Dumais et al v Kehewin Band Council et al, 2020 FC 25

Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

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The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

R v Marr, 2019 NSSC 327

Trial adjournment in order for the Respondent’s to make a Rowbotham application for state-funded counsel quashed and remitted back to the trial judge. It is insufficient to simply assert a complex constitutional defence, when the charge itself is not serious.

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The Respondents are members of the Sipekne’katik First Nation and designated to partake in the Food, Social and Ceremonial fishery for lobster, which permits the fishing of 60 lobsters per day per fisher. The Respondents were charged with two sets of offences pertaining to catching and retaining more than 60 lobsters per day, contrary to s 7 of the Aboriginal Communal Fishing Licenses Regulations. The central issue was whether the trial judge erred in finding that a Rowbotham order was necessary to ensure a fair trial in the circumstances.

The complexity arised from the proposed constitutional defence. As per the air of reality to the defence put forward by the Respondents, there had been no indication of the substance of the defence, only a bare assertion of an Aboriginal or treaty right. There was no direction of how the Aboriginal or treaty rights are allegedly violated by the charges, and therefore impossible to say there was a proposed defence that is factually and legally relevant to the charges. The court on a Rowbotham application cannot simply assume that an Aboriginal person charged with a fisheries offence might have a treaty or Aboriginal rights defence as a basis to order state-funded counsel.

Further, with the bare assertion of an Aboriginal or treaty right, the court would have no way to assess the seriousness or complexity of the proposed defence. The charges were neither serious nor complex. They were straightforward, and there was no prospect of a sentence of imprisonment upon conviction. The only source of complexity was the potential defence to charges that are not, in themselves, serious or complex. Thus, the Respondents did not meet the Rowbotham test, and as such, the trial judge erred in law in finding that a Rowbotham order was necessary to ensure a fair trial.

The Respondents submit the application must be viewed through the prism of the United Nations Declaration on the Rights of Indigenous Peoples [“Declaration”]. As the Respondents provided no argument as to why the Declaration would mandate any particular result, as well as the Declaration is not legally binding, it is therefore not relevant on a Rowbotham application. The last argument raised by the Respondents pointed to sections 7 and 11(d) Charter violations. They did not provide authority for their argument that s 7 is engaged by an alleged violation of an Aboriginal or treaty right. As the court in Rowbotham effectively treated sections 7 and 11(d) as a joint guarantee of fair trial rights, the Respondents argument that a Rowbotham order can rest on a violation of section 11(d) alone, misconstrues the language of the decision.

R v Balfour and Young, 2019 MBQB 167

Ms. Balfour’s and Mr. Young’s s 11(e) Charter rights were violated. A stay of proceedings is moot, but an order of costs is just. Consideration should be given to an independent review of the system affecting in-custody accused on remand in northern Manitoba.

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Ms. Balfour and Mr. Young are residents of different northern Manitoba Indigenous communities. Each were arrested and charged with Criminal Code offences. Their cases are completely unrelated except they both experienced difficulty having timely bail applications. Each had made an application for a declaration that their ss 7, 9, 11(e) and 12 rights as guaranteed by the Charter of Rights and Freedoms had been violated. Each sought a judicial stay of proceedings of their charges, and costs.

The focus of the Court’s analysis was on s 11(e) of the Charter, the right of a person charged with an offence not to be denied reasonable bail, as it is broad enough to encompass the specific elements of this matter in a holistic manner. The Court found that Ms. Balfour and Mr. Young rights were violated and the Crown did not seek justification for the violation under s 1 of the Charter.

Remand custody is substantially unlike being a sentenced prisoner in a correctional facility or penitentiary. Particularly in northern Manitoba, being in remand custody awaiting some court process or trial is physically and emotionally stressful for many reasons, especially for first offenders and young offenders. An in-custody remand cannot be routine or perfunctory, the remand must be for a good reason. Lack of court resources or time is not a good or valid reason (R v Reilly, 2019 ABCA 212). Such remands cannot be done consecutively with the effect of sidestepping the accused’s right to object or consent to longer delays. This also applies to remands for less than three clear days, where an accused need not consent.

Northern Manitoba residents who are held waiting for bail are moved repeatedly, often driving great distances while locked in crammed vans and in foul weather. It is unsafe for Sheriffs and accused alike, and adds to the chaos of the northern justice system as personal or video appearances are unreliable. Many accused do not stay in remand in the north but are transferred to central or southern Manitoba. Almost all are away from their home community such that personal visits with their counsel, family, children or supports are few and far between, if at all. Telephone communication to lawyers or families is difficult, infrequent and expensive. Accused are housed with all manner of inmates from a mix of backgrounds and temperaments; some of whom are violent, addicted to drugs or alcohol, or have mental health issues. Lawyers deposed that many clients have lost their employment, or have been attacked or threatened, while in remand waiting for bail hearings. Some accused consider pleading guilty just to get out of remand custody.

The remedy for a stay of proceedings is moot. An appropriate remedy under s 24(1) of the Charter, may generally include a stay of proceedings, a reduction of a sentence, or costs. At a minimum, judicial condemnation is required and the Court finds the bail practices in play in northern Manitoba should shock the conscience of any reasonable person. The violations of Ms. Balfour’s and Mr. Young’s Charter rights were directly related to long-standing and glaring systemic issues. Although the breaches were predictable, the issue of processing the potential release of an arrested person is vital. A bail system must be designed to ensure no person’s liberty is improperly usurped. This is of special concern, as many of the communities in the Thompson judicial area of northern Manitoba are Indigenous and many of those citizens suffer the effects of colonization (R v Gladue, [1999] 2 CNLR 252; R v Ipeelee, [2012] 2 CNLR 218).

No other remedy than costs remains available. In the end, Ms. Balfour and Mr. Young will receive nothing for the breaches of their individual Charter rights, but their lawyers will be reimbursed their expenses and receive partial compensation for their efforts.

Sheck v Canada (Minister of Justice), 2019 BCCA 364

Application allowed. An order for the surrender of an Indigenous person to face charges of money laundering in the United States is remitted to the Minister of Justice for reconsideration.

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This is a judicial review of the decision of the Minister of Justice [“Minister”] that ordered Mr. Sheck’s surrender to the United States of America [“USA”] on charges of money laundering. The relief sought is to have the surrender order quashed, or in the alternative, have the matter remitted back to the Minister for reconsideration. The majority of this Court determined that the Minister failed to appreciate the disparity of the more severe sentence the accused would likely be given in the USA if convicted. As well, the Minister failed to consider the accused and his children’s Indigenous heritage and the context of the historical mistreatment by Canada of Indigenous families which forcibly separated children from their parents and culture.

The standard of review with respect to the Minister’s surrender decision is not in dispute. The Minister’s decision is entitled to deference, and interference is warranted only in exceptional cases of “real substance”. This Court considered whether the Minister’s decision fell within a range of reasonable outcomes, and if the correct legal test was applied (Lake v Canada (Minister of Justice), 2008 SCC 23 [“Lake”]; s 57(7) of The Extradition Act). This standard of review recognizes that the decision to surrender the accused is largely political and involved the Minister’s superior expertise with respect to Canada’s international obligations and interests (India v Badesha, 2017 SCC 44). The Minister must take into account Canada’s international obligations, but also consider the rights of the person sought.

Pursuant to s 7 of the Charter, a person is not to be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. In the extradition context, the Minister is not to surrender a person if surrender would “shock the conscience” (Lake) or not to surrender the person if the consequences of surrender would be “contrary to the principles of fundamental justice” (MM v United States of America, 2015 SCC 62 [“MM”]). This necessarily includes, when relevant, the best interests of that person’s children who may be affected by the extradition (MM).

The accused faces a potential sentence of 27 years imprisonment if convicted in the USA. If he enters a guilty plea in a timely manner, that might be reduced to a range of 19 to 27 years imprisonment. In contrast, the Minister considered only the maximum sentence an offender would face in Canada for a corresponding offence of ten years under s 462.31 of the Criminal Code. Mr. Sheck is Indigenous, employed, has a long-term spousal relationship, and supports and is actively involved in parenting four children. It is unlikely that Mr. Sheck’s circumstances would result in the maximum sentence in Canada of ten years’ imprisonment. The authorities suggest that a sentence for money laundering alone in Canada could range from a conditional sentence of less than two years, to a custodial sentence of 18 months to five years (R v Rathor, 2011 BCPC 338; R v Garnett, 2017 NSCA 33; R v Lawrence, 2018 ONCA 676; R v Barna, 2018 ONCA 1034; R v Bui, 2006 BCCA 245; R v Abdel, 2019 ONSC 690; R v Williams, 2019 NBPC 1; R v Rosenfeld, 2009 ONCA 307). The Minister cannot have truly appreciated the gross disparity between the two potential sentences the accused would face.

The Minister also failed to consider the impact of separating the accused from his children in the context of their common Indigenous heritage. Historically, the government-approved residential school program separated Indigenous children from their parents and communities, depriving them of their Indigenous culture and often subjected them to abuse. In numerous contexts, not just sentencing or extradition, the courts are called upon to consider the legacy of harm to the Indigenous peoples in Canada when determining a legal right or remedy (United Nations Declaration on the Rights of Indigenous Peoples; United Nations Convention on the Rights of the Child; Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Specifically, in the “Calls to Action”, the TRC Report identified five action items relating to Indigenous child welfare, including keeping Indigenous families together where safe to do so.

Troller v Manitoba Public Insurance Corporation, 2019 MBQB 157

Application denied. The actions of the Manitoba Public Insurance Corporation to limit the Applicant’s freedom of expression on his personalized license plate are a reasonable restriction in a free and democratic society.

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The Applicant is a resident of Winnipeg, Manitoba and an enthusiast of Star Trek, a science fiction television and movie franchise. He requested, and was granted, a personalized licence plate [“PLP”] from Manitoba Public Insurance Corporation [“MPI”] with the combination of letters and a number “ASIMIL8”. He asserts that this combination is a reference to a Star Trek character, the Borg and displayed the PLP for almost two years without incident. However, he was notified by MPI that the PLP was considered offensive and was demanded its immediate surrender, to which the Applicant complied.

The Supreme Court of Canada instructed a court as to how it should address an alleged violation of freedom of expression; s 2(b) of the Charter (Irwin Toy Ltd v Quebec (AG), [1989] 1 SCR 927 [“Irwin Toy”]). This Court found that “ASIML8” does attempt to convey a meaning and meets the first step, as the word itself does not attempt to convey a violent form of expression. This expression is within the protected sphere of conduct. The second step was to determine if the method of expression or the location of the expression is entitled to s 2(b) protection. The third step as outlined in Irwin Toy, was to determine whether the purpose or effect of the government action was to restrict freedom of expression. It was established that MPI’s purpose was to restrict the Applicant’s expression. The s 2(b) analysis in this case turns on the second step, the location of this expression.

The test for location, with respect to expression on government-owned property, is whether the place is public and where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s 2(b) is intended to serve: 1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors were considered: a) the historical or actual function of the place; and b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression (Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62). The presence of a PLP, like advertising on a bus, is in the public space, not a private space.

Section 1 Charter rights and freedoms, however, are limited in scope and sets Canadian jurisprudence apart from American jurisprudence on free expression. The Court found that Charter protections were engaged, and the proportionate balancing required an understanding by the Court of the PLP program (Doré v Barreau du Québec, 2012 SCC 12; Loyola High School v Quebec (AG), 2015 SCC 12). The MPI brochure sets out the restrictions for a PLP. Its review committee takes extensive steps to avoid unintended meanings outside of their collective knowledge. The Court accepted that “ASIMIL8” was originally approved because the search term entered was “asimilate” as opposed to “assimilate”. The error itself is of no import because MPI reserves the right to recall a PLP and the length of time it took in making the decision was not crucial. MPI believed that when they became apprised of a complaint, this decision required immediate attention and “falls within a range of reasonable alternatives” (RJR-MacDonald Inc v Canada (AG), [1995] 3 SCR 199).

MPI submits that offensiveness is a matter of community standards and the word “assimilate” when considered in the context of Canadian history is on its face objectionable. The assimilation of Aboriginal people was the official policy of the Government of Canada and the Prime Minister in 2008 formerly apologized on behalf of all Canadians for its implementation and ongoing effects (Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Given the history of assimilate, the mere presence of “ASIMIL8” is contrary to a respectful and welcoming environment.

The Court accepts that by choosing to display the PLP on his vehicle, the Applicant was not denigrating Indigenous people. The standard of review, however, is reasonableness. The action of the Registrar in revoking the PLP was determined to be reasonable. The Path to Reconciliation Act played a significant part in the decision. The policy of the assimilation of Indigenous people appears 151 times in the TRC report. The word assimilate has taken on a new meaning within this country. In order to meet the Doré test, the Charter right must be minimally impaired. Following the surrender of the “ASIMIL8” PLP, Troller chose a different word to express his love of the Borg character in Star Trek and was issued a new PLP.

R v Newborn, 2019 ABCA 123

Appeal dismissed. An accused is entitled to a fairly chosen representative jury, not to one with a particular composition. As well, the jury is entitled to have competing evidence on a critical issue before them.

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The Appellant was charged with murder for physically beating a man so severely that he died from the injuries two days later. The offence occurred on a train in front of other passengers, and was recorded by security cameras. The Appellant argued that the Crown could not prove the intent necessary for murder as the accused had a limited intellectual capacity with an IQ of 59 and a moderate cognitive impairment. The Appellant also challenged the jury selection process arguing that his right to a trial by an independent and impartial jury selection under s 11 (d) and (f) of the Charter had been violated, arguing that s 4(h)(i) of the Jury Act excludes persons who have been convicted of a criminal offence. This according to the Appellant is unconstitutional because it disproportionately excluded Aboriginal persons.

An accused is entitled to a fairly chosen representative jury, not to one with a particular composition (R v Kokopenance, 2015 SCC 28). The focus is on the process to select the jury, which must include the delivery of notices to citizens randomly selected from broadly based sources and the deliberate or systemic exclusion of segments of the population is not acceptable. Some limits on jury eligibility, however, are permissible.

It was concluded that the Appellant did not offer any satisfactory rational while his expert witness opinion would be admissible and beneficial to the jury, but the Crown’s rebuttal evidence on the same topic would not. While the Crown and defence experts approached the issue from slightly different perspectives, that does not reflect any error. Neither the Crown nor the defence is required to approach an issue in the way the other side frames it (R v DD, 2000 SCC 43). All of the evidence was relevant and admissible, despite its different assumptions and approaches. ­­The jury was given acceptable instructions regarding expert evidence from the trial judge.

Brake v Canada (AG), 2019 FCA 274

Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

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This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

Awashish v Conseil des Atikamekw d’Opitciwan et al, 2019 FC 1131

Motion dismissed. The Applicant failed to demonstrate he would suffer irreparable harm if a First Nation election proceeded, as he can pursue an adequate remedy for his complaint before the First Nation’s Appeal Board.

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A general election for the Conseil des Atikamekw d’Opitciwan was called for September 10, 2019. The elections are governed by an electoral code, where along with other conditions, all candidates must be ordinarily resident in Opitciwan. The Applicant was nominated for the position of Chief, but the Electoral Officer withdrew the name from the ballot because the Applicant does not reside in the community. The Applicant seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, discriminatory and contrary to the Charter. After he brought an application for judicial review of the Electoral Officer’s decision, the Applicant subsequently brought this motion for an interlocutory injunction. Despite a strong case shown on the merits, the Applicant has failed to demonstrate that he would suffer irreparable harm if his motion was not granted. There is an adequate remedy before the Opitciwan First Nation Appeal Board that would allow him to raise his Charter claims.

An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits but it is not a final resolution of the case. This takes into account that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution cannot be reached in a short time frame (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110; RJR–MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR”], and Harper v Canada (AG), 2000 SCC 57).

The first stage of a three part test requires the applicant to demonstrate a serious question to be tried, meaning neither frivolous nor vexatious. At the second stage, the Applicant must convince the court that irreparable harm would be suffered if an injunction is refused. The third stage of the test requires an assessment of the balance of convenience to identify the party that would suffer the greater harm from the interlocutory injunction, pending a decision on the merits. (R v Canadian Broadcasting Corp, 2018 SCC 5 [“CBC”]) It should not be believed in this highly contextualized and fact dependent framework, that the three components of this framework are completely independent of each other (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of SK Inc, 2011 SKCA 120).

This Court often hears motions for interlocutory injunctions in First Nations governance matters. The court’s discretion should be guided by the principle of self-government, and assess whether the various courses of action would facilitate decision-making by the First Nation itself (Gadwa v Joly, 2018 FC 568). Unlike a prohibitive injunction that has a relatively low threshold (RJR), a mandatory injunction directs the defendant to undertake a positive course of action. In these instances, a “strong prima facie case” is required. Upon a preliminary review of the application, the court must be satisfied that there is a strong likelihood that the applicant at trial will be successful in proving the allegations set out in the originating notice (CBC).

In this matter, the Applicant is not seeking to prevent the election from being held, but an order to include his name in the list of candidates. In certain cases, the result of the interlocutory motion will in effect amount to a final determination of the action, thereby, a more extensive review of the merits of the case must be undertaken (RJR). When the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established. If the injunction is granted, the election would be conducted with ballots that include the Applicant’s name, therefore he will have obtained what he wants, making it difficult to see how a hearing on the merits would be useful (Toronto (City) v Ontario (AG), 2018 ONCA 761).

The Applicant has demonstrated the existence of a serious question to be tried, but not a strong prima facie case. The trial judge dealing with this matter will assess the evidence presented to the court and come to the appropriate conclusions. Harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. The doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to them prior to applying for judicial review. This doctrine improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732).

The Election Code provides for the establishment of an appeal committee. Upon receipt of a complaint, the appeal committee conducts an investigation and, if founded, they may take all necessary measures, including ordering a new election. The Applicant could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. The Election Code also provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee which the Applicant could have done. The Court therefore concludes that the Applicant has a recourse that will allow him to put forward his Charter arguments and that he did not demonstrate irreparable harm. There was no need to fully address the balance of convenience.

 

R v Anugaa, 2018 NUCJ 2

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The unique cultural context and circumstances of Nunavut amount to a third category of exceptional circumstances with respect to the application of R v Jordan and its presumptive ceilings for trial delay.

This case involved two allegations of indictable historic sexual assault alleged to have happened in Sanikiluaq between May 2, 1977 and May 2, 1978. The accused, Lukasie Anugaa, was charged on July 8, 2013. Mr. Anugaa elected to be tried by a judge and jury. However, it turned into a case about pre-trial delay, in which five different jury trial dates were scheduled. Mr. Anugaa’s fifth and latest trial was scheduled to start on January 15, 2018. Over 54 months passed between the day Mr. Anugaa was charged and the anticipated end of his trial. Mr. Anugaa made a pre-trial application to the Court based on section 11(b) of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada decision’s in R v Jordan, arguing that his right to a trial within a reasonable time had been violated. Mr. Anugaa sought a stay of proceedings on this basis, which would have brought the case to an end. The Crown opposed the stay.

The Nunavut Court of Justice decided that the delay in the circumstances of this case had been reasonable. In 2016, the Supreme Court revisited its previous interpretation of section 11(b) of the Charter in Jordan. The Supreme Court set out presumptive ceilings in terms of the amount of time that would generally amount to an unreasonable delay between the issuance of charges and a criminal trial. The Supreme Court also discussed exceptional circumstances to the strict application of these presumptive ceilings. Two examples of exceptional circumstances listed in Jordan are “discrete events” and cases that are “particularly complex”. The delay caused by “discrete events” can be deducted from the remaining net delay. Where the case is particularly complex, no deductions are needed and the Court will instead consider if the complexity justifies the time spent on the case.

Central to the Nunavut Court of Justice’s analysis was the statement in Jordan that the list of exceptional circumstances is not closed. There are exceptional circumstances that surround access to justice in Nunavut as it sprawls over Canada’s vast northern landmass. Just to name a few, 38,000 people live in 25 remote communities scattered over Nunavut’s 2,093,190 square kilometres. There is only one courthouse, the Nunavut Court of Justice, located in Iqaluit. Outside Iqaluit, the Court travels regularly to each one of the other 24 far flung communities and the distances between them are immense. The circuit sits in school gyms, community halls and even council chambers. Many of the community halls lack functioning washrooms and heating systems fail leaving court participants to conduct court in their winter parkas and mittens. The harsh arctic climate is unforgiving, therefore flights are delayed or cancelled as blizzards are a regular occurrence. The cancellation of a court circuit has an impact out of proportion to a similar cancellation in the south as it means the possibility of no court in the community for an entire year, unless a jury trial has been scheduled. Jordan does not account for the impact of Nunavut’s tremendous infrastructure deficit, as the taxpayer money available to the Government of Nunavut is woefully inadequate. This level of service will continue despite the new Jordan rules.

In the Court’s view, Jordan is also problematic as it does not consider the unique cultural context in Nunavut. There is central importance of Inuit Qaujimajatuqangit. Nunavut’s communities are small and very closely knit. The Court stands down for burials and funerals and sentencing hearings are delayed in order to permit offenders to participate in seasonal hunts. The Court avoids scheduling jury trials during the extremely short arctic summers because it is a time when many Nunavummiut return to the land. This seasonal reality cannot be overstated and will continue in the future. Jordan only enumerates two subcategories which permit delay: exceptional discrete circumstances and exceptional case complexity.

In Mr. Anugaa’s case, the Court felt that the above was not enough to be described as “discrete events” as contemplated by Jordan. Rather, the way these events were dealt with reflected the very ethos of the approach of the delivery of justice in Nunavut. To apply Jordan justly in Nunavut, the Court held that there must be a third subcategory of exceptional circumstances which reflects the territory’s unique cultural context. The Court took the position that Jordan did not account for the need to respect and incorporate Inuit culture and experiences into the delivery of justice to Nunavummiut. The delivery of justice in Nunavut poses unique and unavoidable challenges in circumstances found nowhere else in Canada. Therefore, Mr. Anugaa’s application for a stay was rejected and the case was ordered to proceed to trial.

The parties were also at odds over where another trial should be held if the stay was not granted. The Crown brought an application to move the jury trial to a different community. It was argued that every eligible adult in Sanikiluaq had already likely been summonsed at least once to serve on the jury and fair trial interests required a change in venue, due to Mr. Anugaa being notorious in the community. The Court accepted that it was necessary to hold the trial in a different community in the unique circumstances of the case, as Mr. Anugaa is entitled to a jury of his peers but not entitled to a jury of his neighbours.

WSÁNEĆ School Board v BC Government and Service Employees’ Union, 2017 FCA 210

The Doré framework is applicable when an administrative tribunal’s decision making engages the underlying principles and values of section 35 of the Constitution Act, 1982, and such decisions are to be reviewed on the same standard of reasonableness.

This case involved an application for judicial review by the WSÁNEĆ School Board (the WSB) seeking to set aside a decision of the Canada Industrial Relations Board (CIRB). Specifically, the WSB challenged a decision of the CIRB to dismiss an application from the WSB in which it sought to exclude employees teaching WSÁNEĆ language, beliefs, and culture in the SENĆOŦEN Immersion Program from the all-employee bargaining unit of the BC Government and Service Employees’ Union (BCGSEU).

The WSB argued that including the SENĆOŦEN employees in an all-employee bargaining unit would negatively impact the constitutional rights of the WSÁNEĆ First Nations to control the transmission of their language and culture, as entrenched in ss 25 and 35 of the Constitution Act, 1982. The WSB submitted that the Canada Labour Code must be interpreted and applied in a manner that respects these constitutional rights and takes into account the values and principles that underpin them, including the need for reconciliation. The WSB also asserted that the CIRB had breached its procedural fairness rights by failing to grant it an oral hearing. The WSB had unsuccessfully sought an oral hearing before the CIRB on the basis that this would allow for an explanation of the WSÁNEĆ beliefs and teachings in accordance with their oral traditions.

The Federal Court of Appeal held that the CIRB’s decision to dismiss the application was reasonable and that the CIRB was not obligated to provide an oral hearing.

Writing for the court, Gleason JA accepted that correctness is the appropriate standard for determining whether an oral hearing is required as part of procedural fairness though he also stated that the circumstances in which a party’s procedural fairness rights may be said to be violated are narrow. With respect to the merits of the CIRB decision, Gleason JA noted that reasonableness was generally the applicable standard to CIRB decisions that interpret and apply the Canada Labour Code and held that WSB’s invocation of ss 25 and 35 of the Constitution Act, 1982 did not require him to reach a different conclusion here.

The WSB did not seek to have the CIRB rule on the scope of its Aboriginal rights to control education nor did it argue that such rights brought the labour relations of the SENĆOŦEN employees outside the purview of the Code. Instead, WSB invoked principles and values enshrined in ss 25 and 35 of the Constitution Act 1982, and argued that these required the CIRB to determine that the SENĆOŦEN employees should be excluded from BCSGEU. Gleason JA found this argument to be analogous to the those advanced in Doré v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR with respect to the need for an administrative tribunal to balance Charter values against other administrative law considerations. He accepted that the Doré framework could be applied to principles and values underlying s 35 of the Constitution Act, 1982.

Gleason JA invoked the principle that employee units should not be fractured without compelling evidence. As indicated by the CIRB, compelling evidence might include geographic factors, specific statutory provisions and the likelihood that a larger unit may not be viable. Ultimately, Gleason JA found that there was no evidence the WSB would lose their control over the way the SENĆOŦEN employers performed their duties. He also pointed out that the application may have been premature as there was no way to know whether the BCGSEU would accept terms and conditions that the WSB sought for the SENĆOŦEN employees and the WSB raised concerns about an eventual strike that were premature and theoretical in the absence of any evidence that a strike was likely.

With respect to procedural fairness, Gleason JA noted that the request for an oral history was neither clearly made nor well supported by the evidence. Moreover, he pointed out that it was well within the Court’s powers under the Canada Industrial Relations Board Regulations to decide the matter without an oral hearing, which the WSB knew prior to making their application.