Date: 19980508
Docket: T-377-98
BETWEEN:
EARL HUGH GIESBRECHT,
Applicant,
- and -
HER MAJESTY THE QUEEN, and
THE SASKATCHEWAN REGIONAL TRANSFER BOARD,
and THE SASKATCHEWAN PENITENTIARY,
Respondents.
REASONS FOR ORDER
ROTHSTEIN, J.:
[1] This is a judicial review of a decision of a Regional Transfer Board in the person of the Regional Administrator, Community and Institutional Operations approving the involuntary transfer of the applicant from the medium security Saskatchewan Penitentiary to the maximum security Edmonton Institution. The applicant was found by the Regional Transfer Board, based on "reliable information", to have been involved in an intended escape.
[2] The applicant grieved that decision and also sought judicial review. A preliminary issue is whether the grievance procedure provided for under the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended, is an adequate alternative remedy that should be exhausted before judicial review is sought. See Anderson v. Canada (Armed Forces) (C.A.),[1997] 1 F.C. 273.
[3] The legislative scheme for grievances with respect to prison inmates is found in the Corrections and Conditional Release Act and Regulations, SOR/92-620, as amended. Commissioner of Corrections' Directives also provide part of the framework. Sections 90 and 91 of the Corrections and Conditional Release Act provide:
| 90. There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u). |
| 91. Every offender shall have complete access to the offender grievance procedure without negative consequences. |
[4] Transfers of inmates is within the jurisdiction of the Commissioner under section 29 of the Act:
| 29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to |
| (a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or |
| (b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations. |
[5] An elaborate grievance procedure is set forth in sections 74 to 82 of the Regulations.
[6] Subsection 74(1) provides:
| 74. (1) Where an offender is dissatisfied with an action or a decision by a staff member, the offender may submit a written complaint, preferably in the form provided by the Service, to the supervisor of that staff member. |
In this case the staff member making the transfer decision as Regional Transfer Board was the Regional Administrator, Community and Institutional Operations.
[7] Under subsection 74(3) a grievance is to be dealt with as soon as possible.
| 74. (3) Subject to subsections (4) and (5), a supervisor shall review a complaint and give the offender a copy of the supervisor's decision as soon as practicable after the offender submits the complaint. |
[8] The requirement for expeditious handling of grievances appears throughout sections 74 to 82.
[9] Counsel for the respondent advised that an appeal from the Regional Transfer Board lies to the Regional Deputy Commissioner. Under section 40 of Commissioner's Directive No. 81 the decision of the Regional Deputy Commissioner shall be rendered within ten (10) working days of receipt of a grievance. A further appeal from the Regional Deputy Commissioner is provided to the Senior Deputy Commissioner under section 42 of Commissioner's Directive No. 81.
[10] On its face, the legislative scheme providing for grievances is an adequate alternative remedy to judicial review. Grievances are to be handled expeditiously and time limits are provided in the Commissioner's Directives. There is no suggestion that the process is costly. If anything it is less costly than judicial review and more simple and straightforward. Through the grievance procedure an inmate may appeal a decision on the merits and an appeal tribunal may substitute its decision for that of the tribunal appealed from. Judicial review does not deal with the merits and a favourable result to an inmate would simply return the matter for redetermination to the tribunal appealed from.
[11] Applicant's counsel submitted that the grievance procedure was not an adequate alternative remedy for the applicant because of subsection 81(1) of the Regulations:
| 81. (1) Where an offender decides to pursue a legal remedy for the offender's complaint or grievance in addition to the complaint and grievance procedure referred to in these Regulations, the review of the complaint or grievance pursuant to these Regulations shall be deferred until a decision on the alternative remedy is rendered or the offender decides to abandon the alternate remedy. |
Counsel submitted that with the filing of the judicial review application, the grievance filed with the Regional Deputy Commissioner was required to be deferred until a decision on the judicial review is rendered and therefore the grievance was not an adequate alternative remedy.
[12] In Hutton v. Canadian Armed Forces (Chief, Defence Staff) (1997), 135 F.T.R. 123, I found that a complaint filed with the Canadian Human Rights Commission required the internal armed forces grievance procedure to be suspended by reason of a provision similar to subsection 81(1) of the Regulations. In that case, I found that the complaint to the Human Rights Commission rendered the internal grievance procedure an inadequate alternative remedy to judicial review because the internal grievance procedure was temporarily precluded by the filing of the Human Rights complaint while judicial review was not. However, Hutton was an exceptional case and I expressed the concern that an applicant should not be able to manipulate the requirement to exhaust adequate alternative remedies before seeking judicial review.
[13] In the present case, it is the filing of the judicial review itself that precludes the grievance from proceeding by reason of subsection 81(1). However the judicial review is within the control of the Court, as contrasted with the Canadian Human Rights proceeding in Hutton over which the Court had no control. It would be anomalous if an applicant, by filing a judicial review application, could arrogate to himself the determination of whether the grievance process constituted an adequate alternative remedy. That is a decision for the Court. Judicial review is a discretionary remedy and the Court cannot be precluded from determining that an adequate alternative remedy exists simply because an applicant has filed a judicial review application. Subsection 81(1) of the Regulations is not intended to detract from the Court's discretion in this respect. It is simply a statutory stay of grievance procedures where another proceeding is commenced in order to avoid a multiplicity of concurrent proceedings involving the same matter. Subsection 81(1) does not act as a bar to the grievance proceeding should the Court find that procedure to be an adequate alternative remedy and thereby dismiss the judicial review. This argument of the applicant must therefore fail.
[14] 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. Of course judicial review would be available from a final decision in the grievance process.
[15] This judicial review is dismissed. There shall be no award of costs.
[16] Applicant's counsel expressed concern that the grievance may not be handled expeditiously. Respondent's counsel has undertaken to advise the respondent that the Court expects the respondent to proceed in accordance with the Corrections and Conditional Release Act and Regulations and Commissioner's Directives which require that the matter be dealt with expeditiously. If the respondent delays unduly, the applicant may seek a writ of mandamus from the Court.
"Marshall Rothstein"
J U D G E
TORONTO, ONTARIO
MAY 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-377-98
| STYLE OF CAUSE: EARL HUGH GIESBRECHT |
- and -
| HER MAJESTY THE QUEEN, ET AL. |
DATE OF HEARING: APRIL 29, 1998
PLACE OF HEARING: SASKATOON, SASKATCHEWAN
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MAY 8, 1998
APPEARANCES: Mr. Garth Bendig
For the Applicant
Mr. Bruce Gibson
For the Respondents
SOLICITORS OF RECORD: Mr. Garth Bendig
Pandila Morin
#15 15 Street West
Prince Albert, Saskatchewan
S6V 3P4
For the Applicant
Department of Justice
Saskatoon Regional Office
Churchill Building
229-4th Ave. South, 7th floor
Saskatoon, Saskatchewan
S7K 4K3
For the Respondents
FEDERAL COURT OF CANADA
Date: 19980508
Docket: T-377-98
Between:
| EARL HUGH GIESBRECHT, |
Applicant
- and -
| HER MAJESTY THE QUEEN, ET AL. |
Respondents
REASONS FOR ORDER