, and failed to materially assist the Plaintiff from
being transferred to a New Brunswick maximum security prison (…)”. These
particular allegations against Mr. Lubimiv are however part of the broader
allegations of the Statement of Claim to the effect that, because of the
improper sharing and distribution of Mr. Kim’s complaint to the Correctional
Investigator, Mr. Lubimiv’s findings and rulings in matters involving M. Kim
were “tainted with bias towards the Plaintiff”.
[39]
It is only in his Reply that Mr. Kim provides
details of his allegations that incorrect information was used to determine his
security rating and that this information was eventually corrected. The Reply
asserts, at paragraphs 78 to 80, that “the Defendant’s
false reporting” violated her duty to act fairly and constituted a
breach of her duty to take all reasonable steps to ensure that any information
about an offender that it uses is as accurate, up to date and as complete as
possible under s. 24 (1) of the CCRA. The reply concludes that “this issue related to the false reporting is a separate
cause of action from the Plaintiff’s Privacy Act complaint”.
[40]
A new or alternative cause of action cannot be
raised in a reply. New causes of action must be raised by way of amendments to
the Statement of Claim (Niemann v Canada (Public Service Commission),
(1989) 29 FTR 156). That said, mechanical rules of pleadings should not defeat
meritorious claims where the facts are otherwise pleaded, where the other party
is not taken by surprise or prejudiced and where all facts necessary to the
fair determination of the matter are before the Court. In such cases, late
amendments can even be permitted (Faulding (Canada) Inc. v Pharmacia S.p.A.,
2001 FCT 12; Eli Lilly & Co. v Apotex Inc., (2000) 8 CPR (4th) 52; Martel
Building Ltd. V Canada, [1998] 4 FC 300, reversed but not on this point
2000 SCC 60; Francoeur v Canada, [1992] 2 FC 333). Despite the
inadequacy of the pleadings, in view of Mr. Kim’s insistence and being
satisfied that the Defendant will not suffer prejudice, I am satisfied that
this cause of action is sufficiently pleaded, and I have considered its merits
in light of the evidence before me. I find that Mr. Kim has failed to prove the
elements of a cause of action based on failure to correct or reliance on
incorrect information.
[41]
At the heart of Mr. Kim’s complaint are two
stabbing incidents in which Mr. Kim was involved in 2007 and 2008. The
information on Mr. Kim’s OMS file correctly noted that the charges brought
against him in relation to both incidents were dismissed, but the contextual
information reported on the file still identified him as the aggressor in both
instances. Being identified as an aggressor in two stabbing incidents played a
material part in Mr. Kim’s reclassification as maximum security and his
subsequent involuntary transfer to Eastern Canada in 2009.
[42]
Mr. Kim has throughout protested his
identification as the aggressor in the OMS. He asserted that the Independent
Chairperson who heard and dismissed the first charge had identified him as the
victim in the incident, and that evidence that was available in respect of the
second incident showed that he was not in fact involved. Mr. Kim filed several
grievances in relation to the security reclassification and in relation to other
decisions subsequently made in reliance on this allegedly incorrect
information. The outcome of these grievances, including on judicial review of
one of them (Kim v Canada (Attorney General), 2012 FC 870) has
invariably been a finding that it is reasonable for the Warden, and the
Assistant Commissioner at the third level grievance review, to rely on the
facts and description of incidents set out in an offender’s OMS file in making
security classification determinations, even where the independent disciplinary
tribunal may have dismissed the charges.
[43]
The remedy, where an inmate is of the view that
the information presented in his OMS file is incorrect, is to make a request
for correction pursuant to s. 24(2) of the CCRA. Commissioner’s
Directive 701, as it existed at the relevant time, directed that requests for
corrections be made by the inmate in writing to his current IPO. The process
for correcting information entered in the OMS and upon which decisions may be
based is thus separate and distinct from the process for grieving decisions
that have been made on the basis of that information. One cannot, through
grieving a decision, seek and obtain a correction of the information upon which
the decision was made. The Federal Court in Kim v Canada, above, a judicial
review of one of Mr. Kim’s grievances based on reliance on incorrect
information, confirmed that the processes are separate and independent and that
this is reasonable:
45 The Assistant
Commissioner dismissed the part of the applicant's grievance that addressed the
accuracy of the information in his file records because it had not been raised
at the first grievance level directly with the officer responsible, IPO Mark
Hare. The Assistant Commissioner concluded that he could not bypass the normal
grievance procedures. This was a reasonable conclusion, in my view, and a
complete answer to the applicant's complaint. I think it useful, however, to
comment further on the applicant's submissions should the controversy arise
again.
46 At the hearing, the applicant
confirmed that he was aware that he could have brought a grievance against IPO
Hare regarding the correctness of the information in his file. He contends,
however, that he had raised the issue from the outset in his grievances against
the Warden's decisions and that it is unfair to require him to initiate a
separate grievance procedure. The difficulty with that position is that the
grievance procedure requires that requests to correct information in the
offender's file be directed to the official responsible for entering the
information and maintaining the file. In this case, that was IPO Hare and not
the Warden.
[44]
The decision in Kim v Canada, at paras 12
and 13, indicates that Mr. Kim made a request for correction to his IPO in
April 2010, but that “no further action appears to have
been taken on this request”. No additional evidence was led at trial in
respect of this request for correction. We do not know whether it failed, was
withdrawn or was not pursued, or of the reasons for this outcome. The only
evidence presented at trial in respect of any request for corrections are the
results of requests for corrections made by Mr. Kim in the period from May to
June 2013 and in April 2014. The requests themselves, including the evidence
and arguments considered by Mr. Kim’s IPO in granting some of them, were
not put in evidence.
[45]
Section 24(1) of the CCRA imposes on the CSC
the duty to “take all reasonable steps to ensure that
information about an offender that it uses is as accurate, up to date and as
complete as possible”. However, it does not provide for a specific right
of action or recourse in damages for breach of that duty. Accordingly, the
Defendant’s liability, if any, is again subsumed in the law of negligence and
can only arise, pursuant to section 3 of the Crown Liability and Proceedings
Act, RSC c C-50, in respect of a tort committed by one of its servants.
[46]
Assuming, but without determining, that failing
to correct or knowingly relying on false information in an offender’s file
could give rise to a recognizable cause of action in tort against an employee
of the Crown, that cause of action would at a minimum require that the employee
of the CSC identified as responsible for correcting the information or acting
upon it knows, or at least has reason to believe that the information is
incorrect. Merely showing that information in an offender’s file was determined
to be incorrect and was amended does not establish that the employees who came
across or relied on the information in the past knew or had any reason to
believe it to be incorrect.
[47]
There is no evidence on the record before me to
show the reasons why the information initially placed on Mr. Kim’s record in
relation to the stabbing incidents was incorrect. There is no evidence of the
facts, documents or arguments on the basis of which the information was later
corrected. Mr. Kim filed many grievances over the years, arguing that evidence
exists to support his contention that the information recorded in his OMS file
is erroneous. However, none of the testimony or documents adduced at trial
establishes that such evidence existed at the time, was in the possession of
the CSC, or was even the evidence upon which Mr. Kim’s IPO relied in agreeing
to correct the record in 2013.
[48]
Indeed, when asked at trial why, if it was so
obvious that incorrect information appeared in his OMS file, he chose not to
seek or pursue the recognised process for seeking corrections in 2008 or 2009,
Mr. Kim offered as an explanation that he did not have all the necessary
information at the time. Mr. Kim did not however identify what information he
was missing. He could not explain how and when he eventually secured the
allegedly missing information. More importantly, Mr. Kim did not show why one
might conclude that this information was known to the persons who initially
entered the incorrect information on his file, to the persons who might have
had a duty to correct the file, or to the persons who relied on the file in
making various decisions.
[49]
There is accordingly no basis on which the Court
could possibly conclude that incorrect information was placed or allowed to
remain on Mr. Kim’s OMS file knowingly, or as a result of the fault, neglect or
breach of duty of any employee of the Defendant, or that any employee of the
Defendant relied on that information knowing, or having reason to know, that it
was incorrect.
[50]
This conclusion equally applies to the
allegations directed specifically against Mr. Lubimiv, to the effect that
he showed bias against Mr. Kim and failed to provide assistance by refusing to
recognize that decisions as to Mr. Kim’s security classification and
involuntary transfer were based on incorrect information. It was not for Mr.
Lubimiv, as Assistant Deputy Commissioner, to entertain or act upon a request
for correction, whether formulated in a letter or as part of a second level
grievance of a reclassification decision. As mentioned, the Court specifically
held in Kim v Canada that it is reasonable, in determining grievances of
reclassification decisions, for officials such as Mr. Lubimiv to rely on
information as it appears in the OMS. In any event, Mr. Lubimiv’s evidence
at trial was to the effect that at the time he dealt with Mr. Kim’s requests
and grievances, the information he had independently obtained in respect of the
first stabbing incident was consistent with Mr. Kim being the aggressor. Mr.
Kim did not challenge Mr. Lubimiv’s recollections in cross-examination.
[51]
Finally, Mr. Kim argues that Mr. Lubimiv’s bad
faith was apparent in that he continued to insist, in his testimony at trial,
that Mr. Kim was the aggressor in both stabbing incidents, despite the fact
that corrections have now been made. The Court notes, however, that Mr. Lubimiv
retired from CSC in January 2012, before the corrections were made to Mr. Kim’s
OMS file. In cross-examining Mr. Lubimiv at trial, Mr. Kim did not put to Mr.
Lubimiv the corrections that had been made to the OMS subsequent to his
retirement, or the evidence on the basis of which the corrections had been
made. I can find no bad faith on Mr. Lubimiv’s part in having relied on the OMS
information in 2009 and 2010, or in continuing to do so at trial, as he had no
reason to think it is or was inaccurate.
[52]
In conclusion, Mr. Kim has failed to establish
any cause of action against the Defendant, and his action is accordingly
dismissed, with costs.
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