Date:
20131203
Docket: T-2136-12
Citation:
2013 FC 1211
Ottawa, Ontario,
December 3, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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WILLIAM A. JOHNSON
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Applicant
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and
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THE COMMISSIONER OF
CORRECTIONS, AS REPRESENTED BY ROSS TOLLER, DEPUTY COMMISSIONER,
TRANSFORMATION AND RENEWAL TEAM
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Ross Toller, the
Deputy Commissioner of Corrections [the Commissioner], pursuant to section 18.1
of the Federal Courts Act, RSC 1985, c F-7. The Commissioner denied the
Applicant’s third level grievance over his suspension from full-time employment
in CORCAN Industries at Warkworth Institution.
I. Issues
[2]
The
issues raised are as follows:
A. Was
the decision of the Commissioner to deny the Applicant’s third level grievance
unreasonable?
i.
Was
the discretionary decision made pursuant to the statutory authority granted to
the Commissioner?
ii. Was
the decision to suspend the Applicant unreasonable?
B. Was
the grievance process procedurally fair?
II. Standard of Review
[3]
The
discretionary decision to suspend the Applicant attracts the standard of
reasonableness (Crawshaw v Canada (Attorney General), [2006] FCJ No 380,
at paras 18-25).
[4]
With
regard to whether there exists statutory authority to issue such a suspension,
this is a question that involves the interpretation of the home statute, and
attracts the standard of reasonableness (Rogers Communications Inc v Society
of Composers, Authors and Music Publishers of Canada¸ 2012 SCC 35, at para
11). However, as the resolution of this issue depends on an interpretation of
law, the range of possible, acceptable outcomes may be narrowed, as widely
conflicting interpretations of the authorizing legislation would lead to
inconsistencies in the application of the intended law (B010 v Canada
(Citizenship and Immigration), 2013 FCA 87 at para 72; (Attorney
General) v Almon Equipment Limited, 2010 FCA 193, at para 21).
[5]
The
standard of review for procedural fairness questions is correctness (Ontario (Commissioner, Provincial Police) v MacDonald, 2009 ONCA 805, at
paras 36-37).
[6]
For
the reasons that follow, this application is allowed.
III. Background
[7]
The
Applicant, William Johnson, is an inmate at Warkworth Institution, a medium
security institution near Warkworth, Ontario. In 2011, the Applicant worked for
CORCAN, a business and rehabilitation program of the Correctional Service of
Canada, operating in the manufacturing, textiles, construction and services
sector.
[8]
On
May 11, 2011, while working at a CORCAN workshop, the Applicant was involved in
an incident with another inmate. This incident is described in a Report of
Inmate Injury dated the same day:
Inmate Hogg was cleaning the panel saw and floor with
compressed air. Inmate Johnson noticed that the room was filling up with dust
in the air and went over to tell Hogg to stop. A heated argument ensued and
Hogg apparently headbutted Johnson then punched him a couple of times. Johnson
fell to the floor unconscious for a few seconds. Security was called and
Johnson was taken to health care.
[9]
An
Assessment for Decision dated August 18, 2011, states that the Applicant was
not the aggressor in the incident.
[10]
In
an “Inmate Suspension From a Program Assignment” form [the Suspension Form],
dated “2012-05-11,” a “Full Suspension” was recommended. The Suspension Form
does not specify the length of the Applicant’s suspension, but indicates that
the maximum period of suspension is for six weeks. This time frame agrees with
section 104(1)(a) of the Corrections and Conditional Release Regulations,
SOR/92-620 [the Regulations].
[11]
The
reasons for this suspension are indicated as: “Your actions demonstrate a
refusal to participate in your program assignment.” These actions are described
to be: “[redacted name of inmate] was in a fight with offender Johnson. This
action is not tolerated in CORCAN.” This form indicates the suspension was made
pursuant to paragraph 38 of Commissioner’s Directive 730, entitled “Inmate
Program Assignment and Payments” [the Directive].
[12]
The
Applicant sought a review of the suspension and appeared before the Program
Board to make representations. On May 17, 2011, the Program Board chairperson
confirmed the measures recommended by the Program Supervisor. The Program Board
chairperson decided the Applicant was terminated for 6 months, but would be
allowed to reapply.
[13]
The
Applicant filed a complaint, requesting cancellation of his suspension and
reinstatement of his job in CORCAN on May 18, 2011. He alleged that section 39
of the Corrections and Conditional Release Act, SC 1992, c 20 [the Act]
was breached, as was the Privacy Act, RSC 1985, c P-21, by virtue of the
fact that his Finger Prints Section number was identified on the Suspension
Form, and the Suspension Form incorrectly noted the date on the form as
occurring in 2012, not 2011. In addition, he made “abuse of power” claims
against prison officials.
[14]
The
response to his complaint upheld his suspension and dismissed all claims, save
for his complaints regarding a violation of the Privacy Act and the incorrect
date on the Suspension Form. On October 7, 2011, the Applicant filed a first
level grievance of the response to his complaint, focussing primarily on the
fact that the grounds set out in section 104 of the Regulations do not apply to
his situation, as he did not “refuse to participate in the program” nor did he
“leave the program.” This grievance was denied on December 8, 2011. The reasons
indicated that the Directive provides guidance in interpreting subsection
104(1) of the Regulations, by specifying that negative behaviour or actions
which necessitate the Applicant’s removal from the program are included types
of behaviour which comprise the grounds for suspension or termination under subsection
104(1).
[15]
The
Applicant filed a second level grievance on December 14, 2011, primarily
arguing that paragraph 38 of the Directive exceeds the Commissioner’s authority
under section 97 of the Act. This grievance was denied on April 26, 2012. The
denial was based on the allegation that the Applicant’s involvement
demonstrated negative conduct, in a manner that jeopardized institutional
security and that the Program Supervisor was within his rights to suspend the
Applicant in accordance with the Directive.
[16]
On
May 18, 2012, the Applicant filed a third grievance. The Applicant argued that
the suspension was outside the jurisdiction of subsection 104(1) of the
Regulations, as he never “refused to participate in the program,” as per
subsection 104(1). Further, he argued that the date on the Suspension Form was
incorrect.
[17]
The
Deputy Commissioner denied the Applicant’s grievance in a decision dated
October 5, 2012:
You explain that paragraph 38 of CD 730… “includes
words not in fact found” in section 104(1) of the CCRR...As you italicized
“whose actions demonstrate a refusal” and “any negative behaviour or action” in
paragraph 38, it appears these are the words you are referring to.
Contrary to your belief, paragraph 38 is not
inconsistent with section 104(1) of the CCRR. While section 104(1) of the CCRR
defines the grounds for termination, paragraph 38 of CD 730 merely provides a
definition of what constitutes a refusal. CSC’s elaboration of the concept of
“refusing to participate” is not in violation of the CCRR as the CD was written
pursuant to sections 97 and 98 of the Corrections and Conditional Release Act.
(…) On 2011-05-11, you were appropriately suspended
from CORCAN as your actions demonstrated a refusal to participate in your
program assignment. That being said, your file shows that on 2011-12-16, you
were re-hired to work with the Cabinet Shop.
[18]
The
Deputy Commissioner also noted that the incorrect date on the Suspension Form
was an administrative error that did not impact the outcome of the decision to
suspend the Applicant.
IV. Analysis
[19]
The
relevant legislation, namely sections 39, 40, 97 and 98 of the Corrections
and Conditional Release Act, SC 1992, C20; section 104 of the Corrections
and Conditional Release Regulations (SOR/92-620); and section 38 of the Inmate
Program Assignment and Payments-Commissioner’s Directive 730, are attached
as Annex A.
A. Was
the Decision of the Commissioner to Deny the Applicant’s Third Level Grievance
Unreasonable?
i) Was
the discretionary decision made pursuant to the statutory authority granted to
the Commissioner?
[20]
The
Commissioner held that the grounds for suspending the Applicant are found in
subsection 104(1) of the Regulations, while paragraph 38 of the Directive,
which was written pursuant to sections 97 and 98 of the Act, merely elaborates
on which situations encompass the authority granted by subsection 104(1).
[21]
The
Commissioner was correct in finding that sections 97 and 98 give statutory
authority to issue the Directive. The purposes of such directives are listed in
section 97. Here, the relevant purpose is described in subsection 97(c). This
subsection allows for directives to be created in order to carry out the
purposes and provisions of the Regulations. In this case, the Directive is
intended to give effect to subsection 104(1) of the Regulations.
[22]
To
determine whether the Commissioner’s decision was within the authority granted
by the Directive, an examination of the purpose of subsection 104(1) is
required. The Applicant cites Rose v Canada (Attorney General), 2011 FC
1495 [Rose], where, as in the instant application, it was argued by the
applicants that a suspension was outside the authority granted by subsection
104(1). However, Justice Martineau did not rule on this argument in Rose because
the applicants had not exhausted all grievance procedures. Likewise, the
Regulatory Impact Analysis statement that accompanied the enactment of the
Regulations on October 29, 1992, does not specifically address subsection
104(1).
[23]
Accordingly,
subsection 104(1) must be read contextually in a plain meaning and harmonious
with the scheme and object of the Act (Rizzo & Rizzo Shoes Ltd (Re),
[1998] 1 S.C.R. 27, at para 21).
[24]
In
terms of the plain meaning of the provision, this subsection gives two
conditions on which a suspension from a program, for which an inmate is paid,
can occur, absent a reasonable excuse. A suspension can be triggered by the
inmate either a) leaving the program or b) refusing to participate in a
program. As the Directive was clearly not referenced on the basis of the
Applicant leaving the program, the only purpose for which it could be invoked
is based on the Applicant’s supposed refusal to participate.
[25]
The
plain meaning of the phrase “refusal to participate” does not support an
interpretation that the Applicant “refused” to participate in the program by
virtue of his actions on May 11, 2011. It is not reasonable to find that the
Applicant rejected the demands placed on him at work by verbally confronting a
fellow inmate about using an air gun, and subsequently being attacked. Instead,
a “refusal” to participate suggests activity such as the Applicant not obeying
an order to complete a work task, or refusing to work at all.
[26]
Such
an interpretation is bolstered by a reading of this provision in context with
the Act and Regulations as a whole. The title of section 104 is “Inmate Pay.”
This is in contrast to section 24 of the Regulations, which is titled “Inmate
Discipline,” suggesting that subsection 104(1) is not focused on disciplinary
infractions such as fighting. Instead, it provides a mechanism to suspend
inmates who are not reporting to work or complying with work orders.
Furthermore, the Act clearly has a process by which fighting is dealt with:
subsection 40(h) of the Act notes that fighting is a disciplinary offence, and
subsection 44(1)(b) provides a sanction described as: “loss of privileges.”
[27]
I
believe that the Commissioner’s interpretation of the Directive cannot be
accepted as reasonable, given the purpose of subsection 104(1).
ii) Was the
decision to suspend the Applicant unreasonable?
[28]
Given
my finding that the Deputy Commissioner did not properly or reasonably exercise
the statutory authority to suspend the Applicant for fighting under subsection
104(1) of the Regulations, his decision was unreasonable. There is also no
authority to suspend the Applicant’s participation in the program for more than
six (6) weeks, given the clear and unequivocal wording of section 104(1)(b).
[29]
Further,
based on the facts relating to the incident, in which the Applicant was beaten
by another inmate, I again find that the decision was unreasonable. The
Applicant was following his correctional plan, he was fulfilling his shop
steward duties at the time of the incident, and he was the victim of an assault
by the other inmate, not the aggressor. The second and third level Offender
Grievance Responses were wrong on the facts in this regard.
[30]
Moreover,
given the Applicant’s record in the workplace over an extended period of time
as being consistently “excellent,” it is unreasonable that the suspension of
six months was ordered.
B. Was the Grievance Process
Procedurally Fair?
[31]
I
need not consider this ground, given my findings above.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant’s application is allowed, the Applicant should be reinstated retroactively
with payments due and owing to him from his date of suspension of May 11, 2011,
in accordance with the Act and Regulations;
2.
Given
the conduct of the parties in the proceeding, no costs are awarded.
"Michael D.
Manson"
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