Frontenac Institution Inmate Committee v. Canada (Attorney General), 2004 FC 534

Date: 20040406

Docket: T-2164-03

Citation: 2004 FC 534

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 Plaintiffs have taken an action, framed in breach of contract, against the Defendants for blocking from view at Frontenac Institution, a federal penitentiary, certain movies said by the Defendants to be "X-Rated". The case is yet to come to trial.

[2]                The Plaintiffs, as an interim measure, seek an order compelling the Defendants to fulfill the terms of the contract and to provide all television service as contracted. They deny the movies in question are x-rated. Although not called such, the Plaintiffs are really seeking an interlocutory injunction.

[3]                To put this application in context it is important to note that this is not a judicial review as contemplated by the Corrections and Conditional Release Act, 1992 S.C., c. 20, as amended. This is a commercial dispute.

[4]                Articles of agreement were made as of June 1^st, 2003, between the Defendants for the provision of 47 cable television channels and 5 movie channels. The agreement was signed by the Defendants and by the Plaintiff the Frontenac Institution Inmate Committee of which the Plaintiff Michael Pochay is secretary. The Defendants strenuously deny that the Inmate Committee is a party to the contract. That issue need not be decided at this time.

[5]                Section 1.7 of the Statement of Work appended to the contract provides:

The Contractor shall provide 47 channels; as selected and agreed upon between the Contractor and Inmate Committee, plus 5 movie channels as selected. Any x-rated or above; movies shall be blocked out from viewing.

The Contractor is the Defendant Alternative Cable Technologies.

[6]                The dispute relates to movies showing at certain times on the TMN 3 Movie Channel, which was one of the channels originally agreed upon. Correctional Services of Canada later determined that some of the movies shown on that channel were x-rated and directed the co-defendant to block them from view within the Frontenac Institution.

[7]                Even assuming, but without deciding, that the Plaintiffs have standing and either are a party to or are entitled to benefit from the contract, their motion must still be dismissed. I say this without considering the problems which arise from an attempt to obtain an injunction against the Crown.

[8]                It is well established that an applicant in motions such as these must show there is a serious issue to be tried, that it would suffer irreparable harm if the relief is not granted, and that the balance of convenience is in its favour (American Cyanamid Co. v. Ethicon Ltd., [1975] AC. 396 (H.L.), RJR-Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311). The Plaintiffs must succeed on all three branches of this test.

[9]                It is clear to me there is no irreparable harm. If the Defendants are in breach of contract, damages are a perfectly suitable remedy.

[10]            Consequently, the application is and shall be dismissed, with costs.

                                                                                 "Sean Harrington"                         

                                                                                                   J.F.C.                            

Toronto, Ontario

April 6, 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

                                                                                                Plaintiffs

and

ATTORNEY GENERAL OF CANADA

(CORRECTIONAL SERVICES OF CANADA) and

ALTERNATIVE CABLE TECHNOLOGIES

                                                                                           Defendants

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       APRIL 5, 2004    

REASONS FOR ORDER BY:           HARRINGTON J.     

DATED:                                              APRIL 6, 2004

APPEARANCES BY:            

Mr. John Farant           

FOR THE PLAINTIFFS

Mr. Matthew Sullivan

Ms. Nancy Noble

FOR THE DEFENDANTS

SOLICITORS OF RECORD:          

John M. Farant               

Barrister & Solicitor

Kingston, Ontario

FOR THE PLAINTIFFS

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE DEFENDANTS

             FEDERAL COURT

       Date: 20040406

              Docket: T-2164-03

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