Tag Archives: Charter

Brake v Canada (AG), 2019 FCA 274

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Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

Native Law Centre CaseWatch Blog

This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

Awashish v Conseil des Atikamekw d’Opitciwan et al, 2019 FC 1131

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Motion dismissed. The Applicant failed to demonstrate he would suffer irreparable harm if a First Nation election proceeded, as he can pursue an adequate remedy for his complaint before the First Nation’s Appeal Board.

Native Law Centre Case Watch

A general election for the Conseil des Atikamekw d’Opitciwan was called for September 10, 2019. The elections are governed by an electoral code, where along with other conditions, all candidates must be ordinarily resident in Opitciwan. The Applicant was nominated for the position of Chief, but the Electoral Officer withdrew the name from the ballot because the Applicant does not reside in the community. The Applicant seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, discriminatory and contrary to the Charter. After he brought an application for judicial review of the Electoral Officer’s decision, the Applicant subsequently brought this motion for an interlocutory injunction. Despite a strong case shown on the merits, the Applicant has failed to demonstrate that he would suffer irreparable harm if his motion was not granted. There is an adequate remedy before the Opitciwan First Nation Appeal Board that would allow him to raise his Charter claims.

An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits but it is not a final resolution of the case. This takes into account that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution cannot be reached in a short time frame (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110; RJR–MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR”], and Harper v Canada (AG), 2000 SCC 57).

The first stage of a three part test requires the applicant to demonstrate a serious question to be tried, meaning neither frivolous nor vexatious. At the second stage, the Applicant must convince the court that irreparable harm would be suffered if an injunction is refused. The third stage of the test requires an assessment of the balance of convenience to identify the party that would suffer the greater harm from the interlocutory injunction, pending a decision on the merits. (R v Canadian Broadcasting Corp, 2018 SCC 5 [“CBC”]) It should not be believed in this highly contextualized and fact dependent framework, that the three components of this framework are completely independent of each other (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of SK Inc, 2011 SKCA 120).

This Court often hears motions for interlocutory injunctions in First Nations governance matters. The court’s discretion should be guided by the principle of self-government, and assess whether the various courses of action would facilitate decision-making by the First Nation itself (Gadwa v Joly, 2018 FC 568). Unlike a prohibitive injunction that has a relatively low threshold (RJR), a mandatory injunction directs the defendant to undertake a positive course of action. In these instances, a “strong prima facie case” is required. Upon a preliminary review of the application, the court must be satisfied that there is a strong likelihood that the applicant at trial will be successful in proving the allegations set out in the originating notice (CBC).

In this matter, the Applicant is not seeking to prevent the election from being held, but an order to include his name in the list of candidates. In certain cases, the result of the interlocutory motion will in effect amount to a final determination of the action, thereby, a more extensive review of the merits of the case must be undertaken (RJR). When the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established. If the injunction is granted, the election would be conducted with ballots that include the Applicant’s name, therefore he will have obtained what he wants, making it difficult to see how a hearing on the merits would be useful (Toronto (City) v Ontario (AG), 2018 ONCA 761).

The Applicant has demonstrated the existence of a serious question to be tried, but not a strong prima facie case. The trial judge dealing with this matter will assess the evidence presented to the court and come to the appropriate conclusions. Harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. The doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to them prior to applying for judicial review. This doctrine improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732).

The Election Code provides for the establishment of an appeal committee. Upon receipt of a complaint, the appeal committee conducts an investigation and, if founded, they may take all necessary measures, including ordering a new election. The Applicant could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. The Election Code also provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee which the Applicant could have done. The Court therefore concludes that the Applicant has a recourse that will allow him to put forward his Charter arguments and that he did not demonstrate irreparable harm. There was no need to fully address the balance of convenience.

 

R v Anugaa, 2018 NUCJ 2

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The unique cultural context and circumstances of Nunavut amount to a third category of exceptional circumstances with respect to the application of R v Jordan and its presumptive ceilings for trial delay.

This case involved two allegations of indictable historic sexual assault alleged to have happened in Sanikiluaq between May 2, 1977 and May 2, 1978. The accused, Lukasie Anugaa, was charged on July 8, 2013. Mr. Anugaa elected to be tried by a judge and jury. However, it turned into a case about pre-trial delay, in which five different jury trial dates were scheduled. Mr. Anugaa’s fifth and latest trial was scheduled to start on January 15, 2018. Over 54 months passed between the day Mr. Anugaa was charged and the anticipated end of his trial. Mr. Anugaa made a pre-trial application to the Court based on section 11(b) of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada decision’s in R v Jordan, arguing that his right to a trial within a reasonable time had been violated. Mr. Anugaa sought a stay of proceedings on this basis, which would have brought the case to an end. The Crown opposed the stay.

The Nunavut Court of Justice decided that the delay in the circumstances of this case had been reasonable. In 2016, the Supreme Court revisited its previous interpretation of section 11(b) of the Charter in Jordan. The Supreme Court set out presumptive ceilings in terms of the amount of time that would generally amount to an unreasonable delay between the issuance of charges and a criminal trial. The Supreme Court also discussed exceptional circumstances to the strict application of these presumptive ceilings. Two examples of exceptional circumstances listed in Jordan are “discrete events” and cases that are “particularly complex”. The delay caused by “discrete events” can be deducted from the remaining net delay. Where the case is particularly complex, no deductions are needed and the Court will instead consider if the complexity justifies the time spent on the case.

Central to the Nunavut Court of Justice’s analysis was the statement in Jordan that the list of exceptional circumstances is not closed. There are exceptional circumstances that surround access to justice in Nunavut as it sprawls over Canada’s vast northern landmass. Just to name a few, 38,000 people live in 25 remote communities scattered over Nunavut’s 2,093,190 square kilometres. There is only one courthouse, the Nunavut Court of Justice, located in Iqaluit. Outside Iqaluit, the Court travels regularly to each one of the other 24 far flung communities and the distances between them are immense. The circuit sits in school gyms, community halls and even council chambers. Many of the community halls lack functioning washrooms and heating systems fail leaving court participants to conduct court in their winter parkas and mittens. The harsh arctic climate is unforgiving, therefore flights are delayed or cancelled as blizzards are a regular occurrence. The cancellation of a court circuit has an impact out of proportion to a similar cancellation in the south as it means the possibility of no court in the community for an entire year, unless a jury trial has been scheduled. Jordan does not account for the impact of Nunavut’s tremendous infrastructure deficit, as the taxpayer money available to the Government of Nunavut is woefully inadequate. This level of service will continue despite the new Jordan rules.

In the Court’s view, Jordan is also problematic as it does not consider the unique cultural context in Nunavut. There is central importance of Inuit Qaujimajatuqangit. Nunavut’s communities are small and very closely knit. The Court stands down for burials and funerals and sentencing hearings are delayed in order to permit offenders to participate in seasonal hunts. The Court avoids scheduling jury trials during the extremely short arctic summers because it is a time when many Nunavummiut return to the land. This seasonal reality cannot be overstated and will continue in the future. Jordan only enumerates two subcategories which permit delay: exceptional discrete circumstances and exceptional case complexity.

In Mr. Anugaa’s case, the Court felt that the above was not enough to be described as “discrete events” as contemplated by Jordan. Rather, the way these events were dealt with reflected the very ethos of the approach of the delivery of justice in Nunavut. To apply Jordan justly in Nunavut, the Court held that there must be a third subcategory of exceptional circumstances which reflects the territory’s unique cultural context. The Court took the position that Jordan did not account for the need to respect and incorporate Inuit culture and experiences into the delivery of justice to Nunavummiut. The delivery of justice in Nunavut poses unique and unavoidable challenges in circumstances found nowhere else in Canada. Therefore, Mr. Anugaa’s application for a stay was rejected and the case was ordered to proceed to trial.

The parties were also at odds over where another trial should be held if the stay was not granted. The Crown brought an application to move the jury trial to a different community. It was argued that every eligible adult in Sanikiluaq had already likely been summonsed at least once to serve on the jury and fair trial interests required a change in venue, due to Mr. Anugaa being notorious in the community. The Court accepted that it was necessary to hold the trial in a different community in the unique circumstances of the case, as Mr. Anugaa is entitled to a jury of his peers but not entitled to a jury of his neighbours.

WSÁNEĆ School Board v BC Government and Service Employees’ Union, 2017 FCA 210

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The Doré framework is applicable when an administrative tribunal’s decision making engages the underlying principles and values of section 35 of the Constitution Act, 1982, and such decisions are to be reviewed on the same standard of reasonableness.

This case involved an application for judicial review by the WSÁNEĆ School Board (the WSB) seeking to set aside a decision of the Canada Industrial Relations Board (CIRB). Specifically, the WSB challenged a decision of the CIRB to dismiss an application from the WSB in which it sought to exclude employees teaching WSÁNEĆ language, beliefs, and culture in the SENĆOŦEN Immersion Program from the all-employee bargaining unit of the BC Government and Service Employees’ Union (BCGSEU).

The WSB argued that including the SENĆOŦEN employees in an all-employee bargaining unit would negatively impact the constitutional rights of the WSÁNEĆ First Nations to control the transmission of their language and culture, as entrenched in ss 25 and 35 of the Constitution Act, 1982. The WSB submitted that the Canada Labour Code must be interpreted and applied in a manner that respects these constitutional rights and takes into account the values and principles that underpin them, including the need for reconciliation. The WSB also asserted that the CIRB had breached its procedural fairness rights by failing to grant it an oral hearing. The WSB had unsuccessfully sought an oral hearing before the CIRB on the basis that this would allow for an explanation of the WSÁNEĆ beliefs and teachings in accordance with their oral traditions.

The Federal Court of Appeal held that the CIRB’s decision to dismiss the application was reasonable and that the CIRB was not obligated to provide an oral hearing.

Writing for the court, Gleason JA accepted that correctness is the appropriate standard for determining whether an oral hearing is required as part of procedural fairness though he also stated that the circumstances in which a party’s procedural fairness rights may be said to be violated are narrow. With respect to the merits of the CIRB decision, Gleason JA noted that reasonableness was generally the applicable standard to CIRB decisions that interpret and apply the Canada Labour Code and held that WSB’s invocation of ss 25 and 35 of the Constitution Act, 1982 did not require him to reach a different conclusion here.

The WSB did not seek to have the CIRB rule on the scope of its Aboriginal rights to control education nor did it argue that such rights brought the labour relations of the SENĆOŦEN employees outside the purview of the Code. Instead, WSB invoked principles and values enshrined in ss 25 and 35 of the Constitution Act 1982, and argued that these required the CIRB to determine that the SENĆOŦEN employees should be excluded from BCSGEU. Gleason JA found this argument to be analogous to the those advanced in Doré v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR with respect to the need for an administrative tribunal to balance Charter values against other administrative law considerations. He accepted that the Doré framework could be applied to principles and values underlying s 35 of the Constitution Act, 1982.

Gleason JA invoked the principle that employee units should not be fractured without compelling evidence. As indicated by the CIRB, compelling evidence might include geographic factors, specific statutory provisions and the likelihood that a larger unit may not be viable. Ultimately, Gleason JA found that there was no evidence the WSB would lose their control over the way the SENĆOŦEN employers performed their duties. He also pointed out that the application may have been premature as there was no way to know whether the BCGSEU would accept terms and conditions that the WSB sought for the SENĆOŦEN employees and the WSB raised concerns about an eventual strike that were premature and theoretical in the absence of any evidence that a strike was likely.

With respect to procedural fairness, Gleason JA noted that the request for an oral history was neither clearly made nor well supported by the evidence. Moreover, he pointed out that it was well within the Court’s powers under the Canada Industrial Relations Board Regulations to decide the matter without an oral hearing, which the WSB knew prior to making their application.

Case Watch for November 2016

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FROM OUR PUBLICATIONS DESK

Case Watch

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

Equality rights of Métis children & families in child protection –

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

Inadequate investigation of vote-buying allegations by INAC –

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

Relevance of Aboriginal equity stake to remedy in consultation case –

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

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

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

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

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

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

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

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

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

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

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

Settlement approved in Newfoundland & Labrador school claims –

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

Tax Court’s exclusive jurisdiction over tax assessment challenges –

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

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

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

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

Case Watch for October 2016

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Case Watch

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

Jurisdiction of superior courts over transboundary Aboriginal rights –

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

Freedom of expression in context to injunction application for blockade –

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

Annuity claims and the unique context of each Numbered Treaty –

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

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

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

Injunction granted against logging blockade –

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

Appraisal of lease rates for on reserve recreational properties –

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

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

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

Limitations period for negligence claim based on sexual assault:

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

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

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

Duty to reference Gladue factors in reasons for sentence –

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

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

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

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Case Watch for July 2016

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Case Watch

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

Crown’s duty to consult –

Gitxaala Nation v Canada, 2016 FCA 187: The Federal Court of Appeal quashed the Order in Council and Certificates of Public Convenience and Necessity for the Northern Gateway pipeline project that was proposed to be constructed between Bruderheim, Alberta and Kitimat, British Columbia. The Court found that the federal Crown’s consultation on the project fell “well short of the minimum standards prescribed by the Supreme Court in its jurisprudence”. Among other issues, the Crown failed to engage in a respectful and meaningful dialogue on the First Nations applicants’ asserted Aboriginal title and governance rights, instead choosing to restrict itself to the discussion of mitigation of environmental impacts as a form of accommodation. The Crown also failed to provide any reasons for its conclusion that its duty to consult and accommodate had been met prior to issuing the Order in Council.

Pimicikamak Cree Nation v Manitoba, 2016 MBQB 128: The Court of Queen’s Bench of Manitoba dismissed Pimicikamak Cree Nation’s application for judicial review of the provincial Crown’s decision to enter into a settlement agreement with Manitoba Hydro and the Incorporated Community Council of Cross Lake. One issue in the litigation was the concern raised by Pimicikamak, representing the traditional government of the Cross Lake Cree, that the Cross Lake community (a municipality made up primarily of Aboriginal people) was not a collective entity capable of representing Aboriginal people or settling their claims, and was fragmenting the Aboriginal people in the area. The Court rejected Pimicikamak’s arguments that Crown consultation on the settlement agreement started too late, was not meaningful or sufficient, and foreclosed accommodation. The Court also upheld the Crown’s decision not to entertain changes to the agreement that Pimicikamak proposed, finding that Pimicikamak was attempting to negotiate in a way that would cause the Crown to abandon the settlement agreement it had negotiated in principle with other parties.

Sipekne’katik v Nova Scotia (Environment), 2016 NSSC 178: In the underlying matter, Sipekne’katik has appealed the Crown’s approval of a natural gas storage facility at Fort Ellis, Nova Scotia, alleging that the provincial Crown breached its duty to consult and failed to provide the First Nation with procedural fairness with respect to the project’s approval. In this case, Sipekne’katik applied for a stay of the approval pending its appeal. The Supreme Court of Nova Scotia rejected Sipekne’katik’s application on the basis that Sipekne’katik failed to provide sufficient evidence of irreparable harm. Among other things, the Court held that the project had mitigation measures in place designed to reduce or avoid any adverse impacts, and there was insufficient evidence of irreparable harm to the Crown’s ability to engage in meaningful consultation if the stay was not granted.

Limitation on human rights jurisdiction –

Canadian Human Rights Commission v Canada, 2016 FCA 200: The Federal Court of Appeal upheld the Canadian Human Rights Tribunal’s dismissal of two complaints regarding section 6 of the Indian Act, which prevents the complainants from registering their children under the Act. The complaints were dismissed on the basis that the Federal Court of Appeal had already previously concluded that federal human rights legislation does not authorize complaints directed at legislation per se, and the complaints were characterized as just that. While the Court took note of the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference”, it concluded that the tribunal’s decisions ought to be reviewed on a standard of reasonableness. It then determined that the dismissals were reasonable.

Federal Court jurisdiction –

Dickson v Canada, 2016 FC 836: The Federal Court allowed an appeal from an order striking certain defendants from the statement of claim in an action for damages over the Minister of National Revenue’s refusal to renew a federal tobacco manufacturing licence. The claim was originally struck as against all defendants except the federal Crown on the basis that the liability of the other defendants was grounded in provincial law. On appeal, however, the Court held that the plaintiffs’ claim against several of these defendants was “in pith and substance” based on federal law and governed by a detailed federal statutory framework essential to the outcome of the case – namely, the Indian Act.

Proper factual basis for Charter litigation –

Re Constitutionality of Abegweit First Nation Custom Election Rules, 2016 FC 750: The Federal Court addressed an application for a reference under s 18.3 of the Federal Courts Act regarding the constitutionality of Abegweit First Nation’s custom election rules in terms of its treatment of off reserve members. More specifically, Chief and Council were seeking a declaration that restrictions against off reserve members voting or running in the First Nation’s custom elections were contrary to the right to equality under s 15 of the Charter. In 2009, council attempted to amend the custom rules restricting off reserve members from participating in elections to bring them in line with new jurisprudence on this issue, but the amendments were rejected in a plebiscite vote. The Court held that it did not have jurisdiction to hear and determine this matter because it did not originate from any ongoing proceeding and there was no proper factual basis to determine the Charter issue.

Kikino Metis Settlement v Husky Oil Operations Ltd, 2016 ABCA 228: The Alberta Court of Appeal determined an application for permission to appeal an order of the Metis Settlements Appeal Tribunal Land Access Panel in relation to annual compensation rates for surface lease sites. The Court granted leave to appeal from the Panel on three grounds in relation to statutory interpretation of the Metis Settlements Act. However, the Court denied Kikino the opportunity to appeal from the Panel on the ground that s 125 of the Act infringes s 15 of the Charter. Kikino sought to compare the timeline for compensation reviews under the Metis Settlements Act with the comparable provisions of the Surface Rights Act for the purposes of its Charter argument. The Court found that there was no proper factual foundation to address the Charter argument on appeal.

Gladue factors –

R v Fehr, 2016 SKPC 87: The Saskatchewan Provincial Court addressed Gladue factors in context to the sentencing of an Aboriginal offender for robbery. Among other factors, the Court noted that Ms. Fehr had been apprehended at the age of 3, and lived in 13 different foster homes between the ages of 3 and 5 before being adopted at age 5 by a Caucasian family, along with her two sisters. In taking note of Ms. Fehr’s Gladue factors, the Court noted that she was “raised by a loving family not of her own culture” and “separated from her [A]boriginal community”. In the Court’s view, “Native children raised by non-[N]ative families face unique challenges of identity, community, and social development”.

R v Robinson, 2016 BCSC 1269: The British Columbia Supreme Court addressed Gladue factors in context to the sentencing of an Aboriginal offender for breaking and entering and mischief. The Court found that Mr. Robinson was adopted when he was seven months old, raised in a “non-[A]boriginal” setting, and had only limited interaction with his biological mother and First Nations community of origin. The Court held that the Supreme Court of Canada’s concerns in the cases of R v Gladue and R v Ipeelee were relevant but “attenuated in Mr. Robinson’s circumstances”.

R v Joe, 2016 YKTC 31: The Yukon Territorial Court addressed Gladue factors in context to an Aboriginal offender’s refusal to comply with a breathalyzer demand, among other charges. The Court noted that it “had the benefit of a thorough, detailed and reliable [Gladue] Report” and the “background of this particular offender [was] rife with Gladue factors”. Among other things, Mr. Joe had endured sexual and physical abuse during ten years that he spent in “one of the more repressive and brutal residential schools in Canada”. Nevertheless, the Court held that Mr. Joe “should have almost no particular consideration afforded to him as an [A]boriginal offender” and that the relevance of Gladue in this case was “infinitesimal in and of itself”. The Court also stated it had no evidence before it that Aboriginal offenders are over-represented in jail on account of drinking and driving offences.

Limitation on admissibility of Gladue report –

R v Alec, 2016 BCCA 282: The British Columbia Court of Appeal heard an appeal from an Aboriginal offender’s conviction for second degree murder in which the appellant sought to set aside his guilty plea on the grounds that it was invalid and his conviction was a miscarriage of justice. In arguing his appeal, Mr. Alec sought to adduce fresh evidence in the form of a Gladue report addressing the concept of ‘Aboriginal fatalism’ to explain his failure to make a timely application to set aside his plea. Mr. Alec’s appeal was dismissed and the Court of Appeal raised several concerns with the way in which the Gladue report was relied upon in this appeal: it was not in an admissible form and the portion relied upon was entirely hearsay; the portion relied upon constituted opinion evidence that could only be admitted through a qualified expert, which the author was not; and the report was not found to be relevant to the validity of the guilty plea at issue.

Use of actuarial risk assessment tools for Aboriginal offenders –

R v Haley, 2016 BCSC 1144: The British Columbia Supreme Court addressed a Crown application to have an Aboriginal offender designated a dangerous offender and sentenced to an indeterminate period of incarceration in a federal penitentiary. Among other arguments, Mr. Haley raised the Federal Court’s 2015 decision in Ewert v Canada, where it was found that the same actuarial risk assessment tools applied to Mr. Haley “are susceptible to cultural bias and therefore are unreliable” in context to Aboriginal offenders. The Court upheld use of these same tests for the following reasons: the Crown’s expert evidence was not based exclusively on the use of these tools, but rather on a more broad-based and comprehensive reflection on all available information; the Crown’s expert testified that her opinion would not change even if she factored out any reliance on the contested tools; the evidentiary record was different from that in Ewert in terms of the reliability of the tools; and the context was different in this case, as sentencing courts addressing dangerous offender applications  “should be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety”.

R v Awasis, 2016 BCPC 219: The British Columbia Provincial Court addressed the application of actuarial risk assessment tools to Aboriginal offenders in context to a dangerous offender application raised during a sentencing hearing for two counts of sexual assault. The Court distinguished the Federal Court’s findings in Ewert on the basis that in this case the actuarial tools were only used “as a very small part of a wide ranging consideration of Mr. Awasis’ psychological make-up, his antecedents, and his future prospects”, as part of “a contextual and individual review of Mr. Awasis’ risk level”. The Court held that the findings in Ewert were “part of a decision of another trial court respecting quite different issues than those that arise in the case at bar”.

Spousal support security over reserve land –

McMurter v McMurter, 2016 ONSC 1225: The Ontario Superior Court of Justice addressed whether a spousal support order could be secured against a support payor whose significant assets are located on land subject to the provisions of the Indian Act. Both the support payor, Mr. McMurter, and payee, Mrs. McMurter, are members of the Mohawks of the Bay of Quinte and live on reserve. While s 29 of the Act  prohibits the seizure of reserve land by a “non-Indian”, s 89 provides an exception for seizures in favour of another “Indian” or “band”. The Court granted Mrs. McMurter an order to charge and lien the Certificates of Possession held by Mr. McMurter as security for a spousal support order, subject to approval by the Mohawks of the Bay of Quinte and the Minister of Indigenous Affairs, which is required by the Act.

Indian Residential Schools Settlement Agreement –

Fontaine v Canada, 2016 ONSC 4326: The Ontario Superior Court of Justice addressed a request for directions arising from the rejection of the claimant’s application for compensation for his undisputed sexual abuse at the Spanish Boys’ Residential School. The adjudicator had dismissed the application on the basis that the sexual assaults occurred after the school had closed, and this decision was subsequently upheld on review and re-review. In preparation for its response to the request for directions, Canada found documents undermining the adjudicator’s conclusion and those documents were brought to the Court’s attention. The Court held that the adjudicator made a palpable and overriding error of fact that the review adjudicator and re-review adjudicator failed to correct. The Court substituted its own decision on the merits of the claim rather than remitting the matter to be redetermined, finding in favour of the claimant.

Fontaine v Canada, 2016 ONSC 4328: The Ontario Superior Court of Justice revisited “the bedevilling problems of documentary disclosure for the [Independent Assessment Process] claims for the St. Anne’s Indian Residential School and for Bishop Horden Indian Residential School”. The Court found that the request for directions in this case was aimed at having the court order a new hearing for one of the claimants based on a revised record, and re-open many if not all claims for St. Anne’s and other residential schools. The Court also suggested that counsel for the claimant was attempting to use the request “as a public commission of inquiry about the integrity of the IAP process”. The Court granted the claimant confidentiality orders as preliminary relief but adjourned other preliminary matters raised by the claimant as the review process had not yet been exhausted for his claim.

Fontaine v Canada, 2016 BCSC 1306: The British Columbia Supreme Court addressed a request for directions from the Merchant Law Group (MLG), which sought to retain a portion of a client’s award under the Independent Assessment Process to apply to outstanding accounts for other unrelated matters. An agreement between MLG and the client for application of a portion of the award to other accounts was held to violate the settlement agreement, as were the client’s direction that MLG do so. The request was dismissed and MLG was ordered to pay its client the withheld amount forthwith.

Child and Family Services –

Children’s Aid Society of Ottawa v LF, 2016 ONSC 4044: The Ontario Superior Court of Justice allowed a motion to set aside the dismissal of an appeal in this matter for delay. The underlying appeal involves a constitutional challenge to statutory definitions in the Child and Family Services Act that limit special considerations for Aboriginal children to a subset of those children that would qualify as Aboriginal under s 35 of the Constitution Act, 1982. The appellants were given until July 15 to perfect their appeal.

Saskatchewan v Saskatoon Tribal Council Health & Family Services Inc, 2016 SKQB 236: The Saskatchewan Court of Queen’s Bench addressed an application seeking various interim orders to allow the Saskatchewan government to reassert control over child and family services on reserve for First Nations represented by the Saskatoon Tribal Council. In the underlying action, Saskatchewan seeks a declaration that it lawfully terminated an agreement delegating ministerial authority under the Child and Family Services Act to the Saskatoon Tribal Council agency. The Court granted Saskatchewan the interim relief it sought, including injunctive relief preventing the agency from interfering with Saskatchewan’s provision of child and family services on reserve or providing those services itself.