Tag Archives: Jurisdiction

SL (Re), 2020 ABPC 194

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

Indigenous Law Centre CaseWatch Blog

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

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

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

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

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

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

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

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

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

Temagami First Nation v Presseault, 2020 FC 933

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Reply

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. 

Indigenous Law Centre CaseWatch Blog

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.

Sioux Valley Dakota Nation v Tacan, 2020 FC 874

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Reply

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

Indigenous Law Centre
Indigenous CaseWatch Blog

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

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

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

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

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

Buck v Canada (AG), 2020 FC 769

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Reply

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

Indigenous Law Centre – CaseWatch Blog

 

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

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

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

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

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

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

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

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

Southeast Collegiate Inc v Laroque, 2020 FC 820

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Reply

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

Indigenous Law Centre CaseWatch Blog

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

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

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

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

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

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

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

DG v Attorney General (Canada), 2020 BCCA 197

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Reply

Appeal dismissed. This decision deals with the outer boundaries of the Indian Residential Schools Settlement Agreement, which does not extend to a consensual relationship between a staff member and a non-student daughter of another employee. 

Indigenous Law Centre – CaseWatch Blog

This appeal asks whether a supervising judge under the Indian Residential Schools Settlement Agreement [“IRSSA”] erred in declining to intervene in a decision denying the appellant compensation for alleged sexual assault. The Court is of the view that the judge correctly held that she did not have jurisdiction to grant the relief sought. The appellant did not establish that the impugned decision failed to apply the terms of the IRSSA, which is the basis on which she sought judicial recourse.

The IRSSA is a contract negotiated between various stakeholders that established a process for the resolution of claims arising from the long and tragic history of abuse suffered by thousands of Indigenous children who attended Residential Schools across Canada (Fontaine v Canada (Attorney General), 2019 BCCA 246).

The IRSSA [“IAP Model”] recognizes three forms of “compensable abuse”: 1) sexual and physical assaults arising from or connected to the operation of an Indian Residential School that were committed by adult employees of the government or church entity operating the school, or other adults lawfully on the premises; 2) sexual and physical assaults committed by one student against another; and 3) any other wrongful act(s) committed by adult employees or other adults lawfully on school premises and proven to have caused serious psychological consequences for the claimant.

Collectively, these categories of abuse constitute continuing claims under the IAP Model. According to the terms of the Model, it is the responsibility of an IAP adjudicator to assess the credibility of each allegation made by the person who seeks IRSSA compensation and, where the allegation has been proven on a balance of probabilities, to then determine whether what has been proven constitutes a continuing claim.

The appellant brought a claim for compensation under the IAP, alleging sexual assaults by an adult employee of an IRS. At the material time, the appellant lived on the premises of an IRS with her family. Her father worked at the school. The appellant was not registered as a student as she attended school elsewhere. However, she interacted with IRS residents and attended some of the school’s sporting activities as a spectator.

The appellant had an intimate relationship with a man who worked at the IRS as a coach and cottage supervisor [“Employee”]. The appellant was 16–17 years old at the time. The Employee was nine years older. He was married and had two children. The appellant and Employee had sexual intercourse on numerous occasions. The sexual contact occurred on IRS property. The appellant became pregnant. When her family learned of that fact, she left the family’s home at the IRS and lived with a sibling. About a year after giving birth, the appellant resumed her relationship with the Employee. They eventually moved in together, married and had additional children. They have since divorced.

The appellant brought a claim under the IAP based on the start of her relationship with the Employee and the sexual contact that occurred while she was living on school premises. She argued that the relationship was exploitive, based on the Employee’s age, his position of power and the manipulative way in which he pursued sexual contact with her. An IAP adjudicator decided in the appellant’s favour, awarding her $149,667 in compensation for sexual abuse. The adjudicator found that the appellant was not a student or resident of the IRS at the time of the impugned relationship.

The Attorney General for Canada sought a review of the adjudicator’s decision. The reviewer did not agree that the appellant proved she was sexually assaulted and, as such, held that the adjudicator misapplied the IAP Model by awarding compensation for consensual sexual activity. A second reviewer concluded that the initial adjudicator’s determination of compensable abuse was erroneously grounded in findings about the Employee’s “character and motivation” in seeking out contact with the appellant, rather than whether consent to sexual intercourse had been vitiated in the circumstances. The supervising judge declined to grant the relief sought in the Request For Direction made by the appellant.

There is only one issue on appeal, namely, whether the supervising judge correctly held there was no jurisdiction for her to interfere with the decision of the second IAP reviewer. Where an appeal raises a question about a supervising judge’s interpretation of the IRSSA, the standard of review is that of palpable and overriding error (Canada (Attorney General) v Fontaine, 2017 SCC 47). The Court is not persuaded that the judge committed palpable and overriding error. To sustain a conviction for sexual assault in the criminal law context, there must be proof of non-consent, actual or vitiated (R v Barton, 2019 SCC 33; R v JA, 2011 SCC 28; s 265(1)–(3), 273.1, Criminal Code). Appreciating the “very limited” scope of judicial recourse in IAP cases, there is no principled basis on which to interfere with the supervising judge’s conclusion.

Kennedy v Carry the Kettle First Nation, 2020 SKCA 32

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Appeal allowed of a judicial review that quashed a customary decision to remove opposing members on a First Nation’s election code tribunal. The Federal Court of Canada had exclusive original jurisdiction pursuant to s 18 of the Federal Courts Act to hear and determine that application. 

Indigenous Law Centre – CaseWatch BlogThe Appellants are members of the Cega-Kin Nakoda Oyate Tribunal [“Tribunal”], an election tribunal established by the Cega-Kin Nakoda Oyate Custom Election Act [“Code”]. They, like the Respondents, [“opposing members”], were appointed as Tribunal members by the Chief and Council of the respondent, Carry the Kettle First Nation [“CKFN”]. The Code provides that the Tribunal shall have five members.

In 2019, the Appellants purported to make orders of the Tribunal [“Orders”] at certain meetings. The only attendees at those meetings were the Appellants, as the opposing members refused to attend, and never approved the Orders. Subsequently a resolution was passed at a joint meeting of the Appellants and a group of Elders [“Elders’ resolution”]. The Elders’ resolution established rules for the removal of Tribunal members and removed the opposing members from the Tribunal. The CKFN applied to the Court of Queen’s Bench for judicial review, challenging the validity of the Orders and the Elders’ resolution [“Application”]. The Chambers judge who heard that judicial review quashed the Orders and the Elder’s resolution. In this matter the Appellants appeal that decision to this Court. It has been determined that this appeal must be allowed, as the Federal Court of Canada had exclusive jurisdiction to hear the judicial review application.

After s 74 of the Indian Act order was rescinded in 2018 for the CKFN, their Code came into effect. The definition of “council of the band” in s 2(1) of the Indian Act provides that when a band is not subject to a s 74 order, and is not named or formerly named in the schedule to the First Nations Elections Act, “council of the band” means “the council chosen according to the custom of the band, or, if there is no council, the chief of the band chosen according to the custom of the band”.

None of the parties takes issue with the proposition that the Code constitutes “custom of the band” within the meaning of s 2, although they differ as to what constitutes custom. It is clear that a recently adopted election code may be custom for this purpose, despite that the authority to enact such a custom election code is not granted by the Indian Act or other federal legislation (Pastion v Dene Tha’ First Nation, [2019] 1 CNLR 343 [“Pastion”]). The custom of the band is not limited, and indeed may bear little resemblance, to historic customs, practices or traditions that existed prior to the Crown’s assertion of sovereignty. What the Indian Act describes as ‘custom’ is often the written product of public deliberation within a First Nation and it may rely on the mechanisms of Western democracy, or provide for a mechanism that blends Western democracy and Indigenous tradition (Pastion). The Code is such a document regardless of whether, as Pastion suggests, it might be more apt to describe it as “Indigenous legislation” or “Indigenous law”. The Code is effective for purposes of the Indian Act regardless of whether that is so.

The Code does not contain provisions which deal expressly with the issues of removal or replacement of Tribunal members. The Appellants resolved to hold a joint meeting with the Nation Elders to deal with those issues. That meeting [“Elders’ Meeting”], attended by the Appellants, and 26 Elders, unanimously supported the Elders’ resolution, which established criteria and a process for removing and replacing Tribunal members. This Elders’ resolution also provided that the three opposing members were “removed as Tribunal members effective immediately”.

In this matter, the Appellants submitted that both the Tribunal and the Elders’ Meeting were federal boards, commissions or tribunals [“Federal entity”] within the meaning of s 18 of the Federal Courts Act [“FCA”]. The Chambers judge did not deal with the question of whether the Tribunal and the Elders’ Meeting were Federal entities. On an appeal from a judicial review, the task of an appeal court is normally to determine whether the Chambers judge selected the correct standard of review and correctly applied that standard (Kawula v Institute of Chartered Accountants of Saskatchewan, 2017 SKCA 70; Dr Q v College of Physicians & Surgeons of British Columbia, 2003 SCC 19). It is concluded that this appeal should be disposed of on the basis of the jurisdictional question, which raises two issues: 1) did the learned Chambers judge err by deciding that the Court of Queen’s Bench had jurisdiction to hear the Application pursuant to s 22 of the Code; and 2) did the Chambers judge err by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA?

In this case, the conditions necessary to engage the right to apply pursuant to s 22 have not been met because the Application was filed by the CKFN. That, in itself, is enough to determine the issue. The Tribunal has not yet made a final decision as to the results of the election, therefore the CKFN could not bring the Application in the Court of Queen’s Bench pursuant to s 22 of the Code, and the Chambers judge did not have jurisdiction to hear the Application pursuant to that section.

The same reasoning applies to the Elders’ Meeting. The question is not whether those recognized as Elders by the Nation are a Federal entity whenever they play a role in the CKFN’s affairs. The question is whether the Elders’ Meeting had the authority to pass the Elders’ resolution. If the Elders’ Meeting had the authority it exercised or purported to exercise, it was because that authority was the custom of the band, and like the authority of the Tribunal, was made effective in this context. The Tribunal and the Elders’ Meeting were both Federal entities within the meaning of s 18 of the FCA. The Chambers judge erred by failing to decide that the Federal Court had exclusive original jurisdiction to hear the Application pursuant to s 18 of the FCA.

Neshkiwe v Hare, 2020 ONCJ 42

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Reply

Motion granted for the M’Chigeeng First Nation to be added as a party to the proceedings in keeping with the best interests of the child. This matter will eventually involve constitutional questions surrounding the children’s custody.

Native Law Centre
CaseWatch Blog

Following the parent’s separation, an Indigenous mother left Toronto with her two children. Shortly after the father, who is also Indigenous but from a different community than the mother, launched an ex parte motion for temporary custody, that was granted. The ex parte motion ordered the children’s return to Toronto and for police assistance from various police forces to enforce this Court’s order. The mother and M’Chigeeng First Nation [“MFN”] advised the Court they intended to challenge the Court’s jurisdiction to make any orders for custody or access, asserting exclusive jurisdiction of the children.

In the meantime, the Court’s ex parte Order had not been followed. The father initially only served the Order for enforcement on UCCM Anishnaabe Police Service [“UCCM”] and did not serve it on OPP until the term for police enforcement was about to expire. The mother nor the MFN had prepared Notices of Constitutional Questions, while still raising a challenge and taking steps outside the Court consistent with that position. On December 5, the Court directed all Constitutional Question were to be served and filed before December 19 and granted leave to MFN to bring a motion to be added as a party to this proceeding. The enforcement term was stayed on a without prejudice basis.

MFN is asserting exclusive jurisdiction of the children. Both the mother and the MFN have advised the Court that they intend to challenge the Court’s jurisdiction to make any orders for custody or access. They anticipated advancing this claim based on an existing Aboriginal and Treaty right under s 35 of the Constitution Act, 1982. However, neither has been pleaded, nor any Notices of Constitutional Question been served or filed. The mother also took the position that the Court lacked jurisdiction based on the application of an existing By-Law and a Band Council Resolution, both of which had been passed by the MFN, as an alternative legal basis from the anticipated section claims.

Until such arguments could be sorted out, a practical problem unfolded that still exists. The mother indicated to the Court that she would not comply with the Court’s Order. The MFN prohibited the father from coming onto its territory. UCCM refused to enforce the Order, as it had been instructed by the MFN to act in that fashion. The OPP, however, would enforce the Order, but brought the Court’s attention to certain potential negative consequences for the Court to consider. It was suggested to suspend the operation of the police enforcement term until the legal questions are resolved.

The Court has issued another Endorsement containing further directions for the conduct of this case and has asked that a litigation plan be presented. Regarding the police enforcement term, the Court stayed enforcement, which was about to expire anyway, on a without prejudice basis.

The overarching consideration in deciding to add the MFN as a party to the proceedings was in keeping with the best interests of the children. It was not seriously disputed that the First Nation should be added as a party. The s 35 claims have both individual and collective aspects to them. Adding the First Nation to the proceedings was also in the best interests of the children as they have a position to take and to offer evidence surrounding these particular children. Lastly, they have a legal interest. Once that position has been clarified after a full hearing, then they may call into question the Court’s jurisdiction.

Dumais et al v Kehewin Band Council et al, 2020 FC 25

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Reply

Motion dismissed. The reasons for dismissal is not the merits of the Plaintiffs’ grievances against Kehewin Band Council et al for refusing them memberships under Bill C-31, but rather this Court has no jurisdiction to entertain them.

Indigenous Law Centre – CaseWatch Blog

The Plaintiffs have asked for default judgement against the Kehewin Band and Band Council [“Kehewin”]. Due to the historical gender discrimination that existed against women with registered Indian status under the enfranchisement, or “marrying out”, provisions of the Indian Act, SC 1956. In 1985, however, the Indian Act was amended, also known as Bill C-31, to be consistent with s 15 of the Charter. Bill C-31 automatically restored band membership to the women who had lost their Indian status directly through enfranchisement.

Kehewin refused to recognize Bill C-31 or accept any of its eligible individuals or their children as band members. As a result, the Plaintiffs commenced the underlying action in 2000 seeking declaratory relief and damages against Kehewin and Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development [“Canada”]. The Plaintiffs claim there was a fiduciary duty owed towards them and there was a breach of that duty.

In this matter, the Plaintiffs seek default judgment for damages resulting from Kehewin’s discrimination and associated denial of all tangible and intangible benefits of band membership. The action against Canada has been held in abeyance pending disposition of the present motion. The action moved forward by fits and bounds for almost a decade. Throughout this period, Kehewin engaged in a deliberate and systematic pattern of delay, using all possible means to frustrate the Plaintiffs’ efforts to conduct an orderly and complete discovery.

Kehewin never formally took control of its membership lists. Kehewin rebuffed all attempts to restore membership to the Plaintiffs, refusing to comply with Bill C-31 or recognize Canada’s authority. Kehewin also failed to file an action or application to challenge the constitutionality of Bill C-31. Kehewin simply ignored Bill C-31. Kehewin refused to recognize any Bill C-31 eligible individuals as Kehewin Band members. Kehewin’s adoption and application of their Kehewin Law #1 made it impossible for individuals reinstated to registered Indian status or Kehewin Band membership under Bill C-31 to qualify for Kehewin Band membership.

The applicable test to establish if this Court has jurisdiction is set out by the Supreme Court of Canada: 1) there must be a statutory grant of jurisdiction by the federal Parliament; 2) there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3) the law on which the case is based must be “a law of Canada” as the phrase is used in s 101 of the Constitution Act, 1867 (ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 [“ITO”]).

The Plaintiffs rely on the provisions of ss 17(4) and paragraph 17(5)(b) of the Federal Courts Act [“FCA”] to find jurisdiction. First, the nature of the proceeding generally contemplated by ss 17(4) is an interpleader. To the extent any obligation may be owed by Kehewin or Canada to the Plaintiffs, are concurrent, not conflicting. The obligation can only be owed to one. It is the claims as against Canada by other parties which must be in conflict to fulfill the requirements of ss 17(4) (Roberts v Canada, [1989] 1 SCR 322). While Kehewin takes a different legal position regarding the Plaintiffs’ status as band members, this does not create a conflicting claim as against Canada. Therefore, this Court does not have jurisdiction to entertain the Plaintiffs’ action against Kehewin under ss 17(4) of the FCA.

Next, paragraph 17(5)(b) of the FCA grants concurrent jurisdiction to the Federal Court to entertain claims against persons in relation to the performance of their duties as an officer, servant or agent of the Crown. Band councils have been recognized as legal entities separate and distinct from their membership with the capacity to sue and be sued by courts at all levels. On the one hand, they may act from time to time as an agent of the Crown with respect to carrying out certain departmental directives, orders of the Minister and the regulations passed for the benefit of its members. On the other hand, the band councils do many acts which are done in the name of and which represent the collective will of the band members, all of which is directly related to the elective process provided for in the Indian Act whereby the band members elect its governing body. The element of control is key to a finding of agency (Stoney Band v Stoney Band Council, [1996] FCJ No 1113).

The difficulty with the Plaintiffs’ argument is that no facts have ever been advanced in their pleadings which could support a finding of agency, nor does the notice of motion seek a declaration or finding of agency. It is not open to the Plaintiffs on a motion for default judgment to now assert liability of Kehewin based on agency. The introduction of this new theory of liability at this late stage of the proceeding is problematic. In any event, the facts established by the Plaintiffs on this motion do not support a conclusion that Kehewin was under the control of Canada when it refused to provide benefits to the Plaintiff. Regrettably, the Plaintiffs have failed to satisfy the first branch of the ITO test.

Dilico Anishinabek Family Care v Her Majesty the Queen (Ontario), 2020 ONSC 892

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Reply

Motion for stay dismissed. The applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Minister’s Directive and Designations is not granted.

Indigenous Law Centre CaseWatch Blog

This motion is for a stay. These proceedings involve a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay. The Minister of Children, Community and Social Services [“Minister”] issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care [“Dilico”] will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and c) the Children’s Aid Society [“CAS”] of Thunder Bay will provide services to non-Indigenous children and families [“Directive and Designations”].

Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations and granted authority in 1994 by a group of 12 First Nations to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated CAS since 1995 under what is now the Child, Youth and Family Services Act [“CYFSA”]. Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding [“MOU”] with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children, but all Indigenous children in Thunder Bay.

Tikinagan Child and Family Services [“Tikinagan”] was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation which represents many First Nations across northwestern Ontario. In 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a CAS. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction.

Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds, which will be heard at a later date. The applicants’ also motioned for a stay of the Directive and Designations; below are the reasons for the dismissal.

The court must consider three cumulative factors in determining whether to grant a stay: 1) whether there is a serious issue to be tried; 2) whether the moving party would suffer irreparable harm in the absence of a stay; and 3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]).

Cases involving child welfare or child custody require a modification to this approach to the three-part RJR-MacDonald test. The overriding consideration in such cases is the best interests of the child. In this matter, the Minister, the Thunder Bay CAS and the two Indigenous CASs operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” The applicants have, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.

The Court concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted. This conclusion is sufficient to dispose of the motion. However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. The courts have limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum (Hupacasath First Nation v British Columbia (Minister of Forests), 2005 BCSC 345; RJR-MacDonald).

At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has also not been discharged.