Bangloy v Canada (AG), 2021 FC 60

Application dismissed. An Indigenous family alleged that their education benefits were denied as retaliation for previous complaints the family had lodged against Indigenous and Northern Affairs Canada, and for discrimination based on race, or national or ethnic origin.

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Thirty years ago, Ms. Bangloy’s mother requested from Indigenous and Northern Affairs Canada’s [“INAC”] predecessor, Indian Affairs and Northern Development [“IAND”],  reimbursements of Ms. Bangloy’s tuition fees at a private school in British Columbia. The family argued that the costs were reimbursable under the terms of Treaty 11. IAND’s position was that education expenses could be claimed under the Indian Act, but only for children living on reserve, which Ms. Bangloy was not. The Court sided with IAND, finding that Treaty 11’s terms were confined to the geographical area of the treaty (Beattie v Canada (Minister of Indian Affairs and Northern Development), [1998] 1 FC 104, [“Beattie”]).

This matter deals with the decisions arising from a human rights complaint initiated by Ms. Bangloy and her family. The family launched the complaint after alleging discrimination on the basis of race or national or ethnic origin by INAC for their failure to provide Ms. Bangloy and her children with information regarding education benefits. They also maintained that INAC denied them these education benefits in question as retaliation for previous complaints of discrimination the family had lodged against INAC in Beattie.

The Tribunal found that there was no connection between INAC’s alleged failure to provide Ms. Bangloy with information about obtaining educational benefits and her race or ethnic or national origin. Therefore, she had not made out a claim of discrimination. With regard to the education funding issue in general, the Tribunal found that the same family was raising the same issue that had already been decided by the Federal Court in Beattie. In respect of the complaints of retaliation, the Tribunal found that the existence of a previous complaint was not a factor that influenced INAC’s alleged failure to provide education benefits. Therefore, there was no retaliation involved.

Ms. Bangloy’s application for judicial review required the Court to consider the Tribunal’s conclusions and whether or not they were reasonable. The Court found that the Tribunal’s conclusions that Ms. Bangloy had not made out a claim of discrimination in respect of annuity payments or information about educational benefits was reasonable given the absence of evidence of a connection between INAC’s position and Ms. Bangloy’s race, or national or ethnic origin. The Court concluded that the Tribunal reasonably found that the issue of entitlement to education benefits had already been decided by the Federal Court in Beattie. The Tribunal reasonably concluded that INAC’s conduct was not retaliatory. The Court dismissed this application for judicial review.

R v Papequash, 2021 ONSC 727

Application granted. An Indigenous applicant has met their onus on judicial review, as the Justice of the Peace made an error in law by failing to consider Gladue principles at the bail hearing. The applicant will be released on their own recognizance in the amount of $500, and be supervised by the Toronto Bail Program.

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The Applicant, Deeandra Papequash (“they/them” preferred pronouns), was denied bail in 2018, and seeks review of this denial of bail. The Applicant is facing four separate sets of charges that involves assaultive and threatening behaviour, petty theft, possessing or using a knife, and failing to follow conditions of bail. They had been released on bail before, on these charges and more than once. But when all the charges came again before the Justice of the Peace on December 18th, 2018, after they had again been arrested on new charges, those releases came to an end. The Justice of the Peace did not release the Applicant again, and detained Deeandra Papequash on the secondary ground. The Justice of the Peace made a serious mistake in his decision. There is also a new and material change in the Applicant’s situation.

Deeandra Papequash is 34 years old, is mixed Cree and Saulteaux, and a member of Key First Nation. A Gladue report which had been previously prepared, was given to the Justice of the Peace. It describes the horrible childhood endured by the Applicant, including sexual abuse, physical abuse and discrimination at being a two-spirited person. The Applicant suffers from many mental illnesses including Fetal Alcohol Syndrome, ADD, PTSD, anxiety, depression, as well as alcohol and drug addiction. There was also involvement in gang activity in Regina and long periods of jail. Though the Applicant currently stands charged with assaulting their intimate partner, she remains supportive.

Given Deeandra Papequash’s lived experiences as an Indigenous person, the question of their release required a careful application of the Gladue principles (R v Gladue, [1999] 1 SCR 688), which the Justice of the Peace did not do. Failure to consider Gladue principles at a bail hearing is a serious error of law (R v Robinson, 2009 ONCA 205).

Deeandra Papequash has been living precariously, including in shelters. At the bail hearing, it was hoped that secure and stable subsidized housing would become available sometime soon. This housing opportunity is now available through the COTA organization, where a one bedroom awaits them, but this offer is time limited. If the Applicant does not move into the apartment within three weeks, COTA will no longer hold it for them, which is a material change in circumstances. At the bail hearing this housing had not yet crystalized. The stable supportive housing is now real and this material change is significant. The law permits the Court to consider anew whether Deeandra Papequash has met their onus on this bail review regarding the primary, secondary, and tertiary ground for release.

The Applicant proposed a Bail Program release and the Bail Program has approved them. Given the Applicant’s life trajectory bent by trauma, the focus regarding bail should not be on whether a surety is available to supervise them. Rather it should be on whether supports can be put into place to meet secondary ground concerns. The criminal record, which is bad, must also be seen through a Gladue lens. While this does not extinguish the secondary ground concerns, it provides an explanation and a context for this criminal record. A number of organizations and professionals with skill, experience, and compassion have offered support if Deeandra Papequash is released on bail. They know the Applicant’s weaknesses as well as strengths, emphasizing that jail is not a good place for someone like Deeandra Papequash.

Secure housing can be crucial to the rehabilitation and treatment of people with mental health problems, addictions, and other challenges born from the effects of discrimination and marginalization. It provides the steady and firm ground for people to climb out of poverty. Stable housing means stable people, thereby reducing conflict with the law and better protecting the community. Deeandra Papequash has never received such intensive wraparound services before. Deeandra Papequash has met their onus and will be released on their own recognizance in the amount of $500. They will be supervised by the Toronto Bail Program. They will abide by the conditions set out by the Toronto Bail Program and the conditions proposed by the Applicant including no contact, treatment, and counselling.

Johnson v Canada (Registrar, Indian Register), 2020 BCSC 1955

Appeal stayed. The appellant appealed what they interpreted as a decision by the Registrar of the Indian Register. The Court lacks jurisdiction to hear the appeal as it is premature given the statutory requirements of the Indian Act have yet to be met. Specifically, the nature of a response made by the Registrar was not a “decision” capable of being appealed until it is “protested” and the statutory proceeding is concluded.

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The appellant is a status Indian and member of Sechelt Indian Band, a band within the meaning of the Indian Act. In 2017, the appellant requested that the Registrar transfer him from the Sechelt Band List to the Semiahmoo Band List, as he believes he is entitled to membership in the Semiahmoo Indian Band [“Semiahmoo”].

The Department of Indigenous Services [“Department”] maintains the Semiahmoo Band List as Semiahmoo does not maintain its own membership code. Section 11 of the Indian Act sets out the membership rules for a band list maintained by the Department. Section 12(b) of the Act provides that, within certain limits, a person who is a member of another band is entitled to have their name entered in the Department band list if the council of the admitting band consents.

In 2018, the Registrar responded to the appellant’s transfer request, stating that the request could not be processed without receiving a Band Council Resolution [“BCR”] from the Semiahmoo Band Council. A separate letter was sent by the Registrar to the Band Council of Semiahmoo requesting a BCR accepting the appellant into the band’s membership. The appellant argued that a BCR from Semiahmoo was not required under s 11 of the Indian Act and that s 12(b), which requires band council consent to adding a band member, had no application.

The Registrar then advised the appellant that the Department’s position was that s 12 applied to all band transfers. The appellant sought judicial review in the Federal Court, but that was discontinued as it is this Court that has the necessary jurisdiction. The appellant advised the respondent he would pursue a protest under s 14.2 of the Indian Act. Section 14.2 allows for a protest to be made respecting the inclusion or addition of the name of a person or their omission or deletion of their name from the Indian Register or a band list maintained by the Department. The Registrar responded she would consent to a 90-day investigation period “once all necessary documents were filed”. The appellant agreed and in 2019, sent the documents to a computer link provided [“Protest”].

Subsequently, the Registrar informed the appellant that she was unable to accept the Protest as valid. She stated the Registrar’s original decision to add the name of the appellant to Sechelt First Nation registry was rendered prior to September 4, 1951 and therefore the Protest was out of time. Her earlier response did not constitute a “decision” but was a request for evidence, therefore it could not be protested. She also confirmed the Department’s position was that Semiahmoo consent was required for all band transfers.

This application concerns whether the Court has jurisdiction to hear the appeal at this time. The Indian Act sets out the statutory framework that applies to a dispute of a “first-level” Indian Registrar decision. Once such a decision is made, a party is statutorily entitled to protest the decision to the Indian Registrar. Upon receipt of a valid protest, the Registrar investigates and renders a final and conclusive decision. It is from that decision an appeal to this Court may be taken, not earlier.

The Registrar stated she could not accept the Protest as a valid protest, noting that the request for more evidence was not a decision or a denial of the application but merely a request for evidence, including the Semiahmoo BCR. The Indian Act provides a process to determine band status. As a complete code, the Indian Act must be complied with before it can be appealed (Baptiste v Canada (Registrar of Indian & Northern Affairs), 2000 SKQB 296). The Registrar is the “master of its own procedure” and can solicit information as they see fit in conducting the investigation.

The Court is satisfied that the earlier Registrar’s responses are not “decisions” as described by the appellant. The letter in 2018 did not make a decision as no BCR had been provided from Semiahmoo. It requested that it be provided. Nor did the letter in 2019 make a decision under s 14.2 of the Indian Act. Given the expiration of time from the 1951 decision, and that the 2018 response was neither a decision nor a denial but rather a request for information, the Protest of that letter was not a valid protest. That right to protest requires that the individual is added, omitted or deleted from an Indian Register or Band List.

In other words, a determination has been made. In this instance that did not occur until 2019, when the Registrar concluded that the appellant was not entitled to be a member of the Semiahmoo Band pursuant to s 11 of the Indian Act. As a result, the right to protest arises. The appellant was advised of that right, but has chosen not to do so. The right of appeal arises after the Registrar has ruled on a protest. This Court does not, at this time, have jurisdiction as the appeal is premature. The appeal is stayed.

Houle v Swan River First Nation, 2020 CanLII 88240 (FC)

The Court ordered that two consolidated applications for judicial review in relation to an election dispute will be treated as an action. The Applicants seek a declaration that the First Nation’s customary election regulations are contrary to section 15 of the Charter and the Defendants plan to bring a defence based on sections 1 and 25 of the Charter, as well as section 35 of the Constitution Act, 1982. As the Charter argument is being raised for the first time on judicial review and section 35 rights can only be determined at trial, the matter will proceed as an action. 

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Swan River First Nation [“SRFN”] and the Swan River First Nation Chief and Council [“Respondents”], have brought a motion under the Federal Courts Rules [“Rules”] for an Order pursuant to the Federal Courts Act directing that two consolidated applications for judicial review [“Applications”] be treated and proceeded with as an action.

Shawna Jean and Robert Houle [“Applicants”] in the underlying Applications, are seeking an Order to set aside the decision of the Electoral Officer of the SRFN that refused to accept their nominations as Chief and Councillor of the SRFN respectively in the 2019 General Election. The Applicants had not been residing on the SRFN Reserve for at least one year prior to May 3, 2019 in accordance with section 9.1(a)(2) of the Swan River First Nation Customary Election Regulations [“Election Regulations”]. Additionally, they seek declarations that they are eligible to run as candidates for the position of Chief and Councillor in the 2019 General Election, and that section 9.1(a)(2) of the Election Regulations contravenes section 15 of the Canadian Charter of Rights and Freedoms [“Charter”]. They contend that the impugned provision discriminates on the basis of Aboriginal residency and is therefore unconstitutional and is of no force or effect.

The Respondents intend to defend the Applications on the basis of sections 1 and 25 of the Charter and s 35 of the Constitution Act, 1982 in accordance with their asserted Aboriginal and Treaty rights. They argue that the procedures of an action are required to have a fair and just determination of the particular Aboriginal and Treaty rights defences being advanced and that the unique nature of these particular Applications is such that the rationales in support of the speedy judicial review process are not applicable.

The Applicants oppose the Respondents’ motion to have the Applications be treated and proceeded with as an action. They argue that the Respondents’ request to convert is premature because the Court has yet to determine whether there is a section 15 Charter violation. The Applicants also dispute the Respondents’ view of the customs, practices, traditions and history of the SRFN. According to the Applicants, the restriction of residency was not a traditional practice of the SRFN or its predecessor, the KEE NOO SHAY OOs’ Band, prior to Treaty No. 8, but rather the result of misinterpretation of Treaty No. 8 by government officials. The Applicants say that the judicial review procedure contains adequate mechanisms for the Respondents to outline their claim to Aboriginal and Treaty rights.

Section 18.4(2) of the Federal Courts Act vests the Court with the discretionary authority to order the conversion of an application for judicial review into an action “if it considers it appropriate” (Canada (AG) v Lafrenière, 2018 FCA 151). This Court has previously found that applications for judicial review that raise issues of proof of Aboriginal rights can only be determined by way of an action (Soowahlie Indian Band v Canada (Attorney General), 2001 CanLII 22168 (FC)). In this matter, the procedures of a judicial review application do not provide sufficient procedural safeguards to ensure fairness to the parties on the Applications, nor do they enable the Court to make a proper determination of the issues of Aboriginal and Treaty rights before the Court in this proceeding, thereby this Court concludes that the Applications shall be treated and proceeded with as an action.

Hall v Kwikwetlem First Nation, 2020 FC 994

The Court allowed an application for judicial review of a decision of two Kwikwetlem First Nation Councillors to remove the applicant, Chief Hall, from his elected office as Chief. At the core of Chief Hall’s removal was his disclosure of a forensic audit report in relation to mismanagement of resources, fraud, and breach of fiduciary duty. The decision was procedurally unfair due to a failure to provide notice and an opportunity to be heard. It was also unreasonable in various respects, including the harshness of their use of termination as a remedy. 

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The Kwikwetlem First Nation [“KFN”] is the band government of kwikwəƛ̓ əm, a people living in Coquitlam, British Columbia. The KFN adopted, by ratification, a custom election code and governance by its Chief and Council [“Election Code”]. In addition to this Election Code, there is a document in existence approved by Council but yet-unratified entitled Kwikwetlem First Nation Chief and Council Code of Ethics [“Ethics Code”].

This judicial review is for a decision [“Decision”] made by two KFN Councillors to remove the Chief [“Applicant”] from his elected office. The conflict regards the disclosure of certain Band business affairs and whether the Councillors individually or collectively can instruct the Chief on what he sees as his duties as Chief. Pursuant to the Election Code, the Chief is to carry out the business of KFN in accordance with a vision document and is the spokesperson of KFN. The Chief or any Councillor may be removed from office if two Council members vote in favour of a resolution. However, the Court notes that neither the Election Code nor the Ethics Code are models of clarity, as the lines of authority and governance are not clear.

The Applicant had run his 2019 campaign for the position of Chief on a platform of increased transparency and accountability regarding KFN’s governance and business dealings. A key part of his mandate was the engagement of forensic auditors to investigate possible mismanagement by the former Chief and his administration. There was a disclosure by the Applicant of a forensic audit report which revealed questionable conduct of certain officials and employees of the KFN including those of a former chief.

At the same time as the forensic audit, the Applicant was engaged in a dispute with the two KFN Councillors about numerous Band matters, in particular the issue of transparency of the audit results. The same day that the forensic auditors indicated that they would make a presentation reporting on the prior mismanagement of KFN, the Applicant received a letter of suspension of one week without pay alleging dishonesty, disclosure of confidential information, conflict of interest and inappropriate treatment of staff.

Upon a subsequent hearing that the Applicant attended under protest, he addressed each of the allegations in an affidavit with documents in support, answered questions and provided oral and written submissions based on the evidence provided and allegations made. He denied the allegations as being untrue, raised procedural fairness concerns including that the Councillors had predetermined the matter, and that the punishment of removal, in any event, was unjustified. After the hearing was concluded, the Councillors issued their decision to remove the Applicant from office, effective immediately.

The nature and extent of the procedural fairness applicable is dependent on the circumstances and dependent on the factors (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817). A high standard of justice is required when the right to continue in one’s profession or employment is at stake (Kane v Board of Governors of UBC, [1980] 1 SCR 1105). The Election Code is silent on this aspect of the removal provisions but procedural fairness applies in this situation (Sparvier v Cowessess Indian Band, [1993] 3 FC 142).

Compliance with procedural fairness norms “went off the rails” when the Councillors took a break during the hearing, met secretly with a witness and obtained new evidence, thereby attempting to change the hearing. The conduct of the hearing and the post-hearing do not accord with procedural fairness. On this ground alone this judicial review should be granted.

The standard of review of the Decision in respect of the merits is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). Part of the dispute between the Chief and the Councillors is the view held by the Councillors that they can dictate to the Chief, individually or collectively, outside of a Chief and Council meeting and the Band Council Resolution process [“BCR”], what he should do and how he should carry out his functions. There is nothing in the Band Council Mandate of the Election Code that speaks to that kind of control over the Chief.

At no time did the Councillors pass a BCR directing the Chief to do or refrain from doing anything, much less directing the Chief to keep the forensic audit results confidential from the community. In the Decision, the Councillors purportedly found the Applicant’s conduct contrary to s 7.3 of the Election Code. That provision contemplates events of gross misconduct, corrupt practices in connection with Council business, illegal or improper appropriation of KFN funds, corrupt election practices and so on. It is unreasonable to conclude on these facts that the Applicant committed any of these acts.

Absent a BCR, it was unreasonable to conclude that the Chief did not have at least a role as the spokesperson for the First Nation in determining what disclosure should have been made of the forensic audit results. The use of the termination remedy is disproportionately harsh and is unreasonable. The Councillors were not protecting the community from an individual engaged in corrupt practices, but instead were attacking a Chief who had a different view from theirs of what was in the best interests of the community. The Decision is quashed, and the Applicant is to be reinstated to his position as Chief and is entitled to costs.

Blois v Onion Lake Cree Nation, 2020 FC 953

The Court granted an application for judicial review, quashed Onion Lake Cree Nation’s decision to terminate the appointment of its Appeals Tribunal, and ordered its reconstitution to hear the Applicant’s election appeal. Onion Lake members decided to codify their customary governance laws and nothing in their written laws allows for termination of the tribunal. The decision was also subject to procedural fairness since it was specific to the outstanding election appeal; as it was made without notice, procedural fairness was breached. 

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The members of Onion Lake Cree Nation [“OLCN”] passed the OLCN Convention Law [“Convention Law”] by community referendum in 2011. Amongst other things, the Convention Law empowers the OLCN Chief and Council to establish boards, commissions and committees as necessary for peace, order and good governance and to pass laws, regulations and codes. The members of OLCN passed the Onion Lake Election Law [“Election Law”] which came into effect in 2017. The Chief and Council subsequently passed the OLCN Appeals Regulation [“Appeals Regulation”]. Pursuant to the Election Law, an appeals tribunal [“Appeals Tribunal”] was appointed in advance of the upcoming Election.

This is an application for judicial review of a decision by the OLCN Chief and Council terminating the appointment of the Appeals Tribunal prior to the completion of its consideration and determination of an appeal of the 2018 OLCN [“Election”]. The Applicant, Florence Blois was an incumbent but unsuccessful candidate for councillor in the Election. The Applicant submitted to the Appeals Tribunal setting out various allegations. The Appeals Tribunal decided to accept the Applicant’s appeal but there were apparently concerns with the conduct of the appeal. The Applicant submits to this Court that the OLCN Chief and Council did not have the jurisdiction or authority to terminate her appeal.

By way of the Convention Law, the members of the OLCN chose to codify into writing the rules for establishing, empowering and regulating their institutions of government. OLCN effected a government (or executive) branch, the elected Chief and Council; the Elders Council to provide spiritual guidance; and a Judicial Assembly Commission.

Nothing in the Appeals Regulation speaks to the termination of the Appeals Tribunal prior to the completion of its term. That is, nothing in the Convention Law, Election Law or the Appeals Regulation provides authority to the Chief and Council, in any circumstance, to intervene in an appeal and dissolve the Appeals Tribunal before the Appeals Tribunal makes a decision in an appeal that is before it. If the legislative scheme suggested that the OLCN Chief and Council had the authority to disband the Appeals Tribunal before the expiry of its specified term, for any reason, and instead substitute its own finding, then this authority would have been clearly stated. This is demonstrated by the fact that the conduct of OLCN election appeals is exhaustively covered by the Election Law and Appeals Regulation.

Jurisprudence from the Federal Court of Appeal and this Court suggests that there must be clear legislative authority to remove appeal committee or council members (Johnson v Tait, 2015 FCA 247; Angus v Chipewyan Prairie First Nation, 2008 FC 932). It is clear that the Appeals Tribunal, as an independent body, holds a discreet and exclusive role in the conduct of election appeals, and the term of the appointment of that body is explicitly stated to start at appointment and not to terminate until an election appeal is decided.

The Court concludes that the OLCN Chief and Council did not have the authority to terminate the appointment of the Appeals Tribunal and, thereby, the Applicant’s appeal. Accordingly, that decision was unreasonable.

Temagami First Nation v Presseault, 2020 FC 933

The Court dismissed an application for judicial review of an adjudicator’s jurisdictional decision with respect to the Canada Labour Code. The adjudicator did not err in concluding that a claim for unjust dismissal against an on-reserve daycare fell within the jurisdiction of the Code given that the daycare was functionally integrated with the First Nation. 

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In 1998, the Temagami First Nation [“TFN”] hired Tammy Presseault, to prepare its proposal to the Government of Canada for funding under the Aboriginal Head Start on Reserve program. The funding helped establish a daycare to provide childcare services on TFN territory. Ms. Presseault worked with the daycare from 2011 until her dismissal in 2017. Following the termination of her employment, Ms. Presseault filed a complaint of unjust dismissal under the Canada Labour Code [“Code”]. The TFN requested that the Adjudicator dismiss Ms. Presseault’s complaint on the grounds that her employment with TFN is a matter within provincial jurisdiction, not federal jurisdiction.

In 2019, the Adjudicator found that the federal government had direct jurisdiction, or in the alternative, derivative jurisdiction over the labour relations of the daycare. He applied the two-stage analysis outlined by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]. He further relied on Canada (AG) v Munsee-Delaware Nation 2015 FC 366 [“Munsee-Delaware”] to conclude that the NIL/TU,O functional test must be applied to the governance functions of First Nations and their Councils in order to determine whether the entity’s labour and employment relations come under federal or provincial regulation. A functional assessment is to be undertaken to consider whether an employee’s role is concerned with the administration and governance of a First Nation or Band Council. If so, they fall under federal jurisdiction since the administration of a First Nation is a federal undertaking (Munsee-Delaware).

The Adjudicator concluded that the dominant character of the daycare’s operation was integral to the First Nation as a federal undertaking and that the Daycare is an indivisible and integrated operation. Further, the Adjudicator stated that provincial jurisdiction over the labour relations of the Daycare would impair the core of federal jurisdiction over the governance function of the TFN.

The TFN seeks judicial review of the Adjudicator’s decision that concluded that Ms. Presseault’s claim for unjust dismissal was within the jurisdiction of the Code. This Court dismisses the judicial review. The Adjudicator did not err in applying the appropriate test or in his consideration of the facts to determine that the unjust dismissal claim was within the jurisdiction of the Code. The Court determined that the Adjudicator identified and applied the proper test and reasonably assessed the specific factual matrix to conclude that the nexus of reporting and the control exercised caused the daycare to be functionally integrated with the TFN. Although the TFN takes issue with some of the facts considered by the Adjudicator, the Adjudicator reasonably balanced all of the facts put before him.

Ms. Presseault’s position with the daycare is functionally integrated into the general administration and governance of the TFN (Munsee-Delaware). There is no basis for this Court to interfere with the Adjudicator’s conclusion on the functional analysis. Having concluded under the functional test that the daycare was a federal undertaking, the Adjudicator was not required to undertake a derivative analysis. However, he did consider the derivative analysis and reached the same conclusion as with the functional analysis.

The derivative analysis asks whether provincial regulation of an entity’s labour relations impairs the core of the relevant head of power (NIL/TU,O). The derivative analysis also asks whether activities are integral to a federal undertaking in a way that justifies imposing exceptional federal jurisdiction for the purposes of labour relations (Tessier Ltée v Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23). Namely, that the dominant character of the operations of the daycare is integral to the TFN as a federal undertaking.

The Adjudicator’s findings of fact are owed deference. The finding that Ms. Presseault’s position with the daycare is integrated into the governance and administration function of the TFN is reasonable and supported by the undisputed evidence. The Adjudicator did not err in concluding that the federal government also has derivative jurisdiction on the facts of this case.

Grey v Whitefish Lake First Nation, 2020 FC 949

The Court dismissed an application for judicial review of an arbitrator’s decision to dismiss an election appeal. The Applicant unsuccessfully argued a reasonable apprehension of bias and reviewable substantive errors in that decision. 

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An Election Appeal Arbitrator [“Arbitrator”] was retained by Whitefish Lake First Nation [“WLFN”] for a 2018 general election [“Election”]. He was to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations [“Regulations”].

The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the Regulations. The Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief.

In 2019, the Applicant commenced this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application is the assertion that his Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserted three allegations, that in context altogether, would collectively meet the test for reasonable apprehension of bias.

The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (AG), 2020 FCA 5). The Applicant asserted in one of the allegations that the appointment process of the Arbitrator by the WLFN lacked independence and was procedurally unfair, because it was the executed by the WLFN Council. Section 7.1 of the Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution. The Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v Hamelin, 2018 FCA 131). The appointment of the Arbitrator by WLFN Chief and Council, along with two other allegations in this case, does not give rise to a reasonable apprehension of bias.

Although the Applicant also makes submissions asserting errors on the part of the Arbitrator pertaining to his decision and his weighing of the evidence, s 16.20 of the Regulations clearly precludes challenges on that basis, restricting challenges on judicial review to matters of procedural fairness. Accordingly, it is not open to the Applicant to challenge the Arbitrator’s decision on the merits.

R v Hilbach, 2020 ABCA 332

The Court of Appeal upheld a finding that the mandatory five-year prison sentence for robbery while using a prohibited firearm breaches s 12 of the Charter as cruel and unusual punishment. It fails to allow courts to account for mitigating factors and elevates principles of deterrence and denunciation to an extent that objectives of rehabilitation, the imposition of a just sentence, and special considerations for Indigenous offenders are lost. However, a sentence was varied based on errors, including an overemphasis of Gladue/Ipeelee factors. 

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Ocean Hilbach was convicted for committing a robbery while using a prohibited firearm, contrary to s 344(1)(a)(i) of the Criminal Code. Curtis Zwozdesky was convicted for using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1) of the Criminal Code.

The mandatory minimum sentences were deemed grossly disproportionate to the fit and proper sentence to the appropriate sentence in other reasonably foreseeable applications of the law in both cases. As such, the mandatory minimums in those sections contravened s 12 of the Charter and were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982, were declared unconstitutional and of no force and effect.

The Crown appealed both sentences, maintaining that the mandatory minimums set out in these Criminal Code sections are consistent with the provisions of the Charter, and the sentences imposed by the sentencing judges are unfit. The standard of review on a sentence appeal is highly deferential. An appellate court cannot modify a sentence “simply because it feels that a different order ought to have been made” (R v Lacasse, 2015 SCC 64).

The constitutional validity of legislation is a question of law subject to the standard of review of correctness (Housen v Nikolaisen, 2002 SCC 33; R v Malmo-Levine, 2003 SCC 74). Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment (R v Smith, 1073 (SCR)). To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable” (R v Ferguson, 2008 SCC 6).

The appeal with respect to Mr. Zwozdesky is dismissed. The Court determines that the sentences imposed on Mr. Zwozdesky were fit and proper. The appeal with respect to Mr. Hilbach, however, is allowed in part. The sentencing judge for Mr. Hilbach found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, his degree of responsibility, the need for denunciation and deterrence for the crimes committed while on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence.

There is no doubt that the commission of robbery using a prohibited firearm is a serious violent offence with potentially grave consequences. There are aggravating factors of an already serious violent offence and Mr Hilbach’s moral culpability was high. However, he was young at the time, 19 years old, pleaded guilty to these offences, and expressed remorse for his crimes. He is a member of the Ermineskin Cree Nation, and there are significant Gladue factors to be considered.

The Court determined that the sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors and place sufficient weight on deterrence and denunciation, and overemphasizing Gladue/Ipeelee factors. The sentence of two years less a day is unreasonable and demonstrably unfit. Taking all of these factors into account, a fit and proper sentence for Mr Hilbach is three years’ imprisonment for the s 344(1)(a)(i) offence. However, given that a significant period of time has elapsed since Mr. Hilbach was sentenced and he has served his full original sentence, it is not in the interests of justice to re-incarcerate him at this time. The Court confirms the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.

 

Sioux Valley Dakota Nation v Tacan, 2020 FC 874

The Court rejected an application for a stay of proceedings preventing a complaint under the Canada Labour Code from proceeding, while a preliminary ruling on jurisdiction is subject to judicial review. The First Nation failed to demonstrate a serious issue, as its application for judicial review was premature; it failed to demonstrate irreparable harm; and the balance of convenience favoured respect for the arbitrator’s autonomy and the availability of a quick and effective remedy for the complainant.

Indigenous Law Centre
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Sioux Valley Dakota Nation [“SVDN”] sought a stay of proceedings before an adjudicator hearing Ms. Tacan’s complaint under the Canada Labour Code [“Code”]. In a preliminary ruling, the adjudicator found that Ms. Tacan’s employment fell under federal jurisdiction. SVDN brought an application for judicial review of that preliminary ruling and for the application to be decided before the adjudicator hears the merits of Ms. Tacan’s complaint.

SVDN’s motion is dismissed because the underlying application for judicial review is premature. As a result, the test for granting a stay is not satisfied. (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. The applicant must show that: 1) the underlying application raises a serious issue; 2) the stay is necessary to avoid irreparable harm; and 3) the balance of convenience favours the granting of the stay. Courts will refrain from reviewing interlocutory decisions of administrative bodies, save in exceptional circumstances (Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61); Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10).

SVDN’s application raises the issue of jurisdiction over labour relations. Applications for judicial review of interlocutory decisions are premature even if they relate to “jurisdictional” or constitutional issues (Black v Canada (AG), 2013 FCA 201; Alexion Pharmaceuticals Inc v Canada (AG), 2017 FCA 241). This Court has concluded that challenges to the adjudicator’s jurisdiction do not justify judicial review of interlocutory decisions (Entreprise Publique Économique Air Algérie, Montréal, Québec v Hamamouche, 2019 FC 272). An application for judicial review is obviously premature, because it challenges an interlocutory decision, does not give rise to a “serious issue” for the purposes of a motion for a stay (Dugré v Canada (AG), 2020 FC 602).

SVDN does not show that a stay is necessary to avoid irreparable harm. It argues that letting the adjudicator rule on the merits would be a “waste of time.” This alone, however, cannot be considered irreparable harm. SVDN also argues that it would suffer irreparable harm because its “constitutional development” is at stake. SVDN has not shown any concrete harm, as Aboriginal and Treaty rights protected by section 35 have no bearing on division of powers issues (Canada (AG) v Northern Inter-Tribal Health Authority Inc, 2020 FCA 63).

At the third stage of the RJR-MacDonald test, it is obvious that granting a stay and allowing SVDN’s application for judicial review to proceed would significantly prejudice Ms. Tacan, who remains unemployed and is unable to pay for legal services.