Docket: T-722-12
Citation:
2015 FC 1113
Ottawa, Ontario, September 24, 2015
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
|
SAGKEENG FIRST
NATION
|
Applicant
|
and
|
ATTORNEY
GENERAL OF CANADA AND THE MINISTER OF ABORIGINAL AFFAIRS AND NORTHERN
DEVELOPMENT CANADA
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Respondents
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision issued by Ms. Nadine Stiller, Director, Funding Services Operations,
Manitoba Region, Aboriginal Affairs and Northern Development Canada (“AANDC”),
dated March 7, 2012. The decision was to only partially fund the Sagkeeng
First Nation’s (“Sagkeeng” or “Band”) employer contributions to its defined
benefits pension plan for its teachers, The Retirement Plan for the Employees
of the Sagkeeng First Nation (“Pension Plan”). The application is brought
pursuant to s 18.1 of the Federal Courts Act, RSC 1985, c F-7 (“Federal
Courts Act”).
Background
[2]
Sagkeeng is legally known as the Fort Alexander
Indian Band and is located in the province of Manitoba. The Government of
Canada, by way of the Department of Indian and Aboriginal Affairs, now the
Department of Aboriginal Affairs and Northern Development Canada and known as
AANDC, administered education for Sagkeeng until 1974. At that time, AANDC
delegated its responsibility in this regard to Sagkeeng. As a result, Sagkeeng
became the employer of the teachers, who had previously been federal public
servants, and transitioned those personnel to its Pension Plan. As the
employer of the teachers, Sagkeeng was responsible for making the employer
contributions to the Pension Plan.
[3]
The Pension Plan is a defined benefits plan (“DB
Plan”). This means that its contributions are calculated with reference to
maintaining a fixed benefit amount and, therefore, employer contributions may
fluctuate with the market and investment choices of the plan administrator.
This is unlike a defined contribution pension plan (“DC Plan”), where employer
contributions are fixed.
[4]
Pursuant to the Pension Benefits Standards Act,
1985, RSC 1985, c 32 (2d Supp) and the Pension Benefits Standards
Regulations, 1985, SOR/87-19, all pension plan deficiencies are to be
remedied by additional employer contributions, referred to as special payments,
to maintain the defined level of benefits.
[5]
AANDC provides funding to Sagkeeng for payment
of its employees’ benefits through the Band Employees Benefits Program (“BEB
Program”), the particulars of which are set out in the Band Employee Benefits
Program Policy (“BEB Policy”). AANDC and Sagkeeng enter into an annual funding
arrangement (“FA”), which serves as the vehicle by which funding is actually
received by Sagkeeng. The BEB Policy sets express limits on the amount that
AANDC will fund employer contributions to DC Plans. It also contains an
exemption for three DB Plans, including the Pension Plan. The exception does
not provide an upper limit but instead provides that funding will be based on
Actuarial Valuation Reports (“AVR”s).
[6]
An AVR for the fiscal period ending August 31,
2008 identified, for the first time since its inception, that the Pension Plan
was in a deficit position. The Pension Plan remained in a deficit position in
the fiscal years 2009–2012, and Sagkeeng, as the employer, was required to make
special payments to keep the Pension Plan solvent. Sagkeeng requested
additional funding from AANDC to cover the cost of the special payments. In
August 2010 AANDC advised Sagkeeng that special payments were not eligible for
funding.
[7]
Sagkeeng requested adjudication pursuant to the BEB
Policy’s dispute resolution mechanism. The parties agreed to waive the
requirement under that mechanism to proceed in the first instance with the
adjudication before the Regional Director General of AANDC (“RDG”). Instead, a
dispute resolution with the Director General, Governance (“DG”), was scheduled
for January 5, 2011, this was later adjourned to February 8, 2011. On February
3, 2011, Sagkeeng cancelled the proceeding and advised by letter of March 9,
2011 that it could not proceed until it had received all relevant documents.
[8]
On March 7, 2012, Ms. Stiller sent a letter to
Sagkeeng confirming a meeting scheduled for March 9, 2012 and advising that
AANDC had reconsidered its position concerning funding to be provided for the
Pension Plan. This resulted in the payment of additional, but not full funding.
That decision is the subject of this application for judicial review.
Decision Under Review
[9]
Given its brevity, the whole March 7, 2012
decision is set out below.
Dear Chief and Council:
Re: Meeting Scheduled March 9, 2012 –
Band Employees Benefits Funding
This letter is to confirm the meeting
scheduled for 1:00 pm Friday March 9, 2012 at the AANDC offices at 365 Hargrave
Street, Winnipeg, MB. The purpose of the meeting is to discuss the BEB funding
issues that have been disputed by your First Nation.
In advance of the meeting please note AANDC
has reconsidered its position regarding funding to be provided for the Sagkeeng
Defined Benefit Pension Plan, which results in additional BEB funding of $890,504.00.
If you have any questions on this matter,
you can reach me at […]
Yours truly,
Nadine Stiller
Director, Funding Services Operations
Manitoba Region
Issues
[10]
The issues can be formulated as follows:
i.
Does this Court have jurisdiction to hear this
application for judicial review?
ii.
Is the application for judicial review
premature?
iii.
Did AANDC commit a reviewable error?
Standard of Review
[11]
The first step in determining the appropriate
standard of review is to ascertain whether existing jurisprudence has already
resolved, in a satisfactory manner, the degree of deference owed to a
particular category of question. If it has not, the Court must engage the
second step, which is to determine the appropriate standard having regard to
the nature of the question, the expertise of the tribunal, the presence or
absence of a privative clause, and the purpose of the tribunal (Dunsmuir v
New Brunswick, 2008 SCC 9 at paras 51-64 [Dunsmuir]; Agraira v
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48).
[12]
In this matter the parties agree that the
standard is reasonableness but provide no authorities previously establishing
this in similar circumstances. I agree, however, that applying the Dunsmuir
criteria in these circumstances leads to that standard. The decision under
review was made in the context of the BEB Program and pursuant to the BEB Policy.
Thus, while there is no enabling legislation that creates a tribunal or informs
the decision-maker, this is an administrative decision concerning pension policy
and funding. The Federal Court of Appeal in Elsipogtog First Nation v
Canada (Attorney General), 2015 FCA 18 [Elsipogtog FCA] has recently
dealt with the standard of review in analogous circumstances. In Elsipogtog
FCA, the Court found that the reasonableness standard applied to the
Minister’s interpretation of a Memorandum of Understanding that circumscribed
his powers in the administration of an income assistance program. The
Minister’s special familiarity with the terms of the Memorandum of Understanding
justified a deferential standard of review. In my view, the interpretation of
the BEB Program and BEB Policy in this case is a similar circumstance. Further,
questions of fact, discretion and policy, as well as questions where the legal
issues cannot be easily separated from the factual issues, generally attract a
standard of reasonableness (Dunsmuir at paras 51, 53).
[13]
Reasonableness is concerned with the existence
of justification, transparency and intelligibility within the decision making
process but also with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir
at paras 45, 47-48; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 59, 62).
Preliminary Issue – admission of new evidence
[14]
Pursuant to a case management Order dated
January 19, 2015, the Respondents filed a supplementary memorandum of fact and
law seeking to have admitted into evidence, at the judicial review hearing, a
statement of claim attached as Exhibit “A” to an affidavit of Ms. Lisa
Cholosky, counsel with the Department of Justice (“DOJ” ), affirmed on February
5, 2015. Ms. Cholosky states in her affidavit that she was assigned as counsel
on September 3, 2014, that on November 25, 2014 she accepted service of the
statement of claim and that she had no prior knowledge of the filing of it nor
did a review of DOJ’s file reflect prior knowledge of the claim.
[15]
The statement of claim is as between Acting
Chief Derrick Henderson and Band Councillors: Kirby Swampy, Lyle Morrisseau and
Joseph Daniels on their own behalf and on behalf of Sagkeeng First Nation also
known as Fort Alexander Indian Band No. 262 and its members and on behalf of
the Members of the Retirement Plan for employees of the Fort Alexander Indian
Band, Plaintiffs, and Her Majesty the Queen in Right of Canada as represented
by the Minister of Aboriginal Affairs and Northern Development Canada and the
said Minister of Aboriginal Affairs and Northern Development Canada and the
Attorney General of Canada, Defendants, filed in the Queen’s Bench of Manitoba,
Winnipeg, as Court File No. Cl 14-01-91171 (“MBQB Statement of Claim”).
[16]
The MBQB Statement of Claim, seeks, amongst
other things, a declaration that the defendants therein are obliged, pursuant
to an agreement or otherwise, to pay for the full costs, including special
payments, of the contributions of Sagkeeng to the Pension Plan; special damages
for all pecuniary losses including penalties, interest and fees resulting from
the failure of the defendants to make the required contributions; general
damages; aggravated, punitive and exemplary damages; and, interest and costs.
The MBQB Statement of Claim sets out five causes of action: breach of contract,
misrepresentation, interference with contractual relations by unlawful means,
unjust enrichment, and, breach of fiduciary duty.
[17]
As to breach of contract, Sagkeeng asserts that
prior to the establishment of the Pension Plan an express or implied agreement
existed between it and the defendants which included a material term or
condition that the defendants would pay Sagkeeng the full costs, including
special payments, of its contributions to the Pension Plan. As to
misrepresentation, Sagkeeng asserts that the defendants represented to it,
prior to the establishment of the Pension Plan and on an ongoing basis
throughout its administration, that the defendants would pay Sagkeeng the full
costs, including special payments, of the required Pension Plan contributions.
The defendants owed a private law duty of care in making the representation to
take reasonable care to ensure its accuracy.
[18]
Sagkeeng also asserts that the defendants
unlawfully interfered with their ability to fulfil their obligations under the
Pension Plan as a result of the defendants’ refusal to provide the funding as
required by agreement, the BEB Policy or otherwise and that the defendants were
unjustly enriched. Further, that the relationship between Sagkeeng and the
defendants is a fiduciary relationship giving rise to a fiduciary duty of care
which was breached by the failure to provide full funding of the Pension Plan
contributions.
[19]
Sagkeeng claims that, as a result of these
breaches, it has and will continue to suffer loss and damage with respect to
the unpaid normal contributions, unpaid special contributions, interest and of
penalties with respect to the unpaid contributions, loss and damage resulting from
the use of other resources by Sagkeeng to pay the amounts that should have been
paid by the defendants including reduction in programmes and support such as
housing and housing maintenance, infrastructure as well as loss and damage to
the members of the Pension Plan as a freeze on or reduction of benefits.
Respondents’ Position
[20]
The Respondents assert that the MBQB Statement
of Claim meets the new evidence requirements of Rule 312 of the Federal
Courts Rules, SOR 98/106 (“Federal Courts Rules”) and the test set
out in Atlantic Engraving Ltd v Lapointe Rosenstein, 2002 FCA 503 at
paras 8-9.
[21]
Further, that it will assist the Court because
it demonstrates that, at their core, Sagkeeng’s issues are less about a
particular delegated authority involved in the process of making a specific
decision, and more about damages and a determination of any ongoing obligations
arising from an alleged contractual relationship between Sagkeeng and Canada (Manuge
v Canada, 2010 SCC 67 at paras 17-22 [Manuge]).
[22]
Further, Nation Huronne-Wendat v Canada,
2014 FC 91 at para 29 [Huronne-Wendat FC], aff’d 2014 FCA 264 which considered
a very similar claim, addressed the question of whether the claim ought to have
been proceeded by a judicial review. The Respondents submit that the Court in
that case referred to Canada (Attorney General) v TeleZone Inc, 2010 SCC
62 at para 76 [TeleZone] which stated “If the
Plaintiff has a valid cause of action in damages he or she is normally entitled
to pursue it” and reasoned that the primary distinction between a
judicial review and a claim of damages is the nature of the remedies sought. That
reasoning favours an action for damages in this matter. The Respondents also
submit that the Crown ought not to be put to answering multiple proceedings
when one will serve.
Sagkeeng’s Position
[23]
Sagkeeng submits that the test for leave in
filing an additional affidavit pursuant to Rule 312 is not in dispute and was
recently restated in Forest Ethics Advocacy Assn v Canada (National Energy
Board), 2014 FCA 88 [Forest Ethics]. There are two preliminary
requirements that must be met: is the evidence admissible on the application
for judicial review and is it relevant to an issue properly before the Court?
Only if it meets these requirements should the Court go on to consider whether
to exercise its discretion and, in that regard, referring to the guiding principles
of whether the evidence could have been available with the exercise of due
diligence, whether it assists the Court, and, whether it causes substantive or
serious prejudice to the other party.
[24]
The general rule in applications for judicial
review is that, subject to certain exceptions, the evidentiary record before
the Court is restricted to the evidentiary record that was before the
administrative decision-maker whose decision is the subject of the review (Assn
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency,
2012 FCA 22 at paras 19-20 [Assn of Universities].
[25]
Sagkeeng submits that the evidence contained in
the Cholosky Affidavit was not before the decision-maker in this case and does
not fall within an exception to the general rule.
[26]
Further, that the Respondents do not take issue
with the Court’s jurisdiction to review the impugned decision. Nor was the
argument that the dispute between the parties should be resolved by way of an
action for damages made by the Respondents in the first instance and it is not
an argument that requires evidence to advance. In effect, the Respondents seek
a stay of proceedings without advancing an application seeking that remedy as
required by s 50 of the Federal Courts Act. Sagkeeng submits that the
Court should not exercise its discretion to admit the Cholosky Affidavit in
these circumstances.
[27]
However, even if the affidavit is admitted, Manuge,
Huronne-Wendat FC and TeleZone are distinguishable as they all
address situations where the issue to be decided was whether an action should
be stayed on the basis that the relief sought should have been obtained by
means of an application for judicial review. Here Sagkeeng seeks a
determination of its judicial review application in advance of its action for
damages.
[28]
And, although Sagkeeng’s Notice of Application
does request relief in the nature of damages, its application record limits the
relief sought to remedies specifically dealing with the impugned decision and
not monetary compensation.
[29]
Further, while the Respondents have not yet
filed a defence to the MBQB Statement of Claim, their defence could allege that
the action amounts to a collateral attack on the impugned decision. That is,
because it was open to Sagkeeng to challenge the validity of the decision and,
as it was not overturned, it is now bound by it. Accordingly, by filing the
action Sagkeeng seeks to avoid a potential procedural pitfall.
[30]
Sagkeeng also submits that this proceeding
involves arguments that cannot be dealt with by the MBQB Statement of Claim
such as whether the Respondents abused their discretion, made erroneous or
unreasonable considerations in order to make the decision and whether it is
discriminatory. Conversely, the action seeks damages under a number of causes of
action unrelated to the impugned decision, although the ultimate goal to obtain
additional funding with respect to the Pension Plan, is the same.
[31]
Moreover, the Respondents are asking this Court
to limit the avenues for relief available to Sagkeeng on the basis that doing
so would be more convenient for the Respondents. However, where a valid
application for judicial review has been advanced, the Court should not decline
jurisdiction on the basis that it looks like a case that should be pursued by
way of an action for damages (TeleZone at para 76) and in this case
jurisdiction is not in dispute.
Analysis
[32]
Rule 312 permits a party, with leave of the
Court, to file affidavits additional to those provided for in Rules 306 and
307.
[33]
As stated by Justice Stratas in Forest Ethics:
[4] At the outset, in order to obtain
an order under Rule 312 the applicants must satisfy two preliminary
requirements:
(1) The evidence must be
admissible on the application for judicial review. As is well known, normally
the record before the reviewing court consists of the material that was before
the decision-maker. There are exceptions to this. See Gitxsan Treaty Society
v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages 144-45 (C.A.); Association
of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22.
(2) The evidence must be
relevant to an issue that is properly before the reviewing court. For example,
certain issues may not be able to be raised for the first time on judicial
review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654.
[5] Assuming the applicants establish
these two preliminary requirements, they must convince the Court that it should
exercise its discretion in favour of granting the order under Rule 312. The
Court exercises its discretion on the basis of the evidence before it and
proper principles.
[6] In Holy Alpha and Omega Church
of Toronto v. Canada (Attorney General), 2009 FCA 101 at paragraph 2, this
Court set out the principles that guide its discretion under Rule 312. It set
out certain questions relevant to whether the granting of an order under Rule
312 is in the interests of justice:
(a) Was the evidence sought to
be adduced available when the party filed its affidavits under Rule 306 or 308,
as the case may be, or could it have been available with the exercise of due
diligence?
(b) Will the evidence assist
the Court, in the sense that it is relevant to an issue to be determined and
sufficiently probative that it could affect the result?
(c) Will the evidence cause
substantial or serious prejudice to the other party?
[34]
In my view the Cholosky Affidavit, and more
particularly the MBQB Statement of Claim, is not admissible. First, as pointed
out by Sagkeeng, it was not before the decision-maker when the decision to
refuse to fully fund the Pension Plan contributions was made, on that basis
alone it should not be admitted (Assn of Universities at para 19). The
Respondents do not submit that the Cholosky Affidavit falls within any
exception to the general rule that the record before the reviewing court
consists of the material that was before the administrative decision-maker.
Further, in my view, not only does the affidavit not fall within any of the
exceptions, it also does not serve to provide general background as the
information it contains does not assist in understanding the issues relevant to
this judicial review (Assn of Universities at para 20). Further, it is
not relevant to the issue of whether AANDC committed a reviewable error in
making the decision to deny full payment of all Pension Plan contributions.
[35]
The Cholosky Affidavit does not assist the Court
both because it is not relevant and because it is not sufficiently probative to
affect the result. The existence of the MBQB Statement of Claim and its
content will have no impact on the relief sought as described in the Sagkeeng’s
written representations, being a declaration that the decision is invalid,
quashed and/or of no force and effect, or, an order quashing the decision and
referring it back to AANDC for redetermination on such terms as this Court
deems just. Or, as I have framed this issue, a determination of whether the
decision is reasonable.
[36]
The Respondents submit that the Cholosky Affidavit
will assist the Court as it demonstrates that Sagkeeng’s issues are not about
delegated authority involved in the process of making a specific decision but
are about damages. However, as noted above, the relief sought by way of
Sagkeeng’s written representation concern the decision, not damages. Further,
even if that were not so, it is unclear to me what impact the admission of the impugned
affidavit could have on the outcome of the judicial review. As pointed out by
Sagkeeng, the Respondents assert that the “preferred
procedure” for addressing the issues is an action. Yet the Respondents
do not bring a motion seeking to stay the application for judicial review as
would be required by s 50 of the Federal Courts Act or even explicitly
submit that the Court should exercise its discretion in that regard. Nor do
the Respondents suggest that the application for judicial review should be
converted to an action pursuant to Rule 18.4(2).
[37]
I am also not convinced that the application for
judicial review is a disguised claim for damages. As Sagkeeng admits, the
ultimate goal of both the application and the action is the same, being full
payment of the Pension Plan contributions by the Respondents, however, the essential
character of the application pertains to the impugned decision in refusing to
do so while the action pertains to the payment of damages. Subsection 18.1(3)
of the Federal Courts Act does not permit damages to be awarded on an
application for judicial review. In order to seek damages, the application must
be converted to an action, either by seeking a direction from the Court under s
18.4(2) of the Federal Courts Act or by discontinuing the application
and issuing a statement of claim (TeleZone).
[38]
In TeleZone the Supreme Court of Canada
stated that:
[18] This appeal is fundamentally about
access to justice. People who claim to be injured by government action should
have whatever redress the legal system permits through procedures that minimize
unnecessary cost and complexity. The Court’s approach should be practical and
pragmatic with that objective in mind.
[19] If a claimant seeks to set aside
the order of a federal decision maker, it will have to proceed by judicial
review, as the Grenier court held. However, if the claimant is content
to let the order stand and instead seeks compensation for alleged losses (as
here), there is no principled reason why it should be forced to detour to the
Federal Court for the extra step of a judicial review application (itself sometimes
a costly undertaking) when that is not the relief it seeks. Access to justice
requires that the claimant be permitted to pursue its chosen remedy directly
and, to the greatest extent possible, without procedural detours.
[39]
In my view, this confirms that the choice of how
to proceed lies with the applicant when there is more than one procedural
avenue open to it. Here Sagkeeng seeks to set aside the administrative
decision to only partially fund the Pension Plan. If it succeeds, then it is
possible that it may not be necessary for it to pursue its action for damages.
[40]
And, while the Respondents rely on paragraph 76
of TeleZone which states:
Where a plaintiff’s pleading alleges the
elements of a private cause of action, I think the provincial superior court
should not in general decline jurisdiction on the basis that the claim looks
like a case that should be pursued on judicial review. If the plaintiff has a
valid cause of action for damages, he or she is normally entitled to pursue it.
I agree with Sagkeeng that this is of little
assistance to the Respondents in these circumstances as the jurisdiction of
this Court to hear the application for judicial review is not in issue.
[41]
Nor does Manuge assist the Respondents.
There the Supreme Court found that the pleadings in issue, at their core,
represented a claim for alleged breaches of s 15(1) of the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act, 1982 (UK), 1982 c 11and, therefore, that
the action need not be stayed in favour of an application for judicial review.
It also stated:
[17] Following TeleZone, there
is no question that the Federal Court has jurisdiction to entertain Mr.
Manuge’s claim as an action for damages: Federal Courts Act , s. 17(1)
; Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 , s. 21 ; TeleZone,
at paras. 19-23 and 43-46; Canada (Attorney General) v. McArthur, 2010
SCC 63, [2010] 3 S.C.R. 626, at para. 17; Nu-Pharm Inc. v. Canada (Attorney
General), 2010 SCC 65, [2010] 3 S.C.R. 648, at para. 16. Mr. Manuge’s
pleadings disclose claims against the Crown seeking remedies that the Federal
Court has authority to grant in an action.
[18] But under TeleZone, there
is a residual discretion to stay an action if it is premised on public law
considerations to such a degree that, in Binnie J.’s words, “in its essential
character, it is a claim for judicial review with only a thin pretence to a
private wrong” (TeleZone, at para. 78). The Crown’s argument, in
essence, is that Mr. Manuge’s action should be stayed on that basis.
[19] The exercise of the discretion to
stay an action in this context is dependent on an identification of the
essential character of the claim as an assertion of either private law or
public law rights. I agree with the Crown that some of Mr. Manuge’s claims
raise issues that are amenable to judicial review. However, the question is
not just whether some aspects of Mr. Manuge’s pleadings could be addressed
under ss. 18 and 18.1 of the Federal Courts Act , but what, in their
essential character, his claims are for.
[42]
The Supreme Court concluded that the discretion
to grant a stay of the action should not be exercised in that case. Nor is this
is not the circumstance that is now before me.
[43]
Interestingly, in Huronne-Wendat FC,
which also concerned a decision by AANDC to cap its contribution to the funding
of another of the exempted defined DB Plans and a claim for damages in that
regard brought by the First Nation, AANDC argued before this Court that because
the First Nation was asking for an order depriving the decision of its effects
for the years 2008-2012 it should first have applied for judicial review.
Here, of course, it argues the opposite, suggesting that the action and not the
judicial review should have been pursued.
[44]
In Huronne-Wendat FC, Justice Gagné did
not accept the AANDC’s position. She noted that the primary distinction between
an application for judicial review and a claim for damages is the nature of the
remedy sought and that is it always open to an applicant “to seek the performance of an obligation by equivalence
rather than by specific performance” (para 28):
[29] It is possible to invoke the
unlawfulness of an administrative decision as a source of the State’s
contractual or extracontractual liability. “If the plaintiff has a valid cause
of action for damages, he or she is normally entitled to pursue it” (Telezone,
above, at para 76). In Quebec civil law, the plaintiff who invokes a fault
(contractual or extracontractual), damage and a causal link between the two
should also be entitled to bring an action in damages against the State. The
Council’s action in damages, the ultimate private remedy, in based primarily on
a breach of contract. It therefore appears to me that the Department is
proposing a rather artificial distinction.
[45]
Again, I do not see how this assists the
Respondents as the decision in Huronne-Wendat FC simply confirms
the right to proceed by way of an action, it does not compel that outcome.
[46]
For all of these reasons, leave to admit the
Cholosky Affidavit is denied.
Issue 1: Does this Court have jurisdiction to hear this
application for judicial review?
[47]
Sagkeeng submits that this Court has
jurisdiction to review the March 7, 2012 decision pursuant to s 18(1)(b) of the
Federal Courts Act:
Definitions
|
Définitions
|
2. (1) In this Act,
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2. (1) Les définitions qui suivent
s’appliquent à la présente loi.
|
[…]
|
[…]
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“federal board, commission or other
tribunal”
|
« office fédéral »
|
“federal
board, commission or other tribunal” means any body, person or persons
having, exercising or purporting to exercise jurisdiction or powers conferred
by or under an Act of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867;
|
« office fédéral » Conseil, bureau,
commission ou autre organisme, ou personne ou groupe de personnes, ayant,
exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi
fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à
l’exclusion de la Cour canadienne de l’impôt et ses juges, d’un organisme
constitué sous le régime d’une loi provinciale ou d’une personne ou d’un
groupe de personnes nommées aux termes d’une loi provinciale ou de l’article
96 de la Loi constitutionnelle de 1867.
|
[…]
|
[…]
|
Extraordinary remedies, federal
tribunals
|
Recours
extraordinaires : offices fédéraux
|
18. (1) Subject to section 28, the
Federal Court has exclusive original jurisdiction
|
18. (1) Sous réserve de l’article 28,
la Cour fédérale a compétence exclusive, en première instance, pour :
|
(a) to issue
an injunction, writ of certiorari, writ of prohibition, writ of mandamus
or writ of quo warranto, or grant declaratory relief, against any
federal board, commission or other tribunal; and
|
a) décerner
une injonction, un bref de certiorari, de mandamus, de
prohibition ou de quo warranto, ou pour rendre un jugement
déclaratoire contre tout office fédéral;
|
(b) to hear and determine any
application or other proceeding for relief in the nature of relief
contemplated by paragraph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a federal board,
commission or other tribunal.
|
b) connaître de toute demande de
réparation de la nature visée par l’alinéa a), et notamment de toute procédure
engagée contre le procureur général du Canada afin d’obtenir réparation de la
part d’un office fédéral.
|
[48]
Sagkeeng’s view is that the decision is one of a
federal board, commission or other tribunal as Ms. Stiller articulated it on
behalf of AANDC. The decision states that AANDC had reconsidered its position
and Ms. Stiller’s evidence was that senior officials had obtained concurrence
for partial payment towards the Pension Plan shortfall at AANDC headquarters
(Affidavit of Nadine Stiller, affirmed August 17, 2012, para 55, Tab 4, Volume
1, Applicant’s Record (Stiller Affidavit)). Further, that the Deputy
Minister’s office was notified of the intention to make a partial payment and
made no objection (Answers to Written Examination Affidavit of Nadine Stiller,
affirmed January 31, 2014, Tab 3, Vol 4, Tab 3 of the Applicant’s Record, p
1227 (Answers to Written Examination)). Sagkeeng submits that the decision
articulated by Ms. Stiller is, ipso facto, the decision of the Deputy
Minister of AANDC who was acting as a federal board, commission or other
tribunal when he exercised or purported to exercise powers conferred by or
under an act of Parliament. The Deputy Minister decided to provide Sagkeeng
with the additional funding through the BEB Program and applied the BEB Policy,
which program the Deputy Minister is authorized to operate pursuant to the Department
of Indian Affairs and Northern Development Act, RSC 1985, c I-6, s 4 (“DIAND
Act”). Accordingly, this Court has jurisdiction.
[49]
The Respondents do not take issue with the
Court’s jurisdiction to review the decision.
[50]
The Federal Court of Appeal in Anisman v
Canada (Border Services Agency), 2010 FCA 52 at para 29 stated that a
two-step enquiry must be made in order to determine whether a body or person is
a federal board, commission or other tribunal. First, it must be determined
what jurisdiction or power the body or person seeks to exercise. Second, it
must be determined what is the source or the origin of the jurisdiction or
power which the body or person seeks to exercise.
[51]
And, as stated by the Supreme Court of Canada in
TeleZone:
[3] The definition of “federal board,
commission or other tribunal” in the Act is sweeping. It means “any body,
person or persons having, exercising or purporting to exercise jurisdiction or
powers conferred by or under an Act of Parliament or by or under an order made
pursuant to a prerogative of the Crown” (s. 2), with certain exceptions, not
relevant here, e.g., decisions of Tax Court judges. The federal decision makers
that are included run the gamut from the Prime Minister and major boards and
agencies to the local border guard and customs official and everybody in
between…
[52]
The DIAND Act establishes the Department
of Indian and Northern Affairs, over which the Minister presides and a Deputy
Minister is appointed. The powers, duties and functions of the Minister extend
to and include all matters over which Parliament has jurisdiction, not
otherwise assigned, relating to Indian Affairs (DIAND Act, ss 2-4). The
Department’s applied title is AANDC (Treasury Board of Canada, Federal Identity
Program Policy). Pursuant to s 3 of the Indian Act, RSC, 1985 c I-5 (“Indian
Act”), the Minister of Indian Affairs and Northern Development may
authorize the Deputy Minister or the Chief Officer in charge of the branch of
the Department relating to Indian Affairs to perform and exercise any of the
duties, powers and functions of the Minister under the Indian Act or any
other act of Parliament relating to Indian Affairs.
[53]
As discussed further below, while the evidence
of Ms. Stiller is certainly not as clear as it could and should have been as to
the manner in which she was authorized to make the decision and AANDC’s organizational
structure in that regard, I am satisfied that the decision to partially fund
the Pension Plan shortfall was made by Ms. Stiller as part of her
responsibilities as Director, Funding Services Operations of the Manitoba
Region of AANDC, which position included the administration of funding to
Sagkeeng. I am also satisfied that her decision purports to interpret and
apply the BEB Policy, which policy was, presumably, established by AANDC.
Further, that her decision was authorized by the Assistant Deputy Minister (“ADM”)
with the knowledge of the Deputy Minister (“DM”), and was exercised or purported
to exercise a delegation of power ultimately derived from s 4 of the DIAND
Act read together with s 3 of the Indian Act. Therefore, it is a
decision that falls within the definition of a federal board, commission or
other tribunal, and this Court has jurisdiction to review it pursuant to s
18(1)(b) of the Federal Courts Act. The Respondents do not suggest
otherwise.
Issue 2: Is the application for judicial review premature?
[54]
The BEB Policy contains the following dispute resolution
mechanism:
Disputes regarding the accuracy of stated
populations and programs administered will be adjudicated by the Regional
Director General.
Disputes regarding the application of policy
or formulae will be adjudicated by, in the first instance, the Regional
Director General. If a satisfactory resolution is not achieved, the matter must
be referred to the Director General, Governance, at headquarters.
Respondents’ Position
[55]
The Respondents take the position that document
disclosure was provided to Sagkeeng both before and after the decision;
discussions between the parties took place at various times allowing for a
further exchange of information; documentation was received pursuant to Access
to Information Requests of the Treasury Board; document disclosure under the Federal
Courts Rules was made; and, Sagkeeng also pursued a motion regarding
document disclosure. Although the issue of document disclosure was resolved,
Sagkeeng did not subsequently request dispute resolution.
[56]
Accordingly, the application for judicial review
is premature because the dispute resolution mechanism contained in the BEB
Policy was not being utilized. A party must exhaust a statutory administrative
review process before applying to the Court for relief (Canada (Border Services
Agency) v CB Powell Ltd, 2010 FCA 61 at paras 30-33 [CB Powell]). There
are no exceptional or extraordinary circumstances in this case that would allow
this judicial review to occur before Sagkeeng exhausts its rights and remedies
under the administrative process (Canadian Pacific Ltd v Matsqui Indian Band,
[1995] 1 S.C.R. 3 at para 105 [Matsqui]).
Sagkeeng’s Position
[57]
Sagkeeng submits that after the decision was
issued neither it nor AANDC requested an adjudication. AANDC was asked whether
it would participate in a dispute resolution proceeding under the BEB Policy
but no response was provided. Further, that in paragraph 51 of her affidavit
Ms. Stiller characterizes the decision as final, yet in paragraph 57 she
indicates that the decision would be discussed on March 9, 2012. Accordingly,
the March 9, 2012 meeting was not to adjudicate the issue but to notify
Sagkeeng of the final decision.
[58]
Sagkeeng submits that judicial review is a
discretionary remedy and, absent exceptional circumstances, it should not occur
until after the administrative process is complete (CB Powell at paras
30-33). However, in this case it is clear that the administrative process has
been exhausted. Sagkeeng has expressed its dissatisfaction with the lack of
documentary disclosure that it received in advance of a scheduled adjudication
and this issue was not resolved. In advance of further meetings scheduled to
discuss funding under the BEB Program, AANDC released a decision that it later
called a final decision and Ms. Stiller’s evidence was that senior officials at
AANDC Headquarters had concurred with partial payment towards the shortfall in
the Pension Plan.
[59]
Further, issues cannot be raised and an
effective remedy cannot be granted by adjudicating them before the DG of AANDC.
The final decision has been made and authorized by the person whose task it
would be to resolve an adjudication of the issue under the BEB Policy. This
lack of institutional independence gives rise to a reasonable apprehension of
bias. As a result, further adjudication under the BEB Policy would not be an
adequate alternative to this application (Matsqui at para 105).
Analysis
[60]
At the hearing of this matter I advised the
parties that I would hear them first on the prematurity issue and then,
reserving my decision on that matter but subject to it, I would hear them on
the remaining issues. For the following reasons I have now concluded that the
application for judicial review is premature.
[61]
The relevant factual background to this issue is
as follows. By letter of December 15, 2010, Sagkeeng advised the RDG that it
was invoking the dispute resolution procedure under Annex 4 of the BEB Policy
and requested a complete copy of AANDC’s file on the pension as well as other
listed documents (Affidavit of Rochelle Andal, sworn October 23, 2013 (“Andal
Affidavit”), Exhibit 6, Vol 2, Applicant’s Record, Tab 6(1), p 368).
[62]
Further to the December 15, 2010 letter, on
January 4, 2011 counsel for Sagkeeng wrote to the RDG enclosing written
submissions, a book of exhibits and other materials for the RDG’s consideration
in advance of the adjudication meeting scheduled for January 5, 2012 (Stiller
Affidavit, para 33, Exhibit “L”, Applicant’s Record, Vol 1, Tab L, p 124).
[63]
In her Answers to Written Examination, Ms.
Stiller states that a dispute resolution date was set up with the DG, with all
parties agreeing that Sagkeeng waived its right to be heard initially before
the RDG due to a conflict between the RDG and Sagkeeng (Applicant’s Record, Vol
4, Tab 3, p 1226).
[64]
A letter of January 19, 2011 from Sagkeeng’s
counsel to DOJ states that on December 15, 2010 Sagkeeng requested adjudication
pursuant to the BEB Policy. Further, that on January 4, 2011, Sagkeeng
followed up with written submissions in support of its application and on
January 5, 2011 it attended at the RDG’s offices for the adjudication but was
advised that the hearing could not proceed (Stiller Affidavit, Exhibit N, Vol
1, Applicant’s Record, p 139). The letter also stated that Sagkeeng was ready
and willing to proceed immediately with adjudication.
[65]
By letter to Sagkeeng dated January 27, 2011,
AANDC stated, amongst other things, that it had tentatively set aside February
8, 2012 to hold the dispute resolution meeting with the DG and that it would
follow up to confirm those arrangements (Stiller Affidavit, Exhibit O, Vol 1,
Applicant’s Record, p 150).
[66]
The evidence of Ms. Stiller is that on February
3, 2011 Sagkeeng unilaterally cancelled the dispute resolution scheduled with
the DG. She refers to a letter to DOJ from Sagkeeng’s counsel, of the same
date, advising that “SFN will not participate in a
hearing before the Director General, Governance on Tuesday, February 8, 2011
owing to the ongoing failure of INAC to provide the requested disclosure”,
a copy of that letter is not found in the record (Stiller Answers to Written
Examination, Vol 4, Applicant’s Record, Tab 3, p 1229).
[67]
She also states that further document disclosure
was provided to Sagkeeng and that discussions between Sagkeeng and the
Respondents and their representatives occurred. Her affidavit states that on
March 9, 2011 a letter was sent by Sagkeeng’s counsel to “Canada” which letter
stated that document disclosure provided by AANDC was incomplete and that “SFN cannot proceed with an adjudication of this dispute
until it has received all relevant documents”, a copy of that letter is
not found in the record (Stiller Answers to Written Examination, Vol 4,
Applicant’s Record, Tab 3, p 1229).
[68]
Further, that on March 7, 2012 she advised
Sagkeeng that AANDC had reconsidered its position regarding partial funding to
be provided for the Pension Plan. However, that Sagkeeng did not contact her,
or to her knowledge, anyone else within AANDC or DOJ subsequent to March 9,
2011 regarding the matter of dispute resolution.
[69]
In support of their respective positions the
parties both refer to CB Powell, in which the Federal Court of Appeal
held that the legislation of concern in that matter, the Customs Act,
(RSC, 1985, c 1 (2nd Supp) (“Customs Act”) contained an administrative process
of adjudications and appeals that was to be followed to completion absent
exceptional circumstances. There the Court noted that, by way of the Customs
Act, Parliament had established an administrative process of adjudications and
appeals. The courts were not part of this administrative process and allowing
them to become involved before the administrative process was completed would
inject “an alien element” into Parliament’s
design. Further, Parliament had also precluded judicial interference at every
stage of that administrative process (CB Powell at paras 28-29).
[70]
The Court also set out the following applicable
general principles:
[30] The normal rule is that parties
can proceed to the court system only after all adequate remedial recourses in
the administrative process have been exhausted. The importance of this rule in
Canadian administrative law is well-demonstrated by the large number of
decisions of the Supreme Court of Canada on point: Harelkin v. University of
Regina, [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian
Band, [1995] 1 S.C.R. 3; Weber v. Ontario Hydro, [1995] 2 S.C.R.
929; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 at
paragraphs 38-43; Regina Police Association Inc. v. Regina (City) Board of
Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14 at paragraphs 31 and
34; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001
SCC 44 at paragraph 14-15, 58 and 74; Goudie v. Ottawa (City), [2003] 1
S.C.R. 141, 2003 SCC 14; Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005
SCC 11 at paragraphs 1-2; Okwuobi v. Lester B. Pearson School Board,
[2005] 1 S.C.R. 257, 2005 SCC 16 at paragraphs 38-55; Canada (House of
Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 at paragraph 96.
[31] Administrative law judgments and
textbooks describe this rule in many ways: the doctrine of exhaustion, the
doctrine of adequate alternative remedies, the doctrine against fragmentation
or bifurcation of administrative proceedings, the rule against interlocutory judicial
reviews and the objection against premature judicial reviews. All of these
express the same concept: absent exceptional circumstances, parties cannot
proceed to the court system until the administrative process has run its
course. This means that, absent exceptional circumstances, those who are
dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative process
affords no effective remedy can they proceed to court. Put another way, absent
exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
[32] This prevents fragmentation of the
administrative process and piecemeal court proceedings, eliminates the large
costs and delays associated with premature forays to court and avoids the waste
associated with hearing an interlocutory judicial review when the applicant for
judicial review may succeed at the end of the administrative process anyway:
see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater
Moncton International Airport Authority v. Public Service Alliance of Canada,
2008 FCA 68 at paragraph 1; Ontario College of Art v. Ontario (Human Rights
Commission) (1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at
the end of the administrative process will a reviewing court have all of the
administrative decision-maker’s findings; these findings may be suffused with
expertise, legitimate policy judgments and valuable regulatory experience: see,
e.g., Consolidated Maybrun, supra at paragraph 43; Delmas
v. Vancouver Stock Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d
(1995), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians
(Ontario) (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is
consistent with and supports the concept of judicial respect for administrative
decision-makers who, like judges, have decision-making responsibilities to
discharge: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph
48.
[33] Courts across Canada have enforced
the general principle of non-interference with ongoing administrative processes
vigorously. This is shown by the narrowness of the “exceptional circumstances”
exception. Little need be said about this exception, as the parties in this
appeal did not contend that there were any exceptional circumstances permitting
early recourse to the courts. Suffice to say, the authorities show that very
few circumstances qualify as “exceptional” and the threshold for exceptionality
is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Review of
Administrative Action in Canada (looseleaf) (Toronto: Canvasback
Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative
Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances
are best illustrated by the very few modern cases where courts have granted
prohibition or injunction against administrative decision-makers before or
during their proceedings. Concerns about procedural fairness or bias, the
presence of an important legal or constitutional issue, or the fact that all
parties have consented to early recourse to the courts are not exceptional
circumstances allowing parties to bypass an administrative process, as long as
that process allows the issues to be raised and an effective remedy to be
granted: see Harelkin, supra; Okwuobi, supra at
paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 55
D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of
so-called jurisdictional issues is not an exceptional circumstance justifying
early recourse to courts.
(Emphasis added)
[71]
CB Powell and the
cases cited therein involve administrative processes, established by statute,
requiring that all effective remedies available within that process must be
exhausted before the parties may approach the courts with their dispute. Further,
the courts have often justified the doctrine of exhaustion in part by reference
to legislative intent (R v Consolidated Maybrun Mines Ltd, [1998] 1 SCR
706 at para 38) as it avoids “frustrat[ing] specialized
schemes set up by Parliament” (Canada (National Revenue) v JP Morgan
Asset Management (Canada) Inc, 2013 FCA 250 at para 85) and “compromis[ing] carefully crafted, comprehensive legislative
regimes” (Halifax (Regional Municipality) v Nova Scotia (Human Rights
Commission), 2012 SCC 10 at para 36).
[72]
In this case, however, there is no statutorily
mandated administrative process. Rather, the subject dispute resolution
mechanism provision arises only within the BEB Policy. Therefore, the question
is whether the doctrine of exhaustion extends to administrative frameworks not
established by statute. In that regard, it is of note that in this case the
parties agree that the administrative process must be adhered to, disagreeing
only as to whether it is exhausted or is an ineffective remedy in the circumstances
of this case.
[73]
In Transport and Allied Workers,
International Brotherhood of Teamsters, Local 855 v Labourers’ International
Union, Local 1208, 2014 NLCA 45 (leave to the SCC denied 36280) [Transport
and Allied Workers] the Newfoundland and Labrador Court of Appeal addressed
alternate remedies noting that:
[38] Stratas J.A. of the Federal Court
of Appeal set out detailed reasons for the adequate alternative remedy
requirement in judicial review proceedings in C.B. Powell and JP
Morgan. It is intended to:
• Prevent the fragmentation of administrative processes and the
creation of piecemeal court proceedings (see C.B. Powell at paragraph
32);
• Eliminate “the large costs and delays associated with
premature forays to court” (see C.B. Powell at paragraph 32; see also Harelkin);
• Avoid frustrating “specialized schemes set up by Parliament”
(see JP Morgan at paragraph 85);
• Avert waste where the applicant for judicial review has a
possibility of succeeding under the administrative scheme (see C.B. Powell
at paragraph 32);
• Ensure the court has access to all of the administrative
expertise; this can best be achieved after the final administrative decision
has been made (see C.B. Powell at paragraph 32);
• Support the concept of judicial respect for administrative
decision-makers (see C.B. Powell at paragraph 32); and
• Reinforce the notion that judicial review remedies are to be
of last resort (see JP Morgan at paragraph 85).
[74]
In Transport and Allied Workers the Newfoundland
and Labrador Court of Appeal was concerned with the decision of a jurisdiction
umpire appointed under a project-specific collective agreement, not a statutory
administrative regime. Regardless, that Court found that the doctrine of
exhaustion was applicable.
[75]
Therefore, and given that Sagkeeng does not
oppose its application, it would appear to be appropriate to apply the doctrine
of adequate alternative remedies in this circumstance. In this regard,
Sagkeeng asserts both that the adjudication process was exhausted and, even if
it were not, that a lack of institutional independence raises a reasonable
apprehension of bias with the result that the process does not provide an adequate
alternate remedy.
[76]
It is therefore first necessary to address the
issue of document disclosure as that is the basis of Sagkeeng’s position that
the adjudicative process had been exhausted. As noted above, the first level
of the dispute resolution process was waived by agreement. The second level
before the DG was scheduled and then cancelled by Sagkeeng, apparently on the
basis of a lack of document disclosure. In my view, Sagkeeng has failed to
establish that a lack of disclosure continued to preclude the utilization of
that process.
[77]
In support of its application for judicial
review, Sagkeeng submitted only the affidavit of Ms. Rochelle Andal, legal
assistant with Sagkeeng’s counsel, sworn on October 23, 2013 (“Andal
Affidavit”). In essence, the Andal Affidavit serves only to place
documentation on the record. Specifically, the decision (Exhibit “1”); an April
26, 2013 letter from Mr. Paul Anderson, counsel for the Respondents, to Mr.
John Harvie, counsel for Sagkeeng (Exhibit “2”); a list of revised documents
enclosed with that letter (Exhibit “3”); Stiller Affidavit of August 17, 2012
(Exhibit “4”); Stiller Affidavit of June 7, 2013 (Exhibit “5”); the Written
Submissions of Sagkeeng provided to the RDG (Exhibit “6”); and, the documents
contained in the revised list of documents (Exhibit “7”). Sagkeeng provides no
other affidavit evidence.
[78]
As to the status of disclosure, the Andal
Affidavit states that by way of the letter of April 26, 2013, counsel for
Sagkeeng received a revised list of documents from counsel for the Respondents
which Ms. Andal states that she understands to set out those documents relevant
to the decision. The April 26, 2013 letter states that, in compliance with
Rules 317 and 318 of the Federal Courts Rules, a certificate from the
Privy Council Office had been obtained and was enclosed, and that the
referenced schedule is a secret document which was not released (a copy of the
schedule is not attached in Exhibit “2”). She also describes Exhibit “3” of
her affidavit as a copy of the revised list of the Respondents’ documents.
[79]
At paragraph 4 of her affidavit Ms. Andal states
that:
Ms. Nadine [Stiller] swears two (2)
Affidavits in these proceedings identifying presumably those additional
relevant documents in her possession and upon which she bases her Decision.
Attached to my Affidavit and marked as Exhibit “4” is a copy of the Affidavit
of Nadine Stiller, Affirmed August 17, 2012 and marked as Exhibit “5” is a copy
of the Affidavit of Nadine Stiller, Affirmed June 7, 2013.
[80]
In the result, Sagkeeng provides no affidavit evidence
to support its position that documentary disclosure in the dispute resolution
process remains in dispute or serves to preclude the continuation of that
process. It also acknowledges that the dispute resolution meeting was not
rescheduled after the cancellation.
[81]
Sagkeeng also submits that after the decision
was issued, neither it nor AANDC requested an adjudication before the DG.
Further, that AANDC was asked whether it would participate in a dispute
resolution proceeding under the BEB Policy but that no response was received.
Sagkeeng references paragraphs 33, 51 and 57 of the Stiller Affidavit of August
17, 2012 and paragraphs 4(j) and 4(l) of the Stiller Answers to Written
Examination in this regard. However, review of those references does not
indicate a second, post-decision request for adjudication or that AANDC was
asked if it would participate in dispute resolution after the decision was
issued. Rather, at paragraph 4(l) of the Stiller Answers to Written
Examination Ms. Stiller states that Sagkeeng had not contacted her, or to her
knowledge anyone else within AANDC or DOJ, since March 9, 2011 regarding the
matter of dispute resolution while she was at AANDC (she departed in April
2012).
[82]
Based on the foregoing, in my view the BEB
Policy dispute resolution process commenced on December 15, 2010 was not exhausted.
Nor was a request for dispute resolution made by Sagkeeng after the March 7,
2012 decision concerning provision of partial funding was issued. The Stiller
Affidavit states that the March 9, 2012 meeting referenced in the decision
letter proceeded at which BEB funding issues and funding provided to the
Pension Plan were discussed, calculations were provided to support the
reconsidered additional funding of $890,504.00 and that there was a discussion
about the capped amount going forward. Accordingly, in my view that meeting
would not appear to have been intended to be, nor was it, the second level of
the initiated dispute resolution process.
[83]
The second aspect of the pre-maturity issue is
Sagkeeng’s submission that because a “final” decision has been made and
authorized by the person whose task it would be to resolve the adjudication of
the issue, there is no effective remedy available to it by adjudication before
the DG. This lack of institutional independence gives rise to a reasonable
apprehension of bias and, as a result, further adjudication under the BEB
Policy would not be an adequate alternative to the application for judicial
review.
[84]
As noted above, the evidence of Ms. Stiller on
the question of the making and authorization of the decision of March 7, 2012
is vague. However, in her August 17, 2012 affidavit she states that one of her
primary responsibilities as Director, Funding Services Operations, was to
oversee the provision of funding to core programs related to the operations of
First Nations in Manitoba and that she was responsible for the administration
of funding to Sagkeeng and supervised others in that regard.
[85]
In paragraph 51 of that affidavit Ms. Stiller
states that “[i]n reconsidering the final decision to
make a partial payment to” Sagkeeng she took into account the items that
she then listed. It is unclear from this what or whose final decision she was
reconsidering and, having taken these matters into account, whether she made a
recommendation based on her reconsideration. However, in the written examination
she was asked if the decision she referred to at paragraph 51 was the one
contained in her letter of March 7, 2012 and in her Answers to Written
Examinations she confirmed that it was.
[86]
Paragraph 55 of her affidavit is equally vague.
There she states that on February 13, 2012 she was informed by AANDC
Headquarters “that concurrence for provision of a
partial payment towards the shortfall in the Plan was obtained by senior officials
at AANDC Headquarters”. She does not state what those officials may
have been referencing so as to concur with the partial payment. However, as
noted above, in that same paragraph she refers to the attached Exhibit “W”,
which is an email stating that confirmation had been received that “our ADM’s approval of your approach is sufficient
authorization to proceed. The Deputy’s office was notified and made no
objection. I will forward under separate cover, for your records, the version
of the recommendation that Mr. Hallman approved”.
[87]
Counsel for Sagkeeng made valiant efforts to
determine the decision-making process by way of the Written Examination of Ms.
Stiller. When asked whether she had consulted with or had authorization from
the RDG or DG before she made her decision, she responded by referring to
paragraph 55 of her affidavit. When asked whether the Minister expressly or
impliedly authorised her to make the decision, she responded that the Deputy
Minister’s office was notified of the intention to make a partial payment to
Sagkeeng and made no objection, she also referenced paragraph 55 of her
affidavit and Exhibit “W”. When asked whether at any point before she made the
decision she had consulted with the Minister, she gave the same response.
[88]
It is unclear why the Respondents are so reluctant
to clearly identify the decision-making structure, the decision-maker and the
decision-making process in this matter. However, based on what evidence there
is, it would appear that the ADM approved and thereby authorized Ms. Stiller’s
recommendation to maintain the initial refusal to fully fund the Pension Plan
contribution shortfall, but to make a partial payment, and that the Deputy
Minister was aware of this decision.
[89]
Given this, it is not entirely without merit to
assert, as Sagkeeng has, that because the ADM approved the decision to only
partially fund the Pension Plan shortfall and the DM was aware of this, any adjudication
of the reconsideration decision by the DG pursuant to the BEB Policy would not
provide an adequate alternative resolution because of a lack of institutional
independence giving rise to a reasonable apprehension of bias. The DG being,
presumably, subordinate to the ADM and DM.
[90]
This is further complicated, in my view, by the
fact that the dispute resolution provision set out in the BEB Policy is an
informal one and contains no actual structure for the stipulated dispute
resolution process.
[91]
In Harelkin v University of Regina,
[1979] 2 S.C.R. 561 [Harelkin], the Supreme Court of Canada addressed the
considerations that should be taken into account when deciding whether an
applicant must exhaust the prescribed administrative appeal remedy before
seeking judicial review. In that regard, the Supreme Court stated (p 588):
In order to evaluate whether appellant's
right of appeal to the senate committee constituted an adequate alternative
remedy and even a better remedy than a recourse to the courts by way of
prerogative writs, several factors should have been taken into consideration,
among which the procedure on the appeal, the composition of the senate
committee, its powers and the manner in which they were probably to be
exercised by a body which was not a professional court of appeal and was not
bound to act exactly as one nor likely to do so. Other relevant factors include
the burden of a previous finding, expeditiousness and costs.
[92]
The Supreme Court of Canada noted that at the
relevant time in that matter there were no by-laws in force in relation to the procedure
before the Senate appeal committee. However, by-laws subsequently approved
were admitted into evidence and considered by the Court. The Court also stated
(p 589):
In my view, appellant was not entitled to
assume that, because of the lack of such by-laws at the relevant time, the
senate committee would have denied him a hearing within the meaning of s.
33(1)(e) of the Act, nor should he have assumed that, since one of the
governing bodies of the university had erroneously failed to comply with the
principles of natural justice, another governing body of superior jurisdiction
would do the same. He should on the contrary have assumed that the body of
superior jurisdiction would give him justice, as was held by the Judicial
Committee in White v. Kuzych at p. 601:
Their Lordships are therefore
constrained to hold that the conclusion reached by the general committee was
subject to appeal. And they must respectfully repudiate both the correctness
and the relevance of the view that it would have been useless for the
respondent to appeal because the federation would be sure to decide against
him. They see no reason why the federation, if called on to deal with the
appeal, should be assumed to be incapable of giving its honest attention to a
complaint of unfairness or of undue severity, and of endeavouring to arrive at
the right final decision.
Section 33(1)(e) of the Act does not spell
out the detailed powers of the senate appeals committee but there is no reason
to doubt that such powers comprise the ordinary powers of an appellate
jurisdiction including, if the appeal be allowed, the power to set aside the
decision of the council committee and render on the merits the decision that
the council committee should have rendered or send it back before the council
committee for a proper hearing. There is thus no jurisdictional lacuna in the
senate committee which could have prevented it from giving full justice to
appellant.
[93]
The Supreme Court concluded that the appellant’s
right of appeal to the Senate committee provided him with an adequate
alternative remedy.
[94]
Harelkin can, of
course, be distinguished from the matter before me both because the appeal process
was statute-based and because it was an appeal. And, unlike the senate appeal
in Harelkin, the BEB Policy provides only for an informal dispute
resolution without stipulating a formal adjudication or appeal process. It is relevant,
however, to the extent that it suggests that, in these circumstances, it should
not be assumed that the DG, if called upon to do so, would be incapable of rendering
a fair and unbiased decision.
[95]
The Supreme Court of Canada again addressed the
question of whether an appellant should be permitted to seek judicial review
rather than proceeding through a statutory appeal procedure in Matsqui. There,
pursuant to the Indian Act, First Nation bands were able to pass their
own by-laws for the levying of taxes against real property on reserve lands.
The Matsqui assessment by-law provided for the appointment of courts of
revision to hear appeals from assessments, the appointment of an assessment
review committee to hear appeals from the decisions of the courts of revision
and, finally, an appeal on questions of law to this Court from the decisions of
the assessment review committee. There, the respondents commenced an
application for judicial review seeking to have the assessments set aside and the
appellants sought to strike out the application on the basis that the decision
was not subject to judicial review because of the eventual right of appeal to
this Court or, alternatively, because the assessment by-laws provided an
adequate alternate remedy.
[96]
The issue before the Supreme Court was whether
the motions judge properly exercised his discretion to strike the application
for judicial review, thereby requiring the respondents to pursue their
jurisdictional challenge through the appeal procedure established by band.
[97]
The Supreme Court noted that judges of this
Court have discretion in determining whether judicial review should be
undertaken. In determining whether to undertake judicial review rather than
requiring an applicant to proceed through a statutory appeal procedure the
Court referenced its prior decision in Harelkin as well as Canada
(Auditor General) v Canada (Minister of Energy, Mines & Resources), [1989]
2 SCR 49 and concluded:
[37] On the basis of the above, I
conclude that a variety of factors should be considered by courts in
determining whether they should enter into judicial review, or alternatively
should require an applicant to proceed through a statutory appeal procedure.
These factors include: the convenience of the alternative remedy, the nature of
the error, and the nature of the appellate body (i.e., its investigatory,
decision-making and remedial capacities). I do not believe that the category of
factors should be closed, as it is for courts in particular circumstances to
isolate and balance the factors which are relevant.
[98]
There, when applying the adequate alternate
remedy principle, the Court considered the adequacy of the statutory appeal
procedures created by the band and not just the adequacy of the appeal
tribunals and concluded that it was open to the motions judge to find that
allowing the respondents to circumvent the appeal procedures created by the
bands would be detrimental to the overall scheme in light of its policy
objectives. These included the promotion of Aboriginal self-government and
respect for the appeal procedures developed by the bands given that the purpose
of s 83(3) of the Indian Act was to allow bands to develop their own
internal appeal procedures.
[99]
The Supreme Court then addressed the
respondents’ submission that the statutory appeal procedures were not an adequate
alternative to judicial review because the appeals tribunal gave rise to a reasonable
apprehension of bias. One basis for this allegation was that band members may
be appointed to the appeal tribunals raising the issue of the impartiality of
those members. The Court agreed with the applicants that the allegations of a
reasonable apprehension of bias were speculative. This was because the
allegations were made before the respondents had applied to the appeal tribunal
and before any members had been appointed to them, yet the respondents were asking
the Court to find that they could not obtain an impartial hearing. There was
an important interest in having band members sit on appeal tribunals and the
concern that these members might be inclined to increase taxes in order to
maximise the income flowing to the band was simply too remote to constitute a
reasonable apprehension of bias at a structural level.
[100] As to the second basis of the allegation of reasonable apprehension
of bias, this arose from the fact that the tribunal members may not be paid,
lacked security of tenure and were appointed by Band Chief and Councils, that
is that the tribunals lacked sufficient institutional independence.
[101] The Court noted that the principles of security of tenure, security
of remuneration and administrative control also apply in the case of an
administrative tribunal where it is functioning as an adjudicative body
settling disputes and determining the rights of the parties, although their strict
application is not always warranted in that circumstance. Further that:
[81] The classic test for a reasonable
apprehension of bias is that stated by de Grandpré J. in Committee for Justice
and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
. . .the apprehension of bias must be
a reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is "what would an informed
person, viewing the matter realistically and practically -- and having thought
the matter through -- conclude. Would he think that it is more likely than not
that Mr. Crowe, whether consciously or unconsciously, would not decide
fairly".
De Grandpré J. further held that the grounds
for the apprehension must be "substantial".
[102] The Supreme Court of Canada in Matsqui noted that in the case
of administrative tribunals, the requisite level of institutional independence
must be applied in light of the functions being performed by the particular
tribunal at issue. The requisite levels security of tenure, financial security
and administrative control will depend on the nature of the tribunal, the
interest at stake and other indices of independence such as oaths of office. It
then assessed the provisions of the assessment of the by-laws dealing with the
power of the appeal tribunals and the appointment and recommendation of its
members. It concluded that a combination of three factors i) the complete
absence of financial security for tribunal members ii) inadequate security of
tenure, and iii) tribunal members were required to determine the interest of
the very people, the bands, to whom they owed their appointments, led to a reasonable
apprehension that the members of the appeal tribunals were not sufficiently
independent. Ultimately, the majority found that “[t]he
function of institutional independence is to ensure that a tribunal is legally
structured such that its members are reasonably independent of those who
appoint them” (para 104).
[103] As stated in Matsqui, the test for institutional independence
must be applied in light of the functions being performed by the particular
tribunal at issue. In this matter the function is purely an internal and
informal administrative adjudication process to interpret and apply a policy.
It is not an appeal tribunal, and there is no set procedure. Unlike Matsqui,
the DG’s role is not the performance of adjudication functions similar to those
of the courts. The adjudication is a role imposed on the DG by virtue of his
or her position. However, there is no evidence as to how the position of DG is
filled, whether by hiring by the Public Service Commission or appointment by
the Governor in Council; and whether the DG’s position is subject to the ADM or
DM’s ongoing approval. Thus, it is unknown if security of tenure or financial
security are even relevant factors.
[104] Further, although the recommended approach to only partially fund
the Pension Plan shortfall was approved by the ADM, in my view it has not been
established that because of this the DG is, on an anticipatory basis, more
likely than not to fail to decide the issue fairly. It could equally be the
case that if the DG disagreed with the recommendation, or made a different one,
that the ADM would also approve and authorize that approach or decision. The
burden of proof is on the party alleging a reasonable apprehension of bias (Abi-Mansour
v Canada Revenue Agency, 2015 FC 883 at para 51; Jackson v Canada
(Minister of Citizenship and Immigration), 2012 FC 1098 at para 41; Panov
v Canada (Minister of Citizenship and Immigration), 2015 FC 716 at para 19).
And, as noted above, the differences between judicial and administrative
decision-making require flexibility in the assessment of an administrative decision-maker’s
independence (2747-3174 Québec Inc c Québec (Régie des permis d'alcool),
[1996] 3 S.C.R. 919 at para 62 [2747-3174 Québec]).
[105] Absent evidence to the contrary, a decision-maker is presumed to be
impartial (Telus Communications Inc v TWU, 2005 FCA 262 at para 36; Hughes
v Canada (Attorney General), 2009 FC 574 at para 43 [Hughes]; Munoz
v Canada (Minister of Citizenship and Immigration), 2006 FC 1273 at
para 59; Finch v Assn of Professional Engineers and Geoscientists (British
Columbia),(1996) 18 BCLR (3d) 361 (BCCA) at para 26). Similarly, public
servants are presumed to be impartial and independent (Muhammad v Canada
(Minister of Citizenship and Immigration), 2014 FC 448 at para 144; Dunova
v Canada (Minister of Citizenship and Immigration), 2010 FC 438 at para 69;
Mohammad v Canada (Minister of Employment and Immigration), [1989] 2 FC
363 (Fed CA)). Further, allegations of a lack of independence or a reasonable
apprehension of bias are serious and cannot be based on speculation or limited
evidence (Roberts v R, 2003 SCC 45 at para 2, 59; Committee for
Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369 at p 394; IBEW,
Local 894 v Ellis-Don Ltd, 2001 SCC 4 at para 56). A mere suspicion of
bias is not enough (Hughes at para 43). Here the allegation is
anticipatory and there is no evidence as to potential bias. Accordingly, in my
view, Sagkeeng has not met its onus in this regard and the presumptions of
independence and impartiality are not rebutted. A reasonable apprehension of
bias on an institutional level requires the identification of a substantial
number of similar cases (2747-3174 Québec at para 44). Sagkeeng has
failed to provide sufficient evidence to establish a reasonable apprehension of
bias on either an institutional or a case by case basis and I am not convinced
that the DG would not adjudicate the issue fairly.
[106] In reaching this decision I also note the Respondents’ position, as
to the nature of the decision, that the Crown’s funding decisions are a matter
of policy and are not subject to judicial review on administrative law
grounds. Further, that Sagkeeng is asking the Court to scrutinize a decision
that, at its essence, relates to how the government disburses public monies. The
Respondents submit that absent statutory language or other legal requirements, that
it is not the Court’s role to make such determinations (Hamilton-Wentworth
(Regional Municipality) v Ontario, 2 OR (3d) 716, leave to appeal dismissed
[1991] OJ No 3201(OCA); Children's Aid Society of Huron-Perth v Ontario,
2012 ONSC 5388 at paras 2 and 52). Conversely, Sagkeeng submits that the
decision is purely administrative. There is no specific federal legislation
regulating the funding of benefits payable to Aboriginal band employees and the
BEB Policy fills this void, sets out the objective of the BEB Program and
describes disbursement of funds. Because the application seeks judicial review
of the decision on the basis that it does not comply with the BEB Policy this
Court can review decisions of a Minister interpreting policy criteria and
determine whether that interpretation will result in the objective set by the
policy. Sagkeeng submits that this is to be distinguished from a review of a
Minister’s spending authority (Simon v Canada (Attorney General), 2013
FC 1117 at paras 27, 34-39).
[107] Because I am of the view that the application is premature, I need
not address the nature of the decision. I note the above, however, because if the
application were not premature and if the Respondents’ position as to the
justiciability of the decision were correct, and I make no finding in that
regard, Sagkeeng would be left with no avenue for review of the decision. Further,
the parties’ submissions on the nature of the decision simply reinforce my view
that, at first instance, the nature of this issue is such that it should first
be adjudicated by the DG as contemplated by the BEB Policy.
[108] As I have found that this application for judicial review is
premature, I need not decide this issue on the merits. The matter is referred
back and shall be adjudicated by the DG pursuant to the administrative dispute
resolution provision of the BEB Policy. As that process is not defined, I
would point out that the DG is required to be impartial, unbiased and to fully
and fairly consider all of the submissions before him or her. In my view, the
adjudication should, in effect, be a de novo review and the DG should
provide reasons for his or her ultimate decision.
[109] In that regard, I note that the March 7, 2012 decision contains no
reasons. Subsequent to the decision being made Ms. Stiller filed her affidavit
in support of the Respondents’ position in this application or judicial review.
As noted by Sagkeeng, in her affidavit Ms. Stiller sets out, in considerable
detail, the reasons for her decision. For purposes of judicial review, it is
unacceptable for a decision-maker to “bootstrap” their decision in this manner (Stemijon
Investments Ltd v Canada (Attorney General), 2011 FCA 299 at para 41; Phan
v Canada (Minister of Citizenship and Immigration), 2014 FC 1203 at para 24)
and it is trite law that the record before this Court on judicial review is
generally restricted to that which was before the decision-maker (Assn of
Universities at para 19). As I am not addressing the decision on the
merits I need not address the weight or admissibility of Ms. Stiller’s affidavit
in this context. However, in my view, when adjudicating the dispute, that affidavit
should not be placed before the DG. The Respondents, as well as Sagkeeng, no
doubt will make submissions in support of their positions, but the Stiller Affidavit
providing after the fact reasons for the disputed decision should not be one of
them.
[110] In the event that, when the DG’s decision has been rendered, Sagkeeng
is of the view that it contains a reviewable error, at that time it may seek
judicial review of that decision.