Date:
20081125
Docket:
A-540-04
Citation:
2008 FCA 368
CORAM: LINDEN J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
OCTAVIE
CALLIHOO
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER
OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Edmonton, Alberta, on November 25, 2008)
TRUDEL J.A.
[1]
This is an appeal from an order of Mr. Justice Hugessen, 2004 FC 1312,
delivered from the Bench at Calgary, Alberta, on September 23, 2004, with
Reasons for Order issued on September 24, 2004, finding that the Court had no
jurisdiction to entertain an action in respect of the removal of the
appellant’s name from the register as a status Indian by operation of
subsection 17(6) of the Federal Courts Act, R.S.C. 1985, c. F-7 and
section 14.3 of the Indian Act, R.S.C. 1985, c. I-5 and allowing the
respondent’s motion for a summary judgment.
[2]
The appellant was first registered as an Indian
on December 23, 1988. On September 2, 1998, the registrar informed the
appellant that her name would be deleted from the register because of the
information that brought into question the Indian status of her paternal great
grandfather: Appellant’s Memorandum at paragraphs 1-2; AB, Tab 5 at p. 26 at
paragraph 7; Reasons at paragraphs 5-6.
[3]
On December 1, 1998, the appellant’s son and a
lawyer responded on her behalf indicating that the appellant should continue to
be on the register. The parties have agreed that this letter did not
constitute a protest.
[4]
In February 1999, the registrar informed the
appellant in writing that her name had been deleted from the register and also
of her rights and avenues to protest the deletion. In March 1999, the
appellant’s counsel informed the registrar of the appellant’s decision to
protest the deletion, but no protest was filed: Reasons at paragraphs 7-8.
[5]
Instead, on December 13, 2000, the appellant commenced
an action in the Federal Court. In the original statement of claim, the
appellant sought declaratory relief that paragraph 6(1)(a) of the Act
was unconstitutional as it violated her rights under sections 15 and 28 of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being
Schedule B to the Canada Act (1982) (U.K.), 1982, c. 11.
[6]
The Motions Judge concluded that the Federal
Court had no jurisdiction to entertain the action. Because the action sought declaratory relief primarily for the
purposes of declaring that the appellant was a status Indian and entitled to
registration as such, the declarations that the
applicable provisions of the Act were unconstitutional were “wholly
consequential upon that primary purpose of the action”: Reasons at paragraphs
3-4.
[7]
According to the Motions Judge, the Federal
Court had no jurisdiction over declaratory relief sought for the following
reasons:
11 In my
view, Sections 14.2 and 14.3 of the Indian Act contain a complete code for the
determination of questions of Indian status in a case such as this. It provides
for a protest from the Registrar's decision. That protest is made to the
Registrar who is then instructed to conduct an enquiry. Upon the Registrar
deciding that protest there has created a Right of Appeal to the Provincial
Superior Courts. That Right of Appeal is of critical importance.
12 First
of all, in my view, it excludes this Court's jurisdiction in a case such as
this. Earlier cases held that this Court could make declarations with respect
to Indian status under the previous provisions of the Indian Act but it must be
remembered that since that time the Federal Courts Act has been amended, and
where this Court previously had exclusive jurisdiction with respect to certain
actions against the federal Crown, that jurisdiction is now concurrent, and
more importantly, is excluded in cases where jurisdiction is given to the
provincial Superior Courts.
…
14 This is precisely such a case. Subsection
17(6) of the Federal Courts Act has the effect of removing this Court's
jurisdiction in the circumstances envisaged by Sections 14.2 and 14.3 of the
Indian Act. There is a complete code as I say of procedure laid down for
protesting the Registrar's decision and making an alternate determination of a
person's right to Indian status in the circumstances such as they obtained
here: ibid. at paragraphs 11-14.
[8]
Having found that the appellant did not follow the protest and appeal
procedures set out in the Act, the Motions Judge dismissed the action. However,
being of the opinion that the appellant was “a lady of considerable age and
limited means,” he did not make an Order for costs: ibid. at paragraphs 16
and 18.
[9]
The
appellant is now appealing this Order to this Court.
Issues
[10]
The main issue on this appeal is whether the Motions Judge erred with
respect to jurisdiction of the Federal Court to entertain the appellant’s
action. While the parties raise a number of other arguments, those arguments
are corollary to the main issue before this Court.
[11]
The essential requirements that must be present
in order for the Federal Court to have jurisdiction are well-established and
set out in ITO-International Terminal Operators Ltd. v. Miida Electronics
Inc., [1986] 1 S.C.R. 752 [ITO International] at paragraph 11:
1. There must be a statutory grant
of jurisdiction by the federal Parliament.
2. There must be an existing body
of federal law which is essential to the disposition of the case and which
nourishes the statutory grant of jurisdiction.
3. The law on which the case is
based must be "a law of Canada"
as the phrase is used in s. 101 of the Constitution Act, 1867.
[12]
Based on the ordinary meaning of the relevant
provisions of the Act and of the Federal Courts Act, the Motions Judge
correctly stated that subsection 17(6) of the Federal Courts Act had the
effect of removing the Federal Court’s jurisdiction in the circumstances
contemplated by sections 14.2 and 14.3 of the Act. The proper avenue for the
appellant was to avail herself of the right to protest within a three-year
limitation period prescribed by subsection 14.2(1) of the Act that ended in
September 2001, and further, of a statutory right of appeal to the Alberta Court
of Queen’s Bench pursuant to subsections 14.1(1) and (5) of the Act. Counsel
for both parties have informed the Court that the appellant has now exercised
that right and that those proceedings have been stayed pending a decision from
the Registrar following the appellant’s request for registration as a status
Indian under the Indian Act.
[13]
We find
that the appellant’s failure to satisfy the first
requirement in ITO International, supra, is sufficient to dispose
of the issue of jurisdiction and renders it unnecessary to address the second
and third requirements of the test.
[14]
This being
said, the Motions Judge did not err in concluding that
the appellant’s Charter claim was wholly consequential on her claim under the
Act. The record of correspondence between the appellant’s solicitors and the
registrar in December 1998 and March 1999 and the original statement of claim
filed in the Federal Court clearly indicate that the appellant ultimately
sought a declaration of entitlement to Indian status. Therefore, in raising the
constitutionality of paragraph 6(1)(a) of the Act, she purports to seek
this declaration indirectly: AB, Tab 4 at pp. 17-22 and Tab 9 at pp. 167-177.
[15]
Finally, we find that in raising alternative
grounds at paragraphs 71-96 of the Memorandum, the appellant purports to argue
the merits of her claim under the Act and the Charter before this Court.
Because these grounds were not considered by the Motions Judge, they will not
be considered in this appeal.
[16]
For these reasons, this appeal will be dismissed
without costs as the Respondent does not seek its costs in any event of the
cause: Respondent’s Memorandum at paragraph 48.
“Johanne
Trudel”
______________________________
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-540-04
(APPEAL FROM AN ORDER OF THE FEDERAL
COURT DATED SEPTEMBER 24, 2004 IN FEDERAL COURT FILE NO. T-2311-00)
STYLE OF CAUSE: OCTAVIE
CALLIHOO v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: November 25, 2008
REASONS FOR JUDGMENT OF THE COURT BY: Linden,
Ryer, Trudel JJ.A.
DELIVERED FROM THE BENCH BY: Trudel, J.A.
APPEARANCES:
|
Mr. G. Ranji
Jeerakathil
|
FOR THE APPELLANT
|
|
Mr. Kevin
Kimmis
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
MacPherson, Leslie
& Tyerman - Saskatoon SK
|
FOR THE
APPELLANT
|
|
John H. Sims,
Q.C., Deputy Attorney General of Canada - Ottawa, ON
|
FOR THE
RESPONDENT
|
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