Obeyesekere v. Canada (Attorney General) et al., (2014) 453 F.T.R. 9 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: March 04, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 453 F.T.R. 9 (FC);2014 FC 363

Obeyesekere v. Can. (A.G.) (2014), 453 F.T.R. 9 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. AP.033

Brian Obeyesekere (applicant) v. The Attorney General of Canada and The Independent Chairperson of Collins Bay Institution (respondents)

(T-1185-13; 2014 FC 363; 2014 CF 363)

Indexed As: Obeyesekere v. Canada (Attorney General) et al.

Federal Court

O'Keefe, J.

March 16, 2014.

Summary:

A federal inmate was convicted of disobeying a justifiable order of a staff member under s. 40(a) of the Corrections and Conditional Release Act. He applied for judicial review, seeking to have the conviction set aside and an order directing that he be acquitted and his file corrected. Alternatively, he asked that the matter be sent back to be heard by a different independent chairperson. He also asked for costs on a solicitor-and-client basis.

The Federal Court allowed the application and set aside the decision convicting the applicant. The court declined the applicant's request for solicitor-and-client costs and granted the applicant his costs of the application.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See second Prisons - Topic 1602 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See second Prisons - Topic 1602 ].

Prisons - Topic 1008

Administration - General - Rectifying prisoner's record (incl. inaccurate information) - A federal inmate was convicted of disobeying a justifiable order of a staff member under s. 40(a) of the Corrections and Conditional Release Act - He applied for judicial review, seeking to have the conviction set aside and an order directing that he be acquitted and his file corrected - The Federal Court set aside the decision convicting the applicant - The court stated that if the applicant's file was not updated, he could resort to s. 24(1) of the Act which provided that: "The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible" - See paragraphs 34 and 35.

Prisons - Topic 1575

Discipline - Inmates - Judicial review or appeals - Costs (incl. disbursements) - [See first Prisons - Topic 1602 ].

Prisons - Topic 1602

Discipline - Inmates - Disciplinary hearing - Procedure - Notice - A federal inmate was convicted of disobeying a justifiable order of a staff member under s. 40(a) of the Corrections and Conditional Release Act - He applied for judicial review, seeking to have the conviction set aside and an order directing that he be acquitted and his file corrected - Alternatively, he asked that the matter be sent back to be heard by a different independent chairperson - He also requested solicitor-and-client costs - The Federal Court set aside the decision - The notice of the charge did not meet s. 25(1) of the Corrections and Conditional Release Regulations, which required that the notice "describe the conduct that is the subject of the charge" - Here, the notice only said that the applicant had failed to hang up the phone when ordered to do so - No reference was made to the conduct for which he was convicted, which occurred after he hung up the phone - It was unfair for the chairperson to convict the applicant - It would make no sense to refer the matter back to the officer as no proper written notice of a charge existed for the charge that he was convicted of - The court declined the applicant's request for solicitor-and-client costs, holding that the respondents' conduct did not justify such an order - The court granted the applicant his costs of the application.

Prisons - Topic 1602

Discipline - Inmates - Disciplinary hearing - Procedure - Notice - A federal inmate was convicted of disobeying a justifiable order of a staff member under s. 40(a) of the Corrections and Conditional Release Act - He applied for judicial review - Section 25(1) of the Corrections and Conditional Release Regulations required that the notice "describe the conduct that is the subject of the charge" - Here, the notice only said that the applicant had failed to hang up the phone when ordered to do so and no reference was made to the conduct for which he was convicted - The application raised the following issues: (1) what was the standard of review; (2) did the chairperson err by convicting the applicant for his actions following the phone call; and (3) was the conviction otherwise unreasonable? - The Federal Court applied the correctness standard when applying s. 25(1) of the Regulations because, being a notice requirement, it was procedural in nature - As for the other issues, the reasonableness standard applied - All of the applicant's arguments challenged the chairperson's findings of fact or assessment of the evidence - Those types of questions almost always attracted a reasonableness standard - See paragraphs 19 to 23.

Prisons - Topic 1607

Discipline - Inmates - Disciplinary hearing - Procedural fairness - [See both Prisons - Topic 1602 ].

Cases Noticed:

Gendron v. Canada (Attorney General) (2012), 405 F.T.R. 125; 2012 FC 189, refd to. [para. 15].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 19].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Savard v. Canada (Procureur général) (1997), 128 F.T.R. 271 (T.D.), refd to. [para. 25].

Richer v. Saskatchewan Penitentiary (Independent Chairperson) et al. (2006), 300 F.T.R. 249; 2006 FC 1188, refd to. [para. 26].

Langlois v. Canada (Attorney General) (2004), 260 F.T.R. 186; 2004 FC 702, refd to. [para. 27].

Society Promoting Environmental Conservation v. Canada (Attorney General) (2003), 305 N.R. 203; 2003 FCA 239, refd to. [para. 31].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89; 130 D.L.R.(4th) 193, refd to. [para. 31].

Gifford v. Canada (Attorney General) (2007), 314 F.T.R. 46; 2007 FC 606, refd to. [para. 32].

Counsel:

J. Todd Sloan, for the applicant;

Gregory Tzemenakis, for the respondents.

Solicitors of Record:

J. Todd Sloan, Kanata, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard at Ottawa, Ontario, on March 4, 2014, by O'Keefe, J., of the Federal Court, who delivered the following decision on March 16, 2014.