Monthly Archives: November 2020

LDC Solutions Inc v Natural Resources Canada, CITT PR-2020-001

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Request for Tribunal inquiry into complaint denied. The complainant, an unsuccessful Indigenous bidder, failed to meet the necessary requirements for the Tribunal to launch an inquiry.

Indigenous Law Centre CaseWatch Blog

This complaint pertains to a request for proposal [“RFP”] issued by Natural Resources Canada [“NRC”] for the provision of subject matter expects for the Indigenous Forestry Initiatives Expert Review Panel. The complainant, LDC Solutions Inc. [“LDC)”] was an unsuccessful bidder, and alleged that NRC failed both in the issuance of the RFP, and its process in evaluating bidders’ and their respective bids.

Following the initial issuance of the RFP, the complainant wrote to NRC to inquire why the solicitation was not issued as an Aboriginal set-aside (which designates it exclusively to Aboriginal bidders) and if they would consider re-issuing. The Respondent replied that while a mandatory Aboriginal set-aside was considered, it did not meet the criteria. In recognizing Indigenous bidders, however, it would allot extra points to bidders registered with the Indigenous Business Directory, and amended the RFP.

Shortly thereafter, NRC informed LDC that its bid was unsuccessful, and that the contract had been awarded to another company. LDC’s bid had met all the requirements, but did not achieve the highest score in comparison to the winning bidder’s technical and financial scores that were provided for comparison. LDC inquired to NRC that the winning bidder could not be located on the Indigenous Business Directory, and that their winning score must have included the additional points for being an Indigenous bidder. NRC contended that the winning bidder was not awarded the extra points, but an internal investigation would be conducted, and a re-evaluation of the bids would take place.

As a part of the re-evaluation, NRC raised issues that the financial proposal did not account for the cost of providing an Honorarium for Elders who would perform opening and closing ceremonies of meetings, and the lack of clarity in the Financial Proposal Form and Statement of Work. Upon conclusion of the re-evaluation, LDC was notified that their bid had been disqualified, and that a contract had been awarded to Stratos in Joint Venture with First Peoples Group. LDC filed a complaint with the Tribunal in regards to NRC’s decision, and also requested that the Tribunal recommend that a new solicitation be issued as a mandatory Aboriginal set-aside, that the NRC should undergo Indigenous Cultural Awareness training, and that the winning bidder should be barred from competing in the new solicitation process for misrepresenting its Indigenous status.

The trade agreements require that government institutions disclose to unsuccessful suppliers that request it the reasons why their tenders were not selected, as well as information regarding the selected tender. The Tribunal found that NRC did not breach these obligations. It is not clear why LDC considers that its request for a debriefing meeting was refused. The debriefing did not address any issues with LDC’s bid, but was limited to responding to LDC’s questions regarding the winning bidder. LDC could have posed additional questions by email to NRC regarding its own bid, but according to the evidence on file, it did not do so. As a result, the Tribunal finds that NRC provided all the information that was requested by LDC and did not breach the trade agreement requirements in regard to debriefings. Pursuant to the Canadian International Trade Tribunal Act, the Tribunal has decided not to conduct an inquiry into the complaint.

La Rose v Canada, 2020 FC 1008

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The Court granted Canada’s motion to strike the Plaintiffs’ Statement of Claim without leave to amend. The Plaintiffs are children and youth from across Canada who allege Canada is contributing to greenhouse gas emissions that are incompatible with a stable climate system, posing a particular threat to Indigenous peoples. The Plaintiffs pleaded causes of action under ss 7 and 15 of the Charter were found not to be justiciable. A separate cause of action based on the public trust doctrine was rejected as it does not form part of Canadian law. 

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The Plaintiffs are fifteen children and youth from across Canada. Although their locations and particular circumstances vary, the Plaintiffs collectively describe that climate change has negatively impacted their physical, mental and social health and well-being. They allege it has further threatened their homes, cultural heritage and their hopes and aspirations for the future. As children and youth, they claim a particular vulnerability to climate change, owed to their stage of development, increased exposure risk and overall susceptibility.

The Plaintiffs’ Statement of Claim is particularly focused on the contribution of greenhouse gases [“GHGs”] to climate change, discussing the link between the cumulative impacts of GHGs and changes occurring in the environment. The Statement of Claim lists alleged harm by the Defendants that includes: continuing to cause, contribute to and allow a level of GHG emissions incompatible with a Stable Climate System; adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System; failing to meet the Defendants’ own GHG emission targets; and actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System [“Impugned Conduct”]. The Plaintiffs claim various forms of relief as the impacts of climate change that are described are wide ranging, significant and felt across Canada.

The test on a motion to strike is whether it is plain and obvious that the pleadings disclose no reasonable cause of action, or that the claim has no reasonable prospect of success (Hunt v Carey Canada Inc, [1990] 2 SCR 959; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 [“Imperial Tobacco”]). The threshold to strike a claim is high and the matter must proceed to trial where a reasonable prospect of success exists.

The material facts pleaded in the Statement of Claim must be taken as true, unless the allegations are based on assumption and speculation (Operation Dismantle v The Queen, [1985] 1 SCR 441 [“Operation Dismantle”]). It is incumbent on the Plaintiffs to clearly plead the facts in sufficient detail to support the claims and the relief sought. The material facts form the basis upon which to evaluate the possibility of the success of the claim (Imperial Tobacco; Mancuso v Canada (National Health and Welfare), 2015 FCA 227). Further, the pleadings must be read as generously as possible, erring on the side of permitting a novel but arguable claim to proceed to trial (Imperial Tobacco ; Atlantic Lottery v Corp Inc v Babstock, 2020 SCC 19 [“Atlantic Lottery”]).

The presence of a Charter claim alone does not prevent the Court from considering the motion to strike (Operation Dismantle; Tanudjaja v Canada (Attorney General), 2014 ONCA 852). It is clear that a Court can hear and decide novel questions of law on a motion to strike. A claim should not survive a motion to strike based on novelty alone. Disposing of novel claims that are doomed to fail is critical to the viability of civil justice and public access (Atlantic Lottery). The Court is not convinced that it is required to allow the Charter claims to survive the motion to strike simply because they are new Charter claims. Both Charter claims, under ss 7 and 15 of the Charter, are not justiciable.

The Plaintiffs’ position fails on the basis that there are some questions that are so political that the Courts are incapable or unsuited to deal with them. The finding on justiciability is supported both by the undue breadth and diffuse nature of the Impugned Conduct and the inappropriate remedies sought by the Plaintiffs. As well, the Plaintiffs’ Statement of Claim have not pleaded material facts to support the public trust doctrine as an unwritten constitutional principle, outside its allegation that this is in fact the case. The failure to offer any material facts which, taken to be true, would support this finding in their Statement of Claim, is fatal to the proposed cause of action (Reference re Succession of Quebec, [1998] 2 SCR 217). It is plain and obvious that the claims related to the public trust doctrine fail to disclose a reasonable cause of action.

The Defendants’ motion to strike the Plaintiffs’ Statement of Claim is granted without leave to amend. The Charter claims, under s 7 and s 15, are not justiciable and otherwise disclose no reasonable cause of action. The public trust doctrine, while justiciable, does not disclose a reasonable cause of action.

Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2020 ABQB 666

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The defendant law firm’s application for summary dismissal of a professional negligence action against them, is dismissed. The negligence claim arises from the defendant law firm’s failure to prosecute the plaintiff First Nation’s land claim, leading to dismissal of the action for long delay.

Indigenous Law Centre CaseWatch Blog

This application for summary dismissal of a professional negligence action is based on a limitations argument. The underlying lawsuit was about status, recognition and compensation to the Aseniwuche Winewak Nation, that consists of the descendants of those persons expelled from Jasper National Park at its inception. The underlying lawsuit was ultimately dismissed for long delay by a majority in the Court of Appeal (Canada (AG) v Delorme, 2016 ABCA 168). The Applicants argue that the limitation clock started with the applications to dismiss, not from the Court of Appeal Decision.

Part of the reason for the delay was because a conflict had developed within the firm which impaired their ability to prosecute the action. The Court held that the limitation period for suing the defendant law firm for professional negligence began to run when a majority of the Court of Appeal decided to dismiss the land claim action for long delay, not the date on which that application to dismiss was first filed.

 

 

 

 

SL (Re), 2020 ABPC 194

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The Court rejected a mother’s application for a hearing on the alleged non-compliance of the Director of Children’s Services with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 in context to an application for a Temporary Guardianship Order over her five children. She alleged the Director failed to provide notice of the apprehension to her and the Indigenous governing body of her children. The Court found it impossible to ascertain who or what comprises an Indigenous governing body and held there was no factual basis or statutory authority for the application.

Indigenous Law Centre CaseWatch Blog

The Director of Children’s Services [“Director”] has applied for a Temporary Guardianship Order [“TGO”] with respect to five siblings. There has been a long-standing history between the family and Children’s Services dating back to 2008. Concerns centered around substance abuse and domestic violence.

In 2020, police responded to the family’s home after being alerted to domestic issues between the parents who had engaged in a night of drinking. Ten days after a safety plan was put in place requiring the parents to remain sober, the police once more attended the home. The parents and one of the adult sons were found to be intoxicated and displayed aggressive behaviour towards the officers who responded to complaints. At the time, all five children were present in the home and were apprehended as there was no sober adult who was able to care for them.

Four days after the apprehension took place, the Director served the Dene Tha band designate with formal notice of its application for an Initial Custody Order, as well as a TGO. To date, no one has appeared on behalf of the band designate. The parents consented to an Order for Initial Custody. Both were represented by counsel at the time. The substantive application for a TGO remains outstanding.

The mother has now asked the Court for a hearing to rule on the Director’s alleged non- compliance with An Act Respecting First Nations, Inuit & Metis Children, Youth and Families, SC 2019, c 24 [“Act”]. Her concern relates to the alleged failure of the Director to provide notice prior to the emergency apprehension of the children.

The Child, Youth and Family Enhancement Act [“CYFEA”] is provincial legislation enacted by the Government of Alberta. While large swaths of the legislation confer power to the Provincial Court in granting certain orders, the Provincial Court does not have exclusive jurisdiction over every aspect of the CYFEA. In the case at bar, the Director’s substantive application seeks temporary guardianship of the children, thereby the Court has jurisdiction over this matter.

The Act is federal legislation which applies to Indigenous children in the care of the Director. The federal legislation does not articulate what remedies, if any, are available when a party is non-compliant with or in breach of the statute. Similarly, the CYFEA does not set out what consequences may arise if the Director fails to provide notification of a child’s apprehension. The CYFEA does permit an individual who is affected by a decision of a director to request a review. If the guardian is dissatisfied with the Director’s review, they may appeal to the Appeal Panel and thereafter to the Court of Queen’s Bench (RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306).

It would appear that the mother did, in fact, have notice that the children were to be apprehended as she was present at the time that the police made its decision. The federal legislation does not specify how or in what form the notice should be given. As such, oral notice is sufficient given the circumstances of this case. Any requirement of notice pursuant to s 12 of the Act must always consider the best interests of the children. In instances where law enforcement is required to respond in the middle of the night and finds that children are in harm’s way due to the condition of the parents, the primary principal step taken by peace officers must always be to protect the said children. Such a step is consistent with the children’s best interests.

As well, the Court finds it impossible to ascertain who or what comprises an Indigenous governing body. The children belong to the following Indigenous governing bodies: Dene Tha First Nation in Alberta; Frog Lake First Nation in Alberta; Witchewan Lake First Nation in Saskatchewan; and Onion Lake first Nation in Saskatchewan. The term Indigenous governing body is defined in s 1 of the federal legislation as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Neither legislation provides any guidance on how determination of a child’s band affiliation is made, which is integral to the Director’s ability to identify which Indigenous governing body or bodies should be contacted. The Act does not address instances where a child has hereditary connections to several bands, nor on the required strength of any hereditary connection. In this case, the Dene Tha band designate has not appeared in Court, nor made any representation despite the provision of notice to it. The mother has not provided any additional information, including which children belong to which bands; the manner of the connection; or whether any of the children belong to more than one band. Jurisprudence on this topic provides limited guidance to the case at bar. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it is in fact authorized to act on behalf of the group, community or people. The mother has failed to establish any nexus between her rights and those of an Indigenous governing body.

Kim v Vancouver Native Health Society and another, 2020 BCHRT 153

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The British Columbia Human Rights Tribunal dismissed a complaint under s. 27 (1)(c) of the Human Rights Code on the basis that it had no reasonable prospect for success. The Complainant unsuccessfully argued discrimination in employment based on race and place of origin by the Vancouver Native Health Society.

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Ms. Ji Kim is an immigrant from Korea and a former employee of the Vancouver Native Health Society [“Respondent”]. She alleged that she was not afforded the same funding opportunities as other team members, experienced bullying, false accusations, and different performance standards applied to Aboriginal employees. She also alleged that her termination was due to her not being an Aboriginal person and that this amounts to discrimination in employment based on race and place of origin contrary to section 13 of the Human Rights Code [“Code”]. The Respondent denies the allegations and seek to dismiss the complaint on the basis that it has no reasonable prospect for success as per section 27 of the Code.

The Tribunal must consider the whole of the evidence to determine whether there is no reasonable prospect that the complaint will succeed (Workers’ Compensation Appeal Tribunal v Hill, 2011 BCCA 49). When assessing the evidence, the Tribunal looks for internal and external consistency and considers it in the context of the overall relationship between the parties and the circumstances in which the alleged discrimination occurred (Ritchie v Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110).

Race must be proven as a factor in the adverse impact that Kim experienced. Direct evidence of race-based discrimination is rarely available and as a result, it is necessary to draw inferences from the evidence to prove such (Mezghrani v Canada Youth Orange Network (No. 2), 2006 BCHRT 60). In regard to the allegation of discrimination pertaining to the funding opportunities, neither the complaint nor the response to the application explains how her race was a factor in the decision not to approve the funding requests for her Indigenous clients requiring support. There were other workers seeking funding for their clients that were not Aboriginal, but Kim did not explain nor provide any evidence from which a reasonable inference could be drawn as to what would single her out.

Kim does not deny that many issues arose during the course of her employment nor that she had several conflicts with her co-workers. There has been no reference to Indigenous identity in the communications made to her and the allegations regarding “inappropriate racial comments” are found to have been too vague. They allege that she was a poor performer, had poor interpersonal skills and despite months of coaching and guidance, she did not demonstrate signs of improvement. The Respondent assured that the decision would have been the same regardless of whether she was Aboriginal or not.

The Tribunal decided that the complaint had no reasonable prospect of success at a hearing. The application was granted, and the complaint dismissed in its entirety under section 27 (1)(c) of the Code.

JEO v MD, 2020 ONSC 6106

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The Court dismissed an appeal from a customary care provider seeking sole custody of a child with access to her natural parents at the care provider’s discretion. Under the Child, Youth and Family Services Act, 2017, Customary Care Agreements are to be preferred even to child protection proceedings in the case of Indigenous children. It would be inconsistent with this regime to allow an individual to bring a custody application that could result in a court order collapsing such an agreement, thereby disregarding the voluntary parental participation and Indigenous community input that defines it.

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 This appeal concerns the intersection between a Customary Care Agreement [“CCA”], and the application by an individual for custody of a child under the Children’s Law Reform Act [“CLRA”]. The Appellant seeks to lift the stay imposed by the motion judge on her application under the CLRA for sole custody of an Indigenous child, with access to the child’s natural parents at the Appellant’s discretion. The errors that the Appellant alleges mainly focus on the motion judge’s use of s 103 of the Child, Youth and Family Services Act, 2017 [“CYFSA”] as the authority for the stay that was imposed.

Kina Gbezhgomi Child and Family Services [“KGCFS”] had been involved with the child’s parents since 2000 because of issues relating to domestic violence and substance abuse. Older children of the parents were being cared for by a relative in the community. Two other children were made Crown wards in 2009. In 2013, the mother’s file was reopened when KGCFS was advised that she was pregnant again.

Once born, the child was apprehended by KGCFS, which brought a protection application and placed her in the Appellant’s home for fostering. The Appellant is married to the child’s paternal great uncle. In 2014, a Wikwemikong Band Council Resolution was passed, resolving that the child would be in the care of the Appellant. This was done by Wikwemikong Unceded Indian Reserve [“Wikwemikong”], the child’s First Nation, in “exercising its inherent authority and responsibility for the care of children of their community” and so that KGCFS could grant the Appellant a subsidy for care according to the custom of the Band/First Nation.

 A CCA was made and came into force in 2015. As a result, the protection proceeding that had been initiated was withdrawn. Parties to the CCA are the mother, the father, Wikwemikong, the Appellant, KGCFS, and the Children’s Aid Society. The CCA was described as a “Long-Term” CCA which could be in effect until the child reached the age of 18 years. The CCA states that the Appellant, who is a Wikwemikong resident, is to be the “customary care provider.” She is given authority to consent to medical, surgical, dental, educational, psychological or diagnostic treatment and anesthetic care that a qualified medical or dental practitioner might recommend.

In 2018, the Appellant brought an application for full custody of the child under the CLRA, stating concerns with the parents. KGCFS may have had some concerns relating to the Appellant, but she had been working with them on a voluntary basis and that she wanted to terminate the CCA. The motion judge considered various sections of the CYFSA relating to the protection of First Nations, Inuit and Metis children. He reasoned that if a CCA was entered into, then it would be by agreement, and should be accorded deference as “a complete code for the resolution of child protection cases in appropriate circumstances.” The motion judge read CCAs into s 103 of the CYFSA as a valid reason for a stay of a custody application under the CLRA, as to conclude otherwise would be to diminish the importance of CCAs. To permit the custody application to continue would also invite the court to disregard the intent of the parties in setting up the CCA, which constituted a voluntary meeting of minds.

 The motion judge stayed the appellant’s CLRA application for custody pursuant to s 103 of the CYFSA, and is subject to a correctness standard on appeal (Housen v Nikolaisen, 2002 SCC 33). To assess the order made by the motion judge, the terms of s 103 of the CYFSA must be considered, its purpose, and legislative intent in child welfare legislation. Section 103 of the CYFSA dictates the pre-eminence of child welfare legislation, where child welfare proceedings have begun or an order has been made in those proceedings, and a person seeks custody under the CLRA. This section underscores the well-established principle that child protection legislation will take precedence over the jurisdiction granted to courts by other provincial legislation dealing with matters of custody (Fortowsky v Roman Catholic Children’s Aid Society of Essex (County), [1960] OJ No 600 (CA)). Section 103 protects the integrity of the child welfare placement by ensuring that no other court can substitute its decision for that of the child protection court (Children’s Aid Society of St. Thomas and Elgin County v CZ and JH, [2003] OJ No 4177 (CA)).

CCAs act as an alternative to child protection proceedings and serve as an expression of Indigenous community values in the sphere of child protection. In the circumstances of the CCA in this case, it would have been appropriate to exercise the court’s discretion to stay the CLRA application. That is not to say that any and all CCAs will equally merit the protection of the court against CLRA applications. The motion judge, however, committed no error in imposing a stay of proceedings on the Appellant’s CLRA application.

R v Wentzell, 2020 NSPC 20

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The Court sentenced an Indigenous offender who stabbed her significant other, to a global sentence of a suspended sentence with a period of probation for three years with conditions. This sentence provides the best mechanism for assuring that the offender continues on her path towards a pro-social lifestyle. Society’s protection is best assured by the continued supervision and encouragement of the offender’s efforts and progress in her rehabilitation.

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Ms. Jennifer Wentzell is a 38-year-old woman of Mi’kmaq ancestry and a member of the Gold River First Nation. One night, when intoxicated, she uttered a threat to kill and then subsequently stabbed her significant other. The use of a knife and a resulting penetrative wound to the victim coupled with Ms. Wentzell’s prior criminal record must have a sentenced imposed that is proportionate to the gravity of the offence and the degree of responsibility of Ms. Wentzell.

A Gladue Report was prepared in 2019, and a sentencing circle was held in the Gold River community in 2020. At the sentencing circle, two videos were viewed regarding the events that led up to the altercation, including Ms. Wentzell being told her body was gross and some physical altercations between the couple. The victim in this matter declined to provide a Victim Impact Statement or participate in the sentencing circle.

Ms. Wentzell’s life has been marred with instability, poverty, homelessness, and a lack of education and employment opportunities. She has experienced domestic violence, sexual abuse, and the involvement of the child welfare system. She has suffered from addictions to alcohol and drugs, along with intergenerational trauma as result of the legacy of the residential school system, discrimination and colonization. She has three children from two long term relationships.

Ms. Wentzell has been attending programming at Holly House, which is run by the Elizabeth Fry Society. Ms. Wentzell has been engaging in individual addictions counselling. She has attended the Rising Sun Treatment Rehabilitation Centre on two occasions and has plans to attend again for the relapse prevention program. She has attempted to reduce her consumption of alcohol. Her plan going forward is to continue with counselling for addictions and healthy relationships. She also will be attending sweats on a regular basis and is working towards long term sober living. She would like to continue her education by attending the Nova Scotia Community College in a trades program and find part time employment.

Ms. Wentzell was involved in a volatile and abusive spousal relationship. The victim’s prior treatment, assaultive and degrading behaviour towards Ms. Wentzell along with her intoxication and impulsive reaction to the events must be taken into consideration. These events in addition, to Ms. Wentzell’s prior history of trauma and experiences of an Indigenous person, reduce her moral culpability in these offences.

The long-term protection of the community requires that Ms. Wentzell’s efforts be acknowledged and that she be allowed to continue on that path without interruption. It is hopeful that she will be able to show the community, by her example, that there is life beyond addiction and involvement in the Criminal Justice System. A suspended sentence with a significant period of probation was the reasonable alternative to incarceration in this case and is of significant consequence to Ms. Wentzell.