Date: 20040527
Docket: T-194-02
Citation: 2004 FC 769
Ottawa, Ontario, the 27th day of May 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
PIERRE-PAUL POULIN
Applicant
- and -
ATTORNEY GENERAL OF CANADA and
COMMISSIONER OF PENITENTIARIES
(CORRECTIONAL SERVICE OF CANADA)
Respondents
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of a decision by the Assistant Commissioner of the Correctional Service of Canada following a grievance filed by the applicant, Pierre-Paul Poulin, an inmate in a federal penitentiary, regarding the pay that he received for participating in an employment program. The respondent's memorandum correctly describes the facts, the legislation and regulations as well as the issue, so I will refer to, in large part, the formulation that was used therein.
[2] The Correctional Service had construction work being done at one of its institutions. Service contracts had been concluded with subcontractors under which the Correctional Service was to provide labour to the subcontractors in exchange for a given compensation. To meet its contractual obligations, the Correctional Service recruited inmates to participate in an employment program. The inmates were paid for their work in accordance with the policies of the Correctional Service regarding the remuneration of inmates adopted under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (Act).
[3] The applicant took part in the employment program and received inmate pay. However, he said that he was entitled to the amount paid by the sub-contractors to the Correctional Service pursuant to the subcontracts, since he was the direct employee of the subcontractors.
Issue
[4] This case only raises a single issue: was it patently unreasonable for the Assistant Commissioner to make a finding of fact to the effect that the applicant was not directly employed by an outside employer, but that he had been assigned to a CORCAN program and therefore was only entitled to inmate pay and not to the amount paid by the subcontractors to CORCAN?
[5] For the following reasons, I will answer this question in the negative and I will therefore dismiss the application for judicial review.
Legislative and regulatory background
[6] The Act requires the Correctional Service to offer programs to inmates to meet their needs and encourage their reintegration. CORCAN, which is the part of the Correctional Service responsible for penitentiary industry, had been implemented by the Correctional Service to fulfill this obligation. The inmates' products and services are sold by CORCAN and the sales proceeds help to defray the operating costs of the program.
[7] According to subsection 78(1) of the Act, the commissioner of the Correctional Service can authorize inmate pay at the rates approved by the Treasury Board in order to encourage inmate participation in the programs. The commissioner gave his authorization by adopting Directive No. 730 entitled Inmate Program Assignment and Payments (Directive). This Directive describes the commissioner's policy about the remuneration of inmates assigned to programs, as well as its terms. Essentially, the commissioner delegates to the Program Board of the penitentiary (or its equivalent) the responsibility for assigning an inmate to a program while taking into account his correctional plan and setting his pay level according to the terms of the Directive. The Directive provides for four pay levels and the skills that the inmates must have in order for them to qualify for these levels. The inmates can also receive performance incentives for their work.
[8] Pursuant to paragraph 4(b) of the Directive, inmates who are assigned to a program for which remuneration is paid directly by an outside employer are excluded from the provisions of the Directive. Their pay rate is not determined by a policy of the commissioner, but by their employment contract with their employer. This employment contract must clearly comply with applicable provincial employment legislation. In other words, at the very least they must receive the minimum wage in effect in the province in question.
Facts and judgments below
[9] In the 1990s, the authorities of the Mission Institute began construction work and renovations at the institution. The contract for the construction project had been awarded to CORCAN as general contractor. CORCAN concluded contracts with subcontractors to perform the services. According to these agreements, CORCAN would provide labour for the general work. In exchange, the sub-contractors paid CORCAN $7.00 for each hour of an inmate's work. There was no contract of employment between the inmates and the subcontractors. The inmates who participated in the construction projet received inmate pay. They also received a performance incentive.
[10] From 1996 to 2000, the applicant had been assigned to the construction project by the institutional programs board of the Mission Institute (Board). In accordance with the Directive, the Board approved that the applicant be paid at level A, i.e. at a daily rate of $6.90. The applicant also benefitted from the performance incentive set at the hourly rate of $4.00. In short, the applicant received $34.90 for a seven-hour day. It should be noted that, initially, CORCAN only paid the performance incentive and not the inmate pay. Following a grievance filed by another inmate, Berquist, CORCAN rectified the situation and made retroactive payments to the inmates, including the applicant. Exhibit J of the applicant's affidavit, a note written by the analyst from Inmate Affairs, Richard Vacher, stated that in a telephone conversation with Mr. Vacher, the applicant acknowledged having received a retroactive payment of more than $3,800.00 following the Berquist decision.
[11] In December 2000, the applicant filed a complaint regarding the remuneration that CORCAN had paid to him for his participation in the construction project. The applicant alleges that he was the direct employee of the subcontractors, that they had agreed to pay the inmates $7.00 per hour and that CORCAN only paid $4.00 an hour to the inmates. To support his claims, he submitted a document entitled Special Conditions for Inmates Working with CORCAN Contractors. This document applies to inmates who are employed by outside contractors and not by CORCAN. As evidence that it had been agreed that the inmates would receive $7.00 per hour, the applicant submitted a sample service agreement between CORCAN and a subcontractor (exhibit Q of the applicant's affidavit). He did not submit any employment contract between the subcontractors and the inmates.
[12] The applicant's complaint was dismissed and he filed a grievance. That grievance was dismissed at all levels, including the final level by the Assistant Commissioner of Correctional Service, Cheryl Fraser. She determined that the applicant had not been employed by an outside employer, but rather had been assigned to the construction project by the Board and that, consequently, the applicant was entitled to receive inmate pay in accordance with the Directive. The applicant is seeking judicial review of that decision.
Analysis
[13] The standard of review applicable to findings of fact by the Assistant Commissioner is that of patent unreasonableness (Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495, paragraph 44 (Trial Division)(QL)).
[14] The evidence adduced by the applicant does not in any way establish that he had been directly employed by the subcontractors. In fact, the service contract filed into evidence by the applicant as exhibit Q only confirms that CORCAN had contracts with subcontractors. It is not evidence that the applicant was an employee of the subcontractors. Moreover, there is no evidence that the document entitled Special Conditions for Inmates Working with CORCAN Contractors applied to the construction project in this case. The document does not date from the period in question (it is dated April 23, 2001) and it is signed by a person other than the applicant. Accordingly, the Assistant Commissioner's finding was supported by the evidence and therefore was not patently unreasonable.
[15] The application for judicial review will therefore be dismissed.
ORDER
The Court orders that the application for judicial review be dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-194-02
STYLE OF CAUSE: Pierre Paul Poulin v. Attorney General of Canada et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 28, 2004
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Pierre-Paul Poulin (representing himself) FOR THE APPLICANT
Marie Crowley FOR THE RESPONDENTS
SOLICITORS OF RECORD:
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada