Docket: T-2049-13
Citation:
2014 FC 959
Ottawa, Ontario, October 8, 2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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JAMES THOMAS EAKIN
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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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JUDGMENT AND REASONS
[1]
The applicant, Mr Eakin, is serving an
indeterminate sentence having been designated as a Dangerous Offender in 1995.
He seeks judicial review under s.18.1 of the Federal Courts Act, RSC
1985, c F-7 of the third-level decision of the Assistant Commissioner of the Correctional
Service of Canada [CSC] dated October 18, 2013 of his grievance (V4OR00012109).
The Assistant Commissioner denied the grievance, finding that some aspects of
the grievance had been finally dealt with in a separate and previous grievance
(V40R00005631) and that the remaining aspects of the grievance, relating to Mr
Eakin’s security level classification, are in accordance with section 18 of the
Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]
and are based on file information, including assessments, and were conducted in
accordance with policy.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
Background
[3]
Mr Eakin is a federally incarcerated inmate at
the Warkworth Medium Security Institution. He was convicted of aggravated
sexual assault and robbery in 1991 and sentenced to six years imprisonment. In
1993, he was convicted of a sexual assault and robbery of another victim. The
Crown applied to have Mr Eakin designated as a Dangerous Offender. In 1995,
following a hearing, Mr Eakin was found to be a Dangerous Offender by Justice
Hamilton of the Ontario Court of Justice (General Division), as it was then
known. Justice Hamilton imposed an indeterminate sentence in lieu of a determinate
sentence for the second conviction. The Ontario Court of Appeal upheld the
conviction, the Dangerous Offender designation and the sentence.
Preliminary Issues
[4]
As a preliminary issue, the Style of Cause is
amended to remove the Commissioner of the Correctional Service of Canada and
the Warkworth Institution as respondents and leaving the Attorney General of
Canada as the only respondent.
[5]
As a second and important preliminary issue, the
applicant’s record includes numerous references to the names of the two victims
of sexual assault. The names of the victims are subject to a publication ban on
their identity. I note that in the decision of the Ontario Court of Justice
(General Division), as it was then known, that found Mr Eakin to be a Dangerous
Offender, the victims were referred to by initials only to protect their
identity. This practice should continue.
[6]
To respect the publication ban and to guard
against the disclosure of the identity of the victims in the material filed by
the applicant in these proceedings, the applicant’s record has been placed in a
sealed envelope. These documents cannot be provided to anyone unless the names
of the victims are deleted and only their initials are used. The applicant
must respect this publication ban including in any possible future proceedings
where he seeks to rely on the same or similar information.
The decision under review
[7]
The grievance procedure to resolve inmate
complaints regarding actions or decisions made by CSC staff members is set out
in section 90 of the Corrections and Conditional Release Act, SC 1992, c
20 s 24(1), (2) [CCRA]. There are three levels in the grievance process
(see Sections 74 to 82 of the CCRR. The offender’s initial complaint is
the “first-level grievance” which is addressed to the head of the institution.
The “second-level grievance” elevates the complaint to the regional head. The
“third-level grievance”, is a final appeal to the Commissioner. The offender
may apply to this Court for Judicial review of the third-level grievance when
that process is final and all internal remedies have been exhausted.
[8]
This application for judicial review is based on
the third level decision, dated October 18, 2013, for Grievance V40R00012109.
The decision of the Assistant Commissioner describes the grievance as follows:
[…] your third level grievance concerning the
accuracy of information provided to the psychologist for the preparation of a
Post Correctional Program Psychological (sic) Risk Assessment, and the
subsequent decision to maintain you as a Medium security offender, has now been
reviewed.
[9]
With respect to the grievance regarding the use
of inaccurate information, the decision refers to Mr Eakin’s “numerous allegations that the information used in compiling
the Post Program Psychiatric Risk Assessment was inaccurate and/or incomplete”
and notes that that these allegations were the subject of a separate grievance.
[10]
The third level decision also notes that the
second level response had advised Mr Eakin that his concerns about the validity
of the Post Program Psychiatric Risk Assessment had been addressed in the
response to his other grievance, V40R00005631, the third level decision of
which was rendered on January 21, 2013. The second level response noted that
information provided by the Courts is beyond the authority of the CSC, but
acknowledged that Mr Eakin continued to contest that information.
[11]
The third level decision notes Mr Eakin’s
submission that the CSC should ensure that all information it relies on is
accurate and his argument that he had given CSC the Court documents which
conflict with CSC’s information.
[12]
The decision refers again to the third level
decision of January 21, 2013 of the previous grievance (V40R00005631) which
informed Mr Eakin that, while subsection 24(2) of the CCRA requires that
CSC use accurate and up to date information, it also puts the responsibility on
offenders to identify the information that they believe is inaccurate and that
Commissioner’s Directive [CD] 701 sets out the process to request file corrections.
The January 21, 2013 decision also advised Mr Eakin that information received
from the Courts is beyond the jurisdiction of the CSC and advised him to direct
his concerns to the Court.
[13]
Because the issue of the allegedly incorrect
information was addressed in the decision of January 21, 2013 on V40R00005631,
the current decision indicates that this aspect of the grievance is rejected in
accordance with Guidelines [GL] 081-1, Offender Complaint and Grievance
Process, Annex C which provides that a grievance may be rejected when, among
other things, the issue being grieved is not under the jurisdiction of the
Commissioner or the issue has been or is being addressed in a separate
complaint or grievance.
[14]
With respect to Mr Eakin’s grievance of his security
classification, the decision notes that the Security Reclassification Scale [SRS]
is only one part of the assessment. The Post Program Psychiatric Risk
Assessment conducted by Dr Hucker revealed concerns about Mr Eakin’s risk of
sexual and violent re-offending. Based on the assessed risk, he was given a
Moderate Public Safety rating. That determination also acknowledged that Mr
Eakin contested some aspects of the Risk Assessment.
[15]
A specific rating was also provided in relation
to Institutional Adjustment, Escape Risk and Public Safety which was Low. The
decision notes that the Head of the Institution concurred with the
recommendation of a Moderate Public Safety rating and a Low Institutional
Adjustment, Escape Risk and Public Safety rating, but given the Moderate Public
Safety rating, Mr Eakin was appropriately maintained as a Medium Security
Offender in accordance with Section 18 of the CCRR and based on file
information, including assessments.
[16]
As a result, the grievance was denied.
[17]
The second level response, dated June 2013,
which is part of the Record, focuses on the grievance of the security level
classification. It notes Mr Eakin’s submissions about his actions and
behaviour while incarcerated. It also notes that the main reason for Mr Eakin’s
dispute about his classification is his assertion that Dr Hucker’s assessment
is based on misinformation provided by the Court. The second level decision
also refers to the January 21, 2013 decision on Mr Eakin’s other grievance
(V40R00005631) related specifically to Dr Hucker’s assessment and which
directed Mr Eakin to pursue his concerns about the information provided by the
Court (i.e. the Ontario Court of Justice, General Division, as it was
previously known) with the Federal Court of Canada.
[18]
The second level decision notes that in one of
the assessments done for the security classification, the Parole Officer noted
that Mr Eakin contests aspects of Dr Hucker’s assessment and asserts that it
was based on erroneous file information regarding his index offences and that
Mr Eakin believes that this has led to an inaccurate assessment of his risk and
level of accountability.
[19]
The second level decision states “the psychiatric assessment, acknowledged to be the same one
you believe is based on inaccurate information, is then discussed. In this
report, the professional opinion presented by Dr Hucker was that your
participation in the treatment has been hindered by your inability to accept
the professional opinions and the implications these have for continued high
risk of re-offence.”
[20]
The second level decision again acknowledges
that Mr Eakin disputes the information relied upon by Dr Hucker but notes, “Mr Eakin, all the information considered by your Parole Officer’s
review of this factor is appropriate and consistent with what is required in
policy. And, although you do not agree with the information relied upon [sic]
Psychiatrist’s assessment this does not change the fact that, at the time of
the review, that information is consistent with your file information received
from the courts.”
The applicant’s position
[21]
Mr Eakin seeks a range of relief.
[22]
First, Mr Eakin seeks an Order quashing the
decision of the Assistant Commissioner which denied his third level grievance.
[23]
Second, Mr Eakin now also seeks an Order directing
CSC to correct information on his CSC file which he contends is inaccurate
including: the proper start date of his indeterminate sentence as a Dangerous
Offender, which he argues is the date of his arrest and not the date of the
imposition of the sentence; that his indeterminate sentence is as a result of
his Dangerous Offender designation in 1995 and was imposed for the second
conviction only; and, his criminal record which includes robbery and break and
enter convictions in 1999 and information regarding the concurrent sentences
imposed.
[24]
Third, Mr Eakin seeks an Order from this Court
to correct what he submits are errors made by Justice Hamilton of the Ontario
Court of Justice (General Division), as it was previously known, in 1995 at Mr
Eakin’s Dangerous Offender hearing and sentencing to reflect the testimony of
the sexual assault victims, or alternatively an Order directing the appropriate
Court to make that correction.
[25]
Finally, Mr Eakin seeks an Order directing CSC
to disregard all reports or psychiatric and other assessments based on this
incorrect information and to consider only the corrected, accurate and relevant
information, including the testimony of the sexual assault victims.
[26]
With respect to the decision of the Assistant
Commissioner, Mr Eakin’s arguments focus on his assertions that CSC refuses to
correct or acknowledge information on his file that he contends is not
accurate. He argues that CSC continues to rely on erroneous information and
that this has had an impact on his correctional plan and programming and will
have an ongoing impact on the possibility for a lower security classification.
He states that he has made several requests over the years to CSC to correct
his information and that he has raised this issue with his Parole Officer and
with the Parole Board.
[27]
Mr Eakin notes that the Psychiatric Risk
Assessment conducted by Dr Hucker states that his account of his offences does
not correspond with the victim’s statements and concludes that he lacks insight
and/or is being obstructive. Mr Eakin argues that his own account is accurate
and that the information from the Court and the findings of fact at his
dangerous offender hearing and sentencing are incorrect. Mr Eakin suggests that
he would have to lie about the violent nature of the offences he committed in
order for his account to reflect the information in his CSC file based on the
Court documents.
[28]
Mr Eakin argues that the decision of Justice
Hamilton refers to the violent nature of both sexual assaults but that Justice
Hamilton mistakenly mixed up the events and that the testimony of one of the
victims does not describe that same level of violence. Mr Eakin points to an
uncertified transcript of what appears to be a short excerpt of a police
interview with one of the victims in support of his assertion.
The respondent’s position
[29]
The respondent notes that an applicant cannot
raise new issues on judicial review which were not part of the grievance and
which were not considered by the Assistant Commissioner. The applicant has raised
three issues that were not part of his grievance: the start date of his
sentence; his assertion that he is currently serving an indeterminate sentence
for one conviction of sexual assault; and, his criminal record. The record
before the Court does not address these issues and there is no basis for the
Court to determine the reasonableness of the Commissioner’s decision with
respect to these issues.
[30]
The respondent submits that there is only one
issue raised in the grievance which is now the subject of judicial review and
this is about the accuracy of information in the decision of Justice Hamilton
of the Ontario Court of Justice (General Division), as it was previously known,
which found Mr Eakin to be a Dangerous Offender and imposed an indeterminate
sentence.
[31]
With respect to the applicant’s assertions that
the information on the Court file, specifically the findings of fact in his
Dangerous Offender hearing and sentencing of June 21, 1995 regarding the nature
and circumstances of the assaults on two complainants, the respondent notes
that Mr Eakin appealed the decision to the Ontario Court of Appeal, which
upheld the conviction and sentence and did not refer to any errors made with
respect to findings of fact.
[32]
The respondent submits that Mr Eakin’s request
to this Court to correct the record of the Ontario Court is beyond this Court’s
jurisdiction. Regardless of whether this is characterized as seeking to change
Justice Hamilton’s findings or the CSC file information, the respondent submits
that this application for judicial review is a collateral attack on Justice
Hamilton’s decision.
[33]
Although the applicant argues that he is
challenging only the use by the CSC of that information in its own decision
making, and that it is within this Court’s jurisdiction to consider judicial
review of CSC’s reliance on the information in its files, in this case, Justice
Hamilton’s decision is the source of the information relied on by CSC. Mr Eakin
is asking this Court to declare that the findings of Justice Hamilton of the
Ontario Court of Justice (General Division), as it was then known, were wrong.
[34]
The respondent submits that Mr Eakin’s attempts
to argue that there are inconsistencies between the information provided by the
victims of the two sexual assaults and Justice Hamilton’s description of the
level of violence used by Mr Eakin in the two sexual assaults which led to the
Dangerous Offender finding should have been raised in his appeal to the Ontario
Court of Appeal.
[35]
The respondent submits that although section 24 of
the CCRA requires CSC to take all reasonable steps to ensure that the
information it uses about an offender is up to date, accurate and as complete
as possible, CSC has no obligation to reinvestigate information obtained from
reliable sources including the Courts. In this case, CSC had no obligation to
verify the findings of fact of the trial judge (Tehrankari v Canada (Attorney General), 2012 FC 332, [2012] FCJ No 441 [Tehrankari] at paras
35-36).
[36]
The respondent notes that Mr Eakin has been advised
on several occasions that the proper process to correct the information he
contends is inaccurate is to follow CD 701 and make a formal request to his
Parole Officer. The Directive requires that CSC include a copy of the written
request in the offender’s case management file. The respondent further notes
that in the event that a decision is made to change the information in the
file, the changed information would be noted alongside the original information
with the date of the change. The information that Mr Eakin contends is
inaccurate would not be expunged but would remain to provide the context for
the decisions made on the basis of this information. The respondent does not
agree that there is any inaccurate information in the file, only that this is the
manner in which any inaccurate information would be addressed.
[37]
With respect to Mr Eakin’s submissions that he
has made repeated requests to have his file information corrected, the
respondent acknowledges that Mr Eakin has raised this issue with his Parole
Officer and others, but submits that he has not pursued his request. Mr Eakin’s
requests are simple letters and file notations that mention alleged conflicts
in the information, and were not formal requests.
[38]
The respondent notes that Mr Eakin relies on
short excerpts of interview notes to support his assertions. However, the
record from Mr Eakin’s two trials and his Dangerous Offender hearing and
sentencing would be voluminous and the short excerpts do not provide the
context or the complete story.
[39]
The respondent submits that this is not a
situation of CSC demanding form over content and relying on Mr Eakin’s failure
to submit the proper form to avoid the duty to follow up. Rather, Mr Eakin has
not provided sufficient content to support his assertions and the decision of
the Assistant Commissioner conveys that Mr Eakin has not provided a sufficient
basis for CSC to explore these assertions.
[40]
The respondent also points out that issues
regarding convictions and sentencing are not grievable in the CSC institutional
grievance process.
[41]
The respondent submits, in response to Mr
Eakin’s concern that he will never be able to have his security classification
reduced to minimum because he would have to lie to demonstrate insight into his
past behaviour, that there is no entitlement to cascade down to a minimum
security classification leading to possible release. Such a determination is
based on several assessments.
[42]
The respondent notes that protection of society
is the paramount consideration for the Service in the corrections process,
pursuant to section 3.1 of the CCRA and this is particularly so for risk
assessments. Therefore, the decision to give more weight to the information in
the CSC file than to the applicant’s allegations is reasonable.
[43]
In this case, the Assistant Commissioner’s
decision regarding the security classification was based on the information in
the file, including Dr Hucker’s psychiatric assessment that concluded Mr Eakin
was at risk of sexual and violent reoffending. The decision reflects CSC’s
duty to protect the public and fits within the range of reasonable acceptable
outcomes.
Standard of Review
[44]
As noted in Tehrankari, decisions of the
Commissioner of CSC of third level grievances which arise from an assessment of
the facts or mixed facts and law are reviewed on the standard of
reasonableness.
[45]
At the oral hearing I explained that a judicial
review is not an appeal and the role of the Court is not to reconsider or
reweigh the evidence and reach a decision. Rather, the role of the Court is to
determine whether the decision, in this case the decision of the Assistant
Commissioner to deny Mr Eakin’s grievance, is reasonable.
[46]
The standard of reasonableness calls on the
Court to determine whether the decision “falls within ‘a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law’ (Dunsmuir, at para. 47). There might be more than one
reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.” (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59, citing Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[47]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708,
the Supreme Court of Canada elaborated on the requirements of Dunsmuir
at para 14-16 and noted that the reasons are to “be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes” and that courts “may, if they find it necessary, look to the record for the
purpose of assessing the reasonableness of the outcome”. The Court summed
up their guidance in para 16:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
The Assistant Commissioner’s
Decision is Reasonable
[48]
This application for judicial review is only
about the decision of the Assistant Commissioner that denied Mr Eakin’s third
level grievance.
[49]
The additional issues Mr Eakin now raises and
the additional relief he now seeks - namely, his allegations of inaccuracy in
the information about the start date of his sentence, his criminal record, and
that his indeterminate sentence as a dangerous offender is for only one sexual
assault - are beyond the scope of this application for judicial review. These
issues were not raised in his grievance.
[50]
The decision of the Assistant Commissioner of
the third level grievance, which is the subject of this application for
judicial review, is in two parts. First the decision rejects Mr Eakin’s
grievance related to his complaints about the information relied upon by Dr
Hucker. The decision reasonably concludes that this grievance was addressed in
the third level and final response to a separate and previous grievance,
V4OR00005631. As a result, it cannot be addressed in the current third level
response to V4OR00012109. The decision clearly notes that because the issue of
the allegedly incorrect information was addressed in the decision of January
21, 2013 on V40R00005631 this aspect of the grievance is rejected in accordance
with Guidelines [GL] 081-1, Offender Complaint and Grievance Process, Annex C
which provides that a grievance may be rejected when, among other things, the
issue being grieved is not under the jurisdiction of the Commissioner or the
issue has been or is being addressed in a separate complaint or grievance.
[51]
The relevant parts of Annex C state:
A complaint/grievance may be rejected when:
1. The
issue being grieved is not under the jurisdiction of the Commissioner.
The decision maker must inform the offender
in writing that the subject is non-grievable and provide the appropriate
information on the means of redress available based on the subject. Refer to
Annex F for a list of non-grievable subject matters and the available
alternative means of redress.
[…]
5. The
issue is being, or has been, addressed in a separate complaint/grievance.
If, during the analysis of a
complaint/grievance at any given level, it is established that the issue is
being, or has been, addressed in a separate complaint/grievance, the
complaint/grievance may be rejected. However, if a submission is going to be
rejected on this basis, it must be clear that the issue was the same and was
addressed in the separate complaint/grievance. The response should also clearly
outline the reason(s) for rejecting the complaint/grievance as well as the
reference number(s) of the submission that already addressed the issue.
[52]
The Assistant Commissioner reasonably found that
the grievance related to Dr Hucker’s psychiatric assessment had been dealt with
and was not properly part of the current grievance – i.e., it had been finally
determined at the third level grievance. Mr Eakin acknowledged that he had not
sought judicial review of that decision, noting that this was because his
computer had been taken away. Regardless of the reason, that decision is final
and it addressed the same issue he now seeks to raise.
[53]
Therefore, there is no error by the Assistant
Commissioner in finding that Mr Eakin’s complaint about his psychiatric
assessment was not grievable and denying this aspect of the grievance.
[54]
Although Mr Eakin re-characterizes the issue in
this judicial review more broadly as CSC’s reliance on misinformation from the
Court, the very same issue was dealt with in the other grievance. That very
same issue also underlies the second aspect of the decision. Mr Eakin’s
grievance of his security classification is directly related to his complaints
about the alleged inaccurate information in the CSC file which is derived from
the Court file and is also related to the issues addressed in the previous
grievance (V40R00005631).
[55]
The second aspect of the decision denies the
grievance related to Mr Eakin’s security classification as Medium. The
classification decision is reasonable. Based on the CCRR, the
assessments conducted and the file information considered, and the stated
paramount consideration of the CSC in the corrections process as the protection
of society, the decision falls within the range of reasonable outcomes.
[56]
The CSC has responsibility under section 24 of
the CCRA to ensure information is accurate and up to date. Section 24
provides:
24. (1) The
Service shall take all reasonable steps to ensure that any information about an
offender that it uses is as accurate, up to date and complete as possible.
(2) Where an offender who has been given access
to information by the Service pursuant to subsection 23(2) believes that there
is an error or omission therein,
(a) the offender may request the Service to correct that information;
and
(b) where the request is refused, the Service shall attach to the
information a notation indicating that the offender has requested a correction
and setting out the correction requested.
[57]
However, as noted by Justice Mosely in Tehrankari,
CSC is entitled to rely on information from the Court:
[35] Mr. Tehrankari is correct that
s.24(1) of the CCRA does oblige CSC to “take all reasonable steps to ensure
that any information about an offender that it uses is as accurate, up to date
and complete as possible.” However, that does not mean that CSC must
reinvestigate information obtained from reliable sources such as provincial
ministries, police forces and the courts. The Offender Complaint and Grievance
Procedures Manual indicates that matters under provincial jurisdiction, matters
relating to convictions and sentencing by courts, matters relating to the
administration of justice including courts and police forces, and matters relating
to treatment by non CSC agencies are non-grievable within the institutional
grievance process.
[58]
Mr Eakin’s claim that the findings of the Court
are inconsistent with testimony of his victims does not make it so. CSC is
entitled to rely on the decisions of the Ontario Court of Justice (General
Division), as it was then known, which in 1991 convicted Mr Eakin of aggravated
sexual assault and robbery, in 1993 convicted Mr Eakin of sexual assault and
robbery, and in 1995 found Mr Eakin to be a Dangerous Offender and imposed an
indeterminate sentence for his second conviction of sexual assault. CSC is also
entitled to rely on the decision of the Ontario Court of Appeal in R v Eakin
(2000), 132 OAC 164, 74 CRR (2d) 307, which upheld the Dangerous Offender designation
and indeterminate sentence and stated at para 3, “In my
view, there is no reason to interfere with any of the trial judge’s findings or
his conclusions.”
[59]
As I noted at the hearing, Mr Eakin may wish to
review the decision of Justice Hamilton which found him to be a dangerous
offender and imposed an indeterminate sentence (R v Eakin (in the matter of
a Dangerous Offender Application), [1995] OJ No 5026). Although Mr Eakin
takes the view that the judge mixed up the facts, Justice Hamilton clearly distinguished
the two sexual assaults and described the violence associated with each one.
Justice Hamilton also noted that Mr Eakin had been sentenced to six years for
the first conviction and that the indeterminate sentence imposed following the
Dangerous Offender finding was for the second conviction.
[60]
With respect to the decision of CSC that Mr
Eakin has failed to pursue the proper process to seek to have information on
his record corrected, it is clear that Mr Eakin has raised his assertions on
several occasions including with his Parole Officer. While he has not provided
sufficient and complete information to permit CSC to follow up, if CSC is
indeed required to follow up given that the allegations of misinformation
relate to findings of the Court which CSC is entitled to rely on, it is clear
from the responses of CSC at the second and third level on this grievance and
on the greivance related to the contents of Dr Hucker’s assessment (which is
not the subject of this judicial review) that Mr Eakin’s concerns about
conflicts in the information regarding the level of violence associated with
the two sexual assaults have been noted extensively. CSC is clearly aware of Mr
Eakin’s perspective.
[61]
CSC has also advised Mr Eakin that a formal
request for a correction of his file is required.
[62]
CSC does not regard Mr Eakin’s less formal
complaints to constitute a request. Although Mr Eakin has been frustrated by
this response given his belief that he has repeatedly raised his concerns,
CSC’s decision is not unreasonable given the lack of supporting information for
these allegations of inaccuracy and given that CSC is entitled to rely on
findings of the Courts.
[63]
The respondent has acknowledged that Mr Eakin
was misdirected by CSC regarding his complaints about what he believes to be
inaccurate information provided by the Court. In the third level decision on
the grievance related to Dr Hucker’s assessment (V40R00005631, which is not the
subject of this judicial review), Mr Eakin was told to direct his complaints to
the Federal Court. This advice was repeated in the second level decision on the
current grievance. The third level decision, which is the subject of judicial
review, also indicates that Mr Eakin was previously advised where to direct his
concerns (i.e., to the Federal Court). The information which Mr Eakin contests
is the findings of Justice Hamilton of the Ontario Court of Justice (General
Division), as it was then known. The Federal Court has no authority to inquire
into or even to ask the Ontario Court to inquire into such assertions. As
noted by the respondent, the time to contest these findings has passed.
Moreover, the Ontario Court of Appeal upheld the decision noting there was no
reason to interfere with any of the findings of the trial judge.
[64]
However, Mr Eakin was clearly misdirected by CSC
to bring his concerns to the Federal Court, so he cannot be faulted for doing
so. No doubt this adds to his frustration, despite that his allegations may
lack any foundation.
[65]
In conclusion, the Assistant Commissioner’s
decision on the third level grievance review is clear, transparent,
intelligible and justifiable in respect of the facts and the law. The reasons
clearly convey why the Assistant Commissioner decided as she did. The decision
is within the range of possible acceptable outcomes and is, therefore,
reasonable. Accordingly, this application is dismissed.
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