Date: 20021029
Docket: T-882-02
Neutral citation: 2002 FCT 1119
BETWEEN:
BRAD MAREK
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
BACKGROUND
[1] These reasons deal with two motions in writing, the Crown's initial motion to strike out the Notice of Application either by reason of the Applicant's failure to take advantage of an adequate alternative remedy, the Corrections Service grievance procedure, or by reason of mootness and the Applicant's subsequent motion to supplement his material by adding four affidavits and six additional documents. The Respondent's material is brief and to the point. The Applicant's material is prolix. Much of it is irrelevant both in the context of the motions and overall in this particular judicial review setting.
[2] On the basis that the Applicant failed to take advantage of an adequate alternative remedy, the grievance procedure, I have decided the motion to strike out in favour of the Crown. Having determined that the proceeding ought to be struck out, for failure to exercise an adequate alternative to remedy, I have not dealt with the question of whether the proceeding is in fact also moot. This conclusion, in a sense, deals with the subsequent motion to add material. Moreover, I would not in any event have allowed the additional material, for there is no proper explanation for the delay and much, if not all of the material, is either irrelevant, immaterial or inadmissible. However, I have considered the material which the Applicant wishes to add in the context of possible amendment to remedy the shortcoming in the Notice of Application itself, for I ought not strike out a proceeding if there is a scintilla of a cause of action. The material which the Applicant wishes to add would be of no assistance in amending the Notice of Application so as to give the Applicant viable cause of action. I now consider this in more detail.
CONSIDERATION
[3] To begin, judicial review proceedings ought not to be struck out, except in an exceptional case: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at 600 (F.C.A.). In the present instance the issue is the use of a grievance procedure, instead of judicial review. The Supreme Court of Canada had pointed out in Harelkin v. University of Regina, [1979] 2 S.C.R. 561 that judicial review of the sort in question is discretionary and should not be granted if an adequate alternative remedy is available. The Supreme Court went on to set out relevant factors to consider when determining if there is an adequate alternative remedy:
| In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors included the burden of a previous finding, expeditiousness and costs. (Page 588) |
[4] Harelkin was referred to in Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273 (F.C.A.) at 278 and was applied in Anderson. Judicial review proceedings have, on the basis for Harelkin and failure to take advantage of adequate alternative remedies, by inmates, been either denied or struck out and here I have in mind, respectively, Fehr v. Canada (National Parole Board) (1995), 93 F.T.R. 161 and Mackie v. Drumheller Institution (1997), 134 F.T.R. 76. Both of those cases involved a failure to exhaust all of the appeal procedures under the Corrections and Conditional Release Regulations.
[5] In the present instance the Applicant, in his written representations, submits both that:
| Although the Applicant has not filed a formal complaint, he has tried, and continues to try, both verbally and in writing, to resolve his issues at the institutional level by appealing to the Warden and the Warden's subordinates. |
and that:
|
The Applicant submits that the Applicant's Application (T-882-02) has been made in "addition to" the Applicant's use of the informal grievance procedure. |
The Applicant submits that this informal procedure is the equivalent of compliance with sections 74 through 82 of the Corrections and Conditional Release Regulations and sections 90 and 91 of the underlying Act. The Applicant's material, includes a number of pages of single-spaced representations and a good deal of attached documentation. However, it is difficult to tell whether his informal approach has resulted in any response, although I note that he says he continues to try an informal grievance procedure.
[6] The Applicant submits, if I understand his lengthy representations properly, that the established grievance procedure does not measure up to that required under section 90 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. That section requires that there be a fair and expeditious procedure for resolving the grievances of offenders on matters within the jurisdiction of the Commissioner of Corrections. As I understand it there is, here, no jurisdiction question, but merely the question of whether the procedure is fair and expeditious. This Court has said that the procedure, on its face, is an appropriate alternative remedy to judicial review: to reach this view the Court has considered whether a procedure is fair and expeditious. In the present instance the Applicant has not provided any relevant evidence that the grievance procedure has or would, in his specific instance, be less than fair, expeditious and adequate. I will elaborate.
[7] Clearly the Applicant has not taken advantage of a simple, inexpensive and relatively quick grievance procedure. Nor has he convinced me that the grievance procedure is in any way inadequate. Here I have considered the unsworn information provided by the Applicant, some of it heresy, some of it ambiguous, some of it from vested interest points of view and some of it conclusions based on admittedly insufficient information. Here, by way of example, I refer to material relied upon by the Applicant, being Madam Justice Arbour's report of the Commission of Inquiry Into Certain Events Occurring at the Prison for Women in Kingston (the "Report") and to Bordage v. Archambault Institution, an unreported 30 November 2000 decision, [2000] F.C.J. No. 1976. In Bordage Mr. Justice Lemieux noted that Madam Justice Arbour warned, in her Report, "... that she did not have sufficient information to formulate comments on the grievance resolution procedure and grievances in the Correctional Service in general" (paragraph 34 of Bordage). Mr. Justice Lemieux then found the grievance procedure at issue, the same procedure that is at issue here, to be adequate, following Giesbrecht (to which I will shortly refer) and Attorney General of Canada v. Richard St-Amand, an unreported 12 July 2000 decision of the Quebec Court of Appeal, No. 200-10-000972-005 which held that the regulations, directives and standard operating practices setting out and governing the institutional grievance system form an adequate statutory procedure which, before an application for judicial review may be initiated, must be exhausted:
| [36] Giesbrecht and St-Amand held that the grievance system laid down in the Act, the Regulations, Commissioner's Directive No. 540 and his Standard Operating Practices are an adequate statutory procedure which must be exhausted before initiating an application for judicial review when the question is one relating to a security rating or placement. The circumstances in St-Amand are identical to those of the case at bar and I have come to the conclusion that the application for judicial review by the plaintiff Marc Bordage must be dismissed because it does not comply with the rule that other remedies must be exhausted. |
Mr. Justice Lemieux dismissed the application for judicial review on that basis.
Mr Justice Rothstein, as he then was, in Giesbrecht v. Canada (1998), 148 F.T.R. 73, was of the view that the grievance procedure under the Corrections and Conditional Release Regulations was, on its face, an adequate alternative remedy to judicial review. He went on to say that it was expeditious, less costly than judicial review and more simple and straightforward:
|
[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.
(Page 84) |
As Mr Justice Rothstein also pointed out, a successful judicial review would only mean that the whole matter would be returned for re-determination by the same tribunal whose initial decision resulted in the judicial review. In the present instance, a determination by way of judicial review, were it somehow proper and successful, that would not result in a decision as to the merits of the case, but rather a return of the whole matter to an institutional setting.
[9] The Respondent's motion, to strike out this judicial review application, is allowed. I must therefore consider whether there is a scintilla of a chance of success were amendments made to the application. Here, as well as considering amendment in the abstract, I looked at the material which the Applicant filed, in the companion motion, material which he wished to add to his present judicial review material. There is nothing in the material that is relevant and new, or particularly on point, but rather there is some bolstering of argument which has already been made, which is of no assistance. Further, the Applicant's additional material sets out many additional alleged breaches of duty and criminal actions, by many individuals in the penal system, involving many decisions, on various issues, over an extensive time period. These allegations are neither the stuff of nor ought they to be included in a single judicial review application. In short, neither any conceivable material nor the material referred to by the Applicant, in any way assists the Applicant. The application is premature. Thus the Applicant's judicial application review is struck out, without liberty to amend. Costs not being sought, none are awarded.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
29 October 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTIONS DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-882-02
STYLE OF CAUSE: Brad Marek v. The Attorney General of Canada
REASONS FOR ORDER OF: Hargrave P.
DATED: 29 October 2002
WRITTEN REPRESENTATIONS BY:
Brad Marek APPLICANT
Lorne Lachance FOR RESPONDENT
SOLICITORS ON THE RECORD:
Brad Marek APPLICANT on his own behalf
Vancouver, British Columbia
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia