2019 FC, 2019 FC 1136

Date: 20190905 Docket: 19-T-36 Citation: 2019 FC 1136 Ottawa, Ontario, September 5, 2019 PRESENT: The Honourable Mr.

Justice Pamel BETWEEN:GORDON FRANK NICKERSONApplicantandCORRECTIONAL SERVICE CANADADefendant ORDER AND REASONS [1] The Applicant, Gordon Frank Nickerson, makes three motions in writing pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 [Rules or FCR]. [2] The first is a preliminary motion for the extension of time under Rule 8 of the FCR to file an Application for Judicial Review of adecision of the Institutional Head [IH] of Dorchester Institution [DI] (described in the preliminary motion as the Segregation/TransferReview Board) made on December 11, 2017, approving Mr.

Nickerson’s Offender Security Level [OSL] being increased from mediumto maximum, as well as the involuntary transfer [IT] of Mr. Nickerson to the Atlantic Institution [ATL]. [3] For the reasons set out below, Mr. Nickerson’s motion is denied. [4] In addition, Mr. Nickerson filed two additional preliminary motions, the first requesting that this Court dispense with the obligationfor the payment of filing fees, and a second motion pursuant to Rule 304 of the FCR for directions as to the appropriate persons to beserved with the Notice of Application for Judicial Review. [5] Considering that Mr.

Nickerson’s preliminary motion for extension of time to file his Application for Judicial Review is dismissed, Ineed not deal with the remaining two preliminary motions. [6] In 2017, Mr. Nickerson was an inmate at the DI, a medium-security penitentiary near Dorchester, New Brunswick. According toCorrectional Service Canada [CSC], in early September 2017, Mr. Nickerson was somehow involved in a breach of security measures onoffender access to computers [OACs], and purportedly saved unauthorized files on the hard drive of multiple OACs. Although hisactions were not criminal in nature, Mr.

Nickerson did access password-protected files, CSC forms, and files on the OAC server. [7] An Information Technology alert was placed on his file indicating that he was no longer permitted to have computer access.However, it would seem that on or about October 11, 2017, Mr. Nickerson, who continued to be maintained within the generalpenitentiary population, was found to have manipulated a staff member to assist him in accessing the Internet to create various codes. [8] There is some question as to whether, and to what extent, Mr.

Nickerson contested the findings of the investigation; however, thedetermination of his involvement is not relevant for the purposes of the present preliminary motion for the extension of time. [9] As a result of such findings, he was placed on Segregation Status under subparagraph 31(3)(

a) of the Corrections and ConditionalRelease Act, SC 1992, c 20 [CCRA], and following a series of assessments and reviews, on December 11, 2017, pursuant to

section 18 ofthe Corrections and Conditional Release Regulations, SOR/92-620 [CCRR], the IH of the DI approved the recommendation to have Mr.Nickerson’s OSL increased from medium to maximum, as well as his IT from DI to ATL, a maximum-security penitentiary in Renous,New Brunswick [Initial Decision]. [10] It should be kept in mind that it is the Initial Decision that Mr. Nickerson now seeks to have this Court review by way of judicialreview pursuant to

section 18.1 of the Federal Courts Act, RSC 1985, c F-7 [FCA]. [11] Rather than filing for judicial review of the Initial Decision at the time, Mr. Nickerson elected, quite rightly, to proceed via theInmate Grievance Process, and on January 25, 2018, he filed a Third Level Offender Grievance Presentation – Reference numberV20R00018404 [Grievance] with the Commissioner of Corrections by which he, Mr. Nickerson, contested the Initial Decision. [12] The right of inmates to a fair and expeditious grievance resolution process is set out in sections 90 and 91 of the CCRA.

The CCRRsets out the Offender Grievance Procedures at sections 74 to 82. This Court has held on previous occasions that similar grievanceprocedures afford an adequate alternative remedy to judicial review. See for example Nome v Canada (Attorney General), 2016 FC 187at paras 19-25 [Nome]; Giesbrecht v Canada, (FC), 148 FTR 81 at para 10 [Giesbrecht]; Lewis v Canada(Correctional Service), 2011 FC 1233 at para 29 [Lewis]. [13]

Section 80 of the CCRR states:

"80(1) If an offender is not satisfied with adecision of the institutional head or directorof the parole district respecting theirgrievance, they may appeal the decision tothe Commissioner. " " " "80(1) Lorsque le délinquant est insatisfait dela décision rendue au sujet de son grief par ledirecteur du pénitencier ou par le directeur dedistrict des libérations conditionnelles, il peuten appeler au commissaire. " " " "(2) [Repealed, SOR/2013-181, s. 3] " " " "(2) [Abrogé, DORS/2013-181, art. 3] " "

(3) The Commissioner shall give theoffender a copy of his or her decision,including the reasons for the decision, as soonas feasible after the offender submits anappeal. " " " "

(3) Le commissaire transmet au délinquantcopie de sa décision motivée aussitôt quepossible après que le délinquant a interjetéappel. " [14] In his Notice of Motion for the extension of time, as well as his affidavit filed in support hereof, Mr. Nickerson confirms that it washis belief that this Court should be relied upon for judicial review only after all other recourses had been exhausted, and that it wasnecessary to exhaust the remedies available under the CCRA grievance procedure prior to seeking judicial review before this Court.

Hewas correct. [15] Indeed, and although it is possible under exceptional circumstances, this Court has been loath to allow for judicial review ofinterlocutory decisions or decisions of lower boards where the relevant statute provides for an appeal process to a reviewing tribunal:McDowell v Automatic Princess Holdings, [2018] 3 FCR 445, 2017 FCA 126; see also Halifax (Regional Municipality) v Nova Scotia(Human Rights Commission), [2012] 1 SCR 364, 2012 SCC 10; Szczecka v Canada (Minister of employment & Immigration), (FCA); Elliot v Canada, 2017 FCA 145. [16] This Court has consistently held that absent exceptional circumstances, there is no immediate judicial review of interlocutorymatters pending a final determination by the decision-maker, and is generally only available after a final decision is rendered in thegrievance process: see Szczecja v Canada, [1993] FCJ No 934 (FCA) at para 4, (FCA); CHC Global Operations vGlobal Helicopter Pilots Association, 2008 FCA 344 ; Lundbeck Canada Inc v Canada (Minister of Health), 2008 FC 1379(FC) at paras 27-28; Fairmount Hotels Inc v Canada (Corporations), 2007 FC 95 (FC) at para 9; (Robertson vCanada (Attorney General), 2015 FC 303 at para 33 [Robertson]; Esgenoôpetitj (Burnt Church) First Nation v Canada (HumanResources and Skills Development), 2010 FC 1195 at paras 42, 44. [17] The policy behind this line of jurisprudence is set out in a number of cases (Marachelian v Canada (Attorney General), [2001] 1FCR 17 (FC) [Marachelian]; Froom v Canada (Minister of Justice), [2005] 2 FCR 195, 2004 FCA 352 at para 12 [Froom]; Nome vCanada (Attorney General), 2016 FC 187 at para 22 [Nome]. [18] In this case, the Grievance filed by Mr.

Nickerson contested the Initial Decision on the basis that: (1) his Aboriginal Social Historywas not properly considered during the decision-making process; and (2) the final decision review did not afford him the opportunity tobe heard, which is thus a breach of his rights to procedural fairness. [19] On March 28, 2019, the Special Adviser to the Commissioner denied Mr. Nickerson’s Grievance [Final Grievance Decision].Although

section 80 of the CCRR calls for Third Level Grievance to be made to the Commissioner, it was held by this Court in Mennes vWarkworth Institution, [2001] FCJ No 1830 at paras 20 to 27, 2001 FCT 1349 [Mennes], that there is no requirement under the CCRA orthe CCRR for the Commissioner of Corrections to personally handle grievances, and that such authority may be delegated to others whohave authority under the prevailing statute to hear such grievances. [20] In this case, there is nothing in the file to suggest that the Special Adviser to the Commissioner who signed the Final GrievanceDecision did not have such authority. [21] Thereafter, on May 27, 2019, the Registry of this Court received Mr.

Nickerson’s three preliminary motions as set out above, withaccompanying affidavits as regards the first two such motions. As Mr.

Nickerson was outside the 30-day period for filing pursuant tosubsection 18.1(2) of the FCR, the Registry Officer sought directions from the Court, and on July 8, 2019, the Court directed that thethree preliminary motions with related affidavits be accepted for filing, with the issue of the waiver of any filing fees, however, beingdetermined at the time of the hearing of the related preliminary motion. [22] On the preliminary motion, seeking for the extension of time to file an application for judicial review, there is little doubt that thisCourt has the power under subsection 18.1(2) of the FCR to extend the time in which an applicant may make an Application for JudicialReview.

The factors for considering such a request were set out in Canada (Attorney General) v Larkman, 2012 FCA 204 at para 61[Larkman]. In short, those factors are: 1. whether the moving party had a continuing intention to pursue the application; 2. whether the moving party has a reasonable explanation for the delay; 3. whether there is some potential merit to the application; and 4. whether the Crown has been prejudiced by the delay.

[23] However, what seems clear from Mr. Nickerson’s material is that he is not looking to seek judicial review of the Final GrievanceDecision but rather of the Initial Decision. The present situation is not one where Mr. Nickerson is seeking to review an initial order ordecision while the review process is still underway. The grievance procedure under the governing statute has ended. [24] Mr. Nickerson did the right thing by waiting until he had exhausted the grievance procedure under the CCRA and the CCRR priorto seeking assistance from this Court.

However, he is seeking judicial review of the wrong decision. [25] The issue of whether judicial review of a preliminary decision is appropriate where there has been a final decision in appeal of thatpreliminary decision under the governing statutory scheme was recently considered by Justice Southcott in Thompson v CorrectionalServices Canada, 2018 FC 40. The Court stated at paragraphs 18 to 20: [18] The Respondent argues that there are no compelling circumstances which would justify the Court exercising itsdiscretion to decide these applications for judicial review despite there being an alternative remedy.

The argument raised byMr. Thompson is that he has already exhausted the alternative remedy that is available to him, as he has pursued thegrievance process available under the CCRA and has received a final decision in the Grievance Response. In response, theRespondent’s position is that the judicial remedy potentially available to Mr. Thompson was to seek judicial review of theGrievance Response, which I understand the parties agree is the final decision available through the alternativeadministrative process. [19] I agree with the Respondent’s position.

This issue was addressed recently by the Federal Court of Appeal in Elliot vCanada, 2017 FCA 145 , in which the appellant sought to set aside a Criminal Profile Report prepared atEdmonton Institution which concluded that he had caused “serious psychological harm” to a victim. The Court noted atparagraph 12 that the appellant had unsuccessfully grieved the inclusion of the offending phrase to the Commissioner ofCorrections and had not sought judicial review of the denial of his grievance, although that option was open to him.

TheCourt held the CCRA had provided the appellant with an alternative remedy, the existence of which constituted a bar to asuccessful judicial review application regarding the underlying decision to include the phrase. [20] In other words, the fact that the grievance process under the CCRA has run its course and Mr. Thompson has nowreceived a final decision in that process does not entitle him to seek judicial review of the original administrative decisionthat was the subject of the process.

Rather, it was that final decision, reflected in the Grievance Response, which Mr.Thompson had the option of challenging through an application for judicial review. [26] I considered whether I could simply consider Mr. Nickerson’s preliminary motions as seeking judicial review of the FinalGrievance Decision rather than the Initial Decision, however, I do not believe it is open for me to do so in this case. Mr. Nickerson’spreliminary motion to extend time and his draft application for judicial review makes it clear that what he is seeking relief from is theInitial Decision.

For that reason, I must dismiss the present application. [27] Finally, I also wish to point out that although I am dismissing Mr. Nickerson’s present motion, it continues to be open to him, if hedeems fit, to seek any extension of time to pursue an Application for Judicial Review of the Final Grievance Decision. ORDER in 19-T-36 THIS COURT ORDERS that: 1. The motion for extension of time to file an Application for Judicial Review is dismissed.

The remaining motions to dispense withthe obligation for the payment of filing fees, and for directions as to the appropriate persons to be served with the Notice ofApplication for Judicial Review are no longer of any effect, and are as well dismissed. 2. There shall be no award as to costs in this matter. "Peter G. Pamel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: 19-T-36 STYLE OF CAUSE: GORDON FRANK NICKERSON v CORRECTIONAL SERVICE CANADA MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTSRULES

ORDER AND reasons: PAMEL J. DATED: September 5, 2019 APPEARANCES : Gordon Frank Nickerson For The Applicant (ON HIS OWN BEHALF) Amy Smeltzer For The Defendant SOLICITORS OF RECORD : Attorney General of Canada Halifax, Nova Scotia For The Defendant