Maracle v. Canada (Attorney General), 2015 FCA 82

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2015 FCA 82

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Text of decision

Date: 20150324

Citation: 2015 FCA 82

CORAM:		PELLETIER J.A. WEBB J.A. BOIVIN J.A.
	BETWEEN:
	CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, and CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE
	Appellants
	and
	ATTORNEY GENERAL OF CANADA
	Respondent

Heard at Ottawa, Ontario, on March 24, 2015.

Judgment delivered from the Bench at Ottawa, Ontario, on March 24, 2015.

REASONS FOR JUDGMENT OF THE COURT BY:

PELLETIER J.A.

Date: 20150324

Docket: A-307-14

Citation: 2015 FCA 82

CORAM:		PELLETIER J.A. WEBB J.A. BOIVIN J.A.
	BETWEEN:
	CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, and CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE
	Appellants
	and
	ATTORNEY GENERAL OF CANADA
	Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on March 24, 2015).

PELLETIER J.A.

[1] We are all of the view that this appeal should be dismissed.

[2] It is common ground that the standard of review of the Commission’s decision is reasonableness. The Commission concluded that the appellants had not shown that the differential treatment of which they complained was as a result of discrimination on a prohibited ground. We are agreed that this conclusion is reasonable for the following reasons.

[3] Even if we assume that the PwC study demonstrates that the appellant First Nations are subject to differential treatment, the evidence only shows that the “special characteristic” (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at paragraph 19) of the appellants which gives rise to this differential treatment is their size relative to other First Nations in Ontario. Size is not a prohibited ground of discrimination.

[4] The Commission did not have before it evidence which would allow it to find that the size of a First Nation was in some way a proxy for the national or ethnic character of that First Nation.

[5] In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, for example, it was the evidence of the difference in the aerobic capacity between men and women which allowed the tribunal to make the link between an apparently neutral rule and systemic gender based discrimination. In this case, recognizing that we are at the Commission and not at the Tribunal stage, the appellants have not pointed to any facts or any line of reasoning which would allow the Commission to make a link between band size and national or ethnic origin.

[6] As a result, the Commission’s decision that any differential treatment was not based on national or ethnic origin was reasonable.

[7] The appeal will therefore be dismissed with costs.

"J.D. Denis Pelletier"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:		A-307-14
STYLE OF CAUSE:	CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, AND CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		March 24, 2015
REASONS FOR JUDGMENT OF THE COURT BY:		PELLETIER J.A. WEBB J.A. BOIVIN J.A.
DELIVERED FROM THE BENCH BY:		PELLETIER J.A.

APPEARANCES:

Paul Champ

Bijon Roy

For The Appellants

CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, AND CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE

Helen Gray

For The Respondent

ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

Champ & Associates

Ottawa, Ontario

For The Appellants

William F. Pentney

Deputy Attorney General of Canada