| This was an application for judicial review and for an order setting aside the decision of the CSC dated on or about November 28, 1994 to deduct amounts for room and board from income paid to D from "non-Treasury Board sources". D had been employed with an outside employer under a work release arrangement during his incarceration. On or about November 25, 1994 D and other inmates in similar work situations received a memorandum from the Warden of the Frontenac Institution which stated that inmates who are currently on work release would be required to pay room and board, and that, as a condition of work release, they would be required to sign a form consenting to the deduction of such payments. Those who did not consent to this deduction would have their work release cancelled. D along with other inmates applied for judicial review. The Court dealt with the issue surrounding the legality of the room and board deductions, and also commented upon the issue of whether or not D and the other inmates could seek judicial review on this matter given the fact that they had not exhausted the internal grievance procedure.
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| MacKay
J. allowed the application. The CSC maintained that since the inmate applicants
did not use the Offender Grievance Procedure provided for under the Regulations,
but instead chose to seek judicial review in this court, they should not
be entitled to the extraordinary remedies which they sought when another
procedure for dealing with their grievances was available. That procedure
exists under sections 74 to 82 of the Regulations. MacKay J., however,
noted that under those Regulations, s81 contemplates the possibility of
applying for a legal remedy at the same time as the grievance procedure
is pursued and it suspends the latter process until the former process
is completed or abandoned. For MacKay J., it clearly contemplates legal
proceedings at the option of the person with a grievance. In the court's
opinion, the matter here in issue, i.e., the lawful authority of the respondent
Commissioner, is ultimately determinable by the process here instituted,
an application for judicial review. In this circumstance, failure to follow
an internal grievance process ought not to preclude the exercise of discretion
to grant relief here sought. Regarding the substantive issue, the CSC
urged that the Commissioner was authorized to make room and board deductions
pursuant to sections 3, 4 and 5 and subsection 18(3) of the Act. In MacKay
J.s view, these provisions did not provide that authority. At the time
the express provisions of s78 and paragraph 96(z.2) clearly indicated
that Parliament intended to grant the Commissioner the authority to make
deductions for room and board only where an inmate receives his or her
pay as authorized by the Commissioner at rates approved by the Treasury
Board. The Commissioner was not expressly authorized to make deductions
where inmates received payments from sources other than those described
in sections 78(1). The CSC could not rely on the consent form signed by
the applicants to deduct room and board from their pay. A statutory authority,
as are the respondents, has no power to act, by contract or acquiescence
of another, beyond the powers authorized by its enabling legislation.
Effective January 24, 1996, section 78 of the CCRA has been amended in
such a way that the Commissioner would be authorized to make such deductions.
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