Johnson v. Canada (Correctional Service)

Johnson v. Canada (Correctional Service)
Court (s) Database
Federal Court Decisions
Date
2014-08-08
Neutral citation
2014 FC 787
File numbers
T-179-13, T-180-13
Decision Content
Date: 20140808
Dockets: T-179-13
T-180-13
Citation: 2014 FC 787
Ottawa, Ontario, August 8, 2014
PRESENT: The Honourable Mr. Justice Russell
Docket: T-179-13
BETWEEN:
WILLIAM A. JOHNSON
Applicant
and
THE COMMISSIONER OF CORRECTIONS, AS REPRESENTED BY ANNE KELLY, SENIOR DEPUTY COMMISSIONER
Respondent
Docket: T-180-13
AND BETWEEN:
WILLIAM A. JOHNSON
Applicant
and
THE COMMISSIONER OF CORRECTIONS, AS REPRESENTED BY ANNE KELLY, SENIOR DEPUTY COMMISSIONER
Respondent
JUDGMENT AND REASONS
INTRODUCTION [1] These are two applications under s. 18.1 of the Federal Courts Act, RSC, 1985, c F-7 for judicial review of the decisions of a Senior Deputy Commissioner [Deputy Commissioner] with Correctional Service Canada [CSC], dated October 18, 2012 and October 19, 2012 [Decisions], which denied and upheld in part respectively the Applicant’s third level grievances under CSC’s Offender Complaint and Grievance Process.
BACKGROUND [2] The Applicant is an inmate at the Warkworth Institution [Warkworth], a federal penitentiary in Ontario. This matter began as a complaint about garbage disposal at Warkworth, but it appears to have little if anything to do with that alleged problem now. The Applicant makes only passing reference to that issue in his submissions to the Court.
[3] Instead, this has become a dispute about the complaint and grievance procedure itself. It is clear from the record that this is not the first time the Applicant has pursued these issues through the grievance process. He says it is slow and unaccountable and subject to arbitrary delays and abuses of authority. In addition to asking that the Decisions at issue be quashed, the Applicant also asks the Court to issue an injunction setting out mandatory timelines for responses to grievances, and to issue declarations that certain policies and practices connected with the grievance process are invalid.
[4] The Respondent, for its part, acknowledges that there are problems with the grievance procedure, but describes a number of ways in which it is being improved and strengthened. The Respondent says that the Decisions under review are entirely reasonable, and that it is not the role of the Court to design CSC’s inmate grievance procedures through its orders.
[5] The parties tell a confusing and incomplete tale of how two related and overlapping Decisions ended up before the Court in this matter, but the record appears to clarify some of the chronology.
[6] The Applicant filed his complaint about the garbage issue on June 10, 2011, which was assigned a file number ending in 2709 (Complaint 2709). He alleged that garbage from other units in the prison was being dumped all around the garbage bin behind Unit 5, where the Applicant resides, creating a mess and a smell, and attracting noisy seagulls, skunks and other animals (see copy Complaint 2709, Respondent’s Record in T-179-13 at p. 47). According to CSC’s policies and procedures, the response to that complaint was due by July 26, 2011.
[7] On July 27, 2011, having received no response to his complaint, the Applicant filed a first level grievance regarding the delay, which was assigned a file number ending in 3399 (Grievance 3399). The first level response to Grievance 3399 was due by August 28, 2011.
[8] It appears CSC treated Grievance 3399 as a complaint, which is the step before a first level grievance. Correctional Manager Gaignard responded on September 7, 2012 denying the complaint on the basis that an extension of the time for response had been issued. The grievance office at Warkworth later concluded that it should have been treated as a first level grievance, and the initial response was replaced by an amended response signed by Acting Warden Ryan Beattie, since grievance responses must be signed by the head of the institution. The date on the response is illegible, but other CSC documentation in the file indicates it was dated April 12, 2012 (see Offender Grievance Executive Summary (Second Level) [Grievance 3399 Second Level Summary], Respondent’s Record in T-179-13 at p. 74).
[9] Acting Warden Beattie’s response upheld the grievance, since the response to Complaint 2709 was overdue and, contrary to the information in the initial response by Correctional Manager Gaignard, no letter extending the time for a response had been sent to the Applicant. Acting Warden Beattie stated:
Given the above information your grievance V40R00003399 is upheld. Staff have been reminded to adhere to timelines when responding to complaints and grievances.
Respondent’s Record in T-179-13 at p. 43
[10] Unfortunately, another administrative error occurred in relation to this first level grievance, as two files were created bearing two different file numbers. Thus, in addition to Grievance 3399 identified above, there was a duplicate file ending in 6395 (Grievance 6395). Two acknowledgment letters were sent to the Applicant, and the same first level response was sent to him twice (see Offender Grievance Executive Summary (Third Level) [Grievance 3399 Third Level Summary], Respondent’s Record in T-179-13 at p. 53). It appears that the first level response for Grievance 6395 was sent first, on February 21, 2012, and the amended response for Grievance 3399 was sent later, on April 12, 2012, once the initial error in treating it as a complaint was discovered (Offender Grievance Executive Summary (Third Level) [Grievance 6395 Third Level Summary], Respondent’s Record in T-180-13 at pp. 42-43).
[11] The Applicant filed a second level grievance on November 22, 2011, but at that time he had not received the amended response from Acting Warden Beattie (to Grievance 3399) nor the first level response in the duplicate grievance (Grievance 6395). He was therefore reacting to Correctional Manager Gaignard’s initial response and denial of his “complaint.”
[12] Although the Applicant made only one second level submission, it was categorized as two separate grievances. It appears that someone changed the number on the Applicant’s grievance submission by hand (to 6395) before forwarding it to CSC’s Regional Headquarters [RHQ], but another copy bearing the original file number (ending in 3399) was eventually sent along to RHQ as well.
[13] There was a significant delay at this stage. Warkworth’s grievance office received the Applicant’s submission on November 23, 2011, but it was not received by RHQ until February 21, 2012 (as Grievance 6395), and April 30, 2012 (as Grievance 3399): see Grievance 6095 Third Level Summary, Respondent’s Record in T-180-13 at p. 43.
[14] In any event, both Grievance 3399 and Grievance 6395 proceeded to the second level, and received responses from two different individuals, both with the title of Assistant Deputy Commissioner, Institutional Operations (ADCIO), and based on reviews conducted by two different analysts (Grievance 3399 Third Level Summary, Respondent’s Record in T-179-13 at pp. 53-54). The response to Grievance 3399, issued May 9, 2012 by ADCIO Mike Ryan, was marked “upheld in part,” while the response to Grievance 6395, issued March 9, 2012 by Acting ADCIO Bruce Somers, was marked “no further action required.”
[15] The ADCIO responding to Grievance 3399 upheld the portion relating to the errors and delays experienced in processing Complaint 2709 and Grievance 3399 at the first level. However, the ADCIO informed the Applicant of the corrective actions being taken to bring Warkworth into compliance with CSC policy, and found that no further action was required. The remaining portions of the grievance were denied or found to require no further action (ibid at pp. 53-54; Offender Grievance Response (Second Level) in Grievance 3399, Respondent’s Record in T-179-13 at pp. 80-83).
[16] The ADCIO responding to Grievance 6395 denied the grievance, noting that the procedural errors the Applicant had raised had already been upheld at the first level (Offender Grievance Response (Second Level) in Grievance 6395, Respondent’s Record in T-180-13 at pp. 31-33).
[17] Since the Applicant received two separate responses to his second level submission, he submitted two separate third level grievances (Grievance 3399 Third Level Summary, Respondent’s Record in T-179-13 at p. 53). This resulted in the two different Decisions under review here.
DECISIONS UNDER REVIEW [18] The same decision-maker, Senior Deputy Commissioner Anne Kelly, responded to Grievance 3399 and Grievance 6395 at the third level on October 18, 2012 and October 19, 2012 respectively. She determined that Grievance 3399 required no further action, while Grievance 6395 was upheld in part.
[19] The Deputy Commissioner enumerated seven issues raised by the Applicant in Grievance 3399.
[20] First, the Applicant had complained of repeated infractions of Commissioner’s Directive 081, Offender Complaints and Grievances [CD 81] by staff at Warkworth, and that a staff member had been promoted despite committing a number of such infractions. The Deputy Commissioner found that the Applicant had not provided sufficient information for an analysis to be conducted on this issue, and denied this portion of the grievance.
[21] Second, the Applicant had complained of delays in the processing of Grievance 3399 itself. The Deputy Commissioner found that the Applicant had experienced an unreasonable delay in the processing of this grievance of four and a half months between when it was registered with Warkworth and when it was received by RHQ. She noted that the grievance had been upheld on this issue by the second level response, and that Warkworth had made changes within the institutional grievance office to reduce delays and ensure future compliance. Since this portion of the complaint related to delays between the first and second levels and had already been addressed at the second level, the Deputy Commissioner found that no further action was required at the third level.
[22] Third, the Applicant complained that the stamping of his submission documents by CSC was “corrupting [his] writing.” The Deputy Commissioner inferred that this related to the stamp indicating “OFFENDER SUBMISSION; RETURN TO OFFENDER.” While a CSC Bulletin stated that grievance submissions were considered the property of the offender and should not be altered in any manner by CSC staff, the Deputy Commissioner found that the stamp in question did not alter the substance or content of such documents but rather ensured they were returned to the offender. This was found not to violate the integrity of the information submitted, and this portion of the grievance was therefore denied.
[23] Fourth, the Applicant had grieved the fact that interviews between the offender and institutional staff were not conducted automatically as part of the grievance process, but only upon the offender’s request. He argued that this policy, set out in the (now outdated) Offender Complaint and Grievance Process Guidelines 081-1 [Guideline 81-1], paragraph 44, was contrary to s. 74(2) of the Corrections and Conditional Release Regulations, SOR/92-620 [Regulations], which states that “every effort shall be made by staff members and the offender to resolve the matter informally through discussion.” The Deputy Commissioner found that paragraph 44 of Guideline 81-1, providing that “[a]n interview must be conducted with the offender if the offender has requested an interview,” was consistent with the objective of s. 74(2) of the Regulations and its objective of encouraging communication between staff and offenders. The opportunity to participate in an interview was offered on the presentation form at each stage of the process, but offenders had to indicate that they wished to participate in an interview as they were not required to do so. The Deputy Commissioner found that the requirement to request an interview did not conflict with any right of the grievor or obligation of an institution. As such, this portion of the grievance was denied.
[24] Fifth, the Applicant argued that “[a]ll interviews must be done within the institution by someone who is above the authority of the subject of the complaint.” The Deputy Commissioner inferred that this was a reference to the administrative error by which Grievance 3399 was originally treated as a complaint and referred to Correctional Manager Gaignard. The Deputy Commissioner observed that, while not specifically required by Guideline 81-1, the Applicant’s position was consistent with how the four levels of the grievance and complaint process were set out at paragraph 7 of that Guideline. However, she found that this issue had been appropriately addressed by the previous levels of the grievance process, and no further action was required.
[25] Sixth, the Applicant argued that the Warden and staff at Warkworth continued to refuse to comply with CSC policies regarding timelines, citing another grievance as an example. The Deputy Commissioner found that the cited grievance was currently at the complaint level, and if the Applicant had concerns about delays he was required to grieve the issue at the lowest possible level in keeping with CD 81. Thus, this portion of the grievance was rejected.
[26] Finally, the Applicant commented extensively on delays he had experienced in relation to other grievances, and that “despite the corrective action and reminders given by RHQ and [National Headquarters] to the Warkworth institutional grievance office” in the responses to these previous grievances, “the delays have continued.” The Deputy Commissioner found that it was unreasonable to assert that the corrective action plans relating to grievances partially upheld 2 and 7 years ago respectively would still be in place in the same form today. However, she acknowledged that “there have been delays, particularly in recent years,” and outlined a number of measures recently taken by CSC to improve the overall efficiency of the grievance system, including:
• A comprehensive external review by Professor David Mullan commissioned by CSC in 2010, several recommendations of which CSC has already taken measures to implement;
• A pilot alternative dispute resolution project at 10 maximum and medium security institutions, as recommended by Professor Mullan, with very positive results to date;
• A planned streamlining of the offender grievance process by eliminating the second level, as recommended by Professor Mullan; and
• A review of administrative practices conducted by CSC which identified a number of areas that could be improved to increase efficiency and further reduce response times.
[27] The Deputy Commissioner also noted that a high volume of complaints was received from a very small group of inmates, and that legislation had been tabled in Parliament to provide CSC with greater flexibility in limiting the number of grievances filed by vexatious grievors.
[28] The Deputy Commissioner went on to say:
We regret that you were not provided with a response to your grievances by the original due date and thank you for your patience. As you can see, CSC takes its responsibility to provide an effective grievance process very seriously and is actively working to reduce delays.
Since CSC has taken positive measures to address the issue which you have raised and considering that these measures are monitored on an ongoing basis, your grievance requires no further action. This is not to say that no further action will be taken on the part of the Service concerning this issue, but rather that corrective actions are underway aimed at resolving your concerns.
[29] While the Applicant’s submissions also listed seven “questions” for CSC to address, the Deputy Commissioner found that the information provided and the questions asked in this portion of the submissions did not constitute a grievance issue. Rather, they appeared to reflect a broader discontent with the grievance process. The Deputy Commissioner found that no further analysis was required on these points, and stated that overall, the grievance was denied.
[30] With respect to Grievance 6395, the Deputy Commissioner enumerated three issues raised by the Applicant.
[31] First, the Applicant grieved the fact that the file number on his grievance was arbitrarily changed without his consent. The Deputy Commissioner found that an administrative error occurred at the first level resulting in duplicate files, and that a hand-written modification had been made to the Applicant’s second level grievance submission, changing the reference number. This was contrary to CSC policy that offender grievance submissions were considered the property of the offender and should not be changed in any way by CSC staff. As such, this portion of the grievance was upheld.
[32] Second, the Applicant complained that staff who did not comply with the grievance policies and procedures were subject to no discipline other than reminders to comply. The Deputy Commissioner responded that when concerns are raised about staff behaviour, action is taken in accordance with Treasury Board Policy. However, any information about the disciplining of staff, including whether discipline is warranted or not, is not disclosed in accordance with s. 8 of the Privacy Act. Therefore, this portion of the grievance was denied.
[33] Finally, as in Grievance 3399, the Applicant grieved the timeliness of responses within the grievance process. The Deputy Commissioner once again acknowledged that there had been delays, outlined the measures being taken to improve the efficiency and timeliness of the grievance process, and found that no further action was required.
[34] Overall, Grievance 6395 was upheld in part. As a corrective action, the Deputy Commissioner stated that the Regional Deputy Commissioner would ensure that staff were reminded not to modify original offender submissions.
ISSUES [35] The Applicant raises a number of issues for the Court’s consideration, but in my view they can be simplified as follows:
(a) Are the timelines for complaint and grievance responses set out in CD 81, and/or the provisions for extensions of those timelines, contrary to the Corrections and Conditional Release Act, SC 1992, c 20 [Act or CCRA] or the Regulations and therefore invalid?
(b) Were the findings of the third level grievance responses reasonable?
(c) Is there a legal basis for the injunction requested by the Applicant, and if so, should the Court issue such an injunction?
STANDARD OF REVIEW [36] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[37] The parties agree on the standards of review applicable in this case. The question of whether CD 81 conforms to the Act and the Regulations involves interpreting the statutory grant of authority permitting the adoption of the Directive, and is reviewable on a standard of correctness: McDougall v Canada (Attorney General), 2011 FCA 184 at paras 25-26 [McDougall]. The findings of the third level Decisions themselves involve questions of mixed fact and law that are reviewable on a standard of reasonableness: Dunsmuir, above, at para 47; Gallant v Canada (Attorney General), 2011 FC 537 at para 14.
[38] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decisions are unreasonable in the sense that they fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS [39] The following provisions of the Act are applicable in these proceedings:
Purpose of correctional system
But du système correctionnel
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
3. Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
Paramount consideration
Critère prépondérant
3.1 The protection of society is the paramount consideration for the Service in the corrections process.
3.1 La protection de la société est le critère prépondérant appliqué par le Service dans le cadre du processus correctionnel.
Principles that guide Service
4. The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:
[…]
(f) correctional decisions are made in a forthright and fair manner, with access by the offender to an effective grievance procedure
[…]
Principes de fonctionnement
4. Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants :
[…]
f) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;
[…]
Grievance procedure
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).
Procédure de règlement
90. Est établie, conformément aux règlements d’application de l’alinéa 96u), une procédure de règlement juste et expéditif des griefs des délinquants sur des questions relevant du commissaire.
Access to grievance procedure
91. Every offender shall have complete access to the offender grievance procedure without negative consequences.
Accès à la procédure de règlement des griefs
91. Tout délinquant doit, sans crainte de représailles, avoir libre accès à la procédure de règlement des griefs.
Regulations
96. The Governor in Council may make regulations
[…]
(u) prescribing an offender grievance procedure;
[…]
Règlements
96. Le gouverneur en conseil peut prendre des règlements:
[…]
u) fixant la procédure de règlement des griefs des délinquants;
[…]
Rules
97. Subject to this Part and the regulations, the Commissioner may make rules
Règles d’application
97. Sous réserve de la présente partie et de ses règlements, le commissaire peut établir des règles concernant:
(a) for the management of the Service;
a) la gestion du Service;
(b) for the matters described in section 4; and
b) les questions énumérées à l’article 4;
(c) generally for carrying out the purposes and provisions of this Part and the regulations.
c) toute autre mesure d’application de cette partie et des règlements.
Commissioner’s Directives
98. (1) The Commissioner may designate as Commissioner’s Directives any or all rules made under section 97.
Nature
98. (1) Les règles établies en application de l’article 97 peuvent faire l’objet de directives du commissaire.
[40] The following provisions of the Regulations, as they read at the time of the Decisions, are applicable in these proceedings:
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.
74. (1) Lorsqu’il est insatisfait d’une action ou d’une décision de l’agent, le délinquant peut présenter une plainte au supérieur de cet agent, par écrit et de préférence sur une formule fournie par le Service.
(2) Where a complaint is submitted pursuant to subsection (1), every effort shall be made by staff members and the offender to resolve the matter informally through discussion.
(2) Les agents et le délinquant qui a présenté une plainte conformément au paragraphe (1) doivent prendre toutes les mesures utiles pour régler la question de façon informelle.
(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.
(3) Sous réserve des paragraphes (4) et (5), le supérieur doit examiner la plainte et fournir copie de sa décision au délinquant aussitôt que possible après que celui-ci a présenté sa plainte.
(4) A supervisor may refuse to review a complaint submitted pursuant to subsection (1) where, in the opinion of the supervisor, the complaint is frivolous or vexatious or is not made in good faith.
(4) Le supérieur peut refuser d’examiner une plainte présentée conformément au paragraphe (1) si, à son avis, la plainte est futile ou vexatoire ou n’est pas faite de bonne foi.
(5) Where a supervisor refuses to review a complaint pursuant to subsection (4), the supervisor shall give the offender a copy of the supervisor’s decision, including the reasons for the decision, as soon as practicable after the offender submits the complaint.
(5) Lorsque, conformément au paragraphe (4), le supérieur refuse d’examiner une plainte, il doit fournir au délinquant une copie de sa décision motivée aussitôt que possible après que celui-ci a présenté sa plainte.
75. Where a supervisor refuses to review a complaint pursuant to subsection 74(4) or where an offender is not satisfied with the decision of a supervisor referred to in subsection 74(3), the offender may submit a written grievance, preferably in the form provided by the Service,
75. Lorsque, conformément au paragraphe 74(4), le supérieur refuse d’examiner la plainte ou que la décision visée au paragraphe 74(3) ne satisfait pas le délinquant, celui-ci peut présenter un grief, par écrit et de préférence sur une formule fournie par le Service :
(a) to the institutional head or to the director of the parole district, as the case may be; or
a) soit au directeur du pénitencier ou au directeur de district des libérations conditionnelles, selon le cas;
(b) where the institutional head or director is the subject of the grievance, to the head of the region.
b) soit, si c’est le directeur du pénitencier ou le directeur de district des libérations conditionnelles qui est mis en cause, au responsable de la région.
[…]
[…]
78. The person who is reviewing a grievance pursuant to section 75 shall give the offender a copy of the person’s decision as soon as practicable after the offender submits the grievance.
78. La personne qui examine un grief selon l’article 75 doit remettre copie de sa décision au délinquant aussitôt que possible après que le détenu a présenté le grief.
[…]
[…]
80. (1) Where an offender is not satisfied with a decision of the institutional head or director of the parole district respecting the offender's grievance, the offender may appeal the decision to the head of the region.
80. (1) Lorsque le délinquant est insatisfait de la décision rendue au sujet de son grief par le directeur du pénitencier ou par le directeur de district des libérations conditionnelles, il peut en appeler au responsable de la région.
(2) Where an offender is not satisfied with the decision of the head of the region respecting the offender's grievance, the offender may appeal the decision to the Commissioner.
(2) Lorsque le délinquant est insatisfait de la décision rendue au sujet de son grief par le responsable de la région, il peut en appeler au commissaire.
(3) The head of the region or the Commissioner, as the case may be, shall give the offender a copy of the head of the region's or Commissioner's decision, including the reasons for the decision, as soon as practicable after the offender submits an appeal.
(3) Le responsable de la région ou le commissaire, selon le cas, doit transmettre au délinquant copie de sa décision motivée aussitôt que possible après que le délinquant a interjeté appel.
[41] The following paragraphs of CD 81, as it read at the time of the Decisions, are relevant to these proceedings. They were provided to the Court in English only:
Responsibilities
[…]
6. Decision makers at all levels will ensure that grievors are provided with complete, documented, and timely responses to all issues that pertain to the subject of the initial complaint or grievance.
[…]
Levels of the Complaint and Grievance Process
12. The complaint and grievance process includes four levels: written complaints, first level, second-level, and third-level grievances
13. Where an offender is dissatisfied with an action or a decision by a staff member, the offender may submit a written complaint, preferably on the form provided by the Service. The initial submission will be at the complaint level unless otherwise indicated in this directive or unless the supervisor of the staff member in question is the Institutional Head, the Regional Deputy Commissioner or the Commissioner.
[…]
15. The decision of the Commissioner or his/her delegate constitutes the final stage of the complaint and grievance process. Grievors who are not satisfied with the final decision of the complaint and grievance process may seek judicial review of the third-level grievance decision at the Federal Court within the time limit prescribed in subsection 18.1(2) of the Federal Courts Act.
[…]
Timeframes
[…]
18. Decision makers will render a decision with regard to complaints and grievances in the following timeframes:
Complaint, First Level and Second Level
• High Priority – Within 15 working days of receipt by the Grievance Coordinator.
• Routine Priority – Within 25 working days of receipt by the Grievance Coordinator.
Third Level
• High Priority – Within 60 working days of receipt by the Grievance Coordinator.
• Routine Priority – Within 80 working days of receipt by the Grievance Coordinator.
19. Where a grievor is not satisfied with the response at any level, he/she may submit the grievance to the next level, normally within 20 calendar days of receiving the response.
20. If the Institutional Head, the Regional Deputy Commissioner or the Director, Offender Redress considers that more time is necessary to deal adequately with a complaint or grievance, the grievor must be informed, in writing, of the reasons for the delay and of the date by which the decision will be rendered.
[…]
Group Complaints or Grievances
23. A complaint or grievance may be submitted by a group of grievors but the submission must be signed by all grievors involved. One grievor must be designated to receive the response for the group as well as any other correspondence related to the complaint or grievance.
[…]
Corrective Action
45. When a complaint or grievance is upheld or upheld in part, and corrective action is required, the corrective action will be completed within 30 working days, and it will be clearly noted on the grievance file and in the Offender Management System that the corrective action has been completed.
46. The person responsible for implementing the corrective action will provide written confirmation and documentation to the decision maker indicating that procedures were completed in accordance with this section on corrective action.
47. A grievor may submit a grievance to the next level of the complaint and grievance process when the corrective action was not completed within the designated timeframes. In the case of a third-level corrective action, a grievor may submit a third-level grievance regarding this issue.
[42] The following paragraphs of Guideline 81-1, as it read at the time of the Decisions, are relevant to these proceedings. They were provided to the Court in English only:
CORRECTIVE ACTION
23. The decision maker will determine the corrective action that best resolves the complaint/grievance and ensures that similar problems do not occur in the future. Some considerations for determining and implementing corrective action are the following:
the redress sought by the grievor;
the seriousness of any misconduct involved and any further actions necessary to respond;
the potential of repetition by other staff members of the actions complained of;
what is required to ensure future compliance with relevant legislation and policy; and
who is accountable for implementing the corrective action.
[…]
INTERVIEWS
[…]
44. An interview must be conducted with the offender if the offender has requested an interview, when the complaint or first-level grievance is first received at the institution, parole office or Community Correctional Centre, unless there are unusual circumstances which do not permit it or the offender refuses. If the offender resides at a different institution than where the investigation is being conducted, an interview must still be conducted. At the regional and national levels, the offender may be interviewed if it is considered necessary in order to conduct a thorough investigation.
[…]
ARGUMENT Applicant [43] The Applicant is asking that the Court quash the two third level Decisions, declare CD 81 to be invalid, declare CSC’s failure to enforce Commissioner’s Directive 60 – Code of Discipline [CD 60] in the grievance process to be invalid, and issue an injunction prohibiting the Respondent from:
• Authorizing timeframes for complaint responses that exceed 2 calendar days;
• Authorizing timeframes for responses to first and second level grievances that exceed 7 calendar days;
• Authorizing timeframes for responses to third level grievances that exceed 14 days;
• Authorizing timeframe extensions without first obtaining the inmate’s consent; or
• Acting in disregard of CD 60 and the openness requirements of Commissioner’s Directive 001 in the context of ss. 4(f), 90 and 91 of the Act when infractions against the CSC’s Code of Discipline are in issue.
[44] The Applicant says that his applications “build on” the decision of this Court in Spidel v Canada (Attorney General), 2012 FC 958 [Spidel], where Justice Mactavish, in the Applicant’s words, “proved seriously less than impressed with the CSC’s present administration of the grievance procedure that the Parliament of Canada legislated for as a matter of national priority under [the Act, ss. 4(f), 90and 91].”
[45] The Applicant notes that the inmate grievance procedure has also been heavily criticized in May v Ferndale Institution, 2005 SCC 82, [2005] 3 SCR 809 at paras 63-64 [May], as well as by the Correctional Investigator over the years (as discussed in Spidel, above), by Professor David Mullan in the external review cited in the Decisions (see Report of External Review of Correctional Service of Canada Offender Complaints and Grievance Process, July 13, 2010, Respondent’s Record in T-179-13 at pp. 92-144 [Mullan Report]), by Justice Louise Arbour in the Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (Public Works and Government Services Canada, 1996), also discussed in Spidel, above, and in an “Ad Hoc Audit” completed by the “Inmate Committee of Warkworth Institution” (see Inmate Welfare Committee, Complaint/Grievance Procedure Ad Hoc Audit, January 2010, Applicant’s Record at pp. 254-292).
[46] The Applicant says that both third level Decisions are replete with error, and that they demonstrate “the whole of the problem with the CSC grievance procedure, namely the failure by CSC top level, senior bureaucrats to enforce the CSC’s Code of Discipline.”
[47] The Applicant says that both applications target, first and foremost, CD 81 and the timeframes for complaint and grievance responses set out in that Directive, which he argues are in conflict with the word “expeditious” in s. 90 of the Act. He says that the practice of CSC officials giving themselves “arbitrary time extensions” without the complaining inmate’s consent also conflicts with this provision, and breaches inmates’ rights to procedural fairness.
[48] Secondly, the Applicant says the applications target “the failure by senior CSC bureaucrats to apply and enforce the CSC’s Code of Discipline when, as in the applicant’s case, CSC administrators trusted with getting inmate issues resolved…commit infractions against the CSC’s Code of Discipline… and even criminal acts or omissions – as also raised by the applicant [in his grievances].”
[49] The Applicant argues that CD 81 is invalid because it conflicts with ss. 4(f), 90 and 91 of the Act, which were enacted by Parliament to ensure inmate issues are resolved quickly and fairly for everyone’s safety, security and peace. He says these provisions were enacted in light of significant violence that erupted in Canada’s prisons in the 1970s on account of unresolved inmate issues, and were intended to bring the rule of law within the penitentiary walls: see May, above, at paras 25, 72.
[50] The Applicant says that the timeframes for responses set out in paragraph 18 of CD 81 were established in complete disregard for the word “expeditiously” in s. 90 of the Act, which is not even referred to. He argues that anything longer than two weeks is a lifetime for inmates who face possible injury or death, and that a timely grievance process in keeping with the Act and the Regulations is a critical safety issue. The delays in responding to his grievances demonstrate a “seriously delinquent bureaucratic culture”, the Applicant says.
[51] In addition to the “leisurely timelines” set out in CD 81, the Applicant says that the practice of CSC staff giving themselves “arbitrary timeframe extensions to suit themselves,” as authorized in paragraph 20 of CD 81, also violates ss. 4(f), 90 and 91 of the Act. Since an inmate’s consent to such extensions is not required, the Applicant argues, “CSC bureaucrats can just extend the time to suit themselves, as the applicant’s evidence itself overwhelmingly demonstrates.” The Applicant argues that this results in inmates being denied: 1) complete access to the process (as required by s. 91 of the Act); 2) procedural fairness in relation to their complaints (as required by ss. 4(f) and 90 of the Act and the common law); and 3) an effective and expeditious grievance procedure (as required by ss. 4(f) and 90 of the Act). He argues that the failure to consult with the inmate regarding time extensions also violates s. 74 of the Act.
[52] The Applicant argues that the Respondent’s refusal to act on the requirements of paragraph 2 of CD 60 regarding staff discipline in the context of the grievance process renders that process fundamentally ineffective and contrary to s. 4(f) of the Act. He says that the “values framework” set out in paragraph 7 of Commissioner’s Directive 001 [CD 1] requires openness, whereas CSC officials are operating in secrecy with respect to any disciplinary action that may result from complaints and grievances. He says that the Respondent’s reliance on the Privacy Act t