BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT
[1] This is an application for judicial review of a decision of the Chief of Food Services of the Leclerc Institution, dated February 28, 2005, by which the applicant’s request for a vegetarian diet was refused on the ground that it had been previously determined that the applicant’s desire was based on a preference rather than on a sincere conviction. This application for judicial review was heard by telephone conference on April 13, 2006.
[2] The applicant did not challenge the position taken by the Chief of Food Services of the Leclerc Institution by availing himself of the grievance procedure available to inmates under the Corrections and Conditional Release Act, S.C. 1992, c. 20 and its Regulations.
[3] In addition, the evidence shows that, since November 7, 2005, the applicant actually has been given a vegetarian diet.
[4] In my opinion, the applicant should have used the grievance procedure before applying for judicial review.
[5] A comprehensive grievance resolution process is provided under the Corrections and Conditional Release Act. The case law demonstrates that the internal grievance process under the Corrections and Conditional Release Act and its Regulations must be exhausted before applying for judicial review (Leach v. Fenbrook Institution, 2004 FC 1570; Veley v. Fenbrook Institution, [2004] F.C.J. No. 1902 (T.D.) (QL); Giesbrecht v. Canada, [1998] F.C.J. No. 621 (T.D.) (QL)). The final decision rendered as a result of the grievance process may be subject to judicial review.
[6] In Leach, supra, Madam Justice Layden-Stevenson correctly summed up the case law concerning the necessity of going through the internal grievance procedure:
[10] Before the hearing, registry, at my request, provided counsel for both parties with my direction that counsel be prepared to address the principles delineated in Giesbrecht v. Canada (1998), 148 F.T.R. 81, 10 Admin. L.R. (3d) 246 (F.C.T.D.) (Giesbrecht); Condo v. Canada (Attorney General) (2003), 239 F.T.R. 158, 301 N.R. 355 (F.C.A.) (Condo); and Anderson v. Canada (Operations Officer, Fourth Maritime Operations Group) (1996), 141 D.L.R. (4th) 54, 205 N.R. 350 (F.C.A.) (Anderson). Anderson stands for the proposition that judicial review will not be granted if there is an adequate alternative remedy that has not been exhausted. Giesbrecht applies Anderson in the corrections context and specifically to circumstances involving the involuntary transfer of an inmate. Mr. Justice Rothstein, then of the trial division, determined that it is premature to launch an application for judicial review before the grievance process provided for in the CCRA and Regulations is exhausted. Judicial review is only appropriate after a final decision is rendered in the grievance process. Condo confirms the principles articulated in Giesbrecht.
[7] As articulated in Giesbrecht, “There is nothing before the Court that would indicate that the internal grievance procedure under the Corrections and Conditional Release Act and Regulations is not an adequate alternative remedy to judicial review”. In my opinion, the case law is clear to the effect that the grievance process is an adequate remedy that was not used, and the Court is thus warranted in dismissing the application for judicial review for this reason alone.
[8] In any event, since November 7, 2005, the applicant has had the benefit of a vegetarian diet. On this point, he did not file a formal grievance or apply for judicial review. Therefore, the whole matter is a moot point.
[9] As explained in Butler v. Canada (National Parole Board), [2004] F.C.J. No. 1710:
[7] The first step in assessing whether a matter is moot is to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at para. 16). In this case, there is no dispute that Mr. Butler is no longer subject to the Suspension Order. The subsequent panel of the NPB, reviewed the circumstances of the Suspension Order and decided to cancel the suspension.
[10] Therefore, even if the Chief of Food Services made an error when he refused the applicant’s request on February 28, 2005, this decision now has no practical direct consequence. Setting aside the decision rendered by the Chief of Food Services would not change the applicant’s situation, as he now has the benefit of a vegetarian diet. The tangible and concrete dispute that is required has thus disappeared.
[11] In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Sopinka J. underlined the fact that there are three factors to be considered in determining whether or not a moot proceeding should nevertheless continue:
(i) the existence of an adversary system;
(ii) the concern for judicial economy; and
(iii) the obligation for the Court to be aware of its law-making function.
[12] When applying the first test here, I am not convinced that any adversarial debate remains. The application for judicial review concerns a decision of the Chief of Food Services refusing the applicant’s request to have a vegetarian diet. Now that the applicant has a vegetarian diet, it seems to me that the adversarial debate is over.
[13] As far as the second test is concerned, there is no argument I can think of that would warrant spending judicial resources on such a matter. In this case, a determination would not have any practical side effects on the rights of the parties.
[14] The third test is of no help, because in this case there is no question of great importance to be decided.
[15] In my opinion, considering these three factors, this Court should not exercise its discretion to decide an issue that has become moot.
[16] For these reasons, the application for judicial review is dismissed. No determination as to costs is made, as the applicant did not request any.
Ottawa, Ontario
May 11, 2006
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-452-05
STYLE OF CAUSE: BENOIT COLLIN v. THE ATTORNEY GENERAL FOR CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 13, 2006
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Pinard
APPEARANCES:
|
Benoit Collin
|
FOR HIMSELF |
|
Marc Ribeiro
|
FOR THE RESPONDENT |
SOLICITORS OR RECORD:
|
Benoit Collin St-Vincent-de-Paul, Quebec
|
FOR HIMSELF |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |