Lac Seul First Nation v. Canada (Minister of Indian Affairs and Northern Development), 2004 FC 1183

                                                                                                                      Date: 20040830

                                                                                                                 Docket: T-1338-04

                                                                                                          Citation: 2004 FC 1183

Ottawa, Ontario, this 30^th day of August, 2004

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                 LAC SEUL FIRST NATION and EAGLE LAKE FIRST NATION

                      AS REPRESENTED BY THEIR CHIEFS AND COUNCILS

                                                                                                                               Applicants

                                                                   - and -

                        HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                    AS REPRESENTED BY

                                      THE MINISTER OF INDIAN AFFAIRS

                                        AND NORTHERN DEVELOPMENT

                                                                                                                            Respondent

                                      REASONS FOR ORDER AND ORDER

SNIDER J.

[1]                The underlying concerns of the Applicants are directed at a change in the method of funding of child welfare prevention services by the Minister of Indian Affairs and Northern Development (the _Minister_). In pursuit of their grievance, the Applicants have commenced an application for judicial review. Pending the disposition of their judicial review application, the Applicants seek an interlocutory injunction suspending the decision of the Minister to cease direct funding of the Applicants' child welfare prevention services.

[2]         For over 20 years, the federal government has provided funding for child welfare prevention services. This is not a dispute about whether the Minister will continue to fund the services; it is a dispute over how the costs of the services will be funded. The Minister wishes to provide the $2.8 million per year cost to the Province of Ontario who would arrange to have the services delivered to the Applicants by a provincially approved agency. The Applicants wish to have the funds paid directly to them. The Applicants do not dispute the Minister's discretionary power to provide the funding through a different delivery model; what they object to is the Minister's decision to stop the funding completely on June 30, 2004 without adequate notice and consultation.

Background

[3]         Direct funding for prevention services is not the usual manner of federal government funding for these important services. The Minister asserts that the federal government policy is that agencies providing child welfare services must be mandated by the province to qualify for funding from the Department of Indian and Northern Affairs and Northern Development (_DIAND_). This allows the provinces to set the standards and monitor the services provided. In Ontario, this arrangement is reflected in the _Memorandum of Agreement Respecting Welfare Programs for Indians_ dated

December 1, 1965, between the Governments of Canada and Ontario. Pursuant to the Child and Family Services Act, R.S.O. 1990, c. 11, the province of Ontario is able to approve agencies for the delivery of prevention and protection services. Protection services for the Applicants are already provided through the province and are not an issue in this proceeding.

[4]         From 1984 until March 31, 2002, funding for prevention services were paid to Ojibway Tribal Services Inc. (_OTFS_) who delivered the services to the Applicants and 12 other First Nations. In a letter dated December 19, 2001, the Minister advised OTFS that the direct funding of prevention services would be terminated on March 31, 2002 and that alternative options for the provision of services would be made. Once it became clear that no other delivery model would be worked out by the deadline, the Minister agreed to flow the funds directly to the Applicants for one year. The Minister and each of the Applicants added prevention services to the annual Comprehensive Funding Arrangement for the fiscal year 2002/2003. Pursuant to the terms of the amendment to the Comprehensive Funding Arrangement, the Minister agreed to provide the necessary funding directly to each of Applicants and each of the Applicants agreed to _administer prevention services in the interim of establishing prevention services through alternative delivery mechanisms_.

[5]         This interim funding arrangement was extended three times. The final extension of three months - for the period April 1, 2004 to June 30, 2004 - was granted by the Minister by letter dated April 14, 2004. A request for a further extension of nine months made by the Applicants was refused in a letter dated June 15, 2004. In that letter, the Applicants were advised that:

. . . INAC_s [Indian and Northern Affairs Canada] contributions after June 30, 2004 may only be for services funded under the Child and Family Services Act.

[6]         In the judicial review application underlying this motion, the Applicants seek relief in respect of this June 15, 2004 letter. Specifically, they seek an order granting an extension of the direct funding for 9 months during which time meaningful consultations could take place between the parties.

Issues

[7]         This application raises the following issues:

1.         Is an interlocutory injunction available to order the Minister to allocate funds for discretionary services or to do so in a particular manner or is the Crown immune from injunctions pursuant to the common law and s. 22 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended.

2.         If the answer to the first question is _yes_, do the Applicants meet the test for an interlocutory injunction in that:

·                       there is a serious issue to be tried; and

·            the Applicants will suffer irreparable harm if the injunction is refused; and

·                       the balance of convenience favours the Crown.

Issue #1: Immunity of the Crown

[1]         The Minister submits that an interlocutory injunction is not available to the Applicants.

[2]         Relief against the Crown is limited. At common law, the Crown possesses immunity from injunctive relief (Centre d'information et d'animation communautaire v. the Queen,(1984), 61 N.R. 117 (F.C.A.); Grand Council of the Crees (Quebec)v. the Queen, (1981), 124 D.L.R. (3d) 574 (F.C.A.), at para. 7). This immunity finds expression in section 22 of the Crown Liability and Proceedings Act:

[3]         Crown immunity under section 22 extends to Crown servants acting in a manner authorized by a statute (North of Smokey Fisherman's Association v. Canada (A.G.) (2003), 229 F.T.R. 1 at paras. 11, 12, 15 ). However, pursuant to section 35(1) of the Crown Liability and Proceedings Act, it does not apply to Crown agencies. Subsection 35(1) does not apply to the case before me, as we are not dealing with an agent for the Crown, such as a Crown corporation.

[4]         This case concerns the conduct of the Minister acting as head of a government department. Section 2 of the Department of Indian Affairs and Northern Development Act, R.S.C. 1985, c. I-6 provides:

[5]            The wording of this provision suggests to me that the Minister is a servant of the Crown. The general authority granted to the Minister can be found in subsection 4(a) of the Department of Indian Affairs and Northern Development Act:

[6]         This Court can only grant interlocutory injunctive relief against the Minister if it can be shown that he acted beyond his statutory authority (Lodge v. Canada (Minister of Employment and Immigration), [1979], 25 N.R. 437 (F.C.A.) or where the moving party is challenging the constitutional validity of legislation (Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110). The subject matter of this motion for injunctive relief is the redirecting of funds from the Applicants to the province of Ontario. The Applicants seek to compel the Minister by Court order to re-route these funds directly to the Applicants. The Applicants have not pointed to a statute that prohibits the Minister from electing a different channel through which to deliver these funds or a statute requiring him to provide these funds at all. Further, the Applicants have not challenged the constitutional validity of any legislative provision. As this case does not fall under any of the exceptions to Crown immunity against injunctive relief, I would conclude that the relief sought in this motion is not available to the Applicants.

[7]         In contrast to this view, however, I note that other judges, faced with the same question in similar fact situations, have expressed the view that the court has jurisdiction to grant an interim injunction so as to maintain the status quo between the parties pending the disposition of the pending claims (Southeast Child and Family Services v. Canada (A.G.), [1997] 9 W.W.R. 236 at para. 12, aff'd [1998] 9 W.W.R. 583 (Man. C.A.); Anishinabe of the Sacred Circle Inc. v. Ontario (Minister of Health and Long-Term Care), [2002] O.T.C. 835 (Ont. S.C.J.) at para.14 )).

[8]         Accordingly, a prudent approach requires me to go on to consider whether the elements of the test for the granting of an interlocutory injunction have been met. In my view, for the reasons that follow, they have not.

Issue #2: Tri-partite Test for Injunction

[9]         The test for determining whether interlocutory injunctive relief should be granted was articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 at para. 43 (See also Manitoba (A.G.) v. Metropolitan Stores, supra at paras. 31-35). The requisite elements are as follows:

(a)         there exists a serious issue to be tried;

(b)         irreparable harm will result if the relief is not granted; and

©)         the balance of convenience favours the granting of relief.

[10]       The test is conjunctive. That is, failure by the Applicants to satisfy one prong of the test is fatal to the motion before me.

(a)         Serious issue

[11]       With respect to the seriousness of the issue to be tried, the Supreme Court of Canada in RJR-MacDonald Inc., supra at paras. 49-50, held:

The threshold is a low one. ... Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable (Emphasis added).

[12]       In the underlying application for judicial review, the Applicants have applied to quash the Minister's decision of June 15, 2005 to refuse to extend the interim direct funding for another 9 months because the decision was made without notice or opportunity to comment. In brief, they assert that:

·            the decision of the Minister is a decision of a _federal board, commission or other tribunal_ within the meaning of the Federal Courts Act and, hence, can be the subject of judicial review;

·            20 years of funding of prevention services by the federal government gives rise to legitimate expectations that the method of funding would not change except in a manner that provided for a smooth transition;

·            a decision of the Minister that the funding would cease rather than be redirected to an alternative delivery method requires that the Minister provide the Applicants with notice and an opportunity to respond to the decision to cease funding.

[8]         Both the Applicants and Minister describe the _decision_ at issue in this motion and application differently. In the Applicants' view, the Minister decided to terminate direct funding and, therefore, the services that they fund. In the Minister's view, indirect funding through a mandated agency chosen by the province of Ontario exists and, therefore, neither the funding nor the services have been terminated by the Minister. It is not for this Court at this time to assess the merits of this case or make factual findings that are better left for judicial review of the main application. All that is required at this stage is an assessment of whether the issues are frivolous or vexatious.

[9]         The Minister has raised a number of arguments that it submits are bars to the Applicants' judicial review succeeding. Briefly, they can be stated as follows:

·            Funding decisions are policy decisions within the authority of the legislature and are not, therefore, reviewable by a Court;

·            Funding decisions are discretionary and, therefore, no procedural fairness is owed to the Applicants;

·            The judicial review application is statute barred because the Applicants did not bring their application within 30 days of the Minister's decision first being communicated to them; and

·            Even if the doctrine of legitimate expectations is applicable, notice was given and meaningful consultations were held among the Respondent, the province of Ontario and the First Nations affected by the Minister's decision.

[13]       The parties disagree about whether the Minister's funding decision constitutes a purely policy decision that is not subject to judicial review, or a reviewable administrative decision. Again, this determination is better left for the judge hearing the application for judicial review. The Applicants have advanced affidavit evidence that the Minister's practice has been to fund child welfare prevention services directly rather than through an agency mandated by the province of Ontario. It is not for me, at this stage of the dispute, to determine whether this practice gives rise to a legitimate expectation affecting procedural fairness.

[14]       The Minister would have me make a finding of fact about whether the Minister, irrespective of whether it was owed, has extended procedural fairness to the Applicants - whether notice and meaningful consultations were provided. While there is extensive affidavit evidence stating that there was, I am reluctant to make a finding of fact on this point given the cautionary remarks of the Supreme Court about not assessing the case on its merits (RJR-MacDonald, supra at para. 49). As previously discussed, this is not an exceptional case where an extensive review of the evidence or a prima facie case is necessary (RJR-MacDonald,supra at paras. 51 and 55).

[15]       Thus, I am prepared to assume, without deciding, that there is a serious issue to be tried within the meaning of the tri-partite test.

(b)         Irreparable harm

[16]       It is well-established that irreparable harm is harm that cannot by cured by damages (RJR-MacDonald, supra at paras. 59). _Irreparable_ is a reference to the nature of the alleged harm, not its magnitude (RJR-MacDonald, supra). What then is the harm alleged?

[17]       The Applicants submit that if this Court does not grant the relief sought, the following snow ball of harm, which cannot be undone, will ensue:

(1)         Families in the Applicants' communities will lose essential prevention services;

(2)         Irreplaceable prevention workers will be laid off and disperse;

(3)         Without prevention services, a large number of children will be exposed to an increased risk of abuse;

(4)         An increased risk of abuse will increase the chances of Aboriginal children being apprehended by child protection agencies;

(5)         The apprehension of Aboriginal children by children protection agencies will increase the risk that they will be placed in non-Aboriginal homes, which is inherently damaging; and, finally

(6)        Community members will lose confidence in the local Chiefs and Councils' ability to meet their needs.

[18]       The Applicants' position is untenable for one reason: they have failed to show that the harm alleged would occur because of this Court's failure to intervene. Put simply, the Applicants' basic premise that, absent a Court order, their communities will lose essential services is purely speculative. In fact, there is substantial evidence before this Court that contradicts this premise.

[19]       The point of departure for the Applicants in its submissions on this point is that, but for this Court's intervention, essential child welfare prevention services will not be offered in their communities. This, however, is not true. At issue in this motion and indeed the judicial review application is not the termination of funding. The funding, as pointed out by the Minister, exists and has been earmarked to be used in the provision of child welfare prevention services. The Applicants, in this motion, are not asking this Court to order the funding of these services. Rather, they seek an order compelling the Minister to change the channel or means of funding that he has elected. The Applicants are unhappy that the Minister will only provide the funds for child welfare prevention services to the province of Ontario to be administered to the Applicants through a provincially approved agency.

[20]       What then are the consequences that will flow from this Court's decision not to issue an interlocutory injunction? That depends almost entirely on the Applicants. Pending the outcome of their application for judicial review, the Applicants can elect to receive services from an agency that is funded by the Minister and in part by the province of Ontario, or they can elect to decline this funding and do without the services that they consider to be essential. The choice is entirely theirs. The Minister has committed and continues to make available funding in the amount of $2.8 million through the province of Ontario and a provincially approved agency. All this Court has been tasked by the Applicants in this motion to consider is whether to compel the Minister to change the channel through which he funds these services.

[21]       The Applicants argue that there is no other way, at this time, to deliver these essential services. They submit that the letter dated June 28, 2004 from Abinoojii Family Services - the agency originally identified by the province and the Minister to deliver the program - demonstrates that Abinoojii has neither the will nor the capability to deliver the services. This is not an entirely accurate picture of the position of Abinoojii. Abinoojii commenced hiring staff to assume the delivery of the prevention services for the 14 First Nations in February 2004. It was only after the clear objection of the First Nations that Abinoojii backed off its preparations. Their position as of June 28, 2004 was that:

If, after those discussions [with the First Nations], some/all of the First Nation communities want Abinoojii to be their service provider for prevention services, we will be more than happy to proceed and are quite prepared to do so. (Emphasis added)

[22]       This is not, in my view, evidence that nothing can be done to provide the services. And, it is not evidence of irreparable harm. It is within the control of the Applicants to prevent or halt the alleged harm, by agreeing to allow the provision of services by Abinoojii.

[23]       Further, I note that the Applicants have not presented evidence that they have taken any further significant steps to provide for a stop gap provision of services. If these prevention services are so essential that a gap in services will result in irreparable harm to the members of the First Nation, why has there been little effort on the part of the Applicants between June 15, 2004 and today to reach out to the province and DIAND to address the situation?

[24]       Finally, the harm alleged by the Applicants is purely speculative in that it is based on risks that have a propensity to lead to further risks. The only allegation of actual harm, that being the loss of services, has already been discredited. The prevention workers need not disperse. The seemingly unstoppable momentum of risks and harm alleged by the Applicants is difficult to accept when stated in the abstract. To demonstrate irreparable harm, it must to be supported by some evidence of causation. It is not.

[25]       The Applicants refer to letters of concern from agencies providing protection services to the Applicants. While I believe that the expressions of concern in these letters are sincerely felt, they fall far short of establishing irreparable harm.

[26]       In conclusion on this point, the Applicants have failed to demonstrate that irreparable harm will befall them if this Court declines to grant the relief requested.

©)         The balance of convenience

[27]       The third and final element of the test for injunctive relief is balance of convenience. Under this rubric, this Court must consider _which of the two parties will suffer harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits_ (RJR-MacDonald,supra at para. 62).

[28]       The Applicants submit that a brief extension of direct funding to them will cause minimal inconvenience to the Minister and serve the best interests of children living in the Applicants' communities. They point to the evidence that, prior to June 30, 2004, prevention services being provided were effective.

[29]       On the other hand, the Minister submits that funding child welfare prevention services through the province of Ontario and, specifically, a culturally sensitive mandated agency will ensure that the services delivered adhere to standards set by the province, thereby serving the best interests of children. They point to the public interest inherent in allowing the federal government to make funding and policy decisions unobstructed by the courts.

[30]       In my view, the arguments of the Respondent should prevail on this particular aspect of the tri-partite test. As stated by Justice Joyal in Tsartlip Indian Band v. Pacific Salmon Foundation (1988), 24 F.T.R. 304 at para. 28:

The action taken by the defendant Crown is prima facie deemed to be in the public interest and the law is clear that when facing an interlocutory injunction . . . public policy is paramount and must prevail over more particular or private interests, even though, pending final disposition of legal or constitutional issues, the rights of the plaintiffs, whatever they may be remain in suspense.

[31]       It may be that the Applicants are successful in their judicial review application. However, until there has been a full assessment of the issues to be determined, I should assume that the policy determinations of the Minister are well-founded and should not be overturned on this interlocutory motion.

[32]       No bad faith has been alleged or demonstrated on the part of the Minister. Any gap in services can be eliminated by the Applicants accepting the administration of services through a provincially approved agency. Maintenance of the status quo, in this case, requires me to give effect to the discretionary policy decision of the Minister to cease the direct funding as of June 30, 2004.

[33]       I conclude that the balance of convenience favours the Minister.    

Conclusion

[34]       The Applicants have failed to satisfy the requirements for injunctive relief. Accordingly, their motion will be denied, with costs.

[35]       The parties are encouraged to work towards an expedited schedule for preparing the record for the judicial review application. I will be available to assist in that regard if necessary.

                                                                 ORDER

This Court orders that the motion is denied with costs to the Respondent.

      _Judith A. Snider_

Judge

                                                       FEDERAL COURT

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                    T-1338-04

STYLE OF CAUSE:                    LAC SEUL FIRST NATION and EAGLE LAKE FIRST NATION AS REPRESENTED BY THEIR CHIEFS AND COUNCILS v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

PLACE OF HEARING:              Winnipeg, Manitoba

DATE OF HEARING:                August 26, 2004

REASONS FOR ORDER

AND ORDER:                          The Honourable Madam Justice Snider

DATED:                                       August 30, 2004

APPEARANCES:

Mr. John J. Major                                                               FOR APPLICANTS

Mr. Douglas J. Keshen

Mr. Michael A. Connor                                                       FOR RESPONDENT

Ms. Glynis Hart

SOLICITORS OF RECORD:

Keshen & Major                                                                 FOR APPLICANTS

Kenora, Ontario

Mr. Morris Rosenberg                                                         FOR RESPONDENT

Deputy Attorney General of Canada

Winnipeg, Manitoba