Date: 20070119
Docket: T-68-06
Citation: 2007 FC 55
Ottawa, Ontario, January 19,
2007
Present:
The Honourable Mr. Justice Blais
BETWEEN:
RÉMY
VINCENT
Applicant
and
HURONNE-WENDAT
NATION COUNCIL
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review, filed pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7 (the Act), from the “decision” dated
December 22, 2006 rejecting the applicant’s counter-offer and reiterating the
decision of the Huronne-Wendat Nation Council (the HWNC) to enforce the order
of forfeiture issued against the applicant if he did not agree to the HWNC’s
terms by January 5, 2006.
RELEVANT
FACTS
[2]
The
applicant was found guilty of an organized crime offence related to cigarette
smuggling. Pursuant to that judgment, the Court of Quebec ordered the
forfeiture of a lot and a building in the possession of the respondent; that
decision was upheld by the Quebec Court of Appeal. As required under the Indian
Act, R.S.C. 1985, c. I-5, the rights, titles and interests forfeited to the
Government of Canada were subsquently transferred to the Huronne-Wendat Nation
Council.
[3]
On
November 5, 2005, the members of the Huronne-Wendat Nation took part in a
referendum and voted for the seizure of the lot and building by the HWNC and
for the eviction of the applicant from the premises.
[4]
On
November 11, 2005, counsel for the applicant submitted a settlement proposal to
the HWNC.
[5]
Following
up on the results of the referendum, and having read the proposal from
November 11, 2005, the Huronne-Wendat Nation Council unanimously passed
resolution number 5755. By this resolution, dated November 18, 2005, the
HWNC granted the applicant a strict deadline of December 2, 2005 to accept the
HWNC’s
terms,
under which he would be allowed to continue occupying the premises. If he
refused the HWNC’s terms, the Grand Chief of the Nation had the mandate to act
for and on behalf of the HWNC in order to take the required measures, including
recourse to the courts, to enforce the forfeiture order and enable the HWNC to
retake physical possession of the lot and building under dispute. This
resolution of the HWNC, together with the settlement counter-proposal, was
communicated to the applicant through his counsel on November 21, 2005.
[6]
On
November 30, 2005, counsel for the applicant informed counsel for the
respondent that the applicant rejected these terms and was awaiting a written
response to the counter-offer dated November 11,
2005.
[7]
On
December 2, 2005, counsel for the respondent informed counsel for the applicant
that the HWNC was giving the applicant a grace period of 30 days as of
December 5, 2005 to inform the HWNC of his decision. In the letter,
counsel for the respondent also informed the applicant that the proposal dated
November 18, 2005 still applied.
[8]
On
December 15, 2005, the applicant submitted a counter-proposal to the HWNC
through his counsel.
IMPUGNED DECISION
[9]
On
December 22, 2005, through its counsel, the HWNC informed counsel for the
applicant that his latest counter-proposal had been refused on imperative
grounds of transparency and integrity owed to the other members of the Nation
and reiterated that the grace period granted in the letter of December 2, 2005
would end on January 5, 2006.
[10]
Pursuant
to an order issued by Madam Justice Johanne Gauthier on April 21, 2006, only
the validity of this “decision” of December 22,
2005
may be challenged in the present judicial review proceedings. That being said,
in a second order dated April 27, 2006, Gauthier J. noted that it would be up
to the judge hearing the merits of this case to decide whether or not the
letter of December 22, 2005 can be considered a “decision of a federal board,
commission or other tribunal” under section 18.1 of the Act.
ISSUES
[11]
The
issues in this application for judicial review are the following:
a) Does the
letter of December 22, 2005 from counsel for the respondent constitute a
“decision of a federal board, commission or other tribunal” and the first
communication thereof within the meaning of sections 18 and 18.1 of the Act?
b) In the
affirmative, are the applicant’s evidence and arguments sufficient to persuade
this Court of the need to declare this “decision” contained in the
December 22, 2005 letter invalid or unlawful under subsections18.1(3) and
18.1(4) of the Act?
RELEVANT LEGISLATIVE
EXCERPTS
Federal Courts Act, R.S.C.
1985, c. F-7
|
18.1 (2) An application for judicial
review in respect of a decision or an order of a federal board, commission or
other tribunal shall be made within 30 days after the time the decision or
order was first communicated by the federal board, commission or other
tribunal to the office of the Deputy Attorney General of Canada or to the
party directly affected by it, or within any further time that a judge of the
Federal Court may fix or allow before or after the end of those 30 days.
(3) On an application for judicial review, the Federal Court may
(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
(4) The Federal Court may grant relief under subsection (3) if it
is satisfied that the federal board, commission or other tribunal
(a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
(b) failed
to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred
in law in making a decision or an order, whether or not the error appears on
the face of the record;
(d) based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
(e) acted,
or failed to act, by reason of fraud or perjured evidence; or
(f) acted
in any other way that was contrary to law.
|
18.1 (2) Les demandes de contrôle judiciaire
sont à présenter dans les trente jours qui suivent la première communication,
par l'office fédéral, de sa décision ou de son ordonnance au bureau du
sous-procureur général du Canada ou à la partie concernée, ou dans le délai
supplémentaire qu'un juge de la Cour fédérale peut, avant ou après
l'expiration de ces trente jours, fixer ou accorder.
(3) Sur présentation d'une demande de contrôle judiciaire, la Cour
fédérale peut :
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a
illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de
manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour
jugement conformément aux instructions qu’elle estime appropriées, ou
prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout
autre acte de l’office fédéral.
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour
fédérale est convaincue que l'office fédéral, selon le cas :
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice naturelle ou d’équité
procédurale ou toute autre procédure qu’il était légalement tenu de
respecter;
c) a rendu une décision ou une ordonnance entachée d’une erreur de
droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de
fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
|
ANALYSIS
a)
Does the letter of December 22, 2005 from counsel for the respondent constitute
a “decision of a federal board, commission or other tribunal” and the first
communication thereof within the meaning of sections 18 and 18.1 of the Act?
[12]
The
respondent submits that the application for judicial review cannot confer
jurisdiction on this Court to declare invalid and unlawful the terms contained
in the letter dated December 22, 2005 because the letter is not a
“decision of a federal board, commission or other tribunal” within the meaning
of sections 18 and 18.1 of the Act. The letter does not constitute an “order”
or a “decision” to evict the applicant on that date; rather, it reiterates the
HWNC’s November 18, 2005 decision by resolution number 5755 to evict the
applicant. According to the respondent, it is that resolution, communicated to
the applicant on November 21, 2005 and repeated on December 2, 2005, which
constitutes the “decision of a federal board, commission or other tribunal.”
[13]
The
case law is well settled : an Indian band council is a “ federal board, commission
or other tribunal” within the meaning of section 2 of the Act (Canatonquin
v. Gabriel, [1980] F.C.J. no. 87, [1980]
2 F.C. 792). Additionally, as acknowledged by Gauthier J. in her order of April 27, 2005, it is clear
that Mr. Michel Beaupré was acting for and on behalf of his client, the
Huronne-Wendat Nation Council, or its mandatary the Grand Chief, when he
drafted the letter of December 22, 2005.
[14]
The
real issue then is whether or not the letter of December 22, 2005 constitutes a
“decision” under sections 18 and 18.1 of the Act or is merely a confirmation of
such a decision (Wenzel v. Canada
(Minister of National Defence), [2003]
F.C.J. no. 373).
[15]
At
first blush, one might easily argue that the real decision that should have
been the subject of the judicial review application was the HWNC resolution
passed on November
18, 2005,
or more precisely, the communication of that resolution to the applicant
through his counsel on November 21, 2005.
[16]
That
being said, the affidavit of Max Gros-Louis, Grand Chief of the Huronne-Wendat
Nation, reveals that the decision to grant a 30-day grace period to the
applicant was motivated in part by the fact that discussions between the
parties were ongoing. Accordingly, it would not be unreasonable to argue that
the November
18, 2005
decision was not final and that the December 22, 2005 letter rejecting the
applicant’s counter-offer was also a decision of the Huronne-Wendat Nation.
[17]
Given
the ambiguity of this question, I am not of the view that it would be
appropriate to dismiss the judicial review application on that basis. I
therefore accept that the December 22 letter constituted the first
communication of a decision of a federal board, commission or other tribunal
within the meaning of sections 18 and 18.1 of the Act, namely, to reject the
applicant’s last counter-proposal.
b)
Are the applicant’s evidence and arguments sufficient to persuade this Court of
the need to declare this “decision” contained in the December 22, 2005
letter invalid or unlawful under subsections18.1(3) and 18.1(4) of the Act?
[18]
In
the alternative, the respondent submits that the applicant cannot meet the
burden of proof necessary to invoke any of the grounds set out in subsection
18.1(4) of the Act, as the applicant’s assertions are unsupported by the
evidence.
[19]
On
that point, I agree with the respondent. The applicant’s “submissions” are
essentially a series of allegations and a recital of facts, several of which go
beyond the parameters established by Gauthier J.’s orders and do not form any
argument that could demonstrate a breach by the HWNC warranting the
intervention of this Court under section 18.1 of the Act.
[20]
The
HWNC clearly acted within the scope of its jurisdiction and observed the
appropriate legal principles. Furthermore, nothing in the evidence demonstrates
a violation of natural justice or procedural fairness. In fact, the HWNC
decision represents the follow-through of an expression of public opinion by
the Huronne-Wendat Nation through a democratic process. Finally, nothing in the
evidence indicates that the HWNC based its decision or
order on an erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it.
[21]
In
the conclusion of his memorandum, the applicant states that he seeks the same
treatment as that received by his father, François Vincent, to whom the HWNC
had decided to return all forfeited property. In so doing, he fails to see the
fundamental differences between his own situation and his father’s: the latter
pleaded guilty to the charges that arose as a result of his wife’s cigarette
smuggling activity and was acknowledged by the Crown to be a passive possessor
who had not taken part in the smuggling activities and in fact had objected to
them.
[22]
The
applicant, having failed to demonstrate that the decision of the Huronne-Wendat
Nation Council is of such a nature as to warrant the intervention of this Court
under section 18.1, the application for judicial review must be dismissed.
[23]
As
to costs, the respondent will file its written submissions no later than
January 26, 2007, and the applicant will file his reply no later than February
2, 2007.
JUDGMENT
1. The
application for judicial review is dismissed;
2. With respect
to costs, the respondent will file its written submissions no later than
January 26, 2007, and the applicant will file his reply no later than February
2, 2007.
“Pierre
Blais”
Certified
true translation
François
Brunet, LLB, BCL
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