Docket: T-1649-11
Citation: 2012 FC 387
BETWEEN:
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CHIEF JESSE JOHN SIMON and COUNCILLORS
FOSTER NOWLEN AUGUSTINE,
STEPHEN PETER AUGUSTINE,
ROBERT LEO FRANCIS,
MARY LAURA LEVI,
ROBERT LLOYD LEVY,
JOSEPH DWAYNE MILLIEA,
JOSEPH JAMES LUCKIE TYRONE MILLIER,
MARY-JANE MILLIER,
JOSEPH DARRELL SIMON,
ARREN JAMES SOCK,
JONATHAN CRAIG SOCK AND
MARVIN JOSEPH SOCK on behalf of
themselves and the members of the ELSIPOGTOG FIRST NATION, and on behalf of
the MI’GMAG FIRST NATIONS OF NEW BRUNSWICK, and on behalf of the MEMBERS OF
THE MI’GMAG FIRST NATIONS OF
NEW BRUNSWICK
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Applicants
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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TABLE OF CONTENTS
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Paragraphs
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Introduction
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1
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Procedural History
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3
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Background
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5
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The Decision
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7
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The Delivery
of Income Assistance – The Manuals
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11
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Consultation
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19
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Mootness
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50
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The Test for
Interlocutory Relief
(i)
Irreparable Harm
(a)
Harm to First
Nations
(b)
The Recipients
(ii)
Balance of
Convenience
(iii)
Serious Issues
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61
64
65
72
80
82
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REASONS
FOR PREVIOUS ORDER ISSUED ON MARCH 30, 2012
SIMPSON J.
INTRODUCTION
[1]
The
applicants have brought a representative action. Chief Jesse John Simon and twelve
Councillors of Elsipogtog First Nation bring this motion on behalf of
themselves and the members of Elsipogtog First Nation. They also move on behalf
of the Mi’gmag First Nations of New Brunswick and their members [the
Applicants]. This motion [the Motion] is brought pursuant to section 18.2 of
the Federal Courts Act, RSC, 1985, c F-7 [the Act] and Rule 373 of the Federal
Court Rules (SOR/98-106) for an interlocutory injunction restraining the
implementation of a decision of the Minister of Aboriginal Affairs and Northern
Development Canada [the Minister and AANDC]. The decision requires First
Nations governments administering income assistance to First Nations people
living on Indian Act reserves in the provinces of Prince Edward Island, Nova Scotia and New
Brunswick
[Atlantic Canada] to do so at rates and standards identical to those set by the
provinces in which the First Nations are located. The injunction is to be in
force until the final disposition of the Applicants’ underlying application for
judicial review pursuant to sections 18 and 18.1 of the Act [the Application].
[2]
Elsipogtog
First Nation [Elsipogtog] is an Indian Band as defined in the Indian Act,
1985 RSC c I-5. It is situated on reserve land also known as Richibucto Reserve
No. 15 in rural New Brunswick. Members of Elsipogtog confront severe
poverty, with approximately 85% of the community receiving some form of social
assistance. On-reserve recipients of income assistance will be referred to as
“Recipients”. There are 2,390 registered Indians currently living on-reserve in
Elsipogtog.
PROCEDURAL HISTORY
[3]
This matter has
proceeded as follows:
·
Notice of Application
for Judicial Review filed on October 7, 2011;
·
Amended Notice of
Application filed on February 7, 2012;
·
On February 20, 2012
the Applicants filed their Notice of Motion seeking an injunction;
·
The Motion was heard
on March 21, 2012 and the record was completed on March 26, 2012, with the
submission of further material from the Respondent at the Court’s request;
·
April 1, 2012 is
the date of the event the Applicants seek to enjoin.
[4]
The following
evidence was filed for the Motion:
·
Two affidavits of
Chief Jesse Simon, Chief of the Elsipogtog First Nation, sworn on January 28,
2012 and February 23, 2012. Chief Simon is also the Mi’gmaq Co-Chair of the
Assembly of First Nations’ Chiefs of New Brunswick Inc. [the N.B. Chiefs], a
not-for-profit society representing thirteen First Nations in New Brunswick,
and a member of the Atlantic Policy Congress of First Nations Chiefs [the APC],
a policy and research advocacy secretariat for thirty-eight Chiefs, First
Nations, and communities in Atlantic Canada, Quebec, and Maine;
·
Two affidavits of
Suzanne Brown, a self-employed consultant to First Nations governments, sworn
on January 30, 2012 and February 22, 2012. Ms. Brown’s clients include the
Kingsclear First Nation and the Eel Ground First Nation, both located in New Brunswick. Applicants’ counsel stated at the
hearing that Ms. Brown does not consult for the Elsipogtog First Nation. Prior
to April 2008, Ms. Brown was employed in the Atlantic Regional Office of AANDC;
·
The affidavit of
Lawrence Dedam, Director of Social Development for the Elsipogtog First Nation,
sworn on January 28, 2012. The Social Development department is responsible for
delivering income assistance;
·
The affidavit of
Dougal MacDonald, Associate Regional Director General for the Atlantic Region,
AANDC, sworn March 8, 2012. Mr. MacDonald is responsible for overall management
and accountability for the delivery of AANDC programs to First Nations in
Atlantic Canada;
·
The affidavit of Barbara
Robinson, Manager of Social Programs, AANDC, sworn March 8, 2012. Ms. Robinson
is responsible for the management of the federal Income Assistance Program for
First Nations in the Atlantic Region;
·
Other than general
evidence in the above-noted affidavits, there is no evidence in the record from
the other First Nations represented in this Application.
BACKGROUND
[5]
The starting
point is a letter from Treasury Board to the Deputy Minister of Citizenship and
Immigration (Indian Affairs Branch) of July 23, 1964 which, when read
together with the related request to Treasury Board dated June 16, 1964,
says that income assistance to First Nations’ people on reserves across Canada is
to be provided using the standards (i.e. the rates and regulations) for income
assistance in force in the province or municipality in which the reserves are
located [the Directive].
[6]
In
Atlantic Canada, there has been non-compliance with the Directive since at
least 1991 and although non-compliance has also been a problem in other provinces,
it has now been corrected. The non-compliance occurred because, instead of
using the provincial rates as required by the Directive, AANDC and First
Nations, have used rates and standards that were “reasonably comparable” to
those in the province. This means that, at present, some individual Recipients
of income assistance on reserves in Atlantic Canada are treated differently in
terms of benefits and eligibility requirements than are the recipients of
provincial income assistance.
THE DECISION
[7]
It became
apparent, during the hearing of the Motion, that the parties do not agree about
the decision at issue in the Application.
[8]
As
originally filed, the Notice of the Application described the Minister’s
decision as one which changed income assistance rates. The amended Application
altered the description so that the decision is now described as one which
unilaterally imposes provincial social assistance rates and standards. In my
view, there is no doubt that the Applicants are seeking to set aside AANDC’s
initiative to enforce compliance with the Directive but they are not seeking to
set aside the Directive itself.
[9]
The
issue raised by Respondent’s counsel during the hearing of the Motion is
whether that initiative is properly characterized as a decision. The Respondent
says that the Directive is the only decision and that the initiative to enforce
the Directive which I will refer to as the “Policy” is not a decision.
[10]
The
difficulty is that this issue was not developed in the Respondent’s submissions
during the hearing of the Motion and is not discussed in its memorandum.
Accordingly, for the purposes of this Motion, the Policy will be treated as a
decision.
THE DELIVERY OF INCOME
ASSISTANCE – THE MANUALS
[11]
From
1964, when the Directive was issued, until the late 1970s, the federal
government administered income assistance and made payments directly to Recipients.
Then federal policy began to place greater emphasis on First Nations’ autonomy
and further to this policy shift, they began to administer income assistance
programs.
[12]
Since
1991, AANDC has provided regional and national program manuals which identify
policy priorities and establish the rates and eligibility criteria for income
assistance on reserves. Some First Nations have also developed their own policy
manuals.
[13]
In
1991, AANDC developed a regional manual called the Atlantic Office Social
Assistance Manual for New Brunswick. It required First
Nations to administer income assistance at provincial rates and standards but,
contrary to the Directive, the suggested rates were not identical to those in
the provinces.
[14]
In
1994, Elsipogtog prepared its own income assistance program manual called the
Etpiiteneoei Manual. It lists rates and standards and the Applicants’ evidence
is that Elsipogtog has been using it to administer income assistance on-reserve
since 1994.
[15]
The
earliest AANDC National Manual is a draft dated February 16, 2004. Contrary to
the Directive, it said in section 1.5 that, as a general principle, income
assistance would be delivered at standards reasonably comparable to
those applied in the province or territory where the reserve was located.
[16]
Subsequent
National Manuals were published in July 2006 and January 2007. Under the
heading “Program Principles”, in section 1.5.5., the manuals state that:
[T]he terms and conditions from Treasury
Board state that INAC must deliver the Income Assistance Program at rates and
eligibility criteria reasonably comparable to the host province or
territory. As a result, these rates and eligibility criteria are taken from the
provincial or territorial income assistance legislation.
[my emphasis]
[17]
On
July 11, 2011, AANDC prepared a draft Atlantic Region Social Programs
Manual [the Atlantic Manual] which applies to income assistance as well as
other social programs on-reserve in the Atlantic Region. This manual reflects
the Policy in that it does not speak of “reasonable comparability”. Instead, it
stipulates that “[t]he Income Assistance program on a reserve is administered
using the same rate structure and eligibility criteria as the parallel program
administered by the province for off reserve residents.” It also provides that
“[b]asic needs should follow the standards and rate schedules of the province.”
However, in January 2012, AANDC advised that this manual would not be used and
would be replaced by a revised National Manual.
[18]
According
to Dougal MacDonald, the replacement was the National Manual (2012). It was
provided to the Chiefs and Councillors in Atlantic Canada sometime in the three
week period before March 15 and, in mid-February 2012, it was given to
attendees at an AANDC “How To” Workshop which will be described later in these
reasons. The manual provides that the income assistance program is funded so
that “programs will be delivered at standards reasonably comparable to
those of the reference province/territory of residence”. However, the “amounts
payable for income assistance will be equivalent to the rates of the
reference province or territory”. Accordingly, this manual implements the Policy
as far as rates are concerned but appears to suggest that, contrary to the
Directive, provincial eligibility criteria need not be precisely followed.
CONSULTATION
[19]
The
record discloses that four different First Nations’ groups were involved in
communications and/or consultations with AANDC. The APC, the N.B. Chiefs, the
Assembly of Nova
Scotia
Mi’kmaq Chiefs [the N.S. Chiefs] and Elsipogtog. There is significant overlap
in the membership of these bodies. For example, in addition to his position as
Chief of Elsipogtog, Chief Simon is a member of both the APC and the N.B.
Chiefs. Nevertheless, in spite of the overlaps, these groups sometimes adopted
inconsistent positions.
[20]
On
April 19, 2011, having learned of the Policy, Chief Simon sent a letter on
behalf of the N.B. Chiefs to the Minister setting out detailed concerns and
urging collaboration between AANDC and the N.B. Chiefs. Chief Simon sent a brief
follow-up letter on July 19, 2011, but the N.B. Chiefs received no response to
either letter.
[21]
On
May 19, 2011, AANDC officials held a meeting with APC and advised that (1)
a draft Atlantic Manual was being finalized and (2) compliance with provincial rates
and standards would be mandatory, effective November 1, 2011. There is no
evidence that this meeting afforded an opportunity for consultation.
[22]
On
September 15, 2011, the N.S. Chiefs passed a motion in opposition to the
implementation of the National Manual (2012) which provided that income
assistance payments would be “equivalent” to provincial rates. Since this manual was
not finalized and distributed until 2012, I have concluded that the motion was
based on a draft of the manual.
[23]
On September 19,
2011, the N.B. Chiefs passed a resolution saying, in part, that they would not assist
AANDC in implementing cuts to social welfare programs. This refusal to assist
was said to endure until such time as the Government of Canada’s elected
representatives met with elected representatives of the N.B. Chiefs to discuss
social policy in good faith. They also resolved to take all legal means to
resist the Policy.
[24]
On
September 20, 2011, AANDC hosted an information meeting in Fredericton about the
draft Atlantic Manual. Chief Simon decided not to send a representative from
Elsipogtog to the information session for the following reasons:
·
Elsipogtog
was given the draft manual only two weeks before the meeting.
·
AANDC was
not collaborating with the N.B. Chiefs.
·
The
meeting was to give First Nations information – feedback from First Nations was
not sought.
·
Since the
implementation date for the Policy was November 1, 2011, it was obvious
that implementation would occur regardless of First Nations concerns.
·
Chief
Simon feared that if Elsipogtog members attended, AANDC would say that the
First Nation had been fully consulted.
[25]
By
this time, the N.B. and N.S. Chiefs were united in their opposition to the
Policy and were, in my view, justifiably annoyed. Chief Simon’s letters
inviting collaboration had been ignored and, although there had been a
presentation to the APC, there had been no effort to consult directly with any
First Nations about the Policy or its implementation.
[26]
On
September 21, 2011, AANDC’s Assistant Deputy Minister Ron Hallman met
with the APC’s Executive Director John Paul in Ottawa to discuss
concerns about on-reserve income assistance rates. In my view, this was the
first and only consultation about the Policy.
[27]
On
September 28, 2011, Dougal MacDonald of AANDC delivered a presentation about
the Policy to the APC. However, there is no evidence to suggest that the Chiefs’
views were solicited or discussed.
[28]
On
September 29, 2011, the APC passed a resolution to the effect that it was
angry and disappointed with AANDC and was supporting the N.S. and N.B. Chiefs
in their opposition to the Policy. However, and importantly, the APC also called
for the creation of a joint working group on social assistance involving
representatives of APC and AANDC [the Working Group] to discuss the
implementation of the Policy [the APC Resolution]. It said in part:
BE IT FURTHER RESOLVED Chiefs and AANDC
establish a joint committee comprised of 6 Chiefs and Senior AANDC staff to
develop a comprehensive work plan and budget to address all issues related
to the implementation of the AANDC Social Policy Manual for Income
Assistance.
[my emphasis]
[29]
In
my view, the APC Resolution shows that APC had decided that, since it appeared
inevitable that the Policy would be implemented on November 1, 2011, it
made sense to establish the Working Group to help AANDC understand and
hopefully mitigate the impact of the implementation.
[30]
October 7,
2011, the Applicants filed their Application for judicial review of the Policy.
[31]
A
Steering Committee of the Working Group [the Steering Committee] met on
Wednesday, October 19, 2011. Three representatives from Elsipogtog
attended the meeting. The minutes show that draft terms of reference for the
Working Group were discussed and that the implementation of the Policy and not
its merits was to be the focus of the discussions. The Working Group was to assemble
data to allow all parties to understand the impact of the Policy. In
particular, AANDC wanted to identify funding gaps so it could consider how to
address them with other support programmes. In this context, shelter was
expected to be an important issue. It is clear from the minutes that the
November 1st implementation date troubled the attendees. Discussions
about the date led to a statement by Sheilagh Murphy of AANDC indicating that
it needed to clarify the meaning of the November 1st date. At
the conclusion of the meeting, Regional Chief Morley Googoo said he intended to
ask the Minister to confirm that the results of the Working Group’s efforts
would be considered prior to implementation. In other words, he intended to ask
for an extension of the implementation date.
[32]
On
Monday, October 24, 2011, the Working Group met in Cole Harbour, Nova
Scotia. However, Chief Simon instructed his staff not to send a representative
from Elsipogtog to this meeting because he feared that their participation
would be used to justify consultation when the Policy was not being considered.
At the Working Group meeting, agreement was reached, inter alia, about tasks
to be undertaken and about how to collect data showing the impact of the Policy.
During the meeting, AANDC confirmed that the Wording Group would have until
April 1, 2012 to complete its work. The Working Group agreed to finish data
collection in November 2011 so that final recommendations could be ready by the
end of February 2012.
[33]
However,
on October 27, 2011, three events derailed the process:
(i)
The
N.S. Chiefs abandoned the Working Group;
(ii)
The
Minister failed to provide a meaningful new deadline; and
(iii)
The APC
halted the Working Group process.
I will discuss these events in turn.
[34]
On
October 27, 2011, the N.S. Chiefs resolved not to participate or engage
with AANDC and the APC regarding implementation of the Policy until the APC
confirmed that the Working Group was [not] directed at changing the social
assistance rates and terms applicable in Nova Scotia and was not
intended as a process to implement the National Manual (2012). This resolution
effectively meant that the N.S. Chiefs were withdrawing from the Working Group.
The reason for the N.S. Chiefs’ decision appears in a letter dated
November 16, 2011 from John Paul of APC to the Minister. It shows
that the N.S. Chiefs were concerned that participation in the Working Group
would be viewed by AANDC as acceptance and support of the Policy. The Minister
was asked to confirm that AANDC would not take that view and he was told that
the Working Group could not begin its work until an assurance to that effect
[the Assurance] was given.
[35]
On
October 27, 2011, the Minister sent a letter indicating his support for
the Working Group. Regarding the date for implementation he said:
Please accept my assurances that it is
not the Department’s intention to undertake compliance activities on Income
Assistance Program delivery while this collaborative work is underway. However,
it is necessary to ensure that these activities are completed in a timely
manner. I believe that the remainder of the current fiscal year, which ends on
March 31, 2012, will provide sufficient time to both conduct the work of
the Steering Committee and complete the full implementation of provincial
standards for Income assistance.
[36]
In
my view, this letter was not clear. It appears to say that implementation would
proceed to completion while the Working Group prepared its recommendations.
This suggests to me that AANDC would not necessarily take the Working Group’s
conclusions into account before full implementation of the Policy.
[37]
On
October 27, 2011, APC Executive Director John Paul told AANDC that he had
put an immediate halt to all discussions between APC and AANDC regarding income
assistance because the N.S. Chiefs had withdrawn their support from the Working
Group process.
[38]
On
October 28, 2011, the Minister met with John Paul of the APC in Halifax.
Unfortunately, there is no evidence about this meeting.
[39]
On
November 16, 2011, John Paul wrote to the Minister asking for the
Assurance. That letter is described above.
[40]
On
November 18, 2011, the N.B. Chiefs wrote to the Minister noting their
opposition to the Policy and saying:
Further, we are not currently supportive
of the “APC/AANDC joint work.” We have not received the terms of reference or
mandate of the working group and cannot endorse a process without knowing its
goals, objectives or operating procedures. It appears there are a number of
divergent views of the purpose and intent of the “APC/AANDC joint work.” The
matter needs clarification.
[41]
In
my view, this request for clarification was not made in good faith. Chief Simon
acknowledges in his affidavit that he had the minutes of the Working Group
meeting which set out the proposed tasks and timetables. Further, his representatives
were at the Steering Group meeting when the draft terms of reference were
discussed. Finally, the Working Group had been established pursuant to the APC
Resolution to deal with the “implementation” of the Policy. It is not credible,
in these circumstances, that the N.B. Chiefs needed the clarifications they
sought.
[42]
On
December 20, 2011, the Minister wrote to the APC asking them to
participate again in the Working Group and advising that “mandatory compliance”
with provincial rates and standards would be effective April 1, 2012. This
extension was meaningful because, if the Group had started work in November
2011 as planned, it would have had time to complete its data collection and
recommendations before the implementation date. However, because of the delay,
the time was tight and eventually a further extension of one or two months
might have been required.
[43]
In
this letter, the Minister also encouraged APC to return to the Working Group
and he provided the Assurance sought by the N.S. Chiefs. He said:
[…] The gathering of information on
income assistance caseloads and demographic trends, as well as the exploration
of best practices in the area of active measures and income assistance reform,
are activities which I hope can still be jointly undertaken by departmental
officials and First Nation leaders. The participation of any First Nation in
this information gathering exercise would not be interpreted by the Department
as an expression of support for the implementation of provincial eligibility criteria
and rates.
[44]
On
December 28, 2011, the Minister wrote to the N.B. Chiefs confirming the
April 1, 2012 implementation date and responding to their request for
information. He said:
[…]
The […] Steering Committee was still in
the early stages of development at the time its activities were interrupted,
and as such, a work plan and terms of reference were not finalized. I
understand that representatives from New Brunswick First Nations did attend the
Steering Committee meeting on October 19, 2011, and that these
representatives did have an opportunity to provide input into the draft terms
of reference. There are a number of divergent views on the Steering Committee’s
process; however, the Department is open to working with willing partners
within the context of this process or alternative mechanisms.
[45]
The
Minister also invited the N.B. Chiefs to identify an alternative to the Working
Group as a means to engage on implementation issues.
[46]
By
year end 2011, all the First Nations’ concerns about the Working Group had been
addressed. The deadline for implementation had been extended to April 1,
the Assurance was given and the Minister had responded to the N.B. Chiefs’
request for clarification. In my view, the AANDC was willing to continue
consultations and the First Nations failed to participate. There is no evidence
to explain why the Working Group did not reconvene in early January 2012.
[47]
It
is my conclusion that the First Nations’ Chiefs decided that consultation on
implementation was politically unpalatable because they could not explain to
Recipients why they were helping AANDC implement a Policy when they believed,
in the words of Applicant’s counse, that it would “make poor people poorer”.
[48]
The
last interaction occurred on February 15 and 16, 2012. On those dates,
AANDC held a “How To” workshop for social development administrators [SDAs] in Fredericton to work
through the implementation of provincial rates and standards according to the
National Manual (2012). Attendees at the meeting were provided with a copy of
the National Manual (2012) but, it does not appear that this was an opportunity
for consultation.
[49]
In
my view, given all this evidence, the First Nations are not in a position to
complain that they were not consulted about the implementation of the Policy.
They were consulted and chose to abandon the process. Whether they did so for
good reason need not be addressed on this Motion because, it is also clear that
there was never meaningful consultation about the merits of the Policy before
it was developed. Further, there was never any suggestion that the results of
the Working Group’s study of impact could delay or prevent the implementation
of the Policy.
MOOTNESS
[50]
To
understand this submission, it is important to know that AANDC provides funds
to First Nations to cover expenditures for activities such as Education, Social
Development (including a budget for income assistance) and community
Infrastructure (including a capital budget). This funding is provided
pursuant to an agreement called a Block Funding Arrangement [BFA].
[51]
Elsipogtog
entered into its current five-year BFA on March 20 2007 [the First Elsipogtog
BFA]. On March 2, 2012, Elsipogtog signed a new two-year BFA beginning April 1,
2012 [the Second Elsipogtog BFA]. It is noteworthy that the Policy will not
reduce the funding available to First Nations for income assistance under the
second BFA.
[52]
The
Respondent argues that this Motion is moot because Elsipogtog gave an
express commitment in both the First Elsipogtog BFA and Second Elsipogtog BFA to
deliver on-reserve income assistance in accordance with New
Brunswick’s
rates and standards.
[53]
Clause
4.4 of the First Elsipogtog BFA states:
4.0 Council’s Responsibilities
…
4.4 Responsibility for an the Provision
of Block Funded Services and Targeted Programs
4.4.1 The Council will provide the Block
Funded Services and Targeted Programs in accordance with the terms and
conditions of this Agreement, including the Delivery Standards set out in the
Schedules, applicable laws, and any written standards the Council may develop
in accordance with subsection 4.4.2.
4.4.2 The Council may develop its own
written standards for the delivery of Block Funded Services which standards
will, at a minimum, meet the Delivery Standards set out in Schedule 4 of this
Agreement.
[my emphasis]
[54]
The
relevant portion of Schedule 4 reads:
Provision of income assistance
The Council will ensure that services for
all Members and other individuals living on-reserve who are in need will be
delivered in accordance with:
…
(b) a formally defined and publicly
available benefit schedule specifying types of assistance available, rates of
assistance and conditions and criteria for eligibility of the reference
Province;
[my emphasis]
[55]
While
it is possible to interpret the phrase “in accordance with” as “equivalent to”,
this interpretation is not supported by the language of “reasonable
comparability” contained in the 2007 National Manual, which would have been the
governing national policy manual in place at the time. In my view, AANDC would
not have entered into a BFA which stipulated requirements which were different
from those found in its own policy manual. I have therefore concluded that the
First Elsipogtog BFA does not support the Respondent’s argument.
[56]
Clause
4.2 of the Second Elsipogtog BFA requires the First Nation to deliver the
programs for which funding is provided in accordance with the delivery
standards set out in its Schedules. Clause 8 of Schedule 1-A to the Second
Elsipogtog BFA also provides that:
The Council will administer the Income
Assistance Program in accordance with DIAND’s Income Assistance
Program – National Manual or any other approved program documentation
issued by DIAND and as amended from time to time.
[my emphasis]
[57]
The
Respondent argues that this passage in the Second Elsipogtog BFA refers to the
National Manual (2012), which requires that on-reserve income assistance be
delivered at rates “equivalent to” those in place in the province. However,
in my view, there are two reasons why this submission is not persuasive.
[58]
First,
the reference to the “Income Assistance Program – National Manual” is
the title of the 2007 National Manual. The National Manual (2012) is called the
“National Social Programs Manual” and, if the intention was to refer to
it, it is reasonable to conclude that the correct title would have been used.
[59]
Second,
the acronym “DIAND” (i.e. the Department of Indian Affairs and Northern
Development) is used with reference to the manual. This suggests that it refers
to the 2007 National Manual and not the National Manual (2012) because, by the
time the latter manual was produced, DIAND had become AANDC.
[60]
For
these reasons, I have concluded that the Applicants’ Motion is not moot.
THE TEST FOR
INTERLOCUTORY RELIEF
[61]
The Court’s authority to grant an
interlocutory injunction is set out in s. 18.2 of the Act and Rule 373 of the
Rules. Section 18.2 of the Act reads:
18.2 On an application for judicial
review, the Federal Court may make any interim orders that it considers
appropriate pending the final disposition of the application.
[62]
Rule
373 reads:
373. (1) On motion, a judge may grant an
interlocutory injunction.
(2) Unless a judge orders otherwise, a
party bringing a motion for an interlocutory injunction shall undertake to
abide by any order concerning damages caused by the granting or extension of
the injunction.
[…]
[63]
The
three-part test for injunctive relief was set out by the Supreme Court of
Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR
311 at para 43. The Applicants must demonstrate that: (i) the Applicants will
suffer irreparable harm; (ii) the balance of convenience favours the Applicants;
and (iii) there is a serious question to be tried.
(i) Irreparable Harm
[64]
The
Applicants argue that both First Nations and Recipients face irreparable harm.
(a) Harm
to First Nations
[65]
Before
dealing with these submissions, it is helpful to consider some background
information about First Nations’ financial arrangements, as they relate to
housing, and about differences in the way benefits are paid by Elsipogtog and
by New Brunswick.
[66]
The
construction of some housing on First Nations’ reserves is financed by loans
from the Canada Mortgage and Housing Corporation [CMHC] under section 95 of the
National Housing Act, RSC, 1985, c N-11. These loans are
guaranteed by ANNDC and, although they are sometimes referred to as mortgages,
they do not attach the land in any way.
[67]
At
the moment, if a Recipient lives in a home that was built with CMHC financing,
Elsipogtog repays CMHC by deducting amounts due from the Recipient’s income
assistance benefits. The First Nation pays those sums directly to CMHC. The
Recipient never sees this money which is commonly referred to as a “shelter
cost”. The First Nation handles utilities in the same way. Utilities are paid
directly by the First Nation on the Recipient’s behalf. The balance of the
money after shelter costs and utilities have been paid is remitted to the
Recipient on a weekly basis.
[68]
In
broad terms, the New Brunswick regime involves a comprehensive monthly
payment to Recipients. Under this scheme, the First Nation will not be
permitted to make any direct payments. Recipients will pay their own shelter
costs and utilities directly and will have to budget for their needs over a
one-month period.
[69]
There
is another important difference. Because New Brunswick’s income
assistance does not cover shelter costs, the First Nations will not be able to
give eligible Recipients money for shelter costs from their income assistance
budgets. However, AANDC has suggested a solution. Barbara Robinson who is
the Manager of Social Programs at AANDC has deposed that, once they no longer
pay CMHC for shelter, the First Nations will have surpluses in their income assistance
budgets. She says that such surpluses can be transferred to capital budgets and
then used for Recipients’ shelter and utilities payments.
[70]
It
became apparent at the hearing of the Motion that the Applicants are concerned that
AANDC may be planning to eliminate First Nations’ discretion to transfer surplus
funds out of income assistance budgets and instead require surpluses to be used
to develop programs called “active measures”. These programs are meant to
assist the unemployed to enter the workforce. Given this concern, at the
Court’s request, counsel for the Respondent contacted AANDC and assured the
Court that Barbara Robinson’s evidence is correct and that such transfers
are permitted under the Second Elsipogtog BFA. This being so, I am not
satisfied that First Nations will default on their CMHC loans and, even if that
occurred, it would not constitute irreparable harm because it can be
compensated in damages.
[71]
With
regard to the Applicants’ submission that there will be “administrative
dismantling” without the requested interlocutory relief, I have concluded that
they have not provided evidence that the Policy will cause more than administrative
inconvenience. In my view, such harm and any related costs are compensable in
damages.
(b) The
Recipients
[72]
On
June 11, 2012, AANDC advised the band that the total amount spent by
Elispogtog on social assistance under the Etpiiteneoei Manual was substantially
the same as the amount that would have been spent if New Brunswick rates and
standards had been applied. The differences were at the individual Recipient level.
This supports a conclusion that the irreparable harm, if it exists, may be
found in the impact of the Policy on Recipients and their families.
[73]
Regarding
the impact on individual Recipients, the most recent evidence in the record is
a comparison made in November 2010 of benefits paid under the Etpiiteneoei
Manual with those available in New Brunswick. It shows that New
Brunswick’s
rates are approximately $300.00 per month less than the rates paid on reserves.
This comparison was considered reliable as of February 22, 2011 because it
was included in an AANDC document of that date entitled Implementation
Strategy for Provincial Rate Structure for Income Assistance (Background
Information).
[74]
The
comparison reads as follows:
[…] a comparison of benefits paid to
individual families under the two structures in November 2010 reveals that most
clients would receive less under the provincial rate structure. A family of
four in New
Brunswick would
receive $908.00 per month under the provincial rate structure. A family [on
reserve] of similar size and circumstance received benefits totalling $1262.00,
although there were other families who received both larger and smaller
amounts. A single, employable individual would receive a comprehensive
allowance of $537.00 under the provincial rate structure. A single, employable
person [on reserve] received $802.28, although there were other individuals who
received both larger and smaller amounts.
[75]
While
some Recipients may experience reduced assistance, there is also the likelihood
that others will become ineligible and lose all their income assistance.
[76]
At
paragraph 38 of her affidavit, Barbara Robinson identifies four situations in
which a person would become ineligible once the Policy is implemented: (1) they have income that
exceeds the needs test under provincial criteria; (2) they belong to the
household of an individual who has income that exceeds the provincial needs
test; (3) they reside off-reserve; and (4) the have assets in excess of
provincial criteria which can be liquidated.
[77]
The
Ontario Superior Court has held that impoverishment, social stigma and the loss
of dignity associated with severe poverty can constitute irreparable harm. In El-Timani
v. Canada Life Assurance Co., [2001] OJ No 2648 (SC), 106 ACWS (3d) 526 an
insured individual with a severe back injury had been receiving disability
payments for four years when these benefits were abruptly terminated by his
insurer. In allowing an injunction requiring the insurer to continue paying the
insured’s benefits until trial, Madam Justice Molloy of the Ontario Superior
Court accepted at paragraph 9 that “the loss of enjoyment of life resulting
from a subsistence level existence pending trial is not calculable in money.”
[78]
This
issue was also considered in Ausman v Equitable Life Insurance Co. of Canada,
[2002] OJ No 3066 (SC), 114 ACWS (3d) 1096. At paragraph 52, Mr. Justice
Henderson said:
The
long term effect of the loss of security and the impoverished lifestyle
constitutes more than the loss of money. It constitutes irreparable harm.
[79]
In
my view, the estimated decline in income assistance rates under the Policy and
the potential for ineligibility will cause emotional and psychological stress
amounting to irreparable harm for some Recipients. Individuals who are reliant
on income assistance are especially vulnerable even to small changes in the
resources available to meet their basic needs and, for this reason, I have
concluded that the Applicants have demonstrated irreparable harm.
(ii) Balance of
Convenience
[80]
If
the injunction is granted, the Policy will not be implemented on April 1,
2012 and the Applicants say that this is the better outcome because Recipients
will not be adversely affected pending a decision on the Application and
because compliance is not an urgent matter given that ANNDC and First Nations
have been non-compliant for many years.
[81]
In
my view, the Applicant’s have succeeded on this issue.
(iii) Serious
Issues
[82]
The
Applicants suggest that there are three serious issues. I will deal with them in
turn.
[83]
The
Applicants say that, although this case does not concern an Aboriginal or
Treaty right, they were entitled to be consulted before the Policy was adopted.
In my view, it is arguable that procedural fairness requires consultation about
the Policy and not just its implementation. In Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2
SCR 817, paras 21-28, the Supreme Court held that the duty of fairness is
variable and that its content is determined in the specific context of each case
according to a number of factors. Those factors included: (i) the nature of the
decision being made and the process followed in making it; (ii) the nature of
the relevant statutory scheme; (iii) the importance of the decision to the
individuals affected (iv) the legitimate expectations of the individual
challenging the decision; and (v) the decision-maker’s own choices of procedure.
[84]
The Court also
emphasized, at para 22, that:
[U]nderlying
all these factors is the notion that the purpose of the participatory rights
contained within the duty of procedural fairness is to ensure that
administrative decisions are made using a fair and open procedure, appropriate
to the decision being made and its statutory, institutional, and social
context, with an opportunity for those affected by the decision to put forward
their views and evidence fully and have them considered by the decision-maker.
[85]
In
my view, given that the Policy was adopted to achieve compliance with the
Directive, and that there is no legislative scheme in play, the first two
factors weigh in favour of the Respondent’s argument that meaningful
consultation was not required. However, based on the significant impact of the
Policy on Recipients, and on the Applicant’s submission that they expected to
be consulted before the Policy was adopted, the third and fourth factors
suggest that meaningful consultation may be required.
[86]
Regarding AANDC’s own
choice of procedure, it is not clear that AANDC made any procedural choices.
For this reason, I have concluded that the fifth Baker factor is not
relevant.
[87]
Because Baker
may require the AANDC to consult First Nations about how to comply with the
Directive, I am satisfied that there is a serious issue.
[88]
In view of this
conclusion, it is not necessary to consider the Applicants’ submissions about
improper delegation or legitimate expectation.
[89]
The Applicants also
argued that a requirement for meaningful consultation is grounded in the sui
generis relationship between the Crown and First Nations, citing Mushkegowuk
Council v. Ontario, [1999] 4 CNLR 76, 1999 CanLII 15034 (Ont SC), and
informed by Canada’s public law duties to cooperate in good faith with
Indigenous people regarding the implementation of administrative measures that
affect them pursuant to Articles 19 and 21 of the United Nations Declaration
on the Rights of Indigenous People and by a 2011 Status Report to the House
of Commons by the Auditor General of Canada. Moreover, at the hearing
Applicants’ counsel pointed to a now expired Political Accord signed in 1998 by
Canada and the Mi’kmaq and Maliseet First Nations Chiefs of New Brunswick, Nova
Scotia and Newfoundland and Labrador. However, given the finding
of serious issue described above, it is not necessary to deal with these
submissions.
[90]
For all these
reasons, an order was made on March 30, 2011, granting the Motion.
“Sandra J. Simpson”
April 2, 2012
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