Paul v Correctional Services of Canada, 2020 NSSC 380

The Applicant, a Maliseet woman, has been partially successful. The Respondent prison authorities shall pay costs in the amount of $500.00 to the incarcerated Applicant. She will receive a declaration that the deprivation of her residual liberties that she experienced for a further 10 days in maximum security after it was determined she could return to medium security, was unlawful.

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The Applicant, Ms. Paul, brings this application for habeas corpus. She is serving a sentence for offences that include robbery, four counts of failure to comply with a Probation Order, and other counts. Ms. Paul is a 35-year-old first-time federal offender and is presently incarcerated at Nova Institute for Women [“Nova”]. She is Maliseet, and from St. Mary’s First Nation in New Brunswick [“SMFN”]. Her undisputed contentions are that she lives with long-standing addictions, and has reported diagnoses of bipolar disorder, attention deficit disorder, depression and anxiety. She also reports a history of sexual trauma and family fragmentation.

Nova is a women’s multilevel facility. In 2019, Ms. Paul was released and granted day parole from Nova which was subsequently suspended due to a urinalysis test performed in her community, which had returned positive for opiates. Prior to Ms. Paul’s return, Nova had received information from Ms. Paul’s community parole officer to the effect that it was believed that she would attempt to introduce drugs into the institution. Ms. Paul was subjected to testing by a drug sniffer dog, as well as an ion scanner upon arrival at Nova. This testing was positive for drugs, and as a result, the facility placed her in the Structured Intervention Unit [“SIU”], where she remained for six days. Ms. Paul no longer challenges her initial 6-day placement in the SIU. What she does challenge is the subsequent decision to detain her in the Secure Unit [“SU”], or maximum security, when the records at the institution always had her either classified or as a “recommended” medium security risk. Despite this, she remained in SU until the Warden’s Board accepted the recommendation and then was she moved into general population.

The Court concludes that Ms. Paul’s matter, although moot, merits a decision in the circumstances of this case (Borowski v Canada (AG), [1989] 1 SCR 342). Ms. Paul sustained a deprivation of liberty for the period of time during which she was in SU as opposed to a medium security setting. She was deprived of some of the liberties to which the general population inmates were entitled. Her security classification never changed from “medium”. This means that her treatment is subject to review by this Court on the basis of lawfulness and reasonableness.

Once a deprivation of liberty has been established by the Applicant, along with a legitimate ground upon which to question its legality, she bears no further burden. The onus shifts to the Respondent prison authorities to demonstrate on the balance of probabilities that it acted both lawfully and reasonably on both substantive and procedural grounds. It was reasonable on the part of the decision-makers at Nova to the placement of Ms. Paul in the SIU at first instance due to the above concerns. The Court concluded this placement was in conformity with the Corrections and Conditional Release Act, and therefore substantively reasonable.

However, there is no reference explaining why it took the institution ten days longer to convene the Wardens Board hearing. This length of time requires explanation and justification, which is part of the onus which the Respondent must discharge. This is particularly troubling given the fact that the impact of the SU placement on Ms. Paul was always known by the Respondents to have critical consequences to her well-being and must not be understated. The Respondent’s onus is not discharged merely by explaining and justifying the reason(s) as to why Ms. Paul was initially allowed less liberty than her medium security counterparts. It must also explain the length of time during which she was so deprived (Dumas v Leclerc Institute, [1986] 2 SCR 459).

In these circumstances, an explanation of why it took a further 10 days to confirm that Ms. Paul would be released into the medium security, general population, commensurate with her recommended and subsequently endorsed security rating is required and was not provided. The Applicant will have a declaration of such and the Respondents, as well, shall pay costs in the amount of $500.00, including disbursements.

Law Society of Ontario v Bogue, 2020 ONLSTA 11

An Indigenous lawyer from Ontario brought two motions seeking various relief, the majority related to issues considered and rejected in other proceedings. The lawyer was disrespectful and issued threats of legal proceedings against the panel. Though the lawyer did raise three new issues, the motions are dismissed, but without prejudice to bringing these motions again. If he does proceed with his motions, he would have to file the necessary materials, conduct himself in a civil manner, and pursue only matters that had not already been determined.

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Gina Papageorgiou Spirit Warrior [“Lawyer”] is an Ontario lawyer who identifies as non-status Métis and as a member of the Kinakwii Nation/Confederacy. The Lawyer has been before the Law Society Tribunal [“Tribunal”] in a number of motions related to his capacity and his competence. In this matter, he brought two motions seeking 10 heads of relief. His motions were dismissed without prejudice to his bringing these motions again, upon the filing of proper materials. The Lawyer did not file a motion record, factum or book of authorities as required by Rule 8.2 of the Tribunal’s Rules of Practice and Procedure [“Rules”].

At the outset of the motions hearing, it was advised that it was not possible to consider his motions without the required materials. The Lawyer refused to follow instructions so that a schedule could be established for the exchange of materials to allow his motions to be heard on their merits. This is an abuse of the Tribunal’s process. Parties before tribunals are expected to conduct themselves with courtesy and respect (Cameron v Ontario (Training, Colleges and Universities), 2011 HRTO 2240). The Lawyer’s attempt to re-litigate matters already raised, determined against him and under appeal is an abuse of process. He addressed the participants in a disrespectful manner and issued threats.

The Lawyer’s threat that the adjudicator would become a personal defendant before the International Court of Justice if there is no agreement to his demands was an abuse of process. Although the Lawyer was representing himself, the Rules of Professional Conduct still apply, which specifically prohibits lawyers from threatening legal proceedings to achieve a quid pro quo. Like previous panels in this matter, the Tribunal acknowledges the historical mistreatment of Indigenous People in Canada and the need for reconciliation. The fact of this history, however, does not mean that the Tribunal lacks jurisdiction, that its panel members are automatically biased or that there has been any attempt in these proceedings to be disrespectful or cause cultural genocide.

If there is respectful conduct and compliance with the Rules, he could complete his appeal materials and pursue his appeals on their merits. The items in his motions which are new are: 1) his request for an order to consolidate the two appeals. His last motion in this regard was dismissed because the capacity proceedings were not yet concluded, but they are now and so this request can be made again; 2) an order for relief from compliance with the Rules regarding transcripts in respect of the capacity appeal. His request for relief from compliance with the Rules regarding his competence appeal was dismissed, but has not yet been adjudicated with respect to the capacity appeal; and 3) an order that the Law Society of Ontario [“LSO”] pay for a lawyer for the Lawyer for his appeals and his motion for relief from compliance with the Rules.

This is an interesting motion raised by the Lawyer, who says that having found that he is incapacitated, the LSO cannot then expect the Lawyer to act for himself in his appeals (Law Society of Ontario v Burtt, 2018 ONLSTH 63). The Lawyer did not provide any evidence as to what attempts he has made to retain a lawyer, what circumstances prevent him from doing so or any information as to whether he has sought assistance from volunteer duty counsel. For greater clarity, until the Lawyer files the required materials, no hearing or management conferences should be scheduled.

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.

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

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.

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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.

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

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.

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.

Tallcree First Nation v Rath & Company, 2020 ABQB 592

The Court allowed an appeal from a Review Officer’s decision that a $11.5 million dollar contingency fee agreement for settlement of an agricultural benefits specific claim was reasonable. The Review Officer applied an erroneous standard of review to the agreement and ignored critical factors like how quickly and easily the settlement was reached and how minimal the work product was.

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This is an appeal from the Review Officer’s [“RO”] decision with respect to the Tallcree [“Tallcree”] First Nation’s Contingency Fee Agreement [“CFA”] entered into with Rath & Company and Jeffrey RW Rath [“Rath”] of Priddis, Alberta in 2015. The CFA before the RO was a result of an agricultural benefits settlement paid by the Government of Canada to Tallcree in the sum of $57,590,375. The 20% contingency fee amounted to $11,518,075.

Tallcree filed to request “a review of retainer agreement”. The RO determined that while the 20% contingency fee resulted in an extremely high fee never seen before, it was not one that was clearly unreasonable. Tallcree now appeals the RO’s decision. Given the sensitive nature of CFA’s with respect to vulnerable members of the community and their ability to access justice, amongst other reasons, the onus is on Rath to satisfy the Court that the CFA is fair and not unreasonable at the time it was entered into (MS v DM, 2014 ABQB 702).

The Court accepts that Tallcree was aware of the terms of the CFA, was aware as to the possible range of recovery, and was aware of the 20% fee that would accompany that general range of recovery between approximately $50 to $80 million dollars. However, Tallcree was unaware at the time of the CFA about how long such a recovery would take. How lengthy a process the settlement would take, and how quickly the settlement could be reached, were critical factors for Tallcree in determining the reasonableness of the CFA . Tallcree was in “dire economic circumstances” and needed the settlement monies “urgently on an Emergency basis”.

Tallcree argues that Rath withheld critical information from Tallcree at the time of the CFA that strongly suggested that the agricultural benefit settlement that they were seeking would be resolved favourably and quickly. While Tallcree’s previous legal counsel had filed formal claims for the unfulfilled Treaty promises related to agricultural benefits on behalf of Tallcree in 2012, the Court concludes that Rath was essentially only successful in settling those claims in short order after the CFA because of the change in Federal government. Rath would have been aware of this fortuitous change, as a fixed date election was legislated by S.C. 2000 c.9 to occur on October 19, 2015.

There were approximately 20 other First Nations who settled their agricultural benefits claims around the same time Tallcree did, represented by Rath or other legal counsel. These other similar settlements by Rath and other law firms establish that these settlements were clearly attainable at the time the CFA was entered into.

The RO’s decision that the CFA was reasonable because of the resulting fee “was not unexpectedly unfair” or “clearly unreasonable” on the facts in this case is not the same as determining the “reasonableness” of a retainer agreement. Accepting 20% as a minimal contingency fee ignored other factors critical in the determination of the reasonableness of the CFA, such as the actual time Rath spent on the file, and how quickly and how easily the settlement was reached. Most of the work product found in the record are actually simple emails created and signed by his paralegal. The RO’s decision constitute reversible errors. There is no proper legal basis or foundation for the RO to have limited or fixed his low-end minimum contingency fee amount at 20% of any amount recovered, which is why the RO’s decision resulted in an incredibly high legal fee that even he stated he had never seen before. Furthermore, the RO’s standard of “clearly unreasonable” is not the “correct” legal standard with which to review the CFA.

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.

Canadian Natural Resources Limited v Elizabeth Métis Settlement, 2020 ABQB 210

Application allowed. A Métis community’s Property Tax Bylaw is quashed as it is unlawfully enacted and unreasonable in substance.

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Elizabeth Métis Settlement [“Elizabeth”] is a small Métis community on the eastern edge of Alberta. In 2019, Elizabeth levied property taxes amounting to 187% of assessed land value on four natural resource companies whose lands comprise virtually its entire taxable base. Elizabeth explained that its unusual procedures in enacting it were justified by a looming financial emergency, and that the context of Alberta’s Métis settlements uniquely informs the question of what constitutes a reasonable rate of taxation in this situation.

In 1984, a movement began towards securing lands to support Métis communities in Alberta attaining self-governance. This consultation ultimately led to the Alberta-Métis Settlements Accord in 1989. This framework agreement and related legislation created eight Métis settlement [“Métis Settlements”] and granted fee simple title to those lands to the Métis Settlements General Council [“MSGC”]. This process also led to the incorporation of the Métis people in the Constitution of Alberta Amendment Act, which recognized that the Métis people were to gain self-governance, and protected their land base with the specific stated aim of preserving and enhancing Métis culture and identity. The Métis Settlements Act [“MSA”], was brought into force to provide a structure of delegated authority by which these communities could govern themselves individually, and collectively through the MSGC.

The top level of Métis governance established by the MSA is the MSGC. This umbrella body creates policies from which each of the Settlements derive sub-delegated authority to run their own communities. The individual Métis Settlements, in practice, operate at a quasi-municipal level. While their existence has a deeper social, cultural and historical underpinning than ordinary municipal corporations, they perform many of the same functions of a local municipal government common to municipalities across the province. Similar to municipalities, the sole source of tax revenue for the Settlements is through property taxation. Due to the structure of land holding on the Settlements, however, Elizabeth appears to have only four taxpayers, including the Applicants in this case.

Métis Settlements first gained independent taxation powers in 1997. Prior to that, any taxation was subject to direct ministerial approval. MSGC policy defines the parameters of Settlement taxation powers and the process for property assessment. Each Settlement in turn is left to pass its own property tax bylaw. In 1997, the MSGC enacted a tax policy to establish a fair, orderly, and equitable system by which those who use land in a Settlement area for business purposes can be required to contribute a fair share, based on valuation or agreement, to the cost of maintaining a viable Métis community in the Settlement area. The 1997 policy permitted Settlements to make annual business property contribution bylaws, and levy property tax based on the deemed value of land holdings, with a cap tax rate.

In 2019, the basis and structure of property taxation within the Métis Settlements changed fundamentally. The MSGC revoked the 1997 policy and replaced it with a new instrument called the Métis Settlements General Council Property Taxation Policy 2018 [“Tax Policy”]. There was no cap identified on Settlement property tax rates and no mention of “fair, orderly, and equitable” contributions being required by businesses operating on Settlement lands. The Tax Policy specified a new formula by which the tax rate was to be calculated. It is based on dividing its total budget by the value of its assessed taxable base. Each Settlement was to determine its tax rate by dividing its budget by the total value of its tax base.

The net result of the Amended Budget, by operation of the formula was to increase the total property tax bill levied against the four Applicants from $624,692.44 to $25,000,733. In short, it increased the Applicants’ property tax bills 40-fold. This additional $24.4 million from the Applicant taxpayers was allocated to repair or replace virtually all infrastructure at the Elizabeth Settlement, including $75,000 in repairs and renovations to each and every residence in the community.

There is no evidence that Elizabeth considered the economic impact or viability of this rate of taxation. This includes a complete absence of discussion on whether taxes in this amount could possibly be paid, and what the economic and legal impact on the subject landowners would be. The Applicants were never given an opportunity to provide an economic analysis of the impact of this level of taxation on their operations and their ability to continue owning their land interests in Elizabeth. The Supreme Court of Canada has repeatedly affirmed the common law right of citizens to seek judicial review of municipal bylaws taxing their property (Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2).

Métis Settlements are not completely analogous to municipal governments. They may well be afforded different and greater range in decision-making that touches upon the core animating values that underlie their existence, namely the preservation and promotion of Métis culture and society. That said, when Settlements levy property tax, they perform a function virtually indistinguishable from municipal governments, and derive their authority to do so through a similar process of sub-delegation. Moreover, the power they exercise in this capacity is no less impactful on the people against whom it is used.

Even if the Property Tax Bylaw was upheld in the face of its procedural defects, it is substantively unreasonable and must be quashed on that basis. Although unreasonable, it did not come about in a vacuum. The evidence in this case also showed that Elizabeth’s infrastructure need is very real, and that the stated aim of creating self-sufficient Métis communities has been thwarted by chronic capital underfunding.

The Court finds the impugned Property Tax Bylaw is the product of Métis frustration with the failure to achieve this objective. Ironically, the lack of adequate capital funding for Métis Settlements, or a viable model for the Settlements to raise capital funds through economic benefits derived on their territory, has driven Elizabeth to enact a measure that would severely, if not fatally, impair its ability to attract the investment it needs to develop a viable tax base in the future.