Date: 20040817
Docket: T-2095-03
Citation: 2004 FC 1137
Ottawa, Ontario, August 17, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
RAYNALD DESJARDINS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Don Head, a member at the third level of the grievance procedure (tribunal) under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (Act), dated October 10, 2003, dismissing the applicant's grievances.
ISSUES
[2] Does issue estoppel (in French: la préclusion découlant d'une question déjà tranchée) apply in this case? If so, should the Court exercise its discretion and refuse estoppel?
[3] Was the tribunal's decision concerning the request for correction of information in the applicant's file patently unreasonable?
FACTS
[4] The applicant is currently serving a 15 year prison sentence that began on October 24, 1994. He is incarcerated in the Federal Training Centre (FTC). During his incarceration, the applicant has had the benefit of the Unescorted Temporary Absence (UTA) and Work Release (WR) programs.
[5] On September 25, 2002, the applicant was on a UTA to attend a course that was being given outside the penitentiary. Under this program, the applicant was allowed to go directly to the training site, located at 6900 Décarie Boulevard, and to return directly to the penitentiary using the Montréal and Laval public transportation system. This UTA was conditional on the applicant not frequenting any individual with a criminal record or directly or indirectly related to the drug scene and/or organized crime.
[6] Prior to September 25, 2002, Rénald Dubois, a security intelligence officer at the Montée St-François Institution, had been tipped by a protected source that the applicant was using the UTA program to consort with criminals after his classes. Mr. Dubois notified Pierre Nabelsi, a security intelligence officer at the FTC, and surveillance was authorized to verify whether the applicant was breaching his UTA conditions. This surveillance took place on September 25, 2002.
[7] At this point in the story the facts, as alleged by the respective parties, are mutually contradictory. The applicant argues that when he left his course on the evening of September 25, 2002, he violated the UTA program rules in order to meet his former wife to discuss their children. The respondent states instead that the applicant met with a former inmate named Francesco Cotroni.
[8] These two stories completely contradict each other. The opposed claims are both supported by evidence in the record in the form of reports and affidavits. In a succinct decision, the tribunal dismissed the grievances filed by the applicant, who was seeking to have the second level decision on his UTAs set aside and to have some information contained in his record corrected.
[9] The tribunal upheld the second level decision, dated July 15, 2003. It assigned greater credibility to Mr. Dubois' account than to that of the applicant. Page 2 of the second level decision contains the following conclusion:
[translation] In light of the information obtained in the course of our analysis, we conclude that there is nothing in the screening report by the firm "Richard Mason Enr. et autres", or in the other documents submitted in support of your thesis that tends to contradict the observations made by Mr. Dubois on September 25, 2002. Furthermore, we have no reason to doubt the credibility of Mr. Dubois, whose observations were verified positively by the RCMP expert. As for your version, we are inclined by certain facts to doubt it. For example, you changed your version when you were questioned more fully by the CSC officers during the meeting of September 26, 2002, and you were slow to disclose your stop at the St-Hubert Restaurant.
[10] The applicant states that the tribunal's decision to reject the grievances is patently unreasonable. There is evidence, he says, that conclusively supports his thesis. He argues that it was patently unreasonable to overlook the independent testimony that supported his version, and he alleges there are contradictions in the intelligence officers' version. He adds that it was not in the tribunal's interest to rule in favour of his grievances, given the lawsuit he brought in February 2003 against the Correctional Service of Canada (CSC). Finally, he says, all of his efforts to obtain the right to conditional release have met with constant resistance based on considerations unrelated to his prison record.
[11] The respondent argues, first, that issue estoppel applies in this case. Second, he argues that the Court should not exercise its discretion and override the estoppel. Third, should the Court decline to apply the principle of estoppel, he maintains that the tribunal had the authority to find that the intelligence officers' version was more credible than the applicant's, as the decision bears essentially on a question of fact. Moreover, under the Act, the warden of a penitentiary has discretion to decide whether an inmate should take part in a WR or UTA program, under whatever conditions he considers reasonable.
[12] The respondent further argues that all of the relevant information was before the decision-making authorities in this case and there is no reason to say that the tribunal did not consider it. There is no evidence to contradict the fact that Mr. Dubois saw the applicant with Mr. Cotroni. It was reasonable, therefore, for the tribunal to find that Mr. Dubois' version was the most credible, especially since he had no personal interest in the proceeding.
[13] The respondent adds that this Court should defer to the discretionary decisions of the administrative decision-making authority.
[14] Finally, the respondent submits that the applicant's memorandum is silent on the reasons why the decision not to correct the information in the applicant's record is patently unreasonable.
ANALYSIS
Preliminary remark
[15] The respondent explains that under subsection 303(2) of the Federal Court Rules, 1998, SOR/98-106, only the Attorney General of Canada may be named as a respondent in this proceeding. The style of cause should therefore be amended accordingly.
Does issue estoppel apply in this case?
[16] The respondent filed the order of Mr. Justice Noël dated April 29, 2004, between the same parties. This was the application for judicial review of the applicant challenging the decision dated June 23, 2003, by the Appeal Division of the National Parole Board. This decision upheld the Board's decision of January 15, 2003, which denied the applicant full parole and day parole. The Board had found that it had reasonable grounds to believe that if the applicant were released he would likely commit a crime involving violence before the expiration of his sentence on October 23, 2009.
[17] Citing in support the judgments in Danyluk v. Ainsworth Technologies Inc., [2001] S.C.R. 460; Québec (Commission des normes du travail) v. Liberty Mutual Insurance Co., [1990] Q.A. No. 918 (Q.C.A.); Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), local 79, [2003] 3 S.C.R. 77; Dumont Vins & Spiritueux Inc. v. Celliers du Monde Inc., [1992] 2 F.C. 634 (F.C.A.), the respondent urges the Court to apply the principle of estoppel and requests that the application for judicial review be dismissed.
[18] In Danyluk, supra, the Supreme Court identified a number of rules concerning the concept of issue estoppel. At paragraph 18, Binnie J. states:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be relitigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. [Emphasis added]
[19] At paragraph 24 of that case, it was held that the question out of which the estoppel is said to arise must have been fundamental to the decision arrived at in the earlier proceeding.
[20] At paragraph 25, referring to a statement by Mr. Justice Dickson in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, the Supreme Court sets out the preconditions to the operation of issue estoppel:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[21] That the same question has been decided:
At paragraph 54 in Danyluk, supra, it is stated:
Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties....
Applying these principles to the case at bar, and in reference to the decision of Noël J., I find that the applicant's meeting with Mr. Francesco Cotroni was discussed in detail at paragraphs 6, 18, 19, 20, 22, 25, 33 and 35 of his reasons. This meeting of September 25, 2002, was debated before the National Parole Board and the Appeal Division. The applicant had an opportunity to argue his point of view, submit documents and testify. But these decision-makers did not believe him. I find, therefore, that this meeting was a relevant and essential factor in the reasons given by these bodies.
[22] That the judicial decision which is said to create the estoppel was final:
I am satisfied that this condition is fulfilled here. In fact, the applicant did avail himself of his right to apply to this Court to have the decision of the Appeal Division of the National Parole Board overturned. He did not succeed and that judgment is now final.
[23] That the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised:
It is clear that the parties are the same in both proceedings, although in this case the applicant is attacking a different negative decision. I conclude therefore that the tests for applying issue estoppel have been met in the case at bar.
Should the Court exercise its discretion and refuse estoppel?
[24] The Court must now ask itself the following question: in this case, would the application of this doctrine create an injustice? The answer to this question is negative. The Court may, in exercising its discretion, refuse to apply estoppel. But in light of my review of the relevant considerations in the exercise of the discretionary authority that are set out in paragraphs 67 to 80 of the Danyluk judgment, supra, I find none that apply. In my opinion, the applicant had every possibility to defend himself, and to argue his position on this meeting of September 25, 2002. I also think that the basic purpose of this litigation is to reopen a question that has already been decided (Canadian Union of Public Employees, supra). I have no intention, therefore, of using my discretion to refuse the operation of estoppel.
Was the tribunal's decision concerning the request for correction of information in the applicant's file patently unreasonable?
[25] The decision at the third level reproduces a letter dated February 20, 2003, in which the Institutional Director of the Federal Training Centre explains as follows the refusal to correct information:
[translation]
You are asking that some corrections be made to Mr. Desjardins' file in relation to two things: the incident of September 25, 2002, and the allegations about Mr. Desjardins' conduct from 1993 to 1995.
In this regard, we think there is no reason to amend the existing reports in your client's file concerning these two periods, since the official information at the disposal of the Correctional Service of Canada continues to be credible in our opinion.
(Applicant's Record, Tab 4)
The applicant is asking the Court to set aside this decision.
[26] For the Court to reach this conclusion, it would have to find that it is patently unreasonable. I have no reason to set aside this decision for it involves what is essentially a question of fact and it is the product of a discretionary authority granted to the CSC authorities.
[27] The applicant's memorandum does not cite any reason to support his claim that the information contained in his file about the incidents between 1993 and 1995 is incorrect. As to the reference to the meeting of September 25, 2002, I have already concluded that the doctrine of issue estoppel applied.
[28] For these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. The applicant shall pay the respondent $1,500.00 as costs, including the disbursements, no later than September 30, 2004.
"Michel Beaudry"
Judge
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2095-03
STYLE: RAYNALD DESJARDINS
v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 9, 2004
REASONS FOR ORDER
AND ORDER: MR. JUSTICE BEAUDRY
DATED: August 17, 2004
APPEARANCES:
Julius H. Grey FOR THE APPLICANT
Michelle Lavergne
Dominique Guimond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Grey Casgrain
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada
Montréal, Quebec FOR THE RESPONDENT