Docket: A-449-14
Citation:
2015 FCA 154
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CORAM:
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TRUDEL J.A.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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LAC LA RONGE
BAND AND MONTREAL LAKE CREE NATION
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Applicants
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
TRUDEL J.A.
[1]
This is an application for judicial review by
Lac La Ronge Band and Montreal Lake Cree Nation (the applicants) of a decision
of the Specific Claims Tribunal (the Tribunal), issued on September 9, 2014
(2014 SCTC 8, file number SCT-5002-11) by Justice W.L. Whalen, a judge of the
Ontario Superior Court of Justice and a member of the Tribunal.
[2]
The Tribunal determined that the respondent
Crown breached its fiduciary duty to the applicants by permitting unlicensed
harvesting of timber on the applicants’ reserve lands between 1904 and 1910.
The Tribunal found that the Crown did not properly manage the timber on the
reserve, in part due to its failure to make use of any of the enforcement
measures that were available to it under the Indian Act, R.S.C. 1886, c.
43 [Indian Act 1886].
[3]
Despite having been largely successful before
the Tribunal, the applicants seek judicial review of certain parts of the
Tribunal’s decision and ask this Court to grant an order correcting the alleged
errors. The applicants’ primary submission is that the Tribunal erred in
holding that the Crown’s decision whether to prosecute an unlicensed harvester
under section 26 of the Indian Act 1886 was excluded from its fiduciary
duty to the applicants based on the principle of prosecutorial discretion. The
applicants also submit that the Tribunal erred in concluding that the surrender
of the timber on the reserve was valid and further assert that the Tribunal’s
decision gives rise to a reasonable apprehension of bias on the issue of
compensation.
[4]
For the reasons that follow, I propose to
dismiss the application. No prosecution was commenced under the Indian Act
1886 in respect of the unlicensed harvesting on the reserve during relevant
time period, and, in consequence, the principle of prosecutorial discretion is
not engaged in this claim. The Tribunal, in finding that the Crown breached its
fiduciary duty, determined that the duty encompassed the power to lay an
information under the Indian Act 1886. It follows that the Tribunal is
entitled to consider the Crown’s failure to lay an information when determining
compensation and I see no reason to interfere with the Tribunal’s reasoning on
this point.
[5]
On the issue of bias, I am not persuaded that
the Tribunal’s decision discloses a reasonable apprehension of bias. As for the
validity of the initial surrender of timber on the reserve, the parties agree
that the surrender was invalid and that the Tribunal erred in concluding
otherwise. Until the compensation phase of the proceedings has completed, the
claim remains before the Tribunal. As a result, I would not allow the judicial
review on this ground but rather ask that the Tribunal take note of the
parties’ agreement when deciding what compensation, if any, is owed to the
applicants.
I.
Background
[6]
The applicants are bands as defined under
subsection 2(1) of the Indian Act, R.S.C., 1985, c. I-5 and thus qualify
as “First Nations” under section 2 of the Specific Claims Tribunal Act,
S.C. 2008, c. 22 [SCTA]. They are located in Saskatchewan and are
adherents to Treaty 6. Pursuant to this treaty, reserves were set apart for the
applicants’ use. The timber harvesting at issue in this claim took place on one
of these reserves, known as Little Red Reserve 106A.
[7]
The applicants submitted a specific claim to the
Minister of Indian Affairs and Northern Development in August 2003, asserting
that the 1904 surrender of timber on Little Red Reserve did not comply with the
requirements of the Indian Act 1886 and that the timber was harvested
from the reserve in trespass. The applicants claimed that this amounted to a
breach of the Crown’s fiduciary duty and resulted in losses for which they are
owed compensation. Negotiations with the Crown were unsuccessful and the
applicants filed their claim with the Tribunal on December 8, 2011.
[8]
Following a case management conference in
September 2012, the Tribunal bifurcated the claim into two phases: validity and
compensation. The Tribunal would first decide the issue of the validity of
claim and, assuming the applicants were successful on this point, then consider
the amount of compensation owed by the Crown. The decision being challenged in
this application concerns only the validity of the applicants’ claim.
[9]
The applicants in their claim allege that the
surrender of timber was taken on January 16, 1904 without the approval of a
majority of voting members or the council of either band, as was required under
section 39 of the Indian Act 1886. Nevertheless, the surrender was
approved by Order in Council on February 4, 1904. Later that same year, the
Department of Indian Affairs approved the bid submitted by the Canada
Territories Corporation (CTC) to harvest the surrendered timber. Due to CTC’s
failure to pay the balance of its tender on time, however, the Department did
not issue a timber license until 1907. Even then, the license was not renewed
owing to CTC’s inability to meet payment deadlines and provide proper returns.
[10]
Despite these irregularities, CTC and its
subsidiary, Sturgeon Lake Lumber Company, harvested timber on the reserve from
1904 to 1910. The applicants allege that the Crown allowed the unlicensed
cutting to take place and failed to halt CTC’s harvesting activities or
otherwise take any enforcement measures available under either the Indian
Act 1886 or the Regulations for the sale of Timber on Indian Lands in
Ontario and Quebec, P.C. 1888-1788, subsequently extended to the entire
country except for British Columbia by P.C. 1896-1457 [ITR]. The
applicants argue that this permissive approach represented a breach of the
Crown’s fiduciary duty to the applicants. The Crown in its response to the
claim denied that it had breached its fiduciary duty and submitted that it did
all that was legally required when managing the timber harvesting.
II.
The Tribunal’s decision
[11]
The Tribunal determined the validity of the
applicants’ claim based on an agreed statement of facts as well as an agreed
statement of issues. The parties submitted to the Tribunal the following
issues:
- Did the Canada Territories
Corporation/Sturgeon Lake Lumber Company harvest timber on Little Red
Reserve 106A between August 22, 1904 and April 5, 1910, without a licence
in writing from the Superintendant [sic] General?
- If so, did the Crown owe a fiduciary duty to the Claimants to
prevent unlicensed harvesting and to enforce the provisions of Section 26
of the Indian Act, R.S.C. 1886, c. 43; as amended S.C. 1890, c. 29
with respect to any timber harvested from Little Red Reserve 106A between
August 22, 1904 and April 5, 1910?
- If so, did the Crown breach that duty?
[12]
The Tribunal noted that there was no dispute
that the timber located on the reserve had been validly surrendered to the
Crown and that surrender had been accepted (Tribunal reasons at paragraph 27).
[13]
The Tribunal held that the bands’ conditional
surrender of timber on the reserve to the Crown clearly gave rise to a
fiduciary obligation in the management of the timber sale and harvesting
(Tribunal reasons at paragraph 64). The real dispute, in the Tribunal’s view,
concerned the extent of the Crown’s duty and whether there had been a breach of
the duty in this case.
[14]
After reviewing the relevant jurisprudence on
the Crown’s fiduciary duty to Aboriginal peoples and the statutory regime for
managing timber harvesting under the Indian Act 1886 and the ITR,
the Tribunal determined that Crown’s discretionary control over the surrendered
timber meant that its fiduciary duty included statutory enforcement powers
aimed at preventing trespass and illegal harvesting (Tribunal reasons at
paragraphs 99-101). The Tribunal further held that, at the time of the timber
harvesting, the applicants did not have standing to bring an action in trespass
against CTC or any other unlicensed harvester. As a result, the Tribunal
rejected the Crown’s argument that the fiduciary duty should be restricted
because the applicants were not vulnerable to the Crown’s unilateral exercises
of power (Tribunal reasons at paragraphs 120-121).
[15]
Next, the Tribunal considered the Crown’s
argument that the recourse (or non-recourse) to enforcement and penalty
provisions under the Indian Act 1886 should be excluded from the
fiduciary duty due to the principle of prosecutorial discretion. The Crown
posited that section 26 of the Indian Act 1886, which imposed fines on
anyone who cut timber on a reserve without a license, was a quasi-criminal
provision, meaning that the Crown’s decision whether to prosecute an offender was
protected by the principle of prosecutorial discretion. It followed that the
Crown could not be liable for failing to avail itself of this provision.
[16]
The Tribunal accepted this argument in part and
held that prosecutorial discretion applied to section 26 of the Indian Act
1886. The Tribunal also noted, however, that any exception to the Crown’s
fiduciary duty should be narrowly constructed. Accordingly, prosecutorial
discretion would only apply once a prosecution under this section had been
initiated and the matter reached the courts. All steps leading up to that
point, including the laying of an information under section 26, would be
considered administrative acts falling within the scope of the Crown’s
fiduciary duty (Tribunal reasons at paragraph 139). The Tribunal concluded that
the Indian Act 1886 and the ITR provided the Crown with a range
of enforcement “tools” that could be deployed to prevent trespass on the
reserve and the unlicensed cutting of timber, of which initiating a prosecution
under section 26 was simply one option.
[17]
Based on the agreed facts, the Tribunal found
that CTC had trespassed on the reserve and been repeatedly non-compliant with
directions from the Department of Indian Affairs. The Crown had a fiduciary
duty to protect the applicants’ reserve from intrusion and exploitation. While
the Crown could not be held to a specific outcome, it had to meet the standard
of ordinary prudence and reasonable diligence in managing the surrendered
timber. In this case, the Crown’s permissive approach to CTC’s delinquency,
particularly in light of the range of non-prosecutorial powers open to it,
meant that it fell short of this standard. In essence, the Crown’s failure to
take any enforcement steps constituted a breach of its fiduciary duty to the
applicants (Tribunal reasons at paragraph 193).
III.
Legislative provision
[18]
Section 26 of the Indian Act 1886, the
interpretation of which is at issue in this application, reads as follows:
26. Every person, or Indian other than an
Indian of the band to which the reserve belongs, who, without the license in
writing of the Superintendent General, or of some officer or person deputed by
him for that purpose, cuts, carries away, or removes from any of the said land,
roads or allowances for roads, in the said reserve, any of the trees, saplings,
shrubs, underwood, timber or hay thereon, or removes any of the stone, soil,
minerals, metals or other valuables from the said land, roads or allowances for
roads, shall, on conviction thereof before any stipendiary magistrate, police
magistrate, or any two justices of the peace or Indian agent, incur -
(a.) For every tree he cuts,
carries away or removes, a penalty of twenty dollars;
(b.) For cutting, carrying away
or removing any of the saplings, shrubs, underwood, timber or hay, if under the
value of one dollar, a penalty of four dollars; but if over the value of one
dollar, a penalty of twenty dollars;
(c.) For removing any of the
stone, soil, minerals, metals or other valuables or other valuables aforesaid,
a penalty of twenty dollars, -
And the costs of prosecution in each case:
2. In default of immediate payment of the
said penalties and costs, such magistrate, justices of the peace, or Indian
agent, or the Superintendent General, or such other officer or person as he has
authorized in that behalf, may issue a warrant, directed to any person or
persons by him or them named therein, to levy the amount of the said penalties
and costs by distress and sale of the goods and chattels of the person or
Indian liable to pay the same; and similar proceedings may be had upon such
warrant issued by the Superintendent General, or such other officer or person
as aforesaid, as if it had been issued by the magistrate, justices of the peace
or Indian agent, before whom the person was convicted; or such magistrate, or
justices of the peace, or Indian agent, or the Superintendent General, or such
other officer or person as aforesaid, without proceeding by distress and sale,
may, upon non-payment of the said penalties and costs, order the person or
Indian liable therefor to be imprisoned in the common gaol of the county or
district in which the said reserve or any part thereof lies, for a term not
exceeding thirty days, if the penalty does not exceed twenty dollars, or for a
term not exceeding three months if the penalty exceeds twenty dollars:
3. If upon the return of any warrant for
distress and sale, the amount thereof has not been made, or if any part of it
remains unpaid, such magistrate, or justices of the peace, or Indian agent, or
the Superintendent General, or such other officer or person as aforesaid, may
commit the person in default to the common gaol, as aforesaid, for a term not
exceeding thirty days, if the sum claimed upon the said warrant does not exceed
twenty dollars, or for a term not exceeding three months if the sum exceeds
twenty dollars;
4. All such penalties shall be paid to the
Minister of Finance and Receiver General, and shall be disposed of for the use
and benefit of the band of Indians for whose benefit the reserve is held, in
such manner as the Governor in Council directs.
IV.
Issues
[19]
This application raises the following issues:
- What is the applicable standard of
review?
- Did the Tribunal err in finding that the surrender of timber
was valid?
- Did the Tribunal err in holding that the
Crown’s decisions when conducting a prosecution under section 26 of the Indian
Act 1886 were excluded from its fiduciary duty on the basis of
prosecutorial discretion?
- Does the
Tribunal’s decision give rise to a reasonable apprehension of bias on the
issue of compensation for the Crown’s breach of fiduciary duty?
V.
Analysis
A.
Standard of review
[20]
This Court recently determined the applicable
standard of review on applications for judicial review of decisions of the
Tribunal: Canada v. Kitselas First Nation, 2014 FCA 150, 460 N.R. 185 [Kitselas].
The Tribunal’s findings of fact and mixed fact and law are reviewed on a
standard of reasonableness. The specific legal question of the existence and
extent of the Crown’s fiduciary duty to Aboriginal peoples, by contrast, is
subject to a correctness standard (Kitselas at paragraphs 22-24).
[21]
Accordingly, the Tribunal’s determination of the
scope of the Crown’s fiduciary duty to the applicants shall be reviewed on a
standard of correctness. Other findings, such as the Tribunal’s ultimate
conclusion that the Crown breached its fiduciary duty in this case, attract a
more deferential standard of reasonableness.
B.
Did the Tribunal err in finding that the
surrender of timber was valid?
[22]
As mentioned above, the Tribunal found that the
timber had been validly surrendered, stating that
“[t]here is no dispute that the spruce timber on the Reserve had been properly
surrendered or that the surrender had been accepted” (Tribunal reasons
at paragraph 27).
[23]
The parties agree that the Tribunal erred in
making this determination. Indeed, the Crown conceded in its response to the
applicants’ claim, filed with the Tribunal on February 15, 2012, that the
surrender taken on January 16, 1904 did not comply with the requirements as set
out in the Indian Act 1886. While this concession formed part of the
record of the proceedings, it was not included in the agreed statement of facts
and the parties both acknowledged that the invalidity of the surrender was not
brought up during the hearing of the first phase of the claim.
[24]
The parties ask this Court on consent for a
declaration indicating the Tribunal’s error and stating that the surrender did
not comply with the relevant statutory requirements. Despite the agreement of
the parties, I would decline to make such an order in the circumstances. The
Tribunal has yet to hear the second phase of the claim and decide the amount of
compensation owed to the applicants. Accordingly, the claim has not been
resolved and the matter remains within the jurisdiction of the Tribunal.
Moreover, the applicants are not asking this Court to set aside the Tribunal’s
decision on the issue of validity.
[25]
As a result, I would simply take note of the
parties’ agreement on the invalidity of the surrender and ask that the Tribunal
consider this fact when determining the issue of compensation. It remains up to
the Tribunal to decide whether the invalidity of the surrender is relevant in
deciding the second phase of the claim.
C.
Did the Tribunal err in applying prosecutorial
discretion to limit the Crown’s fiduciary duty to the applicants?
[26]
The extent of the Crown’s fiduciary duty to the
applicants and its interplay with the principle of prosecutorial discretion is
the main issue in this application. There is no dispute that the Crown owed a
fiduciary duty in its management of the timber harvesting on the reserve. The
applicants agree with most of the Tribunal’s conclusions and submit only that
the Tribunal erred in excluding from the Crown’s fiduciary duty any decisions
made in the course of a prosecution under section 26 of the Indian Act 1886.
[27]
As mentioned earlier, the Tribunal held that
prosecutorial discretion would apply when the Crown sought a conviction under
the Indian Act 1886, such as was available under section 26. The Tribunal
drew a distinction between the steps leading up to a prosecution, including the
laying of an information, and the conduct of the prosecution before the courts.
Only decisions made in the latter context were covered by prosecutorial
discretion and therefore excluded from the Crown’s fiduciary duty.
[28]
The applicants submit that the Tribunal erred in
reaching this conclusion, given the facts of this particular claim. They argue
that, considering such factors as the sui generis nature of the Crown’s
fiduciary duty and its discretionary power over the timber on the reserve, the
Tribunal should not have carved out an exception to the fiduciary duty.
Instead, the Tribunal should have found that the Crown breached its duty by not
pursuing a prosecution and possible penalties under section 26 of the Indian
Act 1886. The respondent disagrees and submits that the Tribunal’s limitation
of the fiduciary duty by the principle of prosecutorial discretion was correct.
[29]
Despite counsel’s submissions on this point, I
do not characterize the issue in the same manner. In my opinion, this
application for judicial review does not engage the principle of prosecutorial
discretion. The Tribunal did not apply the principle to the facts of this claim
for the simple reason that the Crown never attempted to prosecute an individual
under the Indian Act 1886. Instead, the Tribunal identified a range of
non-prosecutorial powers that the Crown could have pursued to protect the
reserve and ensure CTC’s compliance with its obligations, which included the
power to lay an information (Tribunal reasons at paragraph 182).
[30]
The Tribunal went on to conclude that the
Crown’s failure to utilize any of these remedies in the relevant time period
resulted in multiple breaches of its fiduciary duty. The Crown could not
disregard its legal obligations to the applicants and ignore the provisions of
the Indian Act 1886 and the ITR. At the same time, the Tribunal
noted that the Crown maintained an overarching discretion in deciding how to
fulfill its fiduciary duty. Accordingly, the Tribunal declined to specify which
remedial tools the Crown should have employed in this case (Tribunal reasons at
paragraph 185). What mattered was that the Crown failed to meet the requisite
standard of care as a fiduciary.
[31]
The applicants do not dispute any of the
Tribunal’s important findings. At the hearing, counsel for the applicants noted
that the Crown was not required to prosecute CTC or any other operator under
section 26. Similarly, they agree there was no actual exercise of prosecutorial
discretion here because the Crown never initiated a prosecution under the Indian
Act 1886. Given the Crown’s failure to take the initial step of laying an
information, the actual conduct of the prosecution falls into the realm of pure
speculation. Finally, the applicants conceded that, even if the Crown’s
fiduciary duty did encompass prosecutions under section 26, the bands would not
be automatically entitled to the full measure of damages under that provision.
Indeed, the Crown’s fiduciary duty does not require it to achieve a particular
outcome, such as a conviction.
[32]
Taking these considerations into account, I do
not believe that prosecutorial discretion is at issue in this application. At
root, the claim concerns allegations of multiple breaches of the Crown’s
fiduciary duty to the applicants based on its lax approach to CTC’s unlicensed
timber harvesting. The Tribunal concluded that these allegations were made out
and that the claim was valid. I have not been persuaded that the Tribunal erred
in coming to this conclusion.
[33]
Furthermore, I agree with the Tribunal’s
statement that the Crown benefits from a wide margin of manoeuvre in deciding
how to fulfill its legal obligations. It is generally not appropriate for the
judiciary to step in and interfere with this exercise of discretion, nor do I
wish to be taken as establishing as a principle that the failure to lay an
information constitutes a breach of fiduciary duty. It must remembered that the
police, in the investigation and prosecution of potential offences, act
independent of the Crown. However, in the circumstances of this claim, the
Tribunal’s approach is fully justified. The Crown’s total failure to act to
correct CLC’s delinquency was sufficient to establish the breach of its duty,
given the range of options open to the Crown and the standard of care it had to
meet. It was not necessary for the Tribunal to go further and specifically
assess the various avenues that the Crown could have pursued. In my view, this
Court should similarly decline to speculate on how the Crown would have handled
a prosecution under the Indian Act 1886.
[34]
As prosecutorial
discretion is not engaged, it is not necessary to balance this principle and
the Crown’s broader public law duties with its fiduciary obligations to the
applicants. I would therefore dismiss this ground of the application.
[35]
Before turning to the final issue in this
application, I would like to emphasize that prosecutorial discretion might
still be relevant to the Tribunal’s determination of what compensation, if any,
is owed to the applicants. The Tribunal found that the laying of an information
under section 26 formed part of the Crown’s fiduciary duty. It follows that the
Crown’s failure to do so and to extract any penalties could be a basis for a compensable
loss under the SCTA. At the same time, it is impossible to know how the
Crown would have conducted this prosecution, much less whether it would have
succeeded and what penalties a court might have imposed. Prosecutorial
discretion may come into play to account for this contingency and adjust the
amount of compensation that would be owed, assuming of course that the Tribunal
finds that the Crown’s failure to seek penalties under section 26 constitutes a
basis for compensation. These remain matters for the Tribunal to decide at the
next phase of the claim.
D.
Bias
[36]
The applicants submit that, although the
Tribunal did not decide the issue of compensation in its decision, certain
comments made by the Tribunal member give rise to a reasonable apprehension of
bias. Specifically, these statements suggest that he has prejudged the question
of compensation, notwithstanding that they were made in obiter.
[37]
The impugned comments
are found at paragraph 197 of the Tribunal reasons, under the heading “The
Question of Loss”. For convenience, I reproduce the paragraph in its entirety
(emphasis added):
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The Respondent
submitted that there had been no breach because there had been no loss. The
Claimants were eventually paid for all the timber cut, including payment of
all fees, dues, ground rents, and interest. It concerned me that there was no
proven loss and that this first phase of hearing could end up being an
academic exercise with great cost to all involved. However, it had been
decided before my involvement that the process would be bifurcated into two
phases, with the first phase considering only whether the Claim was valid –
i.e. whether the Respondent had breached its fiduciary duty as alleged. The
tribunal and the Parties agreed that loss was not a question for consideration
in the first hearing phase and that was how the Parties prepared and
proceeded. It is possible to have one or more breaches of fiduciary
obligation without a loss having been incurred. Loss is not a precondition to
proof of a breach of fiduciary duty. A band may believe it has incurred a
loss as a result of a breach of fiduciary duty, but it may not succeed in
proving it. There is a risk that the first phase will not result in
compensation in any event. On the other hand, a compensable loss may be
proven if the Claim is valid. The question of compensation cannot be
prejudged, and in the meantime the costs of proof of loss are not incurred
unnecessarily before validity has been determined. The purpose of
bifurcation is to minimize the time and expense of the second phase if it
will not be necessary. If no loss is proven, it will be possible to
address the result through an award of costs.
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L’intimée a
soutenu qu’il n’y avait eu aucun manquement puisqu’il n’y avait eu aucune
perte. Les revendicatrices ont finalement été payées et elles ont
notamment reçu le paiement e tous les frais, rentes foncières et intérêts.
J’étais préoccupé par le fait qu’aucune perte n’avait été établie et que
cette première étape de l’audience puisse finir par avoir été un exercice
académique très coûteux pour les parties concernées. Cependant, il avait déjà
été décidé avant que je ne sois saisi de l’affaire que le processus serait
divisé en deux étapes, la première étape étant consacrée seulement à la
question de savoir si la revendication était valide – c.-à-d. si l’intimée
avait manqué à son obligation fiduciaire comme le prétendent les
revendicatrices. Le Tribunal et les parties sont convenu que la perte n’était
pas une question à trancher lors de la première étape de l’audience et c’est
sur cette base que les parties se sont préparées et qu’elles ont procédé. Il
est possible qu’il y ait un ou plusieurs manquements à l’obligation
fiduciaire sans qu’il n’y ait de perte. Il n’est pas nécessaire qu’il y ait
eu perte pour prouver qu’il y a eu manquement à l’obligation fiduciaire. Une
bande peut croire qu’elle a subi une perte par suite d’un manquement à
l’obligation fiduciaire, mais il se peut qu’elle ne puisse pas le prouver. Il
est donc possible que la première étape ne donne pas lieu à une indemnisation
de toute façon. En revanche, une perte indemnisable peut être établie si
la revendication est valide. On ne saurait préjuger de la question de
l’indemnisation et, entretemps, les frais engagés pour établir la perte avant
que la validité de la revendication ne soit établie ne le sont pas
inutilement. La division des procédures vise à réduire la durée de la
deuxième étape et les coûts y afférents si elle ne s’avère pas nécessaire. Si
aucune perte n’est prouvée, le Tribunal pourra accorder des dépens en
conséquence.
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[38]
Thee applicants point to certain passages as
indicators of prejudgment of the issue of compensation, notably the Tribunal’s
statements that the applicants were eventually fully paid for the harvested
timber, that there was no proven loss, and that there was a risk that the first
phase would become “an academic exercise”. Even though the Tribunal later noted
that compensation “cannot be prejudged”, the applicants submit that these words
do not alleviate the concerns engendered by the other comments.
[39]
I disagree with the applicants’ contention. When
these comments are properly considered together, they do not rise to the level
of a reasonable apprehension of bias.
[40]
There is no doubt that the duty of impartiality
applies to administrative decision-makers, such as members of the Tribunal, who
are acting in a judicial or quasi-judicial capacity. The content of this duty
varies based on the context and the decision-maker’s functions: Pelletier v.
Canada (Attorney General), 2008 FCA 1 at paragraph 49, [2008] 3 F.C.R. 40.
Given that the Tribunal member is a superior court judge and that the Tribunal
fulfills adjudicatory functions, the decision attracts the highest standard of
reasonable apprehension of bias.
[41]
The Supreme Court of Canada reiterated the
standard for a reasonable apprehension of bias in Wewaykum Indian Band v.
Canada, 2003 SCC 45 at paragraph 60, [2003] 2 S.C.R. 259 [Wewaykum]
(quoting Committee for Justice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716):
In Canadian law, one standard has now
emerged as the criterion for disqualification. The criterion, as
expressed by de Grandpré J. in Committee for Justice
and Liberty v. National Energy Board, supra, at p.
394, is the reasonable apprehension of bias:
… the apprehension
of bias must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is “what would an
informed person, viewing the matter realistically and practically — and having
thought the matter through — conclude. Would he think that it is more
likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.”
[42]
At the same time, the Supreme Court emphasized
that judicial impartiality is presumed and that the party alleging bias has the
burden of supporting its contention (Wewaykum at paragraph 59).
[43]
I find that the applicants have failed to meet
their burden. The Tribunal expressly recognized that the question of loss was
not relevant to the first phase of the proceedings and the issue could not be
prejudged. These comments are accurate and indicate that Whalen J. has not
already determined the applicants’ entitlement to compensation. A reasonable
person, one who has read the decision and is aware of the nature of the
proceedings, including the bifurcation order, would not conclude that Whalen J.
would approach the second phase of the claim other than with a fair and an open
mind. Moreover, based on the parties’ agreed statements of facts, it was
reasonable for the Tribunal to believe that the applicants were fully paid for
the harvested timber. To the extent that this finding is relevant to the issue
of compensation, the applicants will have the opportunity to present evidence
at the second phase to challenge it. There is no basis, however, for requiring
another member of the Tribunal to hear the remainder of their claim.
[44]
In conclusion, I would dismiss the applicants’
argument on the question of bias.
VI.
Proposed Disposition
[45]
For these reasons, I propose to dismiss the
application for judicial review with costs and to invite the Tribunal to take
note of the Crown’s concession that the 1904 timber surrender failed to comply
with the relevant statutory requirements of the Indian Act 1886.
“Johanne Trudel”
“I agree
D. G. Near J.A.”
“I agree
Donald J. Rennie
J.A.”
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