Native Council of Nova Scotia et al. v. Canada (Attorney General), (2011) 383 F.T.R. 64 (FC)

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: December 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 383 F.T.R. 64 (FC);2011 FC 72

N.S. Native Council v. Can. (A.G.) (2011), 383 F.T.R. 64 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JA.042

Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, Native Council of Prince Edward Island, Maritime Aboriginal Peoples Council, Chief Jamie Gallant, Chief Kim Nash-McKinley and Chief Grace Conrad (applicants) v. The Attorney General of Canada (respondent)

(T-1375-10, T-1494-10; 2011 FC 72)

Indexed As: Native Council of Nova Scotia et al. v. Canada (Attorney General)

Federal Court

Zinn, J.

January 25, 2011.

Summary:

The applicants asked the court to declare decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006. The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS, which were similar but not identical to those in the mandatory 2006 long-form Census. The applicants submitted that these changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, infringed the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and would result in the Crown being unable to fulfill its duties under the Statistics Act, R.S.C. 1985, c. S-19.

The Federal Court dismissed the application.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - The applicants asked the court to declare that decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) were unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS - The decisions under review changed the 2011 Census methodology and format from that used in 2006 - The applicants submitted that these changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, infringed the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and would result in the Crown being unable to fulfill its duties under the Statistics Act - The respondent submitted that allegations that the Canadian Human Rights Act had been breached fell within the exclusive jurisdiction of the Canadian Human Rights Commission and Tribunal, and judicial review could not precede the process prescribed under that Act - The Federal Court agreed that there was an adequate alternative remedy available with respect to the applicants' alleged violations of the Canadian Human Rights Act - Further, even if the court had jurisdiction to issue a declaration that there was a breach of that Act, it should decline to assume jurisdiction, absent an extraordinary and overriding circumstance - None existed here - See paragraphs 65 to 69.

Civil Rights - Topic 902

Discrimination - General principles - Discrimination defined - The applicants asked the court to declare that decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) were unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS - The decisions under review changed the 2011 Census methodology and format from that used in 2006 - The applicants submitted that these changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, infringed the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and would result in the Crown being unable to fulfill its duties under the Statistics Act - Section 9(1) of the Statistics Act provided that: "9(1) Neither the Governor in Council nor the Minister shall, in the execution of the powers conferred by this Act, discriminate between individuals or companies to the prejudice of those individuals or companies." - The applicants submitted that the analysis for discrimination under s. 9(1) was substantially similar to that under s. 5 of the Canadian Human Rights Act (CHRA) and that the proposed changes discriminated between aboriginals and non-aboriginals and between on-reserve and off-reserve aboriginals - The respondent noted that the applicants' allegations respecting s. 9(1) were virtually the same as those made in the context of its Charter challenge and, in the absence of jurisprudence regarding discrimination under s. 9(1), it was appropriate to turn to the s. 15 Charter definition of discrimination in R. v. Kapp (2008 S.C.C.) to maintain consistency in the interpretation of the law - The Federal Court rejected the argument - Following the definition of discrimination in the CHRA and the associated jurisprudence, as suggested by the applicants, would be equally effective in maintaining consistency - Given that the CHRA and the Statistics Act were both pieces of legislation rather than constitutional documents, it was more consistent not to impose the additional constitutional burden of demonstrating that the disadvantage perpetuated prejudice or stereotyping under the second branch of the Kapp test - Even with this lower standard the applicants failed to demonstrate a distinction and hence discrimination, for the same reasons as they failed to meet the first branch of the Kapp test - There was no basis to argue that there had been any denial or differentiation in the 2011 Census or the NHS on the basis of aboriginal identity - See paragraphs 70 to 76.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The applicants asked the court to declare decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS, which were similar but not identical to those in the mandatory 2006 long-form Census - The applicants submitted that these changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, infringed the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and would result in the Crown being unable to fulfill its duties under the Statistics Act, R.S.C. 1985, c. S-19 - The Federal Court held that although its findings regarding the honour of the Crown and the lack of a distinction necessary to found a s. 15 complaint effectively disposed of the applicants' claims that the changes in the wording of the aboriginal questions adversely affected them, a few comments were warranted given that much of the argument was devoted to the issue - The court stated that "One can always parse questions and challenge the use of a particular term or phrase and wonder whether a better term or phrase could have been selected. Given that Statistics Canada is in the business of conducting the census and surveys it must be assumed, absent compelling evidence to the contrary, that they do their job with as much accuracy as possible. In short, the Court should presume that Statistics Canada prepared the census and survey questions appropriately, and the burden is on those who allege otherwise to prove so with objective evidence. None was provided by the applicants and I dismiss their claims that the wording of the questions will result in confusion and under-reporting by the aboriginal peoples of Canada." - See paragraphs 58 to 64.

Civil Rights - Topic 910

Discrimination - General principles - Adverse effect, indirect or constructive discrimination - The applicants asked the court to declare that decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) were unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS - The decisions under review changed the 2011 Census methodology and format from that used in 2006 - The applicants submitted, inter alia, that these changes violated s. 15 of the Charter based on an enumerated ground (aboriginality and aboriginality-residence) - They said that the changes would result in differential and disadvantageous treatment of aboriginal peoples as compared to non-aboriginal peoples because the changes would cause an undercount of, and the collection of less accurate data about, the aboriginal population, which would deny users of the data the benefit of accurate, reliable, and comparable data about this group - The Federal Court found that the census changes created no distinction based on aboriginality and aboriginality-residence - Thus, the applicants had not met the first branch of the test for discrimination - What was being alleged was adverse effect discrimination - The tendency of a certain group not to respond to a voluntary survey was not a "true characteristic" within the meaning ascribed to that term by the jurisprudence - The applicants made no allegation that there was any characteristic of aboriginals, non-status aboriginals, or off-reserve aboriginals which would impede their completion of a voluntary survey and as such there had been no failure by the respondent to recognize and accommodate the claimant groups' characteristics - What the applicants argued for was a positive duty on the government to compel participation in the census in order to compensate for an alleged tendency of certain groups not to respond to a voluntary survey - This creative submission failed because the adverse effect analysis still required a distinction in the way the claimant group was treated - The claimant groups were able to participate in the voluntary survey, to have their identity reflected in the statistics, and to use the ultimate results - Any decrease in response rates among aboriginals, would not result from any distinction or differential treatment, and accordingly would not engage s. 15 - The alleged tendency not to complete a voluntary survey was not a characteristic of the claimant groups which prevented them from obtaining equal benefit of the law; rather, it was a behaviour existing independently of the changes to the census procedure - The applicants themselves submitted that the response rates would be determined by factors such as education, literacy, socioeconomic status, and mobility - These factors, and the claimant groups' alleged lower response rates generally, were not effects caused by the changes to the census, they were independent social realities - See paragraphs 43 to 57.

Civil Rights - Topic 911

Discrimination - General principles - Causation - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 8486

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Equality provision (s. 15) - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Requirement of establishing a factual foundation - The Federal Court stated that "There is no question that a Charter challenge requires a proper factual foundation and I reject the submission of the respondent that the only materials properly before the Court in applications such as these are those that were before the decision-makers when the orders under review were made. However, I agree with the respondent that many of the paragraphs of the affidavits of the applicants' affiants provide no factual information at all but rather consist of opinion and speculation. ... In general, factual evidence in constitutional cases consists of either adjudicative facts or legislative facts. Adjudicative facts serve as the foundation for facts that concern the parties, which, given their specificity, must be proved by admissible evidence. Legislative facts demonstrate the purpose and the background of the legislation, including its social, economic, and cultural context, and are subject to less stringent evidentiary requirements ... Extrinsic evidence is admissible in constitutional cases because often it is the only way to address a constitutional issue, particularly when it concerns want of jurisdiction" - See paragraphs 20 to 24.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 8671

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Enumerated categories - [See Civil Rights - Topic 910 ].

Constitutional Law - Topic 25

General - Raising constitutional issues - Proof required - Legislative facts versus adjudicative facts - [See Civil Rights - Topic 8586 ].

Constitutional Law - Topic 6350

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - General - [See second Indians, Inuit and Métis - Topic 3 ].

Crown - Topic 545

Orders-in-council - Judicial review - The applicants asked the court to declare decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS, which were similar but not identical to those in the mandatory 2006 long-form Census - The applicants submitted that these changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, infringed the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and would result in the Crown being unable to fulfill its duties under the Statistics Act, R.S.C. 1985, c. S-19 - The respondent submitted that: (1) in making the orders under review the Government was exercising powers of a legislative nature and accordingly its decisions were entitled to deference; and (2) the court should not investigate the motive which caused the Governor in Council to pass the Order in Council as this fell within the Crown prerogative - The Federal Court agreed that the court was not a forum to examine the Government's motives as its motives were irrelevant to the issues before the court - However, by virtue of s. 52(1) of the Constitution Act, 1982, no deference was owed to the respondent when deciding whether or not the orders under review were constitutionally valid - Therefore, the standard of review was correctness - See paragraphs 32 and 33.

Crown - Topic 9105

Census - Census forms - The applicants asked the court to declare decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS, which were similar but not identical to those in the mandatory 2006 long-form Census - The applicants submitted that these changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, infringed the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and would result in the Crown being unable to fulfill its duties under the Statistics Act, R.S.C. 1985, c. S-19, particularly ss. 3 and 22 - The respondent argued that these sections did not create a legal duty to conduct a specific type of survey or mandate that there be specific content in the survey, and submitted that there was no merit to the applicants' allegation that Statistics Canada was refusing to exercise any jurisdiction or duty - The respondent said that Statistics Canada was discharging all its statutory obligations by conducting the 2011 mandatory short-form census and the voluntary NHS - The Federal Court agreed with the respondent - See paragraphs 77 to 80.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The applicants asked the court to declare that decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) were unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS - The decisions under review changed the 2011 Census methodology and format from that used in 2006 - The applicants submitted, inter alia, that these changes violated the respondent's constitutional obligations to aboriginal peoples under s. 91(24) of the Constitution Act, 1867, which gave the federal government jurisdiction over "Indians and lands reserved for Indians," and s. 35 of the Constitution Act, 1982, which recognized the "existing aboriginal and treaty rights of the aboriginal peoples of Canada." - The applicants claimed that included in these Crown duties was the "honour of the Crown," as recognized in Haida Nation v. British Columbia (Minister of Forests) et al. (2004 S.C.C.) - The Federal Court was not convinced that Haida Nation went as far as the applicants submitted - Properly interpreted, the decision did not assert that the honour of the Crown arose whenever the Crown took an action that might indirectly impact aboriginal peoples - Rather, in Haida Nation and other decisions, courts had observed that the honour of the Crown arose when there was a specific aboriginal interest or right at stake in the Crown's dealing - Here, the applicants had not established any case for the existence of an aboriginal right or title that might be adversely affected by the Government's actions regarding the 2011 Census - Accordingly, the honour of the Crown was not engaged - See paragraphs 34 to 41.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The applicants asked the court to declare that decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey (NHS) were unconstitutional, enjoin the Government of Canada from administering the 2011 Census and NHS in the format proposed, and direct the Government of Canada to administer the mandatory long-form Census as it did in 2006 - The applicants objected to the manner in which the Government of Canada had ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that had been ordered to be asked in the voluntary NHS - The decisions under review changed the 2011 Census methodology and format from that used in 2006 - The applicants submitted, inter alia, that these changes violated the respondent's constitutional obligations to aboriginal peoples under s. 91(24) of the Constitution Act, 1867, which gave the federal government jurisdiction over "Indians and lands reserved for Indians," and s. 35 of the Constitution Act, 1982, which recognized the "existing aboriginal and treaty rights of the aboriginal peoples of Canada." - The Federal Court dismissed the application - The court stated that s. 91(24) "... does not oblige Canada to legislate on all issues concerning aboriginal peoples. In particular, it does not create a positive obligation on the Government of Canada to collect data about aboriginals in Canada at all, let alone in a specific and mandatory long-form census" - See paragraph 42.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - [See Civil Rights - Topic 907 ].

Cases Noticed:

P.S. Partsource Inc. v. Canadian Tire Corp. (2001), 267 N.R. 135; 2001 FCA 8, refd to. [para. 19].

Westergard-Thorpe et al. v. Canada (Attorney General), [1999] F.T.R. Uned. 328 (T.D.), refd to. [para. 19].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 19].

Canada (Attorney General) v. Quadrini (2010), 399 N.R. 33; 2010 FCA 47, refd to. [para. 22].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 23].

Gitxsan Treaty Society v. Hospital Employees' Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 24].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, dist. [para. 34].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, dist. [para. 39].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 39].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [1988] 3 F.C. 20; 14 F.T.R. 161, agreed with [para. 42].

Apsassin v. Canada - see Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al.

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 43].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 43].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 43].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 44].

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2002), 159 O.A.C. 135; 59 O.R.(3d) 481 (C.A.), refd to. [para. 45].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 49].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 50].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 51].

Boulter et al. v. Nova Scotia Power Inc. et al. (2009), 275 N.S.R.(2d) 214; 877 A.P.R. 214; 2009 NSCA 17, refd to. [para. 53].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 54].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 54].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 55].

Froom v. Canada (Minister of Justice) (2004), 327 N.R. 304; 2004 FCA 352, refd to. [para. 67].

McMaster v. Canada (Attorney General) (2008), 334 F.T.R. 240; 2008 FC 647, refd to. [para. 67].

Giesbrecht v. Canada et al. (1998), 148 F.T.R. 81 (T.D.), refd to. [para. 67].

Armco Canada Ltd. v. Canada (Minister of Consumer & Corporate Affairs) (1975), 8 O.R.(2d) 741; 59 D.L.R.(3d) 189 (C.A.), refd to. [para. 71].

Statutes Noticed:

Statistics Act, R.S.C. 1985, c. S-19, sect. 3 [para. 77]; sect. 9(1) [para. 70]; sect. 22 [para. 77].

Counsel:

Ann E. Smith and Derek A. Simon, for the applicants;

M. Kathleen McManus and Melissa R. Chan, for the respondent.

Solicitors of Record:

Burchells, LLP, Halifax, Nova Scotia, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Halifax, Nova Scotia, for the respondent.

This application was heard at Halifax, N.S., on December 13, 2010, by Zinn, J., of the Federal Court, who delivered the following decision on January 25, 2011.