Date: 20030224
Docket: A-55-03
Neutral citation: 2003 FCA 99
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
RICHARD CONDO
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, Monday, February 24, 2003
JUDGMENT delivered from the Bench at Ottawa, Ontario, February 24, 2003
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 20030224
Docket: A-55-03
Neutral citation: 2003 FCA 99
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
RICHARD CONDO
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
February 24, 2003)
STRAYER J.A.
[1] After considering the able arguments of both counsel we have concluded that this appeal must be dismissed.
[2] This is an appeal from a decision of Pinard J. of the Trial Division in which he exercised his discretion to dismiss an application for a mandatory interlocutory injunction which was requested for the purpose of ordering the release of the appellant from administrative segregation, and his return to the general prison population, at La Macaza, a federal medium security penitentiary.
[3] We are not persuaded that the learned motions judge made any error of principle in exercising his discretion as he did, on the grounds that the appellant had failed to exhaust internal remedies within the corrections system before seeking an injunction.
[4] After being placed in administrative segregation, the appellant was advised that this step had been taken because his security classification had been changed from medium security to maximum security. As La Macaza is a medium security institution the authorities took the position that he could no longer be left in the general prison population and proposed to have him moved to a maximum security institution. The appellant immediately applied for judicial review of both the classification decision and the segregation decision. He has not filed any grievance concerning either of those decisions.
[5] Pinard J. noted that there is a comprehensive grievance process under the Corrections and Conditional Release Act ("the Act"). He further noted the decision of the Trial Division in Giesbrecht v Canada, [1998] FCJ 621, invoking a similar situation in which an inmate sought judicial review in lieu of filing a grievance. There the court exercised its discretion and dismissed the judicial review because of failure on the part of the applicant to exhaust his grievance remedy. We believe that Pinard J. properly applied this principle in the present case.
[6] The appellant presented evidence that the grievance process is excessively slow and therefore not a viable alternative. We are unable to say that the motions judge was in error in not treating this evidence as persuasive. The appellant further argues that as the grievance process is automatically stayed when a legal remedy is sought, by virtue of section 81 of the Act, he does not in reality have an alternative remedy. But if he is temporarily barred from pursuing a grievance, this is the predictable result of his own action in bringing a judicial review proceeding and this will continue only as long as it takes for the judicial review to be disposed of.
[7] We will therefore dismiss the appeal with costs.
(s) "B.L. Strayer"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-55-03
STYLE OF CAUSE: RICHARD CONDO v. THE ATTORNEY GENERAL FOR CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: FEBRUARY 24, 2003
REASONS FOR JUDGMENT
OF THE COURT BY: STRAYER J.A.
DATED: FEBRUARY 24, 2003
APPEARANCES:
Ms Diane Magas FOR THE APPELLANT
(613) 563-1005
Mr. Sébastien Gagné FOR THE RESPONDENT
(613) 946-3098
SOLICITORS OF RECORD:
Magas Law Office FOR THE APPELLANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada