|
Subsequent, and contrary, to the orders given by Rothstein J. in the first judicial review of this case (see Lee v. Canada (Correctional Service) (1993), 17 Admin. L.R. (2d) 271, 67 F.T.R. 54, [1993] F.C.J. No.759 (F.C.T.D.)), the applicants L and M were not transferred out of the SHU. Rather, they were re-served with Notices of Recommendation for Involuntary Transfer. These notices were almost identical to those that had been originally served on the applicants but with the information that had been subsequently provided to them in October attached. Counsel for the applicants responded to these notices, the warden confirmed the recommendation and the Deputy Commissioner again approved the transfer. It is this second transfer decision that is being challenged in this case. The applicants put three arguments to the Court. They turned on questions over sufficiency of information, adequacy of review and reasonable apprehension of bias.
|
|
While Reed J. expressed concerns over the CSC’c conduct in regards to all three issues, the decision to re-transfer was quashed on the basis of the existence of a reasonable apprehension of bias. Since the original transfer decision was considered, and upheld, by the Commissioner’s rejection of the applicant’s third and final grievance of that decision, Reed J. held that permitting the Deputy Commissioner to now make a decision on the second attempt to transfer creates a reasonable apprehension of bias. Citing Rothstein J.’s earlier judgment in the matter, Reed J. claimed that this is so because there is serious doubt that a subordinate can approach the question of altering his superior’s prior decision with the objectivity and independence that is required for a fair decision. The application was allowed and the decision to transfer quashed.
|
TOP