Federal Court Decisions

 

 

Date: 20061109

Docket: T-1889-05

Citation: 2006 FC 1355

BETWEEN:

GERLANDO CARUANA

Applicant

and

 

THE ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR ORDER

GIBSON J.

 

INTRODUCTION

[1]               These reasons follow the hearing of an application for judicial review of a decision of the Acting Assistant Deputy Commissioner, Regional Headquarters, Ontario (the “decision-maker”) in which he upheld a decision of the Warden of Bath Institution of the Correctional Service of Canada (“CSC”) to maintain the Applicant’s medium security classification.  While the decision under review is at the second level of the CSC grievance procedure, it was in fact based on the Applicant’s first resort to that procedure since the original classification decision was made by the individual with authority at the first level of the grievance procedure.

 

[2]               The decision under review is dated the 24^th of August, 2005.  It was not communicated to the Applicant until the 13^th of October, 2005.

 

BACKGROUND

[3]               The Applicant is a sixty-three (63) year old inmate incarcerated in Bath Institution who was originally sentenced, on the 7^th of March, 1986, to twenty (20) years in prison following his conviction for the offences of import/export and conspiracy to import/export heroin.  He was eventually released on parole.  While on parole, he was again charged with conspiracy to import and conspiracy to traffic in cocaine.  He was convicted and sentenced to serve eighteen (18) years in prison, to be served concurrently with the remainder of his 1986 sentence.  In the result, the Applicant’s aggregate sentence is thirty-one (31) years, eleven (11) months and eighteen (18) days, his statutory release date is the 12^th of August, 2011 and his warrant expiry date is the 24^th of February, 2018.  His full parole eligibility date is long past.

 

[4]               Since the 25^th of April, 2000, when the Applicant was returned to the custody of CSC, he has been serving his sentence at the medium-security Bath Institution in Bath, Ontario.  Since that date, he has consistently been assessed as a medium security offender.

 

[5]               On the 16^th of October, 2003, by a decision that was not challenged, the Applicant was identified as a member of an organized criminal organization.

 

 

THE RELEVANT STATUTORY AND REGULATORY SCHEME AND RELATED COMMISSIONER’S DIRECTIVES

[6]               Section 30 of the Corrections and Conditional Act[1] (the “Act”) provides for the security classification of inmates.  It reads as follows:

[7]               Section 90 of the Act mandates the establishment of a grievance procedure for “fairly and expeditiously” resolving offenders’ grievances.  That section reads as follows:

 

[8]               Paragraphs 96(u) and (z.6) of the Act, referred to in sections 30 and 90, in reverse order, read as follows:

 

[9]               Section 17 of the Corrections and Conditional Release Regulations[2] (the “Regulations”) requires CSC to take into consideration in determining the classification to be assigned to an inmate pursuant to section 30 of the Act, the following factors, namely:  the seriousness of the offence committed by the inmate; any outstanding charges against the inmate; the inmate’s performance and behaviour while under sentence; the inmate’s social, criminal and, where available, young-offender history; any physical or mental illness or disorder suffered by the inmate; the inmate’s potential for violent behaviour; and the inmate’s continued involvement in criminal activity.

 

[10]           Section 18 of the Regulations provides that an inmate shall be classified as medium security where the inmate is assessed by CSC as presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of an escape, or as requiring a moderate degree of supervision and control within the penitentiary system.

 

[11]           Sections 74 to 82 of the Regulations establish CSC’s grievance procedure.  Consistent with the reference in section 90 of the Act to the grievance procedure as an expeditious procedure, the Regulations provide for various steps in the grievance procedure to be taken “as soon as practicable” after various events.

 

[12]           Commissioner’s Directives govern the “Standard Operating Practices” (“SOPs”) of CSC.  SOP 700-14 issued the 1^st of September, 2005, relates to security classification.  In cases of offenders such as the Applicant, following an initial classification, it requires “…a systematic review of security classification, including application of the Security Reclassification Scale…” at least once per year.  The Security Reclassification Scale is described as “…a research-based tool which was developed to assist caseworkers to determine the most appropriate level of security at key points throughout the offender’s sentence.”

[13]           The result pursuant to the Security Reclassification Scale may be overridden in limited circumstances.  Section 23 of Commissioner’s Directive SOP 700-14 reads as follows:

23.     Normally there will be no overrides above or below the rating produced by the…Security Reclassification Scale.  Where the caseworker believes that it is necessary to override or underride the results of the…Security Reclassification Scale, he/she shall include a detailed justification in the Assessment for Decision in conformity with section 18 of the Corrections and Conditional Release Regulations, by setting out the analysis under the three headings of institutional adjustment, escape risk and risk to public safety.

 

 

[14]           Commissioner’s Directive SOP 700-14 includes an Annex, 700-14A, providing detailed guidelines for underride and override of security classification.  With respect to “ESCAPE RISK FACTORS” referred to in the Annex, the Annex includes the following:

Other Concerns – unusual circumstances having the potential to increase an inmate’s escape risk (e.g., custody battle, problems with significant other, gambling/drug debts, etc.)

 

 

Under the heading “PUBLIC SAFETY FACTORS” and the subheading “Other Public Safety Concerns” the following appears:

…

d. notoriety likely to invoke a negative reaction from the public, victim(s) or police and/or to receive significant media coverage (sensational crime, major sexual or drug offence, affiliation with organized crime, etc.).

[emphasis added]

 

THE APPLICANT’S SECURITY CLASSIFICATION AT ISSUE AND THE DECISION UNDER REVIEW

[15]           In accordance with CSC procedures, an “Assessment For Decision” in relation to the Applicant was prepared within Bath Institution in December, 2004 and early January, 2005.  Under the heading “Security Intelligence Officer Consultation”, the following paragraph is included:

This writer attended the Security Intelligence Officer’s,…office on December 14, 2004 and reviewed the Preventive Security File.  There were two Protected Information Report entries during this review, as registered on the Offender Incident Screen in OMS.  [The Security Intelligence Officer] indicated that this is a high profile case, with significant law enforcement information concerning his connections to organized crime.  She indicates that there are ongoing investigations into [the applicant’s] and family member’s illegal activities within respective Institutions.  She would also opine that the subject would be an escape risk in a non-secure perimeter Institution, due to organized crime connections and suspected significant hidden finances.

 

Apparently, minimum security institutions are “non-secure perimeter” institutions.

 

[16]           The Security Reclassification Scale was applied leading to a computed Security Classification Score of 16.5 resulting in a computed classification of “minimum” with an override classification of “medium”.  Preventive Security Protected Information is noted as an “Override Comment”.

 

[17]           Institutional Adjustment was determined to result in a low security risk.  The Applicant provided “negative” samples on two (2) random urinalysis tests and “…made productive use of his time at Bath.”  That being said, the Assessment notes “…there is IPSO Protected Information that suggests involvement in loan-shark and enforcement activities at Bath Institution.  This remains an ongoing investigation.”

 

[18]           Escape risk was assessed as “moderate”.  The narrative relating to that assessment notes:

…the SIO reiterates his opinion that the subject is suspected to have significant hidden assets and the risk of flight from a non-secure perimeter Institution is not assumable at this time.

 

Therefore, CMT are of the opinion that the subject may not make an active effort to escape but may do so if the situation present itself, such as a non-secure perimeter Institution.

 

 

 

[19]           Public safety concerns were rated as low.  The Applicant was assessed in a Psychological Assessment as a “…Low risk of violent recidivism over a seven year period…” against three assessment measures.

 

[20]           The assessment concluded with the following paragraph:

The Security Reclassification Scale completed 2004/12/13 indicated a Minimum Security rating (16.5) within the 5% override to Medium Security.  The computerized security reclassification scale was overridden to Medium based on Preventive Security concerns, specifically in the domain of Escape Risk.  A further investigation into criminal activities within Bath Institution continues.  Therefore CMT [Case Management Team] recommends a Medium Security rating with Institutional Adjustment–Low, Escape Risk–Moderate and Public Safety–Low.

 

 

[21]           Thus, the medium security risk rating was arrived at by use of the rarely-to-be-used override authority based almost entirely on vague security intelligence concerns some of which, those related to feared illegal activities in Bath Institution, were based on ongoing investigations, not concluded investigations.

 

[22]           The Assessment for Decision was apparently provided to the Applicant on the 28^th of January, 2005 and he was apparently offered an opportunity to respond.

 

[23]           The Assessment for Decision was referred to the Applicant’s “Unit Board” which added the following comments for the consideration of the warden at Bath Institution:

It is the opinion of Unit Board that while [the Applicant] has demonstrated an ability to be managed within medium security preventative security information continues to be received suggesting his continued involvement in illicit activities.  That being said, offence reports have not resulted therefore low institutional adjustment appears warranted.  Moderate escape risk appears justified in that [the Applicant] has the means and the supports to abscond from a less secure environment were the opportunity to present.  This concern was also raised by minimum security institutions pressed for consult with respect to his previous application for transfer.  CMT have rated [the Applicant] as having low public safety [concerns] however I would disagree and find him to be at least a moderate risk for public safety [concerns] given that alerts and flags have been entered noting ties to organized crime.  His notoriety is likely to invoke negative reaction from both the public and/or police and/or to receive significant media coverage given his affiliations with organized crime.

 

I therefore find him to rate as LMM  [Low, Moderate, Moderate] and appropriately rated as medium security.

 

 

[24]           The Warden’s decision is in the following terms:

The CMT has completed the Security Reclassification Scale and has achieved a result of Medium Security with the use of the override factor.  They have supported the findings with a Case Analysis resulting in levels of Low Institutional Adjustment, Moderate Escape Risk and Low Public Safety.  The Unit Board has reviewed this recommendation and disagrees with the CMT’s analysis in that Unit Board believes he rates as moderate public safety based on his affiliations with organized crime.  I concur with Unit Board and the recommended security reclassification.  I consider [the Applicant] to be a Medium Security Offender with the ratings of LMM.

 

[25]           It is this decision that was grieved.  The grievance process commenced at the second level since the Warden who arrived at the foregoing decision would have constituted the authority at the first grievance level.

 

[26]           The decision under review, that of the Acting Deputy Commissioner, Regional Headquarters, Ontario of CSC, dated the 24^th of August, 2005, is very brief.  The substance is as follows:

You are and you have been properly assessed as a medium security inmate since your re-admission to federal custody 2000-03-10.  After a thorough review, there are no mitigating or aggravating circumstances that would warrant any change in your designated Medium Security Classification.

 

Further clarification however is sought from Bath Institution in order to substantiate statements included in the Assessment for Decision 2005-01-05 “suspicions that you have significant hidden finances”.

 

[27]           That being said, the decision under review is supported in the Tribunal Record by an Executive Summary recommending that the second level grievance be denied.  The Executive Summary indicates that it was prepared by reference to a range of documentation including the Assessment for Decision of the 5^th of January, 2005 and the Offender Security Level Decision Sheet dated the 13^th of January, 2005.  I am satisfied that, against the analysis in paragraphs 35 to 44 of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)[3], the Executive Summary constitutes the reasons for the decision under review.

 

THE ISSUES

[28]           The Applicant, in the Memorandum of Fact and Law filed on his behalf, states:

The grounds of the application are that the impugned decision of the [Acting Deputy Commissioner]:

a)       violated the common law duty to act fairly;

b)       violated the Applicant’s right under section 7 of the Charter of Rights and Freedoms not to be deprived of his liberty except in accordance with the principles of fundamental justice;

c)       is tainted by procedural unfairness as a result of the [Acting Deputy Commissioner] relying upon information that is irrelevant, prejudicial and incorrect; and

d)       is tainted by a denial of natural justice which caused her to lose her jurisdiction over the matter.

 

[29]           That being said, later in the same document, the Applicant urges that the central issue on this application for judicial review is whether the Acting Deputy Commissioner made a patently unreasonable decision in confirming the decision of the Warden of Bath Institution which classified the Applicant as medium security.  Counsel urges on behalf of the Applicant that the foregoing issue

statement turns on whether the decision-maker failed to observe a principle of natural justice, procedural fairness or other procedure that she was required by law to observe, erred in law in making a decision or an order, whether or not the error appeared on the face of the record, and/or based the decision or order under review on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the decision-maker.

 

[30]           At hearing, reliance on the Charter was abandoned and error of law was not seriously pursued.  Thus, natural justice and fairness and erroneous finding of fact were the central arguments advanced on behalf of the Applicant.

 

[31]           In addition to the issues pursued on behalf of the Applicant, the Respondent raised the issue of whether this Court should exercise its discretion to entertain this application for judicial review in light of an alternative administrative remedy, that is to say the third level in the grievance process, that was available to the Applicant.

 

ANALYSIS

            (a)        Standard of Review

[32]           Counsel were in agreement before the Court that review of the substance of the decision here before the Court should be conducted against a standard of review of patent unreasonableness.  I agree.  In Hiebert v. Canada (Attorney General)[4], my colleague Justice Pinard wrote at paragraphs 23 and 24 of his reasons:

This substantive decision to transfer an inmate or increase his security classification involves a question of fact as to the applicant’s security risk and appropriate Penitentiary placement, and therefore is subject to the patently unreasonable standard (Sweet v. Attorney General, 2005 FCA 51, [2005] F.C.J. No. 216 (C.A.) (QL), at paragraphs 14 and 17 citing with approval the principles established in Tehrankari v. Correctional Service of Canada (2000), 188 F.T.R. 206 at paragraph 44).

 

Ordinarily, the courts are reluctant to interfere with the penitentiary authorities’ administrative decisions to transfer inmates from one institution or security setting to another.  “So long as those administrative decisions are not demonstrably unfair, they ought properly to be left to those who have the heavy responsibility of preserving good order and discipline among the prison population” (Re Hay and National Parole Board et al., 21 C.C.C. (3d) 408 at 415).

 

I am satisfied that precisely the same might be said with regard to a decision confirming a security classification and a decision upholding such confirmation on a grievance.  Further, I am satisfied that there is nothing on the fact situation here before the Court that would justify a variance from the standard of patent unreasonableness.

 

[33]           Further, it is, I am satisfied, trite law that an allegation of procedural unfairness or denial of natural justice does not attract a pragmatic and functional analysis.  In the event of a failure of natural justice or denial of fairness, a decision under review must be set aside.

 

[34]           Finally, whether or not an application for judicial review should be entertained in circumstances where an alternative administrative remedy has not been pursued does not attract a pragmatic and functional analysis.

 

(b)        Alternative Administrative Remedy

[35]           In Canadian Pacific Ltd. v. Matsqui Indian Band[5], Chief Justice Lamer, on behalf of himself and Justice Cory, with the majority of the Court concurring on this issue, wrote at paragraphs 30 to 32:

The respondents had the right to seek judicial review before the Federal Court, Trial Division.  That does not mean, however, that they have a right to require the court to undertake judicial review.  There is a long-standing general principle that the relief which a court may grant by way of judicial review is, in essence, discretionary.  This principle flows from the fact that the prerogative writs are extraordinary remedies.  The extraordinary and discretionary nature of the prerogative writs has been subsumed within the provisions for judicial review set out in s. 18.1 of the Federal Court Act. …                                        

…

The use of permissive, as opposed to mandatory, language in s. 18.1(3) preserves the traditionally discretionary nature of judicial review.  As a result, judges of the Federal Court, Trial Division, such as Joyal J., have discretion in determining whether judicial review should be undertaken.

 

In exercising his discretion, Joyal J. relied on the adequate alternative remedy principle.  He found that the statutory appeal procedures were an adequate forum in which the respondents could pursue their jurisdictional challenge and obtain a remedy, and he therefore decided not to undertake judicial review.

[some text omitted, emphasis added]

 

 

[36]           The Chief Justice continued at paragraph 37:

On the basis of the above, I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure.  These factors include:  the convenience of the alternative remedy, the nature of the error and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities).  I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.

 

[37]           Counsel for the Respondent urged that, applying the alternative remedy principle, I should not hear this application for judicial review.

 

[38]           The alternative remedy here available was pursuit of the Applicant’s grievance to the third level.  There is no question but that that alternative remedy was convenient, and purported to be expeditious, the nature of the error alleged was within its competence, and the appellate body, that is to say the Commissioner of Corrections, had at his or her disposal appropriate investigatory, decision-making and remedial capacities.  Indeed, those capacities far exceed the capacity of this Court on judicial review and were invited, in essence, to be exercised given the caveat in the decision under review that:

Further clarification however is sought from Bath Institution in order to substantiate statements included in the Assessment for Decision…“suspicions that you have significant hidden finances.”

 

[39]           That being said, there are here offsetting considerations.

 

[40]           As earlier quoted in these reasons, section 90 of the CCRA provides that the grievance procedure shall be a fair and expeditious procedure for resolving offender grievances.  The decision that was grieved was dated the 13^th of January, 2005.  The grievance representations are dated the 14^th of February, 2005.  Receipt of the grievance was acknowledged in writing under date of the 17^th of February, 2005.  In a communication dated the 11^th of April, 2005, CSC advised the Applicant that a response to his grievance would be finalized by the 30^th of May, 2005.  Delay was attributed to “a backlog of regional grievances”.

 

[41]           On the 30^th of May, 2005, CSC advised the Applicant, once again in writing, that a response would be finalized by the 30^th of June, 2005.  CSC thanked the Applicant “for [his] patience.  Once again on the 30^th of June, 2005, CSC advised the Applicant that a response to his grievance would be finalized by the 12^th of August, 2005.  Once again the Applicant was thanked for his patience.  On the 26^th of July, 2005, CSC advised the Applicant “…yet again…” in writing that a response would be finalized by the 15^th of September, 2005.  Once again, he was thanked for his patience.

 

[42]           Finally, on the 6^th of October, 2005, CSC advised the Applicant’s counsel, by telephone, that in fact the Applicant’s grievance had been “responded to”, on the 24^th of August, 2005 but had been “misplaced”.  In the result, the Applicant only received a response to his grievance on the 13^th of October, 2005, more than eight (8) months after the grievance at the second level was filed.  Against the foregoing background, the Court concludes that it is not at all surprising that the Applicant chose to come to this Court rather than to pursue his grievance at the third level, particularly in light of the fact that his access to the third grievance level would be suspended pending disposition of this proceeding.  The Applicant’s security classification that he was grieving was rapidly approaching the point where it would be overtaken by his next entitlement to a security classification review. 

 

[43]           As noted earlier, by section 90 of the Act, grievances are to be conducted “fairly and expeditiously”.  That principle is elaborated on in Commissioner’s Directive 081 dated the 4^th of March, 2002 dealing with Offender Complaints and Grievances which provides the following policy objective:

1.  To ensure that offender complaints and grievances are dealt with promptly and fairly at the lowest level possible in a manner that is consistent with the law, and spirit and intent of the Mission Document.

 

 

In pursuit of that policy objective, paragraph 7 of the Directive provides:

7.  CSC shall ensue that offenders are provided with complete, written responses to issues raised in complaints and grievances within 15 working days of receipt by the respondent, when the complaint or grievance is assessed as being a priority case, and within 25 working days of receipt by the respondent in all other cases.

[emphasis added]

 

On the facts of this matter, CSC failed in a dramatic manner to comply with its own policy.

 

[44]           In Marachelian v. Canada (Attorney General)[6], Justice Pelletier, then of the Trial Division of the Federal Court of Canada, wrote at paragraph 10 of his reasons:

The policy reasons for requiring applicants to exhaust their internal remedies are compelling.  To hold otherwise is to undermine the legitimacy of alternate remedies by assigning them to a secondary position when there are many reasons why they should occupy a primary role in the resolution of disputes.  In the context of correctional facilities, one could identify timeliness, familiarity with a unique environment, adequate procedural safeguards and economy as reasons for which internal remedies ought to be exhausted before approaching this Court.  However,

there will be circumstances in which the internal remedies are not adequate. …

 

[45]           In Condo v. Canada (Attorney General[7], Justice Strayer, for the Court, wrote at paragraph 6 of his reasons:

The appellant presented evidence that the grievance process is excessively slow and therefore not a viable alternative.  We are unable to say that the motions judge was in error in not treating this evidence as persuasive.  The appellant further argues that as the grievance process is automatically stayed when a legal remedy is sought, by virtue of section 81 of the Act, he does not in reality have an alternative remedy.  But if he is temporarily barred from pursuing a grievance, this is the predictable result of his own action in bringing a judicial review proceeding and this will continue only as long as it takes for the judicial review to be disposed of.

 

 

While Justice Strayer’s analysis is compelling, I find that it is inapplicable here because, as Justice Strayer states, in that matter, the evidence that the grievance process was excessively slow and therefore not a viable alternative was found to be not persuasive.  By contrast, here the evidence that the grievance process is “excessively slow” is entirely persuasive.

 

[46]           Based upon the foregoing, despite the existence of an alternative administrative remedy, I was satisfied that it was appropriate to proceed to a consideration of the substance of this application

for judicial review and what follows responds to that substance.[8]

 

(c)        Procedural Fairness or Denial of Natural Justice

[47]           Counsel for the Applicant urged that the Applicant’s security classification, and particularly the application of the override to his Security Reclassification Scale assessment, was based entirely on unfounded and unsubstantiated allegations flowing from undisclosed security intelligence.  As such, counsel urged, the Applicant was effectively denied any substantive opportunity to respond to those allegations and in the result, produced a procedure that was substantially unfair and contrary to natural justice.

 

[48]           In Hiebert v. Canada (Attorney General)[9], my colleague Justice Pinard was faced with a somewhat analogous situation.  He wrote at paragraphs 32 to 34 of his reasons:

It is true that as the transfer of an inmate from an institution with a lower security level to one with a higher security level constitutes a punishment…, it was imperative that he be provided sufficient information to know the case against him.  It is sufficient that he be provided with a reasonably detailed summary of the reasons for transfer and the substance of what the authorities have been told which caused the decision to be made… .

 

It is also true that the second level grievance determined that the applicant had not been provided with all of the information that he was required to have been provided under the Regulations, section 13.

 

It is my opinion, however, that the applicant is incorrect in the assertion that he was denied procedural fairness.  The applicant was provided with the specific details when he was re-served with the Notice of Transfer and Assessment for Decision in August 2004, and he was subsequently advised of his right to retain counsel and of his right to submit a rebuttal to this re-served notice of his involuntary transfer to Kingston.  The applicant was therefore given the opportunity to make meaningful representations in response to the proposed decision to transfer him to Kingston.

[citations omitted]

 

[49]           I am satisfied that a decision not to reduce the Applicant’s security classification from

medium to minimum was important to the Applicant and analogous to a decision to transfer from a

lower security level institution to a higher security level institution.  In effect, the Applicant was denied a transfer from a higher security level institution to a lower security level institution.  But as in Hiebert, here the Applicant was provided with the specific details of the case against him, albeit that those details were not supported by specific concrete evidence but rather by allegations and

suspicions.  Nonetheless, I am satisfied that the Applicant was given as much information as security within the institution and security of sources would permit.  To give more might well have compromised security of the institution in which the Applicant was held and the security of sources reasonably relied upon by CSC.  The evidence to rebut the suspicions and allegations was more likely in the hands of the Applicant than in the hands of CSC itself.

 

[50]           Based on the foregoing brief analysis, I am satisfied, as was Justice Pinard in Hiebert, that “[t]he Applicant was…given the opportunity to make meaningful representations in response to the proposed decision [to maintain his security level and therefore his incarceration at Bath Institution].”   The fact that, in the decision under review, “further clarification” was sought from Bath Institution “…in order to substantiate statements included in the Assessment for Decision…” [regarding] “…suspicions that [the Applicant has] significant hidden finances” only supports a conclusion that the Applicant might well have been better advised to pursue his grievance to the third level, rather than to come to this Court directly from the second level grievance decision.

 

(d)        “Patently Unreasonable” Decision  

[51]           A patently unreasonable decision is one that, in the words of subsection 18.1(4)(d) of the Federal Courts Act[10], is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the decision-maker.[11] 

 

[52]           Against a standard of review of patent unreasonableness, taking into account the criminal history of the Applicant, his past, and perhaps present, associations and the criminal convictions leading to his present incarceration, and more particularly his identification as a member of an organized criminal organization by an unchallenged decision dated the 16^th of October, 2003, which, according to the material before the Court, remains unchallenged to this day, I simply cannot conclude that the decision under review is perverse, capricious, or made without regard to the sum total of the material that was before the decision-maker.

 

CONCLUSION

[53]           Based on the foregoing analysis, I would dismiss this application for judicial review on the basis of the existence of an adequate alternative remedy but for the fact that the Applicant had every reason to believe, based upon his experience at the second grievance level, that the third grievance level might not afford him an expeditious response.  Having gone on to consider the substantive issues on this application for judicial review, exercising my discretion to do so, I conclude that this

application for judicial review must be dismissed and that will be my decision. 

 

COSTS

[54]           Counsel on both sides requested costs in the event that they were successful.  Given the result, normally costs would follow the event and go to the Respondent.  There are here, however, considerations that mitigate in favour of a different result.  Rule 400(1) of the Federal Courts Rules[12] reads as follows:

 

400(1)  The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.

 

Rule 400(3) lists a range of factors that the Court may consider in exercising its discretion under Rule 400(1).  Among those factors are the following:

(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;

…

(o) any other matter that it considers relevant.

 

 

[55]           This proceeding brings to light, undoubtedly not for the first time, the failure of the Correctional Service of Canada’s grievance procedure to provide a procedure for “…fairly and expeditiously resolving offenders’ grievances on matters within the jurisdiction of the Commissioner,…” .  Indeed, the Applicant’s experience in bringing forward a not unreasonable grievance leading to this judicial review discloses that CSC’s grievance procedure, at least at the second level in the Ontario Region at the time here at issue, was anything but expeditious and in stark contrast with the Commissioner’s directive as to what he or she interprets to be an expeditious procedure.  In the circumstances, I am satisfied that it was indeed in the public interest to have this proceeding litigated to bring the grievance backlog in CSC’s Ontario Region to light and to demonstrate that the alternative administrative remedy available to this proceeding, the third level grievance procedure, might well not constitute an adequate alternative remedy.

 

[56]           If I am found to be stretching the limits of paragraph 400(3)(h) of the Rules,  I take comfort in the open-endedness of paragraph 400(3)(o).

 

 

 

[57]           Against the foregoing considerations, I determine to exercise my discretionary authority under Rule 400(1) to deny costs to the Respondent, notwithstanding the Respondent’s success on this application for judicial review.  There will be no order as to costs.

 

 

 

“Frederick E. Gibson”

Ottawa, Ontario

November 9, 2006

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1889-05

 

STYLE OF CAUSE:                          GERLANDO CARUANA

 

                                                                                                            Applicant

                                                            and

 

                                                            THE ATTORNEY GENERAL OF CANADA

 

                                                                                                            Respondent

 

PLACE OF HEARING:                    Kingston, Ontario

 

DATE OF HEARING:                      November 1, 2006

 

REASONS FOR ORDER:               GIBSON J.

 

DATED:                                             November 9, 2006

 

 

APPEARANCES:

 

Philip Kenneth Casey	FOR THE APPLICANT
Gregory Tzemenakis	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Philip Kenneth Casey Kingston, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General for Canada Ottawa, Ontario	FOR THE RESPONDENT