Docket: 17-T-22
Citation:
2017 FC 527
Toronto, Ontario, May 29, 2017
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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VINCENT DAOUST
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Applicant
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and
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MOHAWK COUNCIL
OF KANESATAKE
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Respondent
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ORDER AND REASONS
[1]
This decision concerns a motion by Vincent
Daoust who seeks the following relief:
[translation]
EXTEND the time limit to file an application for judicial review
concerning the decision dated September 23, 2016, of the Kanesatake Band
Council Social Assistance Advisor, a decision which suspended the applicant's
social assistance, on the following ground: “Waiting for political directive
from MCK Chief-in-council”;
AUTHORIZE the applicant to file his Notice
of Application for judicial review no later than 30 days following the applicant's
receipt of the Order extending the time limit;
ORDER the respondent to pay the applicant
all of the Social Assistance withheld since September 23, 2016, within ten (10)
days of receipt of the Order to be rendered (Rule 53);
ORDER the respondent to pay the applicant
the Social Assistance to which he was entitled prior to September 23, 2016,
following receipt of the Final Judgment/Order to intervene after filing the
Notice of Application for judicial review (Rule 53);
ISSUE any other directive, order or finding
that this Court considers just or impose any finding from such conditions and
directions as it considers just (Rule 53);
REPORT to counsel for the applicant, if
applicable, any gap in the proof or proceedings of this motion record case and,
if appropriate, permit the party to remedy it on such conditions that the Court
considers just (Rule 60);
ORDER the respondent to pay costs pursuant
to this motion;
[2]
There are two distinct aspects to this motion.
First, Mr. Daoust requests an extension of the deadline for filing an
application for judicial review. As indicated in the quote above, the
application would relate to a decision made in September 2016 by the Mohawk
Council of Kanesatake (MCK) suspending Mr. Daoust’s social assistance payments.
The second aspect of this motion seeks an order requiring the MCK to pay to Mr.
Daoust the amount of the social assistance withheld to date and the amounts
claimed going forward.
[3]
I will deal with each of these aspects of the
motion in the paragraphs below.
I.
Request for Deadline Extension
[4]
The test applicable to a request for a deadline
extension was provided by the Federal Court of Appeal in Canada (Attorney
General) v Larkman, 2012 FCA 204 at paras 61-62 [Larkman]. The
following questions are relevant:
- Did the moving
party have a continuing intention to pursue the application?
- Is there some
potential merit to the application?
- Has the opposing
party been prejudiced from the delay?
- Does the moving
party have a reasonable explanation for the delay?
[5]
It is not necessary that all four questions be
answered in favour of the moving party. The overriding consideration is whether
the interests of justice are served.
[6]
The MCK does not dispute that the first and
fourth criteria (continuing intention to pursue the application and reasonable
explanation for the delay) are met. Accordingly, the criteria in issue are the
second and third. These are addressed in turn.
A.
Is there some potential merit to the
application?
[7]
Mr. Daoust’s proposed application would rely on
the fact that the sole reason provided by the MCK for suspending his social
assistance payments was his occupation of a residence which he is allegedly not
entitled to occupy (it had allegedly already been allocated for use as the
community’s Elders’ Centre). Mr. Daoust argues that illegal occupation of a
residence is not a proper basis for denial of social assistance, and he seeks
to have the MCK’s decision set aside. It is notable that Indigenous and
Northern Affairs Canada (INAC) appears to agree with Mr. Daoust’s argument in
its letter dated January 24, 2017: “Withholding social
assistance payments is not the venue to resolve this matter”.
[8]
The MCK argues that Mr. Daoust’s proposed
application has no potential merit because he has an adequate alternative
remedy. Specifically, the MCK points to the complaints process before INAC,
which Mr. Daoust has already initiated. The MCK argues that “INAC’s most recent letter, dated March 10, 2017, clearly
demonstrates that INAC intends to provide [Mr. Daoust] with the relief he
seeks, whether via the MCK, or by other means.” The passage from INAC’s
letter upon which the MCK relies reads as follows:
Therefore, INAC demands that appropriate
steps be taken so that the management of the Income Assistance Program meets
the department’s guidelines and the confirmation be provided to the Department
no later than March 22, 2017. Otherwise, the Department will have no other
choice but to consider other alternatives to ensure that the program is
delivered to all eligible community members.
[Emphasis added by the respondent. Footnote
omitted.]
[9]
In my view, this passage shows a clear demand by
INAC, but it falls well short of being a clear demonstration that INAC will
ensure that Mr. Daoust receives the relief he seeks. In my view, INAC’s demand
does not constitute an adequate alternative remedy such as to deny Mr. Daoust’s
proposed application of potential merit.
[10]
I find that Mr. Daoust’s proposed application
has potential merit.
B.
Has the opposing party been prejudiced from the
delay?
[11]
The MCK argues that it is prejudiced by Mr.
Daoust’s delay in commencing his application because it made a difficult
decision in good faith, and
[h]aving the case re-opened many months
later will have a negative psychological impact on Kanesatake elders and
community members who are fearful that others can enter their homes by force
without redress being provided by the MCK.
[12]
Even if I accept that the MCK’s decision was
difficult and that Mr. Daoust’s occupation of the Elders’ Centre has caused the
alleged concerns in the community, I am not satisfied that the proposed
application concerning denial of Mr. Daoust’s social assistance is sufficiently
related to the occupation of the Elders’ Centre to constitute prejudice for the
purposes of this motion. Firstly, I am not convinced by the MCK’s argument that
it had little practical alternative means of obtaining Mr. Daoust’s removal
from the Elders’ Centre other than by denial of social assistance. Moreover,
based on the record before me, it does not appear that the denial of Mr. Daoust’s
social assistance has improved the situation of improper occupation in any way.
[13]
In addition, I am not satisfied that any
difficulties within the community in Kanesatake would have been any less if Mr.
Daoust had commenced his proposed application within 30 days following the
MCK’s decision as he was entitled to do. Accordingly, I am not convinced that
the delay in commencing the proposed application has caused any prejudice to
the MCK or the Kanesatake community.
C.
Conclusion concerning request for deadline extension
[14]
Being satisfied that all of the criteria
identified in Larkman favour Mr. Daoust, and being convinced that the
interests of justice will be served by granting the requested deadline
extension, I will do so.
II.
Order requiring MCK to pay social assistance to
Mr. Daoust
[15]
Mr. Daoust seeks an order for the payment before
trial of the social assistance he has been denied and which is the subject of
his proposed application. He argues that permitting the status quo to continue
will unjustly extend the violation of his rights to dignity, security and a
decent lifestyle.
[16]
The MCK argues several reasons that the order for
the payment before trial should not be granted. Without attempting to address
all of these reasons, I am prepared to state that I agree with the MCK on the
following points.
[17]
First, Mr. Daoust has failed to respect s 372(2)
of the Federal Courts Rules, SOR/98-106 [the Rules], to the
effect that “[a] party bringing a motion before the
commencement of a proceeding shall undertake to commence the proceeding within
the time fixed by the Court.” Though it certainly appears that Mr.
Daoust’s purpose in making the present motion is to commence the proposed
application, he has not provided the required undertaking. He has neither
complied with the requirement of s 372(2) nor sought relief from that
requirement.
[18]
Second, Mr. Daoust has failed to provide the
undertaking contemplated in s 373(2) of the Rules to pay any damages
caused by granting the requested order. I agree with the MCK’s argument that
what Mr. Daoust seeks in this aspect of his motion is effectively an
interlocutory injunction. Accordingly, s 373(2) of the Rules applies.
Mr. Daoust has neither provided the required undertaking nor sought to be
relieved of the obligation to provide it.
[19]
Finally, I note that s 372(1) of the Rules
provides that a motion seeking interlocutory relief may not be brought before
the commencement of an application except in a case of emergency. Though the
denial of social assistance might be seen as an emergency, it is difficult to
accept that Mr. Daoust has treated this matter with urgency, given the time
that has passed since his social assistance was suspended. It also does not
appear that Mr. Daoust intends to act with urgency going forward, given that he
still seeks another 30 days before even commencing his application. Mr. Daoust
has not adequately addressed the requirement of s 372(1) of the Rules.
[20]
For the foregoing reasons, I am not prepared to
order any interim payments of social assistance.
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