Date: 20260716

Docket: T-841-24

Citation: 2026 FC 958

Edmonton, Alberta, July 16, 2026

PRESENT: Madam Justice Conroy

BETWEEN:

CANADIAN ASSOCIATION OF ELIZABETH FRY SOCIETIES

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS AND JUDGMENT

I. OVERVIEW

[1] The Applicant, the Canadian Association for Elizabeth Fry Societies seeks judicial review of the continuing conduct of the Correctional Service of Canada [CSC] with respect to its operation of the Edmonton Institution for Women [EIFW]. The judicial review arises from alleged extreme indoor temperatures in the maximum-security unit [Secure] in EIFW which, it is argued, have been an ongoing problem for about twenty years. Specifically, the Applicant asserts that CSC has known that those incarcerated in Secure at EIFW have suffered from extreme temperature conditions and has failed to take all reasonable steps to effectively manage the temperatures. It is submitted that CSC’s continuing inaction in this regard is a breach of s. 70 of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA]. The Applicant also argues that the temperature conditions breach sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[2] For the reasons set out below, the application for judicial review is granted and an Order in the nature of mandamus shall issue.

[3] The evidence shows that the temperatures in the inmate-occupied areas of Secure are excessively high at certain times of the year. The problem is particularly acute in the East Pod and in the cells during lockup at night, when there is no airflow for 9.5 hours. The excessively high temperatures have caused inmates to suffer panic attacks, psychological distress, and sleep deprivation. Itis a long-standing problem: CSC has known of design problems with the temperature regulation equipment in Secure since as early as 2012.

[4] I conclude the grievance process is not an adequate alternative remedy to address excessively high temperatures in Secure. On the record before the Court are numerous written complaints and grievances from inmates about extreme temperatures in Secure spanning about two decades, and yet CSC has thus far failed to implement an effective and durable solution to manage the heat. The evidence suggests that the high temperatures are due to the building equipment’s inability to cool the indoor temperature. The grievance process is fundamentally ill-equipped to address inadequate climate control equipment or building design.

[5] Over the course of many years, CSC has taken steps to try to mitigate the impacts of the excessive temperatures on inmates (e.g. allowing inmates to purchase small fans and take cold showers). Nevertheless, the CSC has failed to take “all reasonable steps” (emphasis added) to “ensure” safe and healthy conditions of confinement in Secure as required by s. 70 of the CCRA.

[6] While CSC says it routinely monitors temperatures in Secure, remarkably, it keeps no written records of its temperature readings.

[7] Further, CSC has routinely interpreted the Technical Criteria for Correctional Institutions [Technical Criteria], as entirely prohibitive of installing Air Conditioning [A/C] in the inmate-occupied areas of the penitentiary. As explained further below, this interpretation is unreasonable.

[8] Accordingly, based on the record before me, there are at least two additional reasonable steps that CSC can take to ensure the living conditions are safe and healthy: (1) recording temperature readings in Secure; and (2) seeking authorization to install A/C in the inmate-occupied areas of Secure, including the cells. CSC is directed to undertake these two steps.

[9] It was not argued that, as a general principle, inmates have a right to A/C. However, given the evidence of the persistence of this problem despite CSC’s many attempts over the years to try to mitigate it, s. 70 of the CCRA obligates CSC to seriously and meaningfully consider whether A/C is required to ensure a safe and healthy environment for inmates and workers in Secure. Its consideration ought to be unburdened by the non-binding general prohibition against A/C in the Technical Criteria.

[10] My conclusion that CSC has failed to comply with s. 70 of the CRRA is sufficient to dispose of the judicial review and it is therefore unnecessary to consider the Charter issues.

II. BACKGROUND

A. Material Facts and Events Leading to this Application

[11] EIFW is a multi-level site operated by CSC that houses inmates with minimum, medium, and maximum-security classifications.

[12] Maximum security inmates are housed in Secure, which was built in 1995. Secure contains three “pods” (North Pod, East Pod and South Pod). Each pod contains five cells and a common area. There is also a Structured Intervention Unit [SIU] located in Secure. The “inmate-occupied areas” include the common area and the cells in each pod as well as the SIU.

[13] Between all pods is a central “rotunda” where correctional staff work.

[14] The cells in Secure each have a toilet and sink, one or two beds, and a storage area. The cells also have a window that opens slightly, covered by a metal grate with holes in it and an air vent. The common area in each pod has sofas, televisions, and a shower area. Windows in the common areas can be opened by staff on request.

[15] Inmates have set “lockup” times, from 10:00 PM to 7:30 AM, 12:00 PM to 1:00 PM, and 4:00 PM to 5:00 PM. During these times, they must be in their cells. Otherwise, they may occupy the common areas or attend approved programming in other areas of the institution.

[16] As detailed further below, heating for the cells in Secure is provided by a combination of in-slab heating and HVAC circulated air. The common areas in Secure are heated by HVAC only.

[17] There is no built-in cooling system or A/C for inmate-occupied areas of Secure. But in 2021, A/C was installed in the central rotunda area, where CSC staff work.

[18] Inmates can make requests to staff to adjust temperatures, and staff members refer the request to the Maintenance Department through an electronic system called “Maximo,” which logs maintenance requests for tracking and assignment to maintenance workers.

(1) Extreme Temperatures in Secure

[19] The Applicant has filed four affidavits from inmates at EIFW: Yu Liao, Lisa Friehaut, Megan Mandes, and Ariana Bushie. Each affiant was at some point housed in Secure. As of the date of the hearing of this judicial review, none of the affiant inmates were housed in Secure. The Respondent did not cross-examine the affiant inmates.

[20] All four affiants describe two seasons of extreme temperatures in Secure: the “Hot Months,” and the “Cold Months.”

[21] During the Hot Months (roughly April to October), the women describe both the cells and common areas in Secure as intolerably hot. The East Pod is known for being particularly hot, because of the sun shining directly into it during the day. The corner cell in that pod has been nicknamed the “microwave,” or the “oven,” by inmates. Ms. Friehaut states that, when she was housed in this corner cell in August 2018, the temperature taken by a maintenance worker reached over 40°C.

[22] The inmates use various strategies to try to cope with the heat including placing frozen water bottles on their bodies, wetting their clothes and hair, splashing themselves and each other in cold water, standing in front of open fridges, taking ice baths, stripping down to their undergarments; taking a frozen towel to bed, and limiting their physical movement.

[23] During the Cold Months (roughly November to February), the common areas become intolerably cold. Inmates report seeing their breath, and frost covers door handles and windows. To cope with the cold, inmates and staff wear jackets and gloves while indoors, and inmates blow hot air onto their feet with blow dryers, as no space heaters are provided, except for in the SIU.

[24] Ms. Friehaut and Ms. Mandes’ affidavits explain that efforts by staff to increase the temperature in the common areas only results in making the cells intolerably hot during the Cold Months. Turning off the heat makes both the common areas and cells unbearably cold. Ms. Liao states that in December 2021 and January 2022, the temperature in the common area would be around 15-16°C, while the temperature in her cell would be around 28-29 °C.

[25] To prevent cold outdoor air from drafting into the common area during the Cold Months, inmates would put towels and maxi-pads at the bottom of the fire doors, until correctional staff directed them to be removed.

[26] Inmates say that the extreme high temperatures in Secure during the Hot Months cause them to suffer from several symptoms, including excessive sweating, discomfort, difficulty sleeping, exhaustion, exacerbated depression or anxiety and emotions of fear, hopelessness, frustration and anger. The affiant inmates report the heat being particularly bad when they are locked up in their cells at night, as there is little to no airflow. Ms. Liao recalls using the panic button in her cell some nights, as she would suffer panic attacks from the heat. She also recalls an instance around April 2022 when another inmate in Secure had an asthma attack that she believes was caused or aggravated by the heat. Ms. Bushie also reports often having panic attacks “due to being trapped in my cell with no way to cool myself down” and witnessing another woman having a panic attack in their cell due to the heat.

[27] The affiant inmates say they have made several verbal complaints, written requests, and grievances about the heating and cooling problems, and that staff repeatedly told them it was a known issue with EIFW.

[28] Ms. Liao’s affidavit also attaches two memoranda written by CSC which the Applicant argues corroborate the inmate’s evidence about the excessively high temperatures in Secure. One is dated July 2020 and states:

It is that time of year again where East Pod becomes unbearably hot. After 2200 count, please open the food slot to cell 155 to assist in air circulation. The food slot can remain open for the duration of the night and closed on the 0700 deister walk. [emphasis added]

[29] Another memorandum, addressed to the inmates on Secure, with the subject line “heat issues on the unit” dated April 2022 says that if “the unit is exceptionally hot, the fire door may be opened to alleviate the heat.”

[30] The record also includes affidavit evidence from Toni Sinclair. Ms. Sinclair is a Regional Advocate with the Applicant. She has worked for the Elizabeth Fry Society of Northern Alberta since 2004 and held the position of Executive Director since 2008. She was not cross-examined.

[31] Since 2004, Ms. Sinclair has visited Secure multiple times a year. She first heard about the excessively hot temperatures in Secure in about 2004. In the wintertime of 2004, she personally experienced excessively cold temperatures in Secure. On one occasion she could see her breath and had to wear her jacket to stay warm. She affirms that based on her visits to Secure from 2004 to the present, and from speaking with the inmates, the conditions of incarceration in Secure have not improved.

[32] Several letters from Ms. Sinclair to the EIFW spanning from 2012 to 2018 outline concerns with the extremely high temperatures in Secure are attached to her affidavit. No responses were provided to these letters.

(2) Inmate Requests and Grievances

[33] Mr. Tien Long, Acting Assistant Warden, Management Services for CSC at EIFW, swore an affidavit and was cross-examined by the Applicant. Previously, Mr. Long was the Chief of Administrative Service at EIFW. He was responsible for overseeing grievances.

[34] Mr. Long’s affidavit explains that inmates may file complaints under the offender complaint and grievance process. The process has three levels:

• Written Complaint – EIFW renders decision within 15 working days (high priority) or 25 working days (routine);

• Initial Grievance (if inmate unsatisfied with Written Complaint) – EIFW renders decision within 15 working days (high priority) or 26 working days (routine); and

• Final Grievance (if inmate unsatisfied with Initial Grievance) – EIFW renders decision within 60 working days (high priority) or 80 working days (routine).

[35] If an inmate is not satisfied with the outcome of the Final Grievance, they may seek judicial review.

[36] Separate from the grievance process, inmates can make written and oral requests to staff members to adjust the temperature. These are referred to the EIFW Maintenance Department.

[37] Ms. Liao’s affidavit attaches her temperature related written inmate requests, grievances, and complaints to the Office of the Correctional Investigator [OCI]. These include the following:

• March 2021 notes from the OCI regarding a complaint made by Ms. Liao about the excessive heat in Secure. Her complaint is summarized as follows:

During the heat wave of last year, their cell temperature were sitting at 34^oC. During the winter, the cell temperature is sitting at 26^oC.

IM [inmate] states they have submitted a complaint regarding the cell temperature, and all the girls on the pod signed off on it. On Feb 22, 2021, the Assistant Warden and the Warden were supposed to meet with them to address their concerns. The meeting was cancelled …

The hot temperature in her cell is affecting her sleep and her mental health. She wants to know what is humanly acceptable for a cell temperature. IM states she has three fans and the window open and still this doesn't help, as the ceilings are heated. She states even when they come and test the temperature, it's not accurate, as the doors have been opened and closed, allowing air to circulate. It's at night, when they are locked up for more than 8 hours, that it really becomes unbearable. She has spoken to mental health about this, and the have followed up with the CM, and the CM is not willing to do anything. They have allowed her to open her food slot to let air in, but still this doesn't make much of a difference. For her, it's worse because she is double bunked.

Under the heading “Resolution”, it states that the OCI has followed up with EIFW management and “a plan has put in place to mitigation the level of heat in the SU. We will continue to monitor in the upcoming months – We have also requested that heat readings be shared with our office”.

• A Written Complaint filed in March 2021 by a group of inmates in Secure, including Ms. Liao, about the excessive heat. This complaint proceeded through all three levels of the grievance process. A Final Grievance was denied by CSC in February 2023.

• A July 2020 Written Complaint with respect to alleged “inhumane” heat in the east pod.

• A January 2022 Written Complaint followed by a related Initial Grievance by a group of inmates in Secure about the excessively cold temperatures on the pod and the excessively high temperatures in the cells which was interfering with sleep. In April 2022, CSC denied the Initial Grievance. Amongst other things, it refused to provide the temperature logs requested by the inmates, stating there were no recorded logs because temperatures were all within “CCOHS standards”. Screens on the east pod windows were cleaned in an attempt to improve airflow. Temperatures readings for one day in April 2022 for East Pod cells were provided showing temperatures between 21.2 and 23.3°C.

• Numerous other written temperature related inmate requests were filed by Ms. Liao between July 2020 to April 2022.

[38] Ms. Freihaut’s affidavit also attached her heat related Written Complaints and inmate requests:

• She filed two separate Written Complaints in July 2018, about the excessive heat in the East Pod: one complaint asked for A/C and the other asked for more fans. CSC’s responses just over a month later cite the Technical Criteria’s prohibition of A/C in inmate-occupied areas, and say that “Facilities Management is working diligently to address the heat issues in the secure unit”.

• She submitted two inmate requests in March 2019: one request asked maintenance to turn off the heat in the East Pod cells as it was too hot, and in the other she sought permission for a second fan in her cell, which was denied.

[39] Ms. Mandes’ affidavit reports making verbal complaints about the temperature to staff.

[40] In addition to the complaints and grievances filed by the inmate affiants, are numerous temperature related complaints and grievances filed by other inmates in Secure spanning from 2005 to 2022. These are discussed in the section below.

(3) ATIP Documents – CSC Grievance Responses, Internal Emails, OCI Records

[41] The Applicant filed an affidavit sworn by a legal assistant, Ms. Dustin [Dustin Affidavit]. The Dustin Affidavit serves the primary purpose of attaching two batches of documents that Applicant’s counsel obtained via access to information requests to CSC and the OCI [ATIP Documents]. The ATIP request asked for all grievances and complaints by any inmate related to heating and cooling from January 1, 2005 to the present. Responses to the ATIP request were provided from CSC in February 2023, and from the OCI in March 2023.

[42] The ATIP Documents consist of inmate complaints and grievances (the content of which is redacted), CSC’s response to those grievances, some internal emails between CSC staff, and notes from the OCI. Overall, the ATIP Documents include more than 32 inmate written complaints and grievances about extreme temperatures in Secure. This total is in addition to Ms. Liao’s Written Complaints and grievances summarized above.

[43] The Respondent contests the admissibility of these ATIP Documents, in which CSC staff at times recognize that the heating system in Secure “does not appear to be adequate for Edmonton weather,” that “the heat in the max unit is unbearable,” that the inmates’ complaints are “quite founded” [translation from French], that the unit, as constructed, cannot cool at night after several days of hot weather, that the units remaining “very hot, especially East Pod” is aggravating tensions in Secure, and that “until the infrastructure changes, the reality is the heat will continue to be an issue.”

[44] The ATIP Documents also show CSC staff repeatedly concluding and communicating to inmates via grievance responses that the Technical Criteria, sometimes referred to as the “National Directive,” prohibits institutions from providing A/C in inmate-occupied areas.

[45] The Respondent’s position is that the ATIP Documents are hearsay and run afoul of Rule 81(1) of the Federal Courts Rules, SOR/98-106. The admissibility of the ATIP Affidavit is discussed below, in the analysis section.

(4) CSC’s Response to Temperature Concerns

[46] Evidence about CSC’s response to the temperature concerns is included in the inmate affidavits, and affidavits sworn by Mr. Dean Letwin, EIFW’s Supervisor of Facilities Management, and Mr. Long. The Applicant cross-examined Mr. Letwin and Mr. Long.

[47] Mr. Letwin’s affidavit speaks to the monitoring of temperatures in Secure:

A maintenance worker routinely checks the temperatures on offender occupied areas of the Secure Unit once or twice a day, at least five days a week, with an infrared thermometer device and an air quality temperature measurement device. As much as possible, the maintenance department endeavors to keep the temperatures of the offender areas, including cells and common areas, within the Canadian Centre for Occupational Health and Safety (CCOHS) standards for thermal comfort in an office environment, being a range of 23-26 degrees Celsius in the summer, and 20-23.5 degrees Celsius in the winter. If a temperature reading comes back outside of the applicable range, the maintenance department will diagnose the problem and action it as appropriate.

[48] In cross-examination he said that, although his team routinely checks the temperature, they do not keep a log of the temperatures. This is because he was never directed to write them down and is not required by any policy to do so.

[49] Evidence included with Ms. Liao’s affidavit shows that in 2021 the OCI asked EIFW to share temperature readings from Secure. There is no evidence that temperature readings were ever shared with the OCI as requested.

[50] Mr. Long’s affidavit provides information about EIFW’s heat mitigation strategies. It notes that each inmate is permitted to purchase a small personal fan, can access cold showers during heat waves except during lock-up, are provided with cold water and ice to soak towels, and are permitted to wear minimal clothing. He states that each cell has a window that can open and curtains that can be closed.

[51] Mr. Long’s affidavit also speaks to additional measures that he said EIFW intends to take for the summer of 2024 (his affidavit was sworn on July 11, 2024), including:

• cool-down zones in the programming rooms in Secure;

• inmates who have medical conditions which make them vulnerable to extreme heat can request special approval for a portable A/C unit;

• EIFW plans to order new heat-reducing curtains for the cells on Secure.

[52] During his cross-examination (which took place in October 2024) Mr. Long stated that the cool-down zones were not sufficient, so they brought portable A/C units into the common areas in Secure. No A/C was provided in the cells.

[53] With respect to the option for inmates to make a special request for an A/C unit, there is no evidence that this new policy was ever communicated to inmates. Mr. Long testified that EIFW had not received any inmate requests for an A/C unit. He said that any such request would need to be approved by National Headquarters but was otherwise unsure of the process involved or what types of health conditions might qualify.

[54] Mr. Long’s affidavit did not attach any document outlining this new approach for the summer of 2024, although he acknowledged that such a document exists.

[55] One affiant inmate reports that correctional staff would, from time to time, take the temperature in Secure. They recall correctional staff taking the following steps to address their concerns about the temperature:

• permitting inmates to purchase of one handheld fan, which inmates say is not effective as it only pushes around the hot air;

• placing an industrial sized fan in a metal cage bolted to the floor in the common areas of each pod, which had little to no effect on cooling down the cells.

• placing a 2-foot-tall humidifier/cooling tower in each pod, which the inmates say did nothing to reduce the heat (these have since been removed);

• for a short period of time, opening the door to the East Pod to cool it down, but this practice was eventually stopped due to security concerns;

• for a short period of time, permitting food slots on cell doors to remain open for air circulation, although this practice was eventually stopped due to security concerns; and

• Inmates were supposed to have curtains on their cell windows to block the sun, but often the curtains were missing or too small to cover the window.

[56] Ms. Liao was at times permitted to take cold showers during the night to cool down. After repeated complaints including to the OCI, a large fan was placed outside her cell door which pushed air through the cracks. She does not know of any other inmates were provided with the same privileges.

(5) The Heating Systems in Secure

[57] EIFW’s Supervisor of Facilities Management, Mr. Dean Letwin, swore an affidavit in July 2024 and was cross-examined by the Applicant in October 2024. He explains how the heating system works and confirmed there is no built-in cooling system in the inmate-occupied areas of Secure.

[58] He describes that the cells in Secure are heated in two ways: by an in-slab boiler system, which runs heat through the ceilings of all the cells, and by an HVAC system.

[59] Mr. Letwin confirmed that the cells in Secure do get hot, and that the East Pod is probably the worst. While he said that the common areas have reached into the high 20’s, he disputed that they have ever reached the low 30's. He wasn’t sure how hot the cells get. With respect to the Cold Months, Mr. Letwin agreed that the fire exit doors leading outside of the pods can at times freeze over.

[60] When asked about the possibility of installing A/C, he advised that in the summer of 2024 temporary portable A/C units were placed in the common areas of the pods, as the temperature had reached over 30°C. This method was somewhat effective, but the cool air did not reach the entire common area, nor the cells.

[61] When asked why EIFW has not installed A/C in the inmate occupied areas, he said this was because of CSC’s reading of the Technical Criteria. He stated that whether these areas can have A/C is not within his control – “it is NHQ that has to say whether they can be put in or not”. When asked whether EIFW has ever requested funding to install A/C coils into the existing fans, or permission from National Headquarters to install A/C in Secure, Mr. Letwin answered that he did not know.

[62] Beginning in 2022, Mr. Letwin oversaw upgrades to EIFW’s building management system [BMS]. He said the BMS upgrades allow him to better monitor and control the heating systems.

[63] However, Mr. Letwin conceded on cross-examination that adjusting the temperatures using the existing equipment has little to no effect on reducing heat – in his own words:

You can’t really adjust any cooler if there’s no A/C. An A/C is the only way you’re going to cool off a building. Adjusting the heat down on a hot day is not going to make a difference. There should be no heat going anyway. Just the vents and the fans -- you just have your fans running. That’s all we’re doing, is moving fresh air in.

And,

[The BMS upgrades will not help with managing hot temperatures] because there’s no way of cooling off the pods or cooling off the common areas, because it’s not a -- it’s not attached to an A/C unit, as per se, to do that. The only air -- the heat is usually shut off through the summer and it’s an HVAC clean airflow bringing in. Like, that’s all it is. Its just an HVAC unit blowing air. It’s not an A/C unit.

[64] Therefore, while the improved BMS might allow the Maintenance Department to manage the colder temperatures, the upgrades will have no effect on the department’s ability to cool down the temperature in Secure, because the only way to do so would be through an A/C system, which does not exist.

[65] At the time of Mr. Letwin’s cross-examination in October 2024, the BMS upgrades to the heating systems had yet to be tested – he stated he would know about their effectiveness in the coming winter. Neither party has adduced any evidence about whether the BMS upgrades were effective in addressing the excessively cold temperatures as anticipated.

III. ISSUES

[66] The Applicant argues that CSC’s failure to manage the temperatures in Secure is a breach of its statutory duty under the CCRA and the Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]. The central question is whether the CSC has complied with its statutory duty under s. 70 of the CCRA. Section 70 provides as follows:

Living conditions, etc. 70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity.

Conditions de vie 70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des détenus et les conditions de travail des agents soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine.

[67] The Applicant further argues that the conditions in Secure violate the inmate’s Charter rights.

[68] In addition, the Respondent raises a host of preliminary issues including the admissibility of the ATIP Documents, the Applicant’s standing, mootness, and the existence of an adequate alternative remedy.

[69] I frame the issues as follows:

• 1)Does the Applicant have public interest standing?

• 2)Are the ATIP Documents appended to the Dustin Affidavit admissible?

• 3)Is the offender grievance process an adequate alternative remedy?

• 4)Standard of review

• 5)Substantive issues:

1. Is CSC’s management of the temperatures in Secure at EIFW a breach of its duty under the CCRA?

2. Has CSC’s management of the temperatures in Secure breached inmates’ ss. 7, 12 or 15 rights under the Charter?

• 6)What is the appropriate remedy?

[70] I consider the question of mootness under the substantive issues.

IV. ANALYSIS

A. Elizabeth Fry has Public Interest Standing

[71] The Respondent argues that the Applicant has no public interest standing.

[72] The test for public interest standing was set out in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37 [Downtown Eastside]:

In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts [citations omitted].

[73] These three factors should be applied in a purposive and flexible manner: Downtown Eastside at paras 36-38. They “should not be viewed as items on a checklist or as technical requirements. Instead, the factors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes”: Downtown Eastside at para 36.

(1) Serious and Justiciable Issue

[74] To constitute a serious or important issue the claim must be “far from frivolous” Downtown Eastside at para 42. The criterion of “seriousness” aims at screening out the “mere busybody”: British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 48.

[75] I find that there is a serious issue in this application; namely, the long-standing concerns about extreme temperatures at Secure in EIFW. The Applicant’s allegation that CSC has failed to meet its obligation under s. 70 of the CCRA is far from frivolous.

[76] The Respondent argues the issues raised are not justiciable. It submits that the Applicant has failed to challenge any specific administrative decision or continuing course of conduct flowing from a decision, and so there is nothing for the Court to assess on a standard of reasonableness.

[77] I agree with the Applicant that the issues raised in this application are justiciable; namely, the alleged failure of CSC to meet its statutory obligation to inmates pursuant to s. 70 of the CCRA. Under review is CSC’s continuing course of conduct, or alleged continued inaction, spanning many years, to meet its statutory duty.

[78] The Federal Court of Appeal has repeatedly confirmed that this Court may review the conduct of an administrative body in matters that fall short of formal decisions or orders: Air Passenger Rights v Canada (Attorney General), 2024 FCA 128 [Air Passenger Rights] at paras 18-19; Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 [Canadian Council for Refugees] at para 94, citing Air Canada v Toronto Port Authority, 2011 FCA 347 at paras 24-25. Reviewable “matters” include “a policy or course of conduct”: David Suzuki Foundation v Canada (Health), 2018 FC 380 at para 157; Krause v Canada (CA), 1999 CanLII 9338 (FCA) at paras 23-24; Popal v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17125 (FC), [2000] 3 FC 532 at paras 29 to 31.

[79] The Respondent’s insistence on the existence of an “administrative decision” or a “continuing course of conduct flowing from a decision” (emphasis added) ignores the wording in ss. 18.1(3)(a) and 18.1(4)(f) of the Federal Courts Act. Section 18.1(3)(a) empowers the Court “to order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has delayed in doing” (emphasis added). Further, s. 18.1(4)(f) allows the Court to grant relief where satisfied that the federal board, commission or tribunal “acted in any other way that was contrary to law.”

[80] The Federal Court of Appeal has confirmed that allegations that a public officer has failed to discharge a duty imposed upon them by law is a matter that is amenable to judicial review: Zaghbib v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 182 at para 30. This is precisely what is at issue in the present application.

[81] Conduct falling short of a final decision must have the potential to affect legal rights, impose legal obligations, or cause real prejudicial effects in order to be reviewable: Air Passenger Rights at para 19, citing Canadian Council for Refugees at para 94. That threshold is met here. CSC’s alleged failure to take all reasonable steps to ensure a safe and healthful environment at EIFW, contrary to its obligations under s. 70 of the CCRA, has the potential to affect the rights of inmates and cause them prejudice. The evidence shows that the extreme temperatures in Secure cause physical and mental suffering.

[82] Importantly, and contrary to the Respondent’s oral argument that an application for judicial review can only be about the state of affairs in the “here and now,” this Court in David Suzuki Foundation v Canada (Health), 2017 FC 682 at paragraphs 9-10 rejected the suggestion that a “course of conduct must be on-going at the time that an application for judicial review is heard” to be reviewable (para 28). The Court found there was no authority to support this proposition and was therefore “not prepared to accept such a narrow construction of ‘continuous course of conduct.’ To do so would permit a federal board, for example, to evade the Court’s scrutiny of a long-standing course of conduct by merely ceasing the course of conduct days before the hearing” (para 28). This proposition was affirmed by the Federal Court of Appeal in Key First Nation v Lavallee, 2021 FCA 123 at para 35.

[83] Therefore, the temporary measures taken by CSC in the summer of 2024 – only after this application was filed – do not insulate its conduct from judicial review. The broader matter of CSC’s management of extreme temperatures in Secure at EIFW, dating back more than a decade, is justiciable.

(2) Genuine Interest

[84] The Respondent asserts the Applicant does not have a real stake or genuine interest in the issues raised because the Applicant has not directly sought any relief from the CSC and has not sought standing to raise a complaint under the grievance process. The Respondent also notes that the Applicant last raised concerns about temperatures in Secure in July 2018, in its letter to the Warden. I disagree.

[85] Taking a broad and purposive view of the question at bar, it is clear that the Applicant has a genuine interest in matters concerning the conditions of incarcerated women and gender diverse individuals. The Applicant has referred the Court to prior litigation it has brought for the benefit of incarcerated people: see e.g., Canadian Association of Elizabeth Fry Societies and Acoby v Correctional Service of Canada, 2019 CHRT 30; Canadian Association of Elizabeth Fry Societies v Canada (Public Safety), 2010 FC 470. A history of advocacy has proved persuasive for courts considering the issue of genuine interest: see e.g., Democracy Watch v The Premier of New Brunswick, 2022 NBQB 164 at paras 23-30.

[86] Further, as acknowledged by the Respondent, the Applicant has in fact sought relief from the Warden at the EIFW. Ms. Sinclair sent several letters the EFIW spanning from 2012 to 2018. The uncontested evidence before me is that CSC never responded to these letters.

[87] Based on the foregoing, I find that the Applicant has established it has a real stake and genuine interest in the issues raised in this Application.

(3) Reasonable and Effective

[88] The SCC in Downtown Eastside cautioned against an overly strict or rigid application of the third factor for public interest standing, and encouraged a more flexible, practical and pragmatic approach (paras 45-50). It also set out the following list of illustrative, but non-exhaustive, factors to take into account (para 51):

• The court should consider the plaintiff’s capacity to bring forward a claim. In doing so, it should examine amongst other things, the plaintiff’s resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed factual setting.

• The court should consider whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action. Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected. Of course, this should not be equated with a licence to grant standing to whoever decides to set themselves up as the representative of the poor or marginalized.

• The court should turn its mind to whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. Courts should take a practical and pragmatic approach. The existence of other potential plaintiffs, particularly those who would have standing as of right, is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities…

• The potential impact of the proceedings on the rights of others who are equally or more directly affected should be taken into account. Indeed, courts should pay special attention where private and public interests may come into conflict. As was noted in Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, at p. 1093, the court should consider, for example, whether “the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints”. The converse is also true. If those with a more direct and personal stake in the matter have deliberately refrained from suing, this may argue against exercising discretion in favour of standing.

[89] The mere existence of more directly impacted individuals does not preclude a finding of public interest standing, particularly where the directly affected individuals cannot, “practically speaking,” bring a challenge of their own, or are “unlikely in practical terms to bring the type of challenge brought by the [public interest] plaintiff”: Downtown Eastside at para 47.

[90] In my view, the balance of the foregoing factors favours granting the Applicant public interest standing.

[91] The Applicant in this matter has far greater capacity, including resources and expertise, to present a “sufficiently concrete and well-developed factual setting” about the temperature conditions in Secure over the span of two decades.

[92] There is no question that the inmates are disadvantaged persons whose legal rights are affected; granting the Applicant public interest standing will serve to provide them access to justice, which appears to have evaded them despite their repeated efforts through the inmate complaint and grievance process.

[93] The Respondent heavily emphasizes the existence of the grievance process, and says that until it is exhausted, it is an absolute bar to judicial review. I disagree; this is the type of inflexible, “binary, yes or no, analysis” which the SCC in Downtown Eastside cautioned against at para 50.

[94] Downtown Eastside tells us that, when the Court “turn[s] its mind to whether there are realistic alternative means which would [be] more efficient and effective…the practical prospects of [those who have standing as of right] bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities” (para 51).

[95] Practically speaking, a challenge to the temperature conditions in EIFW of the nature currently before the Court is unlikely to ever be brought by individual inmates. Their stays in Secure or in the EIFW are often transitory in nature. As well, the Respondent can address an individual griever’s circumstances – as they did with Ms. Liao for example – without addressing the unit-wide temperature problem. This gives rise to a realistic concern about mootness as a barrier to judicial reviews of final grievances. Indeed, in this very application the Respondent appears to forget that the affiant inmates are not themselves the applicants, and argues that this matter is moot as none of them are currently being housed in Secure. The Respondent has foreshadowed the type of argument it would make that necessitates a public interest litigant to take up the inmates’ cause.

[96] With respect to the Respondent’s concern for judicial economy, a single application dealing with a unit-wide issue is a more efficient and effective approach than the alternative – which is to have each inmate go through three levels of grievance and then bring a multiplicity of judicial reviews of final grievance decisions concerning the same problem in Secure.

[97] Furthermore, a judicial review brought by an individual applicant would not “present a context more suitable for adversarial determination”: Downtown Eastside at para 51. The present application allows for a more global understanding of the temperature conditions in Secure over many years, the extent to which it is having an effect on inmates, and CSC’s efforts to try to mitigate the issue over the years. Judicial reviews of Final Grievances brought by an individual inmate would not provide the Court with the record it now has to consider the issue, with evidence spanning about eighteen years from several inmates and CSC staff about what is ultimately an institutional building design issue, not an issue particular to any individual inmate.

[98] The discretionary issue of standing ought to be approached generously and not by applying the reasonable and effective means aspect mechanically or as a technical requirement: Downtown Eastside at para 48. Given the totality of the circumstances, including the long history of complaints by inmates, none of which has succeeded in prompting a durable unit-wide solution to the asserted temperature problems in Secure, I would grant public interest standing to the Applicant. I therefore conclude that this application, “in all of the circumstances, [is] a reasonable and effective means” of bringing the matter of temperature control in Secure before the Court: Downtown Eastside at para 52.

B. Admissibility of ATIP Documents

[99] The Respondent submits that the ATIP Documents are not admissible because they are beyond the deponent’s personal knowledge (see Rule 81(1)), and constitute hearsay evidence.

[100] The Applicant submits that the ATIP Documents fall under the principled exception to the hearsay rule or the public documents exception. The Applicant asks the Court to adopt a flexible approach to the evidentiary issue, underlining that no certified tribunal record was filed pursuant to Rule 317 as there is no discrete administrative decision under review.

[101] I agree with the Applicant that in these circumstances a degree of flexibility is called for in considering the evidentiary issue.

[102] Rule 81(1) sets out the general requirement that confines the content of an affidavit to the affiant’s personal knowledge. However, this requirement does not necessarily exclude hearsay evidence when such evidence is deemed reliable and necessary: Ethier v Canada (RCMP Commissioner), 1993 CanLII 2935 (FCA) [Ethier].

[103] This Court’s treatment of ATIP productions in affidavit exhibits has varied widely, often turning on the particular facts: see, Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2025 FC 1156 at para 130; Pelletier v Canada, 2020 FC 1019 at para 14; Morton v Canada (Fisheries and Oceans), 2019 FC 143 at paras 278-281; Sierra Club of Canada v Canada (Minister of Finance), 1998 CanLII 8950 (FC) [Sierra Club] at paras 24, 31, 35-37; Canada v Mennes, 2004 FC 1731 [Mennes] at para 36; Madsen v. Canada (Attorney General), 1996 CanLII 20116 (FC) at para 39.

[104] In Sierra Club, this Court followed the Federal Court of Appeal’s decision in Ethier, where the ATIP documents were found to meet the twin criteria of necessity and reliability (at para 24). In Ethier, Justice Hugessen concluded that documents belonging to a government body, and the respondent in that case, met the criteria of reliability. Similarly, the ATIP Documents here come from the CSC and the OCI. On necessity, he stated the following (Sierra Club at para 24, citing Ethier at p 376):

There can equally be no serious question as to the criterion of necessity in the circumstances. Respondents, by their counsel, had blocked any normal means of access to the material. Even once it was obtained through Access to Information Act proceedings it was hardly realistic to expect appellant's solicitor to approach the various declarants and seek affidavits from them, assuming that he could have done so without committing a serious breach of professional ethics. Their production, by means of the Supplementary Affidavit, was clearly the most practical and convenient way to bring them forward without putting in jeopardy any of the respondent's rights to reply or explain if they wished to do so.

[105] Similarly, this Court in Canada v Mennes, 2004 FC 1731 [Mennes], relied on Ethier to find that documents obtained through an ATIP request from CSC were admissible. Specifically, the Court noted that, “[w]hile the preferable and proper route would have been to have the named individuals from CSC…swear affidavits…Rule 81(2) provides the option of attaching less weight to affidavits that fail to produce the best evidence”: Mennes at para 36.

[106] Likewise, the ATIP Documents meet the requirement of necessity: while the Applicant might have theoretically sought the “best evidence” by obtaining an affidavit from the declarants of the statements in the ATIP Documents, it is doubtful such efforts would have been successful. As noted in Ethier, relying on the ATIP production was the most practical and convenient way of adducing this evidence. The manner in which the evidence was brought before the Court will simply have a bearing on the weight it is attributed.

[107] With respect to reliability, I agree with the Respondent that care must be given to how the ATIP Documents are used.

[108] The ATIP Documents consist primarily of inmate complaint/grievance forms and CSC’s responses. Also included are some internal emails between CSC staff discussing the temperatures in Secure. In terms of the purpose the evidence is being used for, I would draw a distinction between the statements made by inmates in their complaints about the temperature on the one hand (which are redacted from the ATIP Documents in any case, and only briefly summarized in the grievance responses), and CSC staff’s responses and internal emails on the other.

[109] Where CSC staff acknowledge that there is a significant temperature problem that they are trying to address, I would consider that the circumstances in which those statements were made lend sufficient credibility to allow a finding of threshold reliability: R v Khelawon, 2006 SCC 57 at para 51 [Khelawon], citing R v Starr, 2000 SCC 40 at para 217. The circumstances in which the comments from CSC staff arose create no real concern about whether their statements are true: Khelawon at para 62. Put another way, there is sufficient substantive reliability surrounding the CSC staff’s statements responding to and discussing complaints about the heat in Secure: R v Bradshaw, 2017 SCC 35 at paras 30-31 [Bradshaw].

[110] Furthermore, I note that CSC’s concerns with excessive heat, as well as the staff’s interpretation of the Technical Criteria as entirely determinative of installing A/C in inmate-occupied areas, is corroborated by the evidence from the inmate affiants, as well as the evidence from Mr. Letwin and Mr. Long in their cross-examination. The Court is permitted to rely on corroborative evidence to establish threshold reliability of hearsay evidence: Bradshaw at para 38. In this case, the corroboration of the “unbearable” heat conditions in Secure, as well as CSC’s interpretation of the Technical Criteria, work in conjunction with the trustworthy circumstances in which those hearsay statements were made, to provide sufficient substantive reliability to the hearsay evidence: Bradshaw at para 47.

[111] The Supreme Court of Canada in Bradshaw was careful to distinguish between threshold and ultimate reliability: Bradshaw at paras 39-40. Given the foregoing analysis, I consider the ATIP Documents to meet the requirements of threshold reliability. However, their ultimate reliability is diminished somewhat as Ms. Dustin cannot swear to the truth of their contents, nor can the declarants be cross-examined.

[112] I therefore conclude that the ATIP Documents are admissible.

C. Adequate Alternative Remedy

[113] The Respondent submits that the offender complaint and grievance process, under the s. 90 of the CCRA and sections 74 to 82 of the CCRR, provides an adequate alternative remedy and that this process ought to have been exhausted prior to seeking recourse before this Court.

[114] The Federal Court of Appeal explained the doctrine of adequate alternative remedy in Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paragraph 86:

Administrative law cases and textbooks express this principle in many different ways: adequate alternative forum, the doctrine of exhaustion, the doctrine against fragmentation or bifurcation of proceedings, the rule against interlocutory judicial reviews and the rule against premature judicial reviews. They all address the same idea: someone has rushed off to a judicial review court when adequate, effective recourse exists elsewhere or at another time.

[115] The Applicant acknowledges that the grievance procedure is normally a prerequisite to judicial review but argues that in the particular circumstances of this case that this process is not an adequate alternative remedy and there are exceptional circumstances that justify bypassing it.

[116] The arguments raise two issues to be determined: (a) is the offender grievance process an adequate alternative remedy in the circumstances of this case; and, if it is, (b) are their exceptional circumstances that justify by passing the grievance process.

[117] My conclusions are as follows:

• a)The grievance process is an adequate alternative remedy to manage low temperatures in Secure and there are no exceptional circumstances to warrant bypassing the process;

• b)The grievance process is not an adequate alternative remedy to manage excessively high temperatures in Secure. It is therefore unnecessary to consider whether there are exceptional circumstances to bypass the grievance process.

(1) Legal test

[118] In Canada v CB Powell Limited, 2010 FCA 61, the Federal Court of Appeal ruled that absent exceptional circumstances, courts should not entertain a judicial review until all adequate alternative processes are exhausted (at para 31).

[119] Subsequently, the Supreme Court of Canada in Strickland v. Canada (Attorney General), 2015 SCC 37 [Strickland], provided direction on how to determine if an alternative remedy is in fact adequate. “[T]he Supreme Court entrusted judges with a wide discretion to decide whether an alternative remedy is adequate in the circumstances”: Cogeco Communications Inc. v. Canada (Attorney General), 2026 FC 10 at para 40. The question is whether the alternative remedy is adequate in all the circumstances to address the applicant’s concern: Strickland at para 42. The Court outlined several non-exhaustive factors to consider in assessing the viability of an alternative remedy (at para 42). These include:

• the convenience of the alternative remedy;

• the nature of the error alleged;

• the nature of the other forum which could deal with the issue, including its remedial capacity;

• the existence of adequate and effective recourse in the forum in which litigation is already taking place;

• expeditiousness;

• the relative expertise of the alternative decision-maker;

• economical use of judicial resources and cost.

[120] The Court further explained, at paragraphs 43 and 44:

Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: Khosa, at para. 36; TeleZone, at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant . . .” (Canada (Auditor General), at p. 96).

This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue….

[121] This approach was recently reiterated by the Supreme Court in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 [Yatar] at paragraph 56.

[122] The Respondent emphasizes that this Court has frequently exercised its discretion to dismiss judicial reviews brought by inmates who have failed to exhaust the grievance process. The cases relied on by the Respondent include challenges to an inmate’s security classification (MacInnes v Mountain Institution, 2014 FC 212 [MacInnes] at para 17; Marleau v. Canada (Attorney General), 2011 FC 1149 at para 28 and 33-34; Ritch v Canada, 2022 FC 1462 at paras 22-29; Karas v Canada, 2020 FC 345 at para 23); the suspension and termination of two inmates’ work placements (Rose v Canada, 2011 FC 1495 at para 45); an inmate’s access to particular medical treatment (MacInnes; Nome v Canada, 2016 FC 187 at paras 19-26); and, the denial of certain procedural rights to an inmate in segregation (Thompson v Canada, 2018 FC 40 at paras 14-17).

(2) Application of the legal test

[123] I turn now to the balancing exercise called for in Strickland to determine whether the offender grievance process provides an adequate alternative remedy to address extreme temperatures in Secure.

[124] As directed in Stickland, the purpose and policy considerations of the grievance process must be considered.

[125] The purpose of the grievance process is to provide a “fair and expeditious resolution of offender complaints and grievances at the lowest possible level in a manner that is consistent with the law”: Commissioner's Directive 081; CCRA at s. 90. “The process allows inmates to pursue any complaint up the successive administrative rungs of CSC so that supervisors are reviewing the actions of their subordinates”: May v. Ferndale Institution, 2005 SCC 82 at paras 56-57.

[126] There are strong policy reasons for the general rule requiring inmates to exhaust the internal grievance process. First, “to hold otherwise is to undermine the legitimacy of alternative remedies by assigning them to a secondary position”: Marachelian v. Canada (Attorney General) 2000 CanLII 17154 (FC) [Marachelian] at para 10. Second, there are generally practical benefits to the grievance process. These benefits include timeliness, CSC’s familiarity with the unique corrections environment, and economy: Marachelian at para 10. Accordingly, Courts are usually reluctant to interfere in the offender grievance process: Gates v (Attorney General), 2007 FC 1058 [Gates] at para 26.

[127] With this jurisprudence in mind, and based on the record, I conclude that the inmate complaint and grievance processes is capable of providing adequate recourse for excessively cold temperatures in Secure. Overall, there are relatively few complaints about cold temperatures. More often than not, these complaints appear to have been resolved in a reasonably timely way, albeit perhaps not to the complete satisfaction of all inmates. Importantly, the evidence shows that the building equipment in Secure allows staff to increase the temperature when it is too cold.

[128] The same cannot be said for complaints about excessive heat in the inmate-occupied areas of Secure.

[129] The grievance process is designed to address an “inmate’s dissatisfaction with an action or a decision by a staff member”: CCRR, s. 74(1). The evidence suggests that the high temperatures in Secure are due to the inability of the building equipment to cool the indoor temperature. The root of the concern lies in the existing building structure and equipment, not about a particular decision by a staff member. The institutional nature of the concern in the present case distinguishes it from the cases cited by the Respondent, which challenge decisions made with respect to individual inmates, such as a security classification or a job placement. In short, the grievance process is fundamentally ill-equipped to address inadequate climate control equipment, and I am not satisfied that the grievance process was intended or designed to address such issues.

[130] In these circumstances, the usual practical advantages of the grievance process—such as timeliness, cost-effectiveness, and CSC’s expertise—are not realized. The record before me demonstrates that inmate requests, complaints and grievances about excessive heat have been ongoing and numerous, dating back to at least 2011 and yet there is still no durable solution. The best that can be expected from the grievance process is an individual accommodation of the griever, leaving the remainder of the inmates and staff in Secure to suffer through the heat.

[131] I am satisfied that the economical use of judicial resources and costs favours a single application dealing with a unit-wide equipment issue, as opposed to processing potentially numerous judicial reviews arising from multiple grievances.

[132] Furthermore, a challenge to the temperature conditions in EIFW of the nature currently before the Court is unlikely to ever be brought by individual inmates for the reasons explained above (i.e., mootness, capacity constraints). Many of the considerations under the public standing test are relevant here.

[133] Even if an inmate were to bring such an application, the evidence before this Court would be limited to the inmate’s grievance file that was before CSC: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 [Access Copyright]. The present application however allows for longitudinal evidence about both the temperature conditions and the mitigation measures taken by CSC. This longitudinal evidence is necessary to consider what is ultimately an institutional infrastructure issue.

[134] The Applicant argues there are excessive delays in the grievance process. Respectfully, delays are not the issue here. The issue is that the grievance process is not designed to address infrastructure limits.

[135] Balancing these considerations, I am satisfied that the grievance process is not an adequate alternative remedy to address the inmates’ concerns about excessive heat in Secure. Based on the record before the Court, it cannot be said that the grievance process has been effective in resolving the problem: Ewert v Canada, 2018 SCC 30 [Ewert SCC] at para 84. I am not persuaded that I ought to exercise my discretion to dismiss the judicial review in relation to CSC’s management of excessively high temperatures in Secure.

[136] However, I conclude that the grievance process provides an adequate alternative remedy to address excessively cold temperatures in Secure. Further, the evidence before me falls short of establishing there are exceptional circumstances that justify bypassing the grievance process to address situations where the temperatures in Secure are low. As noted above, the evidence shows that the inmate request system, along with the complaint and grievance process, while imperfect, appears to have provided an avenue for relief for most cold temperature complaints. This is not the same as the situation in Gates, where there was no assurance that complaints of cold temperature would be acted upon by the responsible employee (at para 33). Accordingly, I exercise my discretion to decline to consider the application as it relates to excessively cold temperatures in Secure.

[137] I turn now to the standard of review and the substantive grounds for judicial review raised by the Applicant.

D. Substantive Issues

[138] The Applicant raises the following grounds for judicial review: (1) whether CSC’s management of the temperatures in Secure is a breach of its statutory duty under the CCRA; and (2) whether CSC’s management of the temperatures in Secure has breached inmates’ ss. 7, 12 and 15 rights under the Charter.

(1) Standard of Review

[139] With respect to question (1), the Applicant submits that the Court can simply determine CSC’s conduct was “unlawful,” and failing this, it says the question is one of reasonableness in meeting s. 70 of the CCRA.

[140] The Respondent submits that the standard of review for question (1) is reasonableness, as nothing displaces the presumption of reasonableness as per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 23, 25.

[141] In determining if the CSC has breached s. 70 of the CCRA and whether it has a legal duty to take additional steps to manage the temperatures in Secure, this Court must undertake a review of CSC’s continuing course of conduct. I agree with the Respondent: the presumptive standard of reasonableness applies to this question: Vavilov at para 23 and 25. The Court will consider whether CSC was sufficiently alive to the text, context and purpose of s. 70 of the CCRA and reached an interpretation that is defensible considering the legal and factual constraints: Le-Vel Brands, LLC v Canada (Attorney General), 2023 FCA 66 at para 16, citing Vavilov at paras. 115-124.

[142] In considering the Applicant’s request for mandamus there is no applicable standard of review: Bedard v Canada (Attorney General), 2024 FC 570 at para 24; Samideh v Canada (Citizenship and Immigration), 2023 FC 854 at para 22; Benison v. Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 at para 42 [Benison].

[143] As will be seen in my analysis below, the standard of review for question (2) is of no moment, as question (1) is determinative of this Application.

(2) Breach of Statutory Duty

[144] The central question is whether CSC has unreasonably failed or refused to take all reasonable steps to ensure safe and healthy temperatures in Secure at the EIFW as required by s. 70 of the CCRA. Section 70 provides:

Living conditions, etc. 70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity. [Emphasis added]

Conditions de vie 70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des détenus et les conditions de travail des agents soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine. [Non souligné dans l’original.]

[145] The obligation in s. 70 of the CCRA is elaborated on in s. 83(1) of the CCRR:

Physical Conditions 83 (1) The Service shall, to ensure a safe and healthful penitentiary environment, ensure that all applicable federal health, safety, sanitation and fire laws are complied with in each penitentiary and that every penitentiary is inspected regularly by the persons responsible for enforcing those laws. [Emphasis added]

Conditions matérielles 83 (1) Pour assurer un milieu pénitentiaire sain et sécuritaire, le Service doit veiller à ce que chaque pénitencier soit conforme aux exigences des lois fédérales applicables en matière de santé, de sécurité, d’hygiène et de prévention des incendies et qu’il soit inspecté régulièrement par les responsables de l’application de ces lois. [Non souligné dans l’original.]

[146] Based on the record before me, it is not possible to determine whether s. 83(1) has been complied with. The factual foundation is lacking. As noted, the evidence is that CSC did not log the temperature readings in Secure. It is not apparent how a determination on CSC’s compliance with s. 83(1) could be made in the absence of temperature readings to compare with the limits prescribed by the applicable health and safety laws. While I am unable to determine if CSC complied with s.83(1) of CCRR, the duty imposed on CSC by s.83(1) informs the scope of its duty under s.70 of the CCRA. I elaborate on this below.

[147] The Applicant submits that the temperatures in the inmate-occupied areas of Secure become excessively high to the point of being unsafe and unhealthy, and that CSC has failed or refused to take “all reasonable steps” to address the matter. The Applicant relies on the Technical Criteria to argue that safe temperatures are between 21-23 °C in the summer and 20-23.5 °C in the winter. It further argues that the mitigation measures cited by CSC to manage high temperatures have been ineffective.

[148] The Respondent denies that Secure gets excessively hot and argues that the maintenance of temperatures in Secure is reasonable. The Respondent relies on efforts by the Maintenance Department to monitor temperatures and recent upgrades to the BMS System. It is submitted that the department endeavors to keep the temperatures in Secure within the Canada Occupational Health and Safety Regulations, SOR/86-304 [COHS] standards for an office environment, which is between 23-26 °C in the summer, and 20-23.5 °C in the winter. The Respondent says that if “a temperature reading comes back outside the applicable range, the maintenance department will diagnose the problem and action it as appropriate.” The Respondent also points to other heat mitigation measures taken by CSC (i.e., allowing inmates to purchase fans and take cold showers) and argues that steps taken by EIFW in the summer of 2024, after this Application was filed, have resolved any temperature problem that may have existed.

[149] Contrary to the Respondent’s position, I find that the evidence clearly establishes the following:

• a)temperatures in the inmate-occupied areas of Secure are excessively high at certain times of the year;

• b)this is a long-standing issue; and,

• c)since at least 2012, CSC has known that the building design and existing temperature regulation equipment in Secure fail to mitigate – or may actively contribute to – the extremely high temperatures.

[150] The evidence further establishes that the excessive heat is the worst in the East Pod and in the cells in Secure. High temperatures are a problem in the cells in both the Cold and Hot Months but are worse during the Hot Months. This issue is particularly acute during lock-up at night, when there is restricted airflow in the cells for many hours.

[151] The following statements from CSC staff and the OCI support these findings:

• Mr. Letwin stated during his cross-examination that the cells in Secure get hot and that the East Pod is the worst.
• Mr. Long acknowledged during his cross-examination that A/C was installed in 2021 in the central rotunda area in Secure (where CSC staff work), in part, because of complaints from staff about unsafe working conditions.
• A statement from the OCI in response to inmate complaints in the summer of 2020 about the high temperatures in Secure at EIFW provides: “Conditions of confinement, such as the reported excessive heat within the secure unit has been an on-going subject of conversation at the OCI.”
• Internal emails between CSC staff in the summer of 2020, say there have been several inmate complaints about the heat in Secure at EIFW and that its Warden and Assistant Warden have confirmed the heat is “unbearable”. It is described as a recurring problem. EIFW has taken steps to try to mitigate the heat, but no viable solution was found. A “national directive” (the Technical Criteria) that prohibits A/C in living units is cited as a barrier to solving the problem.
• Memoranda from April and July of 2020 appended to Ms. Liao’s affidavit, authored by CSC, refer to “that time of year again where the East Pod becomes unbearably hot” and “heat issues on the unit”.
• Emails between CSC employees from July 2012 include statements such as the “issue seems to be more significant than fans. The east pod in particular gets extremely hot” which aggravates tensions in Secure. A Chief Engineer for EIFW states that after several days of hot weather Secure cannot cool down at night, that the system is operating as designed and installed, and there is no method with the existing system to have fresh air enter without going through the heat exchange. Mr. Letwin confirmed during his cross-examination this was an accurate description of how the equipment in Secure worked.
• In response to inmate complaints about the “heat problem” in August 2012, CSC explained that “[d]uring our interview I showed you an email from Maintenance that shows that not much can be done. This is due to the way the unit was built.”
• In response to a group complaint in April 2014, CSC stated, the “east pod is the warmest of all pods. A large fan was provided … as well as individual fans for each cell”. “Fixing the heat on the unit will be a large expense that, at this time, EIFW is not able to facilitate. The staff have done the best they can to assist in cooling down the pods, but until the infrastructure changes, the reality is the heat will continue to be an issue”.
• In response to an inmate complaint in May 2015, CSC said it is “hot on all pods”, “that we had to find a more permanent solution than to bolt plastic fans to the floor”, that it was an “ongoing issue” and that “multiple options were being presented to the Management Team.” In response to an initial grievance submitted by a group of inmates in June of the same year, portable A/C units were installed on the “ranges”. The response notes that this was “an interim measure until the units can be secured on the pods.”

[152] Corroborating these statements from CSC and the OCI above, is the following evidence:

• The inmate affidavits describe in some detail the excessive heat during their stays in Secure (spanning from June 2018 to May 2024). They say the excessive heat in the cells is an issue in both the Cold and Hot Months, but is worse during the Hot Months and is most acute during lock-up at night, when there is restricted airflow in the cells;
• In excess of 30 written inmate requests, complaints and grievances, including group complaints and grievances, spanning about fifteen years, about excessively high temperatures in Secure.
• Letters dating back to 2012 from the Applicant to the EIFW about the problem.

[153] Further, I agree with the Applicant: CSC’s history of implementing heat mitigation measures effectively concedes the existence of the very temperature problem the Respondent now denies.

[154] The Applicant has established that the CSC possessed knowledge of potentially unsafe temperatures in Secure since at least 2012.

[155] The Court must now determine whether the Application is moot, and if it is not, whether the CSC took “all reasonable steps” to ensure safe living conditions for the inmates as required by s. 70 of the CCRA.

[156] I first address the Respondent’s submission that any temperature problem has been solved and the issues in this judicial review are therefore moot.

(a) Has the problem been solved?

[157] The Respondent argues there is no live controversy between the parties because: (1) the four inmates who provided affidavit evidence are no longer housed in Secure, and (2) any temperature problems in Secure (which the Respondent expressly denies the existence of) have been resolved. In asserting any problem has been resolved, the Respondent points to recent BMS upgrades expected to improve temperature monitoring and maintenance, measures it took in the summer of 2024 after this judicial review was filed, and an absence of temperature related grievances since 2023.

[158] The Respondent has not established that the judicial review is moot.

[159] First, the affiant inmates are not themselves the applicants and so their current presence in Secure is irrelevant to the issue of mootness. The Applicant brings this judicial review for the benefit of all inmates housed in Secure. There is no dispute that inmates are still housed in Secure.

[160] Second, the evidence does not establish that the recent upgrades to the BMS system and steps taken in the summer of 2024 solved the problem of excessively high temperatures in Secure, or that they are durable solution to the problem. A concrete dispute between the parties remains. The Respondent’s affidavit evidence speaks to what CSC intends to do for the summer of 2024 and what outcomes are anticipated from the BMS upgrades. The affidavits do not speak to whether these steps have in fact resolved the problem of extreme temperatures in Secure. If the problem were resolved, it would have been a simple matter for CSC to provide evidence of its temperature readings in 2024. No such evidence was filed.

[161] With respect to the BMS upgrades, Mr. Letwin conceded on cross-examination that adjusting the temperatures using the existing system has little to no effect on reducing the temperature in Secure. In short, the equipment in Secure is heating equipment, not climate control equipment. Therefore, there is no basis to conclude that the BMS upgrades could have resolved the problem of high temperatures in Secure.

[162] According to Mr. Long’s affidavit, one measure taken in the summer of 2024 was allowing inmates who had medical conditions that made them vulnerable to extreme heat to make a request for a portable A/C unit. In cross-examination Mr. Long testified that not a single inmate made such a request. He testified that he didn’t know if this new measure was communicated to the inmates. Setting aside my doubt that the inmates were in fact advised of this new measure, the mere existence of a request process—absent any evidence of its practical implementation—does not establish that the measure has resolved the problem rendering it moot.

[163] Mr. Long testified that in addition to the “cool down zones” described in his affidavit (which he acknowledged in cross-examination were insufficient), a decision was made to bring window A/C units into the common areas in Secure for July, August and September of 2024. In cross examination Mr. Long and Mr. Letwin said that the A/C units improved the situation in the common areas, but not the cells. They reported positive feedback from inmates and staff and said that complaints about excessively warm temperatures dropped off.

[164] Mr. Letwin said that the portable A/C units in the common area did not impact the temperature in the cells and confirmed there were no A/C units in the cells.

[165] Separate and apart from the unresolved temperature problem in the cells, there is no evidence that CSC intends to maintain the 2024 strategy into the future. Notably, CSC only implemented this measure—which appears to mirror a temporary fix in 2015—after this Application was filed. Mr. Long’s affidavit describes this measure and others as “[f]or the summer of 2024”, suggesting they are time limited. Only CSC possesses details of its long-term heat mitigation plans, yet it has provided no evidence of a long-term commitment to the measures taken in 2024.

[166] Finally, while there are no post-2023 temperature related grievances in the record before me, the Maximo logs appended to Mr. Letwin’s affidavit undermine the suggestion that the problem was resolved. The Maximo logs cover reports to the Maintenance Department from June 2022 to June 2024. They show there were several complaints of high temperatures in Secure in 2023 and 2024.

[167] Even if the Application were moot, I would exercise my discretion to hear it: Borowski v Canada, [1989] 1 S.C.R. 342. I am satisfied that an adversarial context remains. This judicial review challenges conduct that has persisted since at least 2012. In these circumstances, the Respondent’s eleventh-hour steps – of questionable utility and permanence – are not enough to negate the adversarial context. The Application raises an issue of a recurring nature that might otherwise evade review. Judicial economy and the public interest favours determining the case on its merits.

[168] I now consider whether CSC has complied with its statutory obligation.

(b) CSC has not taken “all reasonable steps”

[169] At the outset, it is necessary to consider the nature and scope of the obligation that s. 70 of the CCRA imposes on the CSC. For convenience, the provision is set out again below:

Living conditions, etc. 70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity. [Emphasis added]

Conditions de vie 70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des détenus et les conditions de travail des agents soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine. [Non souligné dans l’original.]

[170] The “modern principle” of statutory interpretation focuses on the overall context of the legislation, assessing the words chosen by the legislature in their grammatical and ordinary sense harmoniously with the scheme of the act, its object and the legislature’s intent: Vavilov at paras 110, 115–124; Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para 21. Importantly, the text of the provision “remains the anchor of the interpretive exercise,” as it reveals “among other things, the means chosen by the legislature to achieve its purposes”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para 24.

[171] In considering the plain wording of s. 70 within the overall context of the CCRA and in light of the Act’s purpose as described in s. 3(a) and 4(d), I find that the arguments of the Applicant and Respondent both miss the mark.

[172] The text of s. 70 provides that CSC “shall take all reasonable steps” (emphasis added). The use of “shall” denotes a mandatory obligation. Further, the provision demands that all reasonable steps be taken, not just some reasonable steps. The Respondent’s argument, and CSC’s interpretation of s. 70, is premised on having taken some reasonable measures, without considering whether there are additional reasonable steps that may be taken to ensure the temperature in Secure is safe and healthy. As described further below, this approach is not defensible and does not align with Parliament’s intent as expressed in s. 70.

[173] On the other hand, the Applicant’s argument rests on an assumption that s. 70 imposes an obligation on CSC to ensure a certain temperature range: this overstates the duty on CSC. Section 70 imposes what is described in civil law, as an “obligation of means”, not an “obligation of result”: see definitions in F Allard et al, eds, Private Law Dictionary of Obligations and Bilingual Lexicons, (Cowansville, QC: Yvon Blais, 2003) sub verbo “obligation of means”. An obligation of means is one which is satisfied by objective best efforts (Desrochers v. Canada, 2005 FC 987 [Desrochers] at para 62) or here, by taking “all reasonable steps to ensure…”. An obligation of result is more intense: Desrochers at para 62. If Parliament intended there to be an obligation of result, it could have omitted the phrase “all reasonable steps” and simply required that CSC “shall ensure that penitentiaries …. living and working conditions … are safe, healthful and free of practices that undermine a person’s sense of personal dignity”.

[174] Delineating the scope of s. 70 informs both the burden that rests on the Applicant, and the determination of whether there was a breach.

[175] The Applicant need not establish through expert medical evidence that the conditions in Secure are unsafe or unhealthy, contrary to the Respondent’s suggestion: Ewert SCC at para 47. It is sufficient that the Applicant has established that the CSC had knowledge, spanning many years, that the high temperatures in Secure are potentially unsafe and unhealthy. Once CSC had knowledge that the living conditions could be unsafe or unhealthy, and that existing mitigation measures were insufficient, its duty to take additional reasonable steps under s. 70 was triggered.

[176] The Applicant has discharged its burden. It has established that CSC has failed to meet its obligation under s. 70 with respect to the inmates in Secure. I conclude that there are at least two “reasonable steps” CSC has failed to take to ensure that the living conditions in Secure are “safe and healthful”. The evidence before the Court is that, despite knowing as early as 2012 there are design problems with the temperature regulation systems in Secure, and the result is that Secure becomes “very,” “extremely,” or “unbearably hot,” CSC has not: (1) maintained a written temperature log, nor (2) taken steps to enquire about installing A/C in the cells in Secure.

[177] Once CSC had knowledge of the chronic heat issues in Secure, its statutory duty to take steps to maintain healthy living conditions reasonably required consistent monitoring and recording of temperature data. Moreover, CSC’s duty under s. 83(1) of the CCRR to ensure compliance with applicable health and safety laws underscores the importance of maintaining a temperature log.

[178] The evidence is that the Maintenance Department regularly monitored the temperatures and took readings one or two times a day at least 5 days a week. Remarkably, however, no one directed the Maintenance Department to record this temperature data. This was a significant oversight and unreasonable given the circumstances, including the nature of the interests at stake, namely the health and safety of human beings.

[179] Further, the evidence before me suggests that CSC has not sought permission from its National Headquarters to install A/C to manage the temperatures in the cells in Secure. The failure to take this step appears to be rooted in CSC’s interpretation of provisions in the Technical Criteria as a complete bar to installing A/C in inmate-occupied areas. The relevant provision from the Technical Criteria is found in chapter M-4, paragraph 4.2. It reads as follows:

Except as provided in 4.3, air conditioning shall not be provided in inmate-occupied areas unless special approval has been obtained from NHQ – Technical Services.

[180] I find that CSC’s reading of the Technical Criteria is unreasonable for three reasons.

[181] First, the purpose of the Technical Criteria is to “guide construction material and assembly requirements for new builds”. It is not apparent they apply to existing buildings like the EIFW.

[182] Second, even if in practice the Technical Criteria are relied on when considering upgrades to existing buildings, CSC’s interpretation is contrary to the plain language of chapter M-4, s. 4.2. This paragraph states that A/C cannot be installed in inmate-occupied areas, “unless special approval has been obtained from NHQ – Technical Services.” It is not an absolute bar.

[183] Third, and most importantly, the CCRA operates as a legal constraint on the CSC. Legal and factual constraints dictate the limits and contours of the space in which the CSC may act and the types of solutions it may adopt: Vavilov at para 90. A decision will be unreasonable if it is untenable in light of a legal constraint that bears upon a decision-maker: Vavilov at paras 68, 99 and 101.

[184] This means that, to the extent that CSC relies on Technical Criteria to make decisions, it must do so within the legal constraints set out in the CCRA and CCRR. In considering requests for A/C in inmate-occupied areas it would be unreasonable for the CSC to interpret the general prohibition in the Technical Criteria as determinative, without regard to its legal duty in s. 70 of the CCRA to take all reasonable steps to ensure healthy and safe living and working conditions in EIFW as well as its legal obligation under s. 83(1) of the CCRA.

[185] The Respondent has not adduced any evidence to show that a request for special approval for A/C has been made. The option to seek special approval for A/C equipment as set out in the Technical Criteria is an available “reasonable step” under s. 70 that can be taken by CSC.

[186] Given the evidence about the persistence of this problem despite CSC’s many efforts over the years, and the apparent design problems with this particular unit of EIFW, s. 70 of the CCRA requires CSC to give serious and meaningful consideration to installing A/C in the inmate-occupied areas of Secure. Its consideration of the request to install A/C should be unburdened by the general prohibition against A/C expressed in the Technical Criteria.

[187] I am unable to agree with the Applicant’s suggestion that the temperatures in Secure must always remain within the tight ranges specified in the Technical Criteria. I agree with the Respondent that while the Technical Criteria may be instructive on what reasonable temperatures are, they are not binding and do not have force of law. I note that for the same reason, CSC’s interpretation of s. 4.2 as binding and entirely preclusive of installing A/C in inmate-occupied areas is unreasonable.

[188] I take no issue with the Respondent’s position that CSC has taken all reasonable steps with respect to addressing the very low temperatures in the common areas during the Cold Months. The record demonstrates that recent complaints about cold temperatures in Secure, including through Maximo, are scant. Mr. Letwin’s evidence is that the BMS upgrades should have allowed the Maintenance Department to “manage the colder temperatures.” The Applicant has adduced no evidence that post-dates the BMS upgrades to suggest that they failed to rectify the problem.

[189] However, Mr. Letwin’s evidence is also that none of the BMS upgrades could do anything to address the extreme heat on Secure. The only control the Maintenance Department has over the temperature in Secure is to increase or reduce the heat via the HVAC and in-slab boiler heating systems. He was abundantly clear that, without A/C, it will be impossible to cool the common areas or cells in Secure.

(3) Charter Breach

[190] My conclusion that CSC has breached s. 70 of the CCRA is sufficient to dispose of the judicial review. It is unnecessary to consider the Applicant’s Charter arguments.

E. Remedy

[191] The Applicant seeks both a declaration and mandamus.

[192] The Court retains discretion to refuse a remedy, even where the applicant has established the merits of a judicial review: Yatar, at para 54; Strickland, at paras 37-38.

[193] While the Applicant has established that CSC’s continuing conduct is unreasonable as it amounts to a breach of its statutory duty under s. 70 of the CCRA, I am not persuaded that a declaration is an appropriate remedy.

[194] The declaration sought is that the conditions of confinement in Secure at EIFW are unlawful. The requested declaration exceeds the scope of my findings on the merits: I have found that the CSC breached its statutory duty under s. 70 of the CCRA. Even on this narrower basis, a declaration in my view would not provide additional clarity and would have the almost inevitable effect of creating ongoing litigation about whether the order is being complied with: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 2 S.C.R. 340 at para 128. The Applicant has not explained how a declaration would be of any practical utility and I am not convinced it would be.

[195] An order of mandamus on the other hand, may have practical utility.

[196] The Applicant seeks a writ of mandamus directing CSC to:

• a)immediately cease the illegal conduct and take steps to maintain the temperatures in all areas in Secure within the range of 21-23 °C in the summer, and 20-23.5 °C in the winter; and

• b)report to the Court on a consistent basis on steps taken to cease the illegal conditions.

[197] Remedies should flow from the findings made on the merits. Accordingly, I will consider a refined version of the requested order for mandamus which aligns with the evidence and my conclusions on the breach of statutory duty:

A writ of mandamus compelling CSC to take the following steps,

• a)Record and retain a log of all temperature readings from its regular monitoring (which occurs at least 5 days a week), in inmate-occupied areas of Secure, including but not limited to those areas most prone to excessively high temperatures, such as the cells and the East Pod.

• b)To seek authorization from CSC National Headquarters to install A/C in the inmate-occupied areas in Secure, including the cells; and

• c)To report to the Court on a consistent basis on steps taken to remedy its breach of s. 70 of the CCRA.

[198] I will first address the Applicant’s request for ongoing Court supervision (paragraph (c) above). The Applicant submits that the Court has the power to retain jurisdiction and supervise CSC’s implementation of any order of this Court and explained that it is not in a position to monitor CSC.

[199] I do not dispute that the Court has the requisite jurisdiction to issue such an order. However, this Court and the Federal Court of Appeal have consistently counseled for judicial restraint in “making orders that require ongoing supervision or ‘cumbersome court-supervised updating’”: Rogers Media Inc. v. John Doe 1, 2024 FC 1082 at para 49; Jodhan v. Canada (Attorney General) 2012 FCA 161 at paras 165-184. Ongoing supervision of CSC’s implementation of an order invites the Court to interfere with the management of public administration. As explained by Justices LeBel and Deschamps, “[a]side from their duties to supervise administrative tribunals created by the executive and to act as vigilant guardians of constitutional rights and the rule of law, courts should, as a general rule, avoid interfering in the management of public administration.”: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 [Doucet-Boudreau] at para 110, for the dissent.

[200] While CSC has known about the problem of extreme temperatures in Secure for many years, this is the first time it has had the benefit of a Court pronouncement on the issue. It must be presumed that CSC will carefully consider the Court’s reasons and abide by any order with reasonable diligence and good faith or otherwise commence an appeal: Doucet-Boudreau at para 111. For these reasons, I refuse the request to issue an order that provides for direct ongoing supervision of CSC or reporting to this Court.

[201] I turn now to paragraphs (a) and (b) of the proposed mandamus order.

[202] The parties agree on the applicable legal test. As set out in Apotex Inc. v Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742 at 766-769, aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100 [Apotex], the test for mandamus is as follows:

• 1)There must be a public legal duty to act;

• 2)The duty must be owed to the applicant;

• 3)There is a clear right to performance of that duty, in that the applicant has satisfied all conditions precedent giving rise to the duty and there was a prior demand for its performance, a reasonable time to comply with the demand and a subsequent refusal, either expressed or implied (e.g., by unreasonable delay);

• 4)Where the duty sought to be enforced is discretionary, the following rules apply:

1. in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;

2. mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;

3. in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;

4. mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and

5. mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty.

• 5)No other adequate remedy is available to the applicant;

• 6)The order will be of some practical value or effect;

• 7)There is no equitable bar to the relief sought; and

• 8)The balance of convenience favours issuing the order.

[203] The test is conjunctive: if any of the eight criteria are not favourable to the Applicant, mandamus will be denied: Benison at para 45. The burden is on the Applicant to establish the first four criteria. “An applicant who establishes that the first four Apotex criteria are favourable has shown that it is prima facie entitled to a writ of mandamus”: Benison at para 50.

[204] The final four criteria set out some of the grounds upon which a reviewing court may exercise its discretion to refuse mandamus despite the applicant’s prima facie entitlement to the remedy. The burden of proof shifts for the final four criteria: Benison at paras 47-50. As explained by the Federal Court of Appeal in Benison at paragraph 51:

Where such bars to relief are raised by the respondent or the reviewing court, or where their existence is apparent from the record before the court, the applicant bears a tactical burden to disprove their existence, lest its application for mandamus be dismissed. Otherwise, an applicant is not required to proactively disprove the existence of discretionary bars to judicial review; absent a finding by the reviewing court that such bars exist, the applicant is entitled to the relief it has sought.

[205] On the first step, the Respondent says there is no statutory duty to keep the temperatures in Secure within the tight ranges set out in the Technical Criteria. For the reasons provided above, I agree: s. 70 does not impose an obligation of result. However, this does not mean that there is no public legal duty to act – that legal duty is set out in s. 70 CCRA includes taking “all reasonable steps” to ensure healthy and safe temperature in Secure. As outlined above, there are at least two reasonable steps that CSC has not taken to ensure temperatures in Secure are safe and healthy: routinely recording temperatures and seeking approval to install A/C equipment in the inmate-occupied areas of Secure. Taking these steps is a public legal duty owed by CSC to inmates and staff in Secure.

[206] The Respondent argues that step two of the Apotex test has not been made out; namely, while CSC may owe a duty to inmates and staff at EIFW, no statutory duty is owed to the Applicant. This position fails to account for the fact that the Applicant has been granted public interest standing. There is authority for the proposition that, “if there is a legally enforceable duty, the applicants have made out the common law test for public interest standing, and there is no alternative recourse, mandamus may be appropriate, even where the duty is not owed directly to the applicants” (emphasis added): Bancroft v Nova Scotia (Lands and Forests), 2020 NSSC 175 at para 149 [Bancroft]. This reflects the general expansion of public interest standing and I conclude that the second step in Apotex is met.

[207] At the third step, the Respondent says the Applicant has never made a prior demand for performance of the duty. Again, this step must be applied with the public interest standing of the Applicant in mind. The case law suggests that there is a low threshold for what constitutes a demand: Bancroft at para 155. I conclude that this threshold is met.

[208] There is extensive evidence of requests from inmates in Secure dating back to 2011 to address the excessive heat. Furthermore, the evidence from Ms. Sinclair, a Regional Advocate for the Applicant, is that the Applicant made repeated requests, starting in 2012, to EIFW to address the temperature issues in Secure. While none of these demands were framed precisely as a request for EIFW “to comply with CSC’s statutory duty under s. 70 of the CCRA”, I am not persuaded that this prong of the test requires a demand be crafted with such precision. EIFW, and CSC more generally, were well aware of the substance of the inmate and Applicant demands.

[209] The Respondent argues that CSC has not refused to provide a safe and healthy environment for inmates. While I acknowledge that CSC has taken many steps to try to alleviate the impact of the excessive heat in Secure, the evidence – even from its own staff – is those efforts have not been sufficient. I find that CSC has impliedly refused to take all reasonable steps, including recording temperature data and seeking approval to install A/C, because of its erroneous interpretation of the Technical Criteria. For more than a decade, CSC has refused to take these additional steps. This amounts to an implied refusal.

[210] On the fourth step, I agree with the Respondent, that an order of mandamus cannot direct CSC how to exercise its discretion. For example, based on the record before me, the findings made, and the arguments raised, I am not persuaded that an order directing CSC to install A/C in inmate-occupied areas of Secure would be appropriate.

[211] Having made out the first four criteria of the Apotex test, the Applicant has a prima facie entitlement to mandamus: Benison at para 50. The Respondent has not provided submissions on the last four criteria of Apotex, and I see no basis to exercise my jurisdiction to decline a mandamus order based on any of these factors.

[212] As addressed earlier in my reasons, it is not apparent that another adequate remedy is available to address the temperature issues in Secure. I am satisfied that a mandamus order will be of practical utility. It has the potential to result in a timely and durable solution for inmates in Secure. Even if it does not, the implementation of an order will provide the parties with concrete data on the temperatures in Secure, which may inform next steps.

[213] Finally, the balance of convenience favours issuing an order of mandamus. The Respondent’s reluctance to acknowledge that excessively high temperatures in Secure are indeed a problem undermines the Court’s confidence in CSC’s commitment to find a durable solution in the absence of mandamus.

V. CONCLUSION

[214] I conclude that CSC has failed to meet its statutory duty in s. 70 of the CCRA which requires it to “take all reasonable steps” to maintain a safe and healthful environment. I have identified two reasonable steps the CSC has failed to take: it did not keep any records of its temperature readings, and it failed to seek authorization to install A/C in the inmate-occupied areas of Secure.

[215] Regarding the proper remedy, I find that there is no utility in issuing a declaration and none will issue. However, the Applicant has established that it is entitled to a mandamus order directing CSC to keep records of its temperature readings and to seek authorization to instal A/C in the inmate-occupied areas in Secure.

[216] The parties agreed that costs should be dealt with following the release of this judgment.

[217] Should the parties come to an agreement on costs they shall provide a draft order for the Court’s consideration within 10 days of receipt of this judgment. If the parties are unable to agree on costs, they shall submit a proposed schedule for cost submissions within 10 days of this Judgment.

JUDGMENT in T-841-24

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is granted.

2. A writ of mandamus is ordered compelling CSC to, forthwith:

• a)Record and retain a log of all temperature readings from its regular monitoring (which occurs at least 5 days a week), in the inmate-occupied areas of the Secure Unit in the Edmonton Institution for Women; and

• b)Seek authorization to install A/C in the inmate-occupied areas in the Secure Unit, including the cells, of the Edmonton Institution for Women.

3. If the Applicant so requests, CSC shall provide the Applicant with the temperature logs arising from 2(a) above and advise the Applicant of any steps taken by CSC or decisions made as a result of 2(b) above.

4. If the parties cannot agree on costs they shall submit a proposed schedule for cost submissions within 10 days of this Judgment.

"Meaghan M. Conroy"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-841-24
STYLE OF CAUSE:	CANADIAN ASSOCIATION OF ELIZABETH FRY SOCIETIES v THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	Edmonton, Alberta
DATE OF HEARING:	June 11, 2025
REASONS AND JUDGMENT:	CONROY J.
DATED:	July 16, 2026

APPEARANCES:

KATE ENGEL	For The Applicant
KEELAN SINNOTT	For The Respondent

SOLICITORS OF RECORD:

TAYLOR JANIS LLP EDMONTON, ALBERTA	For The Applicant
ATTORNEY GENERAL OF CANADA CALGARY, ALBERTA	For The Respondent