Federal Court Orders Temperature Regulation in Prisons

Date: 20260716 Docket: T-841-24 Citation: 2026 FC 958 Edmonton, Alberta, July 16, 2026 PRESENT: Madam Justice Conroy BETWEEN: [COMPANY] Applicant and THE [NAME] OF CANADA Respondent

REASONS AND

JUDGMENT I. OVERVIEW [ 1 ] The Applicant, the [COMPANY] seeks judicial review of the continuing conduct of the [NAME] [[NAME]] with respect to its operation of [NAME] [[NAME]]. The judicial review arises from alleged extreme indoor temperatures in the [NAME]-security unit [[NAME]] in [NAME] which, it is argued, have been an ongoing problem for about twenty years. Specifically, the Applicant asserts that [NAME] has known that those incarcerated in [NAME] have suffered from extreme temperature conditions and has failed to take all reasonable steps to effectively manage the temperatures. It is submitted that [NAME]’s continuing inaction in this regard is a breach of s. 70 of the [NAME] Act , [NAME] 1992, c 20 [CCRA]. The Applicant also argues that the temperature conditions breach sections 7, 12 and 15 of the Canadian Charter of [NAME] , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK) , 1982, c 11 [ Charter ]. [ 2 ] For the reasons set out below, the application for judicial review is granted and an Order in the nature of mandamus shall issue. [ 3 ] The evidence shows that the temperatures in the [NAME]-occupied areas of [NAME] are excessively high at certain times of the year. The problem is particularly acute in the [NAME] and in the cells during lockup at night, when there is no airflow for 9.5 hours. The excessively high temperatures have caused [NAME] to suffer panic attacks, psychological distress, and sleep deprivation. Itis a [NAME]-standing problem: [NAME] has known of design problems with the temperature regulation equipment in [NAME] since as early as 2012. [ 4 ] I conclude the grievance process is not an adequate alternative remedy to address excessively high temperatures in [NAME]. On the record before the Court are numerous written complaints and grievances from [NAME] about extreme temperatures in [NAME] spanning about two decades, and yet [NAME] has thus far failed to implement an effective and durable solution to manage the heat. The evidence suggests that the high temperatures are due to the building equipment’s inability to cool the indoor temperature. The grievance process is fundamentally ill-equipped to address inadequate climate control equipment or building design. [ 5 ] Over the course of many years, [NAME] has taken steps to try to mitigate the impacts of the excessive temperatures on [NAME] (e.g. allowing [NAME] to purchase small fans and take cold showers). Nevertheless, the [NAME] has failed to take “ all reasonable steps” (emphasis added) to “ensure” safe and healthy conditions of confinement in [NAME] as required by s. 70 of the CCRA. [ 6 ] [NAME] says it routinely monitors temperatures in [NAME], remarkably, it keeps no written records of its temperature readings. [ 7 ] Further, [NAME] has routinely interpreted the [NAME] for Correctional Institutions [[NAME]], as entirely prohibitive of installing Air Conditioning [A/C] in the [NAME]-occupied areas of the penitentiary. As explained further below, this interpretation is unreasonable. [ 8 ] Accordingly, based on the record before me, there are at least two additional reasonable steps that [NAME] can take to ensure the living conditions are safe and healthy: (1) recording temperature readings in [NAME]; and (2) seeking authorization to install A/C in the [NAME]-occupied areas of [NAME], including the cells. [NAME] is directed to undertake these two steps. [ 9 ] It was not argued that, as a [NAME] principle, [NAME] have a right to A/C. However, given the evidence of the persistence of this problem despite [NAME]’s many attempts over the years to try to mitigate it, s. 70 of the CCRA obligates [NAME] to seriously and meaningfully consider whether A/C is required to ensure a safe and healthy environment for [NAME] and workers in [NAME]. Its consideration ought to be unburdened by the non-binding [NAME] prohibition against A/C in the [NAME]. [ 10 ] My conclusion that [NAME] has failed to comply with s. 70 of the CRRA is sufficient to dispose of the judicial review and it is therefore unnecessary to consider the Charter issues.

II.

BACKGROUND A. Material Facts and Events Leading to this Application [ 11 ] [NAME] is a multi-level site operated by [NAME] that houses [NAME] with minimum, medium, and [NAME]-security classifications. [ 12 ] [NAME] are housed in [NAME], which was built in 1995. [NAME] contains three “pods” (North Pod, [NAME]). Each pod contains five cells and a common area. There is also a Structured Intervention Unit [SIU] located in [NAME]. The “[NAME]-occupied areas” include the common area and the cells in each pod as well as the SIU. [ 13 ] Between all pods is a central “rotunda” where correctional staff work. [ 14 ] The cells in [NAME] each have a toilet and sink, one or two beds, and a storage area. The cells also have a window that opens slightly, covered by a metal grate with holes in it and an air vent. The common area in each pod has sofas, televisions, and a shower area. Windows in the common areas can be opened by staff on request. [ 15 ] [NAME] have set “lockup” times, from 10:00 PM to 7:30 AM, 12:00 PM to 1:00 PM, and 4:00 PM to 5:00 PM. During these times, they must be in their cells. Otherwise, they [NAME] occupy the common areas or attend approved programming in other areas of the institution. [ 16 ] As detailed further below, heating for the cells in [NAME] is provided by a combination of in-slab heating and HVAC circulated air. The common areas in [NAME] are heated by HVAC only. [ 17 ] There is no built-in cooling system or A/C for [NAME]-occupied areas of [NAME]. But in 2021, A/C was installed in the central rotunda area, where [NAME] work. [ 18 ] [NAME] can make requests to staff to adjust temperatures, and staff members refer the request to the [NAME] Department through an electronic system called “[NAME],” which logs [NAME] requests for tracking and assignment to [NAME] workers. (1) Extreme Temperatures in [NAME] [ 19 ] The Applicant has filed four affidavits from [NAME] at [NAME]: [NAME], and [NAME]. Each affiant was at some point housed in [NAME]. As of the date of the hearing of this judicial review, none of the [NAME] were housed in [NAME]. The Respondent did not cross-examine the [NAME]. [ 20 ] All four affiants describe two seasons of extreme temperatures in [NAME]: the “Hot Months,” and the “Cold Months.” [ 21 ] During the Hot Months (roughly April to October), the women describe both the cells and common areas in [NAME] as intolerably hot. The [NAME] is known for being particularly hot, because of the sun shining directly into it during the day. The corner cell in that pod has been nicknamed the “microwave,” or the “oven,” by [NAME]. [NAME] states that, when she was housed in this corner cell in August 2018, the temperature taken by a [NAME] worker reached over 40°C. [ 22 ] The [NAME] use various strategies to try to cope with the heat including placing frozen water bottles on their bodies, wetting their clothes and hair, splashing themselves and each other in cold water, standing in front of open fridges, taking ice baths, stripping down to their undergarments; taking a frozen towel to bed, and limiting their physical movement. [ 23 ] During the Cold Months (roughly November to February), the common areas become intolerably cold. [NAME] report seeing their breath, and frost covers door handles and windows. To cope with the cold, [NAME] and staff wear jackets and gloves while indoors, and [NAME] blow hot air onto their feet with blow dryers, as no space heaters are provided, except for in the SIU. [ 24 ] [NAME] and [NAME]’ affidavits explain that efforts by staff to increase the temperature in the common areas only results in making the cells intolerably hot during the Cold Months. Turning off the heat makes both the common areas and cells unbearably cold. [NAME] states that in December 2021 and January 2022, the temperature in the common area would be around 15-16°C, while the temperature in her cell would be around 28-29 °C. [ 25 ] To prevent cold outdoor air from drafting into the common area during the Cold Months, [NAME] would put towels and maxi-pads at the bottom of the fire doors, until correctional staff directed them to be removed. [ 26 ] [NAME] say that the extreme high temperatures in [NAME] during the Hot Months cause them to suffer from several symptoms, including excessive sweating, discomfort, difficulty sleeping, exhaustion, exacerbated depression or anxiety and emotions of fear, hopelessness, frustration and anger. The [NAME] report the heat being particularly bad when they are locked up in their cells at night, as there is little to no airflow. [NAME] recalls using the panic button in her cell some nights, as she would suffer panic attacks from the heat. She also recalls an instance around April 2022 when another [NAME] in [NAME] had an asthma attack that she believes was caused or aggravated by the heat. [NAME] also reports often having panic attacks “due to being trapped in my cell with no way to cool myself down” and witnessing another woman having a panic attack in their cell due to the heat. [ 27 ] The [NAME] say they have made several verbal complaints, written requests, and grievances about the heating and cooling problems, and that staff repeatedly told them it was a known issue with [NAME]. [ 28 ] [NAME]’s affidavit also attaches two memoranda written by [NAME] which the Applicant argues corroborate the [NAME]’s evidence about the excessively high temperatures in [NAME]. One is dated July 2020 and states: It is that time of year again where [NAME] becomes unbearably hot . After 2200 count, please open the food slot to cell 155 to assist in air circulation. The food slot can remain open for the duration of the night and closed on the 0700 deister walk. [emphasis added] [ 29 ] Another memorandum, addressed to the [NAME] on [NAME], with the subject line “heat issues on the unit” dated April 2022 says that if “the unit is exceptionally hot, the fire door [NAME] be opened to alleviate the heat.” [ 30 ] The record also includes affidavit evidence from [NAME]. [NAME] is a Regional Advocate with the Applicant. She has worked for the [COMPANY] since 2004 and held the position of Executive Director since 2008. She was not cross-examined. [ 31 ] Since 2004, [NAME] has visited [NAME] multiple times a year. She first heard about the excessively hot temperatures in [NAME] in about 2004. In the wintertime of 2004, she personally experienced excessively cold temperatures in [NAME]. On one occasion she could see her breath and had to wear her jacket to stay warm. She affirms that based on her visits to [NAME] from 2004 to the present, and from speaking with the [NAME], the conditions of incarceration in [NAME] have not improved. [ 32 ] Several letters from [NAME] to the [NAME] spanning from 2012 to 2018 outline concerns with the extremely high temperatures in [NAME] are attached to her affidavit. No responses were provided to these letters. (2) [NAME] [ 33 ] [NAME], Acting Assistant Warden, Management Services for [NAME] at [NAME], swore an affidavit and was cross-examined by the Applicant. Previously, [NAME] was the Chief of Administrative Service at [NAME]. He was responsible for overseeing grievances. [ 34 ] [NAME]’s affidavit explains that [NAME] file complaints under the offender complaint and grievance process. The process has three levels: [NAME] renders decision within 15 working days (high priority) or 25 working days (routine); Initial Grievance (if [NAME] unsatisfied with Written Complaint) – [NAME] renders decision within 15 working days (high priority) or 26 working days (routine); and Final Grievance (if [NAME] unsatisfied with Initial Grievance) – [NAME] renders decision within 60 working days (high priority) or 80 working days (routine). [ 35 ] If an [NAME] is not satisfied with the outcome of the Final Grievance, they [NAME] seek judicial review. [ 36 ] Separate from the grievance process, [NAME] can make written and oral requests to staff members to adjust the temperature. These are referred to the [NAME] Department. [ 37 ] [NAME]’s affidavit attaches her temperature related written [NAME] requests, grievances, and complaints to the Office of the Correctional Investigator [[NAME]]. These include the following: March 2021 notes from the [NAME] regarding a complaint made by [NAME] about the excessive heat in [NAME]. Her complaint is summarized as follows: During the heat wave of last year, their cell temperature were sitting at 34 o C. During the winter, the cell temperature is sitting at 26 o C. IM [[NAME]] states they have submitted a complaint regarding the cell temperature, and all the girls on the pod signed off on it. On Feb 22, 2021, the Assistant Warden and the Warden were supposed to meet with them to address their concerns. The meeting was cancelled … The hot temperature in her cell is affecting her sleep and her mental health. She wants to know what is humanly acceptable for a cell temperature. IM states she has three fans and the window open and still this doesn't help, as the ceilings are heated. She states even when they come and test the temperature, it's not accurate, as the doors have been opened and closed, allowing air to circulate. It's at night, when they are locked up for more than 8 hours, that it really becomes unbearable. She has spoken to mental health about this, and the have followed up with the CM, and the CM is not willing to do anything. They have allowed her to open her food slot to let air in, but still this doesn't make much of a difference. For her, it's worse because she is double bunked. Under the heading “Resolution”, it states that the [NAME] has followed up with [NAME] management and “a plan has put in place to mitigation the level of heat in the [NAME]. We will continue to monitor in the upcoming months – We have also requested that heat readings be shared with our office”. A Written Complaint filed in March 2021 by a group of [NAME] in [NAME], including [NAME], about the excessive heat. This complaint proceeded through all three levels of the grievance process. A Final Grievance was denied by [NAME] in February 2023. A July 2020 Written Complaint with respect to alleged “inhumane” heat in the [NAME]. A January 2022 Written Complaint followed by a related Initial Grievance by a group of [NAME] in [NAME] about the excessively cold temperatures on the pod and the excessively high temperatures in the cells which was interfering with sleep. In April 2022, [NAME] denied the Initial Grievance. Amongst other things, it refused to provide the temperature logs requested by the [NAME], stating there were no recorded logs because temperatures were all within “CCOHS standards” . Screens on the [NAME] windows were cleaned in an attempt to improve airflow. Temperatures readings for one day in April 2022 for [NAME] cells were provided showing temperatures between 21.2 and 23.3°C. Numerous other written temperature related [NAME] requests were filed by [NAME] between July 2020 to April 2022. [ 38 ] [NAME]’s affidavit also attached her heat related [NAME] requests: She filed two separate Written Complaints in July 2018, about the excessive heat in the [NAME]: one complaint asked for A/C and the other asked for more fans. [NAME]’s responses just over a month later cite the [NAME]’s prohibition of A/C in [NAME]-occupied areas, and say that “[NAME] is working diligently to address the heat issues in the [NAME] unit” . She submitted two [NAME] requests in March 2019: one request asked [NAME] to turn off the heat in the [NAME] cells as it was too hot, and in the other she sought permission for a second fan in her cell, which was denied. [ 39 ] [NAME]’ affidavit reports making verbal complaints about the temperature to staff. [ 40 ] In addition to the complaints and grievances filed by the [NAME] affiants, are numerous temperature related complaints and grievances filed by other [NAME] in [NAME] spanning from 2005 to 2022. These are discussed in the section below. (3) [NAME], Internal Emails, [NAME] [ 41 ] The Applicant filed an affidavit sworn by a legal assistant, [NAME] [[NAME]]. The [NAME] serves the primary purpose of attaching two batches of documents that Applicant’s counsel obtained via access to information requests to [NAME] and the [NAME] [ATIP Documents]. The ATIP request asked for all grievances and complaints by any [NAME] related to heating and cooling from January 1, 2005 to the present. Responses to the ATIP request were provided from [NAME] in February 2023, and from the [NAME] in March 2023. [ 42 ] The ATIP Documents consist of [NAME] complaints and grievances (the content of which is redacted), [NAME]’s response to those grievances, some internal emails between [NAME], and notes from the [NAME]. Overall, the ATIP Documents include more than 32 [NAME] written complaints and grievances about extreme temperatures in [NAME]. This total is in addition to [NAME]’s Written Complaints and grievances summarized above. [ 43 ] The Respondent contests the admissibility of these ATIP Documents, in which [NAME] at times recognize that the heating system in [NAME] “does not appear to be adequate for Edmonton weather,” that “the heat in the max unit is unbearable,” that the [NAME]’ complaints are “quite founded” [translation from French], that the unit, as constructed, cannot cool at night after several days of hot weather, that the units remaining “very hot, especially [NAME]” is aggravating tensions in [NAME], and that “until the infrastructure changes, the reality is the heat will continue to be an issue.” [ 44 ] The ATIP Documents also show [NAME] repeatedly concluding and communicating to [NAME] via grievance responses that the [NAME], sometimes referred to as the “National Directive,” prohibits institutions from providing A/C in [NAME]-occupied areas. [ 45 ] The Respondent’s position is that the ATIP Documents are hearsay and run afoul of Rule 81(1) of the Federal Courts Rules , SOR/98-106. The admissibility of the ATIP Affidavit is discussed below, in the analysis section. (4) [NAME]’s Response to Temperature Concerns [ 46 ] Evidence about [NAME]’s response to the temperature concerns is included in the [NAME] affidavits, and affidavits sworn by [NAME]’s Supervisor of [NAME], and [NAME]. The Applicant cross-examined [NAME] and [NAME]. [ 47 ] [NAME]’s affidavit speaks to the monitoring of temperatures in [NAME]: A [NAME] worker routinely checks the temperatures on offender occupied areas of the [NAME] once or twice a day, at least five days a week, with an infrared thermometer device and an air quality temperature measurement device. As much as possible, the [NAME] department endeavors to keep the temperatures of the offender areas, including cells and common areas, within the Canadian Centre for Occupational Health and Safety (CCOHS) standards for thermal comfort in an office environment, being a range of 23-26 degrees Celsius in the summer, and 20-23.5 degrees Celsius in the winter. If a temperature reading comes back outside of the applicable range, the [NAME] department will diagnose the problem and action it as appropriate. [ 48 ] In cross-examination he said that, although his team routinely checks the temperature, they do not keep a log of the temperatures. This is because he was never directed to write them down and is not required by any policy to do so. [ 49 ] Evidence included with [NAME]’s affidavit shows that in 2021 the [NAME] asked [NAME] to share temperature readings from [NAME]. There is no evidence that temperature readings were ever shared with the [NAME] as requested. [ 50 ] [NAME]’s affidavit provides information about [NAME]’s heat mitigation strategies. It notes that each [NAME] is permitted to purchase a small personal fan, can access cold showers during heat waves except during lock-up, are provided with cold water and ice to soak towels, and are permitted to wear minimal clothing. He states that each cell has a window that can open and curtains that can be closed. [ 51 ] [NAME]’s affidavit also speaks to additional measures that he said [NAME] intends to take for the summer of 2024 (his affidavit was sworn on July 11, 2024), including: cool-down zones in the programming rooms in [NAME]; [NAME] who have medical conditions which make them vulnerable to extreme heat can request special approval for a portable A/C unit; [NAME] plans to order new heat-reducing curtains for the cells on [NAME]. [ 52 ] During his cross-examination (which took place in October 2024) [NAME] stated that the cool-down zones were not sufficient, so they brought portable A/C units into the common areas in [NAME]. No A/C was provided in the cells. [ 53 ] With respect to the option for [NAME] to make a special request for an A/C unit, there is no evidence that this new policy was ever communicated to [NAME]. [NAME] testified that [NAME] had not received any [NAME] requests for an A/C unit. He said that any such request would need to be approved by National Headquarters but was otherwise unsure of the process involved or what types of health conditions might qualify. [ 54 ] [NAME]’s affidavit did not attach any document outlining this new approach for the summer of 2024, although he acknowledged that such a document exists. [ 55 ] One affiant [NAME] reports that correctional staff would, from time to time, take the temperature in [NAME]. They recall correctional staff taking the following steps to address their concerns about the temperature: permitting [NAME] to purchase of one handheld fan, which [NAME] say is not effective as it only pushes around the hot air; placing an industrial sized fan in a metal cage bolted to the floor in the common areas of each pod, which had little to no effect on cooling down the cells. placing a 2-foot-tall humidifier/cooling tower in each pod, which the [NAME] say did nothing to reduce the heat (these have since been removed); for a short period of time, opening the door to the [NAME] to cool it down, but this practice was eventually stopped due to security concerns; for a short period of time, permitting food slots on cell doors to remain open for air circulation, although this practice was eventually stopped due to security concerns; and [NAME] were supposed to have curtains on their cell windows to block the sun, but often the curtains were missing or too small to cover the window. [ 56 ] [NAME] was at times permitted to take cold showers during the night to cool down. After repeated complaints including to the [NAME], a large fan was placed outside her cell door which pushed air through the cracks. She does not know of any other [NAME] were provided with the same privileges. (5) The Heating Systems in [NAME] [ 57 ] [NAME]’s Supervisor of [NAME], swore an affidavit in July 2024 and was cross-examined by the Applicant in October 2024. He explains how the heating system works and confirmed there is no built-in cooling system in the [NAME]-occupied areas of [NAME]. [ 58 ] He describes that the cells in [NAME] are heated in two ways: by an in-slab boiler system, which runs heat through the ceilings of all the cells, and by an HVAC system. [ 59 ] [NAME] confirmed that the cells in [NAME] do get hot, and that the [NAME] is probably the worst. While he said that the common areas have reached into the high 20’s, he disputed that they have ever reached the low 30's. He wasn’t sure how hot the cells get. With respect to the Cold Months, [NAME] agreed that the fire exit doors leading outside of the pods can at times freeze over. [ 60 ] When asked about the possibility of installing A/C, he advised that in the summer of 2024 temporary portable A/C units were placed in the common areas of the pods, as the temperature had reached over 30°C. This method was somewhat effective, but the cool air did not reach the entire common area, nor the cells. [ 61 ] When asked why [NAME] has not installed A/C in the [NAME] occupied areas, he said this was because of [NAME]’s reading of the [NAME]. He stated that whether these areas can have A/C is not within his control – “it is [NAME] that has to say whether they can be put in or not” . When asked whether [NAME] has ever requested funding to install A/C coils into the existing fans, or permission from National Headquarters to install A/C in [NAME] answered that he did not know. [ 62 ] Beginning in 2022, [NAME] oversaw upgrades to [NAME]’s building management system [BMS]. He said the BMS upgrades allow him to better monitor and control the heating systems. [ 63 ] However, [NAME] conceded on cross-examination that adjusting the temperatures using the existing equipment has little to no effect on reducing heat – in his own words: You can’t really adjust any cooler if there’s no A/C. An A/C is the only way you’re going to cool off a building. Adjusting the heat down on a hot day is not going to make a difference. There should be no heat going anyway. Just the vents and the fans -- you just have your fans running. That’s all we’re doing, is moving fresh air in. And, [The BMS upgrades will not help with managing hot temperatures] because there’s no way of cooling off the pods or cooling off the common areas, because it’s not a -- it’s not attached to an A/C unit, as per se, to do that. The only air -- the heat is usually shut off through the summer and it’s an HVAC clean airflow bringing in. Like, that’s all it is. Its just an HVAC unit blowing air. It’s not an A/C unit. [ 64 ] Therefore, while the improved BMS might allow the [NAME] Department to manage the colder temperatures, the upgrades will have no effect on the department’s ability to cool down the temperature in [NAME], because the only way to do so would be through an A/C system, which does not exist. [ 65 ] At the time of [NAME]’s cross-examination in October 2024, the BMS upgrades to the heating systems had yet to be tested – he stated he would know about their effectiveness in the coming winter. Neither party has adduced any evidence about whether the BMS upgrades were effective in addressing the excessively cold temperatures as anticipated.

III. ISSUES [ 66 ] The Applicant argues that [NAME]’s failure to manage the temperatures in [NAME] is a breach of its statutory duty under the CCRA and the [NAME] , SOR/92-620 [CCRR]. The central question is whether the [NAME] has complied with its statutory duty under s. 70 of the CCRA. Section 70 provides as follows: Living conditions, etc. 70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of [NAME] and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity. Conditions de vie 70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des [NAME] et les conditions de travail des [NAME] soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine. [ 67 ] The Applicant further argues that the conditions in [NAME] violate the [NAME]’s [NAME]. [ 68 ] In addition, the Respondent raises a host of preliminary issues including the admissibility of the ATIP Documents, the Applicant’s standing, mootness, and the existence of an adequate alternative remedy. [ 69 ] I frame the issues as follows:

1) Does the Applicant have public interest standing? 2) Are the ATIP Documents appended to the [NAME] admissible? 3) Is the offender grievance process an adequate alternative remedy? 4) Standard of review 5) Substantive issues: Is [NAME]’s management of the temperatures in [NAME] a breach of its duty under the CCRA? [NAME]’s management of the temperatures in [NAME] breached [NAME]’ ss. 7, 12 or 15 [NAME] under the Charter ? 6) What is the appropriate remedy? [ 70 ] I consider the question of mootness under the substantive issues.

IV. ANALYSIS A. [NAME] has Public Interest Standing [ 71 ] The Respondent argues that the Applicant has no public interest standing. [ 72 ] The test for public interest standing was set out in Canada ([NAME]) v [NAME] Workers United Against Violence Society , 2012 SCC 45 at para 37 [ [NAME] ]: In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts [citations omitted]. [ 73 ] These three factors should be applied in a purposive and flexible manner: [NAME] at paras 36-38. They “should not be viewed as items on a checklist or as technical requirements. Instead, the factors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes” : [NAME] at para 36. (1) Serious and Justiciable Issue [ 74 ] To constitute a serious or important issue the claim must be “far from frivolous” [NAME] at para 42. The criterion of “seriousness” aims at screening out the “mere busybody” : British Columbia ([NAME]) v Council of Canadians with Disabilities , 2022 SCC 27 at para 48. [ 75 ] I find that there is a serious issue in this application; namely, the [NAME]-standing concerns about extreme temperatures at [NAME]. The Applicant’s allegation that [NAME] has failed to meet its obligation under s. 70 of the CCRA is far from frivolous. [ 76 ] The Respondent argues the issues raised are not justiciable. It submits that the Applicant has failed to challenge any specific administrative decision or continuing course of conduct flowing from a decision, and so there is nothing for the Court to assess on a standard of reasonableness. [ 77 ] I agree with the Applicant that the issues raised in this application are justiciable; namely, the alleged failure of [NAME] to meet its statutory obligation to [NAME] pursuant to s. 70 of the CCRA. Under review is [NAME]’s continuing course of conduct, or alleged continued inaction, spanning many years, to meet its statutory duty. [ 78 ] The Federal Court of Appeal has repeatedly confirmed that this [NAME] review the conduct of an administrative body in matters that fall short of formal decisions or orders: [NAME] v Canada ([NAME]) , 2024 FCA 128 [ [NAME] ] at paras 18-19; Canada (Citizenship and Immigration) v Canadian Council for Refugees , 2021 FCA 72 [ Canadian Council for Refugees ] at para 94, citing [NAME] v Toronto Port Authority , 2011 FCA 347 at paras 24-25. Reviewable “matters” include “a policy or course of conduct” : [NAME] v Canada (Health) , 2018 FC 380 at para 157; [NAME] v Canada (CA) , 1999 CanLII 9338 (FCA) at paras 23-24; [NAME] v. Canada (Minister of Citizenship and Immigration) , 2000 CanLII 17125 (FC), [2000] 3 FC 532 at paras 29 to 31. [ 79 ] The Respondent’s insistence on the existence of an “administrative decision” or a “continuing course of conduct flowing from a decision ” (emphasis added) ignores the wording in ss. 18.1(3)(a) and 18.1(4)(f) of the Federal Courts Act . Section 18.1(3)(a) empowers the Court “to order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has delayed in doing ” (emphasis added). Further, s. 18.1(4)(f) allows the Court to grant relief where satisfied that the federal board, commission or tribunal “acted in any other way that was contrary to law.” [ 80 ] The Federal Court of Appeal has confirmed that allegations that a public officer has failed to discharge a duty imposed upon them by law is a matter that is amenable to judicial review: [NAME] v. Canada ([NAME]) , 2016 FCA 182 at para 30. This is precisely what is at issue in the present application. [ 81 ] Conduct falling short of a final decision must have the potential to affect legal [NAME], impose legal obligations, or cause real prejudicial effects in order to be reviewable: [NAME] at para 19, citing Canadian Council for Refugees at para 94. That threshold is met here. [NAME]’s alleged failure to take all reasonable steps to ensure a safe and healthful environment at [NAME], contrary to its obligations under s. 70 of the CCRA, has the potential to affect the [NAME] of [NAME] and cause them prejudice. The evidence shows that the extreme temperatures in [NAME] cause physical and mental suffering. [ 82 ] Importantly, and contrary to the Respondent’s oral argument that an application for judicial review can only be about the state of affairs in the “here and now,” this Court in [NAME] v Canada (Health) , 2017 FC 682 at paragraphs 9-10 rejected the suggestion that a “course of conduct must be on-going at the time that an application for judicial review is heard” to be reviewable (para 28). [ADDRESS] found there was no authority to support this proposition and was therefore “not prepared to accept such a narrow construction of ‘continuous course of conduct.’ To do so would permit a federal board, for example, to evade the Court’s scrutiny of a [NAME]-standing course of conduct by merely ceasing the course of conduct days before the hearing” (para 28). This proposition was affirmed by the Federal Court of Appeal in [NAME] v [NAME] , 2021 FCA 123 at para 35. [ 83 ] Therefore, the temporary measures taken by [NAME] in the summer of 2024 – only after this application was filed – do not insulate its conduct from judicial review. The broader matter of [NAME]’s management of extreme temperatures in [NAME], dating back more than a decade, is justiciable. (2) Genuine Interest [ 84 ] The Respondent asserts the Applicant does not have a real stake or genuine interest in the issues raised because the Applicant has not directly sought any relief from the [NAME] and has not sought standing to raise a complaint under the grievance process. The Respondent also notes that the Applicant last raised concerns about temperatures in [NAME] in July 2018, in its letter to the Warden. I disagree. [ 85 ] Taking a broad and purposive view of the question at bar, it is clear that the Applicant has a genuine interest in matters concerning the conditions of incarcerated women and gender diverse individuals. The Applicant has referred the Court to prior litigation it has brought for the benefit of incarcerated people: see e.g., [COMPANY] and [NAME] v [NAME] , 2019 CHRT 30; [COMPANY] v Canada (Public Safety) , 2010 FC 470. A history of advocacy has proved persuasive for courts considering the issue of genuine interest: see e.g., [NAME] v [NAME] , 2022 NBQB 164 at paras 23-30. [ 86 ] Further, as acknowledged by the Respondent, the Applicant has in fact sought relief from the Warden at the [NAME]. [NAME] sent several letters the EFIW spanning from 2012 to 2018. The uncontested evidence before me is that [NAME] never responded to these letters. [ 87 ] Based on the foregoing, I find that the Applicant has established it has a real stake and genuine interest in the issues raised in this Application. (3) Reasonable and Effective [ 88 ] The SCC in [NAME] cautioned against an overly strict or rigid application of the third factor for public interest standing, and encouraged a more flexible, practical and pragmatic approach (paras 45-50). It also set out the following list of illustrative, but non-exhaustive, factors to take into account (para 51): The court should consider the plaintiff’s capacity to bring forward a claim. In doing so, it should examine amongst other things, the plaintiff’s resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed factual setting. The court should consider whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action. Courts should take into account that one of the ideas which animates public interest litigation is that it [NAME] provide access to justice for disadvantaged persons in society whose legal [NAME] are affected. Of course, this should not be equated with a licence to grant standing to whoever decides to set themselves up as the representative of the poor or marginalized. The court should turn its mind to whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. Courts should take a practical and pragmatic approach. The existence of other potential plaintiffs, particularly those who would have standing as of right, is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities… The potential impact of the proceedings on the [NAME] of others who are equally or more directly affected should be taken into account. Indeed, courts should pay special attention where private and public interests [NAME] come into conflict. As was noted in [NAME] v. [NAME] ([NAME]) , 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, at p. 1093, the court should consider, for example, whether “the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints” . The converse is also true. If those with a more direct and personal stake in the matter have deliberately refrained from suing, this [NAME] argue against exercising discretion in favour of standing. [ 89 ] The mere existence of more directly impacted individuals does not preclude a finding of public interest standing, particularly where the directly affected individuals cannot, “practically speaking,” bring a challenge of their own, or are “unlikely in practical terms to bring the type of challenge brought by the [public interest] plaintiff” : [NAME] at para 47. [ 90 ] In my view, the balance of the foregoing factors favours granting the Applicant public interest standing. [ 91 ] The Applicant in this matter has far greater capacity, including resources and expertise, to present a “sufficiently concrete and well-developed factual setting” about the temperature conditions in [NAME] over the span of two decades. [ 92 ] There is no question that the [NAME] are disadvantaged persons whose legal [NAME] are affected; granting the Applicant public interest standing will serve to provide them access to justice, which appears to have evaded them despite their repeated efforts through the [NAME] complaint and grievance process. [ 93 ] The Respondent heavily emphasizes the existence of the grievance process, and says that until it is exhausted, it is an absolute bar to judicial review. I disagree; this is the type of inflexible, “binary, yes or no, analysis” which the SCC in [NAME] cautioned against at para 50. [ 94 ] [NAME] tells us that, when the Court “turn[s] its mind to whether there are realistic alternative means which would [be] more efficient and effective…the practical prospects of [those who have standing as of right] bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities” (para 51). [ 95 ] Practically speaking, a challenge to the temperature conditions in [NAME] of the nature currently before the Court is unlikely to ever be brought by [NAME]. Their stays in [NAME] or in the [NAME] are often transitory in nature. As well, the Respondent can address an individual griever’s circumstances – as they did with [NAME] for example – without addressing the unit-wide temperature problem. This gives rise to a realistic concern about mootness as a barrier to judicial reviews of final grievances. Indeed, in this very application the Respondent appears to forget that the [NAME] are not themselves the applicants, and argues that this matter is moot as none of them are currently being housed in [NAME]. The Respondent has foreshadowed the type of argument it would make that necessitates a [NAME] to take up the [NAME]’ cause. [ 96 ] With respect to the Respondent’s concern for judicial economy, a single application dealing with a unit-wide issue is a more efficient and effective approach than the alternative – which is to have each [NAME] go through three levels of grievance and then bring a multiplicity of judicial reviews of final grievance decisions concerning the same problem in [NAME]. [ 97 ] Furthermore, a judicial review brought by an [NAME] would not “present a context more suitable for adversarial determination” : [NAME] at para 51. The present application allows for a more global understanding of the temperature conditions in [NAME] over many years, the extent to which it is having an effect on [NAME], and [NAME]’s efforts to try to mitigate the issue over the years. Judicial reviews of Final Grievances brought by an [NAME] would not provide the Court with the record it now has to consider the issue, with evidence spanning about eighteen years from several [NAME] and [NAME] about what is ultimately an institutional building design issue, not an issue particular to any [NAME]. [ 98 ] The discretionary issue of standing ought to be approached generously and not by applying the reasonable and effective means aspect mechanically or as a technical requirement: [NAME] at para 48. Given the totality of the circumstances, including the [NAME] history of complaints by [NAME], none of which has succeeded in prompting a durable unit-wide solution to the asserted temperature problems in [NAME], I would grant public interest standing to the Applicant.

I therefore conclude that this application, “in all of the circumstances, [is] a reasonable and effective means” of bringing the matter of temperature control in [NAME] before the Court: [NAME] at para 52. B. Admissibility of ATIP Documents [ 99 ] The Respondent submits that the ATIP Documents are not admissible because they are beyond the deponent’s personal knowledge (see Rule 81(1)), and constitute hearsay evidence. [ 100 ] The Applicant submits that the ATIP Documents fall under the principled exception to the hearsay rule or the public documents exception. The Applicant asks the Court to adopt a flexible approach to the evidentiary issue, underlining that no certified tribunal record was filed pursuant to Rule 317 as there is no discrete administrative decision under review. [ 101 ] I agree with the Applicant that in these circumstances a degree of flexibility is called for in considering the evidentiary issue. [ 102 ] Rule 81(1) sets out the [NAME] requirement that confines the content of an affidavit to the affiant’s personal knowledge. However, this requirement does not necessarily exclude hearsay evidence when such evidence is deemed reliable and necessary: [NAME] v Canada (RCMP Commissioner) , 1993 CanLII 2935 (FCA) [ [NAME] ]. [ 103 ] [ADDRESS]’s treatment of ATIP productions in affidavit exhibits has varied widely, often turning on the particular facts: see, Namgis First [NAME] v. Canada (Fisheries, Oceans and Coast Guard) , 2025 FC 1156 at para 130; [NAME] v Canada , 2020 FC 1019 at para 14; [NAME] v Canada (Fisheries and Oceans) , 2019 FC 143 at paras 278-281; Sierra Club of Canada v Canada (Minister of Finance) , 1998 CanLII 8950 (FC) [ Sierra Club ] at paras 24, 31, 35-37; Canada v [NAME] , 2004 FC 1731 [ [NAME] ] at para 36; [NAME] v. Canada ([NAME]) , 1996 CanLII 20116 (FC) at para 39. [ 104 ] In Sierra Club , this Court followed the Federal Court of Appeal’s decision in [NAME] , where the ATIP documents were found to meet the twin criteria of necessity and reliability (at para 24). In [NAME] , Justice Hugessen concluded that documents belonging to a government body, and the respondent in that case, met the criteria of reliability. Similarly, the ATIP Documents here come from the [NAME] and the [NAME]. On necessity, he stated the following ( Sierra Club at para 24, citing [NAME] at p 376): There can equally be no serious question as to the criterion of necessity in the circumstances. Respondents, by their counsel, had blocked any normal means of access to the material. Even once it was obtained through Access to Information Act proceedings it was hardly realistic to expect appellant's solicitor to approach the various declarants and seek affidavits from them, assuming that he could have done so without committing a serious breach of professional ethics. Their production, by means of the Supplementary Affidavit, was clearly the most practical and convenient way to bring them forward without putting in jeopardy any of the respondent's [NAME] to reply or explain if they wished to do so. [ 105 ] Similarly, this Court in Canada v [NAME] , 2004 FC 1731 [ [NAME] ], relied on [NAME] to find that documents obtained through an ATIP request from [NAME] were admissible. Specifically, the Court noted that, “[w]hile the preferable and proper route would have been to have the named individuals from [NAME]…swear affidavits…Rule 81(2) provides the option of attaching less weight to affidavits that fail to produce the best evidence” : [NAME] at para 36. [ 106 ] Likewise, the ATIP Documents meet the requirement of necessity: while the Applicant might have theoretically sought the “best evidence” by obtaining an affidavit from the declarants of the statements in the ATIP Documents, it is doubtful such efforts would have been successful. As noted in [NAME] , relying on the ATIP production was the most practical and convenient way of adducing this evidence. The manner in which the evidence was brought before the Court will simply have a bearing on the weight it is attributed. [ 107 ] With respect to reliability, I agree with the Respondent that care must be given to how the ATIP Documents are used. [ 108 ] The ATIP Documents consist primarily of [NAME] complaint/grievance forms and [NAME]’s responses. Also included are some internal emails between [NAME] discussing the temperatures in [NAME]. In terms of the purpose the evidence is being used for, I would draw a distinction between the statements made by [NAME] in their complaints about the temperature on the one hand (which are redacted from the ATIP Documents in any case, and only briefly summarized in the grievance responses), and [NAME]’s responses and internal emails on the other. [ 109 ] Where [NAME] acknowledge that there is a significant temperature problem that they are trying to address, I would consider that the circumstances in which those statements were made lend sufficient credibility to allow a finding of threshold reliability: R v [NAME] , 2006 SCC 57 at para 51 [ [NAME] ], citing R v [NAME] , 2000 SCC 40 at para 217. The circumstances in which the comments from [NAME] arose create no real concern about whether their statements are true: [NAME] at para 62. Put another way, there is sufficient substantive reliability surrounding the [NAME]’s statements responding to and discussing complaints about the heat in [NAME]: R v [NAME] , 2017 SCC 35 at paras 30-31 [ [NAME] ]. [ 110 ] Furthermore, I note that [NAME]’s concerns with excessive heat, as well as the staff’s interpretation of the [NAME] as entirely determinative of installing A/C in [NAME]-occupied areas, is corroborated by the evidence from the [NAME] affiants, as well as the evidence from [NAME] and [NAME] in their cross-examination. [ADDRESS] is permitted to rely on corroborative evidence to establish threshold reliability of hearsay evidence: [NAME] at para 38. In this case, the corroboration of the “unbearable” heat conditions in [NAME], as well as [NAME]’s interpretation of the [NAME], work in conjunction with the trustworthy circumstances in which those hearsay statements were made, to provide sufficient substantive reliability to the hearsay evidence: [NAME] at para 47. [ 111 ] The Supreme Court of Canada in [NAME] was careful to distinguish between threshold and ultimate reliability: [NAME] at paras 39-40. Given the foregoing analysis, I consider the ATIP Documents to meet the requirements of threshold reliability. However, their ultimate reliability is diminished somewhat as [NAME] cannot swear to the truth of their contents, nor can the declarants be cross-examined. [ 112 ] I therefore conclude that the ATIP Documents are admissible. C. Adequate Alternative Remedy [ 113 ] The Respondent submits that the offender complaint and grievance process, under the s. 90 of the CCRA and sections 74 to 82 of the CCRR, provides an adequate alternative remedy and that this process ought to have been exhausted prior to seeking recourse before this Court. [ 114 ] The Federal Court of Appeal explained the doctrine of adequate alternative remedy in Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc , 2013 FCA 250 at paragraph 86: Administrative law cases and textbooks express this principle in many different ways: adequate alternative forum, the doctrine of exhaustion, the doctrine against fragmentation or bifurcation of proceedings, the rule against interlocutory judicial reviews and the rule against premature judicial reviews. They all address the same idea: someone has rushed off to a judicial review court when adequate, effective recourse exists elsewhere or at another time. [ 115 ] The Applicant acknowledges that the grievance procedure is normally a prerequisite to judicial review but argues that in the particular circumstances of this case that this process is not an adequate alternative remedy and there are exceptional circumstances that justify bypassing it. [ 116 ] The arguments raise two issues to be determined: (a) is the offender grievance process an adequate alternative remedy in the circumstances of this case; and, if it is, (b) are their exceptional circumstances that justify by passing the grievance process. [ 117 ] My conclusions are as follows: a) The grievance process is an adequate alternative remedy to manage low temperatures in [NAME] and there are no exceptional circumstances to warrant bypassing the process; b) The grievance process is not an adequate alternative remedy to manage excessively high temperatures in [NAME]. It is therefore unnecessary to consider whether there are exceptional circumstances to bypass the grievance process. (1) Legal test [ 118 ] In Canada v [COMPANY] , 2010 FCA 61, the Federal Court of Appeal ruled that absent exceptional circumstances, courts should not entertain a judicial review until all adequate alternative processes are exhausted (at para 31). [ 119 ] Subsequently, the Supreme Court of Canada in [NAME] v. Canada ([NAME]) , 2015 SCC 37 [ [NAME] ], provided direction on how to determine if an alternative remedy is in fact adequate. “[T]he Supreme Court entrusted judges with a wide discretion to decide whether an alternative remedy is adequate in the circumstances” : [COMPANY]. v. Canada ([NAME]) , 2026 FC 10 at para 40. The question is whether the alternative remedy is adequate in all the circumstances to address the applicant’s concern: [NAME] at para 42. [ADDRESS] outlined several non-exhaustive factors to consider in assessing the viability of an alternative remedy (at para 42). These include: the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources and cost. [ 120 ] [ADDRESS] further explained, at paragraphs 43 and 44: Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: [NAME] , at para. 36; TeleZone, at para.

56. As [NAME]. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant . . .” ( Canada ([NAME] ), at p. 96). This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue…. [ 121 ] This approach was recently reiterated by the Supreme Court in [NAME] v. [NAME] , 2024 SCC 8 [ [NAME] ] at paragraph 56. [ 122 ] The Respondent emphasizes that this Court has frequently exercised its discretion to dismiss judicial reviews brought by [NAME] who have failed to exhaust the grievance process. The cases relied on by the Respondent include challenges to an [NAME]’s security classification ( [NAME] v [NAME] , 2014 FC 212 [ [NAME] ] at para 17; [NAME] v. Canada ([NAME]) , 2011 FC 1149 at para 28 and 33-34; [NAME] v Canada , 2022 FC 1462 at paras 22-29; [NAME] v Canada , 2020 FC 345 at para 23); the suspension and termination of two [NAME]’ work placements ( [NAME] v Canada , 2011 FC 1495 at para 45); an [NAME]’s access to particular medical treatment ( [NAME] ; [NAME] v Canada , 2016 FC 187 at paras 19-26); and, the denial of certain procedural [NAME] to an [NAME] in segregation ( [NAME] v Canada , 2018 FC 40 at paras 14-17). (2) Application of the legal test [ 123 ] I turn now to the balancing exercise called for in [NAME] to determine whether the offender grievance process provides an adequate alternative remedy to address extreme temperatures in [NAME]. [ 124 ] As directed in Stickland , the purpose and policy considerations of the grievance process must be considered. [ 125 ] The purpose of the grievance process is to provide a “fair and expeditious resolution of offender complaints and grievances at the lowest possible level in a manner that is consistent with the law” : Commissioner's Directive 081; CCRA at s. 90. “The process allows [NAME] to pursue any complaint up the successive administrative rungs of [NAME] so that supervisors are reviewing the actions of their subordinates” : [NAME] v. [NAME] , 2005 SCC 82 at paras 56-57. [ 126 ] There are strong policy reasons for the [NAME] rule requiring [NAME] to exhaust the internal grievance process. First, “to hold otherwise is to undermine the legitimacy of alternative remedies by assigning them to a secondary position” : [NAME] v. Canada ([NAME]) 2000 CanLII 17154 (FC) [ [NAME] ] at para 10. Second, there are generally practical benefits to the grievance process. These benefits include timeliness, [NAME]’s familiarity with the unique [NAME] environment, and economy: [NAME] at para 10.

Accordingly, Courts are usually reluctant to interfere in the offender grievance process: [NAME] v ([NAME]) , 2007 FC 1058 [ [NAME] ] at para 26. [ 127 ] With this jurisprudence in mind, and based on the record, I conclude that the [NAME] complaint and grievance processes is capable of providing adequate recourse for excessively cold temperatures in [NAME]. Overall, there are relatively few complaints about cold temperatures. More often than not, these complaints appear to have been resolved in a reasonably timely way, albeit perhaps not to the complete satisfaction of all [NAME]. Importantly, the evidence shows that the building equipment in [NAME] allows staff to increase the temperature when it is too cold. [ 128 ] The same cannot be said for complaints about excessive heat in the [NAME]-occupied areas of [NAME]. [ 129 ] The grievance process is designed to address an “[NAME]’s dissatisfaction with an action or a decision by a staff member” : CCRR, s. 74(1). The evidence suggests that the high temperatures in [NAME] are due to the inability of the building equipment to cool the indoor temperature. The root of the concern lies in the existing building structure and equipment, not about a particular decision by a staff member. The institutional nature of the concern in the present case distinguishes it from the cases cited by the Respondent, which challenge decisions made with respect to [NAME], such as a security classification or a job placement. In short, the grievance process is fundamentally ill-equipped to address inadequate climate control equipment, and I am not satisfied that the grievance process was intended or designed to address such issues. [ 130 ] In these circumstances, the usual practical advantages of the grievance process—such as timeliness, cost-effectiveness, and [NAME]’s expertise—are not realized. The record before me demonstrates that [NAME] requests, complaints and grievances about excessive heat have been ongoing and numerous, dating back to at least 2011 and yet there is still no durable solution. The best that can be expected from the grievance process is an individual accommodation of the griever, leaving the remainder of the [NAME] and staff in [NAME] to suffer through the heat. [ 131 ] I am satisfied that the economical use of judicial resources and costs favours a single application dealing with a unit-wide equipment issue, as opposed to processing potentially numerous judicial reviews arising from multiple grievances. [ 132 ] Furthermore, a challenge to the temperature conditions in [NAME] of the nature currently before the Court is unlikely to ever be brought by [NAME] for the reasons explained above (i.e., mootness, capacity constraints). Many of the considerations under the public standing test are relevant here. [ 133 ] Even if an [NAME] were to bring such an application, the evidence before this Court would be limited to the [NAME]’s grievance file that was before [NAME]: Association of Universities and Colleges of Canada v [NAME] , 2012 FCA 22 [ Access Copyright ]. The present application however allows for longitudinal evidence about both the temperature conditions and the mitigation measures taken by [NAME]. This longitudinal evidence is necessary to consider what is ultimately an institutional infrastructure issue. [ 134 ] The Applicant argues there are excessive delays in the grievance process. Respectfully, delays are not the issue here. The issue is that the grievance process is not designed to address infrastructure limits. [ 135 ] Balancing these considerations, I am satisfied that the grievance process is not an adequate alternative remedy to address the [NAME]’ concerns about excessive heat in [NAME]. Based on the record before the Court, it cannot be said that the grievance process has been effective in resolving the problem: [NAME] v Canada , 2018 SCC 30 [ [NAME] ] at para 84. I am not persuaded that I ought to exercise my discretion to dismiss the judicial review in relation to [NAME]’s management of excessively high temperatures in [NAME]. [ 136 ] However, I conclude that the grievance process provides an adequate alternative remedy to address excessively cold temperatures in [NAME]. Further, the evidence before me falls short of establishing there are exceptional circumstances that justify bypassing the grievance process to address situations where the temperatures in [NAME] are low. As noted above, the evidence shows that the [NAME] request system, along with the complaint and grievance process, while imperfect, appears to have provided an avenue for relief for most cold temperature complaints. This is not the same as the situation in [NAME] , where there was no assurance that complaints of cold temperature would be acted upon by the responsible employee (at para 33).

Accordingly, I exercise my discretion to decline to consider the application as it relates to excessively cold temperatures in [NAME]. [ 137 ] I turn now to the standard of review and the substantive grounds for judicial review raised by the Applicant. D. Substantive Issues [ 138 ] The Applicant raises the following grounds for judicial review: (1) whether [NAME]’s management of the temperatures in [NAME] is a breach of its statutory duty under the CCRA; and (2) whether [NAME]’s management of the temperatures in [NAME] has breached [NAME]’ ss. 7, 12 and 15 [NAME] under the Charter . (1) Standard of Review [ 139 ] With respect to question (1), the Applicant submits that the Court can simply determine [NAME]’s conduct was “unlawful,” and failing this, it says the question is one of reasonableness in meeting s. 70 of the CCRA. [ 140 ] The Respondent submits that the standard of review for question (1) is reasonableness, as nothing displaces the presumption of reasonableness as per Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ] at paras 23, 25. [ 141 ] In determining if the [NAME] has breached s. 70 of the CCRA and whether it has a legal duty to take additional steps to manage the temperatures in [NAME], this Court must undertake a review of [NAME]’s continuing course of conduct. I agree with the Respondent: [redacted] [ 142 ] In considering the Applicant’s request for mandamus there is no applicable standard of review: [NAME] v Canada ([NAME]) , 2024 FC 570 at para 24; [NAME] v Canada (Citizenship and Immigration) , 2023 FC 854 at para 22; [NAME] v. Canada (Royal Canadian Mounted Police External Review Committee) , 2026 FCA 53 at para 42 [ [NAME] ]. [ 143 ] As will be seen in my analysis below, the standard of review for question (2) is of no moment, as question (1) is determinative of this Application. (2) Breach of Statutory Duty [ 144 ] The central question is whether [NAME] has unreasonably failed or refused to take all reasonable steps to ensure safe and healthy temperatures in [NAME] at the [NAME] as required by s. 70 of the CCRA. Section 70 provides: Living conditions, etc. 70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of [NAME] and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity . [Emphasis added] Conditions de vie 70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des [NAME] et les conditions de travail des [NAME] soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine. [ Non souligné dans l’original. ] [ 145 ] The obligation in s. 70 of the CCRA is elaborated on in s. 83(1) of the CCRR: Physical Conditions 83 (1) The Service shall , to ensure a safe and healthful penitentiary environment, ensure that all applicable federal health, safety, sanitation and fire laws are complied with in each penitentiary and that every penitentiary is inspected regularly by the persons responsible for enforcing those laws. [Emphasis added] Conditions matérielles 83 (1) Pour assurer un milieu pénitentiaire sain et sécuritaire, le Service doit veiller à ce que chaque pénitencier soit conforme aux exigences des lois fédérales applicables en matière de santé, de sécurité, d’hygiène et de prévention des incendies et qu’il soit inspecté régulièrement par les responsables de l’application de ces lois. [ Non souligné dans l’original. ] [ 146 ] Based on the record before me, it is not possible to determine whether s. 83(1) has been complied with. The factual [NAME] is lacking. As noted, the evidence is that [NAME] did not log the temperature readings in [NAME]. It is not apparent how a determination on [NAME]’s compliance with s. 83(1) could be made in the absence of temperature readings to compare with the limits prescribed by the applicable health and safety laws. While I am unable to determine if [NAME] complied with s.83(1) of CCRR, the duty imposed on [NAME] by s.83(1) informs the scope of its duty under s.70 of the CCRA. I elaborate on this below. [ 147 ] The Applicant submits that the temperatures in the [NAME]-occupied areas of [NAME] become excessively high to the point of being unsafe and unhealthy, and that [NAME] has failed or refused to take “all reasonable steps” to address the matter. The Applicant relies on the [NAME] to argue that safe temperatures are between 21-23 °C in the summer and 20-23.5 °C in the winter. It further argues that the mitigation measures cited by [NAME] to manage high temperatures have been ineffective. [ 148 ] The Respondent denies that [NAME] gets excessively hot and argues that the [NAME] of temperatures in [NAME] is reasonable. The Respondent relies on efforts by the [NAME] Department to monitor temperatures and recent upgrades to the BMS System. It is submitted that the department endeavors to keep the temperatures in [NAME] within the Canada Occupational Health and Safety Regulations , SOR/86-304 [COHS] standards for an office environment, which is between 23-26 °C in the summer, and 20-23.5 °C in the winter. The Respondent says that if “a temperature reading comes back outside the applicable range, the [NAME] department will diagnose the problem and action it as appropriate.” The Respondent also points to other heat mitigation measures taken by [NAME] (i.e., allowing [NAME] to purchase fans and take cold showers) and argues that steps taken by [NAME] in the summer of 2024, after this Application was filed, have resolved any temperature problem that [NAME] have existed. [ 149 ] Contrary to the Respondent’s position, I find that the evidence clearly establishes the following: a) temperatures in the [NAME]-occupied areas of [NAME] are excessively high at certain times of the year; b) this is a [NAME]-standing issue; and, c) since at least 2012, [NAME] has known that the building design and existing temperature regulation equipment in [NAME] fail to mitigate – or [NAME] actively contribute to – the extremely high temperatures. [ 150 ] The evidence further establishes that the excessive heat is the worst in the [NAME] and in the cells in [NAME]. High temperatures are a problem in the cells in both the Cold and Hot Months but are worse during the Hot Months. This issue is particularly acute during lock-up at night, when there is restricted airflow in the cells for many hours. [ 151 ] The following statements from [NAME] and the [NAME] support these findings: [NAME] stated during his cross-examination that the cells in [NAME] get hot and that the [NAME] is the worst. [NAME] acknowledged during his cross-examination that A/C was installed in 2021 in the central rotunda area in [NAME] (where [NAME] work), in part, because of complaints from staff about unsafe working conditions. A statement from the [NAME] in response to [NAME] complaints in the summer of 2020 about the high temperatures in [NAME] provides: “Conditions of confinement, such as the reported excessive heat within the [NAME] unit has been an on-going subject of conversation at the [NAME].” Internal emails between [NAME] in the summer of 2020, say there have been several [NAME] complaints about the heat in [NAME] and that its Warden and Assistant Warden have confirmed the heat is “unbearable” . It is described as a recurring problem. [NAME] has taken steps to try to mitigate the heat, but no viable solution was found. A “national directive” (the [NAME]) that prohibits A/C in living units is cited as a barrier to solving the problem. Memoranda from April and July of 2020 appended to [NAME]’s affidavit, authored by [NAME], refer to “that time of year again where the [NAME] becomes unbearably hot” and “heat issues on the unit” . Emails between [NAME] employees from July 2012 include statements such as the “issue seems to be more significant than fans. The [NAME] in particular gets extremely hot” which aggravates tensions in [NAME]. A Chief Engineer for [NAME] states that after several days of hot weather [NAME] cannot cool down at night, that the system is operating as designed and installed, and there is no method with the existing system to have fresh air enter without going through the heat exchange. [NAME] confirmed during his cross-examination this was an accurate description of how the equipment in [NAME] worked. In response to [NAME] complaints about the “heat problem” in August 2012, [NAME] explained that “[d]uring our interview I showed you an email from [NAME] that shows that not much can be done. This is due to the way the unit was built.” In response to a group complaint in April 2014, [NAME] stated, the “[NAME] is the warmest of all pods. A large fan was provided … as well as individual fans for each cell” . “Fixing the heat on the unit will be a large expense that, at this time, [NAME] is not able to facilitate. The staff have done the best they can to assist in cooling down the pods, but until the infrastructure changes, the reality is the heat will continue to be an issue” . In response to an [NAME] complaint in [NAME] 2015, [NAME] said it is “hot on all pods” , “that we had to find a more permanent solution than to bolt plastic fans to the floor” , that it was an “ongoing issue” and that “multiple options were being presented to the Management Team.” In response to an initial grievance submitted by a group of [NAME] in June of the same year, portable A/C units were installed on the “ranges” . The response notes that this was “an interim measure until the units can be secured on the pods.” [ 152 ] Corroborating these statements from [NAME] and the [NAME] above, is the following evidence: The [NAME] affidavits describe in some detail the excessive heat during their stays in [NAME] (spanning from June 2018 to [NAME] 2024). They say the excessive heat in the cells is an issue in both the Cold and Hot Months, but is worse during the Hot Months and is most acute during lock-up at night, when there is restricted airflow in the cells; In excess of 30 written [NAME] requests, complaints and grievances, including group complaints and grievances, spanning about fifteen years, about excessively high temperatures in [NAME]. Letters dating back to 2012 from the Applicant to the [NAME] about the problem. [ 153 ] Further, I agree with the Applicant: [redacted] [ 154 ] The Applicant has established that the [NAME] possessed knowledge of potentially unsafe temperatures in [NAME] since at least 2012. [ 155 ] [ADDRESS] must now determine whether the Application is moot, and if it is not, whether the [NAME] took “all reasonable steps” to ensure safe living conditions for the [NAME] as required by s. 70 of the CCRA. [ 156 ] I first address the Respondent’s submission that any temperature problem has been solved and the issues in this judicial review are therefore moot. (a) Has the problem been solved? [ 157 ] The Respondent argues there is no live controversy between the parties because: (1) the four [NAME] who provided affidavit evidence are no longer housed in [NAME], and (2) any temperature problems in [NAME] (which the Respondent expressly denies the existence of) have been resolved. In asserting any problem has been resolved, the Respondent points to recent BMS upgrades expected to improve temperature monitoring and [NAME], measures it took in the summer of 2024 after this judicial review was filed, and an absence of temperature related grievances since 2023. [ 158 ] The Respondent has not established that the judicial review is moot. [ 159 ] First, the [NAME] are not themselves the applicants and so their current presence in [NAME] is irrelevant to the issue of mootness. The Applicant brings this judicial review for the benefit of all [NAME] housed in [NAME]. There is no dispute that [NAME] are still housed in [NAME]. [ 160 ] Second, the evidence does not establish that the recent upgrades to the BMS system and steps taken in the summer of 2024 solved the problem of excessively high temperatures in [NAME], or that they are durable solution to the problem. A concrete dispute between the parties remains. The Respondent’s affidavit evidence speaks to what [NAME] intends to do for the summer of 2024 and what outcomes are anticipated from the BMS upgrades. The affidavits do not speak to whether these steps have in fact resolved the problem of extreme temperatures in [NAME]. If the problem were resolved, it would have been a simple matter for [NAME] to provide evidence of its temperature readings in 2024. No such evidence was filed. [ 161 ] With respect to the BMS upgrades, [NAME] conceded on cross-examination that adjusting the temperatures using the existing system has little to no effect on reducing the temperature in [NAME]. In short, the equipment in [NAME] is heating equipment, not climate control equipment. Therefore, there is no basis to conclude that the BMS upgrades could have resolved the problem of high temperatures in [NAME]. [ 162 ] According to [NAME]’s affidavit, one measure taken in the summer of 2024 was allowing [NAME] who had medical conditions that made them vulnerable to extreme heat to make a request for a portable A/C unit. In cross-examination [NAME] testified that not a single [NAME] made such a request. He testified that he didn’t know if this new measure was communicated to the [NAME]. Setting aside my doubt that the [NAME] were in fact advised of this new measure, the mere existence of a request process—absent any evidence of its practical implementation—does not establish that the measure has resolved the problem rendering it moot. [ 163 ] [NAME] testified that in addition to the “cool down zones” described in his affidavit (which he acknowledged in cross-examination were insufficient), a decision was made to bring window A/C units into the common areas in [NAME] for July, August and September of 2024. In cross examination [NAME] and [NAME] said that the A/C units improved the situation in the common areas, but not the cells. They reported positive feedback from [NAME] and staff and said that complaints about excessively warm temperatures dropped off. [ 164 ] [NAME] said that the portable A/C units in the common area did not impact the temperature in the cells and confirmed there were no A/C units in the cells. [ 165 ] Separate and apart from the unresolved temperature problem in the cells , there is no evidence that [NAME] intends to maintain the 2024 strategy into the future. Notably, [NAME] only implemented this measure—which appears to mirror a temporary fix in 2015—after this Application was filed. [NAME]’s affidavit describes this measure and others as “[f]or the summer of 2024” , suggesting they are time limited. [NAME] possesses details of its [NAME]-term heat mitigation plans, yet it has provided no evidence of a [NAME]-term commitment to the measures taken in 2024. [ 166 ] Finally, while there are no post-2023 temperature related grievances in the record before me, the [NAME] logs appended to [NAME]’s affidavit undermine the suggestion that the problem was resolved. The [NAME] logs cover reports to the [NAME] Department from June 2022 to June 2024. They show there were several complaints of high temperatures in [NAME] in 2023 and 2024. [ 167 ] Even if the Application were moot, I would exercise my discretion to hear it: Borowski v Canada , [1989] 1 SCR 342. I am satisfied that an adversarial context remains. This judicial review challenges conduct that has persisted since at least 2012. In these circumstances, the Respondent’s eleventh-hour steps – of questionable utility and permanence – are not enough to negate the adversarial context. The Application raises an issue of a recurring nature that might otherwise evade review. Judicial economy and the public interest favours determining the case on its merits. [ 168 ] I now consider whether [NAME] has complied with its statutory obligation. (b) [NAME] has not taken “all reasonable steps” [ 169 ] At the outset, it is necessary to consider the nature and scope of the obligation that s. 70 of the CCRA imposes on the [NAME]. For convenience, the provision is set out again below: Living conditions, etc. 70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of [NAME] and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity . [Emphasis added] Conditions de vie 70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des [NAME] et les conditions de travail des [NAME] soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine . [ Non souligné dans l’original. ] [ 170 ] The “modern principle” of statutory interpretation focuses on the overall context of the legislation, assessing the words chosen by the legislature in their grammatical and ordinary sense harmoniously with the scheme of the act, its object and the legislature’s intent: Vavilov at paras 110, 115–124; [COMPANY] (Re ), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 21. Importantly, the text of the provision “remains the anchor of the interpretive exercise,” as it reveals “among other things, the means chosen by the legislature to achieve its purposes” : Quebec (Commission des droits de la personne et des droits de la jeunesse) v Directrice de la protection de la jeunesse du CISSS A , 2024 SCC 43 at para 24. [ 171 ] In considering the plain wording of s. 70 within the overall context of the CCRA and in light of the Act’s purpose as described in s. 3(a) and 4(d), I find that the arguments of the Applicant and Respondent both miss the mark. [ 172 ] The text of s. 70 provides that [NAME] “ shall take all reasonable steps” (emphasis added). The use of “shall” denotes a mandatory obligation. Further, the provision demands that all reasonable steps be taken, not just some reasonable steps. The Respondent’s argument, and [NAME]’s interpretation of s. 70, is premised on having taken some reasonable measures, without considering whether there are additional reasonable steps that [NAME] be taken to ensure the temperature in [NAME] is safe and healthy. As described further below, this approach is not defensible and does not align with [NAME]’s intent as expressed in s. 70. [ 173 ] On the other hand, the Applicant’s argument rests on an assumption that s. 70 imposes an obligation on [NAME] to ensure a certain temperature range: this overstates the duty on [NAME]. Section 70 imposes what is described in civil law, as an “obligation of means” , not an “obligation of result” : see definitions in [NAME], eds, Private Law Dictionary of Obligations and Bilingual Lexicons, (Cowansville, QC: [NAME], 2003) sub verbo “obligation of means” . An obligation of means is one which is satisfied by objective best efforts ( [NAME] v. Canada , 2005 FC 987 [ [NAME] ] at para 62) or here, by taking “all reasonable steps to ensure…” . An obligation of result is more intense: [NAME] at para 62. If [NAME] intended there to be an obligation of result, it could have omitted the phrase “all reasonable steps” and simply required that [NAME] “shall ensure that penitentiaries …. living and working conditions … are safe, healthful and free of practices that undermine a person’s sense of personal dignity” . [ 174 ] Delineating the scope of s. 70 informs both the burden that rests on the Applicant, and the determination of whether there was a breach. [ 175 ] The Applicant need not establish through expert medical evidence that the conditions in [NAME] are unsafe or unhealthy, contrary to the Respondent’s suggestion: [NAME] at para 47. It is sufficient that the Applicant has established that the [NAME] had knowledge, spanning many years, that the high temperatures in [NAME] are potentially unsafe and unhealthy. [NAME] had knowledge that the living conditions could be unsafe or unhealthy, and that existing mitigation measures were insufficient, its duty to take additional reasonable steps under s. 70 was triggered. [ 176 ] The Applicant has discharged its burden. It has established that [NAME] has failed to meet its obligation under s. 70 with respect to the [NAME] in [NAME]. I conclude that there are at least two “reasonable steps” [NAME] has failed to take to ensure that the living conditions in [NAME] are “safe and healthful” . The evidence before the Court is that, despite knowing as early as 2012 there are design problems with the temperature regulation systems in [NAME], and the result is that [NAME] becomes “very,” “extremely,” or “unbearably hot,” [NAME] has not: (1) maintained a written temperature log, nor (2) taken steps to enquire about installing A/C in the cells in [NAME]. [ 177 ] [NAME] had knowledge of the chronic heat issues in [NAME], its statutory duty to take steps to maintain healthy living conditions reasonably required consistent monitoring and recording of temperature data. Moreover, [NAME]’s duty under s. 83(1) of the CCRR to ensure compliance with applicable health and safety laws underscores the importance of maintaining a temperature log. [ 178 ] The evidence is that the [NAME] Department regularly monitored the temperatures and took readings one or two times a day at least 5 days a week. Remarkably, however, no one directed the [NAME] Department to record this temperature data. This was a significant oversight and unreasonable given the circumstances, including the nature of the interests at stake, namely the health and safety of human beings. [ 179 ] Further, the evidence before me suggests that [NAME] has not sought permission from its National Headquarters to install A/C to manage the temperatures in the cells in [NAME]. The failure to take this step appears to be rooted in [NAME]’s interpretation of provisions in the [NAME] as a complete bar to installing A/C in [NAME]-occupied areas. The relevant provision from the [NAME] is found in chapter M-4, paragraph 4.2. It reads as follows: Except as provided in 4.3, air conditioning shall not be provided in [NAME]-occupied areas unless special approval has been obtained from [COMPANY]. [ 180 ] I find that [NAME]’s reading of the [NAME] is unreasonable for three reasons. [ 181 ] First, the purpose of the [NAME] is to “guide construction material and assembly requirements for new builds” . It is not apparent they apply to existing buildings like the [NAME]. [ 182 ] Second, even if in practice the [NAME] are relied on when considering upgrades to existing buildings, [NAME]’s interpretation is contrary to the plain language of chapter M-4, s. 4.2. This paragraph states that A/C cannot be installed in [NAME]-occupied areas, “unless special approval has been obtained from [COMPANY].” It is not an absolute bar. [ 183 ] Third, and most importantly, the CCRA operates as a legal constraint on the [NAME]. Legal and factual constraints dictate the limits and contours of the space in which the [NAME] act and the types of solutions it [NAME] adopt: Vavilov at para 90. A decision will be unreasonable if it is untenable in light of a legal constraint that bears upon a decision-maker: Vavilov at paras 68, 99 and 101. [ 184 ] This means that, to the extent that [NAME] relies on [NAME] to make decisions, it must do so within the legal constraints set out in the CCRA and CCRR. In considering requests for A/C in [NAME]-occupied areas it would be unreasonable for the [NAME] to interpret the [NAME] prohibition in the [NAME] as determinative, without regard to its legal duty in s. 70 of the CCRA to take all reasonable steps to ensure healthy and safe living and working conditions in [NAME] as well as its legal obligation under s. 83(1) of the CCRA. [ 185 ] The Respondent has not adduced any evidence to show that a request for special approval for A/C has been made. The option to seek special approval for A/C equipment as set out in the [NAME] is an available “reasonable step” under s. 70 that can be taken by [NAME]. [ 186 ] Given the evidence about the persistence of this problem despite [NAME]’s many efforts over the years, and the apparent design problems with this particular unit of [NAME], s. 70 of the CCRA requires [NAME] to give serious and meaningful consideration to installing A/C in the [NAME]-occupied areas of [NAME]. Its consideration of the request to install A/C should be unburdened by the [NAME] prohibition against A/C expressed in the [NAME]. [ 187 ] I am unable to agree with the Applicant’s suggestion that the temperatures in [NAME] must always remain within the tight ranges specified in the [NAME]. I agree with the Respondent that while the [NAME] be instructive on what reasonable temperatures are, they are not binding and do not have force of law. I note that for the same reason, [NAME]’s interpretation of s. 4.2 as binding and entirely preclusive of installing A/C in [NAME]-occupied areas is unreasonable. [ 188 ] I take no issue with the Respondent’s position that [NAME] has taken all reasonable steps with respect to addressing the very low temperatures in the common areas during the Cold Months. The record demonstrates that recent complaints about cold temperatures in [NAME], including through [NAME], are scant. [NAME]’s evidence is that the BMS upgrades should have allowed the [NAME] Department to “manage the colder temperatures.” The Applicant has adduced no evidence that post-dates the BMS upgrades to suggest that they failed to rectify the problem. [ 189 ] However, [NAME]’s evidence is also that none of the BMS upgrades could do anything to address the extreme heat on [NAME]. The only control the [NAME] Department has over the temperature in [NAME] is to increase or reduce the heat via the HVAC and in-slab boiler heating systems. He was abundantly clear that, without A/C, it will be impossible to cool the common areas or cells in [NAME]. (3) Charter Breach [ 190 ] My conclusion that [NAME] has breached s. 70 of the CCRA is sufficient to dispose of the judicial review. It is unnecessary to consider the Applicant’s Charter arguments. E. Remedy [ 191 ] The Applicant seeks both a declaration and mandamus . [ 192 ] [ADDRESS] retains discretion to refuse a remedy, even where the applicant has established the merits of a judicial review: [NAME], at para 54; [NAME], at paras 37-38. [ 193 ] While the Applicant has established that [NAME]’s continuing conduct is unreasonable as it amounts to a breach of its statutory duty under s. 70 of the CCRA, I am not persuaded that a declaration is an appropriate remedy. [ 194 ] The declaration sought is that the conditions of confinement in [NAME] are unlawful. The requested declaration exceeds the scope of my findings on the merits: I have found that the [NAME] breached its statutory duty under s. 70 of the CCRA. Even on this narrower basis, a declaration in my view would not provide additional clarity and would have the almost inevitable effect of creating ongoing litigation about whether the order is being complied with: [NAME] v. [NAME] , 2014 SCC 67, [2014] 2 SCR 340 at para 128. The Applicant has not explained how a declaration would be of any practical utility and I am not convinced it would be. [ 195 ] An order of mandamus on the other hand, [NAME] have practical utility. [ 196 ] The Applicant seeks a writ of mandamus directing [NAME] to: a) immediately cease the illegal conduct and take steps to maintain the temperatures in all areas in [NAME] within the range of 21-23 °C in the summer, and 20-23.5 °C in the winter; and b) report to the Court on a consistent basis on steps taken to cease the illegal conditions. [ 197 ] Remedies should flow from the findings made on the merits.

Accordingly, I will consider a refined version of the requested order for mandamus which aligns with the evidence and my conclusions on the breach of statutory duty: A writ of mandamus compelling [NAME] to take the following steps, a) Record and retain a log of all temperature readings from its regular monitoring (which occurs at least 5 days a week), in [NAME]-occupied areas of [NAME], including but not limited to those areas most prone to excessively high temperatures, such as the cells and the [NAME]. b) To seek authorization from [NAME] National Headquarters to install A/C in the [NAME]-occupied areas in [NAME], including the cells; and c) To report to the Court on a consistent basis on steps taken to remedy its breach of s. 70 of the CCRA. [ 198 ] I will first address the Applicant’s request for ongoing Court supervision (paragraph (c) above). The Applicant submits that the Court has the power to retain jurisdiction and supervise [NAME]’s implementation of any order of this Court and explained that it is not in a position to monitor [NAME]. [ 199 ] I do not dispute that the Court has the requisite jurisdiction to issue such an order. However, this Court and the Federal Court of Appeal have consistently counseled for judicial restraint in “making orders that require ongoing supervision or ‘cumbersome court-supervised updating’” : [COMPANY]. v. [NAME] 1 , 2024 FC 1082 at para 49; [NAME] v. Canada ([NAME]) 2012 FCA 161 at paras 165-184. Ongoing supervision of [NAME]’s implementation of an order invites the Court to interfere with the management of public administration. As explained by Justices LeBel and Deschamps, “[a]side from their duties to supervise administrative tribunals created by the executive and to act as vigilant guardians of constitutional [NAME] and the rule of law, courts should, as a [NAME] rule, avoid interfering in the management of public administration.” : [NAME] v. [NAME] (Minister of Education) , 2003 SCC 62 [ [NAME] ] at para 110, for the dissent. [ 200 ] [NAME] has known about the problem of extreme temperatures in [NAME] for many years, this is the first time it has had the benefit of a Court pronouncement on the issue. It must be presumed that [NAME] will carefully consider the Court’s reasons and abide by any order with reasonable diligence and good faith or otherwise commence an appeal: [NAME] at para 111.

For these reasons, I refuse the request to issue an order that provides for direct ongoing supervision of [NAME] or reporting to this Court. [ 201 ] I turn now to paragraphs (a) and (b) of the proposed mandamus order. [ 202 ] The parties agree on the applicable legal test. As set out in [COMPANY]. v Canada ([NAME]) , 1993 CanLII 3004 (FCA), [1994] 1 FC 742 at 766-769, aff’d 1994 CanLII 47 (SCC), [1994] 3 SCR 1100 [ [NAME] ], the test for mandamus is as follows:

1) There must be a public legal duty to act;

2) The duty must be owed to the applicant;

3) There is a clear right to performance of that duty, in that the applicant has satisfied all conditions precedent giving rise to the duty and there was a prior demand for its performance, a reasonable time to comply with the demand and a subsequent refusal, either expressed or implied (e.g., by unreasonable delay);

4) Where the duty sought to be enforced is discretionary, the following rules apply: in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair” , “oppressive” or demonstrate “flagrant impropriety” or “bad faith” ; mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified” , “absolute” , “permissive” or “unfettered” ; in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant” , as opposed to “irrelevant” , considerations; mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and mandamus is only available when the decision-maker’s discretion is “spent” ; i.e., the applicant has a vested right to the performance of the duty.

5) No other adequate remedy is available to the applicant;

6) The order will be of some practical value or effect;

7) There is no equitable bar to the relief sought; and 8) The balance of convenience favours issuing the order. [ 203 ] The test is conjunctive: if any of the eight criteria are not favourable to the Applicant, mandamus will be denied: [NAME] at para 45. The burden is on the Applicant to establish the first four criteria. “An applicant who establishes that the first four [NAME] criteria are favourable has shown that it is prima facie entitled to a writ of mandamus” : [NAME] at para 50. [ 204 ] The final four criteria set out some of the grounds upon which a reviewing court [NAME] exercise its discretion to refuse mandamus despite the applicant’s prima facie entitlement to the remedy. The burden of proof shifts for the final four criteria: [NAME] at paras 47-50. As explained by the Federal Court of Appeal in [NAME] at paragraph 51: Where such bars to relief are raised by the respondent or the reviewing court, or where their existence is apparent from the record before the court, the applicant bears a tactical burden to disprove their existence, lest its application for mandamus be dismissed. Otherwise, an applicant is not required to proactively disprove the existence of discretionary bars to judicial review; absent a finding by the reviewing court that such bars exist, the applicant is entitled to the relief it has sought. [ 205 ] On the first step, the Respondent says there is no statutory duty to keep the temperatures in [NAME] within the tight ranges set out in the [NAME]. For the reasons provided above, I agree: s. 70 does not impose an obligation of result. However, this does not mean that there is no public legal duty to act – that legal duty is set out in s. 70 CCRA includes taking “all reasonable steps” to ensure healthy and safe temperature in [NAME]. As outlined above, there are at least two reasonable steps that [NAME] has not taken to ensure temperatures in [NAME] are safe and healthy: routinely recording temperatures and seeking approval to install A/C equipment in the [NAME]-occupied areas of [NAME]. Taking these steps is a public legal duty owed by [NAME] to [NAME] and staff in [NAME]. [ 206 ] The Respondent argues that step two of the [NAME] test has not been made out; namely, while [NAME] owe a duty to [NAME] and staff at [NAME], no statutory duty is owed to the Applicant. This position fails to account for the fact that the Applicant has been granted public interest standing. There is authority for the proposition that, “if there is a legally enforceable duty, the applicants have made out the common law test for public interest standing, and there is no alternative recourse, mandamus [NAME] be appropriate, even where the duty is not owed directly to the applicants ” (emphasis added): [NAME] v [NAME] (Lands and Forests) , 2020 NSSC 175 at para 149 [ [NAME] ]. This reflects the [NAME] expansion of public interest standing and I conclude that the second step in [NAME] is met. [ 207 ] At the third step, the Respondent says the Applicant has never made a prior demand for performance of the duty. Again, this step must be applied with the public interest standing of the Applicant in mind. The case law suggests that there is a low threshold for what constitutes a demand: [NAME] at para 155. I conclude that this threshold is met. [ 208 ] There is extensive evidence of requests from [NAME] in [NAME] dating back to 2011 to address the excessive heat. Furthermore, the evidence from [NAME], a Regional Advocate for the Applicant, is that the Applicant made repeated requests, starting in 2012, to [NAME] to address the temperature issues in [NAME]. While none of these demands were framed precisely as a request for [NAME] “to comply with [NAME]’s statutory duty under s. 70 of the CCRA” , I am not persuaded that this prong of the test requires a demand be crafted with such precision. [NAME], and [NAME] more generally, were well aware of the substance of the [NAME] and Applicant demands. [ 209 ] The Respondent argues that [NAME] has not refused to provide a safe and healthy environment for [NAME]. While I acknowledge that [NAME] has taken many steps to try to alleviate the impact of the excessive heat in [NAME], the evidence – even from its own staff – is those efforts have not been sufficient. I find that [NAME] has impliedly refused to take all reasonable steps, including recording temperature data and seeking approval to install A/C, because of its erroneous interpretation of the [NAME]. For more than a decade, [NAME] has refused to take these additional steps. This amounts to an implied refusal. [ 210 ] On the fourth step, I agree with the Respondent, that an order of mandamus cannot direct [NAME] how to exercise its discretion. For example, based on the record before me, the findings made, and the arguments raised, I am not persuaded that an order directing [NAME] to install A/C in [NAME]-occupied areas of [NAME] would be appropriate. [ 211 ] Having made out the first four criteria of the [NAME] test, the Applicant has a prima facie entitlement to mandamus : [NAME] at para 50. The Respondent has not provided submissions on the last four criteria of [NAME], and I see no basis to exercise my jurisdiction to decline a mandamus order based on any of these factors. [ 212 ] As addressed earlier in my reasons, it is not apparent that another adequate remedy is available to address the temperature issues in [NAME]. I am satisfied that a mandamus order will be of practical utility. It has the potential to result in a timely and durable solution for [NAME] in [NAME]. Even if it does not, the implementation of an order will provide the parties with concrete data on the temperatures in [NAME], which [NAME] inform next steps. [ 213 ] Finally, the balance of convenience favours issuing an order of mandamus . The Respondent’s reluctance to acknowledge that excessively high temperatures in [NAME] are indeed a problem undermines the Court’s confidence in [NAME]’s commitment to find a durable solution in the absence of mandamus .

V.

CONCLUSION [ 214 ] I conclude that [NAME] has failed to meet its statutory duty in s. 70 of the CCRA which requires it to “take all reasonable steps” to maintain a safe and healthful environment. I have identified two reasonable steps the [NAME] has failed to take: it did not keep any records of its temperature readings, and it failed to seek authorization to install A/C in the [NAME]-occupied areas of [NAME]. [ 215 ] Regarding the proper remedy, I find that there is no utility in issuing a declaration and none will issue. However, the Applicant has established that it is entitled to a [NAME] s order directing [NAME] to keep records of its temperature readings and to seek authorization to instal A/C in the [NAME]-occupied areas in [NAME]. [ 216 ] The parties agreed that costs should be dealt with following the release of this judgment. [ 217 ] Should the parties come to an agreement on costs they shall provide a draft order for the Court’s consideration within 10 days of receipt of this judgment. If the parties are unable to agree on costs, they shall submit a proposed schedule for cost submissions within 10 days of this Judgment.

JUDGMENT in T-841-24 THIS COURT’S

JUDGMENT is that : The application for judicial review is granted. A writ of mandamus is ordered compelling [NAME] to, forthwith: a) Record and retain a log of all temperature readings from its regular monitoring (which occurs at least 5 days a week), in the [NAME]-occupied areas of the [NAME] in [NAME]; and b) Seek authorization to install A/C in the [NAME]-occupied areas in the [NAME], including the cells, of [NAME]. If the Applicant so requests, [NAME] shall provide the Applicant with the temperature logs arising from 2(a) above and advise the Applicant of any steps taken by [NAME] or decisions made as a result of 2(b) above. If the parties cannot agree on costs they shall submit a proposed schedule for cost submissions within 10 days of this Judgment. "Meaghan M. Conroy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-841-24 STYLE OF CAUSE: [COMPANY] v THE [NAME] OF CANADA PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: June 11, 2025

REASONS AND

JUDGMENT: CONROY J. DATED: July 16, 2026 APPEARANCES : [NAME] For The Applicant KEELAN SINNOTT For The Respondent SOLICITORS OF RECORD : [COMPANY], ALBERTA For The Applicant [NAME] OF CANADA CALGARY, ALBERTA For The Respondent