Date: 20040416
Docket: T-2164-03
Citation: 2004 FC 580
BETWEEN:
FRONTENAC INSTITUTION INMATE COMMITTEE
and MICHAEL POCHAY, Secretary on behalf of Inmates
of Frontenac Institution
Plaintiffs
and
ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICES OF CANADA)
and ALTERNATIVE CABLE TECHNOLOGIES
Defendants
REASONS FOR ORDER
HARRINGTON J.:
[1] The Frontenac Institution is a federal penitentiary. Its Inmate Committee and its secretary, Michael Pochay, have taken action against the defendants for the alleged breach of a contract to supply them with cable television services, more particularly the movie channel TMN3. It turns out a few nights a week the channel in question shows films of an explicit sexual nature during the late evening and early morning hours. Correctional Service of Canada directed the co-defendant cable company, Alternative Cable Technologies, to block the films, which it has done. The plaintiffs seek damages and specific performance.
[2] The plaintiffs brought on a motion, which was an application for an interlocutory injunction in all but name, in which they sought an order that the full programming of the TMN3 channel be reinstated pending trial. The defendants vigorously contested. In addition, the Attorney General brought on a motion for summary judgment dismissing the action. Alternative Cable Technologies did not bring on a similar motion, but authorized the solicitors for the Attorney General to say that they supported the application.
[3] The two motions were heard at the same time on common evidence. I immediately dismissed the plaintiffs' motion because damages would be an adequate remedy pending the outcome of the case on the merits: see 2004 FC 534 (April 5, 2004).
[4] I now deal with the Attorney General's motion for summary judgment.
[5] Federal Court Rule 216(1) provides:
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Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
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Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
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[6] The test is to determine if the case is so doubtful that it does not deserve further consideration. If there are serious issues of credibility, the case should go to trial so that there can be proper cross-examination (Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (Tremblay-Lamer J.).
[7] The respondent on such an application cannot simply rely on its pleadings. Both sides must file such evidence as is reasonably available to them and which would assist the Court to determine if there is a genuine issue for trial (Feoso Oil Ltd. v. Sarla (The), [1995] 3 FC 68 (FCA); Kanematsu GmbH v. Acadia Shipbrokers Ltd., [2000] 259 N.R. 201 (FCA)). This requirement was satisfied.
[8] The two motions were heard on common evidence. The plaintiffs filed affidavits from Michael Pochay, who was cross-examined thereon, and Allison Coyle, legal secretary for the plaintiffs' solicitor. The Attorney General also filed various affidavits.
[9] The bases of the dispute are articles of agreement for consulting and professional services made as of June 1, 2003 between Her Majesty the Queen, represented by the Minister of the Department of the Solicitor General, and Alternative Cable Technologies, as Contractor. They provide that the contract between those two parties comprises the said articles, general conditions which were identified as Appendix A, supplementary conditions identified as Appendix B, terms of payment (Appendix C) and a "statement of work" (Appendix D).
[10] The articles of agreement, which are only three pages in length, concludes with these words: "This contract has been executed on behalf of the Contractor, and on behalf of Her Majesty". However, the articles are actually signed for the three parties, the contractor, Her Majesty and the Inmate Committee. Appendix C provides that invoices are to be prepared for "the Inmate Welfare Fund (IWF) for Offenders" and mailed to the assistant warden correctional programs, Correctional Service Canada, Frontenac Institution. Payment is to be made by Her Majesty.
[11] The statement of work begins with the proviso that Her Majesty is desirous of acquiring the services of Alternative Cable Technologies to provide television signal services for the Frontenac Institution.
[12] Sections 1.7 and 1.10 are key. They read:
1.7 The contractor shall provide 47 channels; as selected and agreed upon between the Contractor and the Inmate Committee, plus 5 movie channels as selected. Any x-rated or above; [sic] movies shall be blocked out from viewing. Any changes to the initial, agreed upon line-up of channels can be discussed with the Inmate Committee; but is subject to the approval of the Departmental Representative/Project Authority.
...
1.10 The Contractor will meet on an annual basis, if requested, with representatives of the Inmate Welfare Fund and the appropriate Correctional Service Canada staff, for review and possibly revision of the tier of services.
[13] It is common ground as between the plaintiffs and Attorney General that the inmates in turn pay Her Majesty for the said cable television service.
[14] One of the channels originally agreed upon was TMN3.
[15] The Attorney General advances four submissions why summary judgment should be granted dismissing the action. They are: 1 - the plaintiffs have no standing; 2 - the plaintiffs were not party to the contract; 3 - the movies blocked from view were "X-rated"; and 4 - Correctional Service Canada had the contractual right to delete or change channels unilaterally. I shall deal with each of these submissions in turn.
Do the Plaintiffs Have Standing?
[16] I am certainly not prepared to dismiss the action on this ground without further evidence. Federal Court Rule 111 provides that proceedings may be brought by an unincorporated association. More information is needed with respect to the Inmate Committee and the Inmate Welfare Fund, both of which are specifically recognized by Her Majesty in the contract in question.
Are the Plaintiffs Party to the Contract?
[17] The broader question is whether the plaintiffs are party to or entitled at law to enjoy the benefits of the contract. There have been serious inroads into the old common law concept of privity of contract. Indeed, this part of the common law in Canada has recently developed along the lines of the civil law.
[18] The role of the inmates in selecting the channels to be shown at the Frontenac Institution, and the fact that they ultimately pay for them, led to a reasonable argument that they are either a third-party beneficiary of the contract with enforceable rights (Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108) or that Her Majesty was in one fashion or another acting as an agent or trustee (Adler v. Dickson, [1955] 1 Q.B. 158, [1954] 2 Lloyd's Rep. 267; Scruttons Ltd. v. Midland Silicones Ltd., [1962] A.C. 446, [1961] 2 Lloyd's Rep. 365). An exchange of affidavits of documents and examinations on discovery would undoubtedly help clarify the situation.
Are the Movies "X-rated"?
[19] The Canadian Oxford Dictionary defines "X-rated" as: "indecent, pornographic (from "X" a film classification formerly applied to films suitable for adults only)". It is common ground that the films in question are sexually explicit.
[20] It must be kept in mind that this is not an application for judicial review of a grievance as contemplated by the Corrections and Conditional Release Act, S.C. 1992, c. 20, and section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. This is an action for breach of contract.
[21] The term "X-rated" lacks precision, and could have different meanings in different contexts. The Attorney General objected to Allison Coyle attaching to her affidavit an e-mail from one Susan Sutherland to one Bernie Aucoin in which it is said that a blockage to prevent the viewing of any "R-rated adults only" sexually explicit movies will be done. It is said that the plaintiffs insisted that the draft articles be changed from "R-rated" to "X-rated". The Attorney General is quite right that out of the mouth of Ms. Coyle the statements are double-hearsay. The point is that if the case proceeds, this is exactly the type of relevant document the Attorney General would have to list in his affidavit of documents as it is relevant to what was actually agreed.
[22] There is no clear evidence as to what movies have actually been blocked. At the very least, one would assume that Correctional Service Canada had not intended to violate their Commissioner's Directives. For instance, Directive 764 does not permit inmates access to material which advocates or promotes genocide or hatred of identifiable groups distinguishable by colour, race, religion, ethnic origin, sexual orientation or other traits, or sexually-oriented material involving violence, coercion or sexually-oriented material involving children. However, this does not mean to say that Correctional Service Canada had agreed to the showing of sexually explicit films which do not fall into those categories.
[23] Attached to Mr. Pochay's supplemental affidavit are portions of Feature Magazine, the January 2004 issue of the programming guide, which apparently provides an alphabetical listing of movies to be shown on the channel in question. A number of the titles are preceded with the letter "X". In the legend "X" means "after-hours". However, who knows what one will find when invited to "go back in time and visit a forbidden backroom bar known as The Palace, where gambling, spirits and sex are on the menu". Was there any discussion as to the reliability of this "entertainment guide"? Would Correctional Service Canada be in the position that it would have to pre-screen these films for acceptable content? (See Schaefler v. Solicitor General for Canada, [2004] F.C.J. No. 623 (QL). One must also take into account the affidavit of Christine Grant, the acting Assistant Warden of Correctional Programs for the Frontenac Institution. She says that the Frontenac Institution houses sexual offenders and runs a Sexual Offender Maintenance Program.
[24] All this is to say that "X-rated", as part of the contract, has to be considered in the overall context, a context which does not appear on the record so far. It cannot be said that there is no general issue for trial.
Can the channel line-up be changed without consultation?
[25] If the Attorney General hopes to succeed on this point he will have to bring forth material establishing that the contract does not really mean what it appears to mean on its face. On its face, "any changes to the initial, agreed-upon line of channels can be discussed with the Inmate Committee, but is subject to the approval of the Departmental Representative/Project Authority". This language is not so precise that it leads to one conclusion, the conclusion that Correctional Service Canada can change the lineup at will. There is a cost element to these channels and, as might be expected, the plaintiffs are complaining about being charged for a channel that is sometimes not available to them, a channel which was one of those originally agreed-upon.
[26] For all these reasons, the application for summary judgment shall be dismissed.
"Sean Harrington"
Judge
Ottawa, Ontario
April 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2164-03
STYLE OF CAUSE: FRONTENAC INSTITUTION INMATE COMMITTEE
and MICHAEL POCHAY, Secretary on behalf of Inmates of Frontenac Institution
- and -
ATTORNEY GENERAL OF CANADA (CORRECTIONAL SERVICES OF CANADA) and ALTERNATIVE CABLE TECHNOLOGIES
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: APRIL 16, 2004
APPEARANCES:
John Farant FOR PLAINTIFFS
Matthew Sullivan FOR DEFENDANT
Nancy Noble Attorney General of Canada
SOLICITORS OF RECORD:
John Farant FOR PLAINTIFFS
Kingston, Ontario
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada Attorney General of Canada
Miller, Thompson LLP FOR DEFENDANT
Kitchener, Ontario Alternative Cable Technologies
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