Saskatchewan Gaming Corporation – Casino Regina v Public Service Alliance Of Canada, 2021 CanLII 5520 (SK LA)

Posted on February 10, 2021 by thp151

Grievance dismissed. Previous incidents that included insensitive and racist remarks to an Indigenous female colleague, demonstrated that the Grievor has a hard time controlling his emotions and comments. There is little indication that his behaviour will change if given another chance. Casino Regina is in a customer focused business, and has a diverse workforce and diverse clientele. The Grievor’s dismissal was for just cause.

Indigenous Law Centre – CaseWatch Blog

The Grievor, a dealer at Casino Regina, was terminated in 2018 following the investigation of two harassment complaints lodged against him by co-workers. The first complaint alleged that he had made insensitive and racist remarks to an Indigenous female colleague and the second complaint, several weeks later, alleged rude and possibly racist behaviour towards a server of Asian origin. Combined with previous discipline and what senior managers viewed as a lack of remorse or acceptance of responsibility, the Grievor’s employment was terminated.

The Grievor was hired in 2008. The Casino has a very diverse work force that includes a significant Indigenous component and a diverse customer base. As part of ongoing training employees do take programs on “Diversity & Inclusion” and “Respectful Workplace”, which the Grievor last took in 2017 and 2018.

At the time of his dismissal, the Grievor had two disciplines plus a letter of expectations on his record. The letter of expectations, arose from a verbal altercation on the gaming floor with another staff member in which derogatory comments and expletives were exchanged within earshot of customers. The Grievor also received a one day suspension for consuming multiple alcoholic beverages during a staff charity poker tournament and then preparing to report to work. Another written reprimand was given for a comment made to customers at his table during a routine hand-off of the table to another dealer. The other dealer was not a native English speaker and the Grievor told the customers “hopefully you can understand him”. The remark was overheard by the incoming dealer who was upset by it.

The decision to terminate was made by the Employer from reviewing the initial complaints and the statements of staff and customers who had witnessed the incident that involved the Asian server. It was noted that the customer statements were unsolicited and highly unusual. The Employer argued that the harassment complaints, combined with the Grievor’s previous disciplinary record justified termination. In addition, the Grievor had been issued a letter of expectations for a verbal altercation with another employee in front of customers. The Employer argued that a common theme in all three previous cases was the reluctance of the Grievor to accept responsibility for his behaviour. He had been warned several times that a failure to change could result in more severe consequences.

Casino Regina is in a customer focused business and has a diverse workforce and diverse clientele. The evidence gives little confidence that the Grievor’s misconduct would not be repeated if he was reinstated. Accordingly, the grievance is dismissed.

Big River First Nation v Agency of Chiefs Tribal Council Inc, 2020 SKQB 273

Posted on December 14, 2020 by thp151

The Court allowed the First Nation’s application for an oppression remedy against the incorporated Tribal Council in relation to the First Nation’s notice of an intention to resign membership in the Tribal Council in the future. Among other things, the Court considered a Convention Act enacted by the member First Nations to govern their relationship, which was grounded in traditional Cree values and customs. Likewise, Cree principles of respect, cooperation, consensus, and equal representation informed the First Nation’s reasonable expectations.

Indigenous Law Centre – CaseWatch Blog

Big River First Nation [“BRFN”], brought this application pursuant to the oppression remedy provided under The Non-profit Corporations Act [“NPCA”] for what it alleges is the oppressive conduct of the respondent, Agency Chiefs Tribal Council Inc. [“ACTC”]. ACTC is a non-profit membership corporation under the NPCA, and was created to conduct business and deliver programs to members of the corporation. BRFN, Pelican Lake First Nation and Witchekan Lake First Nation [“Member Nations”] formed a new tribal council in 1991 called the Agency Chiefs Tribal Council [“Tribal Council”]. The Tribal Council was constituted to promote cooperation among the Member Nations and to develop capacity for self-determination.

In 1991, representatives from the Member Nations signed the Agency Chiefs’ Tribal Council Convention Act [“Convention Act”] which contains a number of provisions purporting to govern the relationship between the Member Nations. It is grounded in traditional Cree values and customs and represents the setting down of some of the signatory First Nations’ customs in written form. In 2019, BRFN decided it would take steps to resign from the Tribal Council in order to have exclusive control over its funding, businesses and community services.

The Cree custom or law upon which the Convention Act is derived must inform the Court’s interpretation of the NPCA, as well as the parties’ reasonable expectations relevant to this application. Courts have recognized the existence of a rule of Indigenous law when it is shown that it reflects the broad consensus of the membership of a First Nation (Whalen v Fort McMurray No 468 First Nation, [2019] 4 FCR 217 (FC)). It is uncontroverted that the Convention Act is based in traditional Cree custom and that members of the Member Nations collectively developed and drafted the document.

ACTC takes the position that BRFN’s resignation from ACTC was effective on the date it received notice of a first resignation in the form of a BRFN Band Council Resolution, as two resignations similar in wording were sent, one before and one after a BRFN Chief and Council election. It is ACTC’s view that BRFN is not entitled to make its resignation from membership in ACTC subject to conditions. Consequently, ACTC has filed a Notice of Change of Directors with Information Services Corporation, and removed BRFN’s two representatives from ACTC’s board of directors.

Section 5 of the Convention Act provides that before a Member Nations can withdraw from the Tribal Council, the Member Nations must hold a referendum on withdrawal and receive approval from the membership of the Member Nations, after which the Member Nations may pass a band council resolution. The withdrawal of membership from the Tribal Council is therefore conditional upon the majority support of the Member Nations’ community. BRFN is entitled to make its resignation from ACTC conditional and effective when conditions are met. This is clear because a resignation can be effective at a date in the future specified by the party tendering the resignation (Morin v Saskatchewan (Métis Nation Legislative Assembly), 2020 SKQB 63).

It is the Court’s determination that BRFN did not resign its membership in ACTC when it issued either of its resignations as BRFN’s resignation is properly subject to conditions and its resignation is not effective until those conditions are met. ACTC engaged in oppressive conduct when it treated BRFN’s notice that it would resign its membership in the future as an immediate resignation. It also engaged in oppressive conduct when it unilaterally removed BRFN’s directors from its board. BRFN had not intended to give up its portion of control of ACTC until it had appropriate measures in place to protect funding for its members, businesses and community services. Among other relief, ACTC shall amend its corporate records to restore BRFN’s membership in the corporation and shall replace two of its current directors with named BRFN directors. This will put BRFN in a fair position to negotiate the consequences of its future resignation from ACTC.

Hall v Kwikwetlem First Nation, 2020 FC 994

Posted on November 16, 2020 by thp151

The Court allowed an application for judicial review of a decision of two Kwikwetlem First Nation Councillors to remove the applicant, Chief Hall, from his elected office as Chief. At the core of Chief Hall’s removal was his disclosure of a forensic audit report in relation to mismanagement of resources, fraud, and breach of fiduciary duty. The decision was procedurally unfair due to a failure to provide notice and an opportunity to be heard. It was also unreasonable in various respects, including the harshness of their use of termination as a remedy.

Indigenous Law Centre CaseWatch Blog

The Kwikwetlem First Nation [“KFN”] is the band government of kwikwəƛ̓ əm, a people living in Coquitlam, British Columbia. The KFN adopted, by ratification, a custom election code and governance by its Chief and Council [“Election Code”]. In addition to this Election Code, there is a document in existence approved by Council but yet-unratified entitled Kwikwetlem First Nation Chief and Council Code of Ethics [“Ethics Code”].

This judicial review is for a decision [“Decision”] made by two KFN Councillors to remove the Chief [“Applicant”] from his elected office. The conflict regards the disclosure of certain Band business affairs and whether the Councillors individually or collectively can instruct the Chief on what he sees as his duties as Chief. Pursuant to the Election Code, the Chief is to carry out the business of KFN in accordance with a vision document and is the spokesperson of KFN. The Chief or any Councillor may be removed from office if two Council members vote in favour of a resolution. However, the Court notes that neither the Election Code nor the Ethics Code are models of clarity, as the lines of authority and governance are not clear.

The Applicant had run his 2019 campaign for the position of Chief on a platform of increased transparency and accountability regarding KFN’s governance and business dealings. A key part of his mandate was the engagement of forensic auditors to investigate possible mismanagement by the former Chief and his administration. There was a disclosure by the Applicant of a forensic audit report which revealed questionable conduct of certain officials and employees of the KFN including those of a former chief.

At the same time as the forensic audit, the Applicant was engaged in a dispute with the two KFN Councillors about numerous Band matters, in particular the issue of transparency of the audit results. The same day that the forensic auditors indicated that they would make a presentation reporting on the prior mismanagement of KFN, the Applicant received a letter of suspension of one week without pay alleging dishonesty, disclosure of confidential information, conflict of interest and inappropriate treatment of staff.

Upon a subsequent hearing that the Applicant attended under protest, he addressed each of the allegations in an affidavit with documents in support, answered questions and provided oral and written submissions based on the evidence provided and allegations made. He denied the allegations as being untrue, raised procedural fairness concerns including that the Councillors had predetermined the matter, and that the punishment of removal, in any event, was unjustified. After the hearing was concluded, the Councillors issued their decision to remove the Applicant from office, effective immediately.

The nature and extent of the procedural fairness applicable is dependent on the circumstances and dependent on the factors (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817). A high standard of justice is required when the right to continue in one’s profession or employment is at stake (Kane v Board of Governors of UBC, [1980] 1 SCR 1105). The Election Code is silent on this aspect of the removal provisions but procedural fairness applies in this situation (Sparvier v Cowessess Indian Band, [1993] 3 FC 142).

Compliance with procedural fairness norms “went off the rails” when the Councillors took a break during the hearing, met secretly with a witness and obtained new evidence, thereby attempting to change the hearing. The conduct of the hearing and the post-hearing do not accord with procedural fairness. On this ground alone this judicial review should be granted.

The standard of review of the Decision in respect of the merits is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). Part of the dispute between the Chief and the Councillors is the view held by the Councillors that they can dictate to the Chief, individually or collectively, outside of a Chief and Council meeting and the Band Council Resolution process [“BCR”], what he should do and how he should carry out his functions. There is nothing in the Band Council Mandate of the Election Code that speaks to that kind of control over the Chief.

At no time did the Councillors pass a BCR directing the Chief to do or refrain from doing anything, much less directing the Chief to keep the forensic audit results confidential from the community. In the Decision, the Councillors purportedly found the Applicant’s conduct contrary to s 7.3 of the Election Code. That provision contemplates events of gross misconduct, corrupt practices in connection with Council business, illegal or improper appropriation of KFN funds, corrupt election practices and so on. It is unreasonable to conclude on these facts that the Applicant committed any of these acts.

Absent a BCR, it was unreasonable to conclude that the Chief did not have at least a role as the spokesperson for the First Nation in determining what disclosure should have been made of the forensic audit results. The use of the termination remedy is disproportionately harsh and is unreasonable. The Councillors were not protecting the community from an individual engaged in corrupt practices, but instead were attacking a Chief who had a different view from theirs of what was in the best interests of the community. The Decision is quashed, and the Applicant is to be reinstated to his position as Chief and is entitled to costs.

AM v Ministry of Social Services, 2020 SKCA 114

Posted on October 28, 2020 by thp151

Appeal to vary or terminate a permanent committal order under The Child and Family Services Act dismissed. Among other issues, the variation judge appropriately weighed the importance of the children’s Indigenous heritage in assessing their best interests, it was not an error to rely on hearsay evidence in a Opikinawasowin report prepared through Saskatoon Tribal Council, and there was insufficient evidence to find any breach of section 7 of the Charter due to delay in delivery of judgment.

Indigenous Law Centre – CaseWatch Blog

This appeal concerned a proceeding under The Child and Family Services Act [“Act”], where two of the Appellants’ children were apprehended by the Ministry of Social Services [“Ministry”]. At the time, the Appellants were struggling with addictions. Violence was also a problem in the home.

In June 2013, it was determined that the children were in need of protection within the meaning of the Act and ordered that they be committed permanently to the care of the Ministry. In 2016, the Appellants applied to vary or terminate the permanent committal order. Nearly two years passed before the judge who heard the application rendered a decision dismissing it. The variation judge relied in part on the recommendation of the Elders who participated in an Opikinawasowin (a Cree word that translates to “the child rearing way” in English), and concluded that the Appellants had failed to demonstrate either that there had been a material change in circumstances, or that the best interests of the children would be served by varying or terminating the permanent committal order.

The Appellants now appeal from the Variation Decision. They also argue that, by taking nearly two years to render a decision, the variation judge caused delay that violated their rights under section 7 of the Charter.

The variation judge acknowledged that the Appellants had made significant progress in their individual battles with addiction but he remained concerned that they had not addressed the issue of violence within their home. He determined the best interests would be served by remaining in a stable home where they had lived for most of their young lives and maintaining the familial bonds that they had developed with their younger sister and foster family. This decision was made after careful reflection, notwithstanding the fact it meant they would be adopted by a non-Indigenous person.

The variation judge did not underemphasize the importance of the children’s cultural heritage in reaching this conclusion. His reasons indicate that he considered a multitude of factors, including those set out in the Act. Given the discretionary nature of a judge’s task in deciding what weight to assign to each of those factors in the ultimate balancing exercise, and the governing standard of review, this Court is not persuaded that there is any basis to interfere with his conclusion.

As well in this case, there is simply not an adequate evidentiary basis upon which to properly assess the question of whether the judicial deliberation delay violated the Appellants’ rights under section 7 of the Charter. There is no evidence that the Appellants ever expressed concern about delay prior to the variation judge issuing his decision. Nor is there any evidence as to what impact the delay had on the Appellants, the children, or on any of the issues the variation judge was required to consider in disposing of the variation application. The Appellants have not persuaded that all the facts necessary to address the section 7 issue are before the Court (Canada (Attorney General) v Bedford, 2013 SCC 72).

Blois v Onion Lake Cree Nation, 2020 FC 953

Posted on October 23, 2020 by thp151

The Court granted an application for judicial review, quashed Onion Lake Cree Nation’s decision to terminate the appointment of its Appeals Tribunal, and ordered its reconstitution to hear the Applicant’s election appeal. Onion Lake members decided to codify their customary governance laws and nothing in their written laws allows for termination of the tribunal. The decision was also subject to procedural fairness since it was specific to the outstanding election appeal; as it was made without notice, procedural fairness was breached.

Indigenous Law Centre – CaseWatch Blog

The members of Onion Lake Cree Nation [“OLCN”] passed the OLCN Convention Law [“Convention Law”] by community referendum in 2011. Amongst other things, the Convention Law empowers the OLCN Chief and Council to establish boards, commissions and committees as necessary for peace, order and good governance and to pass laws, regulations and codes. The members of OLCN passed the Onion Lake Election Law [“Election Law”] which came into effect in 2017. The Chief and Council subsequently passed the OLCN Appeals Regulation [“Appeals Regulation”]. Pursuant to the Election Law, an appeals tribunal [“Appeals Tribunal”] was appointed in advance of the upcoming Election.

This is an application for judicial review of a decision by the OLCN Chief and Council terminating the appointment of the Appeals Tribunal prior to the completion of its consideration and determination of an appeal of the 2018 OLCN [“Election”]. The Applicant, Florence Blois was an incumbent but unsuccessful candidate for councillor in the Election. The Applicant submitted to the Appeals Tribunal setting out various allegations. The Appeals Tribunal decided to accept the Applicant’s appeal but there were apparently concerns with the conduct of the appeal. The Applicant submits to this Court that the OLCN Chief and Council did not have the jurisdiction or authority to terminate her appeal.

By way of the Convention Law, the members of the OLCN chose to codify into writing the rules for establishing, empowering and regulating their institutions of government. OLCN effected a government (or executive) branch, the elected Chief and Council; the Elders Council to provide spiritual guidance; and a Judicial Assembly Commission.

Nothing in the Appeals Regulation speaks to the termination of the Appeals Tribunal prior to the completion of its term. That is, nothing in the Convention Law, Election Law or the Appeals Regulation provides authority to the Chief and Council, in any circumstance, to intervene in an appeal and dissolve the Appeals Tribunal before the Appeals Tribunal makes a decision in an appeal that is before it. If the legislative scheme suggested that the OLCN Chief and Council had the authority to disband the Appeals Tribunal before the expiry of its specified term, for any reason, and instead substitute its own finding, then this authority would have been clearly stated. This is demonstrated by the fact that the conduct of OLCN election appeals is exhaustively covered by the Election Law and Appeals Regulation.

Jurisprudence from the Federal Court of Appeal and this Court suggests that there must be clear legislative authority to remove appeal committee or council members (Johnson v Tait, 2015 FCA 247; Angus v Chipewyan Prairie First Nation, 2008 FC 932). It is clear that the Appeals Tribunal, as an independent body, holds a discreet and exclusive role in the conduct of election appeals, and the term of the appointment of that body is explicitly stated to start at appointment and not to terminate until an election appeal is decided.

The Court concludes that the OLCN Chief and Council did not have the authority to terminate the appointment of the Appeals Tribunal and, thereby, the Applicant’s appeal. Accordingly, that decision was unreasonable.

Grey v Whitefish Lake First Nation, 2020 FC 949

Posted on October 8, 2020 by thp151

The Court dismissed an application for judicial review of an arbitrator’s decision to dismiss an election appeal. The Applicant unsuccessfully argued a reasonable apprehension of bias and reviewable substantive errors in that decision.

Indigenous Law Centre – CaseWatch Blog

An Election Appeal Arbitrator [“Arbitrator”] was retained by Whitefish Lake First Nation [“WLFN”] for a 2018 general election [“Election”]. He was to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations [“Regulations”].

The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the Regulations. The Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief.

In 2019, the Applicant commenced this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application is the assertion that his Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserted three allegations, that in context altogether, would collectively meet the test for reasonable apprehension of bias.

The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (AG), 2020 FCA 5). The Applicant asserted in one of the allegations that the appointment process of the Arbitrator by the WLFN lacked independence and was procedurally unfair, because it was the executed by the WLFN Council. Section 7.1 of the Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution. The Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v Hamelin, 2018 FCA 131). The appointment of the Arbitrator by WLFN Chief and Council, along with two other allegations in this case, does not give rise to a reasonable apprehension of bias.

Although the Applicant also makes submissions asserting errors on the part of the Arbitrator pertaining to his decision and his weighing of the evidence, s 16.20 of the Regulations clearly precludes challenges on that basis, restricting challenges on judicial review to matters of procedural fairness. Accordingly, it is not open to the Applicant to challenge the Arbitrator’s decision on the merits.

Morin v Enoch Cree First Nation, 2020 FC 696

Posted on July 30, 2020 by thp151

Application granted. Procedural fairness applies even when not directly incorporated into a First Nation’s custom election code.

Indigenous Law Centre – CaseWatch Blog

This application for judicial review is brought pursuant to s 18.1 of the Federal Courts Act, regarding a decision by an Election Appeal Board, constituted in connection with the Maskekosihk Enoch Cree Nation #440 Election Law [“MECN Election Law”]. The majority of voters of the Maskekosihk Enoch Cree Nation approved the MECN Election Law in 2018. It was enacted and adopted into the laws of that First Nation.

In this matter, the Applicant, Mr. Jared Morin and Respondent, Mr. Shane Peacock are members of the Enoch Cree Nation and both ran for the position of band councillor in the 2019 election. The counting of the ballots for councillors was conducted and there was found that both Mr. Morin and Mr. Peacock had received 319 votes. However, this “tie” is disputed as a councillor’s ballot was found in a ballot box intended for votes for the chief. That councillor’s ballot was for Mr. Morin. As some candidates ran for election as chief or councillor, the outcome of the election for chief had the potential to affect the outcome of the election to the 10th councillor position.

The Electoral Officer declared this tie and, in accordance with s 17.2 of the MECN Election Law, Mr. Morin and Mr. Peacock’s names were placed in a hat. The name drawn from the hat was Applicant. The Election Officer declared him the winner of the 10th councillor position.

Mr. Peacock subsequently submitted a brief to the Election Appeal Board that asserted the Electoral Officer improperly handled the councillor’s ballot found in the ballot box for votes for chief during the counting of the votes for the position of chief. That ballot, according to the brief, should have been considered as spoiled and not counted. In that event, Mr. Peacock would have had 319 votes and Mr. Morin would have had 318 votes, there would not have been a tie vote, and there would have been no need to conduct a tie breaking hat draw. The 10th councillor position in the 2019 election for the Maskekosihk Enoch Cree Nation chief and band council were then overturned and a by-election ordered.

This Court finds that the Election Appeal Board breached the duty of procedural fairness owed to Mr. Morin by failing to give him notice of that appeal, and as a result, deprived him of the opportunity to address the appeal allegations. The Election Appeal Board also erred by failing to notify the Electoral Officer of the appeal and in failing to obtain the Electoral Officer’s written reasons for his decision, in breach of s 20.7 of the MECN Election Law. This was unreasonable and rendered its decision unreasonable.

Given that Enoch Cree Nation did not challenge Mr. Morin’s allegation that the Election Appeal Board breached procedural fairness, and given that he has been successful in his application for judicial review in that the decision of the Election Appeal Board will be quashed and remitted back for redetermination, it is appropriate that he should be awarded the costs of his application as against the Enoch Cree Nation.

Solomon v Garden River First Nation, 2019 FC 1505

Posted on February 28, 2020 by thp151

Judicial review granted. There was a breach of procedural fairness in the process followed by the Chief and Council that led to the Applicants being banished from Garden River First Nation. The matter is remitted for reconsideration.

Indigenous Law Centre – CaseWatch Blog

The Chief and Council of Garden River First Nation [“GRFN”] issued a series of Band Council Resolutions [“BCRs”] banning Kody John William Solomon and Ralph Justin Romano [“the Applicants”] from GRFN territory. On this application, the Applicants seek judicial review of these BCRs and the process undertaken by the Chief and Council.

GRFN is governed by an elected Chief and Council who are responsible for the governance of the Nation and its approximately 3,000 members. One of the applicants have resided there his whole life, another non-member has lived on GRFN for 19 years with his member spouse and teenage daughter. The Applicants were banished as they had been charged with offences under the Controlled Drugs and Substances Act, and that “illegal drugs have caused great harm to Garden River and its members,” and “allowing [the Applicants] to remain in Garden River may cause harm to Garden River and its members or endanger public safety.”

There is no dispute that the initial 2018 BCRs were issued by GRFN’s Chief and Council without the opportunity for any input from the Applicants, nor did they have notice. The right to a fair hearing requires that the Applicants have adequate notice of the case against them and sufficient opportunity to respond before a decision adverse to their interests was made (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9). Given the serious consequences of the banishment decisions, the degree of procedural fairness owned to the Applicants is heightened.

It appears GRFN’s Council itself recognized flaws in the process undertaken. By-Law 20 was adopted subsequently after the BCRs in 2018. The major differences from By-Law 13 are that it allows the Band Council to banish members of GRFN and persons deemed to be threats to the peace and safety of the Band or other people lawfully on the reserve. By-Law 20 provides a process that is clearly tailored to address the particular circumstances of the Applicants, a member and a non-member of GRFN who were charged with a criminal offence. However, there was still no reconsideration of the original decision to banish the Applicants in the BCRs issued in 2019. Rather it appears the GRFN Council simply passed the new By-Law and considered it to have rectified any issues with the previous BCRs from 2018.

The case law is clear that issues of procedural fairness are considered on a correctness standard (Canadian Pacific Railway Company v Canada (AG), 2018 FCA 69). The test for assessing if the process was fair, is to ask whether a right-minded person, applying themselves to the question and obtaining the required information, would think it is more likely than not that the decision-maker did not decide fairly (Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC 699 [“Baker”]). The factors outlined in Baker for assessing procedural fairness include: 1) the nature of the decision and the process followed in making it; the nature of the statutory scheme; 2) the importance of the decision to the individuals affected; 3) the legitimate expectations of the person challenging the decision; and 4) the choice of procedure made by the agency itself.

Considering that By-Law 20 appears to have been crafted to address the specific circumstances of the Applicants, they had a legitimate expectation that the process laid out in By-Law 20 would be followed. When the Baker factors are considered in conjunction with the reasonable apprehension of bias, it is clear that there was a breach of the Applicants’ right to procedural fairness. The evidence demonstrates a continuing course of conduct on the part of GRFN’s Council who never undertook the promised reconsideration of the original banishment decision. The 2019 BCRs were simply a reissue of the original 2018 banishments under the new By-Law. The decision-making process that led to the Council’s 2019 decision was procedurally unfair because the Council made up its mind in 2018. From that point, GRFN Council defended its original decision rather than engage in a true reconsideration.

Fontaine v Canada (AG), a CaseWatch Blog series of five case summaries

Posted on May 28, 2019 by thp151

This is a special series of five Fontaine v Canada (AG) case summaries that involves the Chief Adjudicator of the Independent Assessment Process of the Indian Residential Schools Settlement Agreement.

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Fontaine v Canada (AG), 2018 ONSC 5197 (“The First Direction”)

Direction to terminate the Chief Adjudicator from his duties and all pending litigation that involves the Indian Residential Schools Settlement Agreement.

The Chief Adjudicator has been directed to be removed from his duties from the Independent Assessment Process (“IAP”), a central feature of the Indian Residential Schools Settlement Agreement (“IRSSA”). IRSSA is Canada’s largest and most complex class action settlement that was negotiated over ten years ago. The parties included Canada, representatives of the Indigenous Peoples in Canada, and of the religious organizations that operated Indian Residential Schools (“IRS”). They diligently worked to negotiate a fair, comprehensive and lasting resolution of the legacy of IRSs. The courts that approved the IRSSA have an ongoing role in supervising, implementing, and administering the IRSSA. A simplified and expedited process for the Courts to direct the IRSSA’s implementation and administration is known as a Request for Direction (“RFD”).

The IAP is an elaborate post-settlement claims adjudication process which include means for survivors to seek compensation for claims of serious abuse and other wrongful acts. The Chief Adjudicator’s duties are set out in the IRSSA and the role is responsible for the adjudication of IAP claims through the assistance of an administrative apparatus. The IAP must constitute an autonomous adjudicative body similar to a court and subject to court supervision. The Chief Adjudicator is retained on contract to ensure independence and reports directly to the courts that supervise the Settlement Agreement. The Chief Adjudicator is not independent, however, as judges are, as the role is accountable to the Supervising Courts. That approach is consistent with the leading authorities about the role of autonomous adjudicative bodies in matters before the courts (Ontario (Energy Board) v Ontario Power Generation Inc; Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner (“Goodis”)).

The Chief Adjudicator is obliged to report to the Courts at least quarterly. The most recent, the 43rd Quarterly Report to the Courts, was incomplete, as there were a number of unreported matters. The Chief Adjudicator had not only chosen to participate in several appeals before various appellate courts arising from the IAP, but had amplified that partisan position and now defies the Courts to which he is accountable. The Chief Adjudicator’s standing was challenged in the British Columbia Court of Appeal on a previous occasion, but he was permitted to participate as an intervenor, on the express understanding that his submissions would be limited to questions of jurisdiction and standard of review, but not touch on the merits. It was no answer for the Chief Adjudicator to point out that the Supreme Court of Canada and the British Columbia Court of Appeal had afforded him an audience. His standing in the pending appeals, and to make partisan arguments, has not been adjudicated and he did not advise the Supreme Court of his limited role under the IRSSA.

In connection with Canada’s RFD, the Chief Adjudicator’s counsel advised the Court that he intended to put on hold re-review cases that engaged what were called “procedural fairness” issues. He was directed that the matter be spoken to in open court, and it was made clear that for cases to be put on hold, a stay from the Court of Appeal would be required. No stay had been sought. Nevertheless, the Chief Adjudicator put a hold on the cases anyway. The Chief Adjudicator is an instrument of the IRSSA, not a stakeholder, not a party, and not an advocate for claimants or for itself. His role as an advocate is beyond his proper role, contrary to the scheme of the IRSSA and to the court orders that appointed him Chief Adjudicator. His partisan involvement has caused him to invite appellate courts to disagree with the very courts that are tasked with supervising him and to which he reports, which is unacceptable. His participation, akin to an intervention by an affected party, was not and is not required for a fully informed adjudication. The Chief Adjudicator should not be taking positions in matters arising from IAP decisions.

The goal of finality was contracted for and built into the IRSSA. Use by the Chief Adjudicator of procedural fairness as a means of re-opening IAP claims or holding them in abeyance pending the potential receipt of future admissions would compromise or defeat that important goal. Procedural fairness should not be used to avoid complying with the clear terms of the IRRSA, which preclude admission of new evidence on review or re-review and restricts reviews to the scrutiny of hearing adjudicators’ decisions for an overriding and palpable error. On re-review, the inquiry is limited to whether there was a misapplication of the IAP Model by the review adjudicator. The IAP Model requires that IAP adjudicators be impartial. It goes beyond the proper limits of the concept of procedural fairness to say that the discovery of new evidence is a sufficient basis for re-opening a hearing. Used in the context in which the Chief Adjudicator has used it in the IRSSA, “procedural fairness” is a misnomer, and one which erroneously invokes the administrative law paradigm. The IRSSA is a contract, and while the IAP Model provides an important means of redress to those who suffered abuse at IRSs, the courts and their officers must honour what was negotiated in the contract. Neither the courts nor the Chief Adjudicator should do anything that materially alters the bargain that the parties made. That bargain is set out in the IAP Model and when describing the concept of fairness in that context, the appropriate phrase is “IAP Model fairness”.

The Chief Adjudicator’s active and partisan involvement in the appeals mentioned above cause significant concern for this Court that there is a possible appearance of compromised impartiality. Partisan advocacy, or the appearance of bias, is antithetical to the role of a neutral decision-maker. A tribunal whose decision is under review is not automatically entitled to standing at common law, and a primary consideration in whether they should be permitted to address the Court is the importance of maintaining tribunal impartiality (Goodis). Another concern is that without disclosing in his reports that the Chief Adjudicator is challenging the Court’s supervision of the IAP, he has taken to challenging decisions of his Supervising Courts. The Chief Adjudicator’s actions amount to insubordination of the Courts to which he is accountable, and his conduct runs the risk of compromising his impartiality or the appearance of a compromised impartiality. These circumstances necessitated urgent corrective action on the part of this Court.

Fontaine v Canada (AG), 2018 ONCA 749

Relief granted. Direction issued that required the Chief Adjudicator to withdraw from his involvement in three appeals stayed and appeal allowed.

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), issued a Direction that required the Chief Adjudicator to withdraw from three appeals that he is involved in has been stayed and an appeal granted. The three-part test for a stay applies: 1) the applicant must demonstrate that there is a serious issue to be tried; 2) that it will suffer irreparable harm if the stay is not granted; 3) and that the balance of convenience favours a stay pending the disposition of the appeal (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 (RJR-MacDonald)).

The Court was satisfied that the Chief Adjudicator raised arguable grounds of appeal and serious questions to be determined. It is arguable that proceeding without notice and without submissions amounts to a denial of procedural justice. The Direction takes the form of a judicial order and the reasons given to support it are in the form of a judicial judgment, therefore, the usual norms of procedural fairness should have been followed. Of particular concern is the finding in the Direction that the Chief Adjudicator is guilty of “insubordination of the Courts to which he is accountable”. This is a finding of serious misconduct made against a lawyer without giving the lawyer an opportunity to respond. The Direction also relates to proceedings in other courts. The Chief Adjudicator is a respondent or an intervenor to the appeals in those other courts and is therefore subject to the control of those courts. The Chief Adjudicator accepts that he is subject to the usual limitations imposed upon administrative tribunals who participate in proceedings that challenge their decisions as outlined in Ontario (Energy Board) v Ontario Power Generation Inc, [2015] 3 SCR 147). There is an arguable issue as to whether the EAJ erred in assuming the authority to determine the nature and scope of the submissions the Chief Adjudicator should make in other courts. It is an issue as to whether the Chief Adjudicator has exceeded the limits of participation permitted for a tribunal in proceedings that challenge the tribunal’s decision.

The Court is satisfied that if a stay is denied, the Chief Adjudicator will suffer irreparable harm from being required to withdraw his factum and participation in an appeal before the Supreme Court of Canada, scheduled to be heard the next day. The balance of convenience favours granting a stay. If a stay is refused, the Chief Adjudicator’s participation in the appeals will be terminated. On the other hand, if the Chief Adjudicator’s participation exceeds the limits of what is permitted, the courts before whom the Chief Adjudicator appears can deal with that problem and limit his participation accordingly. It is accepted that where a stay would effectively determine the matter at issue, a court may go beyond the “serious issue to be tried” standard and grant the stay if the applicant shows a strong likelihood of success (RJR-Macdonald). The Chief Adjudicator has met that standard with respect to the issue of procedural fairness. Granting the stay will not preclude this Court from considering the general issues as to the nature of the relationship between the EAJ and the Chief Adjudicator on the appeal.

Fontaine v Canada (AG), 2018 ONSC 5706 (“Second Direction”)

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), rescinds his “First Direction” and issues a “Second Direction” to address his concerns and issues with the Chief Adjudicator.

A “Second Direction” rescinds and replaces the EAJ’s earlier Direction (Fontaine v Canada (AG), 2018 ONSC 5197) for the IRSSA. In the First Direction, the EAJ directed that the Chief Adjudicator of the Independent Assessment Process (“IAP”) to terminate his involvement in pending litigation before various appellate courts arising from the IAP, in which he advances partisan positions, thereby compromising the integrity of the IAP. The Chief Adjudicator sought and was granted a stay by the Court of Appeal, pending appeal (Fontaine v Canada (AG), 2018 ONCA 749), largely on the ground that he had been denied due process. The EAJ viewed the stay granted by the Court of Appeal as making the appeal of the First Direction largely moot in that the Chief Adjudicator will go ahead with submissions on an appeal scheduled to be before the Supreme Court of Canada.

Therefore the EAJ rescinds the First Direction and will follow a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns and to provide the Chief Adjudicator with a full hearing with due process. The EAJ appoints in the Second Direction an amicus curiae to bring a Request for Direction (“RFD”). This RFD shall be heard and determined at a joint hearing by a panel of two Supervising Judges, to be assigned in accordance with the Court Administration Protocol appended as Schedule “A” to the Implementation Orders. The Second Direction specifies five issues for the RFD to address and lists the materials to be considered. The issues to be addressed reflect similar concerns to those that motivated the First Direction.

Fontaine v Canada (AG), 2018 ONCA 832

Relief granted. Stay for the Second Direction nunc pro tunc from the date it was issued. The appeal granted for the Second Direction will be heard together with the appeal from the First Direction.

The direction, now called the “First Direction” (Fontaine v Canada (AG), 2018 ONSC 5197), has been rescinded by the Eastern Administrative Judge (“EAJ”) that supervises, along with other courts, the Chief Adjudicator who is in charge of the Independent Assessment Process (“IAP”) of the multi-billion dollar class action settlement agreement, the Indian Residential Schools Settlement Agreement (“IRRSA”). In the First Direction, the Chief Adjudicator was ordered to withdrawal from three appeals he was involved in, as there were concerns and issues the EAJ had regarding the Chief Adjudicator’s duties. From the EAJ rescinding and replacing his First Direction, with a “Second Direction”, it is arguable to this Court that it was done in violation of the functus officio principle. As the Supreme Court of Canada (“SCC”) stated in (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3 (“Doucet-Boudreau”)), the purpose of this principle is “to allow finality of judgments from courts which are subject to appeal”. The SCC recognized that allowing the court appealed from to vary its orders would allow that court to “assume the function of an appellate court and deny litigants a stable basis from which to launch an appeal” (“Doucet-Boudreau”).

It was also found arguable that the Second Direction amounted to an attempt to short-circuit the appeal to this Court from the First Direction. The Second Direction declared the appeal to this Court “largely moot”, rescinded the First Direction which removes the basis for the appeal, and purports to confer jurisdiction on two extra-provincial judges to decide some of the issues raised by the appeal. In addition, the terms of the RFD that the EAJ directed the amicus curiae to bring, appears to assume, if not decide, some of the issues raised before this Court in the appeal from the First Direction. The Second Direction is a final order from which an appeal lies to this Court. If the Second Direction rescinds the First Direction, it has the effect of ending the appeal from the First Direction, as the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction thus removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. An order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have that jurisdiction (Manos Foods International Inc v Coca-Cola Ltd,180 DLR (4th) 309 (ONCA)).

The Second Direction was made without notice and a hearing, thereby in violation of the principles of procedural fairness. It is unprecedented for a judge to purport to rescind an order after it has been made, appealed and stayed, thereby effectively ending the appeal and replacing it with another process. The issue of the Chief Adjudicator’s participation on court proceedings is one that affects all jurisdictions. It is arguable that a panel of two judges from different provincial and territorial superior courts should be avoided where the issue is hotly contested, as there could be risk of disagreement or conflicting results on appeal or even appeals. Irreparable harm could flow from allowing two parallel proceedings to unfold at the same time. There is a clear risk of inconsistent results that would cause confusion from which the Chief Adjudicator and the IAP would suffer serious harm. Conflicting results would also cause harm by bringing the administration of justice into disrepute. The balance of convenience favours granting a stay as it would allow these proceedings to unfold in an orderly manner and avoid duplicative proceedings that could lead to inconsistent results. The three-part test for a stay is met (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

Fontaine v Canada (AG), 2018 ONCA 1023

The First Direction and the Second Direction is ordered to be set aside. Any party is open to bring a Request for Direction regarding the issues in the directions, however, it must be conducted by a different supervising judge. This process must be carried out in a procedurally fair manner and the directions are limited in scope to the form and content of the reports.

The Indian Residential Schools Settlement Agreement (“IRSSA”) was designed to give some measure of redress to victims of a dark chapter in Canadian history. Since its implementation, tens of thousands of victims have been compensated and billions of dollars have been dispersed. It is near completion and that accomplishment is attributable in no small measure to the many people who are part of the Independent Assessment Process (“IAP”), including the appellant (the Chief Adjudicator), and the Eastern Administrative Judge (“EAJ”). The IRSSA establishes the IAP, a claims adjudication process that acts as a means of providing compensation to individuals who suffered abuse at Indian Residential Schools. The Chief Adjudicator is responsible for ensuring the proper implementation of the IAP. The Oversight Committee is provided by the IAP. The power of the Oversight Committee to appoint a Chief Adjudicator has been expressly limited and made subject to court approval, however, there is no concurrent limitation to terminate the Chief Adjudicator.

The “First Direction” was issued by the EAJ on his own motion and without notice to any party, that prohibited the appellant from continuing his participation in three appeals (the “Impugned Appeals”), one before the Supreme Court of Canada (“SCC”) and two before the British Columbia Court of Appeal (“BCCA”). The EAJ found the appellant to be insubordinate and in defiance of the supervising courts. His reasons were the appellant’s overtly partisan positions, based on the content of his facta and his participation in the Impugned Appeals that failed to be described in a recent quarterly report to the IRRSA Court Monitor. Also of concern in the First Direction, is the appellant’s efforts to hold re-review adjudications in abeyance, pending the outcome of an appeal that considered issues of procedural fairness in the IAP (Fontaine v Canada (AG), 2018 ONSC 5197). The EAJ directed the appellant to withdraw from the Impugned Appeals and remove his facta from the SCC and BCCA registries. The appellant filed a Notice of Appeal against the First Direction in this Court and moved for a stay pending the hearing of the appeal, which was subsequently granted.

The appellant was owed an elevated duty of procedural fairness and natural justice because the EAJ was exercising his judicial functions (A(LL) v B(A), [1995] 4 SCR 536). The EAJ’s power to supervise must be exercised in a manner that conforms to the principles of natural justice and respects the rights of the appellant to procedural fairness. The First Direction amounted to a warning that all the orders for the Chief Adjudicator must implemented by the deadline mandated by the EAJ, otherwise the appellant could face termination from his position. But the power to terminate the Chief Adjudicator resides with the Oversight Committee, not the EAJ. It must also be remembered that the appellant occupies a significant role in the administration of a multi-billion dollar class action settlement, thereby the First Direction compromised the appellant’s professional reputation and his ability to carry out his mandate as Chief Adjudicator.

Subsequently, the EAJ issued another direction (the “Second Direction”), again on his own motion and without notice to any party. The Second Direction purported to rescind the First Direction for the express purpose of avoiding appellate review. It directed “a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns” and “provide the Chief Adjudicator with a full hearing with due process, as he submits is his due” (Fontaine v Canada (AG), 2018 ONSC 5706). The appellant filed a Notice of Appeal against the Second Direction and moved for a stay pending determination of the appeal. It was granted along with the relief that the two appeals be heard together. This Court also accepted that the Second Direction violated the law of functus officio. Once the First Direction was issued, the EAJ’s jurisdiction over the matter was exhausted. While the First Direction was under appeal, he had no authority to rescind and replace it with the Second Direction. The principle of functus officio addresses the harm at issue in these appeals, namely that a lower court must not interfere with the jurisdiction of an appellate court (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3). Courts do not have the power to amend an order except in limited circumstances that have no application in this case.

This Court should not determine the substantive issues raised in the First Direction and the Second Direction. An RFD to the supervising courts is the process mandated by the Implementation Orders for applications regarding the administration of the IRSSA. Where a hearing is required, the administrative judges determine the jurisdiction in which the hearing should be held. Where the issues will affect all jurisdictions, the hearing may be directed to any court supervising the IRSSA. There is nothing in the Court Administration Protocol of the IRRSA that permits the courts to initiate their own process. Instead, it is contemplated that it is the parties that bring RFDs to the courts. If the respondent has a concern about that conduct, there is nothing preventing it from bringing a RFD. Engaging in the RFD process would permit all parties to adduce evidence, make submissions, and to receive the direction of the court. The IRSSA, the Implementation Orders, and the Court Administration Protocol provide a detailed procedure regarding the adjudication of issues that arise in the administration of the IAP. That process must be respected. While the courts have a supervising role, it is one that must be guided by the IRSSA and the Implementation Orders. The supervising courts are not free to graft on their own processes to the mandated RFD process.