Date: 19990408
Docket: T-1862-98
BETWEEN:
HERBERT LEE MILLER
Applicant,
- and -
THE SOLICITOR GENERAL OF CANADA,
THE COMMISSIONER OF THE CORRECTIONAL SERVICE OF CANADA,
and THE ATTORNEY GENERAL OF CANADA,
Respondents.
REASONS FOR ORDER
REED, J.
[1] The applicant is an inmate of Bowden Institution in Innisfail, Alberta. He worked as the Unit 5 Cleaner from March 1995 until November 1997. The employment program in which he participated is part of a broader array of inmate programs designed to "help inmates become law-abiding citizens by promoting attainment of personal goals identified in individual Correctional Plans through program involvement."1 The applicant was suspended from his employment in November 1997, for refusing to complete some of the duties assigned to him by his supervisor. The applicant worked seven days per week at this job. The dispute in this case centres around the number of hours that he worked each day. The applicant claims he was required to work, and did work, seven hours per day, every day of the week amounting to 98 hours of work per pay period - 70 hours regular time and 28 hours of overtime. The applicant was only ever paid for a 35 hour work week, 70 hours per pay period. The applicant seeks a total reimbursement of $2,664.66 in unpaid wages: $36.48 in holiday pay, $246.15 in regular pay, and $2,382.03 in overtime pay.
[2] The applicant relies on Commissioner"s Directive 7302 (CD 730) which outlines how inmates will be paid for participation in inmate programs:
| 12. Inmates shall be paid for participation in programs that have been approved by the Program Board, normally up to the equivalent of five (5) full days per week. |
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| 31. Weekly morning hours shall be established in Institutional Standing Orders. |
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| 32. Statutory holidays, Saturdays and Sundays are not normal working days. The institutional head may approve exceptions for the following reasons: |
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| a. for performance of essential tasks required to be performed on a daily basis; |
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| b. for emergency requirements; and |
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| c. for exceptional requirements of the program assignment. |
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| 33. Inmates who work Saturdays and Sundays will not be paid overtime, but will be given equivalent compensatory time off during the week. The institutional head shall ensure that the inmate is advised in writing prior to accepting the assignment that he or she may be required to participate on these days. |
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| 34. Inmates shall be paid regular inmate pay for statutory holidays at their normal daily rate of pay. |
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| 37. In the event of a shutdown, inmates shall normally receive regular inmate pay in the following manner: |
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| a.(1) a full day's pay for each day of closure providing the inmates participate in their program assignment for a portion of each day; |
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| 38. Overtime shall only be awarded where no other reasonable alternative exists. |
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| 39. Overtime shall only be paid to an inmate when the cumulative total of time worked in all program assignments is in excess of the established institution's work week. |
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| 40. Overtime will be calculated at one-fifth of the inmate's daily level of pay for each hour actually worked. [Emphasis added.] [Respondent's Affidavit, Tab A] |
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[3] The institutional work week at Bowden Institution is a 35 hour work week. The respondent states that inmates who participate in full time employment programs are paid for 35 hours per week. The 35 hour work week can be scheduled on a five day, seven hours per day weekly schedule, or, on a seven day, five hours per day weekly schedule. The respondent concedes that the applicant did not sign a document stating that he would work 5 hours per day, 7 days per week, as required by item 33 of CD 730, however, the respondent states that the applicant was made aware of his job responsibilities and the work hours expected of him. The respondent questions why the applicant waited until he was suspended from his job to file a complaint regarding his work hours and pay, rather than raise his concerns some time during his two and a half years of participation in the program.
[4] The applicant submitted his complaint regarding the amounts owed to him to the supervisor of his unit, as per section 74 of the Corrections and Conditional Release Regulations, SOR/92-620, on January 21, 1998. The program coordinator examined his pay records and otherwise reviewed his complaint and rejected his claim on February 3, 1998. The program coordinator found that the applicant had been paid as a full time unit cleaner for 70 hours per pay period, broken down as five hours per day, seven days per week. The applicant filed a Level 1 Grievance on February 16, 1998, a Level 2 Grievance on June 23, 1998, and a Level 3 Grievance on August 10, 1998. All three grievance applications were denied. The Level 3 Grievance, decided by the Acting Assistant Commissioner, Corporate Development, K. Wiseman, is the conclusion of the inmate grievance system. It is this decision for which the applicant now seeks review.
[5] The decision of the Level 3 grievance officer stated that the applicant had received complete and appropriate responses for his complaints at the previous levels. The officer indicated that on the evidence, and given that the applicant had submitted no new information, he saw no reason to overturn the previous decisions. The third level grievance reply letter is reproduced below:
| Your grievance has been reviewed at the third level. |
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| I have also reviewed the responses you have received from the previous levels of this process in regards to your overtime issue. I find that you have received complete and appropriate responses. |
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| However, perhaps I can clarify some of the information you have received. I would like to refer you to Commissioner"s Directive 730, Inmate Program Assignment and Pay, paragraph 39, which reads "Overtime shall only be paid to an inmate when the cumulative total of time worked in all program assignments is in excess of the established institution"s work week." |
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| The established full time work week at Bowden Institution is a 35 hour week. Therefore, whether you work 5 hours per day, 7 days per week, as in your case, or you work 7 hours a day, 5 days per week, as do most of the full time positions, each of you has worked 35 hours per week. You will note that both of these equations equal a 70 hour pay period. |
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| As well, a thorough review of your pay situation was completed by the institution and it was determined that you are not owed any additional monies due to statutory holidays or institutional shutdowns. |
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| As you have not added any new information to your third level presentation, I see no reason to overturn the decisions made by previous levels. Your grievance is denied. [Respondent"s Affidavit, Tab O] |
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[6] The applicant submits that the Level 3 grievance officer failed in his duty to act fairly. In particular, the applicant claims that the officer fettered his discretion in relying too heavily on the decisions at the earlier stages of the grievance process. In the applicant"s view, Mr. Wiseman did not perform an impartial or unbiased review of the record before him.
[7] The applicant also submits that he was denied natural justice and procedural fairness at the Level 2 grievance when that grievance officer contacted the Program Co-ordinator at Bowden Institution to obtain a job description for the Unit Cleaner position. The applicant was not told of this communication, nor was he given an opportunity to respond. The applicant alleges that the job description supplied to the Level 2 officer (which specifically states that the work hours are five hours per day, seven days per week3) was created after he initiated his complaint. He submits as Exhibit G to his affidavit the job description that he signed immediately after his suspension from employment. That description indicates only that the Unit Cleaner job involves working seven days per week, it makes no specific mention of the number of hours per day.
[8] Finally, the applicant submits that the Level 3 grievance officer"s decision is based on errors of fact in finding that the requirements outlined in CD 730, such as granting him time off during the week in lieu of work time on the weekend, have been met. The applicant seeks a declaration quashing Mr. Wiseman"s decision or an order of mandamus directing reinstatement of the rights and entitlements to which he has been denied.
[9] The respondent argues that the Level 3 grievance officer made a reasonable decision supported by the evidence, acted in accordance with the principles of natural justice and procedural fairness, and complied with all the statutory requirements. In particular, the respondent submits that Mr. Wiseman did not err in considering the previous grievance related decisions, since section 82 of the Regulations places a statutory duty upon him to take into consideration any efforts on the part of staff and the offender to resolve the issue, including any recommendations resulting therefrom.4 With regard to the applicant"s allegations of a breach of natural justice, the respondent submits that this issue is no longer relevant since the applicant was given an opportunity to submit new information at the Level 3 grievance and could have raised this issue in relation to the Level 2 decision at that time. I agree.
[10] Finally, the respondent argues that Commissioner"s Directives do not have the force of law and do not imbue the offender with any rights or entitlements, they are rules directed towards internal procedure and administration. In both Laprette v. Edmonton Institution (Warden) et al. (1992), 58 F.T.R. 101, Jerome A.C.J., and Canada (Procureur général) v. Plante (1995), 103 F.T.R. 161, Pinard J., this Court held that the real issue to consider when determining whether a Commissioner"s Directive has been breached is whether the failure to comply with a Directive has somehow prejudiced the inmate. If there has been unfairness or a denial of justice as a result of the breach of the Directive, then this Court can exercise its discretion to intervene.
[11] In this case, the alleged breach involves whether the applicant was paid in accordance with the requirements set out in CD 730. Underlying the question of proper pay is the factual question of whether the applicant worked 5 or 7 hours per day. The documentary evidence submitted as attachments to the applicant"s and respondent"s affidavits does not support the applicant"s position. The Inmate Shop/Department Attendance Reports pay sheets indicate whether the applicant was present or absent in the morning and afternoon of each work day. They record that, in general, he worked the equivalent of ten 7 hour days every two weeks (70 hours per two week pay period). They record the existence of statutory holidays, and when institutional shut downs occurred. Given that the applicant completed two and a half years of employment without alleging any unfairness or inadequacy in the pay he received, and only raised this concern after he was suspended from that employment, it is difficult to accept his present assertion that he was required to work 7 hours per day.
[12] There is nothing on the record that suggests that the Level 3 grievance officer"s decision was incorrect in law, not based on the material before him, or given in bad faith. Similarly, the decisions regarding the initial complaint and the Level 1 and 2 grievances suggest that careful consideration was given to the applicant"s concerns - notations on the pay sheets indicate that his allegations were thoroughly reviewed to determine whether any money was owed. I cannot conclude that the Level 3 grievance officer erred in his assessment of the applicant"s situation. This application for judicial review is denied.
"B. Reed"
Judge
TORONTO, ONTARIO
April 8, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1862-98
| STYLE OF CAUSE: HERBERT LEE MILLER, |
Applicant,
| THE SOLICITOR GENERAL OF CANADA, THE COMMISSIONER OF THE CORRECTIONAL SERVICE OF CANADA, and THE ATTORNEY GENERAL OF CANADA, |
Respondents.
REASONS FOR ORDER BY: REED J.
| CONSIDERED PURSUANT TO RULE 369 AT: TORONTO, ONTARIO |
| DATE: THURSDAY, APRIL 8,1999 |
SOLICITORS OF RECORD: Herbert L. Miller
On His Own Behalf
Deputy Attorney General
of Canada
For the Respondents
FEDERAL COURT OF CANADA
Date: 19990408
Docket: T-1862-98
Between:
Applicant,
| THE SOLICITOR GENERAL OF CANADA, THE COMMISSIONER OF THE CORRECTIONAL SERVICE OF CANADA, and THE ATTORNEY GENERAL OF CANADA, |
Respondents.
REASONS FOR ORDER
__________________
1 Commissioner"s Directive 730, Affidavit of the Respondent, Tab A.
2 Commissioner"s Directives are rules made by the Commissioner under section 97 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, that have been designated as directives under section 98. These rules are for the management of the Service and generally for carrying out the purposes and provisions of the Act and regulations. The Directives must be made available to the public, staff, and inmates.
3 See Respondent"s Affidavit, Tab L.
4 Section 82 states: In reviewing an offender"s complaint or grievance, the person reviewing the complaint or grievance shall take into consideration (a) any efforts made by staff members and the offender to resolve the complaint or grievance, and any recommendations resulting therefrom; (b) any recommendations made by an inmate grievance committee or outside review board; and (c) any decision made respecting an alternate remedy referred to in subsection 81(1).
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