Date: 20120827
Docket: A-171-11
Citation: 2012 FCA 224
CORAM: PELLETIER
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
WHITE BEAR FIRST NATIONS CHIEF
AND COUNCIL, on their own behalf
and
on behalf of all the members of
the
WHITE BEAR FIRST NATIONS
Appellant
and
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT,
on behalf of her Majesty the
Queen in Right of Canada
Respondent
and
OCEAN MAN BAND CHIEF AND
COUNCILLORS, on their own behalf
and on behalf
of the members of the OCEAN MAN
BAND OF INDIANS
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
White
Bear First Nations Chief and Council (“White Bear”) appeal from the decision of
Phelan J. of the Federal Court (the Judge), reported at 2011 FC 361, [2011]
F.C.J. No. 466 (Reasons) dismissing White Bear’s application for judicial
review of the Minister of Indian Affairs and Northern Development’s (the
Minister) decision to transfer $5,333,334 previously held in accounts in White
Bear’s name to a suspense account. The issues are whether the Minister has the
right to do so, and if he does, whether his decision is reasonable.
[2]
For
the reasons which follow, I am of the view that the appeal should be allowed.
In my view, the Minister breached his obligations, as trustee of the funds, and
as fiduciary, in acting as he did.
FACTS
[3]
The
Minister’s decision and White Bear’s application for judicial review are part
of a larger dispute which is currently pending in the Federal Court between
White Bear and two other bands, the Ocean Man Band (Ocean Man) and the Pheasant’s
Rump Nakota Band of Indians (Pheasant’s Rump), and the Federal Crown. That
litigation arises out of the amalgamation of the Ocean Man and Pheasant’s Rump
bands into the White Bear band in 1901 and the subsequent unwinding of that
amalgamation in 1986. After the amalgamation, Ocean Man and Pheasant Rump’s
reserve lands were sold and all or some of the proceeds were used to purchase
land (“the Northern Boundary Lands”) in the name of amalgamated Band. In 1941,
the oil and gas rights in the White Bear Reserve lands including the Northern
Boundary Lands were surrendered to the Crown which then managed the
exploitation of those resources on behalf of the amalgamated band. When the
amalgamation was unwound, one of the contentious issues was the extent to which
the reconstituted bands, Ocean Man and Pheasant’s Rump, were entitled to a
share in the oil and gas revenue generated by the Northern Boundary Lands whose
purchase was funded to some extent by the sale of their reserve lands.
[4]
Those
issues are now before the Federal Court in action no T-1672-99 (the McArthur
Action), litigation which is now in its 13th year with no obvious
end in sight.
[5]
For
the sake of simplicity and to avoid repetition, I shall refer to all monies
received from oil and gas leases on the Northern Boundary Lands together will
interest paid or owing on those amounts as the Fund. Prior to the events
giving rise to this litigation, the Fund was held in trust in the consolidated
revenue fund in White Bear’s name.
[6]
In
July 2009, the Minister (through his officials) wrote to White Bear to advise
it that some of the money in the Fund would be placed in a suspense account
pending the determination of the McArthur Action. The material portion of the
Minister’s letter is reproduced below:
[…] In [McArthur], the Ocean Man
and Pheasant’s Rump Bands claim ownership of the Northern Boundary Lands and
demand an accounting and payment of past proceeds from those lands from the
Crown and White Bear jointly.
Since May 1989, the proceeds of the leases of the
Northern Boundary Lands have been deposited to the White Bear Band accounts.
We understand the White Bear may seek payment of the Band accounts to it in
accordance with FNOGMMA [First Nations Oil and Gas Moneys Management Act].
If these moneys which are being claimed by the other Bands, are paid out to
White Bear in the face of the claim referred to above, there could potentially
be liability on Canada’s part and there would certainly be a claim against
White Bear. Given Canada’s responsibility to each of the Bands it would not be
appropriate to pay out disputed sums to White Bear, possibly putting them
beyond the reach of Ocean Man and Pheasant’s Rump.
…
It is Canada’s intention to place an appropriate
amount in a suspense account until the issue of entitlement to the lands and
proceeds has been determined by the Court…Given that it is likely that each
Band will have some entitlement, although this is not certain, and given the
interest factor, Canada will retain in the suspense account two-thirds of the
$8,000,000 [the total amount in White Bear’s accounts] representing possible
interest and principal which equals $5,333,334 and will retain two thirds of
future proceeds as well.
[7]
The
letter concluded with an invitation for further discussion, but on terms which
were unacceptable to White Bear. The Minister placed $5,333,334 in a suspense
account as he had indicated he would. White Bear’s application for judicial
review followed shortly thereafter.
THE DECISION UNDER APPEAL
[8]
After
reviewing the facts, the Judge identified the standard of review. He concluded
that the question of whether the Minister had the authority to make the
decision under review was a true jurisdictional question, and thus reviewable
on a standard of correctness. He also concluded that the standard of review of
the merits of the Crown’s decision was reasonableness. With respect to White
Bear’s argument that the Crown was under a duty to consult, the Judge found
that the existence and content of such a duty was a question of law, reviewable
on a standard of correctness.
[9]
With
respect to the duty to consult, the Judge found that the decision to place the
funds in a suspense account pending the outcome of the litigation raised no
issue of an aboriginal or treaty right. As a result, he found that there was
no duty to consult. Further, in light of White Band’s failure to engage in
discussions with the Crown, the Judge found that even if there were a duty to
consult, it was met.
[10]
As
for the question of the Crown’s authority to do what it did, the Judge began by
noting that ownership of the Fund was in dispute in the McArthur Action. In
the Judge’s view, the placing of funds in a suspense account was the equivalent
of paying funds into Court, which any litigant would be entitled to do.
[11]
The
Judge was of the view that the Crown owed concurrent fiduciary obligations to
all three bands. Furthermore, the Crown was also bound by the terms of the Financial
Administration Act, R.S.C. 1985 c. F-11 and the Indian Act, R.S.C.
1985 c. I-5 in relation to its dealing with Indian monies. The Judge found
that the Crown had the powers necessary to discharge its fiduciary
obligations. In his view, this included the power to place the funds in a
suspense account.
[12]
The
Judge then considered the reasonableness of the Minister’s decision. He
expressed the view that, given the claims to the funds being made by the other
bands, it was difficult to see what else the Minister could have done. The
setting aside of two thirds of the amount in White Bear’s accounts was “based
on a balancing of the interests of the three Bands”: see Reasons, at paragraph
25. In the Judge’s view, the Minister’s decision was “a reasonable effort to
ensure even-handed treatment of the relevant parties”: see Reasons, at paragraph
27.
[13]
In
the result, the Judge dismissed the application for judicial review.
Standard of Review
[14]
This
is an appeal of a judicial review, in which the role of this Court is to
determine whether the reviewing court identified the proper standard of review
and then applied it correctly. In practice, this means that the appellate
court applies the normal rules of appellate review as articulated in Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: see
Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003
SCC 19, [2003] 1 S.C.R. 226, at paragraph 43.
[15]
The
normal rules of appellate review are review of questions of law on a standard
of correctness, and review of questions of fact or mixed fact and law on a
standard of reasonableness. The only qualification to the latter proposition
is where one can extricate a clear question of law from a question of mixed
fact and law, in which case, that question of law is reviewed on a standard of
correctness.
[16]
In
this case, the extent of the Minister’s powers as a trustee and fiduciary is a
question of law reviewable on a standard of correctness. I would only describe
that question as one of jurisdiction to the extent that it is one that must be
answered correctly: see Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, at paragraph 28.
ANALYSIS
[17]
As
a preliminary matter, it is useful to properly characterize the Minister’s
decision. The Notice of Application describes the decision under review as the
Minister’s decision to remove approximately two-thirds of the Fund from White
Bear’s account. In its Memorandum of Fact and Law, White Bear says that it
brought its application for judicial review “once it became aware its money had
been moved from its capital trust account and once it became clear that the
Respondent Minister was not going to return the money”: see White Bear’s
Memorandum of Fact and Law at paragraph 15.
[18]
It
appears to me that the transfer of money from one account to another in the
consolidated revenue fund, without more, is simply a matter of record keeping
which would not normally be the subject of judicial review. But, where the
transfer is a step in a process by which the Minister denies an Indian Band
access to moneys which he holds in trust for that Band, the decision subject to
review is the decision to deny the Band access to its funds. In this case,
that decision crystallized on November 20, 2009 when the Minister refused to
advance funds to White Bear for a per capita distribution on the basis that the
amount in its account was insufficient: see Appeal Book, at p. 128. It was
only insufficient because of the transfer of two-thirds of the money to another
account. It was at this point that White Bear knew that the effect of the
transfer was to deny it access to its funds.
[19]
In
my view, the subject matter of this application for judicial review is the
Minister’s decision to deny White Bear access to the $5,333,334, a decision
which was implemented, in accounting terms, by the transfer of the funds from
the Band’s trust account to the suspense account.
[20]
Before
addressing the lawfulness of the Minister’s decision, I wish to touch briefly
on White Bear’s allegation that the Minister breached the duty to consult. If
we assume for a moment that White Bear is correct, and we were to set aside the
Minister’ decision and refer the matter back to him with a direction that he
consult with White Bear, the Minister could nonetheless decide, in good faith,
to withhold White Bear’s funds. The duty to consult is not a duty to agree: Haida
Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3
S.C.R. 511, at paragraph 42. While it is possible that the consultation
process could persuade the Minister to change course, the conflicting demands
on the Minister lead me to believe that this is unlikely. In such a case, it
is inconceivable, on this record, that White Bear would agree that the
Minister’s decision was legitimate because it had been preceded by a
consultation process. White Bear would return to the Court seeking to compel
the Minister to give it access to the funds which the Minister is withholding.
It seems to me preferable to dispose of that question on its merits now, rather
than later.
[21]
As
for the merits of the appeal, it appears to me that the facts lend themselves
to an either/or dichotomy. Either the Minister was a trustee, in a fiduciary
relationship, with all three bands with respect to the Fund or he was not. In
either case, the Minister could not do what he did. If he owed all three bands
a fiduciary duty in relation to the Fund, then he breached his duty of
even-handedness between beneficiaries. If the Minister did not owe Ocean Man
and Pheasant’s Rump a fiduciary duty, then he breached his duty to act solely
in the interests of the beneficiary, White Bear, by holding back a portion of
the Fund for Canada’ benefit and that of the two other Bands.
[22]
If
the Minister was in a fiduciary relationship with all three bands with respect
to the Fund, then the common law duty of even-handedness between beneficiaries
applied and the Minister was precluded from favouring the interests of some
beneficiaries over those of others.
[23]
The
general principle is set out as follows in Donovan W.M. Waters, ed., Waters
Law of Trusts in Canada, 3rd Ed. (Toronto: Thomson Canada
Limited, 2005) (“Waters”) at p. 966:
It is a primary duty upon
trustees that in all their dealings with trust affairs they act in such a way
that, if there are two or more beneficiaries, each beneficiary receives exactly
what the terms of the trust confer upon him and otherwise receives no advantage
and suffers no burden which other beneficiaries do not share. In this way the
trustees act impartially; they hold an even hand.
[24]
This
principle has been applied to the relationship between the Federal Crown and
Indian bands. In Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4
S.C.R. 245 [Wewaykum], the Supreme Court was dealing with a dispute
between two bands, each of whom claimed to be entitled to the other’s reserve
land. The Court observed, at paragraph 97 of its reasons:
As the dispute evolved
into conflicting demands between the appellant bands themselves, the Crown
continued to exercise public law duties in its attempt to ascertain "the
places they wish to have" (as stated at para. 24), and, as a fiduciary, it
was the Crown's duty to be even-handed towards and among the various
beneficiaries.
[25]
Similarly, in Ermineskin Indian Band and Nation
v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222 [Ermineskin], in the
context of a claim by two Indian Bands with respect to the management of oil
and gas revenues held in trust by the Crown, the Supreme Court stated, at
paragraph 39 of its decision:
The standard of care and
diligence required of the Crown was that of a man of ordinary prudence in
managing his own affairs. This required the Crown, among other things, to
assess the circumstances of the fund and the beneficiaries to ascertain
appropriate investments, build a diversified portfolio where appropriate, monitor
the investments, seek expert advice and maintain an even hand between
successive beneficiaries.
[26]
It
is true that the content of the Crown’s duty as a fiduciary will vary with the
circumstances. As the Supreme Court said in Wewaykum, at paragraph 96:
The Crown can be no
ordinary fiduciary; it wears many hats and represents many interests, some of
which cannot help but be conflicting [citation omitted]
[27]
In this case, the issue is the contending Bands’
interest in the Fund, which consists of money earned from land purchased with
the commingled assets of the three Bands. Because of this commingling, it is
arguable that if the Minister owed a fiduciary duty to one Band, he owed the
same duty to the others. Within that fiduciary duty, the Minister, as trustee,
was bound to act even-handedly between the three bands.
[28]
Assuming the existence of a fiduciary duty to all
three Bands with respect to the Fund, did the Minister breach his duty to act
even-handedly? In my view he did because he gave White Bear access to one
third of the Fund while denying access to the other two Bands. In choosing to
treat the beneficiaries of the Fund differently, the Minister breached his duty
of even-handedness.
[29]
If the Minister did not owe a fiduciary duty to
Ocean Man and Pheasant’s Rump with respect to the Fund, then he had a duty to
avoid conflicts of interest and to act without regard to his own interest.
This is a basic principle of trust law:
[…] it is a
fundamental principle of every developed legal system that one who undertakes a
task on behalf of another must act exclusively for the benefit of the other,
putting his own interests completely aside.
Waters, cited above,
at p. 877
[30]
This principle has also been applied to the dealings
between the Crown and aboriginal peoples. In Ermineskin, cited above,
the Supreme Court said, at paragraph 125:
A fundamental
principle underlying the fiduciary relationship is the requirement that a
fiduciary acts "exclusively for the benefit of the other, putting his own
interests completely aside" (Waters, Gillen and Smith, at p. 877). This is
the duty of loyalty and it requires the trustee to avoid conflicts of interest.
A fiduciary is required to avoid situations where its duty to act for the sole
benefit of the trust and its beneficiaries conflicts with its own self-interest
or its duties to another (see Waters, Gillen and Smith, at p. 877, and Lac
Minerals Ltd. v. International Corona Resources Ltd.,
[1989] 2 S.C.R. 574, at pp. 646-47).
[31]
In this case, the Minister’s letter makes it clear
that one of his reasons for denying White Bear access to the full amount of the
Fund was the threat of claims against the Crown if the Minister allowed White
Bear to deplete the account:
[…] If these moneys which are
being claimed by the other Bands, are paid out to White Bear in the face of the
claim referred to above, there could potentially be liability on Canada’s part and there would certainly be a claim against White Bear. Given Canada’s responsibility to each of the Bands it would not be appropriate to pay out
disputed sums to White Bear, possibly putting them beyond the reach of Ocean
Man and Pheasant’s Rump.
[32]
By
withholding a portion of the Fund from White Bear, the Minister was essentially
using trust funds to protect itself from potential claims from others.
Furthermore, since it is assumed for these purposes that the Minister does not
have a fiduciary obligation to Ocean Man and Pheasant’s Rump, the Minister
cannot set aside funds held for the benefit of White Bear for the benefit of
the other two Bands. In doing so, the Minister breached his obligation to act
solely in the interests of White Bear with respect to the Fund.
[33]
That
said, the Minister was acting in good faith in the face of conflicting claims
to the same pool of money. Equity does not require the Crown, in the name of
avoiding conflicts of interest, to incur liability to others with respect to
the Fund claimed by White Bear. The weakness in the Minister’s position is not
that he preserved property pending litigation but that he did so unilaterally
and without right. The Minister should have applied to the Federal Court,
where the McArthur Action is pending, for directions. Rule 108 of the Federal
Courts Rules SOR/98-106 provides for precisely such an eventuality:
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108. (1) Where
two or more persons make conflicting claims against another person in respect
of property in the possession of that person and that person
(a) claims no interest in
the property, and
(b) is willing to
deposit the property with the Court or dispose of it as the Court directs,
that person may bring an ex parte motion for directions as
to how the claims are to be decided.
(2) On a motion under
subsection (1), the Court shall give directions regarding
(a) notice to be
given to possible claimants and advertising for claimants;
(b) the time
within which claimants shall be required to file their claims; and
(c) the procedure
to be followed in determining the rights of the claimants.
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108. (1) Lorsque deux ou plusieurs personnes font valoir des
réclamations contradictoires contre une autre personne à l’égard de biens qui
sont en la possession de celle-ci, cette dernière peut, par voie de requête ex parte,
demander des directives sur la façon de trancher ces réclamations, si :
a) d’une part, elle ne revendique aucun droit sur ces biens;
b) d’autre part, elle accepte de remettre les biens à la Cour
ou d’en disposer selon les directives de celle-ci.
(2) Sur
réception de la requête visée au paragraphe (1), la Cour donne des directives
concernant :
a) l’avis à donner aux réclamants éventuels et la publicité
pertinente;
b) le délai de dépôt des réclamations;
c) la procédure à suivre pour décider des droits des
réclamants.
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[34]
This
appears to be a case where payment into Court is not required since the Crown
holds the funds. I presume that the Crown is willing to “dispose of it [the
Fund] as the Court directs.” In the interests of a full hearing of the issue,
it appears to me that such an application should be made upon notice to the
other parties, and not ex parte, as permitted by the Rule.
CONCLUSION
[35]
As
a result, I would allow the appeal, set aside the judgment of the Federal Court
and quash the order of the Minister transferring $5,333,000 of the Fund into a
suspense account. I would however maintain the status quo by staying the
execution of this order for a period of 60 days to allow the Minister to make
an application to the Federal Court under Rule 108. I would grant White Bear
its costs in this Court and in the Federal Court against the Minister. Ocean Man
and Pheasant’s Rump should bear their own costs.
"J.D. Denis
Pelletier"
“I
agree
Eleanor R. Dawson J.A.”
STRATAS
J.A.
(Concurring reasons)
[36]
I
agree with my colleague’s proposed disposition for somewhat different reasons.
[37]
My
colleague characterizes the decision as one to deny White Bear access to the
$5.3 million. I characterize the decision as one about how to proceed in the
face of conflicting claims. As will be seen, this difference in
characterization changes the analysis of the standard of review and creates
different implications for future cases.
[38]
I
agree with my colleague’s summary of facts and I adopt it. In these reasons, I
also adopt the definitions he uses.
A. The
effects of the decision vs. the decision itself
[39]
In
an application for judicial review of an administrative decision, the first
step must be to identify, with particularity, the decision itself, not the
effects of the decision.
[40]
This
is not to say that the effects of the decision do not enter the analysis. They
can: they may be relevant to the assessment of the correctness or
reasonableness of the decision. But it is the decision itself that is being
reviewed.
[41]
As
my colleague notes, one effect of the Minister’s decision was to deny White
Bear access to two-thirds of the Fund, or $5.3 million, but allow it to access
one-third, or $2.7 million. I would add that the Minister’s decision had
effects on all potential claimants to the Fund, not just White Bear. But these
are the effects of the decision, not the decision the Minister made.
[42]
After
characterizing the decision as one to deny White Bear access to $5.3 million in
the Fund, my colleague concludes (at paragraph 28, above) that the Minister breached
his duty to act even-handedly by giving White Bear access to one-third of the
Fund while denying the other two Bands any access to the Fund.
[43]
I
agree that Canada, as trustee, is subject to a duty of even-handedness. But, in
these circumstances, that obligation requires only that the terms of the trust
be obeyed: see the passage from Waters Law of Trusts in Canada, supra,
set out in paragraph 23, above. Here, the terms of the trust – who is entitled
to what parts of the Fund – are disputed. At this time, we cannot say whether
the effects of the Minister’s decision are consistent with the legalities. Maybe
White Bear is entitled to access one-third of the Fund. Then again,
maybe not. The McArthur Action will clear up the uncertainty.
B. The Minister’s
decision
[44]
So
what is the decision the Minister made? To identify this, we need to recall the
circumstances facing the Minister that prompted the decision. The Minister
realized that White Bear might seek payment of certain amounts to it from the
Fund. He realized that if he paid those amounts to White Bear, Canada might be liable to the two other bands. In the face of these conflicting claims, the Minister
had to decide what to do.
[45]
Specifically,
the Minister had three available options:
● interplead
all or part of the monies in the Fund, for example by using Rule 108 of the Federal
Courts Rules;
● leave
the monies in the Fund; or
● unilaterally
move all or part of the monies in the Fund into a suspense account.
[46]
The
Minister chose the last-mentioned option, moving two-thirds of the Fund, $5.3
million, into a suspense account. The Minister’s decision, then, was his choice
of one option over other available options.
C. The nature
of the Minister’s decision and the standard of review
[47]
The
Minister’s decision, as I have characterized it, did not involve significant
legal determinations. In fact, appreciating the existence of conflicting claims
and uncertain legalities, the Minister expressly avoided making any legal
determinations. The decision to be made here –choosing among three options – involved
weighing the benefits and detriments of each option and making an overall
assessment. While some elementary understanding of law and the issues in the
McArthur Action may be necessary to appreciate the consequences associated with
each option, the decision also has some factual and discretionary aspects that
might touch on policy considerations. Accordingly, it is arguable that the
Minister’s decision should be reviewed under the deferential standard of
reasonableness, rather than correctness.
[48]
However,
I need not determine whether the standard of review is correctness or
reasonableness, as the Minister’s decision cannot withstand scrutiny under
either standard.
D. Reviewing
the Minister’s decision
[49]
If
the standard of review is reasonableness, then, for the reasons set out below,
the Minister failed to take the only defensible and acceptable option on the
facts and the law in these circumstances: to interplead monies under Rule 108.
If the standard of review is correctness, the Minister was wrong in not
interpleading monies.
[50]
In
these circumstances, the advantages of interpleader are overwhelming. Under
interpleader:
● the
Minister does not take a position and thereby expose himself and the public
purse to liability and the cost of litigation on the contentious issues of who
is entitled to the monies, the needs of White Bear pending determination of the
dispute, and what should happen to the monies pending determination of the
dispute;
● the
Minister does not take a position that puts himself in a conflict of duty to
the Bands, whether that duty is characterized as a common law trust duty, a
fiduciary duty, a duty to aboriginal peoples, or any or all of these things;
● the
Minister does not put himself in a position where, as was apparent in the
argument before us, his statutory or common law authority to act is disputed;
on the other hand, the Minister’s authority under Rule 108 to interplead in
this case is undoubted;
● all
affected persons have the opportunity to file evidence, cross-examine on it,
and make submissions – this is procedurally fair and maximizes the chances that
a fully-informed, appropriate decision will be made;
● the
judge hearing the interpleader – perhaps a judge who has been involved in the
McArthur Action and is familiar with it – can set speedy and efficient
procedures, tailoring them to the particular circumstances of the case (see
Rule 108(2)); those procedures can include, among other things, case
management, settlement discussions concerning what should happen pending the
McArthur Action, and mediation (see Rules 385-387).
[51]
In
choosing the option of moving some of the monies in the Fund into a suspense
account, the Minister unnecessarily exposed himself and the public purse to
potential liability. Further, other than the bald assertions in the Minister’s
letter, the evidentiary record contains no support for two-thirds of the Fund
being the proper or appropriate amount to be placed in a suspense account. Finally,
the record contains nothing suggesting that the option chosen by the Minister had
any advantages over the option of interpleader.
[52]
In
another case, there might be exigent circumstances or other considerations of
law, fact or both that would make the option of interpleader inapt and other
options preferable. In another case, there might be considerations of policy or
other matters rooted in the Minister’s expertise and experience that might
reasonably lead to the selection of a different option. But, here, the record
discloses no such considerations. On this record, the only acceptable and
defensible option available to the Minister was to interplead the monies that
were subject to conflicting claims.
E. An additional issue
[53]
Before
concluding, I wish to flag an important issue for full argument and
consideration should a case like this recur.
[54]
In
this case, all parties argued their cases on the assumption that judicial
review lies in these circumstances. But does it? More specifically is this a
public law matter for which judicial review is available? Or is it a
private law matter in which judicial review is not available. Several
factors are relevant: Air Canada v. Toronto Port Authority, 2011 FCA 347
at paragraph 60. I shall mention just a few.
[55]
Some
factors suggest this matter is private. The trust resembles a private trust to
be administered on the basis of private law principles. It does not appear that
any law required the trust to be set up or the Minister to act as trustee. The
issue facing the Minister in this case is indistinguishable from one that
private trustees encounter and, on my colleague’s view of the matter, the
Minister acted contrary to private law rights.
[56]
Other
factors suggest this matter is public. As I have mentioned, the Minister’s decision
has potentially significant consequences for the public purse. Further, the
remedy sought by way of judicial review – the public law remedy of certiorari
– seems well-suited to addressing the problem before us.
[57]
Given
the uncertainty arising from this mix of factors, the possibility that there
are other relevant factors, and the absence of argument before us on this
point, I am prepared to accept for the purposes of this case that the matter is
public and judicial review is available. However, in a future case, based on
full argument and a different factual record, I might reach a different
conclusion on this point.
F. Proposed disposition
[58]
Therefore,
for the foregoing reasons, I conclude that the Minister’s decision should be
quashed. It follows that I agree with my colleague’s proposed disposition of
the matter. In the circumstances, I also agree with his suggestions in
paragraph 34, above regarding the manner in which the Minister should proceed
with the interpleader. I would add that the Minister should carefully consider
what monies to interplead. Failure to interplead monies over which there may be
conflicting claims may result in civil liability to one or more Bands.
“David Stratas”
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