Date: 20110114
Docket: T-146-10
Citation: 2011
FC 38
Ottawa, Ontario, January 14, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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ESMOND JACK YU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
(Representing
Correctional Service of Canada)
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Esmond Jack Yu (the “Applicant”) seeks judicial review of the decision of
Marc-Arthur Hyppolite (the “Senior Deputy Commissioner”), Correctional Service
Canada (“CSC”).
[2]
The
Applicant seeks the following relief in this application:
a. A writ of
certiorari that the decision of the Senior Deputy Commissioner be set aside and
remitted back for reconsideration by a differently constituted panel;
b. A declaration
that CSC has a legal obligation to consider his claim against the Crown;
c. An order
declaring the correct interpretation of certain Commissioner’s Directives, and
the appropriate protocol in handling inmate property and investigating
grievances relating to inmate property damage;
d. Any order
this Honourable Court may deem appropriate; and
e. Costs.
Background
[3]
The
Applicant is serving a life sentence at Matsqui Institution. He commenced his
sentence on May 17, 1995. In June 2007, he purchased a guitar for the sum of
$299 plus taxes. The Tribunal Record contains a purchase record in this regard.
[4]
In
November 2007, the Applicant was placed in segregation and transferred to the
Kent Institution on December 13, 2007. He was transferred back to the Matsqui
Institution on August 22, 2008.
[5]
The
Applicant requested the return of his guitar in September 2008 but it was
missing. CSC located the guitar in January 2009.
[6]
On
January 14, 2009, while retrieving his guitar, the Applicant noted that it was
damaged. According to his affidavit, he was informed by Officer Susan
Christian, the attending Admissions and Discharge officer (the “A&D
Officer”) to inspect the guitar in his cell and file a complaint from there. As
a result, the Applicant did not make any record of this damage on his Inmate
Personal Property Record. He took the guitar to his cell with the intention of
photographing the damage. For various reasons, it took more than a month to
obtain photographs.
[7]
The
Applicant submitted an inmate claim for loss or damaged property on March 18,
2009 in the amount of $300. He received a decision with respect to that claim
on May 13, 2009. The claim was denied on the grounds of the Applicant had
failed to submit a claim for more than two months and had failed to note
the damage on his Inmate Personal Property Record.
[8]
The
Applicant filed an Inmate Grievance Presentation (Second Level) on June 4,
2009. Mr. Alex Lubimiv, Assistant Deputy Commissioner, Institutional
Operations, denied the grievance on July 29, 2009. He found that there was no
reference on the Offender Personal Property Record of damage to the guitar. The
Applicant had signed that record. According to Commissioner’s Directive 566-12
(“CD 566-12”), paragraph 16, the Applicant bore the responsibility to make sure
that his record was accurate.
[9]
The
Applicant submitted an Inmate Grievance Presentation (Third Level) on August
12, 2009, again claiming the cost of the guitar plus $37, representing the cost
of making his complaint. This amount represented the cost of $17.00 for
photographs of the guitar and $20.00 for stationery.
[10]
An
investigation into this third level grievance was conducted by Ms. Katherine
Robertson. She prepared an executive summary of the case for the Senior Deputy
Commissioner. According to her report, Ms. Robertson contacted the A&D
Officer. The A&D Officer did not recall the interaction in detail but noted
that the Applicant “was quite a bug about a number of things”.
[11]
The
Senior Deputy Commissioner delivered an Offender Grievance Response (Third Level)
on November 26, 2009, denying the grievance. In that decision, the Senior
Deputy Commissioner noted that the Applicant did not keep a proper personal
property record describing the damage to his guitar. The Senior Deputy
Commissioner also noted that the Applicant could have refused to accept the
guitar until the damage had been addressed but failed to do so. Although the
A&D Department did not take photographs of the guitar when it is was placed
in storage, as per the practice for items valued over $100, the lack of
photographs did not implicate CSC for the damage done to the guitar. In the
result, the Senior Deputy Commissioner found that there was no evidence to
support the Applicant’s claim that the CSC was responsible for the damage to
his guitar.
[12]
Three
issues arise in this application:
a. What are the
appropriate standards of review?
b. Did the CSC
breach the duty of fairness?
c. Was the
Senior Deputy Commissioner’s decision reasonable?
Discussion and
Disposition
[13]
According
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, two standards of review apply to decisions of
administrative decision-makers, that is correctness or reasonableness. The
standard of correctness applies to questions of law and to issues of procedural
fairness. The standard of reasonableness applies to questions of fact and
questions of mixed fact and law.
[14]
Insofar
as the present application raises an issue of breach of procedural fairness,
that issue is reviewable under the standard of correctness. The substance of
the decision which involves the weighing of evidence, is reviewable on the
standard of reasonableness.
[15]
The
Applicant’s arguments concerning breach of the duty of fairness relate to the
manner in which the investigation was carried out by the CSC and to the
substance of the executive summary that was prepared by Ms. Robertson. With
respect to the investigation, the Applicant argued that its conduct was
contrary to the protocol set out in Guidelines 234-1, Claims Administration
Instructions (“GL 234-1”) and Commissioner’s Directive 234, Claims
against the Crown and the Offender Accident Compensation Program (“CD
234”). He submits that paragraph 27 of CD 234 requires that CSC must show that
it took all reasonable steps to protect the inmate’s property and CSC provided
no evidence that it had done so.
[16]
The
Applicant complains that the investigation proceeded too slowly and that the
A&D Officer should have been questioned earlier. He also claims that the
questioning of the A&D Officer was inadequate since the questions did not
consider the most important issue, that is whether reasonable steps were taken
to protect the guitar. He claims that this oversight is contrary to Annex B of
GL 234-1.
[17]
Further,
the Applicant argues that the executive summary removed all the supporting
exhibits and failed to address many arguments. He said that the summary omits
several key facts and contains edited statements.
[18]
Finally,
he submits that the investigation was conducted in a manner that was contrary
to CD 566-12. He said the investigator failed to conduct a thorough examination
and speculated the lack of evidence to substantiate negligence.
[19]
I
will first address the alleged breaches of procedural fairness.
[20]
The
entirety of the CSC process, not just the decision made by the Senior Deputy
Commissioner, is to be considered when allegations of breach of procedural
fairness are raised.
[21]
In
Sweet v. Canada (Attorney General) (2005), 332
N.R. 87, the Federal Court of Appeal held that the level of procedural fairness
owed to inmates subject to administrative decisions is relatively low. At
paragraph 40, the Federal Court of Appeal comments as follows on the
requirement of procedural fairness in such circumstances:
During the investigation into the alleged
incident, Mr. Sweet was informed that a recommendation for his return to
Warkworth Penitentiary was being considered and he was provided with the
opportunity to respond. In my analysis, providing the appellant with an
opportunity to confront the allegations made against him prior to the decision
being made and an opportunity to make further representations by way of a
grievance process is sufficient to ensure that the requisite level of
procedural fairness was provided.
[22]
The
opportunity to make submissions is not the sole criterion of procedural
fairness in this type of decision. In Yu v. Canada (Attorney General)
(2009), 356 F.T.R. 312, Justice Snider acknowledged the low level of
procedural fairness described in Sweet but also found that there was a
duty to provide relevant documents during the course of prisoner grievances
involving claims against the Crown for damaged inmate property.
[23]
An
adequately thorough investigation is also required in order to meet the
requirements of procedural fairness. In judicial review of a decision of the
Canadian Human Rights Commission not to refer a grievance to the Canadian Human
Rights Tribunal, this Court held in Grover v. National Research Council of
Canada (2001), 206 F.T.R. 207, that the Commission need not interview every
individual named by a complainant, but that judicial intervention is warranted
where an investigation is clearly deficient. In my opinion, this standard
applies in the context of inmate grievances as well.
[24]
The
Applicant submitted his first claim regarding the damaged guitar on March 18,
2009. The A&D Officer was not contacted until October 20, 2009. By that
time, the A&D Officer had little recollection of the Applicant retrieving
his guitar. This is clear from her e-mail to Ms. Robertson on October 21, 2009:
Hi Katherine
I don’t remember the exact details as it
was 10 months ago. He was quite a bug about a number of things. I am pretty
sure though that if his guitar was damaged it would have been noted on his
effects sheet when he signed for it. Sonja and I generally did this to prevent
these claims. I don’t remember him ever contacting us at a later date in
A&D regarding his guitar being damaged.
What does he say was damaged on his
guitar? Does his effects sheet say if he had a case for the guitar?
Susan
[25]
This
case involves a situation where damage to inmate property was not properly
recorded as per CSC guidelines and practices. This means that the evidence of
those present when the Applicant retrieved his guitar from A&D is crucial
to determining what happened. In my opinion, the 10 month delay of the CSC in
contacting the A&D Officer means that the best evidence was not sought at
the earliest opportunity. The decision in the first level grievance decision
dated May 13, 2009 said that the Applicant’s claim was “thoroughly reviewed”.
This is not the case.
[26]
In
addition to a thorough investigation, adequate reasons are also required to
meet the standards of procedural fairness. In the context of another inmate
grievance, Justice Zinn in Charalambous v. Canada (Attorney
General),
2009 FC 1082, discussed the reasons provided to the inmate in that case:
[19] The Commissioner did more than
merely recite evidence and submissions….
[20] The reasons are adequate enough to
allow a reviewing court to understand the evidence that was considered, to
ascertain whether each of the complaints was touched upon, and to analyze the
decision-maker’s reasoning. In the context of the offender grievance procedure,
this is all that the duty of fairness required. The reasons are sufficient to
allow the Applicant to attack the decision on its merits.
[27]
As
well, credibility was a key component in this case, that is the credibility of
both the Applicant and employees at the Matsqui Institution. The Senior Deputy
Commissioner makes no finding as to credibility whatsoever. In that regard, he
failed to give adequate reasons.
[28]
In
view of the breaches of procedural fairness, the decision of the Senior
Deputy Minister will be quashed. I do not need to address the reasonableness of
the Senior Deputy Commissioner’s decision. However, the appropriate remedy in
this case warrants comment.
[29]
The
Applicant also seeks to have the decision remitted for reconsideration by a
differently constituted panel. Subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7,
sets out the remedies available on judicial review:
(3) On an application for judicial
review, the Federal Court 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.
[30]
In
my opinion, no benefit will be served by remitting this matter back for
re-investigation and re-determination because the key witness, that is the
A&D Officer, will have no better memory if a re-investigation is conducted
now than she had in October 2009.
[31]
The
further remedies that the Applicant seeks, namely a declaration that the CSC is
legally required to consider his claim against the Crown and an order
interpreting certain Commissioner’s Directives, are inappropriate. They will
not be addressed.
[32]
This
judicial review is allowed and the decision of Marc-Arthur Hyppolite, Senior
Deputy Commissioner, is quashed. In the exercise of my discretion pursuant to
the Federal Courts Rules, SOR/98-106, the Applicant is awarded costs in
the amount of $200.00, inclusive of fees and disbursements.
ORDER
THIS COURT ORDERS that the application for judicial
review is
allowed and the decision of Marc-Arthur Hyppolite, Senior Deputy Commissioner,
is quashed. In the exercise of my discretion pursuant to the Federal Courts
Rules, SOR/98-106, the Applicant is awarded costs in the amount of $200.00,
inclusive of fees and disbursements.
“E.
Heneghan”
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