Hill v. Oneida Nation of the Thames Band Council et al., (2014) 462 F.T.R. 17 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: June 11, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 462 F.T.R. 17 (FC);2014 FC 796

Hill v. Oneida Nation (2014), 462 F.T.R. 17 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] F.T.R. TBEd. AU.032

Kevin Hill (applicant) v. Oneida Nation of the Thames Band Council and Clinton Wayne Hill (respondents)

(T-376-12; 2014 FC 796; 2014 CF 796)

Indexed As: Hill v. Oneida Nation of the Thames Band Council et al.

Federal Court

Strickland, J.

August 12, 2014.

Summary:

Marena Hill wanted to apply for a $500 grant from the Canada Mortgage House Corporation to complete renovations to the house that she was building on 6.5 acres located within the Oneida Indian Band Reserve No. 4. She was ineligible for the grant because she was not a first time home buyer. To obtain the grant, she prepared a quit claim deed dated October 17, 1975, which granted the property to her 18 year old son, Wayne Hill. The deed was not signed by Wayne and was not approved by the Oneida Nation of the Thames Band Council. Marena continued to live in the home. In April 27, 1989, she executed a quit claim deed granting Wayne one acre of the property and a right of way, which deed was approved by the Band Council. In 2004, she prepared a Statement to Dissolve the Quit Claim Deed of 1975 and a land transfer agreement (LTA). The LTA transferred the remaining 5.5 acres to her other son, Kevin Hill. The LTA was signed by Marena and Kevin and witnessed by the Lands and Estates Administration (LEA) Administrator. Wayne took the position that he had owned the property since 1975 and questioned Marena's mental competence to conduct transactions. The Band Council approved the LTA and the Statement to Dissolve the Quit Claim Deed on March 8, 2005, and approved the LTA again on April 12, 2005 (the 2005 decisions).Wayne continued to object, alleging improprieties in the way that the transfer had been made and questioning Marena's competence. On April 19, 2011, the Band Council reversed its 2005 decisions and recognized the 1975 quit claim deed. Kevin subsequently made representations. On December 15, 2011, the Band Council reaffirmed its April 19, 2011 decision. Kevin applied for judicial review.

The Federal Court allowed the application and set aside the April 19, 2011 decision, as affirmed on December 15, 2011.

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - Marena Hill wanted to obtain a $500 grant from the Canada Mortgage House Corporation to complete renovations to her home located on 6.5 acres within the Oneida Indian Band Reserve No. 4, but she was ineligible because she was not a first time home buyer - To obtain the grant, she prepared a quit claim deed dated October 17, 1975, which granted the property to her 18 year old son, Wayne Hill - The deed was neither signed by Wayne nor approved by the Oneida Nation of the Thames Band Council - Marena continued to live in the home - In 1989, she deeded one acre of the property to Wayne with the Band Council's approval - In 2004, she prepared a Statement to Dissolve the Quit Claim Deed of 1975 and a Land transfer agreement (LTA) - The LTA transferred the remaining 5.5 acres to her other son, Kevin Hill - Wayne took the position that he had owned the property since 1975 and questioned Marena's mental competence - The Band Council approved the LTA and the Statement to Dissolve (the 2005 decisions) - Wayne continued to object - On April 19, 2011, the Band Council reversed its 2005 decisions and recognized the 1975 quit claim deed - Kevin subsequently made representations - On December 15, 2011, the Band Council reaffirmed its April 19, 2011 decision - The Federal Court concluded that the Band Council owed Kevin a duty of procedural fairness that fell at the lower end of the spectrum - The Band Council was required to provide adequate notice of its meeting, including that it was considering reversing its approval of the 2005 decisions; give Kevin an opportunity to make effective representations by fully informing him of the allegations made against him; and duly consider his representations - While Kevin was generally alerted to, or given notice of, the fact that the issue of the status of the property was of concern to the Band Council, that notice was insufficient to alert him to the seriousness of the allegations that had been made against him and to know the case he had to meet - While he had declined to make submissions or to attend the Band Council's meeting, his decision was informed by his belief that the property's status was settled - Further, the evidence suggested that the Band Council had not considered the information provided by Kevin prior to the December 15, 2011 decision - The duty of procedural fairness was not met - See paragraphs 65 to 100.

Administrative Law - Topic 225

The hearing and decision - Right to be heard - What constitutes not being heard - [See Administrative Law - Topic 222 ].

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When required - The Oneida Nation of the Thames Band Council issued a decision which rendered a 1975 quit claim deed in favour of Wayne Hill valid and nullified an August 17, 2004 land transfer agreement in favour of his brother, Kevin Hill - Kevin applied for judicial review, asserting that, the decision was contrary to Oneida's customary law and/or because the Band Council exercised its discretion in an unreasonable manner - He further asserted that the decision was contrary to s. 20 of the Indian Act - The Federal Court held that it was not possible to assess the basis for the Band Council's decision as there were no reasons offered in support of it - There was also a very limited record in that regard - The court stated that "As a public body making a decision which impacts its members, Band Council has an obligation to provide intelligibility and transparency in its decision-making process. I do not suggest that, in the normal course, Band Council resolutions pertaining to administrative decisions concerning approval of land transfers between individuals require detailed written reasons. Indeed I am of the view that this would place too onerous a burden on this and other band councils. However, in extraordinary circumstances such as these, where Band Council was reversing its own decision made six years earlier and which would and did have a significant impact on the Applicant, and leaving aside the question of its jurisdiction to do so, more intelligibility in the decision-making process is required. ... Given the evidence and in the absence of reasons, the 2011 decision-making process was not intelligible or transparent and must be set aside." - See paragraphs 128 to 134.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Reasonable apprehension of - Marena Hill wanted to obtain a $500 grant from the Canada Mortgage House Corporation to complete renovations to her home located on 6.5 acres within the Oneida Indian Band Reserve No. 4, but she was ineligible because she was not a first time home buyer - To obtain the grant, she prepared a quit claim deed dated October 17, 1975, which granted the property to her 18 year old son, Wayne Hill - The deed was neither signed by Wayne nor approved by the Oneida Nation of the Thames Band Council - Marena continued to live in the home - In 1989, she deeded one acre of the property to Wayne with the Band Council's approval - In 2004, she prepared a Statement to Dissolve the Quit Claim Deed of 1975 and a Land transfer agreement (LTA) - The LTA transferred the remaining 5.5 acres to her other son, Kevin Hill - Wayne took the position that he had owned the property since 1975 and questioned Marena's mental competence - The Band Council approved the LTA and the Statement to Dissolve (the 2005 decisions) - Wayne continued to object - In 2011, the Band Council reversed its 2005 decisions and recognized the 1975 quit claim deed - Kevin applied for judicial review, asserting that the Band Council was biased or not independent when it made its 2011 decision as it was trying to avoid being perceived as having sanctioned a fraudulently obtained loan - The Federal Court rejected the assertion - While avoiding that perception might have been part of the Band Council's reasoning, it was not the only consideration - The evidence did not disclose what consideration (or considerations) was determinative - Given the high threshold that Kevin had to meet, the evidence was insufficient to establish that there was a reasonable apprehension of bias or that the Band Council was biased - See paragraphs 111 to 119.

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - [See Administrative Law - Topic 222 ].

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See Administrative Law - Topic 222 ].

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals - The Oneida Nation of the Thames Band Council issued a decision which rendered a 1975 quit claim deed in favour of Wayne Hill valid and nullified an August 17, 2004 land transfer agreement in favour of his brother, Kevin Hill - Both documents concerned the same property located within the Oneida Indian Band Reserve No. 41 - Kevin applied for judicial review - The Federal Court held that the Band Council's actions were of a public nature and it was a "federal board, commission or other tribunal" within the meaning of the Federal Courts Act and therefore the Band Council's decision was reviewable by the court - See paragraphs 34 to 38.

Indians, Inuit and Métis - Topic 6222.2

Government - Band councils (incl. chief and councillors) - Duty of procedural fairness - [See Administrative Law - Topic 222 , Administrative Law - Topic 547 and Administrative Law - Topic 2088 ].

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - The Oneida Nation of the Thames Band Council issued a decision which rendered a 1975 quit claim deed in favour of Wayne Hill valid and nullified an August 17, 2004 land transfer agreement in favour of his brother, Kevin Hill - Kevin applied for judicial review - The Federal Court acknowledged the Band Council's submission that the issue of procedural fairness was framed by Oneida law and custom - However, the jurisprudence had held that the issue of whether a Band Council had breached a duty of procedural fairness was to be reviewed on the correctness standard - The issues of whether the Band Council acted without or beyond its jurisdiction and whether it had a reasonable apprehension of bias were also reviewable on the correctness standard - With respect to the issue of the decision's reasonableness, the court recognized that chiefs and band councils had expertise on matters such as band custom and factual determinations and should be shown deference - Therefore, band council decisions were to be reviewed on the reasonableness standard - See paragraphs 41 to 46.

Cases Noticed:

Shotclose et al. v. Stoney First Nation (2011), 392 F.T.R. 115; 2011 FC 750, refd to. [para. 26].

Vollant v. Sioui et al. (2006), 295 F.T.R. 48; 2006 FC 487, refd to. [para. 30].

Frank v. Bottle et al., [1994] 2 C.N.L.R. 45; 65 F.T.R. 89 (T.D.), refd to. [para. 30].

Twigg v. Fox et al. (1988), 94 A.R. 1 (Q.B.), refd to. [para. 30].

Twigg v. Blood Indian Band - see Twigg v. Fox et al.

Cottrell v. Chippewas of Rama Mnjikaning First Nation (2009), 342 F.T.R. 295; 2009 FC 261, refd to. [para. 32].

Hengerer et al. v. Blood Indian Band et al. (2014), 449 F.T.R. 199; 2014 FC 222, refd to. [para. 37].

Air Canada v. Toronto Port Authority et al. (2011), 426 N.R. 131; 2011 FCA 347, refd to. [para. 37].

Prince et al. v. Sucker Creek First Nation (2008), 337 F.T.R. 1; 2008 FC 1268, refd to. [para. 39].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 41].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 41].

Parker v. Okanagan Indian Band Council (2010), 379 F.T.R. 26; 2010 FC 1218, refd to. [para. 43].

Tsetta v. Yellowknives Dene First Nation Band Council (2014), 453 F.T.R. 267; 2014 FC 396, refd to. [para. 44].

Hagos et al. v. Canada (Attorney General), [2014] F.T.R. Uned. 96; 2014 FC 231, refd to. [para. 45].

Deschênes v. Canadian Imperial Bank of Commerce (2011), 425 N.R. 56; 2011 FCA 216, refd to. [para. 45].

Campbell v. Cowichan Band of Indians (Council), [1988] 4 C.N.L.R. 45; 23 F.T.R. 43 (T.D.), refd to. [para. 47].

Campbell v. Elliott - see Campbell v. Cowichan Band of Indians (Council).

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 47].

Sparvier v. Cowessess Indian Band No. 73 et al., [1994] 1 C.N.L.R. 182; 63 F.T.R. 242 (T.D.), refd to. [para. 56].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 57].

Maloney v. Shubenacadie Indian Band et al. (2014), 447 F.T.R. 185; 2014 FC 129, refd to. [para. 57].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 57].

Minde v. Ermineskin Cree Nation et al. (2006), 302 F.T.R. 213; 2006 FC 1311, refd to. [para. 69].

Laboucan v. Little Red River Cree Nation #447 (2010), 372 F.T.R. 262; 2010 FC 722, refd to. [para. 69].

Public Service Alliance of Canada v. Canada (Attorney General) (2013), 439 F.T.R. 11; 2013 FC 918, refd to. [para. 77].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 77].

Russo v. Canada (Minister of Transport, Infrastructure and Communities) (2011), 406 F.T.R. 49; 2011 FC 764, refd to. [para. 77].

Many Guns v. Siksika Nation Tribal Administration, [2004] 1 C.N.L.R. 176; 341 A.R. 140 (Prov. Ct.), refd to. [para. 101].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 109].

Sayers v. Batchewana First Nation (2013), 437 F.T.R. 232; 2013 FC 825, refd to. [para. 109].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 112].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 91; 335 N.R. 220; 2005 SCC 39, refd to. [para. 112].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 112].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 113].

Komolafe v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 192; 2013 FC 431, refd to. [para. 127].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 127].

Authors and Works Noticed:

Sossin, Lorne, Indigenous Self-Government and the Future of Administrative Law (2012), 45:2 U.B.C. L. Rev. 595, pp. 599 [para. 56]; 605, 607 [para. 109]; 629 [para. 56].

Counsel:

Maanit Zemel, for the applicant;

Paul Williams, for the respondents.

Solicitors of Record:

Miller Thomson LLP, London, Ontario, for the applicant;

Paul Williams, Ohsweken, Ontario, for the respondents.

This application was heard at Toronto, Ontario, on June 11, 2014, by Strickland, J., of the Federal Court, who delivered the following reasons for judgment on August 12, 2014.