JE and KE v Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

Application for judicial review allowed. The Board’s conclusion to deny adoption by the Applicants was unreasonable. The best interests of the Child, who is identified as Métis, require that she not be uprooted from the only family she has ever known.

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This is a successful application for judicial review from the Child and Family Services Review Board in Ontario [“Board”]. The three year old child in question [“Child”], upon her birth, was apprehended almost immediately by the Children’s Aid Society of the Niagara Region [“the Society”] and she was placed with approved foster parents, KE and JE [“the Applicants”]. KE and JE applied to the Society to adopt the child. DC-G and MG [“the Respondents”] also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children by different fathers.

The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family, when there were no care-based reasons for doing so, as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white, live in Ontario and are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual or gender preferences.

It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all. There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven year-old son and the Applicants’ extended family. It was also uncontested that the Child had never met, or knew of the existence of, the Respondents or their adopted children. The Respondents suggested an openness to maintaining a relationship with the foster sibling, but there was evidence of openness on the Applicants part to maintain a relationship with the Child’s half-siblings also, which was not considered.

The Board belittled the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” but ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision failed to recognize this (LE v Simcoe Muskoka Child Youth and Family Services (CFSYA s 192), 2019 CFSRB 86). As well, the Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

This Court found that the Board put too much emphasis on one couple’s past support of an Algonquin child that they had adopted. This was seen as “super-weighting” the relevance of Indigenous identity to adoption, which the Court found to be an inappropriate interpretation of Ontario’s current legislation (amended in 2017). It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence. They also noted that this was relatively unrelated to the alleged Quebec Métis heritage of the Child since the new legislation requires a distinction-based approach.

DG v Attorney General (Canada), 2020 BCCA 197

Appeal dismissed. This decision deals with the outer boundaries of the Indian Residential Schools Settlement Agreement, which does not extend to a consensual relationship between a staff member and a non-student daughter of another employee. 

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This appeal asks whether a supervising judge under the Indian Residential Schools Settlement Agreement [“IRSSA”] erred in declining to intervene in a decision denying the appellant compensation for alleged sexual assault. The Court is of the view that the judge correctly held that she did not have jurisdiction to grant the relief sought. The appellant did not establish that the impugned decision failed to apply the terms of the IRSSA, which is the basis on which she sought judicial recourse.

The IRSSA is a contract negotiated between various stakeholders that established a process for the resolution of claims arising from the long and tragic history of abuse suffered by thousands of Indigenous children who attended Residential Schools across Canada (Fontaine v Canada (Attorney General), 2019 BCCA 246).

The IRSSA [“IAP Model”] recognizes three forms of “compensable abuse”: 1) sexual and physical assaults arising from or connected to the operation of an Indian Residential School that were committed by adult employees of the government or church entity operating the school, or other adults lawfully on the premises; 2) sexual and physical assaults committed by one student against another; and 3) any other wrongful act(s) committed by adult employees or other adults lawfully on school premises and proven to have caused serious psychological consequences for the claimant.

Collectively, these categories of abuse constitute continuing claims under the IAP Model. According to the terms of the Model, it is the responsibility of an IAP adjudicator to assess the credibility of each allegation made by the person who seeks IRSSA compensation and, where the allegation has been proven on a balance of probabilities, to then determine whether what has been proven constitutes a continuing claim.

The appellant brought a claim for compensation under the IAP, alleging sexual assaults by an adult employee of an IRS. At the material time, the appellant lived on the premises of an IRS with her family. Her father worked at the school. The appellant was not registered as a student as she attended school elsewhere. However, she interacted with IRS residents and attended some of the school’s sporting activities as a spectator.

The appellant had an intimate relationship with a man who worked at the IRS as a coach and cottage supervisor [“Employee”]. The appellant was 16–17 years old at the time. The Employee was nine years older. He was married and had two children. The appellant and Employee had sexual intercourse on numerous occasions. The sexual contact occurred on IRS property. The appellant became pregnant. When her family learned of that fact, she left the family’s home at the IRS and lived with a sibling. About a year after giving birth, the appellant resumed her relationship with the Employee. They eventually moved in together, married and had additional children. They have since divorced.

The appellant brought a claim under the IAP based on the start of her relationship with the Employee and the sexual contact that occurred while she was living on school premises. She argued that the relationship was exploitive, based on the Employee’s age, his position of power and the manipulative way in which he pursued sexual contact with her. An IAP adjudicator decided in the appellant’s favour, awarding her $149,667 in compensation for sexual abuse. The adjudicator found that the appellant was not a student or resident of the IRS at the time of the impugned relationship.

The Attorney General for Canada sought a review of the adjudicator’s decision. The reviewer did not agree that the appellant proved she was sexually assaulted and, as such, held that the adjudicator misapplied the IAP Model by awarding compensation for consensual sexual activity. A second reviewer concluded that the initial adjudicator’s determination of compensable abuse was erroneously grounded in findings about the Employee’s “character and motivation” in seeking out contact with the appellant, rather than whether consent to sexual intercourse had been vitiated in the circumstances. The supervising judge declined to grant the relief sought in the Request For Direction made by the appellant.

There is only one issue on appeal, namely, whether the supervising judge correctly held there was no jurisdiction for her to interfere with the decision of the second IAP reviewer. Where an appeal raises a question about a supervising judge’s interpretation of the IRSSA, the standard of review is that of palpable and overriding error (Canada (Attorney General) v Fontaine, 2017 SCC 47). The Court is not persuaded that the judge committed palpable and overriding error. To sustain a conviction for sexual assault in the criminal law context, there must be proof of non-consent, actual or vitiated (R v Barton, 2019 SCC 33; R v JA, 2011 SCC 28; s 265(1)–(3), 273.1, Criminal Code). Appreciating the “very limited” scope of judicial recourse in IAP cases, there is no principled basis on which to interfere with the supervising judge’s conclusion.

R v Gaudet, 2020 ONSC 3975

This bail review summarizes how the Gladue principles can apply to bail. Not only has Indigenous programming in remand been suspended for the pandemic, the Indigenous accused’s asthmatic condition was also taken into account in this decision.

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Mr. Gaudet is an accused that identifies as Indigenous. Gladue principles and purposes apply to all situations where an Indigenous person’s liberty is at stake. Section 493.2 of the Criminal Code [“CC”] provides that a judge shall give particular attention to the circumstances of an Indigenous person in making a bail decision. The inference to be drawn from the accused’s sentencing record is that he is a regular but minor offence offender. In the last 5 years, the accused has been convicted of failing to attend court or compliance with conditions of undertaking, recognizance or probation five times. He had two assault convictions in that period. This latest stint of detention is his longest in the last five years.

This review centers on the impact of time and unreasonable delay on the proportionality of detention, the rational offered for the original detention order and any new information brought forward. The issue is whether continued detention in custody is justified five months later within the parameters of s 515(10), in the context of an accused who identifies as Indigenous in the midst of the pandemic that lugs in public health and trial scheduling concerns.

The right to reasonable bail is entrenched in s 11(e) of the Charter and is closely connected to other entrenched constitutional rights such as the presumption of innocence (s 11(d)), the right not to be arbitrarily detained or imprisoned (s 9) and the right to liberty and security (s 7). The Supreme Court of Canada iterates that the pre-trial release of accused persons is the cardinal rule and detention the exception (R v Myers, 2019 SCC 27). Section 493.1 of the CC provides that release on reasonable terms is favoured at the earliest reasonable opportunity on the least onerous appropriate conditions including conditions that are reasonably practicable for the accused to comply with.

Given that the examination of Gladue factors in sentencing is directed at diminished moral blameworthiness for an offence in sentencing, the same application without adaptation in a bail proceeding could inappropriately violate the presumption of innocence. The interaction of Gladue principles and s 515(10) cannot be brought to bear in a vacuum. Consideration might include the factors, such as colonization and so on and practices that disproportionately affect Indigenous persons and contribute to their over-incarceration. The principle of restraint in bail is codified in s 493.1. The interim release process is not the time to apply rehabilitative or reformative provisions. Provisions looking like probation or conditional sentence are problematic.

Trial bottlenecks in the criminal justice trial system arising from pandemic restrictions are for now frustrating that option. There are valid reasons for releasing the accused. Prospects for timely trial fade on a daily basis. It is also reported that the Indigenous support programs in the detention center were terminated in March and emphasized the importance of the loss of this support on the accused’s mental health. The accused also suffers with asthma, which is a tertiary ground circumstance. Living conditions at the detention center do not permit social distancing. The pandemic stands as a material change in circumstances since the accused’s last bail hearing.

The accused’s record indicates that he honours conditions when a breach would result in automatic incarceration. If the accused breaches, his only source of trusted support, Ms. Seguin will report it. She will post a bond without cash in the amount of $1,000. For a person in her financial circumstances that is a significant commitment and imports the tug of bail on her part. The accused is to enter into a recognizance with surety, Ms. Seguin. She knows she is undertaking the role of jailor and if she neglects her duties, she will be called on to pay up.

 

R v Grandinetti, 2020 ABQB 416

Experiences of racism is a Gladue factor, and there is relevance of credible employment opportunities for the Aboriginal accused that has informed the design of a fit and proper sentence in this matter.

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Mr. Grandinetti was closely involved in the process of creating fraudulent documentation which he used to effect registration of six stolen trailers in his own name in order to facilitate the transfer of the trailers to others, including at least one innocent purchaser. He also physically possessed each of the stolen travel trailers, and knew each was stolen. He was not charged with a “possession offence” in respect of two of the trailers. He trafficked two of the travel trailers he knew were stolen. As well, he possessed two of them for the purpose of trafficking them.

Mr. Grandinetti’s crimes are not accurately described as sophisticated or involving a high degree of planning, at least not on his part. He was not charged with the theft of any of the six travel trailers with which he was involved and the evidence presented did not suggest he was involved in any theft. The actual mechanism of the deception in which he participated was relatively simple. He did not invent or design it.

Even before the sentencing principle established by s 718.2(2)(e) of the Criminal Code and considering Gladue factors, the circumstances of Mr. Grandinetti’s offences do not require that priority be given to deterrence, denunciation and separation over the other purposes of sentencing, rehabilitation, reparation and promotion of a sense of responsibility.

Mr. Grandinetti is the child of an Italian father and a Cree mother. He has a younger brother and an older half brother. As a child Mr. Grandinetti witnessed his father being physically abusive to his mother. His parents divorced when he was 15. When Mr. Grandinetti was 17 years old and in high school, his mother was murdered by his cousin. Evidence at the murder trial indicated that the cousin had been paid by Mr. Grandinetti’s father to murder his mother. There was an ongoing child support arrears dispute between Mr. Grandinetti’s parents at the time.

The Gladue Report indicates that Mr. Grandinetti’s brothers reported that their grandmother attended residential school and that the experience caused her to be “a mean and angry person at times”. She struggled with alcohol. But Mr. Grandinetti’s younger brother credits the grandmother with keeping the family together.

Mr. Grandinetti’s father forbade him from participating in Cree cultural activities and tradition, and not even to reveal his Cree heritage to anyone. He learned to attach shame to that heritage. The Gladue report writer noted that Mr. Grandinetti has strong and positive support from his brother and his brother’s family. There are culturally relevant and mainstream healing resources available to him which he has never attempted to access, in part, due to the shame of his Cree heritage instilled in him by his father.

Mr. Grandinetti is sentenced to a global 18 months of that includes 4-6 months incarceration, with the rest to be served in the community pursuant to a conditional sentence order, followed by a three year probation order. Upon his employment, he is to pay restitution.

 

Morin v Enoch Cree First Nation, 2020 FC 696

Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

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This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.

 

R c Charlish, 2020 QCCQ 2438

In keeping with the sentencing principles, including a focus on Gladue factors, the Aboriginal accused has been granted a last chance of a total sentence of 90 days to be served intermittently and supervised probation that includes an essential focus on therapy.

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The accused is an Aboriginal person who is a member of the Mashteuiatsh Innu Nation. Paragraph 718.2(e) of the Criminal Code provides that the court must take into consideration all available sanctions, other than imprisonment with particular attention to the circumstances of Aboriginal offenders.

In 2018, the accused entered a guilty plea to a charge of trafficking cocaine. Presentence and Gladue reports (R v Gladue, [1999] 2 CNLR 252) were ordered. Despite the presence of aggravating factors, such as objective gravity and the scourge of drugs in the community, the court accepted the defence’s position and imposed an intermittent sentence of 60 days with two years’ probation, including 18 months with supervision, and 100 hours of community work.

The accused continued to use cannabis but reduced the quantity and for a time stayed away consumption. During submissions on sentencing in this matter, the Court granted the application of counsel to file the presentence and Gladue reports that were previously prepared because they remained relevant. The reports highlighted that since childhood, the accused has been exposed to instability, violence, and substance use. He is aware of the problem and has consulted an addiction counselor, but has not managed to remain abstinent. The accused has a spouse with substance abuse issues as well, with whom he lives with, along with their two young children in the Mashteuiatsh community.

The Court asked for information on the programs available in the community. There are no justice committees in Mashteuiatsh. The Court refers to the work of the “Viens Commission”, a Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec that focus on listening, reconciliation and progress. The Viens Commission describes the roles and responsibilities of justice committees as varying with each community’s needs and priorities. In general, it can be said that their goal is to offer an alternative to or complement the structures of the existing justice system. They take care of a number of things, including diversion, sentencing recommendations, supervised probation, suspended sentences, conditional release, authorized leave, crime prevention and community support such as healing circles, offender reintegration and citizen mediation.

However, there are other resources available in Mashteuiatsh to all types of clients. There is a housing resource that is a community organization that some members of the Mashteuiatsh community attend. It helps those suffering from issues related to substance abuse or addiction. With respect to Aboriginal clients, there is the Centre Kapatakan Gilles-Jourdain in Mani-Utenam, near Sept-Îles. It is an organization accredited by the Ministère de la Sécurité publique whose mission is to provide services adapted to Aboriginal values and traditions to Innu adults and other First Nations members, with the objective of healing and rehabilitation. There is also the Wapan rehabilitation centre in La Tuque. It provides treatment and follow-up services to First Nations adults. Mashteuiatsh social services can also provide support and direct a person to the appropriate resources, to the extent that they are willing and participate in the follow-up required.

In this case, the accused has been noted as open and cooperative. Before his relapse, he had made sincere efforts to change. The accused decided to testify and was transparent and described his drug addiction. He now realizes that he must get to the root of the problem and that long-term therapy is needed even if that causes him to be away from his family. He realizes that he is reproducing for his children the conditions that has led to his own substance use.

Cocaine trafficking is an objectively serious offence, for which the offender is liable to imprisonment for life. What is more, this case concerns a subsequent occurrence of the same offence for which the accused was convicted a few months earlier, along with a breach of probation. However, the Court cannot ignore the unique systemic and background factors that are mitigating in nature in that they have played a part in the Aboriginal offender’s conduct. The Supreme Court of Canada urges sentencing judges to address the sources of the problem rather than reproducing the “revolving door cycle in the courts” (R v Gladue; R v Ipeelee, [2012] 2 CNLR 218).

The accused is granted a last chance with a total sentence of 90 days to be served intermittently and supervised probation including the essential focus on therapy. To prioritize that initiative and taking into consideration the accused’s family obligations, the Court will not add community work.

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

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‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

Acho Dene Koe First Nation v Minister of Industry Tourism and Investment, 2020 NWTSC 19

Application dismissed. This matter is not subject to judicial review as it seems to be of a private contractual nature brought forward by a First Nation, therefore it is not of a sufficiently public character to bring into the public law realm.

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The Acho Dene Koe First Nation [“ADKFN”], claims Aboriginal title over lands upon which oil and gas exploration was being conducted by Paramount Resources Ltd. [“Paramount”], Chevron Canada Resources [“Chevron”] and Ranger Oil Limited [“Ranger”]. Neither the status, nor the validity of the ADKFN’s claim to Aboriginal title are before the Court.

The Director of Mineral and Petroleum Resources of the Department of Industry, Tourism and Investment for the Government of the Northwest Territories [“Director”] received a letter from the ADKFN explaining that the First Nation had entered into benefit agreements, called Community Investment Plans (“CIPs”), with Paramount, Chevron and Ranger. ADKFN asserted that each CIP related to specific licenses and interests held initially by each of the companies, and subsequently assigned to Paramount. ADKFN also asserted that the CIPs ran with the land to which the license and interest pertained and that Paramount, as the assignee, was bound by the CIPs with Chevron and Ranger, as well as its own.

Each CIPs’ stated purposes were to formalize the relationship between each of Paramount, Chevron and Ranger and ADKFN, and to provide for ongoing development of community relations. Among other things, they provided for financial contribution to a community development fund for the benefit of ADKFN members and a commitment to provide business opportunities to ADKFN members upon certain core competencies being demonstrated.

Although breaching of the CIPs is not before the Court, in its letter to the Director, ADKFN alleged that Paramount breached the CIPs and that consequently, Paramount was in violation of any licenses, permits or approvals that are contingent on compliance with such agreements. The Director replied by providing a general explanation of the benefits plans and approval process, noting that a benefits plan includes a commitment from the operator to implement strategies for training and employment, and procurement and contracting, but does not generally include guaranteed outcomes. He also noted that during the approval process, operators may enter into private contracts, such as the CIPs provided by ADKFN, to implement the strategies in the benefit plan, but that the terms of any private agreement do not thereby become terms of the benefit plan.

The AKDFN asks this Court to determine whether the Director in his letter erred by not assessing whether Paramount had complied with the benefits plans, declining to enforce the CIPs, and determining that the benefits plans are privileged. The Court finds that the Director’s letter is not subject to judicial review. The Director was not acting in accordance with “state authority” and the issues put before him were not of a sufficiently public character to bring the matter into the public law realm. He was not exercising a statutory or other public law power and, therefore was not acting as a tribunal. The Director received letters from ADKFN’s counsel, making a number of requests in relation to something that is entirely a private law matter. His response to the ADKFN did not become a tribunal and ADKFN’s interest did not take on a public dimension.

Even if a judicial review was allowed, it would be dismissed as the Director’s conclusion on the nature of the benefits plans as well as the Minister’s obligation to enforce the CIPs, would be assessed on a standard of reasonableness. His conclusion on the privilege question would be assessed on a standard of correctness as the privilege is statutorily protected. The Director’s assessment of the nature of the benefits plans is both reasonable and correct.

The Government’s duty to consult was not engaged because at the heart of ADKFN’s concern is a private contractual dispute with Paramount, not a proposed government action or decision. All that the ADKFN requested was an “enforcement” of the CIPs, in furtherance of its private contractual dispute with Paramount. That is something which neither the Minister, nor the Director have the authority to do and it is not altered by the Government’s fiduciary obligations to the ADKFN.

While the Director is employed in the public service, there is nothing in the applicable statutes that confers authority or imposes a duty upon him to decide or enforce anything, nor is there any evidence that any such authority or duty has been delegated to him. Accordingly, the Director does not fall into the category of a “public officer” in these circumstances.

 

Cunningham v Alberta (Métis Settlements Land Registrar), 2020 ABQB 301

Appeal dismissed. The Métis Settlements Act establishes membership requirements for the purpose for establishing a Métis land base. Although unfortunate, the appellant is not eligible to have Indian status and be a member of his Métis Settlement.

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Mr. Cunningham spent almost his entire life on the Peavine Métis Settlement, including having a home and raising a family. However, he applied for Indian status in 1988. Although regretting the decision, he was unable to get his Indian status revoked. Mr. Cunningham has requested a judicial review of a 2018 decision of the Registrar of the Métis Settlements Land Registry [“Registrar’s Decision”].

The reasons for this decision is the conflict of Mr. Cunningham’s Indian status membership made 27 years ago. The Registrar did confirm that when the Peavine Métis Settlement approved Mr. Cunningham’s application for membership in 1991, the council acted contrary to s 78(2)(c) of the Métis Settlements Actbecause Mr. Cunningham was ineligible to become a member under s 75.

The Métis Settlement Act establishes membership requirements for Métis Settlements for the purpose of establishing a Métis land base, as reflected in the Membership List maintained and updated by the Registrar. The legislation was held to be constitutional by the Supreme Court of Canada (Alberta (AAND) v Cunningham, [2011] 2 SCR 670). The Métis Settlements Act does not does not establish eligibility or membership criteria for other purposes (L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12).

The problem is that the different existing legislative schemes exclude an Indian, except for certain exceptions which are not applicable to Mr. Cunningham, from membership in a Métis settlement (Gift Lake Métis Settlement v Alberta (Aboriginal Relations), 2019 ABCA 134). The Registrar is neither required to address each and every piece of evidence nor to address each and every aspect of Mr. Cunningham’s history and relationship with the Peavine Métis Settlement.

As for the 27 years from when Mr. Cunningham applied for Indian status to the 2018 Registrar’s Decision, if the doctrine of laches applied in this matter, the previous error in the 1991 Registrar’s Decision would be perpetuated into the future and the administrative error would override the will of the legislature in the Métis Settlements Act. As long as a statute is in effect, it is no defence that it has not been enforced or correctly applied for many years (Château-Gai Wines Ltd v Institut national des appellations d’origine des vins, [1975] 1 SCR 190).

Laliberte v Day, 2020 FCA 119

Appeal dismissed. The motion judge made no reviewable error in granting the carriage of a proposed class proceeding to a representative plaintiff on behalf of Métis and Non-Status Indian groups affected by the Sixties Scoop.

Indigenous Law Centre – CaseWatch Blog

The Sixties Scoop was a federal program under which Status Indian, Inuit, Métis, and Non-Status Indian children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption. This appeal concerned the carriage of a proposed class proceeding on behalf of Métis and Non-Status Indians affected by the Sixties Scoop. In the settlement of the Sixties Scoop litigation approved in Riddle v Canada, 2018 FC 901, and Brown v Canada (AG), 2018 ONSC 3429, Status Indian and Inuit Sixties Scoop survivors were only included.

Two motions were brought and heard together in the Federal Court seeking carriage. One motion sought carriage for a proposed representative plaintiff in Day v AG of Canada, represented by two law firms based in Toronto [“Day action”]. In the order under appeal, the Federal Court granted carriage to the plaintiff in the Day action, and stayed the other three actions [collectively as the “LMO action”]. The order was the first contested carriage order issued by the Federal Court. Counsel for the LMO action submit that the motion judge committed both errors of law and palpable and overriding errors of fact in granting carriage to the plaintiff in the Day action.

The motion judge found Mr. Day to be a better representative plaintiff because he reflected the type of circumstances and damage that is common to both the Métis and Non-Status Indian groups and was a textbook claimant and a mirror for both Indigenous components of the litigation. Counsel for the LMO action submits that the motion judge’s treatment of this factor amounted instead to imposing a requirement that the representative plaintiff be typical of the class (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

The Court does not agree that in going on to consider Mr. Day’s circumstances and the nature of the damage that he claims, the motion judge improperly imposed a typicality requirement. The motion judge instead treated the dispute as one that would be litigated to its conclusion, and recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop. His circumstances and the damage he claims was an advantageous platform for a claim on behalf of the class.

The factors that may be considered in a carriage motion are not ends in themselves. Rather, they are means of assisting the court, in the unique context of each case, to determine the best interests of the class (Mancinelli v Barrick Gold Corporation, 2016 ONCA 571; Strohmaier v KS, 2019 BCCA 388; and McSherry v Zimmer GMBH, 2012 ONSC 4113). Not only are these factors not exhaustive; they are also not watertight compartments (Quenneville v Audi AG, 2018 ONSC 1530; Winder v Marriott International Inc, 2019 ONSC 5766; and Rogers v Aphria Inc, 2019 ONSC 3698).

One of the comparisons the motion judge drew was between the litigation experience of the two sets of counsel. He found that both have extensive class action experience, both have experience in the Sixties Scoop and residential schools class actions, and both have experience acting for Métis people, but counsel in the Day action have experience acting for Non-Status Indians as well.

The motion judge saw as leap-frogging the addition of Non-Status Indians to the class definition in the LMO action after the carriage motions had been scheduled. In the carriage motion context, “leap-frogging” refers to an attempt by one contender for carriage to improve its position after the motion has been scheduled by taking the benefit of the work of another contender; for example, by a copycat amendment to pleadings (Mancinelli et al v Barrick Gold Corporation et al, 2015 ONSC 2717, affirmed 2016 ONCA 571 [“Mancinelli”]). A rule has been rejected that carriage motions be decided based on a “freeze frame” as of the date the motion is filed, however, the court should be suspicious of conspicuous new activity after the filing of a carriage motion or of any attempts to ‘leapfrog’ a lagging action ahead of a more advanced one (Mancinelli).