Date: 19991022
Docket: T-2238-98
BETWEEN:
SERGE DE-NOBILE,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER AND REASONS FOR ORDER
BLAIS J.
[1] This is an application for judicial review of a third level decision by Correctional Service Canada (C.S.C.) dated November 3, 1998 which allowed the appeal filed by the plaintiff, awarding him pay at level 3 as of May 15, 1998.
FACTS
[2] At the time of the events the plaintiff was an inmate at the Drummond institution. He worked in the kitchen every day of the week and earned level 5 pay, namely $110 every two weeks.
[3] On May 10, 1998 the plaintiff was suspended for embracing the cook, Cécile Lemay. The following day he was placed in administrative segregation. He was dismissed from his position following review of his case and sentenced to two weeks" limited activities. During that period the plaintiff could not be assigned to a new program and continued to be without pay.
[4] The plaintiff found employment the following week, but was not allowed to go to work since a two-week penalty applied to persons who had been dismissed. He filed a complaint, but it was rejected. He then filed an application for external review on June 19, 1998, which was also denied. His second level grievance was also rejected on September 3, 1998. The plaintiff filed a third level grievance, arguing that standing order 730 was illegal. This grievance was allowed on November 3, 1998.
THIRD LEVEL GRIEVANCE
[TRANSLATION]
| [5] We note that the Board indicated that the "subject found employment with CORCAN, which wanted to hire him at once". However, the Board refused since in its view "the subject had to serve his administrative penalty of two weeks". |
| We therefore conclude that as CORCAN Industries immediately accepted your application to begin a new assignment, the Program Board should have accepted your new assignment at that date, namely May 14, 1998, the date your case was reviewed, to be consistent with the principal purpose of CD 730, which encourages participation by inmates in programs so as to help them achieve the objectives laid down in the Correctional Plan. Level 0 therefore applied only for the period from May 10, 1998 (the date of your suspension) to May 14, 1998 (the date of your dismissal), since a new assignment was possible. Your grievance is therefore allowed to this effect and your pay level adjusted accordingly, namely level 0 from May 10 to May 14, 1998 and level 3 from May 15, 1998, since you could have taken an assignment related to your Correctional Plan at that time. |
PLAINTIFF"S ARGUMENTS
[6] The plaintiff argued that what he did was in no way reprehensible, had no sexual overtones and had been done in the context of Mother"s Day to thank Ms. Lemay, who was old enough to be his mother, for her kindness to him. The action did not warrant an offence report.
[7] The fact that Ms. Lemay did not use her personal alarm indicated that she did not feel she had been attacked or threatened. It was not until the following day that she told management of the incident, thereby indicating how trivial and inconsequential his action was. Further, she told her superiors that she had no objection to the plaintiff continuing to occupy his position.
[8] The plaintiff argued that a simple warning would have been adequate, since the action had no sexual overtones. He maintained that there had clearly been an abuse of right and of procedure, since it was unreasonable to impose five penalties which were so drastic and significant for an incident which was so commonplace and insignificant.
[9] He maintained that officer Roussel was unqualified to sit in view of his comments three days before the hearing that if it was up to him he would send the plaintiff to Port Cartier, a maximum security penitentiary. He argued that at the hearing officer Roussel called Ms. Lemay and even met with her alone for fifteen minutes, and after a summary hearing the plaintiff was ordered to pay a $10 fine. The pay level was also changed from level 5 to level 0.
[10] He maintained that he had been sent back to work in the kitchen when Ms. Lemay was still working there, and this proved that the initial decision to dismiss was a hasty and unjustified decision.
[11] He argued that the admission of fault and liability in the third level reply and the compensation indicated were clearly insufficient. He indicated that the third level decision was wrong as the plaintiff"s dismissal, which was an abuse of right, should have been quashed.
[12] The plaintiff claimed level 5 pay for the entire period in question. He asked for $11,400 in damages for the days of segregation. Additionally, he claimed $5,000 for moral damages for wrongful and unjustified dismissal.
DEFENDANT"S ARGUMENTS
[13] The defendant argued that it was not unreasonable to conclude that the plaintiff could be suspended from his assignment in the kitchen. Paragraph 27 of CD 730 provides that an
inmate may be suspended because of his conduct. In the case at bar, the plaintiff embraced an C.S.C. employee in an isolated location and asked her to keep it a secret. The employee filled out an offence report in which she stated that she regarded this action as unacceptable and out of place.
[14] Under paragraph 28 of CD 730 the Board had the discretion on review to terminate participation in the program. The Board did not exceed its power as the action taken on May 10, 1998 was unacceptable in a prison situation.
[15] The decision of November 3 was not unreasonable. It was consistent with paragraph 22 of CD 730. Further, the plaintiff was awarded level 3 pay as of May 15, 1998, the date on which he could have been assigned to CORCAN.
[16] The assignment to level 3 was consistent with paragraphs 17, 18 and 19 of CD 370, since his assignment was an assignment to a new area.
[17] The Court cannot allow the plaintiff"s claim.
ISSUES
| - Is the decision of November 3, 1998 vitiated by error? |
| - Does the Court have jurisdiction to grant the relief sought? |
ANALYSIS
Is November 3, 1998 decision vitiated by error?
[18] The plaintiff"s argument regarding officer Roussel"s decision must be dismissed. It is the decision on November 3, 1998 which is the subject of the judicial review and only the arguments made at the third level grievance will be considered.
[19] Paragraph 22 of CD 730 provides that an inmate will be deprived of his pay on suspension. In accordance with paragraph 28 of the CD the plaintiff"s case was reviewed within five days and the Board decided to remove him from his assignment in the kitchen on May 14, 1998. The inmate was then without pay from May 10 to 14, 1998. The third level Grievance Board concluded that the plaintiff was entitled to level 3 pay since he found new employment on May 15, 1998, in accordance with paragraphs 17, 18 and 19 of the S.O. which state:
| 1. Level three shall be awarded to inmates who are assigned by the Program Board to a program area or areas related to their Correctional Plan. |
| 2. Level four may be awarded to inmates who have demonstrated satisfactory performance in the assigned program area(s) related to their Correctional Plan for a period of at least three (3) months. |
| 3. Level five may be awarded to those inmates whose performance in all areas of the program assignment has been rated as "excellent" over an interval specified in the inmate"s Correctional Plan or quarterly, whichever is less. |
[20] As this is new employment following a dismissal from his former assignment for unacceptable behaviour, the plaintiff does not meet the requirements of paragraphs 18 and 19 of the S.O.
[21] The plaintiff was unable to establish that the decision of November 3, 1998 in his favour was unreasonable. The stopping of pay was consistent with CD 730, as was the assignment to level 3.
Does the Court have jurisdiction to grant the relief sought?
[22] Section 18.1(3) of the Federal Court Act provides:
| 18.1 (3) Sur présentation d"une demande de contrôle judiciaire, la Section de première instance peut :
| a) ordonner à l"office fédéral en cause d"accomplir tout acte qu"il a illégalement omis ou refusé d"accomplir ou dont il a retardé l"exécution de manière déraisonnable; |
| b) déclarer nul ou illégal, ou annuler ou infirmer ou renvoyer pour jugement conformément aux instructions qu"elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l"office fédéral. |
|
18.1(3) On an application for judicial review, the Trial Division may
| (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or |
| (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
|
[23] Section 18.1(3) does not provide for the awarding of damages. The Federal Court thus does not have jurisdiction to award the damages claimed.
[24] The application for judicial review is accordingly dismissed.
OTTAWA, ONTARIO
October 22, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Serge De-Nobile v. Attorney General of Canada |
PLACE OF HEARING: Québec
| DATE OF HEARING: October 19, 1999 |
REASONS FOR ORDER BY: Blais J.
DATED: October 22, 1999
APPEARANCES:
| Serge De-Nobile for himself FOR THE PLAINTIFF |
| Éric Lafrenière FOR THE DEFENDANT |
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
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