Nunavut Tunngavik Inc. v. Canada (Attorney General), 2004 FC 85

Date: 20040122

Docket: T-791-02

Citation: 2004 FC 85

Ottawa, Ontario, this 22^nd day of January 2004

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                          NUNAVUT TUNNGAVIK INCORPORATED

                                                                                                                                                       Applicant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Nunavut Tunngavik Incorporated was created in 1993 to oversee implementation of the Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada. Among other things, the Agreement creates several decision-making and policy-making bodies involved in the administration of Nunavut. One of them, the Nunavut Wildlife Management Board ("NWMB"), is responsible for managing wildlife in the territory. The applicant argues that members of the NWMB are being underpaid, contrary requirement in the Agreement that they be provided "fair and reasonable remuneration". In particular, it submits that the refusal of the Privy Council Office ("PCO") to reclassify the NWMB, which would have resulted in an increase in its members' daily fees, amounts to a violation of the Agreement. In its application for judicial review, the applicant asks me to order PCO to reconsider the issue.

I. Issues

[2]                 There are three issues:

1. Is PCO's position subject to judicial review?

2. If so, what standard of review applies?

3. Is the Court's intervention justified?

[3]                 Before analyzing these issues, some further background must be set out.

II. Background

[4]                 The amount of remuneration NWMB members receive is a product of five kinds of instruments: a statute, an implementing agreement, a contract, orders in council and a set of guidelines.

[5]                 The Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, s. 12 (relevant enactments are set out in an Annex), says that the Governor in Council sets the remuneration of the members of the NWMB. The Agreement itself, mentioned above, provides that members of the board should receive "fair and reasonable remuneration" for their work (Article 5.2.20). By way of a contract, the parties to the Agreement agreed in 1993 that the members should be paid $200 a day, and the Chairman $275 a day. Those rates were confirmed by orders in council in 1993 and 1994 respectively. The guidelines PCO administers for federal boards did not specifically mention the NWMB until they were revised in 2000. At that point, the NWMB was listed as a category IV agency and its members received an increase to $225 a day, and the Chairman to $325 a day. An order in council confirmed those rates in 2001.

[6]                 In February 2002, the Chairman of the NWMB, Mr. Ben Kovic, asked PCO to review the board's classification under the guidelines. He requested an elevation of the NWMB to a category II agency. The PCO agreed to consider the matter. It consulted with the Department of Indian Affairs and Northern Development, which appoints and administers other northern boards and agencies. In the end, PCO staff concluded that the NWMB should remain a category IV agency. The Deputy Clerk of the Privy Council, Mr. Ronald Bilodeau, agreed with that conclusion. As a result, PCO took no action to alter the existing rates of pay. In April 2002, Mr. Kovic was so informed. PCO's refusal letter stated that "based on the evaluation criteria and in relation to other executive board positions, [NWMB] is appropriately classified as a Category IV board".

III. Analysis

(1) Is PCO's position subject to judicial review?

[7]                 The applicant argues that PCO's refusal to reclassify the NWMB amounts to a "decision" that is subject to judicial review.

[8]                 This Court has jurisdiction to review a "decision, order, act or proceeding of a federal board, commission or other tribunal" acting under powers provided by an Act of Parliament: Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2, 18.1(3)(b). This role extends beyond formal decisions. It includes review of "a diverse range of administrative action that does not amount to a 'decision or order', such as subordinate legislation, reports or recommendations made pursuant to statutory powers, policy statements, guidelines and operating manuals, or any of the myriad forms that administrative action may take in the delivery by a statutory agency of a public programme.": Markevich v. Canada, [1999] 3 F.C. 28 (QL) (T.D.), at para. 11, reversed on other grounds, [2001] F.C.J. No. 696, reversed on other grounds, [2003] S.C.J. No. 8.

[9]                 Still, the administrative action sought to be reviewed must flow from a statutory power. The decision-maker need not be exercising any particular statutory authority, but must at least have statutory powers affecting the rights and interests of others: Markevich, above, at para. 12. Assuming that PCO's refusal to reclassify the NWMB affected the rights and interests of the board's members, was its conduct connected to any statutory authority?

[10]            In my view, it was not.

[11]            The only body with any statutory power in relation to the remuneration of NWMB members is the Governor in Council acting under the Nunavut Land Claims Agreement Act, above, s. 12. For its part, PCO developed general guidelines on remuneration, considered the issue of the NWMB's classification and, ultimately, concluded that its classification was correct. In effect, it decided that it would not propose to the Governor in Council a change in the remuneration of NWMB members. But, in my view, this was not a decision subject to judicial review because it was not made pursuant to any statutory power.

[12]            By contrast, the Governor in Council had amended the rates of pay of NWMB members in 2001 and its decision was duly reflected in an order in council. That decision was made under express statutory authority and was clearly amenable to judicial review. However, the NWMB took the alternative route of requesting PCO's support for a change in the fee arrangements for its members. The PCO considered that request and decided not to urge the Governor in Council, the body with statutory authority to determine the matter, to make any change. In my view, that decision is not subject to judicial review.

[13]            I realize, as a practical matter, that it might be difficult to cause the Governor in Council to elevate NWMB's members' rates of remuneration without PCO's support. Still, that alone does not create a foundation for judicial review of PCO's conduct.

(2) If so, what standard of review applies?

[14]            Strictly speaking, it is unnecessary to address this question, or the next one, because of my answer to the first. Still, in the event I am wrong about the unavailability of judicial review, I will assume that PCO's position is reviewable and will address the other issues, albeit it in a summary way.

[15]            The applicant suggests that PCO must exercise its discretion in accordance with the rights of aboriginal peoples set out in s. 35 of the Constitution Act, 1982. It also argues that a failure on the part of PCO to respect constitutional values is reviewable on a standard of correctness. Accordingly, given that the Agreement embodies constitutionally-protected aboriginal rights, PCO's refusal to reclassify the NWMB should be overturned because it amounted to a violation of an express term of the Agreement: the duty to pay NWMB members fair and reasonable compensation.

[16]            I agree that PCO has a duty to respect the Constitution. If it violates constitutionally-protected rights, this Court has a duty to step in and provide a remedy to the applicant. I also agree that correctness is the proper standard to apply to decisions involving rights set out in the Constitution: Lalonde v. Ontario (Commission de restructuration des services de santé), [2001] O.J. No. 4767 (QL) (C.A.). In other words, if I were to conclude that PCO's conduct breached the Constitution, I would have to overturn its decision and order it to reconsider the matter. The same standard applies in respect of legal errors, including breaches of natural justice, on PCO's part. I will discuss below whether PCO violated any constitutional rights or made any legal errors.

[17]            By contrast, with respect to a decision-maker's application of facts to a legal standard, judges generally intervene only if the decision-maker's conclusion was unreasonable: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCJ 19, [2003] S.C.J. No. 18 (QL) (SCJ), at paras. 34-39. That would be the situation here in respect of the question whether remuneration of NWMB members was "fair and reasonable". Had PCO determined that NWMB members were being paid "fair and reasonable" compensation, I would judge its decision on the standard of reasonableness. However, PCO appears never to have made that determination and, as such, there is no decision to be reviewed. Instead, I must consider whether PCO's failure to apply the test set out in the Agreement amounted to an error of law and reviewable on the correctness standard.

[18]            Courts generally give even greater deference to fact-finding by a decision-maker, Dr. Q., above. PCO is entitled to considerable deference in respect of the facts on which it relied in making its decision. I can intervene only if its determination of the facts was patently unreasonable. I will discuss below the basis on which PCO arrived at its decision not to recommend reclassification of the NWMB.

(3) Is the Court's intervention justified?

[19]            The applicant argues that there are three grounds on which I might conclude that PCO's refusal to reclassify the NWMB should be set aside.

(a)         Did PCO err in failing to consider whether NWMB members were receiving fair and reasonable remuneration?

[20]            The applicant argues that PCO had a duty to consider this issue because it must respect the Constitution; in particular, aboriginal rights. To my mind, the issue of fair and reasonable compensation of the members of one of the supervisory bodies under the Agreement is rather remote from the constitutionally-protected rights of aboriginal people. Accordingly, this case is different from the situation in Lalonde, above. There, the Ontario Court of Appeal held that discontinuing health services in the French language violated the principle of the protection of minorities - an unwritten, underlying value of the Constitution. There was a direct connection between the conduct complained of and the constitutional principle relied on.

[21]            The logic of the applicant's argument is less straightforward. It argues that:

·            Aboriginal rights are protected under the Constitution, s. 35.

·            The Agreement is a manifestation of those rights.

·            The Agreement provides for fair and reasonable remuneration of NWMB members.

·            PCO's failure to reclassify the NWMB so that its members would receive higher daily fees amounts to a breach of the Agreement.

·            Any breach of the Agreement is a violation of the Constitution.

[22]            The connection between the conduct complained of (failure to reclassify the NWMB) and the alleged violation of the Constitution (breach of aboriginal rights) is tenuous. It is not clear to me that all parts of the Agreement necessarily have constitutional status. Further, there is no evidence before me that the Agreement has actually been violated. The Agreement requires that NWMB members be paid fairly and reasonably. The current daily fees are certainly modest, but are they unfair or unreasonable? I have no evidentiary basis on which to answer that question. Therefore, I can find no violation of the Constitution. Nor can I find any legal error on PCO's part in its failure to consider whether the remuneration of NWMB members was fair and reasonable. It was the responsibility of the Governor in Council, not PCO, to remunerate NWMB members fairly and reasonably.

(b)         Did PCO breach the principles of natural justice?

[23]            The applicant argues that PCO violated rules of natural justice by considering factors other than those on which it invited input from the board. In May 2001, PCO specifically asked the NWMB to make submissions about the remuneration of its members in accordance with PCO's guidelines.    It failed to do so. However, PCO ultimately made its decision not to reclassify the board, at least in part, based on other factors, including what it called the principle of "internal relativity". "Internal relativity" simply means that PCO compared the NWMB with other bodies and attempted to ensure that like organizations were treated similarly. The applicant suggests that the NWMB had a legitimate expectation that the decision whether to reclassify the board would be based solely on the guidelines. In addition, the applicant submits that it was not consulted before NWMB members' daily fees were revised in 2001, contrary to a prior agreement.

[24]            I do not see how the doctrine of legitimate expectations can apply in these circumstances. Sopinka J. outlined the basis of that doctrine in Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170. After citing various authorities, he said:

The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation. (At p. 1204.)

[25]            The doctrine of legitimate expectations requires decision-makers to provide those whose interests are at stake an opportunity to make submissions. It arises when the decision-maker's conduct clearly suggests that affected persons will be given a chance to make submissions before a decision will be made: Canada (Attorney General) v. Canada (Human Rights Tribunal), [1994] F.C.J. No. 300; (1994), 19 Admin. L.R. (2d) 69 (F.C.T.D.) (QL). Here, PCO clearly gave the NWMB an opportunity to make representations on the subject of its members' fees.

[26]            As for the alleged breach of an agreement to consult, the applicant points to the 1993 contract implementing the Agreement which includes a planning assumption that remuneration of Board members would be determined in consultation with "Designated Inuit Organizations". The applicant also refers to the minutes of a meeting of the Nunavut Implementation Panel in July 2001 at which there was some discussion of PCO's intention to review the remuneration of members of boards appointed by the Governor in Council. The subject of full-time versus part-time chairs for boards was also discussed. The minutes then state: "NTI (the applicant) and the Panel should be involved in these discussions". The applicant suggests that this passage expresses a promise by PCO to consult it on the subject of NWMB remuneration.

[27]            In my view, a planning assumption in the implementing contract does not create a binding obligation. Indeed, the contract itself so provides (s. 2(3)(c)). Further, the minutes of the Nunavut Implementation Panel meeting are ambiguous. I see no clear expression of a promise to consult in either document. In any case, as mentioned, PCO had already provided a full opportunity to the NWMB to make submissions on this issue and it failed to do so.

(c)         Did PCO make serious errors of fact?

[28]            The applicant alleges two errors by PCO. First, it says that PCO concluded, wrongly, that the NWMB had always been classified as a Category IV Board. Second, it says that PCO ignored the fact that bodies similar to the NWMB had recently been elevated from Category IV to Category II.

[29]            To repeat, when originally created in 1993, NWMB members were paid $200 a day and the Chairman $275 a day. Under the guidelines in force at the time, this placed the NWMB in the middle of the range of Category III Executive Boards. Under the revised guidelines released in 2000, the NWMB is listed as a Category IV Board. When PCO increased daily fees in 2001, NWMB members were given $225 a day (and the Chairman $325), which was at the mid-point of the Category IV range. If they had been paid according to the Category III scale, they would have received about $275 and $400 respectively.

[30]            When PCO responded to NWMB's request for increased remuneration, it stated that the board was "appropriately classified as Category IV Board". The applicant argues that PCO made a serious error of fact when it made that statement because the members of the NWMB had originally been paid as if the board had been classified in Category III.

[31]            PCO's guidelines and its classification system are flexible. The placement of a board in a particular category does not necessarily dictate the remuneration of its members. The guidelines themselves specify that the daily rates set out in it are maximums. Board members may be paid less than, and in special circumstances, more than, the fee range corresponding to the board's designated category. Accordingly, even if PCO had made a mistake about which category the NWMB had fallen within originally, it was entitled to find that its members' remuneration should now fall within Category IV. In other words, any mistake on PCO's part did not necessarily affect the remuneration of NWMB members.

[32]            The applicant also argues that PCO erred when it failed to treat the NWMB comparably to similar boards that received elevations to Category II. Those other bodies were appointed by the Minister of Indian and Northern Affairs, not the Governor in Council, but the same guidelines applied to them.

[33]            Under PCO's guidelines, the classification of boards and agencies is the product of three criteria:

·            the complexity and diversity of its sphere of activity;

·            the scope of its activity, ranging from the individual person or single, local facility, to the entire citizenry or whole industries of national significance;

·            the impact of its activity, ranging from ancillary attributes and peripheral concerns to basic rights, fundamental characteristics or essential well-being.

[34]            PCO applied these criteria, consulted with officials at the Department of Indian and Northern Affairs and concluded that the NWMB should be placed in Category IV. PCO officials stated that they also compared the NWMB with other similar boards. The applicant suggests that PCO, after considering these factors, should have placed the NWMB in Category II. However, I cannot find any serious error in PCO's approach or analysis that would justify the Court's intervention.

IV. Conclusion

[35]            PCO's decision not to reclassify the NWMB is not subject to judicial review because it did not have statutory authority to decide the remuneration of NWMB members. Even if it did, it did not make any legal errors or mistakes of fact that would justify the Court's intervention. Accordingly, this application for judicial review must be dismissed.

                                                                        JUDGMENT

THIS COURT'S JUDGMENT IS that:

1. The application for judicial review is dismissed with costs.

                                                                                                                                      "James W. O'Reilly"       

                                                                                                                                                               Judge             

                                                                              Annex