Docket: T-2492-14
Citation:
2015 FC 1197
Ottawa, Ontario, October 23, 2015
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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(MINISTER OF
INDIAN AFFAIRS AND NORTHERN DEVELOPMENT)
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Applicant
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and
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COLD LAKE FIRST
NATIONS,
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SAWRIDGE FIRST
NATION,
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ATHABASCA CHIPEWYAN
FIRST NATION,
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ONION LAKE CREE
NATION,
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THUNDERCHILD
FIRST NATION,
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THE OCHAPOWACE
INDIAN BAND
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Respondents
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ORDER AND REASONS
[1]
The Court is faced with two motions brought
respectively by Sawridge First Nation [Sawridge] and Onion Lake Cree Nation [Onion
Lake] seeking to either enjoin the Attorney General of Canada [Attorney General]
from further prosecuting this application or staying the application pending
the resolution of related actions in this Court and in the Alberta Court of
Queen’s Bench. Onion Lake seeks, in addition, mandatory injunctive relief
against the Minister of Aboriginal Affairs and Northern Development Canada [Minister]
in respect of the withholding of funding for so-called non-essential programs.
[2]
All of the outstanding litigation among the
parties concerns the enforceability of the First Nations Financial
Transparency Act, SC 2013, c 7 [the Act]. The underlying application was
brought by the Attorney General under section 11 of the Act, seeking to enforce
against the Respondent Bands the financial reporting functions described in sections
7, 8 and 9. All of the Respondents have refused to comply with these
provisions and they seek to challenge the constitutionality of the legislation
on the basis of their asserted treaty and Aboriginal rights. They also
maintain that the Act violates sections 15, 25 and 35 of the Canadian
Charter of Rights and Freedoms, 1982, CQLR c C-12 [Charter], or breaches
the Crown’s fiduciary duties.
I.
The Evidence (Sawridge)
[3]
The record discloses a long history of largely
amicable interaction between Sawridge and the Department of Aboriginal Affairs
and Northern Development Canada [the Department] concerning Sawridge’s
financial disclosure. Correspondence in 2003 and later indicates that Sawridge
regularly disclosed its financial statements to the Department but always on
the understanding that the information would be held in the strictest of
confidence. This situation changed beginning in 2012 when Sawridge and a
number of other First Nations bands expressed their opposition to the passage
of the Act.
[4]
On February 12, 2013, Chief Roland Twinn
testified before the Standing Senate Committee on Aboriginal Peoples and
expressed his opposition to the Act. In that testimony, Chief Twinn expressed
his willingness to follow Sawridge’s earlier disclosure practices with the
Department and also to publically account for its public funding. He objected
to the disclosure of the financial affairs pertaining to the Band’s private
commercial operations. He also contested the constitutional validity of the
Act and advised the Committee that its passage into law would trigger a legal
action.
[5]
When Sawridge elected not to comply with the
reporting requirements of the Act, the Department warned that the default would
be publically disclosed and an enforcement proceeding could be launched. On
November 27, 2014, the Department advised Sawridge that its default would be
publically declared. On December 8, 2014, the Minister issued a press release
announcing his intention to bring applications against the Respondents in the
Federal Court to compel compliance with the Act. That press release also
stated that the Department would withhold funding for “non-essential”
programs from all non-compliant First Nations.
[6]
On December 8, 2014 the Attorney General filed
an originating application launching this proceeding seeking an Order
compelling the Respondents to comply with the stipulated disclosure
requirements. This was, in turn, followed by an action brought by Sawridge
against the Attorney General in the Court of Queen’s Bench of Alberta (File
Number 1503-04882) challenging the constitutional validity of the Act based on
Sawridge’s asserted Aboriginal and treaty rights, a breach of fiduciary and
trust obligations, a breach of its right to self-government, a breach of the
duty to consult, and a violation of the equality provisions guaranteed by
section 15 of the Charter.
II.
The Evidence (Onion Lake)
[7]
The historical record filed on behalf of Onion
Lake is less voluminous than that of Sawridge. It discloses a letter dated
October 27, 2014 from the Department to the Chief and Council for Onion Lake
indicating that their non-compliance with the Act would lead to the withholding
of funding for non-essential programs and possibly withholding of funding for
essential services. In a letter dated November 27, 2014, the Department
confirmed that it had held back funding in the amount of $159,605 and would
continue to withhold monies if Onion Lake failed to meet the disclosure
requirements of the Act.
[8]
The affidavit of Chief Fox states that as of May
14, 2015, the Department had withheld funding to Onion Lake in the amount of
$1,034,017.52. Those funds were payable in connection with band employee
benefits for approximately 800 employees (including on-reserve teachers), band
registry administration, and band support administration. Although not
entirely clear from Chief Fox’s affidavit, the impasse with the Department
appears to have disrupted funding necessary for the occupation of 15 housing units
on the reserve.
[9]
As a result of these actions by the Department, on
November 26, 2014 Onion Lake initiated a legal action in this Court against the
Government of Canada. That action claims damages and declaratory and
injunctive relief against the Crown based on allegations of Charter-based
discrimination, a failure to consult, a breach of fiduciary duties, and a
breach of promises made by the Crown in Treaty 6.
III.
Analysis
[10]
Sawridge and Onion Lake assert that they have
each made out a claim to injunctive relief to be realized in the form of an
exemption from the statutory disclosure provisions in the Act pending the
resolution of the legal issues they have raised. In the alternative, they ask
that the Court stay the Minister’s section 11 application pending the outcome
of their respective legal challenges to the Act in this Court and in the Court
of Queen’s Bench of Alberta. That relief is sought under subsection 50(1) of
the Federal Courts Act, RSC, 1985, c F-7 which allows the Court to
stay one proceeding in favour of another where the issues raised are
substantially the same. The remaining Respondent First Nations have not
brought their own motions for relief but effectively seek to shelter under the
motions brought by Sawridge and Onion Lake.
[11]
For the reasons that follow, I decline to
entertain the First Nations’ motions for injunctive relief in connection with
the prosecution of the Attorney General’s enforcement application. That is not
to say that those motions lack merit, but only that relief under section 50 is
more appropriate and less disruptive than an interim order exempting a party
from the obligation to comply with facially-valid legislation. In practical
terms, the result is the same.
[12]
Subsection 50(1) provides for the following:
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50. (1) The
Federal Court of Appeal or the Federal Court may, in its discretion, stay
proceedings in any cause or matter
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50. (1) La Cour
d’appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre
les procédures dans toute affaire
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(a) on the ground
that the claim is being proceeded with in another court or jurisdiction; or
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a) au motif que
la demande est en instance devant un autre tribunal;
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(b) where for any
other reason it is in the interest of justice that the proceedings be stayed.
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b) lorsque, pour
quelque autre raison, l’intérêt de la justice l’exige.
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[13]
The burden, of course, rests with the moving
parties to satisfy the Court that relief in the form of a stay is warranted.
[14]
A leading authority applying subsection 50(1) is
White v EBF Manufacturing Ltd, 2001 FCT 713, [2001] FCJ No 1073. In
that case the plaintiff had commenced proceedings in both the Nova Scotia
Supreme Court and in the Federal Court seeking substantially the same relief.
The defendants sought a stay of the Federal Court action in the face of the
further-advanced proceeding in the Nova Scotia Supreme Court. After reviewing
the relevant authorities, Justice Jean-Eudes Dubé of this Court set out
the applicable principles to be applied:
1.
Would the continuation of the action cause prejudice or injustice (not
merely inconvenience or extra expense) to the defendant?
2.
Would the stay work an injustice to the plaintiff?
3.
The onus is on the party which seeks a stay to establish that these two
conditions are met;
4.
The grant or refusal of the stay is within the discretionary power of
the judge;
5.
The power to grant a stay may only be exercised sparingly and in the
clearest of cases;
6.
Are the facts alleged, the legal issues involved and the relief sought
similar in both actions?
7.
What are the possibilities of inconsistent findings in both Courts?
8.
Until there is a risk of imminent adjudication in the two different
forums, the Court should be very reluctant to interfere with any litigant's
right of access to another jurisdiction;
9.
Priority ought not necessarily be given to the first proceeding over
the second one or, vice versa.
[15]
More recently, Justice Anne Mactavish considered
subsection 50(1) in the context of parallel trade-mark proceedings: see Tractor
Supply Co. of Texas, LP v TSC Stores L.P., 2010 FC 883, [2010] FCJ No
1102. One of the parties argued that the applicable legal test was that
recognized for interlocutory injunctive relief in RJR-MacDonald Inc v Canada,
[1994] 1SCR 311, 1994 CarswellQue 120F, requiring proof of a serious issue and
irreparable harm and where the balance of convenience favours the grant of
relief. Justice Mactavish dealt with this argument in the following way:
[19] There is no question that the RJR-MacDonald
test is often applied in stay applications. It is undoubtedly applicable where
what is sought to be stayed is the enforcement of regulations, pending a
judicial determination of their constitutionality. Indeed, that was the issue
before the Supreme Court of Canada in the RJR-MacDonald case.
[20] The RJR-MacDonald test also
clearly applies where what is sought to be stayed is the decision of an
inferior court or tribunal, pending an appeal or application for judicial review
of that decision. This was the situation facing the Federal Court of Appeal in
Canada (Attorney General) v. Canada (Canadian International Trade Tribunal)
and Canada (Attorney General) v. United States Steel Corp., both cited
above.
[21] However, stays are also sought in
circumstances where the RJR-MacDonald test has no application. For
example, a proceeding in one jurisdiction may be stayed in favour of a
proceeding brought in a different jurisdiction on the basis of the principle of
forum non conveniens or because the other forum is “more appropriate”:
see, for example, the decisions of the Federal Court of Appeal in Apotex
Inc. v. AstraZeneca Canada Inc., 2003 FCA 235, [2003] F.C.J. No. 838,
application for leave to appeal dismissed [2003] 2 S.C.R., p. v, and Discreet
Logic Inc. v. Canada (Registrar of Copyrights), [1994] F.C.J. No. 582, 55
C.P.R. (3d) 167 (F.C.A).
[22] A stay of proceedings can also be
granted on the basis that the conduct of state actors is such that the
proceeding in question constitutes an abuse of process: see, for example, Mugesera,
cited above, Canada (Minister of Citizenship and Immigration) v. Tobiass,
[1997] 3 S.C.R. 391, and Canada (Attorney General) v. Sheriff, 2007 FCA
90, [2007] F.C.J. No. 380. Once again, the RJR-MacDonald test has no
application in such circumstances.
[23] There is a substantial body of
jurisprudence dealing with situations where a stay is being sought with respect
to one of two related proceedings being pursued in different fora: see, for
example, Safilo Canada Inc. v. Contour Optik Inc., cited above; Plibrico
(Canada) Limited v. Combustion Engineering Canada Inc., [1990] F.C.J. No.
36, 30 C.P.R. (3d) 312 (F.C.T.D.); Ass'n of Parents Support Groups v. York,
[1987] F.C.J. No. 141, 14 C.P.R. (3d) 263 (F.C.T.D.); Compulife Software
Inc. v. Compuoffice Software Inc. (cited above); 94272 Canada Ltd. v.
Moffatt, [1990] F.C.J. No. 422 31 C.P.R. (3d) 95 (F.C.T.D.); General
Foods v. Struthers, [1974] S.C.R. 98.
…
[29] There is obviously some overlap
between the White v. E.B.F. Manufacturing Ltd. factors and the RJR-MacDonald
test, particularly as the latter relates to the issues of irreparable harm and
balance of convenience. Given that what is really in issue in this case is
whether having the two proceedings continue in tandem amounts to an abuse of
process, I am of the view that considerations such as those identified in White
v. E.B.F. Manufacturing Ltd. are more relevant and appropriate in
considering a motion such as this than are the three elements of the RJR-MacDonald
test.
I agree with the above view. I am satisfied
that a motion for a stay under subsection 50(1), at least in the context of
multiple, related proceedings, is to be resolved in accordance with the
principles listed in White, above, supplemented with some consideration of
the balance of convenience.
[16]
Where the parallel proceedings involve a contest
between an action and an application, a further important consideration is
whether the issues raised are more appropriately resolved by way of full
discovery and trial or summarily by way of an application. The juridical
advantages and disadvantages of an application were described by the Supreme
Court of Canada in Canada v Telezone Inc., 2010 SCC 62 at para 26,
[2010] 3 S.C.R. 585. There the Court observed that, while the application process
is speedy and cost-effective, it denies the litigants access to full
pre-hearing discovery and the benefits of viva voce evidence: also see Lundbeck
Canada Inc. v Genpharm ULC, 2009 FC 146 at para 11, [2009] FCJ No 249.
[17]
On this point the law seems to be fairly well
settled: at least in the context of cases like this involving Aboriginal and
treaty rights. In Soowahlie Indian Band v Canada, 200 FTR 21, [2001]
FCJ No 105, Justice Paul Rouleau summarized the law in the following way:
6 The jurisprudence has clearly
established that cases which require proof of aboriginal rights or title
require determination by way of an action. In MacMillan Bloedel Ltd. v.
Mullin et al. (1985), 61 B.C.L.R. 145, one of the first cases to reach the
courts dealing with claims of this nature, the British Columbia Court of Appeal
rejected the assertion that aboriginal rights or title could be determined on
the basis of affidavit evidence. The Court stated at p. 151:
I am firmly of the view that the
claim to Indian title cannot be rejected at this stage of the litigation. The
questions raised by the claim are not the type of questions that should be
decided on an interlocutory application. A great amount of factual evidence
will have to be heard and considered, opinion evidence of those knowledgeable
in these matters will have to be assembled and related to the factual evidence,
and there will have to be a meticulous study of the law. That must take place
at a trial; it cannot be done on an interlocutory application.
7 This same reasoning has been
applied in a number of subsequent cases including Barlow v. Canada, [2000]
F.C.J. No. 282 (T.D.); Taku River Tlingit First Nation v. Tulsequah Chief Mine
Project, [1999] B.C.J. No. 984, (April 30, 1999) Vancouver Registry No. A990300
(B.C.S.C.); Athabasca Tribal Council v. Alberta (Minister of Environmental
Protection) (1985), 15 Admin. L.R. (3d) 110 (Alta. Q.B.); Calliou and Kelly
Lake Cree Nation v. Canada (Ministry of Energy and Mines), [1998] B.C.J. No.
3207, (September 21, 1998, Vancouver Registry No. C984320 (B.C.S.C.); British
Columbia (Minister of Forests) v. Westbank First Nation [2000] B.C.J. No. 1613
(B.C.S.C.).
8 The most recent decision on this
question is Haida Nation v. British Columbia (Minister of Forests), [2000]
B.C.J. No. 2427 (B.C.S.C.), a case which deals with issues which are very
similar, if not identical, to those raised in the case at bar. The Haida Nation
judgment concerns a legal challenge by the Haida to certain statutory decisions
made by the British Columbia Minister of Forests relating to timber harvesting
on the Queen Charlotte Islands. The grounds raised at the hearing and addressed
by the Court were that the assertion of aboriginal title gives rise to a
fiduciary duty on the part of the Provincial Crown and triggers the protection
of section 35 of the Constitution Act, 1982.
9 In dismissing the Haida's
petition, the British Columbia Supreme Court held that the assertion of
aboriginal title cannot be determined without a trial. The Court stated at p. 8
as follows:
I see fundamental weaknesses in the
petitioners' argument. First, it purports to cast an onus on the Crown to
disprove the asserted Aboriginal title of the Haida to all of the lands of
Block 6. If the Crown has not done this, so the argument goes, the existence of
Haida title to Block 6 must be presumed. But more than that, the argument
requires that Haida title be presumed to exist, to the extent claimed by the
Haida. Only if that presumption is made, can the argument proceed to the next
step, namely, the contention that Haida title must be given
"priority". This would permit the petitioners to argue that the Crown
had the duty to "accommodate" Haida title. But I have concluded that
there is no such presumption, in law.
The petitioners are saying, in
effect, that the Crown has the burden of proving "justification" for
infringing rights that have not yet been proved, in kind or in extent. In my
opinion, the issue of whether there has been infringement of Aboriginal right
cannot be decided until both the kind of right, and its extent, have been
established. I think the fatal flaw is that the petitioners want results that
could be achieved at a trial, and only after the Haida proved their Aboriginal
title, and its infringement.
My opinion is that the scope of the
Crown's fiduciary duty to the Haida cannot be determined without a trial.
Whether the duty requires that priority be given to Aboriginal title, and if
so, whether the measures taken by the Crown are consistent with the principle
of priority, are issues that depend on the nature and extent of the Aboriginal
right or title at issue. In my view, the judgement of Lamer, C.J.C. in
Delgamuukw, [1997] 3 S.C.R. 1010, at paragraphs 162 to 167 indicates that these
questions are matters for trial.
10 That reasoning is equally
applicable to the case now before me. The applicants' judicial review
application as currently pleaded raises the issues of proof of aboriginal
rights and title. These are questions which can only be determined by way of a
trial and accordingly the applicants' judicial review application should be
converted into an action. [Emphasis added]
[18]
Only a few weeks ago Justice Michael Manson
dealt with this issue in Prophet River First Nation v Canada, 2015 FC
1030, 2015 CatswellNat 4485. There the First Nation was arguing for judicial
review and the Minister maintained that a trial was necessary. Justice Manson
held that an application would not do justice to the issues for the following
reasons:
[52] In my view, the evidentiary record
developed for an action is the appropriate basis for a Court to make a
determination on the issue of infringement of the Applicants’ treaty rights.
While in Beckman v Little Salmon/Carmacks First Nations, above, at para
47, the Supreme Court made it clear that the judicial review process is a
flexible one, capable of dealing with an array of issues presented in that
context, it cannot reasonably be construed as saying that it is flexible enough
to deal with all issues, in all contexts and, as here, not for a determination
of infringement of Treaty No.8 rights.
[53] Where consultation is required at
the deep end of the spectrum and a specific determination on infringement on
established treaty rights is at issue, the Court is ill-equipped to make a
determination with an incomplete record or an informal evidentiary process
before it on judicial review. The infringement of those important and
fundamental treaty rights require a complete evidentiary record, that has
reached the standard of admissibility at trial, to be reasonably and fairly
determined. Nevertheless, it is without question that consideration of the
issue of infringement of those treaty rights, short of making an ultimate
decision or determination, needs to be part of the consultation process, as
discussed below.
[19]
In this situation, there is considerable overlap
in the legal issues that will be material to the outcome of the two actions and
this application. The Respondent First Nations intend to challenge the validity
of the Act on the ground, inter alia, that it violates their constitutionally
protected Aboriginal and treaty rights under Treaty 6 and Treaty 8 respectively.
That position will be advanced within the confines of this application and also
in the two pending actions. It will also, of necessity, involve the
development of a considerable evidentiary record. This factor strongly favours
an action over an application.
[20]
There is also potential for inconsistent
outcomes having particular concern for the evidentiary limitations inherent in
an application.
[21]
I note, as well, that all of the proceedings are
in their very early stages and a stay will not result in any material
thrown-away costs to any party.
[22]
As between the two proceedings in this Court, a
choice must be made. It is not as clear whether, and to what extent, actions
ought to be prosecuted in two different courts. It is worth noting, however,
that those proceedings involve different treaties requiring the development of
different evidentiary records. Judicial economies may still be achievable as
between the two outstanding actions in the context of cooperative case
management.
[23]
To the extent that a balancing of interests
ought to be considered, it does not, in these circumstances, favour the Minister.
The Minister was forewarned that the constitutional validity of the Act would
be challenged if it was passed into law. Onion Lake initiated its action
against the Minister in this Court on November 26, 2014. The next day the
Minister withheld funding for certain Onion Lake programs he deemed to be
non-essential, apparently with no advance consultation. The Minister then
brought this application on December 8, 2014.
[24]
The Attorney General acknowledges that the
issues raised by the Respondents are serious and, therefore, worthy of judicial
determination. Those issues were placed squarely before this Court by Onion
Lake and later by Sawridge in its Alberta action. The Supreme Court of Canada
has repeatedly held that disagreements of the sort raised in these legal
proceedings should be the subject of consultation and, where possible,
accommodation.
[25]
Needless to say, highly adversarial conduct by either
the Crown or a First Nation is generally to be avoided in favour of mediation
and, when necessary, by the courts. It does not serve the public interest for
either party to aggravate a legitimate disagreement that has properly been
placed before a court for resolution.
[26]
Subject to the duty to consult, the Minister’s
enforcement action against the Respondents was discretionary but, nevertheless,
authorized under the Act, as was the action he took in the form of withholding
funding from the Respondents and their members. It is also within the
Minister’s discretion under the Act to impose ongoing administrative penalties
against the Respondents and other non-compliant First Nations notwithstanding
the fact that his legal right to do so has yet to be judicially determined.
That is not to say, however, that this history is irrelevant in the
determination of which of the proceedings ought to be allowed to move forward. Against
this background the greater public interest favours the Respondent First
Nations and their right to move forward with their litigation in the absence of
the encumbrance of the Attorney General’s competing application.
[27]
For the foregoing reasons, the Attorney
General’s application will be stayed pending further order of the Court.
IV.
Onion Lake’s Claim to Injunctive Relief
[28]
Onion Lake seeks a mandatory injunction
requiring the Minister to reinstate the benefits previously withheld from it
under the authority of section 13 of the Act and to enjoin the Minister from
taking similar action going forward.
[29]
I accept Onion Lake’s point that injunctive
relief against the Crown is available in cases like this where important
Constitutional issues are raised. At the same time the authorities indicate
that considerable caution is required where the requested interim relief
interferes with validly enacted legislation. In Bellegarde v Canada,
2002 FCT 1131, 2002 CarswellNat 3081, this point was made by Justice Michel
Beaudry at para 66:
66. Although this is not a Charter
case, the Constitution Act, 1982, of which the Charter is a part,
is at play here. The Applicants are asserting rights that, in their view, are
supported by the Constitution of Canada, as well as the treaties into which
they entered. With this consideration in mind, it is useful to refer to the
remarks of Sopinka and Cory JJ. in their judgment of the interlocutory
injunction sought in RJR-Macdonald. In that case, the tobacco company
sought the suspension of application of laws with respect to the packaging and
advertising of tobacco pending the final disposition of their challenge of the
law. At pages 333 and 334 of the reasons, Sopinka and Cory JJ. laid out the
competing forces requiring careful consideration:
The relief sought is significant and its
effects far reaching. A careful balancing process must be undertaken. On one
hand, courts must be sensitive to and cautious of making rulings which deprive
legislation enacted by elected officials of its effect. On the other hand, the Charter
charges the courts with the responsibility of safeguarding fundamental rights.
For the courts to insist rigidly that all legislation be enforced to the letter
until the moment that it is struck down as unconstitutional might in some
instances be to condone the most blatant violation of Charter rights. Such a
practice would undermine the spirit and purpose of the Charter and might
encourage a government to prolong unduly final resolution of the dispute.
[Emphasis in original]
Also see RJR MacDonald Inc, above, at
pp 346-347.
[30]
I also accept that the Attorney General does not
hold a monopoly over the public interest solely on the strength of the enforcement
of legislative compliance. This point was recognized in RJR MacDonald,
above, at pp 343-344:
Some general guidelines as to the methods to
be used in assessing the balance of inconvenience were elaborated by Beetz J.
in Metropolitan Stores. A few additional points may be made. It is the
"polycentric" nature of the Charter which requires a
consideration of the public interest in determining the balance of convenience:
see Jamie Cassels, "An Inconvenient Balance: The Injunction as a Charter
Remedy", in J. Berryman, ed., Remedies: Issues and Perspectives,
1991, 271, at pp. 301-5. However, the government does not have a monopoly on
the public interest. As Cassels points out at p. 303:
While it is of utmost importance to
consider the public interest in the balance of convenience, the public interest
in Charter litigation is not unequivocal or asymmetrical in the way
suggested in Metropolitan Stores. The Attorney General is not the
exclusive representative of a monolithic "public" in Charter
disputes, nor does the applicant always represent only an individualized claim.
Most often, the applicant can also claim to represent one vision of the
"public interest". Similarly, the public interest may not always
gravitate in favour of enforcement of existing legislation.
It is, we think, appropriate that it be open
to both parties in an interlocutory Charter proceeding to rely upon
considerations of the public interest. Each party is entitled to make the court
aware of the damage it might suffer prior to a decision on the merits. In
addition, either the applicant or the respondent may tip the scales of
convenience in its favour by demonstrating to the court a compelling public
interest in the granting or refusal of the relief sought. "Public
interest" includes both the concerns of society generally and the
particular interests of identifiable groups.
[31]
The test for interim injunctive relief requires
the proponent to establish (a) a serious issue; (b) irreparable harm; and (c)
that the balance of convenience favours the grant of relief.
[32]
As noted above, the Attorney General concedes
that a serious issue has been raised. What remains in contention is whether
irreparable harm has been made out. On the evidentiary record before me, I am
unable to find that Onion Lake has met its burden on this issue.
[33]
Considerable attention was paid by the parties
to the potential for harm to Sawridge’s and Onion Lake’s financial interests by
the public disclosure of their financial statements. According to the Bands
irreparable harm will result if, in order to reinstate program funding, they
are compelled to disclose commercially sensitive information to their
competitors.
[34]
The Attorney General maintains that the Act
requires the disclosure of only highly consolidated financial data and thereby
effectively shields information that could be advantageous to the Bands’
commercial competitors. Although their previous reporting practices were
apparently more explicit, the Act does not compel that level of reporting.
[35]
The expert evidence advanced on behalf of the
Respondents to establish actual economic prejudice is, in my view, insufficient.
Presumably because Mr. Glen Hamilton did not review Sawridge’s actual
financial statements, he was unable to say whether the disclosure of its financial
data in a consolidated form would be likely to compromise its commercial
interests. His opinions concerning Sawridge are, therefore, theoretical. In
any event, his evidence does not touch on the financial affairs of Onion Lake
and provides no support to its claim to injunctive relief. In the absence of
specific examples of financial information that could harm Onion Lake’s
commercial interests and that are required to be publically disclosed under the
Act, this argument lacks evidentiary support.
[36]
The only evidence of irreparable harm to Onion Lake
comes from the affidavit of Chief Fox. Although it is clear enough that
Onion Lake has been deprived of a significant level of program funding, the
practical consequences of the Minister’s administrative actions are not
sufficiently explained to establish irreparable harm. I am effectively left to
speculate whether the funding shortfall for employee benefits to some 800 Band
employees (including teachers) can be made up from other sources or has
otherwise resulted in personal hardships to the employees and their families.
If the Minister’s action is interfering with employee recruitment or tenure, some
supporting evidence is required.
[37]
The withholding of a Ministerial Loan Guarantee
is said by Onion Lake to have affected 15 needy families, but no particulars of
their personal circumstances have been offered. It is not even clear if the
homes in question have been built and, if so, why they cannot be occupied.
[38]
I accept that, in some circumstances, the
failure by the Crown to consult before it acts may be sufficient to constitute
irreparable harm: see Haida Nation v Canada, 2015 FC 290 at para 54, [2015]
FCJ No 281 and Wahgoshig v Ontario, [2012] OJ No 22, 108 OR (3d)
647 at para 53. However, in both the Haida Nation and Wahgoshig
cases, there was evidence of material harm to the resource in question. The
former involved potential damage to a small herring fishery said to be “a significant risk of harm not compensable in damages”.
In the latter case, the breach arose from “a concerted,
willful effort not to consult” in connection with mining explorations on
asserted traditional territories.
[39]
In this case, the Minister acted unilaterally –
albeit on notice – under a specific authority granted to him in the Act. His
actions involve the withholding of money: something inherently compensable in
damages. In the absence of clear and convincing evidence that the withholding
of funding for the programs in question is causing other types of
non-compensable harm to Onion Lake’s membership or its employees, I am not
satisfied that the apparent failure to consult is sufficient, on its own, to
establish irreparable harm.
[40]
The denial of interim relief on this aspect of
Onion Lake’s motion is based solely on the paucity of evidence of irreparable
harm caused by the Minister’s administrative action. Nothing in these reasons
should be interpreted by any party as being finally determinative or preclusive
of the right of any of the Respondents to seek interim relief on a stronger evidentiary
record. Neither should the Attorney General interpret this outcome as an
endorsement of the actions taken to date by the Department. The Crown has an
ongoing legal obligation to consult and the Minister is required to carefully
consider the prejudicial effects of further administrative action on the
members of these Bands. That is particularly obvious where the legality of the
Act is before this Court. It is worth remembering that the underlying decisions
that have given rise to this litigation were made by Band leaders and by the Department.
However, those most affected are the members of the Bands and their interests
are worthy of careful consideration. The Crown’s failure to consult before
withholding further funding from the Respondents is, therefore, likely to be a
consideration in the face of evidence showing non-compensable injury to band
members going forward.
V.
Relief
[41]
On the basis of the foregoing, this application
is stayed until further order of the Court. The motion by Onion Lake seeking
injunctive relief in connection with the Minister’s withholding of program
funding is dismissed but without prejudice to the right of any of the Respondents
to bring a future motion for injunctive relief on a different evidentiary
record.
[42]
Inasmuch as Sawridge has been substantially
successful on its motion, I award it costs of $4,500.00 and its reasonable
disbursements including the costs of travel for up to two counsel.
[43]
Because of Onion Lake’s partial success, I award
it costs of $2,500.00 plus its reasonable disbursements including the costs of
travel for up to two counsel.
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