Date: 20040406
Docket: T-2164-03
Citation: 2004 FC 534
BETWEEN:
FRONTENAC INSTITUTION INMATE COMMITTEE
and MICHAEL POCHAY, Secretary on behalf
of Inmates of Frontenac Institution
Plaintiffs
and
ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICES OF CANADA)
and ALTERNATIVE CABLE TECHNOLOGIES
Defendants
[1] The Plaintiffs have taken an action, framed in breach of contract, against the Defendants for blocking from view at Frontenac Institution, a federal penitentiary, certain movies said by the Defendants to be "X-Rated". The case is yet to come to trial.
[2] The Plaintiffs, as an interim measure, seek an order compelling the Defendants to fulfill the terms of the contract and to provide all television service as contracted. They deny the movies in question are x-rated. Although not called such, the Plaintiffs are really seeking an interlocutory injunction.
[3] To put this application in context it is important to note that this is not a judicial review as contemplated by the Corrections and Conditional Release Act, 1992 S.C., c. 20, as amended. This is a commercial dispute.
[4] Articles of agreement were made as of June 1st, 2003, between the Defendants for the provision of 47 cable television channels and 5 movie channels. The agreement was signed by the Defendants and by the Plaintiff the Frontenac Institution Inmate Committee of which the Plaintiff Michael Pochay is secretary. The Defendants strenuously deny that the Inmate Committee is a party to the contract. That issue need not be decided at this time.
[5] Section 1.7 of the Statement of Work appended to the contract provides:
The Contractor shall provide 47 channels; as selected and agreed upon between the Contractor and Inmate Committee, plus 5 movie channels as selected. Any x-rated or above; movies shall be blocked out from viewing.
The Contractor is the Defendant Alternative Cable Technologies.
[6] The dispute relates to movies showing at certain times on the TMN 3 Movie Channel, which was one of the channels originally agreed upon. Correctional Services of Canada later determined that some of the movies shown on that channel were x-rated and directed the co-defendant to block them from view within the Frontenac Institution.
[7] Even assuming, but without deciding, that the Plaintiffs have standing and either are a party to or are entitled to benefit from the contract, their motion must still be dismissed. I say this without considering the problems which arise from an attempt to obtain an injunction against the Crown.
[8] It is well established that an applicant in motions such as these must show there is a serious issue to be tried, that it would suffer irreparable harm if the relief is not granted, and that the balance of convenience is in its favour (American Cyanamid Co. v. Ethicon Ltd., [1975] AC. 396 (H.L.), RJR-Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311). The Plaintiffs must succeed on all three branches of this test.
[9] It is clear to me there is no irreparable harm. If the Defendants are in breach of contract, damages are a perfectly suitable remedy.
[10] Consequently, the application is and shall be dismissed, with costs.
"Sean Harrington"
J.F.C.
Toronto, Ontario
April 6, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-2164-03
STYLE OF CAUSE: FRONTENAC INSTITUTION INMATE COMMITTEE
and MICHAEL POCHAY, Secretary on behalf
of Inmates of Frontenac Institution
Plaintiffs
and
ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICES OF CANADA) and
ALTERNATIVE CABLE TECHNOLOGIES
Defendants
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2004
REASONS FOR ORDER BY: HARRINGTON J.
APPEARANCES BY:
Mr. John Farant
FOR THE PLAINTIFFS
Mr. Matthew Sullivan
Ms. Nancy Noble
FOR THE DEFENDANTS
SOLICITORS OF RECORD:
John M. Farant
Barrister & Solicitor
Kingston, Ontario
FOR THE PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE DEFENDANTS
FEDERAL COURT
Date: 20040406
Docket: T-2164-03
BETWEEN:
FRONTENAC INSTITUTION INMATE COMMITTEE and MICHAEL POCHAY, Secretary on behalf of Inmates of Frontenac Institution
Plaintiffs
and
ATTORNEY GENERAL OF CANADA (CORRECTIONAL SERVICES OF CANADA) and ALTERNATIVE CABLE TECHNOLOGIES
Defendants
REASONS FOR ORDER