Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., (1997) 100 O.A.C. 344 (CA)

• Judge: Finlayson, Labrosse and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 05, 1997
• Jurisdiction: Ontario
• Citations: (1997), 100 O.A.C. 344 (CA)

Ardoch Algonquin First Nation v. Ont. (1997), 100 O.A.C. 344 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. JN.024

Robert Lovelace, on his own behalf and on behalf of the Ardoch Algonquin First Nation and Allies, the Ardoch Algonquin First Nation and Allies, and Chief Kris Nahrgang, on behalf of the Kawartha Nishnawbe First Nation, the Kawartha Nishnawbe First Nation, Chief Roy Meaniss on his own behalf and on behalf of the Beaverhouse First Nation, and the Beaverhouse First Nation, Chief Theron McCrady on his own behalf and on behalf of the Poplar Point Ojibway First Nation, the Poplar Point Ojibway First Nation, and the Bonnechere Métis Association and Be-Wab-Bon Métis and Non-Status Indian Association and Ontario Métis Aboriginal Association (applicants/respondents in appeal) v. Her Majesty The Queen in Right of Ontario (respondent/appellant) and The Chiefs of Ontario (respondent/appellant)

(C25391)

Indexed As: Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ontario Court of Appeal

Finlayson, Labrosse and Laskin, JJ.A.

June 5, 1997.

Summary:

The Ontario government implemented a pilot project to distribute gambling profits from a casino to Ontario Indian Bands reg­istered under the Indian Act. Certain Indian groups and Métis groups (applicants), not registered as Indian Bands under the Act, were excluded from the negotiations and would not receive a share of casino profits. The applicants applied for a declaration that they had a right to share in profits. The applicants claimed a denial of their equality rights under s. 15 of the Charter by the government's exclusion of them.

The Ontario Court (General Division), in a judgment reported 14 O.T.C. 105, held that the government's exclusionary actions and policies violated the applicants' equality rights under s. 15 and were ultra vires the province as infringing on the federal power respecting Indians (Constitution Act, 1867, s. 91(24)). The court held that the applicants had a right to participate in the negotiations and a right to share in the casino proceeds. The government and the Chiefs of Ontario appealed. The three main issues were (1) whether the applicants' equality rights were violated; (2) whether the project was ultra vires the province because of the federal government's exclusive jurisdiction over Indians (Constitution Act, 1867, s. 91(24)) and (3) whether the relief ordered by the trial judge was justified.

The Ontario Court of Appeal allowed the appeal. The main object of the project was to ameliorate the social and economic con­ditions of a disadvantaged group (Indian Bands) within the meaning of s. 15(2). Since non-Band Indians were not members of the object group, there was no discrimination by excluding them from the project. According­ly, there was no need to consider s. 1 of the Charter. The project, being a straightfor­ward exercise of the provincial spending power, did not infringe on the federal gov­ernment's exclusive jurisdiction over Indians (s. 91(24)). In any event, the relief ordered by the trial judge went too far. He should have limited himself to a declaration of invalidity.

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - [See Civil Rights - Topic 5586 ].

Civil Rights - Topic 5581

Equality and protection of the law - Af­firmative action programs - General - Section 15(2) of the Charter provided that s. 15(1) did not preclude any "program ... that has as its object the amelioration of conditions of disadvantaged individuals or groups ..." - The Ontario Court of Appeal held that an affirmative action program under s. 15(2) further guaranteed s. 15(1) equality rights, it did not create exceptions to those rights - If the target of the pro­gram was a disadvantaged group and the object was to ameliorate the conditions of that group, then s. 15(2) applied - Such programs were subject to limited judicial scrutiny (e.g., court not to assess the ef­fectiveness of the program or the means chosen to achieve its object) - If some aspect infringed equality rights, then such infringement must be justified under s. 1 of the Charter (e.g., where program ex­cludes some disadvantaged persons or groups it was designed to benefit) - How­ever, there was no discrimination in ex­cluding a disadvantaged group outside the object of the program - See paragraphs 42 to 71.

Civil Rights - Topic 5586

Equality and protection of the law - Af­firmative action programs - Particular programs - The Ontario government im­plemented a pilot project to distribute gambling profits from a casino to Ontario Indian Bands registered under the Indian Act - Certain Indian groups and Métis groups (applicants), not registered as In­dian Bands under the Act, were excluded from the negotiations and would not re­ceive a share of casino profits - The ap­plicants claimed discrimination contrary to s. 15(1) of the Charter - The Ontario Court of Appeal held that the object of the project was "to ameliorate the social and economic conditions of Bands" - It was therefore an affirmative action program under s. 15(2) - The exclusion of non-Band Indians did not constitute discrimi­nation, as they were not among the groups the project was designed to benefit - The project was authorized by s. 15(2) and did not violate s. 15(1) - See paragraphs 42 to 94.

Civil Rights - Topic 5588

Equality and protection of the law - Af­firmative action programs - Protection from review - [See Civil Rights - Topic 5586 ].

Constitutional Law - Topic 6350

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - General - The Ontario government implemented a pilot project to distribute gambling profits from a casino to Ontario Indian Bands registered under the Indian Act - Certain Indian groups and Métis groups (applicants), not registered as Indian Bands under the Act, were excluded from the negotiations and would not receive a share of casino profits - The excluded groups claimed the project was ultra vires the province, as it infringed on federal jurisdiction over Indians (Con­stitution Act, 1867, s. 91(24)) - The On­tario Court of Appeal held that the project did not infringe on the federal power - The project was a straightforward, per­missible exercise of the provincial spend­ing power - See paragraphs 95 to 100.

Indians, Inuit and Métis - Topic 805

Personal or legal rights - General - Non-band Indians - [See Civil Rights - Topic 5586 ].

Indians, Inuit and Métis - Topic 806

Personal or legal rights - General - Métis - [See Civil Rights - Topic 5586 ].

Cases Noticed:

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 32].

Carter v. Brooks (1990), 41 O.A.C. 389; 2 O.R.(3d) 321 (C.A.), refd to. [para. 33].

Perry et al. v. Ontario, [1997] 100 O.A.C. 370 (C.A.), refd to. [para. 34].

University of California v. Bakke (1978), 438 U.S. 265 (U.S. Sup. Ct.), refd to. [para. 51].

N.M. v. Superintendent of Family and Child Services (B.C.) (1986), 34 D.L.R.(4th) 488 (B.C.S.C.), refd to. [para. 51].

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; 119 N.R. 353; 46 O.A.C. 13; 73 Man.R.(2d) 1; 3 W.A.C. 1, refd to. [para. 51].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 55].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 55].

Athabaska Tribal Council v. Amoco Canada Petroleum Co. et al. and Alberta (Attorney General), [1981] 1 S.C.R. 699; 37 N.R. 336; 29 A.R. 350, refd to. [para. 57].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 58].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 59].

Harrison v. University of British Columbia; Connell v. University of British Columbia, [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 60].

Roberts et al. v. Ontario et al. (1994), 73 O.A.C. 20; 19 O.R.(3d) 387 (C.A.), refd to. [para. 63].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 65].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1; 140 D.L.R.(4th) 1, refd to. [para. 67].

Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 78].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693, refd to. [para. 78].

Natural Parents v. Superintendent of Child Welfare (B.C.) et al., [1976] 2 S.C.R. 751; 6 N.R. 491, refd to. [para. 97].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 97].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 104].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 44]; sect. 15(1), sect. 15(2) [para. 42].

Constitution Act, 1867, sect. 91(24) [para. 97].

Authors and Works Noticed:

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes and Proceedings of Evidence, 1st Session, 33rd Report to Parliament (1980-81), pp. 7:17, 11:32, 17:90, 22:111, 24:56 to 24:57, 29:149, 32:41 [para. 53].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes and Proceedings of Evidence, 2nd Report to Parliament (1978), p. 20:4 [para. 53].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes and Proceedings of Evidence, 3rd Session, 30th Parliament (1978), p. 12:51 [para. 52].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 6:20 to 6:21 [para. 99].

Sheppard, Colleen, Litigating the Relationship Between Equity and Equal­ity (1993), p. 61 [para. 64].

Counsel:

Lori Sterling, Sarah Kraicer and T.C. Marshall, Q.C., for the appellant, Prov­ince of Ontario;

Michael Sherry, for the appellant, Chiefs of Ontario;

Christopher Reid, for the applicants/re­spondents in appeal, Robert Lovelace et al.;

Robert MacRae, Michael S. O'Neill and Kent Roach, for the applicants/respon­dents in appeal, Be-Wab-Bon Métis and Non-Status Indian Association and On­tario Métis Aboriginal Association.

This appeal was heard on December 18-20, 1996, before Finlayson, Labrosse and Laskin, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by the court and released on June 5, 1997.