Docket: A-399-14
Citation:
2016 FCA 14
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CORAM:
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NOËL C.J.
NEAR J.A.
SCOTT J.A.
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BETWEEN:
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KEVIN CHARLES
MACKINNON
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Appellant
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and
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WARDEN OF
BOWDEN INSTITUTION, CORRECTIONAL SERVICE OF CANADA, ATTORNEY GENERAL OF
CANADA
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on
January 19, 2016).
SCOTT J.A.
[1]
A Judge of the Federal Court (the Judge),
reviewing the application for judicial review filed by Mr. Kevin Charles
Mackinnon (appellant) on status review pursuant to rule 382.1 of the Federal
Courts Rules, SOR/98-106 (Rules), dismissed the application on grounds that
it was futile and moot.
[2]
In reaching his conclusion to dismiss the
application, the Judge considered the following factors:
a)
Annis J. of the Federal Court had dismissed the
appellant’s motion for an injunction to prevent his involuntary transfer to
another penitentiary institution because there was no serious question to be
tried;
b)
Prothonotary Lafrenière had dismissed the
appellant’s motion for an extension of time to file the affidavit in support of
his application for judicial review because the appellant had failed to show an
arguable case;
c)
Prothonotary Lafrenière’s decision was never
appealed;
d)
The appellant failed to take any steps to
advance his application for judicial review between February 26, 2014 and the
Notice of Status Review issued on July 4, 2014;
e)
The appellant failed to grieve his involuntary
transfer from Bowden, a condition precedent to the filing of his application
for judicial review;
f)
The appellant having been transferred twice to
other penitentiaries since filing his application, the matter was moot.
[3]
In this appeal the appellant is challenging the
Judge’s decision for the following reasons:
i.
The Judge incorrectly attributed delays solely to
the appellant, ignoring the respondents’ actions that caused the majority of
them;
ii.
The Judge failed to address the issue of whether
the respondents were in contravention of sections 27 and 28(1)(b) of the
Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA) thereby
breaching procedural fairness;
iii.
The Judge erred when stating that the appellant
never grieved his transfer from Bowden;
iv.
The Judge erred in determining that the
application was moot because the appellant had been transferred.
[4]
There is only one issue in this application: Did
the Judge give sufficient weight to all the relevant circumstances when making
his discretionary decision upon status review to dismiss the appellant’s
application for judicial review?
[5]
We are of the opinion that this appeal must fail
for the following reasons.
[6]
The Judge did not err when he considered whether
the underlying application for judicial review had any merit. Generally, it is
a pre-condition for judicial review of a decision to transfer an inmate from
one institution to another that the inmate grieves his transfer, prior to
bringing an application for judicial review. The appellant having failed to
grieve his transfer prior to filing his application for judicial review, there
was no grievance decision to review (Affidavit of Nancy Shore, paragraphs 9 to
12), (Giesbrecht v The Queen, 1998 F.C.J. 621, 148 F.T.R. 81 at
paragraphs 13 and 14, Condo v. Canada (Attorney General), 2003 FCA 99,
239 F.T.R. 158 at paragraph 5, Reda v. Canada (Attorney General), 2012
FC 79, 404 F.T.R. 85, at paragraphs 13, 23, and 29)
[7]
The Judge did not misguide himself with respect
to the delays. It was open to the Judge on the evidence before him to conclude
that the appellant was primarily responsible for the delays in this matter.
[8]
It was also open to the Judge to conclude that
the application could not succeed as there was no supporting evidence and the
issue of a breach of sections 27 and 28 of the CCRA was never properly
introduced in the notice for application of judicial review.
[9]
Consequently this appeal is dismissed with costs
set at $200.
“A.F. Scott"
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