Simon et al. v. Canada (Attorney General), (2013) 442 F.T.R. 33 (FC)

• Judge: Scott, J.
• Court: Federal Court (Canada)
• Case Date: June 19, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 442 F.T.R. 33 (FC);2013 FC 1117

Simon v. Can. (A.G.) (2013), 442 F.T.R. 33 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2013] F.T.R. TBEd. NO.012

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 (applicants) v. The Attorney General of Canada (respondent)

(T-1649-11; 2013 FC 1117; 2013 CF 1117)

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

Federal Court

Scott, J.

November 4, 2013.

Summary:

In the spring of 2011, the Minister of Aboriginal Affairs and Northern Development changed the "reasonably comparable" approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria. 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 allowed the application on the basis that the applicants were denied procedural fairness.

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - The Minister of Aboriginal Affairs and Northern Development Canada changed the "reasonably comparable" approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria - The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review, asserting that they were denied procedural fairness and the decision was made without an opportunity for meaningful consultation, thus failing to meet the obligations of the Crown which flowed from its sui generis relationship with Aboriginal peoples, the honour of the Crown, and international instruments - The Federal Court noted that the applicants' right to receive benefits from income assistance programs did not arise from a potential Aboriginal claim or treaty based on s. 35(1) of the Constitution Act, 1982, nor did Canada's endorsement of the United Nations Declaration on the Rights of Indigenous Peoples create substantive rights - Contrary to the applicants' assertion, the honour of the Crown was not at stake in all dealings between Canada and its Aboriginal peoples - The applicants had not established any case for the existence of an aboriginal right or title that might be adversely affected by the impugned decision - However, the court allowed the application on the basis that the applicants were denied procedural fairness - In the light of an analysis of the Baker factors, including legitimate expectations, the applicants were owed greater procedural protection in the form of consultations before the decision was taken - No meaningful consultation occurred - See paragraphs 116 to 156.

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 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 222 ].

Administrative Law - Topic 3205.2

Judicial review - General - Governmental action - The Minister of Aboriginal Affairs and Northern Development Canada (AANDC) changed the "reasonably comparable" approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria - The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review - The Crown asserted that the court could not review the Minister's decision on the principles of administrative law as it was a funding decision at its core and would consequently engage the court in political decision making on how the Crown should be exercising its spending power - The Federal Court disagreed - Were the Department of Indian Affairs and Northern Development Act the only statute prescribing the Minister's powers relative to income assistance funding for First Nations, it would be difficult to intervene - The decision would be an example of a government (i.e., executive) decision motivated by government policy - Such decisions were generally final and not reviewable on administrative law principles - Judicial review based on ministerial discretion was difficult in the circumstances - Because the decision involved the expenditure of public monies, the Minister's actions were circumscribed by the Financial Administration Act (FAA) and the legal and regulatory requirements respecting Crown expenditures and contracts - Whether the decision complied with the FAA was subject to judicial review - Less obvious was whether it was reviewable on the basis that it did not comply with the Treasury Board's Directive, Memorandum of Understanding (MOU) or Policy on Transfer Payments - The MOU and Policy represented a kind of legislative decision making that bound the Minister's discretion over the expenditure of funds authorized for that purpose - They were more than simple guidelines - The Treasury Board, via its Directive, MOU and Policy, granted AANDC funding authority to administer income assistance programs at rates and standards "comparable" to those offered by the provinces - Whether the Minister's decision conformed to the MOU was reviewable on the reasonableness standard - The only significant issue was the correct interpretation of "comparable" - The court had the authority to review the Minister's interpretation of the applicable criteria and whether that interpretation resulted in the attainment of the MOU's objective respecting the Income Assistance Plan - See paragraphs 27 to 39.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - In the National Manual (2012), the Minister of Aboriginal Affairs and Northern Development Canada changed the "reasonably comparable" approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria - The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review - The Federal Court rejected the applicants' assertion that the Minister fettered his discretion because the National Manual retained the reasonable comparable criteria - See paragraph 89.

Constitutional Law - Topic 603

Powers of parliament and the legislatures - Delegation of power - What constitutes a delegation - The Minister of Aboriginal Affairs and Northern Development Canada changed the "reasonably comparable" approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria - The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review - The Federal Court rejected the applicants' assertion that the reference to provincial standards was an unconstitutional delegation of the Minister's powers to provincial governments - The reference to provincial standards constituted an exercise of federal jurisdiction to fund welfare on reserves on a basis that the recipients would be treated on a comparable basis to welfare recipients living off reserve in the same province - While it imported eligibility standards and rates set by the provinces, it did not purport to abnegate the federal government's jurisdiction over Indians under the Constitution Act, 1867 - See paragraph 88.

Constitutional Law - Topic 606

Powers of parliament and the legislatures - Delegation of power - Federal delegation of power to province - [See Constitutional Law - Topic 603 ].

Crown - Topic 679

Authority of Ministers - Exercise of - Financing powers - [See Administrative Law - Topic 3205.2 ].

Crown - Topic 679

Authority of Ministers - Exercise of - Financing powers - The Minister of Aboriginal Affairs and Northern Development Canada changed the "reasonably comparable" approach to the assistance rates and eligibility criteria in the Income Assistance Program to apply a requirement of strict compliance with provincial assistance rates and eligibility criteria - The band councils and membership of 26 Maritime and Maliseet bands applied for judicial review - The Federal Court held that the Minister's decision to mirror strictly provincial rates respected the principles outlined in the Treasury Board Directive and 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 - Providing rates identical to those offered in the reference provinces complied with a literal reading of "consistent" used in the MOU - It would also be comparable because a majority of the First Nations recipients would see a decrease in the amount of revenues they would be receiving, but the overall amount of funding to their respective communities would remain constant - As First Nations had the flexibility to demise programs to lessen the impact of the strict application of provincial rates, the change in policy conformed to the MOU specification that First Nation social assistance recipients receive the same level of benefits as other provincial residents - The true significance of the policy change was the effect on eligibility - That effect was nonetheless consistent with the MOU for the same reasons - 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 - See paragraphs 91 to 115.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative or policy decisions - Appeals or judicial review - [See Administrative Law - Topic 3205.2 and second Crown - Topic 679 ].

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 , Administrative Law - Topic 3205.2 , Administrative Law - Topic 8264 , Constitutional Law - Topic 603 and second Crown - Topic 679 ].

Indians, Inuit and Métis - Topic 3805

Income assistance - Funding - [See Administrative Law - Topic 222 , Administrative Law - Topic 3205.2 , Administrative Law - Topic 8264 , Constitutional Law - Topic 603 and second Crown - Topic 679 ].

Social Assistance - Topic 25

Funding of assistance programs - Federal funding (incl. Canada Assistance Plan) - [See Administrative Law - Topic 222 , Administrative Law - Topic 3205.2 , Administrative Law - Topic 8264 , Constitutional Law - Topic 603 and second Crown - Topic 679 ].

Cases Noticed:

Friends of the Earth v. Canada (Governor-in-Council) et al. (2008), 336 F.T.R. 117; 2008 FC 1183, refd to. [para. 29].

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 30].

Masse et al. v. Ontario (Minister of Community and Social Services) (1996), 89 O.A.C. 81 (Div. Ct.), refd to. [para. 30].

Conseil des Innus de Ekuanitshit v. Canada (Attorney General) et al. (2013), 431 F.T.R. 219; 2013 FC 418, refd to. [para. 31].

Larocque v. Canada (Minister of Fisheries and Oceans) (2006), 352 N.R. 133; 2006 FCA 237, refd to. [para. 33].

Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220; 2005 FC 253, refd to. [para. 34].

Assh v. Canada (Attorney General) (2006), 356 N.R. 263; 2006 FCA 358, refd to. [para. 37].

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. 37].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 37].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 40].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 40].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 42].

Mushkegowuk Council et al. v. Ontario (1999), 83 O.T.C. 36 (Sup. Ct.), refd to. [para. 54].

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, refd to. [para. 54].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 54].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 55].

Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) (1991), 46 O.A.C. 246 (Div. Ct.), refd to. [para. 61].

Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569, refd to. [para. 64].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 113].

Native Council of Nova Scotia et al. v. Canada (Attorney General) (2011), 383 F.T.R. 64; 2011 FC 72, refd to. [para. 119].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 122].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 123].

Authors and Works Noticed:

Mullan, David J., Administrative Law (2001), p. 3 [para. 28].

Counsel:

Naiomi Metallic and Jason T. Cooke, for the applicants;

Jonathan Tarlton and Julien Matte, for the respondent.

Solicitors of Record:

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

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

This application was heard at Halifax, Nova Scotia, on June 19, 2013, by Scott, J., of the Federal Court, who delivered the following reasons for judgment on November 4, 2013.