Docket: T-1550-17
Citation:
2017 FC 953
Vancouver, British Columbia, October 25, 2017
PRESENT: The Honourable Madam Justice McDonald
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BETWEEN:
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FRANK
COLASIMONE
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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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ORDER AND REASONS
[1]
Frank Colasimone [the Applicant] is a federal
inmate at Kent Institution [Kent] in British Columbia. He says that he has filed
a complaint with the Canadian Human Rights Commission [CHRC], alleging that
Correctional Service Canada [CSC] has failed to accommodate his mental health
and drug dependency disabilities. Pending the resolution of his human rights
complaint, the Applicant seeks injunctive relief from this Court compelling the
CSC to provide various services to him, including a transfer from Kent. For the
reasons that follow, I conclude that the Applicant is not entitled to mandatory
interlocutory injunctive relief from this Court, the threshold for which is high
(Canadian Council for Refugees v Canada, 2006 FC 1046 at para 15; Madeley
v Canada (Public Safety and Emergency Preparedness), 2016 FC 634 at para 26
[Madeley]).
I.
Requested Relief
[2]
By Motion pursuant to s. 44 of the Federal
Courts Act, the Applicant seeks the following interim relief:
- an injunction pursuant to s. 44 of the Federal Courts Act,
requiring CSC to refrain from discriminating against the Applicant and
specifically requiring CSC to:
i.
transfer the Applicant immediately to the Regional
Treatment Centre [RTC], or another similar facility within CSC or in the
community;
ii.
if the Applicant requires continuous
observation, ensure that he is observed by mental health professionals and that
he not be isolated or deprived of activities to occupy his mind as a result of
observation;
iii.
perform a full psychological and physical
assessment of the Applicant;
iv.
provide the applicant with his care plan, and if
one does not exist create a care plan for this purpose; and
v.
create a log of meaningful human contact
received by the Applicant and share this with the Applicant and his counsel.
[3]
A judicial review application pursuant to s. 18
of the Federal Courts Act has not been filed.
II.
Jurisdiction
[4]
The Applicant relies upon Canada (Human
Rights Commission) v Canada Liberty Net, [1998] 1 S.C.R. 626 [Canada
Liberty Net], where the Supreme Court of Canada recognized that the Federal
Court has jurisdiction to grant interlocutory relief in relation to complaints
made under the Canadian Human Rights Act [CHRA]. The Applicant also
relies upon Drennan v Canada (Attorney General), 2008 FC 10 at para 23 [Drennan].
[5]
The Respondent argues that the Applicant is in
fact seeking an order compelling specific actions by CSC officials and medical
staff and therefore in essence, the Applicant seeks an order of mandamus.
As such, the Respondent argues, s. 44 of the Federal Courts Act is not
the proper procedure to bring a request for mandamus. The Respondent relies
upon Kellapatha v Canada, 2017 FC 739, in support of this argument. Alternatively,
the Respondent argues that the Applicant cannot meet the tripartite test for
injunctive relief.
[6]
Although I agree that some of the relief sought
by the Applicant could be characterized as “mandamus like,” that issue is
not determinative of this Motion. As in Madeley at para 21, “[T]he respondent did not make a compellable argument that a
mandatory injunction is prohibited where mandamus could lie.” The ambit
of the mandatory interlocutory injunction remedy, which compels action
on the part of the Respondent, can capture what the Applicant seeks in this
Motion. Whether the Applicant can meet the test for interlocutory injunctive
relief is determinative of this Motion.
[7]
In these circumstances, I am satisfied this
Court has jurisdiction to consider the Applicant’s request for injunctive
relief (Canada Liberty Net, at para 37; Drennan, at paras 25-26; Canada
(Human Rights Commission) v Winnicki, 2005 FC 1493 at paras 22-23).
III.
Injunction Test
[8]
To be successful, the Applicant must satisfy
each part of the three-part test outlined in RJR-MacDonald v Canada, [1994]
1 SCR 311 at 334 [RJR-MacDonald], namely: (1) there is a serious
issue to be tried; (2) the Applicant would suffer irreparable harm if the
interlocutory relief is not granted; and, (3) that the balance of convenience
favours granting such relief.
A.
Serious Issue
[9]
The Applicant is a federal inmate with a long
history of drug addiction. He is currently incarcerated at Kent because of
violent behaviour. While at Kent he claims that there have been a number of
changes to his medications which causes him stress and anxiety thereby
exacerbating his mental health issues. This is what forms the basis of his
alleged human rights complaint. On this Motion he seeks accommodation for his
drug dependency and his mental health issues by asking for a transfer to a RTC,
a full psychological and physical assessment and other accommodations.
[10]
The Applicant did not file a copy of his human
rights complaint with the Motion materials and the CHRC was not served with this
Motion. Therefore, only the assertions by the Applicant that CSC breached
protected human rights under the CHRA are before this Court for consideration.
[11]
The Respondent filed the following CSC
Commissioner’s Directives: Health Services (Number 800); Interventions to
Preserve Life and Prevent Serious Bodily Harm (Number 843); and, Inmate
Transfer Processes (Number 710-2-3) to demonstrate that the Applicant’s
treatment at Kent is consistent with these institutional policies. The Applicant
does not allege that his treatment was not consistent with these institutional
policies.
[12]
Furthermore, some of the relief sought by the Applicant,
including a transfer to a RTC and various medical interventions, are subject to
consideration under the CSC Directives and involve assessments and decision-making
by various individuals including medical experts. This Court is not in any
position to substitute its decision for that of medical experts who have
assessed the Applicant.
[13]
The Applicant argues that the applicable
threshold to establish a serious issue is lowered when issues under the Charter
of Rights and Freedoms [the Charter] are asserted. However, the
Applicant does not make Charter arguments here.
[14]
Contrary to the Applicant’s assertion, there is
authority which provides that where an Applicant seeks a mandatory injunction
which compels action, as here, the threshold is higher on the serious issue
branch: Madeley, at paras 27-29; further, see Robert Sharpe, Injunctions
and Specific Performance (4th Ed Canada Law Book) at 2.650. The
Court should engage in a more extensive review of the merits where, as here, the
relief sought by the Applicant on this Motion would essentially grant the
relief the Applicant seeks in the underlying application (RJR-MacDonald,
at 338-339).
[15]
Based on this review, and even accepting the
Applicant’s analogy to Charter issues, I am not satisfied that the Applicant
has a strong enough case on the merits to demonstrate a serious issue under the
RJR-MacDonald test, regardless of the threshold applied. It is clear
that the Applicant has a stated desire to have a particular type of medication,
which is likely related to his drug dependency illness. However, that desire does
not rise to the level of serious issue.
[16]
Although this is sufficient to dispose of the
request for an injunction, I will nonetheless consider the balance of the tripartite
test.
B.
Irreparable Harm
[17]
To demonstrate irreparable harm, the Applicant
must lead “clear and non-speculative” evidence
which goes beyond mere assertions (United States Steel Corporation v Canada
(Attorney General), 2010 FCA 200 at para 7).
[18]
The Applicant seeks a transfer to a less
stressful environment and a facility designed to accommodate his addiction
issues. He argues that his condition is worsening at Kent especially with the
medication changes which are imposed upon him. He also argues that the lack of
communication about his treatment is problematic. He complains that he is not
seen regularly by medical staff.
[19]
However, the evidence shows that the Applicant
has regularly been seen by various medical professionals. Specifically, I note
that he was seen by a physician on September 11, 2017 and a psychiatrist on
August 15, 2017. While the Applicant clearly disagrees with the medical
treatments he has received, there is no evidence to suggest that those
treatments are inappropriate or below the applicable professional standard of
care. A disagreement with the course of treatment or medication is not sufficient
to satisfy the irreparable harm part of the test.
[20]
Furthermore, with respect to the risk that the Applicant
will attempt suicide, I note that he has already attempted to do so on two
occasions. I also note CSC Commissioner’s Directive: Interventions to Preserve
Life and Prevent Serious Bodily Harm (Number 843) which outlines the procedure
to be followed in this event.
[21]
Accordingly, I am satisfied that Kent has
appropriate measures in place to protect the Applicant from himself if he
attempts self-harm. The fact that the Applicant does not like the conditions
that are imposed upon him as a result of these attempts does not constitute
irreparable harm.
C.
Balance of Convenience
[22]
The Applicant argues that upholding the rights
of prisoners who are a vulnerable sector of society weighs in his favour.
[23]
However, the “higher
risk of injustice” in this case lies with the Minister, who would be
compelled to provide the extensive relief sought despite the fact that the
Applicant’s case is facially weak on the merits (RJR-MacDonald, at 338).
As such, in the circumstances, I conclude that the balance of convenience
favours the Minister and the statutory obligations.
IV.
Conclusion
[24]
For the above reasons, the Applicant’s Motion is
dismissed.
[25]
In the circumstances, I decline to award costs.
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