Date: 20051012
Docket: T-423-99
Citation: 2005 FC 1371
BETWEEN:
CAROLINE BRUYERE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE HOME PROVIDERS IN ONTARIO
Intervener
(Plaintiff by counterclaim)
REASONS FOR ORDER AND ORDER
HUGESSEN J.
Introduction
[1] This is a motion to determine questions of law prior to trial.
[2] By her statement of claim the plaintiff seeksa declaration that Canada owes her a fiduciary duty, which duty is breached by the transfer of the Urban Native Non-Profit Housing Program (UNNHP) from Canada to the Province of Manitoba.
[3] The parties have agreed to the following statement of facts for the purposes of this motion:
Parliament enacted s. 95 of the National Housing Act under which Canada Mortgage and Housing Corporation (CMHC) designed and delivered social housing programs for the provision of subsidies to reduce the cost of rental housing for moderate to low-income people.
Beginning in the late 1970's, CMHC entered into project operating agreements with owners and operators of housing projects (sponsor groups) setting out the terms and conditions for payment of subsidies under the s. 95 programs.
The UNNPH is one of the s. 95 programs. Under the UNNHP, native people are eligible to receive housing accommodation from sponsor groups and pay rents geared to their incomes. The program seeks to benefit people of aboriginal descent who are status Indians, non-status aboriginal people, Métis and Inuit.
In 1984, CMHC approved Aiyawin Corporation as an eligible sponsor group under the UNNHP, and entered into various project operating agreements with Aiyawin to provide housing subsidies.
In 1986, Canada entered into a global agreement with the Government of Manitoba in which the parties agreed to share the costs of s. 95 programs.
To effect that cost sharing, CMHC and the Manitoba Housing and Renewal Corporation (MHRC) entered into an operating agreement for the management and administration of s. 95 programs by MHRC.
The global and operating agreements provided that commitments under the UNNHP that were made after 1985, including the new project operating agreements with Aiyawin, be managed and administered by MHRC.
Between 1986 and 1991, MHRC entered into various project operating agreements with Aiyawin under the UNNHP.
In 1995, CMHC assumed management and administration of all new commitments under the UNNHP made from January 1, 1992, and all commitments under the UNNHP made prior to January 1, 1992.
This agreement affected only those projects that were managed and administered by MHRC. CMHC continued to administer the projects it had committed to prior to the signing of the global agreement.
In 1998, CMHC entered into a Social Housing Agreement (SHA) with MHRC. As part of the SHA, management and administration of existing CMHC social housing programs in Manitoba, including the UNNHP, was consolidated under MHRC. The SHA stated that its purpose was to enhance the effectiveness and efficiency of the programs.
CMHC and MHRC agreed, however, not to transfer to MHRC the management and administration of project operating agreements with two sponsor groups controlled by Indian bands.
Because of the SHA, Aiyawin and Caroline Bruyere, a tenant in a housing unit owned by Aiyawin and a low-income aboriginal woman, brought an action against Canada. They alleged that the transfer of management and administration of the UNNHP to MHRC was a breach of an alleged fiduciary duty owed by Canada to them and was contrary to s. 15 of the Charter of Rights and Freedoms.
Aiyawin discontinued its claim against Canada on June 3, 2003.
On July 4, 2003, Bruyere filed an amended statement of claim seeking a declaration that Canada owes her a fiduciary duty, which duty was breached by the transfer of management and administration of the UNNHP to MHRC. Further, Bruyere is seeking a declaration that this transfer is contrary to s. 15 of the Charter.
On December 16, 2004, Canada filed a motion record for an order that two questions of law be determined by this Court before trial.
On April 5, 2005, the Court ordered that the following two questions of law be determined by this Court before trial:
(a) Did Canada owe a fiduciary duty, and, if so, did it breach that duty by transferring the management and administration of the Urban Native Non-Profit Housing Program from the Canada Mortgage and Housing Corporation to the Manitoba Housing and Renewal Corporation?
(b) Does Caroline Bruyere possess the required standing to assert the claim to be the beneficiary of the fiduciary duty?
Discussion
[4] It is clear from the record that the plaintiff, responding party, did not oppose the first stage of the motion and the Prothonotary who granted the motion and stated the questions to be determined noted as much in her Order. The significance of this will become apparent in due course.
[5] In its submissions the defendant, Crown, argues that the fiduciary duties of the Crown to aboriginal peoples are owed only under unique circumstances, and these circumstances do not include housing interests of aboriginal peoples living in urban areas. Relying on [1984] 2 S.C.R. 335">Guerin v. Canada, [1984] 2 S.C.R. 335 it says that it becomes a fiduciary only if by statute, agreement or unilateral undertaking, it has an obligation to act for the benefit of another party and that such obligation carries a discretionary power. The Constitution of Canada, while giving Parliament legislative jurisdiction over Indians, does not create a legal obligation on Canada to legislate or provide programs for the benefit of Indians. The plaintiff is not a party to any contract or agreement which might create a fiduciary obligation. The tenancy agreement is with Aiyawin and not with the defendant. And, the plaintiff has not established that the defendant unilaterally undertook to act for her benefit.
[6] Further, the defendant maintains that any fiduciary duty imposed on it does not exist at large, but solely in relation to a specific Indian interest. Where established, these obligations have been in relation to a specific collective interest such as land. While a fiduciary duty may exist outside the confines of land interest and interests defined in s. 35 of the Constitution, to find such a duty, the following two factors must be present: the identification of a cognizable Indian interest; and Canada's undertaking of discretionary control in relation thereto in a way that invokes responsibility in the nature of a private law duty. In this case it is said, those factors have not been met. The provision of social services off reserve is not an aboriginal right and the defendant has not undertaken discretionary control over any Indian interest in the nature of a private law duty. According to the defendant, the plaintiff cites nothing to indicate her interest is a cognizable Indian interest; she has no legal basis for her alleged interest.
[7] Finally, the defendant submits that even if a fiduciary duty could be established, any obligation would have to flow to a specific collective beneficiary. Thus, the plaintiff does not have the required standing to bring the present action. The defendant then gives examples where the courts have concluded that aboriginal rights, whether based in land interests or otherwise, are communal and not individual or personal rights.
[8] For her part, plaintiff, responding party, relies on her statement of claim and the allegations that the UNNHP (the Program) was the fulfillment of a duty owed to her as a First Nations woman. Specifically, that duty was to establish special measures in the form of federally funded programs to improve social conditions of aboriginal peoples in the area of housing, by reversing conditions of dependency, fostering self-reliance, and creating a sense of community for aboriginal peoples and that the Program was a federally funded program established to have aboriginal peoples participate, manage and determine the Program within their own institutions. The plaintiff argues that the motion in this case is akin to a motion to dismiss a claim as not disclosing a reasonable cause of action and on such a motion the Court must assume that all allegations contained in the statement of claim are true: on that assumption, such allegations are sufficient to allow the case to go forward to trial. The plaintiff also argues that she has a right to consultation and negotiation with the Federal Government in respect of her fundamental right to, inter alia, adequate and affordable housing.
[9] With regards to her standing, the plaintiff argues that if she is owed a duty, then she has standing to seek a remedy of any alleged breach of that duty. Further, she submits that the issue of standing should be left for trial. She also contends that she has public interest standing as well since she has a sufficient personal interest in this case, her own rights are affected and there are serious issues to be tried.
[10] In my view it is apparent that both counsel are under a serious misaprehension as to the nature of the present motion and the powers of the Court to make preliminary and binding declarations of right on a record such as this. For his part, plaintiff's counsel is clearly wrong to suggest that on a motion under Rule 220 the Court should apply the well known "no reasonable chance of success" test which would be applicable to a motion to strike under Rule 221. He is also wrong to argue, as he appears to do, that there are relevant facts which do not appear from the agreed statement of facts, as, for example, when he asserts that there was no consultation or consent between the defendant and aboriginal persons at the time that the SHA was entered into. The Court does not assume the facts alleged to be true but must limit itself to those stated in the limited agreed statement of facts.
[11] The limited agreed statement of facts provides a chronology of the development of the CMHC and the UNNPH, as well as the emergence of different federal-provincial and CMHC-Manitoba Housing and Renewal Corporation (MHRC) agreements. It also provides a timeline of the various steps in the action taken to date.
[12] On such a skeletal set of facts it would be impossible to find any fiduciary duty owed by the Crown to the plaintiff or to anybody else. If these facts, and nothing more, were proved at trial the Court could do nothing other than dismiss the action on the basis that the plaintiff had not discharged her burden of proof.
[13] However, the insufficiency of the agreed statement of facts would also preclude the Court from determining that the Crown did not owe a fiduciary duty in this case or making any declaration to that effect. The categories of fiduciary duties are not closed ([1984] 2 S.C.R. 335">Guerin, supra, at page 384) and in this case the Court is being asked to find a new fiduciary duty. It is my opinion that the Court requires a more complete factual matrix before it can decide whether or not to expand the categories of fiduciary obligations.
[14] While, as I have already indicated, there is no difficulty in finding on the agreed facts that there was no contract between Bruyere and the federal government, this may not be a full rebuttal of the possibility that a fiduciary obligation may have been created as a result of agreement. The limited agreed statement of facts does not provide any background related to the funding agreements undertaken pursuant to the UNNHP or the National Housing Act. In my view, if it can be shown that the federal power intended to take on the obligation to act for the benefit of aboriginal peoples through its agreements with service providers, it would be wrong to deny that this was not a fiduciary obligation simply because the agreement was not made directly with each aboriginal intended beneficiary. As the plaintiff notes, there is a responsibility undertaken by the Crown to act on the behalf of Indians to protect their interests in transactions with third parties. Since the limited agreed statement of facts does not provide any information relating to the intentions of the parties to the funding agreements, the possibility that the Government of Canada became a fiduciary by agreement cannot be excluded.
[15] Likewise, while it is the case that fiduciary duties only exist in relation to specific Indian interests, and are not owed as a duty at large (Wewaykum Indian Band v. Canada, [2002] S.C.J. No. 79 at para 81) and that, to date, fiduciary obligations have only been extended to specific collective interests in reserve land and in interests defined by s.35 of the Constitution Act, 1982, the Courts have left open the possibility of finding additional contexts in which a fiduciary duty is owed by Canada. The pre-conditions for the finding of a fiduciary duty are first, that there is a cognizable Indian interest, and second, that Canada undertakes discretionary control in relation to the interest in a way that invokes responsibility "in the nature of a private law duty" (Wewaykum, supra, at para 85).
[16] Although the defendant may be correct in noting that to date only Indian interests arising from disputes over land have been recognized as giving rise to a fiduciary obligation, it does not follow that no other Indian interest could be recognized by the Court in this case. The facts do not provide sufficient detail to show whether a new Indian interest should or should not be found to exist. Since the plaintiff is alleging a new fiduciary duty, the Court may need to explore the possibility of there being new special interests creating a new fiduciary obligation. The limited agreed statement of facts provides insufficient background with respect to the context of the agreements, the vulnerability of aboriginal peoples in need of subsidized housing, or other information beyond the mere dates on which global and operating agreements were reached. It is therefore uncertain whether a duty in the nature of a private law duty should or should not be found in this case.
[17] The above analysis demonstrates that while there is nothing on the facts that may lead the Court to answer the first part of the first question put to it in the affirmative, there are insufficient facts for the Court to conclude with certainty that it must be answered in the negative. Since both the second part of the first question (whether the alleged obligation has been breached) and the second question (standing) have no meaning if the first part of the first question does not have an affirmative answer, they too should not be answered.
[18] It is well settled law that, on a reference to it, the Supreme Court may decline to answer a question where the parties have not provided sufficient information to allow the Court to give a complete or accurate answer: see, Reference re Secession of Quebec, [1998] 2 S.C.R. 217; [1926] S.C.R. 246">Reference re Education System in Island of Montreal, [1926] S.C.R. 246; [1980] 1 S.C.R. 54">Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54 (Senate Reference); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (Provincial Judges Reference).
[19] The wording of Rule 220, by providing for a two-stage procedure, in which the Court itself first determines the appropriateness of the questions to be asked before undertaking to give an answer, is intended to avoid this sort of problem. However, the policy considerations underlying the Rule coupled with the fact that the first stage of the motion was not contested with the consequence that the learned Prothonotary was not called on to turn her mind in any detail to the appropriateness of the questions, leads me to the conclusion that the Court should refuse to answer questions when to do so would be wrong. Obviously, it would have been preferable if the motion had been dismissed at the first stage, as it was in Wolf v. Canada, 2002 FCT 434, but while to answer a question on inadequate facts may have far-reaching consequences for persons other than the parties, a refusal to answer will cause inconvenience only to the parties who themselves are responsible for the creation of the present situation.
[20] The motion will be dismissed. Each party shall bear its own costs.
ORDER
The motion is dismissed, each party bearing its own costs.
"James K. Hugessen"
Judge
Ottawa, Ontario
October 12, 2005
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