Simon et al. v. Canada (Attorney General), (2015) 467 N.R. 220 (FCA)

• Judge: Nadon, Trudel and Boivin, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 08, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 467 N.R. 220 (FCA);2015 FCA 18

Simon v. Can. (A.G.) (2015), 467 N.R. 220 (FCA)

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Temp. Cite: [2015] N.R. TBEd. FE.012

Attorney General of Canada (appellant) v. Chief Jesse John Simon and Councillors Foster Nowlen Augustine, Stephen Peter Augustine, Robert Leo Francis, Mary Laura Levi, Robert Lloyd Levy, Joseph Dwayne Milliea, Joseph James Luckie, Tyrone Millier, Mary-Jane Millier, Joseph Darrell Simon, Arren James Sock, Jonathan Craig Sock and Marvin Joseph Sock on behalf of themselves and the members of the Elsipogtog First Nation, and on behalf of the Mi'gmag First Nations of New Brunswick, and on behalf of the members of Mi'gmag First Nations of New Brunswick, Chief Stewart Paul and Councilors Gerald Bear, Darrah Beaver, Edwin Bernard, Eldon Bernard, Brenda Hafke-Perley, Tim Nicholas, Kim Perley, Ross Perley, Theresa (Hart) Perley, Tina Perley-Martin, Paul Pyres and Laura (Lara) Sappier on behalf of themselves and the members of Tobique First Nation and on behalf of the Maliseet First Nations of Kingsclear, Oromocto and Woodstock and the members of the Maliseet First Nations of Kingsclear, Oromocto and Woodstock, Chief Leroy Denny and Councilors Bertram (Muin) Bernard, Leon Charles Denny, Oliver Jr. (Sappy) Denny, Barry C. Francis, Gerald Robert Francis, Eldon Gould, Allan Wayne Jeddore, Derek Robert Johnson, Kimberly Ann Marshall, Brendon Joseph Poulette, John Frank Toney and Charles Blaise Young on behalf of themselves and the members of Eskasoni First Nation and on behalf of the Mi'kmaq First Nations of Acadia, Annapolis Valley, Bear River, Glooscap, Millbrook, Paqtnkek, Pictou Landing, Potlotek, Shubenacadie, Wagmatcook and Waycobah and the members of Mi'kmaq First Nations of Acadia, Annapolis Valley, Bear River, Glooscap, Millbrook, Paqtnkek, Pictou Landing, Potlotek, Shubenacadie, Wagmatcook and Waycobah, Chief Brian Francis and Councilors Danny Levi and Daren Knockwood on behalf of themselves and the members of Abegweit First Nations (respondents) and Madawaska First Nation, St. Mary's First Nation, Membertou First Nation and Lennox Island First Nation (respondents)

(A-410-13; 2015 FCA 18; 2015 CAF 18)

Indexed As: Simon et al. v. Canada (Attorney General)

Federal Court of Appeal

Nadon, Trudel and Boivin, JJ.A.

January 23, 2015.

Summary:

In 2011, the Minister of Aboriginal Affairs and Northern Development decided to enforce strict compliance with provincial assistance rates and eligibility criteria for income assistance on First Nations reserves in Atlantic Canada. The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review on the ground that the change (1) was an unconstitutional abandonment or sub-delegation to the provinces of the federal government's powers under s. 91(24) of the Constitution Act; (2) was made without an opportunity for meaningful consultation, thus failing to meet the Crown's obligations which flowed from its sui generis relationship with the Aboriginal peoples of Canada, the honour of the Crown and international instruments; and (3) failed to meet the requirements of procedural fairness in accordance with the doctrine of legitimate expectations.

The Federal Court, in a decision reported at 442 F.T.R. 33, allowed the application on the basis that the applicants were denied procedural fairness. The Attorney General of Canada appealed.

The Federal Court of Appeal allowed the appeal and dismissed the judicial review application.

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - The Minister of Aboriginal Affairs and Northern Development Canada decided to implement a new social assistance manual which enforced strict compliance with provincial assistance rates and eligibility criteria for assistance on First Nations reserves in Atlantic Canada - The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review - The applications judge found that the Minister's decision was entirely consistent with a 1964 Treasury Board Directive and a 1990 Memorandum of Understanding (MOU) and ensured that the members of First Nations living on reserves would receive the same level of social assistance benefits as other provincial residents - However, the decision was not reasonable because the Minister had failed to obtain data on the impact that the strict application of provincial eligibility criteria would have on recipients - Further, the applicants were denied procedural fairness - The applicants were owed greater procedural protection in the form of meaningful consultations before the decision was taken - The Federal Court of Appeal quashed the decision - Contrary to the applications judge's finding, the Minister had no discretion respecting the application of the eligibility criteria set out in the 1964 Directive and the 1990 MOU - Contrary to the judge's findings, the latest iterations of the manual did not evidence a change of policy on the Minister's part - As the manuals were consistent with the directions in the 1964 Directive and the 1990 MOU, and there was no change in policy, the applicants were not entitled to procedural fairness in the way of consultation respecting the merits of the Minister's decision - Assuming, as asserted by the applicants, that the Minister had previously interpreted and applied the 1990 MOU as if it required that rates and eligibility criteria be "reasonably comparable" to provincial standards and rates, it would not have changed the result of the appeal - The Minister had no legal basis to interpret or apply the 1990 MOU in such a permissive manner - The Minister had to apply the provincial rates and eligibility criteria - By giving notice, time and training to the First Nations to allow them to adapt their income assistance administration to the provincial eligibility criteria, the Minister met his duty of procedural fairness - See paragraphs 56 to 101.

Administrative Law - Topic 223

The hearing and decision - Right to be heard - Who is entitled to be heard - [See Administrative Law - Topic 222 ].

Administrative Law - Topic 2442

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

Crown - Topic 679

Authority of Ministers - Exercise of - Financing powers - [See Administrative Law - Topic 222 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See Administrative Law - Topic 222 ].

Indians, Inuit and Métis - Topic 3802

Income assistance - Eligibility - [See Administrative Law - Topic 222 ].

Indians, Inuit and Métis - Topic 3805

Income assistance - Funding - [See Administrative Law - Topic 222 ].

Social Assistance - Topic 25

Funding of assistance programs - Federal funding (incl. Canada Assistance Plan) - [See Administrative Law - Topic 222 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 54].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 57].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 59].

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 351 B.C.A.C. 91; 599 W.A.C. 91; 455 N.R. 279; 2014 SCC 24, refd to. [para. 60].

Counsel:

Reinhold M. Endres, Q.C., and Julien S. Matte, for the appellant;

Naiomi Metallic and Jason Cooke, for the respondents.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Burchells LLP, Halifax, Nova Scotia, for the respondents.

This appeal was heard at Halifax, Nova Scotia, on September 8, 2014, by Nadon, Trudel and Boivin, JJ.A., of the Federal Court of Appeal. Nadon, J.A., delivered the following reasons for judgment for the court on January 23, 2015.