Date: 20121128
Docket: A-110-12
Citation: 2012 FCA 312
CORAM: NOËL
J.A.
MAINVILLE J.A.
WEBB
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
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
Respondents
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The
Attorney General of Canada is appealing an order of Justice Simpson of the
Federal Court (the “judge”), dated March 30, 2012 and issued for the reasons
cited as 2012 FC 387, allowing a motion for an interlocutory injunction which prohibits
the implementation of a rule of strict compliance with provincial rates and
standards for income assistance on First Nations reserves in Nova Scotia, New
Brunswick and Prince Edward Island until a decision has been issued in an
underlying application for judicial review before the Federal Court in docket
T-1649-11.
[2]
The
Attorney General of Canada (the “appellant”) raises numerous grounds of appeal,
and is essentially seeking that this Court review and decide de novo the
motion which was before the judge. However, this Court does not decide de
novo in an appeal from an interlocutory order providing injunctive relief.
Rather, deference is owed to the judge in granting or refusing such relief.
This Court will not interfere unless it can be shown that the judge proceeded
on a wrong principle of law, gave insufficient weight to relevant factors, has
seriously misapprehended the facts, or if an obvious injustice would otherwise
result.
[3]
For
the reasons set out below, I can find no such error in the judge’s decision,
nor do I find that an obvious injustice results from the order. I would
consequently dismiss this appeal.
BACKGROUND AND CONTEXT
[4]
Canada has been providing for
some time essential services and programs to “Indians” residing on “reserves”
under the meaning of these terms in the Indian Act, R.S.C 1985, c. I-5. There
is no specific federal legislation regulating such essential services and programs.
Instead, the services and programs have been provided under various directives
from the Treasury Board and through various policies of the Department of
Indian Affairs and Northern Development, now recently renamed Aboriginal
Affairs and Northern Development Canada (“Aboriginal Affairs”).
[5]
Though
these services and programs were originally provided directly by the federal government,
in recent years - with a view of encouraging greater self-administration by
aboriginals - the delivery of many essential services and programs destined for
“Indians” residing on reserves has been devolved to the Indian Act “band”
administrations.
[6]
Since
the Indian Act does not provide for a proper framework regulating the
devolution of program administration to Indian Act bands, Aboriginal
Affairs has for some time been using funding arrangements for this purpose. For
the purposes of this appeal, two types of funding agreements are at issue: (a)
Comprehensive Funding Agreements (“CFA”); and (b) Canada/First Nations Funding
Agreements (“Block Funding Agreements”). The choice of the type of funding
arrangement is usually guided by the capacity of the concerned band
administrations. Both types of funding agreements are similar in that they
provide for the terms and conditions for services and programs delivery and for
financial management and reporting.
[7]
For
social services and programs provided and delivered under these funding
agreements, First Nations must follow certain Aboriginal Affairs policies and
guidelines, including its national and regional manuals setting out the overall
objectives and requirements for the five principal social programs delivered on
reserve: (1) the Income Assistance Program; (2) the Assisted Living Program;
(3) the National Child Benefit Reinvestment Program; (4) The Family Violence
Prevention Program; and (5) the First Nation Child and Family Service Program.
[8]
For
many years, Aboriginal Affairs had maintained in its program manuals dealing
with income assistance an approach of “reasonable comparability” with provincial
social assistance programs. In essence, Aboriginal Affairs accepted a certain
degree of limited flexibility for First Nations in determining eligibility and
levels of support for income assistance. Thus, the eligibility criteria and
support levels under the Income Assistance Program had to be “reasonably
comparable” to those offered under the social assistance programs delivered to
non-aboriginals by the provincial authorities of the province in which the concerned
reserve was located.
[9]
Aboriginal
Affairs has recently decided to change its program manuals in order to do away
with the “reasonably comparable” approach for the Income Assistance Program.
This has now been replaced by a requirement of strict compliance with the
provincial eligibility criteria and assistance rates. Aboriginal Affairs submits
that its prior long-standing “reasonably comparable” approach set out in its
manuals must be abandoned since it is not compliant with a Treasury Board
Directive dating from 1964 (the “1964 Directive”). That directive authorized
Aboriginal Affairs to adopt provincial or local municipal standards and
procedures for the administration of relief assistance for Indians.
[10]
The
respondents have taken exception to this change. They submit that it is
unconstitutional and that, in any event, it was carried out improperly in
Atlantic Canada. They have consequently applied to the Federal Court for relief
submitting, inter alia, that the change:
(a) is an unconstitutional abandonment or
sub-delegation to the provinces of the federal government’s powers under subsection
91(24) of the Constitution Act, 1867;
(b) was made without an opportunity for meaningful
consultation, thus failing to meet the obligations of the Crown which flow from
its sui generis relationship with the Aboriginal peoples of Canada, from
the honour of the Crown, and from international instruments;
(c) failed to meet the requirements of procedural
fairness in accordance with the doctrine of legitimate expectations arising
from the past history of dealings between the Crown and the respondents.
(Amended Notice of Application for
Judicial Review at pp. 39 to 41 of Appeal Book)
[11]
Within
the framework of these judicial review proceedings, the respondents also
applied to the Federal Court for interim relief in the form of an order
restraining the appellant from changing the “reasonably comparable” approach until
the final disposition of their application.
THE JUDGE’S DECISION
[12]
After
reviewing the evidence before her, the judge found that the First Nations had
been consulted by Aboriginal Affairs about the implementation of the change to
the “reasonably comparable” approach, but chose to abandon the process. However,
she also found that there was never meaningful consultation about the merits
of the change before it was developed, nor was there any suggestion on the part
of Aboriginal Affairs that the consultations would delay or prevent the
implementation of the change.
[13]
The
Attorney General submitted that the motion was moot since the First Nations,
and particularly the respondent Elsipogtog First Nation, had acquiesced in
their funding agreements to the change from “reasonable comparability” to “strict
compliance” with provincial eligibility criteria and rates. The judge found
that none of the funding agreements placed before her directly referred to the
new Aboriginal Affairs manual requiring strict compliance, and that
consequently, she could not conclude that some form of acquiescence to this
change had occurred.
[14]
The
judge then applied the three-part test for injunctive relief set out in RJR-MacDonald
Inc, v. Canada (Attorney General), [1994] 1 S.C.R. 311 (“RJR-MacDonald”).
[15]
Dealing
first with irreparable harm, she found that any harm to the First Nations
resulting from an eventual “administrative dismantling” of the current social
programs funding arrangements could be compensated in damages.
[16]
She
nevertheless concluded that the individual recipients of the income assistance and
their families would suffer irreparable harm if the change was implemented. She
based this finding on the evidence submitted to her that many of the current
recipients would experience reduced assistance under the planned change, and that
there was likelihood that some recipients would become ineligible to receive income
assistance. She further determined that the change would cause emotional and
psychological stress to these individuals, who are especially vulnerable even
to small changes in the resources available to meet their basic needs.
[17]
The
judge also found that the balance of convenience favoured granting the order,
since (a) as noted above, the individual recipients of income assistance would be
adversely affected pending the outcome of the judicial review application, and (b)
the issue of compliance with provincial eligibility criteria and rates was not
an urgent matter given that Aboriginal Affairs and the First Nations have been
applying the “reasonably comparable” approach for many years.
[18]
Finally,
on the serious issue aspect of the test, she found that it was sufficient to
conclude that the duty of fairness set out under Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 (“Baker”) may
require Aboriginal Affairs to consult First Nations about how to comply with
the 1964 Directive.
THE ISSUES
[19]
The
issues which are to be addressed in this appeal may be set out as follows:
a. What is the standard
of review in an appeal from an order granting interim relief in the form of an
interlocutory injunction?
b. Did the judge proceed
on a wrong principle of law, give insufficient weight to relevant factors, or
seriously misapprehend the facts in determining that (a) a serious issue was
raised by the proceedings (b) that irreparable harm would occur and (c) that
the balance of convenience favoured issuing the order?
THE STANDARD OF REVIEW
[20]
Pursuant
to section 18.2 of the Federal Courts Act, R.S.C. 1985, c. F-7, on an
application for judicial review, the Federal Court may make any interim order
that it considers appropriate pending the final disposition of the application.
This includes interim and interlocutory injunctions, which are specifically
dealt with in Rules 373 and 374 of the Federal Courts Rules, SOR/98-106.
Though the power of the Federal Court to grant interlocutory injunctions rests
on a statutory footing, it is nevertheless a discretionary power of the sort
exercised by common law jurisdictions in equity: see A.I.E.S.T., Stage Local
56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] S.C.R.
43 at para. 13; Trudel v. Clairol Inc. of Canada, [1975] 2 S.C.R. 236 at
p. 246; Chinese Business Chamber of Canada v. Canada, 2006 FCA 178 at
para. 4.
[21]
As
already noted, the appellant is essentially seeking a de novo
determination of the motion. As stated at paragraph 22 of its memorandum, the
appellant asks this Court to “substitute its discretion for that of the Motions
Judge and allow the appeal.” This is not the mandate of this Court in this
appeal.
[22]
This
Court must show deference and exercise care when reviewing the discretionary
decision of a Federal Court judge to grant or to refuse an interlocutory
injunction. This Court will not interfere with the decision unless it is established
that the Federal Court judge has proceeded on a wrong principle of law, has given
insufficient weight to a relevant factor, has seriously misapprehended the facts,
or where an obvious injustice would otherwise result: Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at pp. 154-156.
DID
THE JUDGE PROCEED ON A WRONG PRINCIPLE OF LAW, GIVE INSUFFICIENT WEIGHT TO
RELEVANT FACTORS OR SERIOUSLY MISAPREHEND THE FACTS
[23]
The
judge correctly identified the applicable test as the one set out by the
Supreme Court of Canada in RJR-MacDonald. It is the application of that
test to the circumstances of these proceedings which the appellant challenges.
Serious Issue
[24]
The
appellant correctly notes that the duty of fairness and the doctrine of
legitimate expectations cannot lead to substantive rights outside the
procedural domain (Baker at paras. 26). The appellant consequently submits
that the judge erred in finding, based on Baker, that meaningful
consultation about the merits of the change from “reasonable
comparability” to “strict compliance” was a serious issue.
[25]
In
this case, the judge’s findings on the serious issue cannot be separated from
the proceedings considered as a whole and from the other issues raised by the
respondents. The respondents are challenging the impugned change to the
Aboriginal Affairs manuals on many grounds, including on the ground that there
is a duty to consult with them on the substantive merits of the change. They
submit that this duty flows from the sui generis relationship between Canada and Aboriginal peoples, the honour of the Crown, and international instruments. The
respondents also rely on the doctrine of legitimate expectations arising from
the past history of dealings between the Crown and the respondents.
[26]
Though
they can point to no specific jurisprudence supporting their asserted right to
substantive consultations regarding government programs delivered on reserves,
the respondents nevertheless submit that under a purposive reading of Baker
and Haida Nation v. British Columbia (Minister of Forests), 2004
SCC 73, [2004] 3 S.C.R. 511, Canada may well have a duty to consult Aboriginal
peoples with respect to subjects other than Aboriginal and treaty rights. This
is an innovative submission which will require an evidentiary basis and full
argument in the underlying judicial review application in order to be properly
determined. The fact that the submission is innovative does not necessarily mean
that it is not serious.
[27]
Under the RJR-MacDonald test, the threshold for a serious issue is a low one. In the
context of this case, the scope of the duty to consult is itself a serious
issue. Here, the
band administrations have been entrusted by Aboriginal Affairs with the
implementation of social programs such as income assistance, and they have been
adapting these programs to the particular needs of their reserves for many
years under the “reasonably
comparable” approach. In the context of the evolving law relating to
aboriginal consultations, it is not unreasonable to suggest, as the judge did,
that there may be a duty to hold meaningful consultation about the merits
of changing this approach prior to its implementation. Consequently the
judge did not err in finding that the respondents had met the low threshold of establishing
a serious issue.
[28]
The
appellant adds that the judge also erred in not recognizing that the dispute
involved the terms of a contract, i.e. the funding agreements. As there
is no statute against which the decision to change the “reasonable
comparability” policy can be reviewed, the appellant submits that there is no
basis for judicial review, and as a result, no basis upon which the judge could
have granted an injunction. The appellant refers to the decision of this Court
in Irving Shipbuilding v. Canada (Attorney General), 2009 FCA
116, [2010] 2 F.C.R. 488 (“Irving Shipbuilding”), and that of the
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 (“Dunsmuir”) to support the proposition that public
law duties and remedies do not extend to contractual relationships with the
Crown.
[29]
The
starting point in an analysis of the availability of public law remedies is to
determine the true nature of the relationship at issue. The First Nations’ CFA
and Block Funding Agreements in this case are not commercial agreements as
considered in Irving Shipbuilding, nor are they contracts of employment
as dealt with in Dunsmuir.
[30]
These
funding agreements are rather akin to government to government agreements for the
delivery of various essential services. Since the Indian Act does not
provide a proper statutory framework for this purpose, sui generis
agreements have been developed so as to empower band authorities to deliver
essential services to the residents of their reserves. These agreements are
therefore to be understood within the overall context of aboriginal governance
and of the special relationship between Canada and the First Nations. In light
of the special nature of the funding agreements, both public law and private
law remedies may be available depending on the circumstances and the issues.
[31]
In
this case, the respondents are challenging a change to the Aboriginal Affairs’
manuals which are referred to in their funding agreements. That challenge is
made on constitutional grounds and on the ground of a breach to an alleged duty
of substantive consultation flowing from the honour of the Crown and from the
special Crown-aboriginal relationship. Public law remedies, such as judicial
review and injunction, may well be available to the respondents in such
circumstances.
[32]
The
appellant also submits that the judge erred by extending the effect of her
order to all First Nations in New Brunswick, Nova Scotia and Prince Edward
Island when the respondents were only the Mi’gmag First Nations of New
Brunswick. It is not necessary for this Court to decide this issue as it became
moot when First Nations of New Brunswick, Nova Scotia and Prince Edward Island
joined the underlying judicial review proceedings in the Federal Court.
[33]
The
appellant finally submits that the judge committed an error in not finding that
the respondents had acquiesced to the provincial rates for income assistance in
the funding agreements they signed. These agreements make no specific reference
to the eligibility criteria and rates for income assistance, but rather generically
refer to the manuals and program documentation of Aboriginal Affairs. The heart
of the dispute between the parties concerns the legality of the changes made to
those manuals. The fact that First Nations generically agreed to apply
Aboriginal Affairs manuals does not necessarily affect the issue of whether
Aboriginal Affairs could change those manuals as it did without first
consulting with First Nations.
[34]
As
a final comment, it is important to note that neither these
reasons nor the reasons of the judge should be seen as expressing a favourable
or unfavourable opinion on any of the issues raised by the parties in the
underlying judicial review application. The judge only found that the
respondents had raised at least one issue in those proceedings that satisfied
the serious issue test for the purposes of an interlocutory injunction. The
merits of all these issues still remain to be determined.
Irreparable Harm
[35]
The
appellant further challenges the judge’s order on the ground that irreparable
harm was not established on a balance of probabilities. In the appellant’s view,
only speculative evidence of irreparable harm was submitted.
[36]
Yet
the record abundantly shows that Aboriginal Affairs itself was of the view that
the change from “reasonably comparable” to “strict compliance” with provincial
eligibility criteria and rates for income assistance would have serious negative
financial impacts on many individual recipients of the assistance: see notably
paras. 73 to 76 of the judge’s reasons.
[37]
Moreover,
it was reasonable for the judge to draw the inference that reductions in income
assistance would cause harm to individual recipients which could not be
compensated through a subsequent monetary award. This is an inference which
courts have not hesitated to draw in cases involving disability benefits: El-Timani
v. Canada Life Assurance Co., 2001 CarswellOnt 2336 (Ont. SCJ); 28 CCLI (3d) 195
at paras. 8-9; Ausman
v. Equitable Life Insurance Co. of Canada, 2002 CarswellOnt 3922 (Ont. SCJ); 46 CCLI (3d) 14 at paras. 45
to 54.
[38]
As aptly
noted by the judge in her reasons, even small changes in the resources available
to the poorest and most vulnerable of Canadians to meet their basic essential
needs can result in serious harm. Adding to the impoverishment of those who are
already vulnerable is not something which should be taken lightly.
[39]
In my view,
the judge committed no error in finding irreparable harm.
Balance of convenience
[40]
The appellant finally
submits that the judge erred in finding
that the balance of convenience favoured the respondents. Even though the
appellant acknowledges that there will not be new costs for Canada should the “reasonably comparable” approach be maintained, it nevertheless submits
that the public interest favours immediately implementing the 1964 Directive.
[41]
The appellant
does not have a monopoly on the public interest: RJR-MacDonald at para.
70. All parties to an interlocutory injunction proceeding may rely on
considerations of the public interest and may tip the scales of convenience by
demonstrating a compelling public interest in granting or refusing the relief.
Moreover, the notion of “public interest” includes both the concerns of
society generally and the particular interests of identifiable groups: RJR-MacDonald
at para. 71.
[42]
The appellant’s public interest argument
essentially boils down to the assertion that it has exclusive and unfettered
authority to effect the change from “reasonably comparable” to “strict compliance”,
which is the very issue which is to be decided in the underlying judicial
review application. Its submission addresses the merits of that application
rather than the balance of convenience. Other than this, the appellant has
presented no substantiation of any harm which would befall it as a result of
extending for a limited time the long-standing Aboriginal Affairs approach of
“reasonably comparable”.
[43]
The 1964 Directive
was adopted close to half a century ago, yet the “strict compliance” interpretation of this Directive
has not been followed for many years by Aboriginal Affairs. In these
circumstances, the appellant’s
submission that the public interest requires its immediate implementation rings hollow.
[44]
The effect of
the judge’s order is to maintain the
long-standing status quo and to thus allow the income support program to continue with “reasonable comparability” and attending
administrative and reporting requirements in exactly the same way as in past
years. The judge committed no error in finding that the harm resulting from the
reduction in benefits to vulnerable individual recipients far outweighed any
minor inconvenience which the appellant may suffer from a short delay in
implementing the change to “strict compliance”.
CONCLUSION
[45]
I would
therefore dismiss this appeal with costs.
"Robert M. Mainville"
“I agree
Marc Noël J.A.”
“I agree
Wymann W. Webb J.A.”
Email this Content