Date: 20110519
Docket: T‑1392‑10
Citation: 2011 FC 576
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 19, 2011
PRESENT: The Honourable Mr. Justice
de Montigny
BETWEEN:
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RICHARD TIMM
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
This is an application for judicial review filed
by the applicant against a decision, dated July 30, 2010, made at the
third level of the grievance procedure established under the Corrections and
Conditional Release Act, SC 1992, c 20. For the reasons that follow, this application will be
dismissed.
[2]
On May 2, 2010,
the applicant submitted a grievance to the third level of the grievance
procedure (U30A00043089) for undue and abusive delays, harassment and multiple
violations of the Commissioner’s Directives CD 060 (Code of Discipline)
and CD 081 (Offender Complaints and Grievances). In this grievance, the
applicant objected, more specifically, to the delay in sending one of his
previous harassment grievances to the second level and criticized the Warden of
La Macaza Institution and the coordinator of complaints and grievances at that
institution for their wilful laxness and, in the Warden’s case, his abuse of
power and authority, to the extent that he acted in violation of an order from
his superior (the Senior Deputy Commissioner) directing him to ensure that
grievances submitted by offenders to the second level be referred expeditiously
to that level. In this grievance, the applicant set out 33 corrective
measures and demanded that a complete, detailed, written response be provided
for each of the requested measures.
[3]
On May 3, 2010,
the applicant submitted another grievance to the third level of the grievance
process (U30A00043099), also for undue and abusive delays, harassment and
multiple violations of the Commissioner’s Directives CD 060 and CD 081.
In this second grievance, the applicant objected to the delay at the second
level in responding to the four previous harassment grievances and criticized
the Quebec Region’s Regional Deputy Commissioner for having failed to comply
with the statutes, regulations and policies applying to her and with a direct
order from her superior (the Senior Deputy Commissioner) directing her to
ensure compliance with the timeframes prescribed in CD 081. This time, the
applicant called for 64 corrective measures and requested a complete and
detailed written response to each of his measures.
[4]
On July 30, 2010,
the Senior Deputy Commissioner, as the third level, handed down one decision
dealing with the two grievances mentioned above. In this decision, the
applicant’s grievances were allowed in part, to the extent that it was found
that the timeframes for the Correctional Service of Canada authorities
concerned to refer the files or respond to the applicant’s grievances were exceeded,
therefore contravening the timeframes prescribed in Commissioner’s Directive CD 081.
However, the Senior Deputy Commissioner pointed to the letters of extension
sent to the applicant, informing him of the reasons for the delays and setting
out a new deadline, in accordance with paragraph 41 of CD 081. It was
also noted that measures had been taken at the second level to improve the
grievance receipt and referral system, such that no further measure was
considered necessary to resolve that part of the grievance.
[5]
The applicant first
contended that the third‑level decision breached the principles of
natural justice and procedural fairness to the extent that the Senior Deputy
Commissioner rendered one decision to deal with both of his grievances. It is
true that his first grievance concerns the delay in referring his previous
grievances to the second level, whereas the second grievance concerns the delay
in responding to those same previous grievances. However, the fact remains that
the two grievances dealt with by the Senior Deputy Commissioner in the decision
under judicial review raised common issues and sought the same corrective
measures. Furthermore, the Senior Deputy Commissioner dealt separately with the
five grievances underlying the two grievances before him and provided a
separate response to each allegation concerning the delay, at one stage or
another in the procedure, in dealing with the grievances in issue. Therefore,
the third‑level decision‑maker was correct in deciding both
grievances in one decision. Doing so did not breach any of the principles of
natural justice or procedural fairness.
[6]
The applicant also criticized
the Senior Deputy Commissioner for not having specifically answered each of his
requests for corrective measures. Yet again, it is apparent simply from reading
the requested corrective measures that they are redundant and repetitive in
that they all seek a written acknowledgement from the Correctional Service of
Canada stating that the timeframes prescribed in the Commissioner’s Directives
were not observed. However, it is clear from the Senior Deputy Commissioner’s
decision that he properly grasped the essence of the applicant’s criticisms. He
had total discretion to decide on the corrective measures that were appropriate
in the circumstances and provided clear reasons to justify his refusal of the
measures claimed by the applicant. Paragraph 37 of Directive CD 081
provides that the decision‑maker will ensure that grievers are provided
with complete responses “to all issues raised” in grievances. That is what was
done here. Consequently, once again, I see no breach of procedural fairness or
the principles of natural justice.
[7]
The applicant also disputes
the reasonableness of the decision, arguing that the delays in dealing with his
grievances were overly long and that this is a recurring problem. Although the
Court sympathizes with the frustration the applicant may be feeling, the Senior
Deputy Commissioner’s response cannot be called unreasonable. Regarding the
delays in processing the files at La Macaza Institution, the Senior Deputy
Commissioner ruled in favour of the applicant in concluding that these delays
were unjustified. However, he indicated that steps had been taken so that
grievances would be referred more quickly to the second level and that a system
had been put in place to ensure that these measures would be respected. Given
these developments, it was reasonable to find that no further measures were
necessary to address the applicant’s grievances.
[8]
Regarding the
timeframes before the applicant’s grievances received a response at the second
level, the Senior Deputy Commissioner also ruled in the applicant’s favour in
deciding that these timeframes were contrary to the language of
paragraph 35 of CD 081. However, he refused to grant the applicant
the corrective measures sought, emphasizing that letters of extension had been
sent to the applicant in accordance with paragraph 41 of CD 081,
informing him of the reasons for the delay and of the date by which he could
expect to receive a response. Once again, the Court can understand the
applicant’s disappointment and his impatience to see his grievances dealt with
by the competent authorities; that being said, it has not been shown that the
Senior Deputy Commissioner’s decision is unreasonable in the circumstances.
[9]
Last, regarding the
applicant’s argument about harassment, the third level found that the applicant’s
allegations did not meet the definition of harassment as defined in CD 081.
Paragraph 10 of this directive provides that harassment means, among other
things, “any improper conduct by one or more employees . . . that is
directed at and offensive to another person, and that the individual knew or
ought reasonably to have known would cause offence or harm”. The applicant did
not flesh out his argument in this respect, and seemed to submit that the
delays he felt he was subjected to constituted harassment because of their
repetitive nature. However, there is no evidence before the Court that the
delays the applicant complained of were directed at him personally and that the
persons responsible for these delays knew or ought reasonably to have known
that the applicant would be offended. It was reasonable for the Senior Deputy
Commissioner to conclude that the applicant’s allegations did not meet the
definition of harassment set out at paragraph 10, as stated above,
especially since this provision provides that harassment comprises “any
objectionable act, comment or display that demeans, belittles, or causes
personal humiliation or embarrassment, and any act of intimidation or threat”. Without
any evidence showing that the applicant was personally targeted and that the
delays had the effect of humiliating or belittling him, this ground raised in
support of his application for judicial review therefore must fail.
[10]
For all of the above reasons, the application for
judicial review is dismissed with costs.
ORDER
THE COURT ORDERS that the application
for judicial review be dismissed with costs.
“Yves de Montigny”
Judge
Certified true translation
Sarah Burns
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