Date: 20051028
Docket: T-1492-04
Citation: 2005 FC 1464
BETWEEN:
CHIEF ROBERT SAM, COUNCILLOR NICK ALBANY,
COUNCILLOR NORMAN GEORGE,
COUNCILLOR FRANK E. GEORGE,
COUNCILLOR JOHN R. RICE on their own behalf as
COUNCIL OF THE SONGHEES INDIAN BAND
and on behalf of the SONGHEES INDIAN BAND
Applicants
and
MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT, THE SUPERINTENDENT
FOR THE SONGHEES INDIAN BAND, SYLVIA ANN JOSEPH,
ALICELARGE, ESTATE OF IRENE COOPER by her
Administrators HARVEY GEORGE, CHARLOTTE THOMPSON
AND WILLIAM GOSSE and HARVEY GEORGE,
CHARLOTTE THOMPSON AND WILLIAM GOSSE
Respondents
REASONS FOR ORDER
HARRINGTON J.
[1] This is a case about land on an Indian Reserve. Both the applicants, whom for ease of reference I shall call "the Band", and the respondent Minister of Indian Affairs and Northern Development and the Superintendent for the Songhees Indian Band, whom I shall call "the Minister", appeal from an order of Prothonotary Tabib on the Band's motion to further amend their notice of application for judicial review. She granted the motion with respect to some of the proposed amendments, but not with respect to others. The Band appeals on the grounds that she did not go far enough. The Minister appeals on the grounds that she went too far. In order to appreciate the general legal principles involved, and the exceptions thereto, the facts need to be set out in some detail.
THE FACTS
[2] Irene Cooper was a member of the Songhees Indian Band when she died in 1996. She held certificates of possession for 9 lots on the New Songhees Indian Reserve 1A. The respondents Harvey George, Charlotte Thompson and William Gosse are her testamentary heirs and administrators. Although kin, they are not members of the Songhees Indian Band. Section 50 of the Indian Act denies them the right by devise or descent to possess or occupy land on the reserve. The section goes on to provide that in such cases the Superintendent shall offer the lands in question to the highest bidder among persons who are entitled to reside on the reserve, with the proceeds of the sale going to the heirs.
[3] Despite protests from the Band, the Superintendent, with the Minister's consent, sold the lots to the respondents Sylvia Ann Joseph and Alice Large, who are members of the Songhees Indian Band, and entitled to reside on the reserve.
[4] The Band has applied for judicial review from this Court. That application has yet to be heard on the merits. The original notice of application was amended on consent, and endorsed by an order from Russell J.
[5] The gist of the amended notice of application as it stood before the Prothonotary was that a sale by the Superintendent, with the approval of the Minister, does not in itself give the purchaser valid possession as section 20(1) of the Act requires possession to have been allotted by the Band Council. Furthermore, in the case of Alice Large, it was alleged that the bids were funded by her non-native husband who could have a claim to rent under British Columbiamatrimonial legislation and could therefore improperly benefit from the use of reserve and Indian land. There are other allegations which are not relevant to the present appeal.
THE MOTION BEFORE THE PROTHONOTARY
[6] The Band then moved the following amendments:
2A In the alternative, a declaration that the lands noted above were lands, to which the Testatrix Irene Cooper purported to devise to the beneficiaries, were lands that she had possession of by virtue of an entitlement for her life time and, therefore, the application of section 50(2) of the Indian Act by the Minister of Indian Affairs and Northern Development was without jurisdiction.
6A In the alternative, and in the event that there was Ministerial discretion to be exercised, an Order in the nature of certiorari to quash the decision made pursuant to section 54(4) of the Indian Act as the decision for the Minister was made without knowing all the facts and without consideration of the fact that with respect to these lots involving Alice Large, the bids on the lots were funded by the lender(s) who is not entitled to reside or benefit from Songhees reserve lands and, by necessity, must involve security for the loan(s), namely, an Assignment of Rents which Assignment of Rents is prohibited by the terms of the Indian Act, and, in particularly, section 18(1) and section 28 and section 84 thereof.
6C In the alternative, and in the event that there was Ministerial discretion to be exercised, an Order in the nature of certiorari to quash the decision made pursuant to section 54(4) of the Indian Act as the decision of the Minister was made without knowing all the facts and without consideration of the fact that, with respect to these lots involving Sylvia Ann Joseph, the bids on the lots were funded by a lender(s) who is not entitled to reside or benefit from Songhees reserve lands and, by necessity, must involve security for the loan(s), namely, an Assignment of Rents which Assignment of Rents is prohibited by the terms of the Indian Act and, in particularly, section 18(1) and section 28 and section 84 thereof.
9A In the further alternative, and in the event that there was Ministerial discretion to be exercised, an Order in the nature of certiorari to quash the decision of the Minister pursuant to section 54(4) of the Indian Act in that the M[i]nister has failed to enquire and satisfy himself with respect to:
(a) to the validity of the Certificates of Possession of the Testatrix, Irene Cooper, also known as Irene George;
(b) to his statutory duty to ensure that there is no Assignment of an interest in Indian reserve land without his consent as required by section 54 of the Indian Act; and
(c) to his statutory duty that the interest in lands in an Indian reserve are not held for the use and benefit of persons who are not members of the First Nation nor entitled to reside or benefit from their interest in reserve lands.
THE PROTONOTARY'S DECISION
[7] The prothonotary acted on the general principle that amendments to proceedings ought to be allowed if in the interest of justice, unless so doing would cause injury or prejudice to the other parties that could not be compensated by costs. A proposed amendment should be refused if it is "plain and obvious" that the applicants could not succeed on the merits thereof. She added that if the only purpose of and the result of an amendment would be to allow the Band to introduce evidence which was not before the decision-maker, so as to show that had that evidence been before him he would have come to a different conclusion, the proposed amendment should be disallowed.
[8] With that in mind, she allowed the proposed paragraph 9A and disallowed the proposed paragraph 2A. With respect to proposed paragraphs 6A and 6C, she held that to the extent they relied on facts which were not before the Minister at the time the decision was made they are bereft of any possibility of success and must be disallowed. However, to the extent that they allege that the Minister had a duty, either on the basis of the facts then before him or at law, to make further inquiries as to the validity of the certificates of possession or as to funding and security arrangements underlying successful purchase bids, such grounds were within the ambit of a judicial review application and the Minister had not met the high burden of showing that there was no possibility of success. Since proposed paragraphs 6A and 6C contained elements of such a duty, they would be allowed if rephrased so as to remove reference to facts and evidence which were not before the Minister.
[9] Following the prothonotary's order, a further amended notice of application with revamped paragraphs 6A and 6C was filed and served.
ISSUES
[10] The issues break down as follows:
a. The standard on appeal from prothonotaries orders.
b. The rationale for allowing amendments to proceedings in actions and applications.
c. Exceptions to the general rule that the material before the reviewing Court should be limited to that which was before the original decision maker (extrinsic evidence).
STANDARD OF REVIEW
[11] An application for judicial review is governed by Part 5 of the Federal Court Rules, Rules 300 and following. A notice of application must, among other things, set out a precise statement of the relief sought, the grounds intended to be argued and the documentary evidence relied upon. There is no specific rule within Part 5 dealing with amendments.
[12] However, an application is a proceeding (Rule 61) and in virtue of Rule 75, in Part 3, applicable to all proceedings, the Court may on motion at any time allow a party to amend its pleadings on such terms as will protect the rights of all concerned. This is a discretionary order.
[13] An order of a prothonotary may be appealed on motion to a judge (Rule 51). The standard with respect to discretionary orders as set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) and Z.I. Pompey Industrie v. ECU-Line N.V. [2003] 1 S.C.R. 450. was slightly reformulated by the Court of Appeal in Merck & Co. v. Apotex Inc., 315 N.R. 175, 2003 FCA 448. Décary J.A. said at paragraph 19:
The test would now read: "Discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: (a) the questions raised in the motion are vital to the final issue of the case, or (b) the orders are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts."
PERMISSIBLE AMENDMENTS TO PROCEEDINGS
[14] I am satisfied the prothonotary was correct in saying that "the general principle is that amendments to proceedings ought to be allowed if it will serve the interests of justice, unless doing so would cause injury or prejudice to other parties that cannot be compensated by costs. An amendment will not serve the interests of justice and will be refused if it is plain and obvious that the Applicants could not succeed on the proposed amendments." See Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (C.A.). Although the "plain and obvious test" as set out in such cases as Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 is used to strike out pleadings in accordance with rule 221, it is equally applicable to proposed amendments. The Merck case, supra, dealt with the proposed withdrawals of admissions and a dramatic departure from previous pleadings. Nothing of that sort applies here.
EXTRINSIC EVIDENCE
[15] The Band acknowledges the general principle that the judicial review of a decision by federal board or tribunal within the meaning of section 18.1 of the Federal Courts Act is usually based on the material which was before the original decision-maker. However, it relies on one of the recognized exceptions, which is that extrinsic evidence may be permitted if the materials go directly to the jurisdiction of the decision-marker. Prothonotary Tabib disallowed proposed paragraph 2A and required proposed paragraphs 6A and 6C to be reworded because they did not allege "jurisdictional" facts and therefore in her opinion the proposed amendments were bereft of any possibility of success.
ANALYSIS
[16] The prothonotary quite properly distinguished allegations of fact from proof of fact. This distinction is particularly important in judicial review as the normal recourse on a successful application is to refer the matter back for reconsideration, with or without directions. It is the Superintendent and the Minister who order or refuse to order a sale under section 50 of the Indian Act, not the Court.
[17] It is convenient to first deal with the Minister's appeal with respect to paragraph 9A(a) and (c), which amendments were allowed by the prothonotary. He does not object to 9A(b). The allegations are that the Minister failed to inquire and satisfy himself with respect to the validity of the certificates of possession of the testatrix Irene Cooper and as to his alleged statutory duty to satisfy himself that the interest in lands in an Indian reserve not be held for the use and benefit of persons who are not Band members. The parties have coined this the "financing allegation".
[18] As regards the "financing allegation", the Minister submits that it is plain and obvious that the Band cannot succeed as it is impossible for a non-Indian to acquire a right to possess of reserve land either by assignment or trust. Consequently, there can be no duty on the Minister to prevent a legal impossibility. Various sections of the Indian Act and cases were cited in support of the proposition, more particularly, Derrickson v. Derrickson,[1986] 1 S.C.R. 285 and Sault v. Jacobs, [2001] 4 C.N.L.R. 284, a decision of the Ontario Superior Court of Justice.
[19] Although the Minister may well be right, the prothonotary was of the view that the Band was entitled to make the allegation; indeed there already was a specific allegation with respect to Alice Large's non-native husband.
[20] Disallowing the proposed amendment is not vital to the final issue of the case, as the matter can and should be argued before the judge who hears the judicial review on the merits. Nor do I think that the order was "clearly wrong, in the sense that the exercise of the discretion by the prothonotary was based on a wrong principle..." (Merck, supra). Had the financing allegations been part of the original notice of application, they would have stood unless the Minister successfully moved to have them struck. Although based on the pre-1998 Rules, the decision of the Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) is instructive. The Court was dealing with the dismissal by the motions judge of an application to strike what was then known as an originating notice of motion. Strayer J.A. noted the difference between an action and what is now an application pursuant to rules 300 and following. An action involves the filing of pleadings, discovery of documents, examination for discovery and trials with viva voce evidence. He said at page 596, "it is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action." However, he was of the view that the best way to contest a judicial review application was to argue at the hearing itself in order to avoid the waste of resources and time in adding on to what is supposed to be a summary matter. After contrasting actions and originating notice of motions, currently known as applications, and noting the strict timetable for the preparation and hearing of a judicial review, he concluded at page 598 "this all reinforces the view that the focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that the objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case."
[21] Fortified by those words, if the questions were vital or the order of the prothonotary were clearly wrong (which it is not) so that I must exercise discretion de novo, I would exercise it to allow paragraph 9A(c) in. Current Rule 300 still requires applications to be dealt with in a summary way.
[22] The same reasoning applies to proposed paragraph 9A(a), which is the allegation that the Minister failed to inquire and satisfy himself as to the validity of the certificates of possession which Irene Cooper held at the time of her death. The Minister has provided pursuant to Rules 317 and 318 the material before him when the decision was made. It is clear that the Minister did not look behind the certificates of possession in a meaningful way. It would appear that a certificate of possession is not equivalent to a certificate of title. Thus, it is legitimate for the Band to argue that the Minister could not sell what Irene Cooper did not have, which was legal possession of the land. The allegation is limited to whether or not the Minister had such a duty. It is not plain and obvious that he did not have such a duty, and so the allegation may go forward. The allegation is one of law, not of fact, so it is not necessary to allude to facts which were not before the Minister when the decision to sell was made.
[23] The Minister also appeals the order of Prothonotary Tabib to allow in paragraphs 6A and 6C, even as revamped. As they currently stand, paragraphs 6A and 6C allege that the Minister's decision was made without knowing all the facts and without making inquiries to determine whether the purchases by Alice Large and Sylvia Ann Joseph and security arrangements relating thereto created a prohibited charge against the lands. Although I am disturbed about the allegation that the decision was made by the Minister "without knowing all the facts", the same allegation was made, and still stands, with respect to whether the lots purchased by Sylvia Ann Joseph could be subject to matrimonial claims by her husband, who allegedly is not a member of the Band. Since the essence of the allegations are that the Minister had a duty, which he failed to exercise, paragraphs 6A and 6C should stand. It does not necessarily follow that extrinsic evidence is permitted. Indeed, no such evidence should be permitted.
[24] This leaves us with the Band's appeal, which at the hearing was limited to proposed paragraph 2A. It bears repeating:
2A In the alternative, a declaration that the lands noted above were lands, to which the Testatrix Irene Cooper purported to devise to the beneficiaries, were lands that she had possession of by virtue of an entitlement for her life time and, therefore, the application of section 50(2) of the Indian Act by the Minister of Indian Affairs and Northern Development was without jurisdiction.
[25] The argument is that the prothonotary erred by rejecting the amendment alleging that Irene Cooper did not in fact have valid possession of the lands at issue and that she erred in refusing to open the door for extrinsic evidence in that regard. She did so by holding that this was not a jurisdictional issue. The general principle, as aforesaid, is that extrinsic evidence is not normally allowed in a judicial review (Coomaraswamy v. Canada(Minister of Citizenship and Immigration), [2002] 4 F.C. 501 (C.A.)). In Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 (C.A.), Rothstein J.A. quoted authorities that suggest that where jurisdictional issues are in question, evidence may be introduced at the judicial review stage. Having regard to the dicta of Lord Sumner in Rex v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128 (J.C.P.C.), he said at paragraph 13:
I think the applicant is correct that on judicial review evidence extrinsic to the record before the tribunal whose decision is being reviewed may be introduced. However, the opportunity to do so is limited to those circumstances in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court.
[26] The Band wishes to bring evidence of what it claims to be the real state of affairs, a series of facts not before the Minister:
a. Irene Cooper did not lawfully possess or occupy the lots in question because her common-law husband, George Cooper, and his father, Michael, who once was Chief, improperly obtained more reserve land than that to which they were entitled;
b. George Cooper died intestate in 1977. Irene Cooper had no right to live on the reserve as she was not a member of the Songhees Indian Band. She was a member of Sooke Indian Band.
c. The Department of Indian and Northern Affairs deemed her in 1980 to be the spouse of George Cooper and directed that she had the right during her widowhood to occupy the lots in question. In 1993, the Department granted Irene Copper certificates of possession, but at no time did the Band Council allot her land, or consent to her having a certificate of possession pursuant to section 20(1) of the Act.
[27] The linchpin of the Band's argument is [1971] S.C.R. 756">Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756. The complainant had alleged that Bell had refused to rent him living accommodation because of his race, colour and place of origin. The Ontario Human Rights Code at the time provided that no person could deny occupancy "of any self-contained dwelling unit because of race, creed, colour, nationality, ancestry or place of origin". Bell took the position that the dwelling was not self-contained. The Board refused to make that finding at the outset. Bell obtained a Court prohibition order against the Board. The Supreme Court agreed that the premises were not a "self-contained dwelling unit" and accordingly did not fall within the code. The Supreme Court, and the Courts below, of course, had the benefit of extrinsic evidence.
[28] Martland J., on behalf of the majority said at page 775:
The powers given to a board of inquiry are to enable it to determine whether or not there has been discrimination in respect of matters within the scope of the Act. It has no power to deal with alleged discrimination in matters not within the purview of the Act or to make recommendations with respect thereto... The Act does not purport to place that issue [whether that accommodation was covered by the Code] within the exclusive jurisdiction of the board, and a wrong decision on it would not enable the board to proceed further.
[29] It is important to note that the underlying application to the Court was for an order prohibiting the Board from inquiring into the complaint. It was not, strictly speaking, a judicial review of a decision. Indeed, the Board had refused to make a decision. It was of the view that it was premature to make a finding as to whether or not the dwelling unit in question was self-contained.
[30] Reliance was also placed on the dissenting reasons of Dickson J., as he then was, in Jacmain v. Canada(Attorney General), [1978] 2 S.C.R. 15">[1978] 2 S.C.R. 15, where he said at page 27:
As is said in Bunbury v. Fuller [(1853), 9 Ex. 111], at p. 140 (quoted in Wade, Administrative Law (3d ed.) at p. 89):
|
|
It is a general rule that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limits to its jurisdiction depends.
|
|
In an article by Professor Hogg, The Jurisdictional Fact Doctrine in the Supreme Court of Canada, (1971), 9 Osgoode Hall L.J. 203, at p. 209, it is said:
|
|
In Anglo-Canadian Administrative Law the distinction between a jurisdictional fact and fact within jurisdiction is crucial. If an adjudicating tribunal makes an error as to the existence of a fact within jurisdiction the error does not affect the validity of the tribunal's decision and the decision is unreviewable by the Courts, but if the tribunal makes an error as to the existence of a jurisdictional fact the error makes the tribunal's decision invalid or void and therefore reviewable by the Courts. The theory is that in the former case the tribunal is acting within the jurisdiction conferred upon it by statute while in the latter case the tribunal is acting outside its jurisdiction.
|
[31] The Band argues that if the Minister had inquired into the facts, which he did not, the only conclusion he could have reached was that the lots could not be sold because Irene Cooper did not hold valid certificates of possession. The Minister states that when the case is argued on the merits, he will argue that he did all he had to do. In the alternative, if extrinsic evidence is permissible, the Band is only presenting only one side of the story. Other evidence would be led dealing with Irene and George Cooper's physical possession of the lots and the legal consequences flowing therefrom.
[32] The question for decision is how the jurisdictional fact issue as set out in cases such as Bell, supra, would permit extrinsic evidence in judicial review. The Supreme Court has over time developed a new approach to judicial review, the pragmatic and functional approach. One need go no further than Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247. In Dr Q, supra, the Chief Justice said at paragraph 24: "The nominate grounds, language of jurisdiction, and ossified interpretations of statutory formulae, while still useful as familiar landmarks, no longer dictate the journey." (emphasis added)
[33] Under the pragmatic and functional approach, the standard of review is determined by considering:
1. The presence or absence of a privative clause
2. The relative expertise of the tribunal
3. The purpose of the legislation
4. The nature of the question: law, fact or mixed law and fact.
[34] The best argument the Band can advance on the merits is that the question of the validity of Irene Cooper's possession is one of law, and that the Minister's decision to sell cannot stand unless it was legally correct. It is for the judge hearing the judicial review on the merits to determine the standard of review after applying the functional and pragmatic approach.
[35] As noted by Evans J., as he then was, in Zündel v. Canada(Attorney General), [1999] 4 F.C. 289, at paragraphs 43 and 44:
[43] Counsel for the applicant submitted, however, that considerations of prematurity do not justify a similar judicial reluctance to intervene when the issue in dispute is a legal question involving the interpretation of a provision in the enabling statute that defines the "jurisdiction" of the Tribunal. He relied on Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756">[1971] S.C.R. 756 for the proposition that a court may prohibit a tribunal from proceeding, before it has even started the hearing, when the issue raised is a "short and perfectly simple question of law".
[44] I do not find this argument persuasive. First, the authoritativeness of Bell has been severely eroded, if not totally destroyed, by the revolution in the law of judicial review of administrative action that started with the decision of the Supreme Court of Canada in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227">[1979] 2 S.C.R. 227.
[36] If the Minister had a duty to go beyond the certificates, the Band's position is protected by paragraph 9A. If it turns out he had such a duty and failed to exercise it, judicial review will be allowed. What the Band is actually asking the Court to do is to issue a ruling on title. [1971] S.C.R. 756">Bell, supra, is not inconsistent with the current approach to judicial review. It is not necessary to get at the alleged want of jurisdiction by introducing new evidence. As Rothstein J.A. said in Gitxsan, supra at paragraph 15: "The essential purpose of judicial review is the review of decisions not the determination, by trial de novo of questions that were not adequately canvassed in evidence at the tribunal or trial court." If the Minister did not properly, on whatever the applicable standard of review might be held to be, canvass the issues then the matter will be referred back.
[37] It follows that I see no need to disturb Prothonotary Tabib's order refusing the proposed paragraph 2A.
[38] I do not think she operated under any wrong principle of law. Even if the issue were vital to the outcome of the case, which it is not, were I to exercise my discretion de novo, I would have reached the same conclusion.
ESTATE OF IRENE COOPER
[39] The Estate, heirs and beneficiaries are respondents. They opposed the Band's appeal on the grounds stated on behalf of the Minister. They took no position on the Minister's own appeal. They are naturally concerned that the judicial review proceed as soon as possible as pending that decision they have been kept out of the proceeds of the sale. However, as noted by Prothonotary Tabib, as unfortunate as this may be, it would not justify an unprincipled decision.
[40] For all the above reasons, the appeal by the Band and the appeal by the Minister shall both be dismissed. There shall be no order as to costs.
[41] At the close of the hearing, since I had before me the original notice of application, the first amended notice of application endorsed by Russell J., the proposed further amended notice of application as put before Prothonotary Tabib and the further amended notice of application as filed following Prothonotary Tabib's order, I asked the parties to submit a draft of what the notice of application would look like if I granted the Band's appeal, or if I granted the Minister's appeal. The Band appears to have misunderstood in that it now proposes further amendments which were not before Prothonotary Tabib. These further proposed amendments cannot be raised on an appeal, they would have to be raised on a fresh application. In any event, they are further refinements of factual issues not before the Minister and would not be allowed given that the Band's appeal has been dismissed.
"Sean Harrington"
Ottawa, Ontario
October 28, 2005
Email this Content