Bilmez v. Canada (Correctional Service), 2004 FC 297

Date: 20040227

Docket: T-130-02

Citation: 2004 FC 297

Ottawa, Ontario, the 27^th day of February 2004

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

                                                               KEMAL BILMEZ

                                                                                                                                            Applicant

                                                                         - and -

CORRECTIONAL SERVICE CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act^[1] of a decision of a Commissaire adjointe, Service corporatifs (the "Commissaire adjointe"), dated November 16, 2001, wherein the decision of the Coordonnateur national des réclamations (the "Coordonnateur"), dated April 27 2001, was upheld, rejecting the Applicant's application for compensation in respect to a disability, which he had filed pursuant to section 122 of the Corrections and Conditional Release Regulations.^[2]

[2]                The Applicant seeks that the Court set aside the decision of the Commissaire adjointe rendered on November 16, 2001; refer the matter back to the tribunal for determination in accordance with the law and with such directions as it considers to be appropriate; order costs.

[3]                Pursuant to subsection 18(1) of the Act, the Court is able to grant this relief.

[4]                The Respondent seeks that the Court dismiss the application for judicial review with costs.

BACKGROUND

[5]                The Applicant, Kemal Bilmez, was incarcerated at a federal institution, Montée St. François Institution. While there, he worked as a cook for the prison cafeteria. He worked three shifts: breakfast, lunch and dinner.^[3]

[6]                The Applicant alleges that on September 22, 2000, while cooking breakfast in the cafeteria for the inmates, he suffered an injury to his back. The Applicant spoke to the nurse on duty about the pain, and she gave him some Tylenol.^[4]

[7]                The Applicant worked again on September 24 and while in the shower, he became paralyzed due to his back problems.^[5]

DECISION UNDER REVIEW

[8]                The Commissaire adjointe upheld the Coordonnateur's decision to reject the Applicant's application for compensation. She stated: "...En effet, le refus repose principalement sur l'absence de preuve d'un accident survenu lors d'une activité dans le cadre d'un programme agréé (travail ou formation) et le rapport à cet égard, dûment exigé par la législation."^[6]

ISSUES

[9]                Can the parties rely on evidence that was not before the Commissaire adjointe when she made her decision?

[10]            Did the Commissaire adjointe commit an error of fact when she concluded that the Applicant did not file an incident report as prescribed by section 124 of the Regulations?

[11]            Did the Commissaire adjointe provide adequate reasons for finding that the Applicant did not file an incident report as prescribed by section 124 of the Regulations?

[12]            Did the Commissaire adjointe err when she did not address in her reasons the Applicant's request for an extension of time to file an incident report?

[13]            Did the Commissaire adjointe err in her interpretation of section 124 of the Regulations?

[14]            Did the Commissaire adjointe err when she concluded that the Correctional Service of Canada had no evidence that the alleged incident occurred while the Applicant was working?

ANALYSIS

Can the parties rely on evidence that was not before the Commissaire adjointe when she made her decision?

[15]            Both parties have included new evidence in their materials and have relied upon them extensively in their memoranda. However, it is settled law that the Court, in a judicial review, will not allow the introduction of new evidence. Nadon, J., in Asafov v. Canada (M.E.I.)^[7] explained why the Court does not entertain new evidence, stating:

The purpose of the judicial review process is to examine the tribunal's decision in the light of the evidence adduced before it at the hearing and to decide whether or not there are grounds for review. From that perspective, the evidence which the Applicants now seek to introduce is irrelevant. By granting this application, I would be transforming the judicial review process into that of an appeal.^[8]

Although neither party has raised the possibility that the new evidence is not admissible, it is important to address the issue and to disregard the new evidence filed by the parties. Otherwise, as Justice Nadon states, the hearing would no longer be a judicial review but an appeal.

[16]            The Court has reviewed the affidavits and evidence filed by the Applicant and Respondent, and would disregard the following evidence:

Applicant's first affidavit: paras. 6-10, 12-19, 21-30, 32, 34-51, at para. 53 the phrase "for which I was not treated properly", 54.

The entirety of the Applicant's second affidavit.

Affidavit of Alain McNulty: paras. 4, 6-7, Exhibit "A".

Affidavit of Linda Belzile: Exhibit "A".

The entirety of the Sylvie Pelletier's Affidavit and attached exhibits except for the phrase "...le détenu Bilmez s'était présenté au département des soins de santé le 22 septembre 2000" at para. 3; and except for the phrase "...Le dossier médical de M. Bilmez indique qu'il a été vu par une infirmière le 24 septembre 2000..." at para. 10.

The entirety of Sylvie Cyr's affidavit, dated December 19, 2002.

Jean-Marie Nadeau's affidavit dated June 3, 2002: para.5.

The entirety of Jean-Marie Nadeau's affidavit dated December 19, 2002.

Cross-examination of Kemal Bilmez: 17-31, 42-46, 49-71, Exhibit.

The entirety of Sylvie Pelletier's cross-examination, except for: Questions 6-7.

The entirety of Jean-Marie Nadeau's cross-examination, except for: Questions 6-7, 37-38, 58.

Did the Commissaire adjointe commit an error of fact when she concluded that the Applicant did not file an incident report as prescribed by section 124 of the Regulations?

Standard of Review

[17]            The Respondent submits that the standard of review of findings of fact is patent unreasonableness. Pursuant to paragraph 18.1(4)(d) of the Act, which states that the Court may grant relief where a decision maker has "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it", the Court agrees with the Respondent.

[18]            In her decision, the Commissaire adjointe found that there was no incident report. The Applicant submits that this finding was made in error. He submits that, on September 22, 2000 he did visit the medical centre, did complain of back pain, told the nurse the reason for the back pain and received a "sick pass" from the nurse so that he would not have to return to work that afternoon. The Applicant further submits that the nurse agrees that the Applicant visited the medical centre, complained of back pain, and received a "sick pass" from her. There is, however, no notation at all from the nurse on September 22, 2000 that the Applicant visited the medical centre. The Applicant submits that it was therefore the responsibility of the nurse to take notes of what had occurred, and to write a report that would have been in accord with subsection 124(3) of the Regulations.

[19]            The Respondent submits that the Applicant's testimony is inconsistent in regards to this issue. The Respondent further submits that the Applicant's submissions that, as an observation report was lost, it also means that the Applicant's report of his injury was lost is not correct. The observation report, which is admitted to have been lost, is not related to the incident report that needs to be filed pursuant to section 124 of the Regulations. As such, the fact that it was lost is irrelevant to the case at hand. As the Applicant is inconsistent, he is not credible, and it was open to the Commissaire adjointe to conclude that the Applicant did not file a report pursuant to section 124 of the Regulations.

[20]            The Commissaire adjointe did not have the evidence that the Applicant and Respondent rely on to support their submissions. As such, their submissions are not helpful in assessing the issue. Nevertheless, the Court agrees with the Respondent that it was open to the Commissaire adjointe to find that no incident report had been created.

[21]            The evidence before the Commissaire adjointe on this issue is conflicting. The Applicant alleges that he gave his supervisor, Jean-Marie Nadeau, a CSST (Commission de la santé et de la securité du travail du Québec) form. Mr. Nadeau, however, denies this allegation. It was open to the Commissaire adjointe to accept Mr. Nadeau's evidence over that of the Applicant's.

Did the Commissaire adjointe provide adequate reasons for finding that the Applicant did not file an incident report as prescribed by section 124 of the Regulations?

[22]            While there was evidence upon which the Commissaire adjointe could find that the Applicant did not file an incident report, the Court believes that the Commissaire adjointe did not adequately explain how she came to this decision.

[23]            In VIA Rail Canada Inc. v. National Transportation Agency,^[9] the Federal Court of Appeal set out general principles as to what must be included in reasons. The Court stated:

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.^[10]

[24]            In her decision, the Commissaire adjointe takes great pains to point out that, according to the Applicant's parole officers, it was his family physician, and not the parole officers, who suggested that the Applicant fill out the CSST form, but she does not address the Applicant's allegation that he took the CSST form to Mr. Nadeau nor does she explain why she preferred the evidence of Mr. Nadeau to that of the Applicant. In this way, she erred by failing to describe her reasoning process or the principal evidence upon which she based her findings.

Did the Commissaire adjointe err when she did not address in her reasons the Applicant's request for an extension of time to file an incident report?

[25]            After the Applicant received the first decision that denied the Applicant's request for compensation, the Applicant hired counsel to represent him. In a letter to the Commissaire adjointe, counsel stated:

Dans la mesure où vous ne vous objectez plus au délai de retard de trois (3) mois, nous sommes prêts à faire entendre nos arguments les cas échéant sur ce point mais nous ne pouvons élaborer sur ce point dés à présent sans savoir si vous acceptez la simple réception de notre client.^[11]

[26]            The Commissaire adjointe rejects the Applicant's application partially on the basis that there was no incident report. Thus, a request for an extension to file an incident report is very important, as it could remove one of the bases for rejecting the application. However, the Commissaire adjointe does not mention the request at all. In the Court's consideration, therefore, the Commissaire adjointe erred because she did not address this major point, her reasoning process or describe the main relevant factors in coming to her conclusion.

Did the Commissaire adjointe err in her interpretation of section 124 of the Regulations?

[27]            It may be that the Commissaire adjointe did not consider whether to grant an extension of time to file an incident report because she misinterpreted the legislation. When referring to the reason for the incident report she states:

L'exigence d'un rapport d'accident dans la période prescrite ne constitue pas une simple formalité administrative mais une assise essentielle permettant d'établir un lien certain et non équivoque entre un accident survenu dans des criconstances précises et l'incapacité potentielle qui en découle.^[12]

[my emphasis]

[28]            In the Court's consideration, this interpretation is patently unreasonable. Section 124 of the Regulations do place a time limit for filing an incident report, however, as the Regulations provide for extensions of time, there is recognition that, under certain circumstances, a timely report is not necessary. The Commissaire adjointe committed an error by stating that filing a report within the limitation date is an "assise essentielle", and not simply a general rule with exceptions. Had the Applicant been granted an extension, it is possible that the Applicant would have provided more proof that his injury arose from the work he performed at the cafeteria. Thus, this error in the interpretation of the law was a material error.

Did the Commissaire adjointe err when she concluded that the Correctional Service of Canada had no evidence that the alleged incident occurred while the Applicant was working?

[29]            The Applicant submits that the Mr. Nadeau, the Applicant's supervisor in the kitchen, is not a reliable witness because of discrepancies between his affidavits, and because of errors in the payroll record. The Applicant, on the other hand, presented consistent and unembellished affidavits. This demonstrates that the Applicant's evidence that he did work on September 22, 2000, and that this work caused the back problems.

[30]            Moreover, the Applicant's evidence is supported by the evidence which states that the Applicant's back problems would likely have remained minor had he not participated in brusque movements, such as turns back and forth to cook and serve eggs.

[31]            The Respondent, on the other hand, submits that the affidavit of Jean-Marie Nadeau provides evidence to support the conclusion that the incident causing the Applicant's back problems did not occur while the Applicant worked as a cook in the cafeteria.

[32]            The Respondent further submits that the Applicant's testimony is not consistent, and therefore lacks credibility. He bases this submission on the different accounts the Applicant has presented as to what caused his back problem. Given that there is evidence upon which the Commissaire adjointe could base her decision, it would not have been patently unreasonable for her to conclude that the Applicant's injury did not occur through work activities, nevertheless that evidence is problematic because it was not before the Commissaire adjointe while she was making her decision. These submissions are therefore not helpful.

[33]            The Commissaire adjointe, in reaching her conclusion, had before her, evidence that the Applicant did not work on the date he stated he was injured, and evidence that the injury occurred in the shower. In her decision she points to evidence that the Applicant had had back problems for several years before the accident, that he did not work on the day of the alleged accident, and that he did not mention that he had an accident at work on the 24 and 25 of September for which he was treated. Given this evidence, it is not patently unreasonable for the Commissaire adjointe to conclude that the incident had not occurred while the Applicant was working.

CONCLUSION

[34]            The Commissaire adjointe had evidence before her on which she could conclude that the Applicant had not been injured while working and that there was no incident report. However, the Commissaire adjointe did not consider whether she should grant the Applicant an extension of time so that he could file an incident report. Moreover, her decision was not complete because she did not explain why she found the Applicant's description of evidence not to be credible. Finally, the Commissaire adjointe erred by determining that it was an absolute requirement to submit an incident report within 3 months of the occurrence of the incident. Therefore, in taking all of the above into account, the Court grants the Application for judicial review.

                                                                       ORDER

THIS COURT ORDERS that the application for judicial review be granted.

"Michel M.J. Shore"

                                                                                                                                                   Judge                       

LEGISLATIVE PROVISIONS

FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                       T-130-02

STYLE OF CAUSE:                                       KEMAL BILMEZ v.

CORRECTIONAL SERVICE CANADA

PLACE OF HEARING:                                 Montréal, Québec

DATE OF HEARING:                                   February 25, 2004

REASONS FOR ORDER

AND ORDER BY:                                         The Honourable Mr. Justice Shore

DATED:                                                          February 27, 2004

APPEARANCES:

Vonnie E. Rochester                                          FOR THE APPLICANT

Éric Lafrenière                                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

ME VONNIE E. ROCHESTER                       FOR THE APPLICANT

Montreal, Quebec

MORRIS ROSENBERG                                  FOR THE RESPONDENT

Deputy Attorney General of Canada