Date: 20100330
Docket: T-1753-08
Citation: 2010 FC 343
Ottawa, Ontario, March 30, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
FIRST NATIONS CHILD AND
FAMILY CARING SOCIETY OF CANADA
AND THE ASSEMBLY OF FIRST NATIONS
Respondents
REASONS FOR ORDER AND ORDER
[1]
This motion involves two appeals from a decision of Prothonotary
Aronovitch in which she made two orders. The Attorney General of Canada appeals
her order imposing a temporary stay of its underlying application for judicial
review pending a hearing before the Canadian Human Rights Tribunal. The
Respondents appeal her order dismissing their motion to strike the Attorney’s
General’s underlying application for judicial review.
[2]
In my view, neither appeal should succeed.
I. The Attorney General’s
Appeal of the Stay
(a) The
Prothonotary’s Decision
[3]
The Respondents filed a complaint with the Canadian Human Rights
Commission alleging that the Department of Indian and Northern Affairs Canada
(INAC) discriminated in the provision of services to aboriginal children living
on reserves. The substance of the complaint is that INAC fails to provide
funding for welfare services equivalent to the levels provided by provincial and
territorial governments. INAC challenged the complaint on the grounds that the
Commission did not have jurisdiction to deal with it. INAC’s position is that
it is merely a funding agency and is not, therefore, providing a “service”.
Nevertheless, the Commission referred the complaint to the Canadian Human
Rights Tribunal for a hearing.
[4]
The Attorney General sought to have the Commission’s referral decision
judicially reviewed. The Respondents moved to strike the application for
judicial review or, in the alternative, to have the Attorney General’s
application stayed pending the outcome of the proceedings before the Tribunal.
Prothonotary Aronovitch granted the stay motion, after applying the accepted
three-part test. She found that there was a serious issue involved, that the Respondents
would suffer irreparable harm if the stay were not granted, and that the
balance of convenience lay in having the application for judicial review held
in abeyance while the Tribunal proceeded to hear the merits of the Respondents’
complaint.
(b) Grounds for Appeal
[5]
It is only where a prothonotary’s decision relates to an issue vital to
the final outcome of the case, or where the prothonotary’s decision is clearly
wrong, that the Court will intervene on appeal.
[6]
The Attorney General argues that I should intervene because the merits
of the application for judicial review may never be dealt with if it is stayed.
While the same issues can be presented to the Tribunal, the Tribunal is not a
supervisory body. Only the Federal Court can decide whether the Commission’s
referral decision was proper.
[7]
In my view, the issue before the prothonotary related to a temporary
stay of the Attorney General’s application for judicial review. Clearly, it
does not relate to an issue vital to the final outcome of that application. The
application can be revived at the Attorney General’s instance after the
Tribunal has heard the merits of the complaint. If INAC succeeds before the
Tribunal, the Attorney General may decide not to pursue the application for
judicial review. If the Respondents succeed before the Tribunal, the Attorney
General may decide to pursue its application for judicial review in an attempt
to show that the matter never should have gone to the Tribunal. In either of
those scenarios, the final outcome of the application would be unaffected by
the granting of a temporary stay. Accordingly, there is no basis for the Court
to intervene on this ground.
[8]
In addition, the prothonotary’s decision is not clearly wrong. She
applied the accepted test for a stay, considered the submissions of the parties
and weighed the evidence before her.
(c) Conclusion
[9]
There are no grounds on which the Court can intervene on the Attorney
General’s appeal of the prothonotary’s order imposing a temporary stay on the
application for judicial review.
II. The Respondent’s Appeal of
the Dismissal of their Motion to Strike
(a) The
Prothonotary’s Decision
[10]
The Respondents argued before the Prothonotary that the Attorney
General’s application for judicial review was bereft of any chance of success
and, therefore, should be struck. Prothonotary Aronovitch found, however, that
there was at least some support in the case law for the Attorney General’s
position and, therefore, that the Respondents’ motion did not meet the strict
test for striking an application (David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)).
(b) Grounds
for Appeal
[11]
The prothonotary’s decision clearly involved a matter relating to the
final outcome of the Attorney General’s application. Had her decision gone the
other way, the application would have been terminated. Accordingly, I must
decide whether the Respondents’ motion to strike should be granted.
[12]
The Respondents argue that the Attorney General cannot succeed in its
application for judicial review. The role of the Commission is to decide
whether a complaint should be referred to the Tribunal for a hearing. Under s.
41(1)(d) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, the
Commission must refer a complaint unless it appears to the Commission that the
complaint falls outside the Commission’s jurisdiction. Justice Marshall
Rothstein concluded that this test means that the Commission must refer a
complaint to the Commission unless it is “plain and obvious” that the Tribunal
lacks jurisdiction (Canada Post Corp. v. Canada (C.H.R.C.)
(1997), 130 F.T.R. 241). The Respondents also suggest that the Commission
should be given considerable latitude in deciding whether a complaint should be
referred for a hearing (Bell Canada v. Communications, Energy and
Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.)). Taking these
propositions together, the Respondents submit that the Attorney General will
not be able to persuade the Court to overturn the Commission’s decision,
because the Court will surely defer to the Commission’s conclusion that it was
not plain and obvious that their complaint fell outside the Commission’s
jurisdiction. The Commission considered the parties’ submissions and concluded
that jurisdictional questions, such as whether the complaint related to the
provision of “services”, were bound up with the actual substance of the
complaint and ought to be decided along with the merits. There is no basis,
argue the Respondents, on which this Court should intervene.
[13]
The Attorney General relied on a case in which the Federal Court of
Appeal concluded that the Commission’s decision on a matter relating to
jurisdiction must be correct: Canada (A.G.) v. Watkin, 2008 FCA
170. Watkin dealt with one of the same issues raised by the Attorney
General here – whether the complaint related to the provision of a “service”.
The Federal Court of Appeal concluded that this was a “true question of
jurisdiction” that should be reviewed on a correctness standard.
[14]
The parties cited a number of other cases back and forth, but I find it
unnecessary to analyze them. It is clear to me from the parties’ submissions
that there is a genuine legal question presented by the Attorney General’s
application for judicial review and that the case law does not provide a
definitive answer to it. In these circumstances, I cannot say that the Attorney
General’s application is wholly without merit and, therefore, it ought not to
be struck.
(c) Conclusion
[15]
The Respondents have failed to satisfy me that the Attorney General’s
application is bereft of a chance of success. Therefore, I must dismiss their
appeal.
ORDER
THIS COURT ORDERS that
1.
The Attorney General of Canada’s appeal is dismissed.
2.
The Respondents’ appeal is dismissed.
3.
Given the outcome, there is no order as to costs.
“James
W. O’Reilly”
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