Alberta (CYFEA, Director) v NL, 2020 ABPC 118

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This is a decision with respect to ordering costs against the Director of child and family services in Alberta, which is relatively unusual and difficult to obtain. While it is not per se an “Aboriginal law” case, the Court considered the overrepresentation of Indigenous children in protection as a factor in favour of issuing an order for costs under s. 24(1) of the Charter. 

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A Permanent Guardianship Order was determined as not warranted for a child apprehended by the Director of child and family services in Alberta. The Court orders the child to be returned to the mother [“NL”] over a period of three months pursuant to a Supervision Order. This was necessary because the child had been in the custody of the Director for a period of almost 2 years, and not because of any concern about the mother’s ability to care for the child. Counsel for the mother asks the Court for costs against the Director.

As background, concerns were enough for the Director to properly apply for an apprehension order in 2017 due to numerous medical difficulties that caused concern for health and medical professionals. As well, NL at the time did not seem to be taking the appropriate measures that were suggested. Although there had been previous concerns with respect to NL’s care of her other children in the past, none of the children had been apprehended and issues with respect to drinking, partnership issues and so on, always seem to be resolved and did not appear to be an insurmountable situation. Another issue regarding NL’s care for the child was that medical appointments were located in Red Deer, approximately one hour away from her residence by car. NL does not have a car or driver’s license.

There does not appear to have been any investigation into whether NL was suffering from postpartum depression or at least the anxiety brought on by having the child’s medical problems added on to the fact that she was caring for another child, age three, who had her own medical difficulties. It appears that the medical and psychological experts assumed that what they termed as NL’s passivity or lack of affect, was a personality defect rather than a situational reaction to the stressful situation she found herself in.

The foster mother gave evidence to the child’s present circumstances. She has been the foster parent for the child since he was apprehended at approximately four months of age. The child is a typical energetic, curious, active two-year-old and does not appear to have any difficulty eating, sleeping or anything else out of the ordinary. She is regularly in contact with NL and they share information on the child’s progress and any changes that are necessary with respect to his sleeping eating or activity patterns. This evidence exposes the Director’s evidence as being out of date, yet still having been used to pursue a permanent guardianship order. There was also no evidence before the Court of the child having FASD, nor did the Director provide any evidence that this concern was pursued at all since apprehension.

Effectively nothing was done with respect to re-uniting this family during the whole time the chlid was in care. This is in direct conflict with the Director’s mandated obligations under the CYFEA. Medical information should have been updated to show the child was still in need or the child should have been returned to the mother.

The difficulty in dealing with the question of costs in child protection matters is that there are a number of cases both in Provincial Court and The Court of Queen’s Bench which take differing views with respect to the Provincial Court’s jurisdiction to award costs against the Director in a child protection matter. One may assume that costs is not an issue for child protection litigants because through Legal Aid they get “free” lawyers. This is not actually the case in Alberta as new clients are required to sign documentation acknowledging that they will repay any amounts billed by counsel, prior to counsel taking on their matter. This Court can see no reason why child protection litigants, a significantly large proportion of whom are Indigenous women and men, should be denied court costs in instances of the Director’s failure to carry out its mandate under the CYFEA.

Having found that there is conflicting case law; and having found that the CYFEA remains silent with respect to this issue and thereby creating an apparent conflict; the Court finds that the Respondent’s rights ensured by the Charter pursuant to section 7 and 15 have been infringed or denied. This in turn leads to the Court to considering an appropriate remedy. Section 24 of the Charter states “(1) Anyone whose rights or freedom’s, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The Court finds that the appropriate remedy for the respondent in this case is an award of damages against the Director in an amount equal to the legal fees the Respondent is required to repay to Legal Aid Alberta.

Buck v Canada (AG), 2020 FC 769

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The Federal Court dismissed an application for an interlocutory injunction against the Minister of Crown-Indigenous Relations and Northern Affairs Canada to prevent the execution of a proposed specific claim settlement with the Enoch Cree Nation until a final determination of an action against Enoch and the Crown. The Court held that it has no statutory jurisdiction to issue an interlocutory injunction against the federal Crown in relation to an action as opposed to an application for judicial review. The Court also held that it would not have issued an injunction even if it had the jurisdiction to do so, finding no irreparable harm to the plaintiffs and that the balance of convenience favours reconciliation through implementation of the settlement agreement.

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Enoch is a First Nation and a band as defined in s 2(1) of the Indian Act, with over 2200 members. In 1942, Canada leased a portion of Enoch Reserve lands, to the Department of Munitions and Supply [“DMS”] for use as a practice bombing range.

In 2008, Canada enacted the Specific Claims Tribunal Act pursuant to which First Nations could file specific claims with the Tribunal as specified therein. A specific claim submitted by a First Nation can be accepted for negotiation by Canada. The negotiation and settlement of a specific claim avoids recourse to adjudication before the Specific Claims Tribunal. The Specific Claims Policy establishes the principles and process for resolving specific claims through negotiation and that such claims can only be submitted by a First Nation and only First Nations can file specific claims with the Tribunal.

Enoch submitted a specific claim in respect of the use by DND of Enoch Reserve lands as a bombing range [“Enoch Specific Claim”]. The Enoch Specific Claim alleged breaches of fiduciary duty and breaches of the 1927 Indian Act. Canada and Enoch reached mutual agreement as to the settlement of the Enoch Specific Claim that included the proposal of a significant payment by Canada to Enoch in full and final settlement of the Enoch Specific Claim [“Proposed Settlement Agreement”]. In 2020, Enoch held a ratification vote at which the large majority of Band members who voted did so in favour of accepting the Proposed Settlement Agreement, and subsequently passed a Band Council Resolution accepting the Proposed Settlement Agreement.

The Plaintiffs are members of Enoch. In 2019, the Minister received a letter stating the Enoch Specific Claim included land held by the McGillis family by way of a Certificate of Possession [“CP”]. Amongst other things, it stated that Enoch had recently engaged directly with the McGillis family, but despite a letter from their counsel to the Department of Justice outlining what the Plaintiffs viewed as the legal obligations of the Crown to the CP holders, there had been no direct engagement with the Crown. It is alleged that Enoch and the Crown could not proceed with the Enoch Specific Claim settlement without reaching prior agreement with the Plaintiffs as to their interests in the land held under the CP.

The Minister advised that Canada’s negotiations with Enoch were undertaken on a confidential basis, and for that reason, the Minister was unable to meet with the Plaintiffs to discuss them. However, that through the specific claims negotiations, Canada encourages First Nations elected leadership to share information about the claim with all community members. The Plaintiffs’ view is that Canada should engage directly with the Plaintiffs. Accordingly, Canada continued to urge the Plaintiffs to direct their claims to Enoch.

The Plaintiffs filed a Statement of Claim in this Court, commencing an action against Canada alleging ongoing trespass caused by alleged munitions scraps on the lands that were leased to DMS for use as the bombing range, including those lands held under the CP. Subsequently, the Plaintiffs filed an Amended Statement of Claim asserting that Canada breached its fiduciary duties owed to the Plaintiffs with respect to the CP Lands, including by finalizing the terms of the Proposed Settlement Agreement to the prejudice of the Plaintiffs. They further alleged the tort of conversion on the basis that as holders of the CP, only they can sue for trespass, seek remediation and receive damages and that Enoch was not authorized to make the Specific Claim in relation to the CP lands.

The determinative issue is this matter is whether this Court has jurisdiction to grant the requested injunctive relief. There is no underlying application for judicial review that could be the basis for the Court’s jurisdiction to grant an interlocutory injunction. There is a clear line of authority standing for the proposition that where an action is brought against the Crown, s 22(1) of the Crown Liability and Proceedings Act will, in the normal course, preclude the granting of an injunction against the Crown. This Court has no jurisdiction to grant an injunction in that circumstance as its jurisdiction is determined by ss 18(1) and (3) of the Federal Courts Act, which permits it to grant injunctive relief only where the underlying proceeding is an application for judicial review.

The lack of jurisdiction of this Court to grant the motion seeking an injunction entirely disposes of the Plaintiffs’ motion. However, even if the Court had jurisdiction, it would not have granted the injunction as the Plaintiffs failed to meet the requirements of the three part test (R v Canadian Broadcasting Corp, 2018 SCC 5 [“Broadcasting”]). Although the Plaintiffs demonstrated a “serious question to be tried”, they could not succeed on the second and third branches. They did not establish that they would incur irreparable harm. In preventing the settlement and the step toward reconciliation that it represents, thereby delaying or precluding the compensation its resolution would afford to Enoch’s members collectively and individually, is not in the public interest and tips the balance of convenience in favour of Enoch and the Attorney General. The Plaintiffs would not suffer the greater harm in that event.

Quebec (AG) v Picard, 2020 FCA 74

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Appeal dismissed. The Court of Appeal upheld the Federal Court’s finding that the pension plan for Indigenous police officers employed by several band councils in Quebec falls under federal jurisdiction and is a plan registered under the federal Pension Benefits Standards Act.

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The First Nations Public Security Pension Plan [“Plan”] was first registered by the Office of the Superintendent of Financial Institutions [“OSFI”] in 1981 under the authority of the Pension Benefits Standards Act [“PBSA”]. The purpose of that Plan is to provide retirement benefits to the police officers and special constables of a number of police forces of First Nations member communities serving Indigenous communities. The Plan currently covers the police forces under the responsibility of 14 band councils in Quebec.

The police services of the band councils that are members of the Plan are all subject to policing services agreements reached between each of the band councils, the Crown, as represented by the Minister of Public Safety and Emergency Preparedness, and the Government of Quebec. These agreements are made under the First Nations Policing Program [“Program”]. The federal government covers 52% of the costs, and the provincial government covers 48%. Tripartite agreements of the type at issue in this case are apparently preferred by the vast majority of the communities.

OSFI is responsible for regulating and supervising private federal pension plans registered under the PBSA in order to contribute to public confidence in the Canadian financial system (Office of the Superintendent of Financial Institutions Act). To be registered under the PBSA, a pension plan must primarily relate to employment in connection with the operation of any work, undertaking or business that is within federal legislative authority (PBSA). When this is not the case, the supervision of the plan is the responsibility of the provincial authorities.

The Federal Court found that the police officers and special constables hired and remunerated by band councils under a tripartite agreement that also involves the federal and Quebec governments are employed in a federal work, undertaking or business. Consequently, the Federal Court expressed the view that their pension plan was a plan registered under the PBSA and that OSFI should continue to administer the Plan.

This Court is of the view that the Federal Court did not err in allowing the application for judicial review and in declaring that the police officers and special constables hired and remunerated by band councils that are members of the Plan are employed in a work, undertaking or business within federal jurisdiction. Consequently, the PBSA and its Regulations apply to the Plan because the participating employees are employed in “included employment” within the meaning of the PBSA.

In contrast to the Indigenous police officers employed by the Nishnawbe-Aski Police Service Board at issue in a previous Federal Court of Appeal decision, the Indigenous police officers in this matter are employed directly by band councils and associated with the governance of their First Nations, therefore their labour relations are federally regulated.

RF v Kina Gbezhgomi Child and Family Services, 2020 ONCJ 366

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Counsel for a foster parent in a child protection matter was removed from the record based on his prior representation of the child protection agency respondent. The Court took into account the overall negative relationship between Indigenous peoples and the justice system in relation to the need to respect an Indigenous person’s choice of counsel, but held that intervention is necessary in clear cases of conflict in order to mitigate this crisis of confidence. 

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An Anishinaabe child [“NLJ”], a registered band member of Wiikwemkoong Unceded Territory [“Wiikwemkoong”], was removed at birth from the care of her parents by the Children’s Aid Society of Oxford County [“CAS”] and a protection application commenced. The child has significant physical needs that require specialized care both at home and at school. NLJ was placed with the applicant [“RF”] on this protection application proceeding, and who was, at that time, a recognized foster home and the placement was monitored by the CAS. The file was ultimately transferred to Kina Gbezhgomi Child and Family Services [“KGCFS”] and the applicant continued to provide a foster placement for NLJ.

NLJ was made a crown ward under the Child and Family Services Act and remained in RF’s care. Wiikwemkoong passed a Band Council Resolution which provided that NLJ remain in the home of RF pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a “Joint Protocol” [“Protocol”] with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and their inherent right to be involved in decision making on child protection issues.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement. In 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

The child remained in the home of RF under this Agreement until 2019 when NLJ was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between KF, Wiikwemkoong, KGCFS, and the biological parents of NLJ was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for RF. Mr. Parisé represented RF who filed a status review which was ultimately dismissed without prejudice to the applicant bringing an application under s 81(4) of the Child, Youth and Family Services Act [“CYFSA”]. RF then filed a protection application. KGCFS brought a motion to remove Mr. Parisé as counsel of record a month later, which was the first time the issue of potential conflict was raised with the Court.

On March 16, 2020, the Office of the Chief Justice released a Notice to the Public ordering the suspension of normal court operations in light of the COVID-19 pandemic. As a result, RF’s application was adjourned, and with it, KGCFS’s motion. Subsequently, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. NLJ no longer had a customary care placement and KGCFS commenced their own protection application without naming RF as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

The jurisdiction to remove counsel is found in the inherent right of the court to determine “to whom it will give an audience” and that the threshold for court intervention should be high (Windsor-Essex Children’s Aid Society v BD, 2013 ONCJ 43). The test that the courts have developed for determining if counsel should be removed is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur (MacDonald Estate v Martin, [1990] 3 SCR 1235 [“MacDonald”]).

Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute. The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. The Court determines in this case, that the conflict is one which should disqualify the lawyer from continuing to act on the matter and the lawyer be removed from the record. The courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

R v Laforge, 2020 BCSC 1269

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The Court rejected a joint sentencing proposal of 27 months in prison followed by probation for arson related to the burning of a vehicle and a convenience store. Counsel failed to meaningfully consider the Gladue principles and the sentence itself would contribute to systemic discrimination against Indigenous people rather than amelioration. A sentence of time served in custody was imposed instead, which will now be followed by a probation order. 

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Mr. Laforge drove his vehicle into the front window of a 7-Eleven convenience store in Salmon Arm, British Columbia. He then exited his vehicle and poured gasoline into the cab. After everyone left the store, Mr. Laforge then lit his vehicle on fire. The fire spread quickly, causing extensive damage.

Mr. Laforge had been in custody for 548 days by the date of his sentencing hearing. Both counsel gave a joint proposal for a 27-month custodial sentence plus three years of probation. Mr. Laforge has Métis heritage and has been diagnosed with a schizophrenic illness. He did not want to hurt anyone or burn the 7-Eleven down, but to bring attention to his struggles, in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies.

The Court had the benefit of two well prepared reports, namely a pre-sentence report (“PSR”) prepared by a community corrections officer and a forensic psychiatric report, however, a Gladue report was not submitted. Mr. Laforge suffered abuse as a child and bullying in highschool for his Indigenous appearance. He used drugs extensively and eventually dropped out of school. He has only recently learned of his Métis ancestry, as his father was impacted by the “Sixties Scoop”. He has limited work experience and has a history of mental health problems, posing a moderate to high risk to reoffend without assistance from treatment and supports.

Restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender.

Arson is a serious offence. For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge or financial gain are generally considered to have the highest (R v KH, (1994) 146 NBR (2d) 372 (CA)).

Given Mr. Laforge’s Indigenous heritage, mental health issues and highly reduced level of moral blameworthiness, the joint submission seems overly harsh, in that it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest (R v Anthony-Cook, 2016 SCC 43).

R v Neasloss, 2020 BCPC 161

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The Court accepted a joint proposal for a 10-month conditional sentence served in the community for possession of child pornography. The Court did express misgivings with the absence of any independent or expert evidence in the record to justify the proposal as no Gladue report, pre-sentence report, or psychiatric assessment was obtained. The proposal was accepted, however, due to the high standard for any judicial departure from a joint submission on sentence.

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Tyler Eugene Neasloss was charged with distributing and possessing child pornography contrary to the Criminal Code. At the sentencing hearing the Crown and defence jointly proposed a sentence comprising of a ten-month conditional sentence [“CSO”], three years’ probation and four ancillary orders. The Court questioned whether a non-custodial sentence was appropriate in the circumstances of the offence and offender. Although, not convinced a CSO gives proper effect to the sentencing principles of parity and proportionality, the Court is bound by the Supreme Court of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The Court can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down (R v Anthony-Cook, 2016 SCC 43).

In 2018, Facebook, a United States social media corporation, reported the transmission of suspected child pornography to the National Centre for Missing and Exploited Children [“NCMEC”]. The following day, NCMEC reported the transmission to the BC Integrated Child Exploitation [“ICE”] Unit of the Royal Canadian Mounted Police [“RCMP”]. The BC-ICE Unit determined that two images sent by a Facebook user met the definition of child pornography and forwarded a report to the New Hazelton RCMP detachment. The Facebook user had used an identifying IP address. The RCMP obtained and executed a search warrant at a residence, at which time they arrested Mr. Neasloss. The RCMP seized several items from Mr. Neasloss’ bedroom. Mr. Neasloss confessed to possessing child pornography and viewing images of pre-pubescent boys and girls performing various sexual acts. He denied ever touching a child sexually, expressed shame and wrote a written apology to his family for what he has done.

Mr. Neasloss was 30 years old at the time of the offence and has no criminal record. Mr. Neasloss is a member of the Gitxsan Nation. In Grade 8, while attending Skeena Junior Secondary School, Mr. Neasloss left school, never to return. He lives a narrow, lonely and solitary life with his father, where he stays home, watches television and is not otherwise socially engaged. Mr. Neasloss does not drink or smoke or use drugs. He has no friends or intimate partners, past or present, no children, does not work and has a negligible work history. Mr. Neasloss lives on social assistance and although he might qualify for a disability pension, he is unable to navigate the application process.

Typically, before imposing sentence on an offender convicted of possessing child pornography, the trial judge has the benefit of a pre-sentence report and a psychiatric and psychological risk assessment. When the offender is Indigenous, the court often receives a Gladue report, In this case, the Court has no such reports. There is no Gladue report and only a faint thumbnail sketch of Mr. Neasloss’ personal history. The Court, however, is acutely aware of the challenges facing Indigenous people in this region. The systemic and background factors affecting Indigenous people in Canadian society have likely impacted Mr. Neasloss’ life in such a way as to diminish his moral culpability.

The Court does not know the nature or severity of Mr. Neasloss’s asserted psychological, cognitive and social impairments. Apparently, he has the intellectual skills to navigate the dark web to access child pornography, and the psychological dysfunction to do so. Both counsel, however, argue that sentencing ought to proceed in the absence of presentence reports or psychological assessments in order to minimize delay and expedite Mr. Neasloss’s access to treatment. Both counsel are experienced and clearly considered the systemic benefits of Mr. Neasloss’s guilty plea to justify a non-custodial sentence. The crafting of the sentence endeavours to protect the community from the risk of Mr. Neasloss reoffending through a combination of rehabilitative and restrictive conditions contained in various court orders. The Court endorses the joint submission as advocated by counsel.

R v Hoshal, 2020 ONCJ 345

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The Indigenous defendant breached a Long Term Supervision Order on two separate accounts by consuming prohibited substances. This resulted in just one additional day in custody based on credit for pre-sentence custody and the collateral consequences of COVID-19 in the Toronto South Detention Centre, including the suspension of culturally appropriate programming and activities. Gladue factors contextualized his youth criminal record and indicated a need for restraint.

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Mr. Hoshal has pled guilty to two separate counts of breaching the conditions of his Long Term Supervision Order [“LTSO”]. Both breaches involved the consumption of substances prohibited by this order. His risk of violent future re-offence is directly linked to whether he can abstain from the consumption of alcohol and drugs. Breaching an LTSO is not like breaching probation or bail. It is met with significant jail terms. The public loses confidence in the judicial system when offenders breach court-ordered terms. He has been detained at the Toronto South Detention Centre.

Mr. Hoshal’s childhood was mired in trauma, abandonment, and abuse. Mr. Hoshal is forty years old and has a serious criminal record that includes approximately 25 convictions for domestic violence, all rooted in substance misuse and abuse. Mr. Hoshal is a non-status Blackfoot on his father’s side. Upon discovering this Indigenous heritage, he attempted to learn more about it on his own. He twice moved onto a reserve, only to feel isolated and singled out, sometimes violently, because he appeared “white”. The information he has managed to obtain about his Indigenous heritage has largely come from programs in jail. Otherwise, he has been disconnected from his Indigenous culture.

Mr. Hoshal’s punishment must be tempered as much as possible without displacing the fitness of the sentence, by the exercise of restraint. In order to rehabilitate oneself, hope is necessary. The conditions of Mr. Hoshal’s presentence custody, including the COVID-19 consequences, have amplified anxiety and stress, isolated him from supports, and caused him to lose hope. The harsh presentence custody conditions at the TSDC upon Mr. Hoshal personally, and the impact of COVID-19 adds to the already deplorable conditions. Mr. Hoshal’s global sentence of 14 months less presentence custody remains fit and within the range.

Fontaine v Canada (AG), 2020 ONCA 540

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The Court of Appeal declined a request to stay the destruction of the SADRE database used to manage Independent Assessment Process claims under the Indian Residential Schools Settlement Agreement pending an appeal. All parties consented to an order for an expedited appeal and the preservation of the database until December 30, 2020, which was ordered on a schedule that would make the stay unnecessary.

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This motion for a stay arises in the context of the Indian Residential Schools Settlement Agreement [“IRSSA”]. The IRSSA resulted in the establishment of the Independent Assessment Process [“IAP”], under which former students who suffered physical, sexual, or psychological abuse could claim compensation. The IAP is administered by the Indian Residential Schools Adjudication Secretariat [the “Secretariat”] under the direction of the Chief Adjudicator. Over 38,000 claims have been processed in the IAP and over $3 billion disbursed to former students. The Secretariat uses a database known as SADRE to case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is to be closed and all claims adjudicated by March 31, 2021.

The Chief Adjudicator sought directions on the disposition of certain records [“Non-Claim Records”] held by the Secretariat. He made a proposal to archive most of them with the Appellant, the National Centre for Truth and Reconciliation [“NCTR”]. Its mandate under the IRSSA is to archive and store records collected by the Truth and Reconciliation Commission and other records relating to what were known as Indian Residential Schools. This proposal was supported by the Appellant and others, but not by the Respondent, the Attorney General of Canada [“Canada”]. The proposal was rejected on January 20, 2020, and Canada was instead directed to bring a Request for Directions [“RFD”] for court approval of a proposal for the archiving of copies of the Non-Claim Records with the Appellant subject to certain delineated principles.

“Final Static Reports” were to be excluded from the Non-Claim Records to be archived, as the generation of such reports would contravene the orders made in Fontaine v Canada (AG), 2014 ONSC 4585. Final Static Reports are new reports generated from the SADRE database used by the Secretariat and reflect final process and outcome data of the 38,000 IAP claims administered under the IAP. Final Static Reports include tables that represent a fixed extract from SADRE at the end of the IAP. It was determined that the reliability and soundness of the models is doubtful without more information and truth and reconciliation would not be advanced, therefore the Final Static Reports should not be archived with the Appellant and not to be included in the IAP Final Report.

A number of orders have been made by the supervising courts in the course of the administration of the IRSSA. Three that are the subject matter of the stay motion have ordered that the SADRE database be destroyed. These courts have also issued various sunset orders governing the orderly closure of the IAP claims process, the expiry of the Chief Adjudicator’s mandate, and the wind-up of the Secretariat. The process to effect the destruction of SADRE could begin on December 31, 2020 and the Secretariat itself is to close on March 31, 2021.

In a nutshell, the Appellant’s primary position on appeal is that invaluable information will be permanently lost if the Final Static Reports are destroyed. However, Canada’s position is that the Appellant’s request to halt the destruction of SADRE is non-justiciable, a collateral attack on the In Rem order already made, and amounts to re-litigation.

The overarching consideration is whether the interests of justice call for a stay (Zafar v Saiyid, 2017 ONCA 919; Longley v Canada (AG), 2007 ONCA 149). In this case, a stay is declined. The parties all consent to an order for an expedited appeal and the orders that the Appellant seeks to stay preserve the SADRE database until December 30, 2020. As a result, a stay is unnecessary if an expedite order is granted and the appeal is heard by the end of October or early November and decided before the end of the year. Therefore, it is reasonable to expedite the Appellant’s appeal.

Southeast Collegiate Inc v Laroque, 2020 FC 820

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Application allowed. A Canada Labour Adjudicator committed an error of law by failing to apply the correct legal test to determine if he had jurisdiction to hear an employee’s wrongful dismissal complaint. He erroneously concluded the presumption of provincial regulation of labour relations had been rebutted based on a provision of the Indian Act, the identity of the students, and the program’s emphasis on cultural sensitive education.

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The Court allowed an application for judicial review from a Canada Labour Adjudicator’s decision that the Southeast Collegiate Inc. is a federal undertaking to which the Canada Labour Code [“CLC”] applies. This corporate entity was created by the Southeast Tribal Council to deliver culturally sensitive high school education to Indigenous students from across Manitoba.

The Respondent complained under the CLC that she was wrongfully dismissed. She therefore bore the onus to adduce evidence to rebut the presumption of provincial authority. The Adjudicator addressed the two issues put forward regarding jurisdiction and the dismissal of the Respondent. Ultimately the Adjudicator found that the facts set out in the termination letter were proven and that the dismissal of the Respondent was justified. He also determined that the Applicant was a federal undertaking to which the CLC applies [“Decision”]. The Applicant does not challenge any of the fact-finding in the Decision. The Applicant seeks judicial review because it maintains that, in light of the relevant jurisprudence, it is not a federal undertaking for the purpose of employment.

It has been acknowledged that strictly speaking, this issue is not a genuine constitutional one as it is not concerned with whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. However, there is a rebuttable presumption that labour relations are a matter of provincial jurisdiction (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]; Treaty 8 Tribal Association v Barley, 2016 FC 1090).

The Applicant established and operates a high school for Indigenous students with classes for grades 10, 11 and 12. The school draws students from sixteen Indigenous communities across Manitoba. It serves all of Manitoba but is targeted to those communities that do not have their own local high school. The school is located in the City of Winnipeg. Students are required to live in campus dormitories during the school year except during holiday periods.

The Southeast Tribal Council and the Federal Government of Canada are parties to an annual contribution agreement to fund the operation of the school. It provides funding for the operation of the Applicant and pays the tuition and boarding fees for each Indigenous student. While the Federal Government funding is the primary source of money received by the Applicant, non-Indigenous students are allowed to attend the school if they pay the annual tuition.

Although the school is not governed by The Public Schools Act of Manitoba, the Applicant’s teachers are required to hold a Provincial Teaching Certificate. The compulsory provincial high school courses are offered by the Applicant. The annual contribution agreement requires that the Applicant follow the Manitoba Ministry of Education Curriculum in order to receive the funding. Course curricula are accredited and provided by the province of Manitoba. As a result, graduating students receive a high school diploma that is recognized by the Manitoba Board of Education and by post-secondary institutions.

In NIL/TU,O, the Supreme Court indicated that the functional test “calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL/TU,O). The Adjudicator was required to consider the functional test established by the Supreme Court of Canada in NIL/TU,O and, in doing so, he had to correctly apply it. The Adjudicator did neither. Because the Adjudicator found that it did not arise, there is no indication in the Decision that the presumption of provincial authority over this Applicant’s labour relations with the Respondent was rebutted. Unless the presumption is rebutted, the Province of Manitoba had jurisdiction over the relationship between the Applicant and the Respondent. Instead of applying the functional test, the Adjudicator substituted his own view that the presumption did not arise. In that respect, the Decision is based on an error of law.

Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

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Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.