Date: 19980603
Docket: T-1945-97
BETWEEN:
GORDON ALCORN, of William Head Institution,
DARRELL BATES, of Kent Institution,
DANNY BOLAN, of Elbow Lake Institution,
JON BROWN, of Matsqui Institution,
SHAWN BUTTLE, of Regional Health Centre,
GARY FITZGERALD, of Ferndale Institution,
ANGUS MacKENZIE, of Mountain Institution, and
FABIAN PICCO, of Mission Institution,
Applicants,
- and -
THE COMMISSIONER OF
CORRECTIONS and THE DEPUTY
COMMISSIONER OF CORRECTIONS,
PACIFIC REGION, CORRECTIONAL
SERVICE OF CANADA,
Respondents.
REASONS FOR ORDER
TEITELBAUM, J.
1� This matter, relating to the installation of a new telephone system for use by inmates in Federal Correctional Centres, called the Millennium Telephone System, is set for a one and one half day hearing to commence 24 September 1998.
2� The present motion is to add seven additional inmates as Applicants to whom I will refer as the Intended Applicants, and to add a further ground to the Originating Notice of Motion to claim that by implementing the Millennium Telephone System in prisons in the Pacific Region, the installation being accomplished in about December 1997, the Applicants' rights to freedom of conscience, religion, thought, belief, opinion and expression have been contravened, contrary to subsections 2(a) and (b) of the Canadian Charter of Rights and Freedoms.
BACKGROUND
3� The present Applicants in this proceeding are each from one of the eight penitentiaries in British Columbia. They are concerned that their access both to family, friends and community, and to legal counsel, would be violated by the implementation of Millennium Telephone System. Thus the present proceedings were instituted in September of 1997. The Applicants' motion for an interlocutory injunction was dismissed 22 September 1997.
4� On the Applicants' advice of 4 December 1997, that the parties were ready for a full hearing, the Court set a hearing date of 5 February 1998. On 21 January 1998 the Applicants applied for an adjournment and for an extension of time, until 30 April 1998, within which to file additional affidavits and a Supplemental Applicants' Record. Mr. Justice Muldoon adjourned the 5 February 1998 hearing, granting the Applicants an extension of time within which to file material, but only until 16 February 1998.
5� Seven inmates, not parties to this proceeding, filed affidavits as provided for in Mr. Justice Muldoon's Order. These individuals now wish to become parties. Counsel, who acts both for the Applicants and for the Intended Applicants, submits this addition of parties is necessary in order to make a proper and efficient disposition of the application as a whole.
CONSIDERATION
6� Dealing first with the addition of Intended Applicants, whether one accepts the view of counsel for the Applicants and intended Applicants, that the decision for review is that of the penitentiary authorities, made 15 August 1997 (or later and I will come to this), or the submission of counsel for the Respondents, that the date of the decision was 9 April 1996, the Intended Applicants appear out of time to commence proceedings to review the decision to install the Millennium Telephone System. In effect, the Intended Applicants wish to join an existing judicial review proceeding, rather than commence their own duplicate proceeding, which might well be out of time.
7� Counsel for the Intended Applicants presents a lengthy argument, in a 23 April 1998 brief, to the effect that the decision, to install the Millennium Telephone System, was not one static written decision, but rather a fluid decision made over time. Here counsel refers to Mr. Justice Lutfy's decision in Hunter v. Commissioner of Corrections (1998), 134 F.T.R. 81 at 83, for the concept that a decision under review may be an amended or ongoing decision, a decision that may even post date the commencement of the judicial review proceeding. In this way, according to counsel for the Applicants, a challenge may be made of a current and therefore relevant decision. In the present instance counsel goes on to submit that the decision to be reviewed is an amendment of the original decision, an amendment dated 5 September 1997, the day after the present application was commenced. The result remains that the Intended Applicants need an extension of time in order to become parties.
8� In order to obtain an extension of time, there are a number of factors, probably even an open-ended list of factors, which the Court has from time to time considered when faced with an application for an extension of time: see for example Karon Resources Inc. v. Minister of National Revenue (1994), 71 F.T.R. 232 at 235-236 (F.C.T.D.). However, basic to obtaining an extension of time is the reason for a delay, whether there is an arguable case and whether an extension of time is essential to insure that justice is in fact done between the parties: see for example Grewal v. Canada, [1985] 2 F.C. 263 (F.C.A.).
9� Counsel submits that ongoing grievances submitted by some of the Applicants and inmate committees establish a continuing intent to challenge the decision to install the Millennium Telephone System. That intent, on the part of those wishing to be joined, is not entirely clear from their affidavits. However, what concerns me is the existence of a relevant arguable case.
10� The Intended Applicants may each have an arguable case in their own right, however, an inspection of the affidavit material upon which the Intended Applicants wish to rely clearly shows that all of the incidents deposed to took place after this judicial review proceeding was initiated. Some of the minor incidents of difficulty with the Millennium Telephone System, which are catalogued in those affidavits, did take place in November and December of 1997. However, the vast weight of the affidavit material deals with incidents and problems with the Millennium Telephone System in 1998. These incidents, which as I say all took place after the decision to the Millennium Telephone System, are not essential and indeed are irrelevant incidents which need not be before the Court to see that justice is done, on the issues raised in the Originating Notice of Motion, between the present Applicants and the Respondents. Adding a number of Intended Applicants, who will deal entirely with operational difficulties with the system, arising after the decision to install the Millennium Telephone System, will add nothing to these proceedings.
11� Turning to the new ground which the Applicants wish to add to their application, that of contravention of the Applicants' rights to freedom of conscience, religion, thought, belief, opinion and expression, contrary to subsections 2(a) and (b) of the Canadian Charter of Rights and Freedoms, the Applicants have failed to give a reason why this new ground was not contained in the Originating Notice of Motion as filed, other than to say that it is raised by the new evidence which the intended Applicants might give. The evidence set out in the affidavits of the Intended Applicants is of incidents which occurred, to a minor degree in November and December of 1997, but for the most part in 1998. The incidents are of operational problems. Clearly, the evidence that supports this new ground, which the Applicants wish to add, could not have been taken into account at the time that the decision under review was made.
CONCLUSION
12� The Intended Applicants may well have fresh grievances relating to difficulties with the rules and procedures governing the use and operation of the Millennium Telephone System as installed. However, these after the fact grievances about difficulties with the actual use and operation of the system as installed are not relevant in the review of the initial decision to install the Millennium Telephone System. The new grievances and difficulties, if not resolved within the prison grievance system, may give rise to separate proceedings to judiciary review other new and separate decisions. In the result, there is no place for the intended Applicants in this judicial review proceeding. Nor is their presence required to do justice between the parties.
13� To add a new ground to this proceeding, supported by evidence of events that took place well after the decision under review, would be counter-productive. The Applicants' motion is dismissed.
(Sgd.) "Max M. Teitelbaum"
Judge
Vancouver, British Columbia
June 3, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1945-97
STYLE OF CAUSE: GORDON ALCORN, of William Head Institution, and others
v.
THE COMMISSIONER OF CORRECTIONS and others
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF TEITELBAUM, J.
dated June 3, 1998
WRITTEN SUBMISSIONS BY:
Ms. Sasha Pawliuk for Applicants
Ms. Donnaree Nygard for Respondents
SOLICITORS OF RECORD:
Ms. Sasha Pawliuk for Applicants
George Thomson for Respondents
Deputy Attorney General
of Canada