Fontaine v Canada (AG), a CaseWatch Blog series of five case summaries

This is a special series of five Fontaine v Canada (AG) case summaries that involves the Chief Adjudicator of the Independent Assessment Process of the Indian Residential Schools Settlement Agreement.

 

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Fontaine v Canada (AG), 2018 ONSC 5197 (“The First Direction”)

Direction to terminate the Chief Adjudicator from his duties and all pending litigation that involves the Indian Residential Schools Settlement Agreement.

The Chief Adjudicator has been directed to be removed from his duties from the Independent Assessment Process (“IAP”), a central feature of the Indian Residential Schools Settlement Agreement (“IRSSA”). IRSSA is Canada’s largest and most complex class action settlement that was negotiated over ten years ago. The parties included Canada, representatives of the Indigenous Peoples in Canada, and of the religious organizations that operated Indian Residential Schools (“IRS”). They diligently worked to negotiate a fair, comprehensive and lasting resolution of the legacy of IRSs. The courts that approved the IRSSA have an ongoing role in supervising, implementing, and administering the IRSSA. A simplified and expedited process for the Courts to direct the IRSSA’s implementation and administration is known as a Request for Direction (“RFD”).

The IAP is an elaborate post-settlement claims adjudication process which include means for survivors to seek compensation for claims of serious abuse and other wrongful acts. The Chief Adjudicator’s duties are set out in the IRSSA and the role is responsible for the adjudication of IAP claims through the assistance of an administrative apparatus. The IAP must constitute an autonomous adjudicative body similar to a court and subject to court supervision. The Chief Adjudicator is retained on contract to ensure independence and reports directly to the courts that supervise the Settlement Agreement. The Chief Adjudicator is not independent, however, as judges are, as the role is accountable to the Supervising Courts. That approach is consistent with the leading authorities about the role of autonomous adjudicative bodies in matters before the courts (Ontario (Energy Board) v Ontario Power Generation IncOntario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner (“Goodis”)).

The Chief Adjudicator is obliged to report to the Courts at least quarterly. The most recent, the 43rd Quarterly Report to the Courts, was incomplete, as there were a number of unreported matters. The Chief Adjudicator had not only chosen to participate in several appeals before various appellate courts arising from the IAP, but had amplified that partisan position and now defies the Courts to which he is accountable. The Chief Adjudicator’s standing was challenged in the British Columbia Court of Appeal on a previous occasion, but he was permitted to participate as an intervenor, on the express understanding that his submissions would be limited to questions of jurisdiction and standard of review, but not touch on the merits. It was no answer for the Chief Adjudicator to point out that the Supreme Court of Canada and the British Columbia Court of Appeal had afforded him an audience. His standing in the pending appeals, and to make partisan arguments, has not been adjudicated and he did not advise the Supreme Court of his limited role under the IRSSA.

In connection with Canada’s RFD, the Chief Adjudicator’s counsel advised the Court that he intended to put on hold re-review cases that engaged what were called “procedural fairness” issues. He was directed that the matter be spoken to in open court, and it was made clear that for cases to be put on hold, a stay from the Court of Appeal would be required. No stay had been sought. Nevertheless, the Chief Adjudicator put a hold on the cases anyway. The Chief Adjudicator is an instrument of the IRSSA, not a stakeholder, not a party, and not an advocate for claimants or for itself. His role as an advocate is beyond his proper role, contrary to the scheme of the IRSSA and to the court orders that appointed him Chief Adjudicator. His partisan involvement has caused him to invite appellate courts to disagree with the very courts that are tasked with supervising him and to which he reports, which is unacceptable. His participation, akin to an intervention by an affected party, was not and is not required for a fully informed adjudication. The Chief Adjudicator should not be taking positions in matters arising from IAP decisions.

The goal of finality was contracted for and built into the IRSSA. Use by the Chief Adjudicator of procedural fairness as a means of re-opening IAP claims or holding them in abeyance pending the potential receipt of future admissions would compromise or defeat that important goal. Procedural fairness should not be used to avoid complying with the clear terms of the IRRSA, which preclude admission of new evidence on review or re-review and restricts reviews to the scrutiny of hearing adjudicators’ decisions for an overriding and palpable error. On re-review, the inquiry is limited to whether there was a misapplication of the IAP Model by the review adjudicator. The IAP Model requires that IAP adjudicators be impartial. It goes beyond the proper limits of the concept of procedural fairness to say that the discovery of new evidence is a sufficient basis for re-opening a hearing. Used in the context in which the Chief Adjudicator has used it in the IRSSA, “procedural fairness” is a misnomer, and one which erroneously invokes the administrative law paradigm. The IRSSA is a contract, and while the IAP Model provides an important means of redress to those who suffered abuse at IRSs, the courts and their officers must honour what was negotiated in the contract. Neither the courts nor the Chief Adjudicator should do anything that materially alters the bargain that the parties made. That bargain is set out in the IAP Model and when describing the concept of fairness in that context, the appropriate phrase is “IAP Model fairness”.

The Chief Adjudicator’s active and partisan involvement in the appeals mentioned above cause significant concern for this Court that there is a possible appearance of compromised impartiality. Partisan advocacy, or the appearance of bias, is antithetical to the role of a neutral decision-maker. A tribunal whose decision is under review is not automatically entitled to standing at common law, and a primary consideration in whether they should be permitted to address the Court is the importance of maintaining tribunal impartiality (Goodis). Another concern is that without disclosing in his reports that the Chief Adjudicator is challenging the Court’s supervision of the IAP, he has taken to challenging decisions of his Supervising Courts. The Chief Adjudicator’s actions amount to insubordination of the Courts to which he is accountable, and his conduct runs the risk of compromising his impartiality or the appearance of a compromised impartiality. These circumstances necessitated urgent corrective action on the part of this Court.

 

Fontaine v Canada (AG), 2018 ONCA 749

Relief granted. Direction issued that required the Chief Adjudicator to withdraw from his involvement in three appeals stayed and appeal allowed.

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), issued a Direction that required the Chief Adjudicator to withdraw from three appeals that he is involved in has been stayed and an appeal granted. The three-part test for a stay applies: 1) the applicant must demonstrate that there is a serious issue to be tried; 2) that it will suffer irreparable harm if the stay is not granted; 3) and that the balance of convenience favours a stay pending the disposition of the appeal (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 (RJR-MacDonald)).

The Court was satisfied that the Chief Adjudicator raised arguable grounds of appeal and serious questions to be determined. It is arguable that proceeding without notice and without submissions amounts to a denial of procedural justice. The Direction takes the form of a judicial order and the reasons given to support it are in the form of a judicial judgment, therefore, the usual norms of procedural fairness should have been followed. Of particular concern is the finding in the Direction that the Chief Adjudicator is guilty of “insubordination of the Courts to which he is accountable”. This is a finding of serious misconduct made against a lawyer without giving the lawyer an opportunity to respond. The Direction also relates to proceedings in other courts. The Chief Adjudicator is a respondent or an intervenor to the appeals in those other courts and is therefore subject to the control of those courts. The Chief Adjudicator accepts that he is subject to the usual limitations imposed upon administrative tribunals who participate in proceedings that challenge their decisions as outlined in Ontario (Energy Board) v Ontario Power Generation Inc, [2015] 3 SCR 147). There is an arguable issue as to whether the EAJ erred in assuming the authority to determine the nature and scope of the submissions the Chief Adjudicator should make in other courts. It is an issue as to whether the Chief Adjudicator has exceeded the limits of participation permitted for a tribunal in proceedings that challenge the tribunal’s decision.

The Court is satisfied that if a stay is denied, the Chief Adjudicator will suffer irreparable harm from being required to withdraw his factum and participation in an appeal before the Supreme Court of Canada, scheduled to be heard the next day. The balance of convenience favours granting a stay. If a stay is refused, the Chief Adjudicator’s participation in the appeals will be terminated. On the other hand, if the Chief Adjudicator’s participation exceeds the limits of what is permitted, the courts before whom the Chief Adjudicator appears can deal with that problem and limit his participation accordingly. It is accepted that where a stay would effectively determine the matter at issue, a court may go beyond the “serious issue to be tried” standard and grant the stay if the applicant shows a strong likelihood of success (RJR-Macdonald). The Chief Adjudicator has met that standard with respect to the issue of procedural fairness. Granting the stay will not preclude this Court from considering the general issues as to the nature of the relationship between the EAJ and the Chief Adjudicator on the appeal.

 

Fontaine v Canada (AG), 2018 ONSC 5706 (“Second Direction”)

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), rescinds his “First Direction” and issues a “Second Direction” to address his concerns and issues with the Chief Adjudicator.

A “Second Direction” rescinds and replaces the EAJ’s earlier Direction (Fontaine v Canada (AG), 2018 ONSC 5197) for the IRSSA. In the First Direction, the EAJ directed that the Chief Adjudicator of the Independent Assessment Process (“IAP”) to terminate his involvement in pending litigation before various appellate courts arising from the IAP, in which he advances partisan positions, thereby compromising the integrity of the IAP. The Chief Adjudicator sought and was granted a stay by the Court of Appeal, pending appeal (Fontaine v Canada (AG), 2018 ONCA 749), largely on the ground that he had been denied due process. The EAJ viewed the stay granted by the Court of Appeal as making the appeal of the First Direction largely moot in that the Chief Adjudicator will go ahead with submissions on an appeal scheduled to be before the Supreme Court of Canada.

Therefore the EAJ rescinds the First Direction and will follow a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns and to provide the Chief Adjudicator with a full hearing with due process. The EAJ appoints in the Second Direction an amicus curiae to bring a Request for Direction (“RFD”). This RFD shall be heard and determined at a joint hearing by a panel of two Supervising Judges, to be assigned in accordance with the Court Administration Protocol appended as Schedule “A” to the Implementation Orders. The Second Direction specifies five issues for the RFD to address and lists the materials to be considered. The issues to be addressed reflect similar concerns to those that motivated the First Direction.

 

Fontaine v Canada (AG), 2018 ONCA 832

Relief granted. Stay for the Second Direction nunc pro tunc from the date it was issued. The appeal granted for the Second Direction will be heard together with the appeal from the First Direction.

The direction, now called the “First Direction” (Fontaine v Canada (AG), 2018 ONSC 5197), has been rescinded by the Eastern Administrative Judge (“EAJ”) that supervises, along with other courts, the Chief Adjudicator who is in charge of the Independent Assessment Process (“IAP”) of the multi-billion dollar class action settlement agreement, the Indian Residential Schools Settlement Agreement (“IRRSA”). In the First Direction, the Chief Adjudicator was ordered to withdrawal from three appeals he was involved in, as there were concerns and issues the EAJ had regarding the Chief Adjudicator’s duties. From the EAJ rescinding and replacing his First Direction, with a “Second Direction”, it is arguable to this Court that it was done in violation of the functus officio principle. As the Supreme Court of Canada (“SCC”) stated in (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3 (“Doucet-Boudreau”)), the purpose of this principle is “to allow finality of judgments from courts which are subject to appeal”. The SCC recognized that allowing the court appealed from to vary its orders would allow that court to “assume the function of an appellate court and deny litigants a stable basis from which to launch an appeal” (“Doucet-Boudreau”).

It was also found arguable that the Second Direction amounted to an attempt to short-circuit the appeal to this Court from the First Direction. The Second Direction declared the appeal to this Court “largely moot”, rescinded the First Direction which removes the basis for the appeal, and purports to confer jurisdiction on two extra-provincial judges to decide some of the issues raised by the appeal. In addition, the terms of the RFD that the EAJ directed the amicus curiae to bring, appears to assume, if not decide, some of the issues raised before this Court in the appeal from the First Direction. The Second Direction is a final order from which an appeal lies to this Court. If the Second Direction rescinds the First Direction, it has the effect of ending the appeal from the First Direction, as the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction thus removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. An order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have that jurisdiction (Manos Foods International Inc v Coca-Cola Ltd,180 DLR (4th) 309 (ONCA)).

The Second Direction was made without notice and a hearing, thereby in violation of the principles of procedural fairness. It is unprecedented for a judge to purport to rescind an order after it has been made, appealed and stayed, thereby effectively ending the appeal and replacing it with another process. The issue of the Chief Adjudicator’s participation on court proceedings is one that affects all jurisdictions. It is arguable that a panel of two judges from different provincial and territorial superior courts should be avoided where the issue is hotly contested, as there could be risk of disagreement or conflicting results on appeal or even appeals. Irreparable harm could flow from allowing two parallel proceedings to unfold at the same time. There is a clear risk of inconsistent results that would cause confusion from which the Chief Adjudicator and the IAP would suffer serious harm. Conflicting results would also cause harm by bringing the administration of justice into disrepute. The balance of convenience favours granting a stay as it would allow these proceedings to unfold in an orderly manner and avoid duplicative proceedings that could lead to inconsistent results. The three-part test for a stay is met (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

 

Fontaine v Canada (AG), 2018 ONCA 1023

The First Direction and the Second Direction is ordered to be set aside. Any party is open to bring a Request for Direction regarding the issues in the directions, however, it must be conducted by a different supervising judge. This process must be carried out in a procedurally fair manner and the directions are limited in scope to the form and content of the reports.

The Indian Residential Schools Settlement Agreement (“IRSSA”) was designed to give some measure of redress to victims of a dark chapter in Canadian history. Since its implementation, tens of thousands of victims have been compensated and billions of dollars have been dispersed. It is near completion and that accomplishment is attributable in no small measure to the many people who are part of the Independent Assessment Process (“IAP”), including the appellant (the Chief Adjudicator), and the Eastern Administrative Judge (“EAJ”). The IRSSA establishes the IAP, a claims adjudication process that acts as a means of providing compensation to individuals who suffered abuse at Indian Residential Schools. The Chief Adjudicator is responsible for ensuring the proper implementation of the IAP. The Oversight Committee is provided by the IAP. The power of the Oversight Committee to appoint a Chief Adjudicator has been expressly limited and made subject to court approval, however, there is no concurrent limitation to terminate the Chief Adjudicator.

The “First Direction” was issued by the EAJ on his own motion and without notice to any party, that prohibited the appellant from continuing his participation in three appeals (the “Impugned Appeals”), one before the Supreme Court of Canada (“SCC”) and two before the British Columbia Court of Appeal (“BCCA”). The EAJ found the appellant to be insubordinate and in defiance of the supervising courts. His reasons were the appellant’s overtly partisan positions, based on the content of his facta and his participation in the Impugned Appeals that failed to be described in a recent quarterly report to the IRRSA Court Monitor. Also of concern in the First Direction, is the appellant’s efforts to hold re-review adjudications in abeyance, pending the outcome of an appeal that considered issues of procedural fairness in the IAP (Fontaine v Canada (AG), 2018 ONSC 5197). The EAJ directed the appellant to withdraw from the Impugned Appeals and remove his facta from the SCC and BCCA registries. The appellant filed a Notice of Appeal against the First Direction in this Court and moved for a stay pending the hearing of the appeal, which was subsequently granted.

The appellant was owed an elevated duty of procedural fairness and natural justice because the EAJ was exercising his judicial functions (A(LL) v B(A), [1995] 4 SCR 536). The EAJ’s power to supervise must be exercised in a manner that conforms to the principles of natural justice and respects the rights of the appellant to procedural fairness. The First Direction amounted to a warning that all the orders for the Chief Adjudicator must implemented by the deadline mandated by the EAJ, otherwise the appellant could face termination from his position. But the power to terminate the Chief Adjudicator resides with the Oversight Committee, not the EAJ. It must also be remembered that the appellant occupies a significant role in the administration of a multi-billion dollar class action settlement, thereby the First Direction compromised the appellant’s professional reputation and his ability to carry out his mandate as Chief Adjudicator.

Subsequently, the EAJ issued another direction (the “Second Direction”), again on his own motion and without notice to any party. The Second Direction purported to rescind the First Direction for the express purpose of avoiding appellate review. It directed “a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns” and “provide the Chief Adjudicator with a full hearing with due process, as he submits is his due” (Fontaine v Canada (AG), 2018 ONSC 5706). The appellant filed a Notice of Appeal against the Second Direction and moved for a stay pending determination of the appeal. It was granted along with the relief that the two appeals be heard together. This Court also accepted that the Second Direction violated the law of functus officio. Once the First Direction was issued, the EAJ’s jurisdiction over the matter was exhausted. While the First Direction was under appeal, he had no authority to rescind and replace it with the Second Direction. The principle of functus officio addresses the harm at issue in these appeals, namely that a lower court must not interfere with the jurisdiction of an appellate court (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3). Courts do not have the power to amend an order except in limited circumstances that have no application in this case.

This Court should not determine the substantive issues raised in the First Direction and the Second Direction. An RFD to the supervising courts is the process mandated by the Implementation Orders for applications regarding the administration of the IRSSA. Where a hearing is required, the administrative judges determine the jurisdiction in which the hearing should be held. Where the issues will affect all jurisdictions, the hearing may be directed to any court supervising the IRSSA. There is nothing in the Court Administration Protocol of the IRRSA that permits the courts to initiate their own process. Instead, it is contemplated that it is the parties that bring RFDs to the courts. If the respondent has a concern about that conduct, there is nothing preventing it from bringing a RFD. Engaging in the RFD process would permit all parties to adduce evidence, make submissions, and to receive the direction of the court. The IRSSA, the Implementation Orders, and the Court Administration Protocol provide a detailed procedure regarding the adjudication of issues that arise in the administration of the IAP. That process must be respected. While the courts have a supervising role, it is one that must be guided by the IRSSA and the Implementation Orders. The supervising courts are not free to graft on their own processes to the mandated RFD process.

 

 

 

 

 

 

Brown v Canada (AG), 2018 ONSC 3429

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Settlement Agreement, other than the legal fees provision, is approved. The $75 million legal fees provision is excessive, unreasonable and is not approved. Class counsel in Brown have agreed to de-link the legal fees provision from the rest of the Settlement Agreement. The Court should be advised when a revised section 11.01 has been agreed to by the parties.

(This is the third of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The Sixties Scoop has been nationally acknowledged as a “dark and painful chapter in Canada’s history”, prompting twenty-three actions across the country. The Ontario action, Brown v Canada, was the most advanced. After nine years of litigation, it was Brown that established Canada’s liability in tort to the Sixties Scoop survivors in Ontario. Canada agreed to settle Brown but only if the other actions were included in one nation-wide settlement.

Justice Michel Shore of the Federal Court mediated the national settlement. The parties reached an agreement in principle on August 30, 2017. The national settlement agreement (“the Settlement Agreement”) was formally executed on November 30, 2017. As part of the national settlement, the other actions were consolidated into an omnibus Federal Court action, referred to as the Riddle action. On May 11, 2018 Justice Shore approved the Settlement Agreement for the purposes of the Riddle action as he was satisfied that it was fair, reasonable and in the best interests of the class members. The Settlement Agreement is before this Court for a similar approval in the context of the Brown action. It is clear from the language in the Agreement that the approval of both courts is required and if any part of the Settlement Agreement is declined, then the Agreement will not take effect and Justice Shore’s approval order in Riddle would be rendered null and void.

This Court had two concerns, however, after reviewing the Settlement Agreement. The first concern was the reasonableness of the $25,000 to $50,000 payment as damages for the loss of one’s Indigenous cultural identity given the harm that was sustained by the class members. The Court was satisfied after reviewing all the evidence and potential pitfalls given the risks of further litigation, that the payment, although modest for the loss of one’s Indigenous cultural identity, was ultimately fair, reasonable and should be approved. The second concern involved the $75 million payment to class counsel for legal fees. The Court viewed the $75 million for legal fees as excessive, unreasonable and was not approved. The focus is the global payment of $75 million in legal fees and not the internal divisions agreed to by class counsel.

The two most important factors in determining the reasonableness of legal fees are risk incurred and results achieved. It is the risk incurred that “most justifies” a premium in class proceedings and is primarily the risk of non-payment. In a case where a class action has been settled with a minimal investment of time or effort, the risk of non-payment causing “personal consequences” to class counsel is relatively insignificant. In a case where the settlement has been achieved after many years of effort with an enormous investment of time and money, the risk of non-payment causing “personal consequences” to class counsel can be significant. Windfalls should be avoided because class action litigation is not a lottery and the CPA was not enacted to make lawyers wealthy.

The percentage of the fund approach that bears no relation to the significance of the risk incurred should not be used in a mega-fund settlement. In Cannon, the Court embraced the percentage of the fund approach because almost all of the settlements were under $40 million. The Cannon percentage of the fund approach remains viable but should be limited to settlement amounts that are common-place, that is, under $50 million. Cannon should never be used in the mega-fund case where the settlement or judgment is more than $100 million. If there is evidence before the Court that the requested legal fees are excessive, the class action judge should examine the risk incurred to help decide whether the amount being requested by class counsel is indeed fair and reasonable.

The risk incurred by class counsel in Brown was, in a word, enormous. Bluntly put, it was as close a case of class counsel “betting the firm” as had been seen. The nation-wide settlement with Canada for some 23 actions, was fuelled in large part by what was achieved in the Brown action. It was therefore beyond dispute for the Court that class counsel in Brown deserve a significant premium in the calculation of their legal fees. Compared to Brown, the risks incurred by class counsel in Riddle are at the opposite end of the spectrum and were not significant. The evidence strongly suggested opportunistic filings and that the risks incurred by the Riddle class counsel in their respective actions did not justify a Cannon-type percentage of the fund approach.

Because the $75 million legal fees provision is not approved, the rest of the Settlement Agreement cannot take effect unless the legal fees provision is de-linked from the other settlement provisions that have been approved. Class counsel in Brown have agreed to de-link the $75 million fees provision from the rest of the Settlement Agreement in the interests of their class members. Class counsel in Riddle have not yet agreed to any such de-linking. The Settlement Agreement has gone back to the negotiating table with the focus being the $75 million legal fees provision, at least for class counsel in Brown. The Court commented that it would be beyond tragic if the Sixties Scoop Settlement Agreement was derailed or delayed because of an unseemly squabble among class counsel over legal fees.

Riddle v Her Majesty the Queen, 2018 FC 641 [Sixties Scoop Class Action]

Wiyasiwewin Mikiwahp Native Law Centre

This action is certified as a class proceeding. The Settlement Agreement has been approved with the modification that there is dissemination of its information to every part of Canada to ensure that every eligible person receives the payment allotted for such.

(This is the second of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The precedents in Brown v Canada are historical and exemplary in the understanding of cultural identity as essential to the human personality. By an order dated January 4, 2018, Riddle, White and Charlie Actions were consolidated. The Parties agree that the Settlement per approval in Brown v Canada in the Ontario Superior Court of Justice and in the action constituted in the Federal Court be consistent with the terms of the Settlement Agreement.

Twenty-three class proceedings at different stages were at one time across Canada including Ontario, Manitoba, Saskatchewan, Albert and British Columbia in respect of the Sixties Scoop. These actions sought “damages for the harm that was caused… by the alleged breaches of fiduciary and common law duty on the part of the Federal Crown” (Brown v Canada (AG), 2013 ONSC 5637). On February 1, 2017, the Federal Government announced its intention to initiate mediation in regards to the Sixties Scoop litigation across the country. During the mediation, a wide, all-encompassing range of comprehensive topics were discussed and negotiated.

The essential terms of the Settlement are as follows: (1) a Foundation with a mission to enable change and reconciliation as well as access to healing, wellness, commemoration and education; (2) Eligible Class Members; (3) The Compensation Scheme: Canada will not be required to pay more than $750,000,000.00. Depending on the number of Approved Claimants, each Eligible Class Member who submits a claim shall receive a compensation of a maximum $50,000; (4) The Claims Process: is intended to be simple, paper-based, cost effective, user-friendly and to minimize the burden on the applicant by a one page form; (5) Releases: The class members agree to release Canada from any and all claims that have been pleaded or could have been pleaded with respect to their placement in foster care, Crown wardship or permanent wardship, and/or adoption; (6) Opt-outs: Should 2,000 class members opt out, Canada, in its sole discretion, may decide not to proceed with the Settlement Agreement and shall have no further obligations in this regard; (7) Legal Fees: the payment of Class Counsel from a separate Fund. Class counsel further agrees to perform any additional work required on behalf of class members at no additional charge; (8) Settlement Approval: The Parties agree that the Settlement per approval in Brown v Canada in the Ontario Superior Court of Justice and in the action constituted in the Federal Court be consistent with the terms of the Settlement Agreement.

There was some objection to the quantum of legal fees. The Court agreed that the fees sought are fair and reasonable, mainly because class counsel will remain available to the claimants following the approval of the Settlement and because the requested fees are less than 10% of the overall global payment. This litigation is “historically unique” and was “inherently fraught with risk”. The Court takes into account that the claims in this class action refer to a loss of cultural identity. These cases undoubtedly pose a significant litigation risk to be assumed by Class counsel (Manuge v Canada, 2014 FC 341). The legal fees are intended to “encourage counsel to take on difficult and risky class action litigation” (Abdulrahim v Air France, 2011 ONSC 512). The parties’ commitment in the inauguration of the Settlement, is one of the reasons the result achieved was successful and were able to avoid delays and expensive costs associated with individual hearings by which to compensate class members.

It was undeniable that “bringing closure is critical” for the survivors of the Sixties Scoop. Without a settlement agreement, the risks include: (a) national certification order may not be granted; (b) a fiduciary duty may be found not to be owed, as in Ontario; (c) liability might not be established; (d) statutory limitation periods could bar many or all of the class’ claims; (e) an aggregate award of damages could be denied by the court forcing class members through lengthy and protracted individual assessment; (f) proven damages could be similar to or far less than the settlement amounts; (g) ordering reconciliation, commemorative or healing initiatives, of the nature the Foundation is tasked with, would have been outside the jurisdiction or purview of any court to order. The Court viewed the Settlement Agreement as fair, reasonable and in the best interests of those affected by it.

Brown v. Canada (AG), 2017 ONSC 251 [Sixties Scoop Class Action]

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Motion granted for summary judgment of the certified common issue of the Sixties Scoop class action. Liability of the federal government was found in favour of the class members.

(This is the first of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The Court, and both parties, agree that the common issue should be summarily decided. Brown v. Canada (AG), 2010 ONSC 3095 was certified as a class proceeding. The certified common issue, which focused on the liability of Canada, was answered in favour of the class members. The class action has proceeded to the damages stage.

The Sixties Scoop happened and great harm was done. There is no dispute about the fact that thousands of Aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period and were placed in non-Aboriginal foster homes or adopted by non-Aboriginal parents. It was Patrick Johnson, the author of a 1983 research study on “Native Children and the Child Welfare System” that coined the name “Sixties Scoop.” He took this phrase from the words of a British Columbia child-protection worker who noted that provincial social workers “would literally scoop children from reserves on the slightest pretext.” There is uncontroverted evidence of the impact on the removed Aboriginal children. The loss of their Aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives. The issue before the Court was whether Canada can be found liable in law for the class members’ loss of Aboriginal identity after they were placed in non-Aboriginal foster and adoptive homes.

Canada entered into the Canada-Ontario Welfare Services Agreement (“the 1965 Agreement”) in December 1, 1965 to December 31, 1984 (19 years), and is at the core of the common issue. The focus of the common issue is the action or inaction of Canada (not Ontario) and only on the time-period after the Aboriginal children had been placed in non-Aboriginal foster or adoptive homes. Therefore, the common issue asks whether Canada had and breached any fiduciary or common law duties to take reasonable steps in the post-placement period to prevent the class members’ loss of Aboriginal identity.

The class definition includes the estimated 16,000 Aboriginal children who were removed from reserves in Ontario and placed in non-Aboriginal foster homes or adoptive homes. The stated goal of the 1965 Agreement was to “make available to the Indians in the province the full range of provincial welfare programs” and also reflected Canada’s concern that the extension of the provincial laws would respect and accommodate the special culture and traditions of the First Nations peoples living on the reserves, including their children. Ontario’s undertaking to extend the provincial welfare programs as set out in section 2(1) was made “subject to (2).” Sub-section 2(2) of the Agreement said “[n]o provincial welfare program shall be extended to any Indian Band in the Province unless that Band has been consulted by Canada or jointly by Canada and by Ontario and has signified its concurrence.” This section was intended to include explanations, discussions and accommodations. It was meant to be a genuinely meaningful provision.

No Indian Bands were ever consulted before provincial child welfare services were extended to the reserves. The Court found that by failing to consult the Indian Bands, Canada breached s 2(2) of the 1965 Agreement. Nothing in s 2(2) explicitly obliged Canada to actually undertake the consultations referred, however, the undertaking to do so can be implied from the language and context of the provision. A contractual term can be implied if it is a contractual term that must have been intended by the parties and is necessary or obvious in light of the particular circumstances of the agreement. If Canada had honoured its obligation to consult the Indian Bands under s 2(2) of the 1965 Agreement, the information about the child’s Aboriginal identity and culture and the available federal benefits would have been provided years sooner. Canada failed to take reasonable steps to prevent the loss of Aboriginal identity in the post-placement period by failing, at a minimum, to provide to both foster and adoptive parents the kind of information that was finally provided in 1980 and thereafter.

The Court found on the applicable law that Canada’s liability cannot be established under fiduciary law but can be established under the common law. In the Court’s view, s 2(2) and the obligation to consult created a common law duty of care and provided a basis in tort for the class members’ claims. The common law duty of care arose out of the fact that the 1965 Agreement is analogous to a third-party beneficiary agreement. Canada undertook the obligation to consult in order to benefit Indian Bands (and by extension, Indians living on the reserves, including children). The Indian Bands are not parties to the Agreement, but a tort duty can be imposed on Canada as a contracting party in these circumstances.

Case Watch for November 2016

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The following decisions came across our desk over the past month:

Equality rights of Métis children & families in child protection

Catholic Children’s Aid Society of Hamilton v GH, 2016 ONSC 6287: The Ontario Superior Court of Justice released a decision in a Crown wardship application where it was found that the definitions of “Indian”, “Native person”, and “Native child” in Ontario’s Child and Family Services Act were invalid on the basis that they unjustifiably infringe s 15 of the Charter. The Court found that the impugned definitions do not extend to all individuals who self-identify as being Aboriginal. In fact, all parties conceded that they do not extend to Métis children. The Court also found that the Act afforded significant special protections for individuals falling into these definitions at every stage of a child protection intervention. The Court recognized that all Aboriginal peoples, including Métis, have been subject to a legacy of prejudice, stereotyping, and disadvantage. With this context in mind, the Court determined that the definitions created distinctions based on the analogous ground of “Aboriginality without membership in a community designated as “Native” under the [Act]”. It also concluded that these distinctions created or perpetuated disadvantage for Métis children and their families due to their inability to access the special protections under the Act. In conducting this analysis, the Court noted that the Act clearly created these unfair and objectionable disadvantages on its face and this could be discerned through logical reasoning alone. There was no need for social science evidence and empirical data. As no s 1 argument was advanced, the infringement was not saved. A suspended declaration of invalidity was issued and it was ordered that the Métis child in this case be treated as if he were an Indian, Native person or Native child within the meaning of the Act.

Inadequate investigation of vote-buying allegations by INAC

Good v Canada (Attorney General), 2016 FC 1272: The Federal Court released a decision allowing in part an application for judicial review of INAC’s dismissal of an election appeal under the Indian Act. The applicant first unsuccessfully sought to appeal the March 2014 election of the Red Pheasant First Nation through INAC based on allegations of misconduct by the electoral officer and corruption in the form of vote-buying. She then sought judicial review of INAC’s rejection of that appeal. However, a subsequent election had since taken place in March 2016. The Court found that INAC’s delegate erred by choosing to dispense with any investigation of the applicant’s vote-buying allegations and proceeding to dismiss the appeal on the basis that corruption had not been proven on a balance of probabilities. The Court noted that this approach appears to have become settled practice within INAC’s Elections Unit. While the Court was sympathetic to INAC’s desire to streamline its management of appeals, it had significantly changed the very nature of the appeals process in a manner tantamount to attempting to amend the law via internal policy. The Court took no issue with how the delegate addressed the issue of electoral officer misconduct, but found that the delegate’s refusal to investigate conflicting evidence on vote-buying was unreasonable, based upon an error of law and procedurally unfair. While these issues were moot due to the subsequent election, the Court exercised its discretion to deal with the central controversy between the parties as roughly 40% of First Nations hold elections under the regime at issue in this case.

Relevance of Aboriginal equity stake to remedy in consultation case –

Michipicoten First Nation v Ontario (Minister of Natural Resources and Forests), 2016 ONSC 6899: The Ontario Superior Court of Justice dismissed an application for judicial review of provincial approvals for the Bow Lake Wind Farm Project on the shared traditional territory of the Michipicoten and Batchewana First Nations in northeastern Ontario. Michipicoten argued that the Crown breached its duty to consult and sought to quash the approvals, preclude further approvals until more consultation takes place, and have the court remain seized of remedies or order removal of the infrastructure, remediation of the lands, and costs. The Court noted that Michipicoten had inexplicably delayed several months in pursuing and perfecting its application for judicial review, which caused the proponent and Batchewana, which has a 50% interest in the project, serious harm. For this reason, the Court dismissed the application on its own motion. In the alternative, the Court went on to conclude that consultation was adequate as Michipicoten failed to provide any evidence of potential adverse impacts on its Aboriginal or treaty rights in spite of many requests to do so. Furthermore, the Court concluded that the remedy sought in terms of decommissioning the project was inappropriate. Michipicoten argued that a proponent’s commercial interests may not come into play in determining the balance of convenience in a consultation dispute between the Crown and an Aboriginal community. However, the Court found this principle inapplicable in this case since Batchewana would face irreparable harm if the relief sought was granted.

Validity of a Will under the Indian Act not providing for spouse –

Poitras v Khan, 2016 SKQB 346: The Saskatchewan Court of Queen’s Bench allowed an application for letters probate under a Will created pursuant the Indian Act. The testator met the man who became her husband and married him after she had already made her Will. Under provincial legislation, the testator’s spousal relationship would have automatically revoked her Will. However, the testator was a status Indian living on reserve and there was no such provision under the Indian Act to invalidate her Will automatically. Under the Indian Act, the Minister had the power to declare the Will void if it imposed hardship on persons to whom the testator had responsibility or was contrary to the interests of the band or the public. In this case, the Minister had referred the matter to the Court, conferring its power to declare the Will void on the Court. The testator’s husband, Mr. Khan, sought to invoke this power on the basis that he was not provided for in the Will. The Court confirmed the validity of the Will, but also noted that Mr. Khan could still potentially seek a claim for one half of the testator’s family property accrued from the date of marriage until death under provincial legislation.

Canadian Human Rights Tribunal’s jurisdictional limits re: Indian Act –

Beattie v Canada (Attorney General), 2016 FC 1328: The Federal Court dismissed an application for judicial review of a decision of the Canadian Human Rights Tribunal where a complaint was dismissed as being solely a challenge to legislation beyond the Tribunal’s jurisdiction. The applicant, Mr. Beattie, sought to register two leases and an assignment of lease in the Indian Lands Registry. The Registrar rejected the applications on the basis that the leases did not include the Crown as a party and no ministerial approval had been provided. Since the leases could not be registered, the assignment could not be registered either. As a result of this decision, the applicants brought a complaint to the Tribunal alleging that the respondent had discriminated against them on the basis of their race, national or ethnic origin by denying a service customarily available to the public. The Tribunal dismissed the complaints on the basis that they were beyond its jurisdiction since they were challenging the Indian Act itself, which obliged the Registrar to reject the leases and assignment. The Court was satisfied that the Tribunal’s decision was reasonable and it was reasonable to rely on other Federal Court and Tribunal decisions where such challenges to legislation were dismissed as beyond the Tribunal’s jurisdiction. The Court also rejected the applicants’ assertion that title to the reserve lands at issue in this dispute were vested in an individual pursuant to either a Certificate of Possession or customary tenure.

Court’s duty to explicitly consider & inquire into Gladue factors –

R v Park, 2016 MBCA 107: The Manitoba Court of Appeal allowed an appeal from sentence for impaired driving and drug possession due in part to the sentencing judge’s failure to adequately consider Gladue factors. It was conceded that defence counsel during the sentencing hearing did not address Gladue factors other than to note that the accused was Aboriginal. No Gladue report was ordered. The Crown argued that defence counsel expressly waived the Gladue rights of the accused whereas counsel for the accused on appeal argued that the Court had a duty to make further inquiry when no advocacy was provided on Gladue factors during sentencing. The Court of Appeal found there was no express waiver in this case. Defence counsel at sentencing acknowledged there were Gladue factors but focused on other arguments. A waiver must be express and clear. Both defence and Crown counsel have an obligation to bring forward Gladue information. Where that does not happen, the Court may need to go further and has a duty to at least make further inquiries. The Court must also make explicit its consideration of Gladue factors and its determination that it has adequate information on those factors before it. It is unsatisfactory for both the offender and the public to have to infer such circumstances were properly considered. The sentencing judge failed to expressly confirm that Gladue factors were considered and failed to clarify defence’s reliance on Gladue, which in turn had an impact on the sentence. The sentence was varied.

No need for ‘linkage’ between Gladue factors & offence –

R v Predham, 2016 ABCA 371: The Alberta Court of Appeal allowed an appeal from sentence with respect to convictions for driving while disqualified, breach of recognizance, failure to appear and possession of a stolen licence plate. The appellant argued that the sentencing judge erred in failing to give appropriate weight to his Gladue factors, among other things. In particular, the appellant took issue with the sentencing judge’s reasons where it was suggested that Gladue factors were less relevant to the offence of driving while disqualified in the absence of alcohol, drugs or violence. The sentencing judge stated that there must be “some relationship between the Gladue factors and the offending in order for there to be that sort of linkage”. The Court of Appeal held that it was an error of law to require a linkage between Gladue factors and the offending conduct. The Court stated that it is also an error to carve out a certain category of offences as being immune from the Gladue analysis. The Court was also satisfied that the sentencing judge’s error influenced his ultimate decision. The sentence was varied.

Injunction against Cleveland baseball team’s name & logo denied –

Cardinal v Major League Baseball, 2016 ONSC 6929: The Ontario Superior Court issued its reasons for dismissing an urgent interim injunction application to restrain the Cleveland baseball team, Rogers Communications, and Major League Baseball (MLB) from displaying the team’s name or logo during a game in Toronto and while the underlying federal and provincial human rights complaints proceed. In the underlying complaints, the applicant, Douglas J. Cardinal, is alleging that the use of the team’s name and logo constitutes prohibited discrimination and harassment against him on the grounds of race, ancestry, colour, ethnic and national origins, and constitutes a publication or display intended to incite infringement of the Ontario Human Rights Code. The Court held that it had jurisdiction over the application, rejecting MLB’s argument that it ought to allow the United States Supreme Court to determine the underlying issues in this case based on principles of comity. The Court was also satisfied that the parties raised serious issues to be tried in terms of whether a service had been offered and whether the team’s name and/or logo offend the provisions of federal and Ontario human rights legislation, as well as the relevance of MLB’s freedom of expression to the dispute. However, the Court did not accept the applicant’s assertion that he would sustain irreparable harm if an injunction was not granted, noting that damages were available and disputes over use of the impugned name and logo have been ongoing for years. The Court noted that the applicant sought a change to the status quo and his last minute application, if granted, would materially prejudice the respondents. The issue of delay went to both the question or irreparable harm and the balance of convenience.

Settlement approved in Newfoundland & Labrador school claims –

Anderson v Canada (Attorney General), 2016 NLTD(G) 179: The Newfoundland and Labrador Supreme Court approved the terms of a $50 million settlement in a class action brought by Aboriginal individuals who attended schools, dormitories or orphanages in the province between 1949 and 1980. The plaintiffs claimed that Canada breached a fiduciary duty to the students who attended these facilities to protect them from actionable physical or mental harm. The Court was satisfied that the settlement was fair, reasonable, made in good faith, and in the best interests of the class as a whole. It was also satisfied that the fees and disbursements of the plaintiffs’ counsel were fair and reasonable. The settlement includes both General Compensation Payments for years that students resided at the facilities at issue, and Abuse Compensation Payments that depend on the harm individual students suffered. The settlement provides for a confidential paper-based claims process and Canada is committed to funding mutually agreeable commemoration and healing initiatives over and above its compensation funding.

Tax Court’s exclusive jurisdiction over tax assessment challenges –

Horseman v Canada, 2016 FCA 252: The Federal Court of Appeal dismissed an appeal from a decision to strike the appellant’s claims as falling under the exclusive jurisdiction of the Tax Court of Canada. The appellant received a Notice of Assessment and Requirement to Pay $59,000.06 of outstanding GST. He initiated this Federal Court action for a declaration that the Requirement to Pay is null and void and contrary to the Indian Act, Treaty No. 8, and s 35 of the Constitution Act, 1982. The Court found that this challenge was properly characterized as an indirect challenge to a tax assessment, making it plain and obvious that the Tax Court had exclusive jurisdiction. The Tax Court has jurisdiction to consider the constitutional validity, applicability or operability of federal legislation and regulations and can issue remedies if a notice of constitutional question is properly served. It is also well-established that the Tax Court can determine claims under s 87 of the Indian Act over the applicability of tax requirements, or involving tax exemption claims under Treaty No. 8. Such assertions are properly tested in the Tax Court.

Provincial human rights tribunal’s jurisdictional limits re band store –

Dinsmore v Slenyah Store, 2016 BCHRT 176: The British Columbia Human Rights Tribunal dismissed a human rights complaint alleging discrimination in the area of employment on the basis of colour or race with respect to a business in Fraser Lake, British Columbia known as the Slenyah Store. The business was operated by the Stellat’en First Nation up until April 2014. The majority of its customers are status Indians who are able to purchase gas and cigarettes at tax exempt rates there. In 2013, the store was in serious financial difficulty. It was kept afloat via overdraft protection from Stellat’en and Stellat’en paid the store’s back taxes to get it out of its financial difficulties. In 2014, the store was incorporated to be operated at arm’s length through a limited partnership. As a result of these changes, all the store’s employees were laid off by Stellat’en and encouraged to reapply for positions with the limited partnership that would operate the store going forward. The Tribunal found that while the store was operated by Stellat’en it was an integral part of the First Nation’s overall governance and operations. Its purpose was to permit members to avail themselves of their tax-free status, it was financially integrated with the First Nation, its employees were employees of the First Nation, and its operations were continuously concerned with the status, rights and privileges of Stellat’en’s members. As a result, the store fell under federal jurisdiction and outside the Tribunal’s jurisdiction while it was operated by Stellat’en. While operated at arm’s length through a limited partnership, however, the store was a provincial undertaking subject to the Tribunal’s jurisdiction. The Tribunal went on to dismiss the complaint against both entities on the ground that it had no reasonable prospect of success if it were to proceed on its merits.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan

Case Watch for October 2016

FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Jurisdiction of superior courts over transboundary Aboriginal rights

Uashaunnuat (Innus of Uashat and Mani-utenam) c Iron Ore Company of Canada, 2016 QCCS 5133 (in French only): The Superior Court of Quebec dismissed an application from the defendants to strike portions of the plaintiffs’ claims. The Innu plaintiffs are suing the defendants, a mining company and a railway company, for $900M in damages for alleged harms to their section 35 rights within their traditional territory, the Nitassinan, which covers a large portion of the Quebec-Labrador peninsula. The defendants argued that to the extent the plaintiffs’ claims relate to land outside Quebec’s borders, those claims are outside the jurisdictional competence of the Quebec Superior Court, as per the Quebec Civil Code. The claims are premised on asserted Aboriginal rights and title, as well as treaty rights. In determining this application, the Court noted the need to consider the Aboriginal perspective when addressing section 35 rights, the sui generis nature of these rights, and the fact that recognition of these rights is ancillary to the primary focus of this litigation, which is on damages. The Court also rejected forum non conveniens and Crown immunity arguments. It noted in the latter case that the section 35 rights of the Innu are existing rights, not rights created by the courts, and should therefore not differ as between Quebec and Labrador.

Freedom of expression in context to injunction application for blockade

Siksika Nation v Crowchief, 2016 ABQB 596: The Alberta Court of Queen’s Bench granted the Siksika Nation an interlocutory injunction against a group of its members to prevent them from interfering with its contractor’s efforts to rebuild homes in an on reserve development. The respondent stated that his purpose for initiating the blockade was to draw attention to alleged issues of oversight, accountability and transparency with respect to the applicant’s use of financial resources on this project, among other things. The respondent invoked his Charter right to freedom of expression in defence of the protest and blockade. The Court found that the applicant was able to meet the test for an interlocutory injunction. The Court also held that the Charter did not apply in the circumstances, since the injunction was aimed at ensuring the applicant and its contractor could fulfill the terms of a private agreement, and the applicant was not seeking to prevent the respondents from pursuing legal avenues to express their dissent. The Court further concluded that the injunction would be a justifiable infringement of the respondents’ Charter rights even if the Charter had applied.

Annuity claims and the unique context of each Numbered Treaty –

Horseman v Canada, 2016 FCA 238: The Federal Court of Appeal dismissed an appeal from a Federal Court decision that declined to certify a proposed class proceeding for treaty annuities owed under each of the Numbered Treaties. The Federal Court had concluded that there was insufficient commonality between the circumstances of each treaty’s annuity clause for the purposes of a class action. The Court of Appeal upheld the decision and substantially agreed with the Federal Court’s analysis. It held that treaty interpretation requires an intensive inquiry into the mutual intent of the parties and the purposes for which they entered treaty. Due to the unique historical, cultural, and economic context surrounding each treaty, class proceedings would likely not have issues of commonality unless they were limited to a particular Numbered Treaty.

Admission of extrinsic evidence re: duty to consult on judicial review –

Sipekne’katik v Nova Scotia (Minister of Environment), 2016 NSSC 260: The Supreme Court of Nova Scotia allowed the admission of affidavit evidence beyond the record in a statutory appeal from ministerial approvals under Nova Scotia’s Environment Act. The approvals were for the development of an underground natural gas storage facility. Sipekne’katik claim Aboriginal and treaty rights to hunt and fish in the area where the project will be developed. The Court held that evidence beyond the record would only be admissible in exceptional circumstances, such as breaches of natural justice and procedural fairness. All parties relied on the Crown’s duty to consult falling within the broad heading of a “breach of procedural fairness” in order to argue that their respective affidavits were admissible. The Court noted that affidavit evidence would not be admissible merely because the honour of the Crown was raised as an issue. They must relate to the scope and content of the duty to consult and whether that duty has been fulfilled. Under this test the Court accepted all the affidavits, subject to the striking of some argumentative portions.

Injunction granted against logging blockade –

D.N.T. Contracting Ltd v Abraham, 2016 BCSC 1917: The Supreme Court of British Columbia granted a logging company’s application for an injunction prohibiting members of the Takla Lake First Nation (TLFN) from blocking, physically impeding, or delaying access to harvesting sites under a timber licence. Members of the TLFN stated that their burial sites and traditional territory were within the cut block boundaries of the licence. They also stated that TLFN receives a larger number of consultation referrals than they can manage due to their small size and financial management issues from previous administrators. TLFN indicated it was willing to negotiate with the applicant and allow the logging if accommodation could be reached. The Court held that the blockade constituted irreparable harm as further delays would threaten the economic standing of the company’s operations and harm it significantly. The Court held that TLFN should have brought its issues forward during the consultation process before the licences were approved, rather than threatening the administration of justice by blocking access to the harvesting sites long after the time for consultation had passed.

Appraisal of lease rates for on reserve recreational properties –

Schnurr v Canada, 2016 FC 1079: The Federal Court resolved three common issues in a class action lawsuit filed by a group of on reserve cottagers. The plaintiffs are disputing a rental increase proposal of up to 700% for each year of a five-year rental term. The primary issue was the appropriate methodology for determining the fair market rental value of the leased properties. The Court determined that the appropriate method was to consider comparable lease rates on comparable property. The Court sided with the plaintiffs’ real estate appraiser because of his greater knowledge of the subject property, and familiarity with the Saskatchewan market and the recreational lands in the province. It did not accept the argument that provincial park rates should be excluded from the calculation due to policy constraints on those rates.

Public interest standing on judicial review of Chief Coroner’s decision –

Blackjack v Yukon (Chief Coroner), 2016 YKSC 53: The Yukon Supreme Court dismissed an application to strike the Little Salmon Carmarks First Nation (LSCFN) from an application for judicial review on the basis that it had no standing. Theresa Blackjack and LSCFN jointly filed a petition for judicial review of the Chief Coroner’s decision to close an investigation into the death of Theresa’s daughter, Cynthia Blackjack, without ordering an inquest. The Chief Coroner asserted that LSCFN had no standing in relation to the subject matter of the petition. The Court concluded that LSCFN had public interest standing to proceed with the petition because LSCFN raised a serious justiciable issue, had a real stake or genuine interest in that issue, and the proposed suit was a reasonable and effective way to bring the issue before the courts.

Limitations period for negligence claim based on sexual assault:

Fox v Narine, 2016 ONSC 6499: The Ontario Superior Court of Justice dismissed an application to strike a statement of claim alleging that a shelter was negligently operated when the late plaintiff was sexually assaulted there. The plaintiff was subsequently murdered. The Court held that there was a sufficiently proximate relationship between the late plaintiff and the shelter where she was staying at the time of her assault. There was also no reason to override or limit the scope of the duty of care. The statutory provision that would allow this action to proceed was created to improve the protection that the law offers to victims of sexual violence. While a limitation period under the Trustee Act, 2002 would ordinarily have barred the claim from being brought more than two years after the plaintiff was killed, there is no limitation period under the Limitations Act, 2002 where an action is based on sexual assault. The more general statute must yield to the more specific one, which was the limitations legislation in this case.

Canada not estopped from estoppel argument in Treaty 8 tax litigation –

Tuccaro v Canada, 2016 FCA 259: The Federal Court of Appeal dismissed an appeal from an interlocutory order of the Tax Court of Canada. Mr. Tuccaro unsuccessfully sought to strike portions of Canada’s reply where it was asserted that he was estopped from asserting a treaty right to tax exemption under Treaty 8. Mr. Tuccaro argued that this issue was definitively addressed in a past Federal Court of Appeal decision in this litigation with respect to an appeal from another motion to strike, and Canada was therefore estopped from raising its estoppel argument. Both the Tax Court and the Federal Court of Appeal disagreed. The Court of Appeal did not find it plain and obvious that Canada would be estopped from raising its estoppel argument, especially considering the discretion that a trial judge maintains over whether it accepts such an argument. The Court of Appeal also suggested that Mr. Tuccaro’s argument could have grave consequences if it were accepted. It could force litigants to raise grounds that they know have no chance of meeting the stringent test for motions to strike in order to avoid potential issue estoppel arguments on those unpleaded grounds.

Duty to reference Gladue factors in reasons for sentence –

R v Wheatley, 2016 BCCA 397: The British Columbia Court of Appeal allowed an appeal from a sentence of 18 months imprisonment for breach of a residency requirement in a long-term supervision order. The sentencing judge made no mention at all of Mr. Wheatley’s Aboriginal background or his traumatic upbringing, although this was established during the sentencing hearing and the subject of submissions. The judge was clearly aware of the law, having been the sentencing judge for one of the sentences on appeal in the Supreme Court’s Ipeelee decision. However, the importance of Mr. Wheatley’s Aboriginal background and the traumas he suffered growing up appear to have been “lost in the shuffle” when it came to the imposition of a sentence. The Court of Appeal held that “[t]oday, reference to an Aboriginal offender’s circumstances should be seen as mandatory”. The sentencing judge erred in failing to particularly consider Mr. Wheatley’s Aboriginal circumstances and Gladue factors, resulting in an unfit sentence.

Gladue factors applied in determining whether s 24(1) of Charter supported curative discharge –

R v Daybutch, 2016 ONCJ 595: The Ontario Court of Justice ordered a curative discharge for Ms. Daybutch with respect to her convictions for impaired driving offences, finding it to be both appropriate for the defendant and in the public interest. Earlier in these proceedings the Court had concluded that Ontario was in violation of the s 15 equality rights of Indigenous people in Ontario by failing to request the proclamation into force of a curative discharge option for impaired driving offences. This decision on sentence adopted a remedial approach under s 24(1) of the Charter. The Court had before it a Gladue report on Ms. Daybutch that indicated how her offences related to the systemic and background factors she faced as an Aboriginal woman. The Court took the view that the use of a curative discharge where warranted for Aboriginal offenders would permit sentencing judges to act in a Charter-compliant manner in accordance with the Supreme Court’s directions in Gladue and Ipeelee.

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This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan

Case Watch for September 2016

 FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

Crown’s duty to consult & the constitutional competence of the NEB

Tsleil-Waututh Nation v Canada (National Energy Board), 2016 FCA 219: The Federal Court of Appeal dismissed a statutory appeal from three interlocutory decisions of the National Energy Board (NEB) with respect to the Trans Mountain Pipeline proposal. Tsleil-Waututh Nation (TWN) challenged the NEB’s determination that the application for the project was sufficiently complete to proceed with an assessment and public hearing, a determination that included a listing and scoping of factors to be considered during the assessment, and an order detailing the steps and deadlines governing the assessment. While TWN raised complex arguments with regards to the NEB’s obligation to either discharge or assess Crown consultations, among others, the Court of Appeal dismissed its appeal largely on preliminary issues. The Court held that none of the challenged decisions were final and TWN ought to have first raised its concerns before the NEB itself rather than proceeding directly to the Court of Appeal. While the Court declined to intervene with respect to the Crown’s duty to consult at this stage, it did so without prejudice to TWN’s ability to challenge the final decisions of the Governor in Council on consultation for this project.

Modern treaty signatory added as defendant in Aboriginal rights case –

Cowichan Tribes v Canada (Attorney General), 2016 BCSC 1660: The British Columbia Supreme Court allowed an application from Tsawwassen First Nation (TFN) to be added as a defendant in an action brought by Cowichan Tribes and others for declarations of Aboriginal rights and title in what is now the City of Richmond. While Cowichan’s claims overlap with TFN’s territory, as defined in its modern treaty, Cowichan argued against joinder on the basis that its claims are narrowly defined and do not overlap with any TFN lands under its treaty. The Court accepted that TFN’s rights to the portion of its territory in conflict with Cowichan’s claims are largely consultative, but held that these are still section 35 rights to be accorded recognition. These rights were also sufficient to provide TFN with a direct interest in the litigation. TFN’s rights under the agreement fluctuate depending on the land-holding status of the area underpinning these rights, and the litigation could result in the introduction of an extra party into negotiations over fishing areas that TFN has rights to under its agreement.

Property taxation on reserve and statutory interpretation –

Musqueam Indian Band v Musqueam Indian Band (Board of Review), 2016 SCC 36: The Supreme Court of Canada dismissed an appeal from Musqueam Nation against a 2011 property taxation assessment of a golf and country club on its reserve land being calculated on the basis of its use as a golf and country club, as opposed to its value as residential land. The reserve land in question was surrendered in 1957 for lease to the golf and country club and its value for property tax purposes was consistently assessed on the basis of the restrictions under that lease from that point on. In 1996, however, Musqueam amended its property assessment bylaw to reduce the types of restrictions that an assessor could consider to “any restriction placed on the use of the land and improvements by the band” (emphasis added). In 2011, Musqueam challenged the consideration of the restrictions under the lease in a property tax assessment on the basis that the lease was negotiated between the Crown and the golf and country club and its restrictions were therefore not imposed “by the band”. Musqueam also argued that the 1996 amendment was made to account for its newly recognized land management powers under the Framework Agreement on First Nations Land Management. Both arguments were rejected.

Determination between competing 60’s scoop class actions –

Thompson v Manitoba (Minister of Justice), 2016 MBQB 169: The Manitoba Court of Queen’s Bench exercised its discretion to permit one of two class actions to proceed with respect to individuals affected by the 60’s scoop in Manitoba (Meeches v Canada). It also stayed the other proposed class action (Thompson v Manitoba), issued a declaration that no further proposed 60’s scoop class actions are to be commenced in Manitoba on the same facts without leave, and granted leave to amend Meeches to ensure it covers the class members from Thompson. While Thompson was filed first, counsel did not take steps to seek certification in a timely manner. Meeches was also framed more consistently with the Brown case that has already been certified in Ontario with respect to 60’s scoop survivors there.

Addressing FASD in context to Gladue factors –

R v Drysdale, 2016 SKQB 312: The Saskatchewan Court of Queen’s Bench extensively considered the Gladue factors and Fetal Alcohol Spectrum Disorder (FASD) of an Aboriginal man in sentencing him for assault and threatening to use a weapon, relying on a full Gladue report and four witnesses for this purpose. The Court held that in the circumstances, a “needs based” as opposed to a retributive sentence was appropriate. The Court held that “a Gladue impacted individual affected by FASD has a reduced moral and legal responsibility” with respect to actions such as those underlying the offence in this case, which exhibited impulsiveness and a disconnect between actions and consequences common among FASD affected individuals. The Court also considered the Truth and Reconciliation Commission’s Call to Action 34, which focuses on better addressing the needs of offenders with FASD, in crafting its sentence.

First Nations advisory organization declared provincial entity –

Treaty 8 Tribal Association v Barley, 2016 FC 1090: The Federal Court allowed an application for judicial review of a federal adjudicator’s conclusion that the Treaty 8 Tribal Association was a federal undertaking for the purpose of the application of the Canada Labour Code. The adjudicator was held to have failed to apply the functional test to determine whether the nature, operations and habitual activities of the Association fell under the head of power of “Indians, and Lands reserved for the Indians”. The Association provides advisory, administrative, advocacy and other services to its members and other First Nations, but does not provide services under the Indian Act nor within the realm of First Nations governance or reserve land. The habitual activities of the Association did not fall under subsection 91(24) of the Constitution Act either.

Defamation by way of band council resolution –

Hazel v Rainy River First Nations, 2016 ONSC 5875: The Ontario Superior Court of Justice rejected the defendant First Nations’ motion for summary judgment and instead allowed summary judgment in favour of the plaintiffs in a defamation claim. The defendant First Nations described the plaintiffs as “undesirables” in a band council resolution (BCR), declared them trespassers on its territory, and resolved that they were to be removed and charged as trespassers if they were found on its territory. The Court held that placing the BCR into a book available to community members was a sufficient act of publication for the purposes of sustaining an action for defamation regardless of whether anyone had looked at the BCR in question. The Court also held that there was no dispute that describing the plaintiffs as “undesirables” was defamatory. Arguments with respect to qualified privilege, issue estoppel and abuse of process were all rejected.

Severance of criminal charges in context to constitutional challenge –

R c Rice, 2016 QCCS 4610 (in English): The Superior Court of Quebec severed criminal charges against three men from Kahnawake in relation to the alleged sale of tobacco to non-Aboriginals without collecting and remitting the retail consumer tax from these sales to the federal and provincial authorities. The defendants raised a constitutional challenge in this case involving various rights asserted on behalf of the Mohawk Nation, including rights of self-determination and internal sovereignty, a right to harvest, produce and sell tobacco products, and a right to exemption from taxation under s 87 of the Indian Act. The Court held that there was no reasonable likelihood that the s 35 rights claimed, assuming they were proven, would be unjustifiably infringed by the defendants’ obligations to collect and remit consumer taxes from non-Aboriginal customers. The Court also held that there was no reasonable likelihood of the s 87 exemption being successfully invoked against the defendants’ obligations to collect and remit taxes from non-Aboriginal customers. The Court was unable, however, to conclude that there was no reasonable likelihood of the defendants being able to prove that s 87 exempted them from the imposition of duties on tobacco products. The two charges related to the last argument were severed from the others and the Court ordered for a trial to proceed separately with respect to the charges that were not implicated by this argument.

Metis Settlement’s jurisdiction to specify membership requirements –

Kikino Metis Settlement v Metis Settlements Appeal Tribunal (Membership Panel), 2016 ABCA 260: The Alberta Court of Appeal has granted permission to appeal on a question of law from a decision of the Metis Settlements Appeal Tribunal setting aside a membership decision by the Kikino Metis Settlement. Kikino has passed a bylaw that appears to provide it with discretion to reject an application for membership from a candidate who is otherwise eligible to apply under the Metis Settlements Act and meets the minimum standards for admission under the Act. An otherwise eligible applicant who was rejected for reasons not set out in the Act successfully challenged her rejection before the Appeal Tribunal. The Court of Appeal will allow an appeal to proceed on two questions: 1) whether a Metis settlement can establish membership criteria that is more onerous than the minimum standards under the Act; and 2) if so, whether the criteria applied to the applicant rejected in this case was a lawful exercise of Kikino’s jurisdiction under its membership bylaw.

Placement of Métis child with non-Aboriginal adoptive parents –

LM v British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367: The British Columbia Court of Appeal dismissed two appeals related to the intention of the Director of Child, Family and Community Services to place a Métis child from British Columbia in the care of a non-Aboriginal couple in Ontario that has already adopted two of the child’s siblings. The appellants have been the child’s foster parents since two days after her birth and one of the appellants is also of Métis heritage. The first appeal was dismissed primarily because the appellants were found to be seeking an adoption order for which there was no basis in the statutory scheme. The Court of Appeal rejected an argument that the lower court had not paid adequate attention to the child’s Métis heritage, concluding that this was not relevant to the Director’s decision that the appellants were challenging on judicial review. The Court of Appeal rejected the second appeal on the basis that the Charter arguments that the appellants wished to raise were correctly found to be subject to res judicata and there was an insufficient evidentiary record to decide these argument on appeal in any event.

Stays of proceedings for unreasonable delay (section 11(b)) –

R c Gilpin, 2016 QCCQ 9459 (in French only): The Court of Quebec allowed an application to stay criminal proceedings against two men in the judicial district of Abitibi on the basis that delays in these proceedings had violated their right to be tried within a reasonable time under s 11(b) of the Charter. The Court applied the analysis recently mandated by the Supreme Court of Canada in R v Jordan to conclude that the delays in each applicant’s case were beyond the presumptive ceiling for reasonable delay, and there were insufficient exceptional circumstances to rebut this presumption of unreasonableness. The Court acknowledged past jurisprudence where the unique circumstances of communities in northern Quebec were found to justify trials taking longer, but concluded that these circumstances will no longer be considered “exceptional” for the purposes of applying s 11(b).

R c Rice, 2016 QCCS 4659 (in English): The Superior Court of Quebec allowed a s 11(b) application to stay criminal proceedings against three men from Kahnawake on charges relating to the alleged sale of tobacco to non-Aboriginals without collecting and remitting the retail consumer tax from these sales to the federal and provincial tax authorities. The Court held that even prior to the Supreme Court’s recent Jordan decision, the delays in this case would have been sufficient to ground an application for a stay of proceedings under s 11(b). While the defendants had presented a tardy constitutional challenge to the charges against them, this had no bearing on any delays they faced for the purpose of the s 11(b) analysis.

Stays of proceedings pending appellate decision on Métis rights –

Québec v Savard, 2016 QCCS 4391 (in French only): The Superior Court of Quebec allowed an application to stay proceedings in which Quebec is seeking to evict the applicant from a hunting camp. The applicant’s sole defense rests on his assertion that he is a member of the Métis community of Domaine du Roy and Seigneurie de Mingan and his community has Métis hunting rights that are protected under s 35(1) of the Constitution Act, 1982. Another member of this same community, Ghislain Corneau, was unsuccessful in defending himself from a parallel application for eviction from the hunting camp before the Superior Court of Quebec early last year (see Québec c Corneau). In Corneau, the Superior Court ruled that the Métis community to which Mr. Corneau and Mr. Savard belong does not meet the Supreme Court of Canada’s Powley test. Mr. Corneau has since appealed that decision to the Quebec Court of Appeal and an appellate decision remains outstanding. The proceedings against Mr. Savard have been stayed until the Court of Appeal renders its judgment in Corneau.

Note that parallel applications were granted in two other proceedings: Québec v Bouchard, 2016 QCCS 4392 & Québec v Desbiens, 2016 QCCS 4393

Case Watch for June 2016

 FROM OUR PUBLICATIONS DESK

Case Watch

The following decisions came across our desk over the past month:

R v TJD, 2016 MBCA 67: Leave to appeal was granted by the Manitoba Court of Appeal in the sentencing of a young person under Manitoba’s Youth Criminal Justice Act (YCJA), the appeal was allowed and the sentence was varied. The Crown candidly conceded that various aspects of the sentence were illegal, or that the sentencing judge otherwise erred in principle, including with respect to the judge’s failure to consider relevant Gladue factors in imposing a sentence on this young person, who was of either Métis or Cree ancestry.

Calaheson v Gift Lake Metis Settlement, 2016 ABCA 185: The Alberta Court of Appeal allowed an appeal from part of an order of the Court of Queen’s Bench declaring the Gift Lake Metis Settlement General Election held in October 2013 invalid and vacating the election of three councillors. The appellant challenged the Order’s failure to declare a further position vacant, that of the respondent Dave Lamouche. The Court of Appeal held that this position should have also been vacated in the complex and unique circumstances of the contentious election at issue.

Re Gray, 2016 CanLII 38311 (ON OCCO): The Office of the Chief Coroner for Ontario released a verdict explanation for the inquest into the death of Brian Gray. Mr. Gray died in the custody of police during an armed stand off on Lac Seul First Nation in 2010, making an inquest mandatory. The jury’s recommendations from the inquest included: more funding and training for mental health and addictions services for Lac Seul, a review of the resourcing for the Lac Seul Police Service with a view to increasing police services for Lac Seul, funding for a certified mental health counsellor, additional mental health workers and training for existing workers in Lac Seul, among others.

R v Halkett, 2016 SKPC 65: The Saskatchewan Provincial Court applied Gladue factors in sentencing an Aboriginal man who was found guilty of sexual assault against a cellmate in an RCMP station “drunk tank” to an 18-month conditional sentence followed by a two-year term of probation. The Court noted that in Saskatchewan, where Aboriginal people represent roughly 16% of the population, they account for roughly 77% of the province’s 2014-2015 admissions into adult correctional centres. After reviewing the individual’s Gladue factors, the Court held that the accused would be “apt to find more success in his home community than he would in jail”.

Rice c Agence du revenu du Québec, 2016 QCCA 1077: The Quebec Court of Appeal dismissed a petition for an order to stay the execution of its April 2016 judgment in this matter while the petitioners seek leave to appeal to the Supreme Court of Canada. The petitioners are Mohawks of Kahnawake with status under the Indian Act that reside and carry on business on reserve operating gas stations and retail outlets. They are challenging tax assessments for having failed to charge taxes against their customers, regardless of whether these customers had “Indian” status or not. They have so far been unsuccessful. The Court of Appeal accepted that their arguments for challenging their tax collection and remittance obligations, which are now largely based on the Royal Proclamation of 1763, are serious questions to be tried. However, the petitioners failed to establish serious or irreparable harm in the absence of a stay.

Malcolm v Fort McMurray First Nation, 2016 FC 672: The Federal Court dismissed an application for judicial review of three decisions on applications for membership in the Fort McMurray First Nation. At issue was whether the applicants needed to register for status under the Indian Act before their membership applications could proceed. The Court interpreted Fort McMurray’s Membership Code as requiring confirmation of registration under the Indian Act before the applications could be processed and upheld the Membership Clerk’s decision.

R v Rich, NLTD(G) 87: The Newfoundland and Labrador Supreme Court allowed an application from the Crown for review of an order granting judicial interim release to Mr. Rich. Among other things, the Supreme Court held that the Provincial Court judge erred in his application of the Supreme Court of Canada’s Gladue and Ipeelee decisions. The Supreme Court found no reference to either decision or the fact that Mr. Rich was Aboriginal in the interim release decision. The Supreme Court found that the court below had incorrectly held that being an Aboriginal person was a factor in favour of judicial interim release without any evidence of the particular Aboriginal background of Mr. Rich. The Court stated that “case-specific information regarding the particular Aboriginal offender” is essential in order to apply Gladue and Ipeelee; they cannot be applied “in a vacuum”.

R v Menicoche, 2016 YKCA 7: The Yukon Court of Appeal allowed an appeal from a sentence of 23 months’ imprisonment for sexual assault. The Court of Appeal held that the sentencing judge failed to give genuine effect to the Aboriginal status of the appellant. It found that the sentencing judge failed to consider any alternative to a lengthy territorial jail term despite being familiar with the appellant’s compelling Gladue factors that were set out in the pre-sentence report. The sentence was reduced by six months.

2403177 Ontario Inc v Bending Lake Iron Group Ltd, 2016 ONCA 485: The Ontario Court of Appeal rejected an application for leave to appeal from an Approval and Vesting Order in relation to the moving party’s receivership. Among other things, the moving party argued that the Court of Appeal judge who made that order failed to consider whether the receiver discharged its obligation to consult with “affected Aboriginal communities” in approving a sale agreement arising from the receivership. This duty to consult argument was rejected on the basis that it should have been fully canvassed earlier in the proceedings.

Sarrazin c Canada (AG), 2016 QCCS 2458: The Quebec Superior Court certified a class action on behalf of a group of approximately 45,000 people who were deprived of status under the Indian Act based on discriminatory provisions. In its 2009 McIvor decision the BC Court of Appeal held that section 6 of the Indian Act infringed upon certain individuals’ right to equality under section 15 of the Charter. As a result of this decision, section 6 of the Indian Act was amended through Bill C-3 in 2010. This class action seeks compensation for the individuals who gained status under Bill C-3 on the basis that they were deprived of various forms of financial support under the Indian Act between 1985 and 2011 that they would have otherwise been entitled to were it not for the discriminatory provisions struck down in McIvor and removed through Bill C-3.

R v Laboucane, 2016 ABCA 176: The Alberta Court of Appeal dismissed a sentencing appeal brought on various grounds, including the ground that the sentencing judge disregarded the 30-page Gladue report provided on Mr. Laboucane, which the sentencing judge found had failed to disclose any meaningful Gladue factors to consider. The Court of Appeal rejected this argument and found that Mr. Laboucane had a “predominately stable and supportive upbringing and background” that did not mitigate his culpability. The Alberta Court of Appeal also went out of its way to criticize the Ontario Court of Appeal’s recent decision in R v Kreko, addressing an Aboriginal offender who was adopted by a non-Aboriginal family, suggesting that it expanded the level of generality in the application of Gladue factors “almost to a level of pure ethnicity”.

R v Chocolate, 2015 NWTSC 28: The Northwest Territories Supreme Court granted judicial interim release to Mr. Chocolate. The Crown in this case argued that Gladue factors are only relevant to the tertiary ground for detention under section 515(10) of the Criminal Code on the basis that Gladue factors are only relevant to questions of sentencing, and do not extend to questions of whether detention is required to ensure the accused attends at trial or whether the public is protected. The Court rejected this argument and found that Gladue factors were relevant to all three grounds for detention.

Robertson v The Queen, 2015 TCC 219: An official English translation of this 2015 decision of the Tax Court of Canada was released this month in which the Tax Court dismissed an appeal from a reassessment. The appellant is a member of the Mashteuiatsh Montagnais Band (Pointe-Bleu) with status under the Indian Act who operates a fur manufacturing and sales business. In disputing an assessment for GST, penalties and interest against his business, Mr. Robertson asserted an Aboriginal right to the fur trade as well as an Aboriginal self-government right in his defence, among other arguments. The Tax Court found that there was no right to engage in the fur trade in the manner that the appellant was engaged in this industry. It recognized the right of the Montagnais to engage in the fur trade but held that this must be limited to the sale of raw furs of trapped animals, noting that raw fur sales were non-taxable. The Tax Court also recognized the Montagnais du Lac Saint-Jean have an Aboriginal right to management of hunting, fishing and trapping territories within their jurisdiction, but held that this right could not give them exclusive authority over taxation of business transactions in their territory “since this would violate Crown sovereignty”. While the Tax Court recognized these Aboriginal rights it held that they were not prima facie violated by the Excise Tax Act.

First Nation of Nacho Nyak Dun v Yukon (SCC file 36779): The First Nation of Nacho Nyak Dun was granted leave to appeal to the Supreme Court of Canada from the Yukon Court of Appeal decision in relation to a dispute over land use planning for the Peel watershed under the terms of modern treaty agreements for the region.

Hughboy v Oujé-Bougoumou Cree Nation, 2016 QCCQ 4544: The Court of Quebec dismissed an application for advance costs in relation to a challenge to the results of a 2015 election for the Oujé-Bougoumou Cree Nation. The Court held that there was prima facie merit to Mr. Hughboy’s case. However, it found there were no special circumstances of public importance in support of making such an exceptional order and that Mr. Hughboy failed to prove that his financial circumstances were such that he could not proceed with his case without such an order being made.

R v McDonald, 2016 NUCA 4: The Nunavut Court of Appeal allowed an appeal from a sentence for Ms. McDonald’s breach of a Conditional Sentence Order (CSO) that resulted in her being sent back to prison. Among other issues, the Court of Appeal held that the sentencing judge had failed to give meaningful consideration to Ms. McDonald’s Gladue factors. The Court held that Gladue factors must be considered in every case involving an Aboriginal offender unless the offender waives this right. The sentencing judge erred in assuming that Gladue factors were adequately addressed into the original CSO and they ought to have been considered afresh at the CSO breach hearing.

Children’s Aid Society of Halton Region v MM, 2016 ONCJ 323: The Ontario Court of Justice released a decision addressing whether three children are “Indian” or “native persons” for the purposes of the Child and Family Services Act. This determination dictates whether the children have access to unique benefits, special treatment and special considerations not otherwise available under the Act. The Court noted that no previous decision in Ontario directly discussed the facts necessary to support a finding that children meet these definitions and therefore set out to provide such an analytical framework, including guiding principles.