Vancouver, British Columbia, June 16, 2006
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
THE CORRECTIONAL SERVICE OF CANADA
(MissionMedium Security Institution)
Defendant
REASONS FOR ORDER AND ORDER
[1] The Plaintiff, an inmate at Mission Institution, commenced an action against the Defendant seeking over $100,000.00 in damages for "criminal mischief, criminal theft, gross negligence, malicious and malevolent intent; deliberate intent to cause physical injury and bodily harm, failure to provide the requisite duty of care and attention, medicalundertreatment, and errors and omissions".
[2] By motion in writing dated April 5, 2006, the Defendant seeks an Order pursuant to Rule 221(1) of the Federal Courts Rules striking out or summarily dismissing the Plaintiff's Statement of Claim. Although the notice of motion refers to numerous grounds for striking the pleading, the main thrust of the Defendant's argument is that the action is an impermissible collateral attack of various grievance decisions and that it should be dismissed as an abuse of process.
Facts
[3] For the purpose of motion to strike, the allegations in the impugned pleading must be taken as proven. Affidavit evidence may also be admitted with respect to arguments based on Rule 221(1)(f). The following is brief summary of the pertinent facts set out in the Statement of Claim and the affidavits filed by the parties.
[4] The Plaintiff is an inmate incarcerated at Mission Institution under the care and
control of the Correctional Service of Canada (CSC).
[5] On January 5, 2004, the Warden of Mission Institution authorized an exceptional search of all inmates and the whole of Mission Institution pursuant to s.53 of the Corrections and Conditional Release Act (CCRA). The purpose of the search was to locate and seize any weapons, intoxicants, cellular telephones, brew and related paraphernalia, and other unauthorized items.
[6] As part of the exceptional search, the Plaintiff's cell was searched on January 10, 2004. During the search, the Corrections Officers found numerous unauthorized items that had not been included on the Plaintiff's Inmate Personal Property Record. The said items were removed from the Plaintiff's cell.
[7] At the same time, the Plaintiff's mattress was temporarily removed so that it could be searched for contraband. The mattress was part of a spinal trauma injury support system (STISS), consisting of a composite foam mattress, a particle board backboard, and two additional pillows. The specialized mattress was purchased by the Plaintiff, prior to his incarceration, following a hit-and-run accident in 1988 resulting in spinal trauma injury.
[8] The search of the STISS mattress required the mattress cover to be unzipped, at which time CSC staff noted that the egg-carton part of the mattress was not attached to the foam part of the mattress. The mattress was then put back together and returned to the Plaintiff. When the Plaintiff subsequently complained that the mattress had been damaged during the search, the Works Department at Mission Institution attempted to fix it. The Plaintiff ultimately filed numerous complaints relating to the search of his cell and damage to his property, including the STISS mattress.
[9] Section 90 of the CCRA establishes a grievance procedure to fairly and expeditiously resolve inmate complaints relating to the actions or decisions of CSC staff members. The grievance procedure has four stages: 1) an initial complaint; 2) a written grievance to the institutional head (first level grievance); 3) an appeal to the head of the region (second level grievance); and 4) a further appeal to the Commissioner (third level grievance).
[10] The Plaintiff filed a number of complaints relating to the exceptional search. The Plaintiff's allegations included that the search of his cell violated the CCRA as well as CSC policy, that the search for contraband resulted in damage to his STISS mattress and other personal property, including a crucifix, and that CSC Correctional Officers violated his rights.
[11] The Plaintiff's complaints were assigned to two different investigators by the Deputy Warden. Following an investigation, the complaints were dismissed.
[12] The Plaintiff also filed an Inmate Claim for Lost or Damaged Effects seeking reimbursement for alleged damage to various items of personal property arising out of the Exceptional Search, including the STISS mattress. On May 10, 2004, the Plaintiff's claim for reimbursement was denied.
[13] After his initial complaints and claim were refused, the Plaintiff pursued the matters through the three levels of the CCRA grievance process. His second level grievance was denied on July 15, 2004 by the Acting Assistant Deputy Commissioner, Correctional Operations, Pacific Region. On May 9, 2005, Gerry Hooper, Principal Advisor, upheld in part the Plaintiff's third level grievances (Third Level Grievance Decision), concluding that the Plaintiff was entitled to reimbursement for a lost Microsoft Office Suite CD Rom package. He concluded however that there was no information to support the Plaintiff's claim that his STISS mattress had been damaged during the exceptional search, and dismissed the balance of the grievances.
[14] Prior to the issuance of the Third Level Grievance Decision, the Plaintiff filed the present Statement of Claim on April 18, 2005.
Position of the parties
[15] The Defendant submits that the Statement of Claim is an abuse of process and should be struck pursuant to s. 221(1)(f) because it indirectly challenges the validity of a Third Level Grievance decision made pursuant to the grievance procedure established under the Corrections and Conditional Release Act, S.C. 1992, c.20 (CCRA) and related Corrections and Conditional Release Regulations, SOR/92-620 (CCR Regulations). According to the Defendant, the proper procedure for challenging such decisions is an application for judicial review pursuant to ss.18-18.1 of the Federal Courts Act, S.C. 1985, c.F-7. The Defendant submits that this Court should therefore strike out the Statement of Claim as an abuse of process. Alternatively, this Court is asked to stay the action pending the outcome of an application for judicial review.
[16] In his written representations filed in opposition to the Defendant's motion, the Plaintiff submits that he does not question the validity of the search. However, he takes issue with the "wanton, malfeasant and negligent acts" of the Correctional Officers who conducted the search, which he claims aggravated his injury and caused him serious mental and emotional distress.
Analysis
[17] The fundamental issue on this motion is whether the Statement of Claim constitutes an abuse of process and should be struck out because it indirectly challenges the validity of the Third Level Grievance Decision by way of an action for damages instead of by way of judicial review.
[18] The Federal Court of Appeal recently clarified the law with respect to whether a claim should be pursued by way of an action for damages under s.17 of the Federal Courts Act or by way of judicial review under ss.18-18.1 of the Federal Courts Act. The decision in Grenier v. Canada (2005), 344 N.R. 102, 2005 FCA 348 (Grenier) makes it clear that a litigant who seeks to impugn the decision of a federal board, commission or other tribunal is not free to choose between an action for damages and a judicial review proceeding. The only way to invalidate such a decision is by way of judicial review.
[19] The legislative intent behind s.18 of the Federal Courts Act is that decisions of a federal board, commission or tribunal must be impugned by way of judicial review. As a result, where an action for damages turns on the validity of such a decision, an aggrieved party must first bring an application for judicial review to set it aside.
[20] This approach is consistent with the public interest in precluding the use of tort claims to engage in collateral attacks on the validity of administrative decisions which are presumed to be final unless set aside using the procedures intended for that purpose. Collateral attacks improperly circumvent the appropriate review procedures established by statute and constitute an abuse of the Court's process.
[21] These principles mean that the decision of a federal board, commission or other tribunal, such as the Third Level Grievance Decision in this case, retain their legal force and authority, and remain operative and legally effective as long as they have not been invalidated on an application for judicial review. An action for damages which is premised on the invalidity of the administrative decision has no chance of success unless and until that administrative decision is set aside on judicial review.
[22] The alleged wrongful conduct at the heart of the Plaintiff's claim is the search of his cell during a security lock-down at Mission Institution and the alleged removal of and damage to certain personal property from his cell, including the Plaintiff's STISS mattress.On a plain reading, the Statement of Claim is simply a regurgitation of the Plaintiff's grievances and an attempt to revisit the validity of the Third Level Grievance Decision. In fact, many paragraphs in the pleading expressly challenge the lawfulness of the various decisions rejecting his complaints and grievances. For example, the Plaintiff pleads:
10. ...All formal Complaints, Grievances, Inmate Requests, Claims, Memorandums and verbal pleas were denied or rejected. These denials contravene the law, the ACTS and all supporting documents referred to above.
14. The DEFENDANT chose initially not to respond to all of the PLAINTIFF'S seven complaints issued January, 2004, thereby breaching the law and its own POLICY MANUAL FOR COMPALINTS [sic] AND GRIEVANCES. Five months later, choosing to respond and back-date the responses, in a deceitful and flagrantly disrespectful diminishment of the truth, the DEFENDANT returned the falsified documents (back-dating) blatantly, denying forthrightness to the PLAINTIFF.
24. ...The DEFENDANT refused to consider the PLAINTIFF'S legitimate submissions, formal written requests, complaints and disputes; also the DEFENDANT failed in its duty of care by its refusal to enforce the mandates under which it operates, the Corrections and Conditional Release Act particularly section 19 "Investigations" and Corrections and Conditional Release Regulations, AND POLICY MANUAL ON COMPLAINTS AND GRIEVANCES AND by NOT providing receipts for items seized.
40. Since the DEFENDANT, its agents and employees became aware of the case against it in the honourable Court nothing has been done to alleviate the dispute; "Claims Against the Crown for Loss and Damage of Personal Property" have been denied; nor has any apology for the inhumane manner that the PLAINTIFF has been treated from January 10 to January 31, 2005. Deputy Warden, B. Thompson, in an argumentative, rudely written response to the PLAINTIFF'S legitimate dispute, stooped beneath contempt in his statement that nothing had been stolen and the PLAINTIFF suffered no injuries and his complaints were "vexatious and frivolous."
[23] The Plaintiff's claim consists of allegations of misconduct by Correctional Officers who conducted the exceptional search, objections about the CSC responses to his complaints and grievances, and allegations of damage to his STISS mattress and other personal property. Yet, the grievance process found these complaints to be largely without merit. In particular, the Third Level Grievance Decision specifically found no basis for the Plaintiffs claim that CSC was responsible for any damage to the STISS mattress and no basis for reimbursement for any items other than the lost Microsoft Works Suite CD Rom package. If the Plaintiff wanted to challenge the Third Level Grievance Decision, he should have done so by way of an application for judicial review.
[24] The proper procedure for the Plaintiff was to challenge the search of his cell and seizure of items by way of an application for judicial review. Bringing an action to indirectly impugn the validity of the grievance decisions is an impermissible collateral attack and constitutes an abuse of process under Rule 221 (1)(f).
[25] In light of the decision of the Federal Court of Appeal in Grenier above, I conclude that this action constitutes an abuse of process and that the Statement of Claim should be struck, without prejudice to the Plaintiff's right to move for an extension of time to bring an application for judicial review.
[26] Since no costs were requested, none will be awarded.
ORDER
THIS COURT ORDERS that the Statement of Claim is struck out.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-669-05
STYLE OF CAUSE: David Jonathan Wild v. Her Majesty the Queen The Correctional Service of Canada (Mission Medium Security Institution)
PLACE OF HEARING: (Motion dealt with in writing without the appearance of parties)
REASONS FOR ORDER LAFRENIÈRE P.
AND ORDER
WRITTEN REPRESENTATIONS BY:
| Mr. David J. Wild
|
|
| Scott Nesbitt
|
SOLICITORS OF RECORD:
| Mr. David Jonathan Wild
|
|
| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
|