Docket: T-2521-14
Citation:
2015 FC 1388
Ottawa, Ontario, December 14, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ROSE JONES,
DORIS EDWARDS, AND BOBBY HALF BY HIS LITIGATION GUARDIAN ROSE JONES
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Applicants
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and
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SADDLE LAKE CREE NATION AND SADDLE LAKE CHIEF AND COUNCIL OF THE SADDLE LAKE CREE NATION
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Respondents
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JUDGMENT AND REASONS
[1]
In June 2014, the Chief and Council of the
Saddle Lake Cree Nation (SLCN) decided to reassign a house, then occupied by
the applicants – sisters Rose Jones and Doris Edwards, and Rose’s disabled son,
Bobby Half. Until his death in April 2014, Rose and Doris’s brother, Jonas
Half, had also lived in the house. Before he died, he wrote a will in which he expressed
his wish that Rose, Doris and Bobby remain in the home, where they had been
living for 23, 15 and 51 years respectively.
[2]
At a meeting attended by four of Rose and
Doris’s siblings (but not Rose and Doris), the Chief and Council of the SLCN reassigned
the house to their brother Raymond and sister Wendy. In a letter to the
applicants in which the SLCN informed them of the assignment, the Chief and
Council stated that the house had been reassigned pursuant to a motion made on
June 3, 2014 and that Raymond and Wendy “will have full
access to the house immediately and the door will be open for all the family
members”.
[3]
While the letter seemed to indicate that all
family members would have access to the house, it was obviously not interpreted
that way by Raymond and Wendy, or by the Alberta Court of Queen’s Bench, which
ordered the applicants to vacate the home in September 2014. (The enforcement of
that order was later stayed.)
[4]
The applicants now seek to set aside the SLCN’s
decision regarding the house. SLCN’s decision relates to a public matter and is
reviewable in this Court.
[5]
When the matter came before Justice Shore earlier this year, he encouraged the parties to attempt to mediate their
differences. Mediation did not succeed. Therefore, the matter now comes before
me for a determination of the applicants’ application for judicial review.
[6]
The applicants’ principal claim is that the SLCN
arrived at its decision without notifying them that an issue regarding the
occupancy of the home was before it. Therefore, the applicants did not have an
opportunity to appear before the Chief and Council or to make any submissions
on their own behalf. In fact, the applicants have not received any explanation
for the decision; nor have they been provided minutes of the SLCN’s meeting or
a copy of the underlying band resolution.
[7]
SLCN has not filed any evidence on this
application relating to how the matter came before it or why the decision was
made. However, SLCN Councillor Shannon Houle did appear before me on behalf of
the SLCN Chief and Council. She read to me a letter dated September 16, 2015,
signed by the Chief and Council, responding to a human rights complaint filed
by Rose. The letter explains that the SLCN Chief and Council reassigned the
house to Raymond and Wendy because, at the time, Raymond was in need of
accommodation due to a terminal illness, and he relied on Wendy for care. It
also confirms that SLCN’s intention was to make the house available to all
family members. In addition, Ms Houle explained to the Court that the SLCN is
doing its best to bear the onerous responsibility for administering an
extremely scarce resource – housing.
[8]
In the circumstances, SLCN had a duty to inform
the applicants that the issue of occupancy was coming before the Chief and
Council, and to provide them with sufficient information to enable them to
prepare a response. Further, they were entitled to an opportunity to make
representations before the Chief and Council. These are the basic requirements
of the duty of fairness: Lakeside Colony of Hutterian Brethren v
Hofer, [1992] 3 S.C.R. 165 at para 80. In addition, given the importance of
the issue to the applicants, they were entitled to receive reasons.
[9]
Fairness is not a technical legal concept. Fairness
helps ensure that public decision-makers have before them the information that
is required to arrive at a just conclusion. Further, it assures those who are
affected by a decision that their point of view was heard. By contrast, they
will naturally be less inclined to accept the result if denied an opportunity
to participate in the process leading up to it. In this way, fairness fosters
respect for the rule of law.
[10]
For these reasons, I find that the SLCN’s
decision must be set aside. I have no jurisdiction to grant the other remedies
the applicants are seeking – an order allowing them to move back into the house,
monetary compensation for their alternative housing expenses, and costs in the
amount of $25,000.00.
[11]
I can only order the SLCN Chief and Council to
reconsider its decision and, in doing so, to honour the duty of fairness. However,
I will direct the Chief and Council to convene a meeting to address this issue
on an expedited basis, and grant the applicants a portion of their costs. Ms
Houle informed me that the SLCN’s financial resources are limited but, again, I
have no actual evidence before me on the point. I would grant the applicants
costs in the amount of $1,000.00.
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