Date: 20060511
Docket: T-452-05
Citation: 2006 FC 544
BETWEEN:
BENOIT
COLLIN
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
PINARD J.
[1]
This
is an application for judicial review of a decision of the Chief of Food Services
of the Leclerc Institution, dated February 28, 2005, by which the applicant’s
request for a vegetarian diet was refused on the ground that it had been
previously determined that the applicant’s desire was based on a preference
rather than on a sincere conviction. This application for judicial review was
heard by telephone conference on April 13, 2006.
[2]
The
applicant did not challenge the position taken by the Chief of Food Services of
the Leclerc Institution by availing himself of the grievance procedure
available to inmates under the Corrections and Conditional Release
Act, S.C. 1992, c. 20 and its Regulations.
[3]
In
addition, the evidence shows that, since November 7, 2005, the applicant
actually has been given a vegetarian diet.
[4]
In
my opinion, the applicant should have used the grievance procedure before
applying for judicial review.
[5]
A
comprehensive grievance resolution process is provided under the Corrections
and Conditional Release Act. The case law demonstrates that the internal
grievance process under the Corrections and Conditional Release Act
and its Regulations must be exhausted before applying for judicial review (Leach
v. Fenbrook Institution, 2004 FC 1570; Veley v. Fenbrook Institution,
[2004] F.C.J. No. 1902 (T.D.) (QL); Giesbrecht v. Canada, [1998] F.C.J.
No. 621 (T.D.) (QL)). The final decision rendered as a result of the grievance
process may be subject to judicial review.
[6]
In
Leach, supra, Madam Justice Layden-Stevenson correctly summed up
the case law concerning the necessity of going through the internal grievance
procedure:
[10] Before the hearing, registry, at my
request, provided counsel for both parties with my direction that counsel be
prepared to address the principles delineated in Giesbrecht v. Canada
(1998), 148 F.T.R. 81, 10 Admin. L.R. (3d) 246 (F.C.T.D.) (Giesbrecht); Condo
v. Canada (Attorney General) (2003), 239 F.T.R. 158, 301 N.R. 355 (F.C.A.)
(Condo); and Anderson v. Canada (Operations Officer, Fourth Maritime
Operations Group) (1996), 141 D.L.R. (4th) 54, 205 N.R. 350 (F.C.A.) (Anderson).
Anderson stands for the proposition that judicial review will not be
granted if there is an adequate alternative remedy that has not been exhausted.
Giesbrecht applies Anderson in the corrections context and specifically
to circumstances involving the involuntary transfer of an inmate. Mr. Justice
Rothstein, then of the trial division, determined that it is premature to
launch an application for judicial review before the grievance process provided
for in the CCRA and Regulations is exhausted. Judicial review is only
appropriate after a final decision is rendered in the grievance process. Condo
confirms the principles articulated in Giesbrecht.
[7]
As
articulated in Giesbrecht, “There is nothing before the Court that would
indicate that the internal grievance procedure under the Corrections and
Conditional Release Act and Regulations is not an adequate
alternative remedy to judicial review”. In my opinion, the case law is clear to
the effect that the grievance process is an adequate remedy that was not used,
and the Court is thus warranted in dismissing the application for judicial
review for this reason alone.
[8]
In
any event, since November 7, 2005, the applicant has had the benefit of a
vegetarian diet. On this point, he did not file a formal grievance or apply for
judicial review. Therefore, the whole matter is a moot point.
[9]
As
explained in Butler v. Canada (National Parole Board), [2004] F.C.J. No.
1710:
[7] The first step
in assessing whether a matter is moot is to determine whether the required
tangible and concrete dispute has disappeared and the issues have become
academic (Borowski v. Canada (Attorney General), [1989] 1 S.C.R.
342 at para. 16). In this case, there is no dispute that Mr. Butler is no longer
subject to the Suspension Order. The subsequent panel of the NPB, reviewed the
circumstances of the Suspension Order and decided to cancel the suspension.
[10]
Therefore,
even if the Chief of Food Services made an error when he refused the
applicant’s request on February 28, 2005, this decision now has no practical
direct consequence. Setting aside the decision rendered by the Chief of Food
Services would not change the applicant’s situation, as he now has the benefit
of a vegetarian diet. The tangible and concrete dispute that is required has
thus disappeared.
[11]
In
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Sopinka J.
underlined the fact that there are three factors to be considered in
determining whether or not a moot proceeding should nevertheless continue:
(i) the existence of an adversary system;
(ii) the concern for judicial economy;
and
(iii) the obligation for the Court to be
aware of its law-making function.
[12]
When
applying the first test here, I am not convinced that any adversarial debate
remains. The application for judicial review concerns a decision of the Chief
of Food Services refusing the applicant’s request to have a vegetarian diet.
Now that the applicant has a vegetarian diet, it seems to me that the
adversarial debate is over.
[13]
As
far as the second test is concerned, there is no argument I can think of that
would warrant spending judicial resources on such a matter. In this case, a
determination would not have any practical side effects on the rights of the
parties.
[14]
The
third test is of no help, because in this case there is no question of great
importance to be decided.
[15]
In
my opinion, considering these three factors, this Court should not exercise its
discretion to decide an issue that has become moot.
[16]
For
these reasons, the application for judicial review is dismissed. No
determination as to costs is made, as the applicant did not request any.
“Yvon
Pinard”
Ottawa,
Ontario
May
11, 2006
Certified
true translation
Michael
Palles
Email this Content