Tobique Indian Band v. Canada, (2010) 361 F.T.R. 202 (FC)

• Judge: Beaudry, J.
• Court: Federal Court (Canada)
• Case Date: January 12, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 361 F.T.R. 202 (FC);2010 FC 67

Tobique Indian Band v. Can. (2010), 361 F.T.R. 202 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JA.044

Tobique Indian Band (applicant) v. Her Majesty The Queen (respondent)

(T-1497-07; 2010 FC 67)

Indexed As: Tobique Indian Band v. Canada

Federal Court

Beaudry, J.

January 21, 2010.

Summary:

The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with the Department of Indian and Northern Development (DIAND). A Regional Director General of the DIAND made a decision to implement third party management of the applicant. The applicant applied for judicial review of the decision.

The Federal Court dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See second and third Indians, Inuit and Métis - Topic 6334 ].

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See second and third Indians, Inuit and Métis - Topic 6334 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with the Department of Indian and Northern Development (DIAND) - A Regional Director General of DIAND made a decision to implement third party management of the applicant - The decision was communicated to the applicant on August 9, 2007 - The applicant applied for judicial review - The respondent argued that certain paragraphs of the affidavit of Chief Bear, dated January 21, 2008, should be struck as they contained new evidence not before the decision maker - The paragraphs related to the termination of a co-management agreement and allegations were made of underfunding to the applicant - The Federal Court stated that "It is well-established that judicial review of a decision should be conducted using only the material that was before the decision maker during the decision making process unless there is a question of jurisdiction or a breach of procedural fairness. There is an allegation of a breach of procedural fairness in the case at bar but [these paragraphs] do not deal with that issue. Furthermore, they are irrelevant to the application as a whole and deal with events that arose after the impugned decision was made and will therefore be struck out." - See paragraph 54.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with the Department of Indian and Northern Development (DIAND) - A Regional Director General of DIAND made a decision to implement third party management of the applicant - The applicant applied for judicial review - The respondent asked the court to add a letter from counsel for AMDD, who had been co-managers with the applicant, in order to correct a statement made during cross-examination as to which version of a report was submitted to DIAND - The Federal Court denied the request as it would not add to the record or complete it - The tribunal record provided by DIAND contained a copy of the report and thus it could easily be ascertained which copy was received - There was no need to add to the record - It was adequate and complete - See paragraph 55.

Crown - Topic 685

Authority of ministers - Exercise of - Administrative decisions - Appeals or judicial review - A Regional Director General of the Department of Indian and Northern Development (DIAND) made a decision to implement third party management of the applicant - The applicant applied for judicial review - Both the applicant and the respondent submitted that the decision to implement third party management was held to a standard of reasonableness - The Federal Court agreed - Accordingly, the court would consider if the impugned decision fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law (Dunsmuir, SCC) - See paragraph 56.

Crown - Topic 685

Authority of ministers - Exercise of - Administrative decisions - Appeals or judicial review - A Regional Director General of the Department of Indian and Northern Development (DIAND) made a decision to implement third party management of the applicant - The applicant applied for judicial review alleging, inter alia, that the respondent breached procedural fairness by failing to give advance notice of the decision - The Federal Court stated that "This Court has repeatedly found that the standard or review for breaches of procedural fairness is correctness and that will be the standard applicable to this issue" - See paragraph 66.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with Indian and Northern Development (DIAND) - A Regional Director General of the Department of DIAND made a decision to implement third party management of the applicant - The applicant applied for judicial review alleging, inter alia, that there was a fiduciary duty to help preserve and promote the self-government of Indian Bands - Although it acknowledged that there was a lack of judicial precedent for such a finding, the applicant claimed that it was owed a fiduciary duty of care in the making of the decision to implement third party management - The Federal Court stated that "The Applicant acknowledges that there is no authority to support the proposition that a fiduciary duty exists in a case such as this one where a decision has been made to implement third party management. Therefore this argument cannot succeed." - See paragraphs 24 and 82.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Equity - Topic 3607 ].

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - [See Equity - Topic 3607 ].

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with Indian and Northern Development (DIAND) - The applicant was subject to co-management - A Regional Director General of the Department of DIAND made a decision to implement third party management of the applicant - The applicant applied for judicial review - The Federal Court dismissed the application - The decision was reasonable - It was realistic to fear that some type of seizure or garnishment proceedings could start at anytime and the consideration of protection of public funds and trying to insure the future availability of services was a reasonable ground in deciding to implement third party management - Band members were on the verge of no longer having essential services due to the depletion of funds - The co-managers were hired in order to help the applicant meet its requirements under the agreement and this included providing adequate financial information and other reporting so that DIAND could verify if the applicant was in default of the agreement - Accordingly, it was completely reasonable to rely on the information provided by the co-manager who had a specialized knowledge of such matters and was fulfilling its duty - Finally, the applicant was unquestionably in default of the agreement and had been for a number of years and had done very little to remedy its difficulties - See paragraphs 56 to 65.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with Indian and Northern Development (DIAND) - The applicant was subject to co-management - A Regional Director General of the Department of DIAND made a decision to implement third party management of the applicant - The applicant applied for judicial review alleging, inter alia, that the respondent breached procedural fairness by failing to give advance notice of the decision - The Federal Court found no breach of procedural fairness - Decisions by DIAND regarding funding and the administration of that funding were highly discretionary - The decision to intervene pursuant to an agreement was also highly discretionary - The applicant had numerous defaults under the agreement, stretching over a long period of time, but still DIAND met with the applicant in order to find ways to provide services and meet the needs of the community members - This discretion was indicative of minimal procedural fairness - There was no legislated duty of procedural fairness - The decision was of great importance as it essentially removed the applicant's rights to govern its own financial affairs - The decision would also affect the interests of the community members who risked not having access to programs and services if funds were not administered properly - Furthermore, there was a public interest in maintaining accountability respecting the use of public funds - The applicant had not established any legitimate expectations in this regard - The two documents governing DIAND's decision were the agreement and the policy - The agreement did not require advance notice of a decision to implement third party management, nor provide the applicant with a right to respond to the reasons or remedy its defaults - There was no notice for the appointment of the third party manager - The policy did not contemplate a requirement to give advance notice of the decision but rather notification that the decision had been made - Further, the urgent circumstances that gave rise to the decision to implement third party management also indicated a low threshold of procedural fairness - See paragraphs 66 to 79.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - The applicant was a First Nation community which had received approximately 14 million dollars annually in funding under an agreement with Indian and Northern Development (DIAND) - The applicant was subject to co-management - A Regional Director General of the Department of DIAND made a decision to implement third party management of the applicant - The applicant applied for judicial review alleging, inter alia, that the respondent breached procedural fairness by failing to give advance notice of the decision - The Federal Court held that no advance notice of the decision to implement third party management was required in this case - Alternatively, DIAND had met its requirement under s. 8.1.1 of the policy and met with the applicant and its co-managers many times in order to discuss various defaults under the agreement and the steps that were required to remedy them - The tribunal record contained ample correspondence between the parties on the defaults and necessary steps to remedy them - Also, the trip reports in the tribunal record and the minutes from some of these meetings showed that there was mention, on more than one occasion, that DIAND was contemplating increasing the level of intervention and implementing third party management - All the parties involved were fully aware of the precarious situation and the urgency for the highest level of intervention by DIAND - See paragraph 80.

Cases Noticed:

Pikangikum First Nation v. Canada (Minister of Indian Affairs and Northern Development) (2002), 224 F.T.R. 215; 2002 FCT 1246, refd to. [para. 16].

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. 16].

McDiarmid Lumber Ltd. v. God's Lake First Nation et al., [2006] 2 S.C.R. 846; 356 N.R. 1; 212 Man.R.(2d) 7; 389 W.A.C. 7; 2006 SCC 58, refd to. [para. 18].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) and Novopharm Ltd. (1996), 111 F.T.R. 140 (T.D.), refd to. [para. 26].

Ermineskin Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2008), 334 F.T.R. 126; 2008 FC 741, refd to. [para. 27].

Tribal Wi-Chi-Way-Win Capital Corp. v. Stevenson et al. (2009), 240 Man.R.(2d) 122; 2009 MBCA 72, refd to. [para. 30].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 34].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 34].

Pelletier v. Canada (Attorney General), [2007] 4 F.C.R. 81; 358 N.R. 102; 2007 FCA 6, refd to. [para. 42].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 47].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 47].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 47].

Algonquins of Barriere Lake v. Canada (Minister of Indian Affairs and Northern Development) (2009), 343 F.T.R. 298; 2009 FC 374, refd to. [para. 48].

Elders Council of Mitchikanibikok Inik v. Canada (Minister of Indian Affairs and Northern Development) - see Algonquins of Barriere Lake v. Canada (Minister of Indian Affairs and Northern Development).

Tsartlip Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2000] 2 F.C. 314; 250 N.R. 75 (F.C.A.), refd to. [para. 49].

Al-Mhamad v. Canadian Radio-Television and Telecommunications Commission et al., [2003] N.R. Uned. 2; 2003 CarswellNat 186; 2003 FCA 45, refd to. [para. 53].

Nunavut Wildlife Management Board v. Canada (Minister of Fisheries and Oceans) et al., [2009] 1 C.N.L.R. 256; 339 F.T.R. 164; 2009 FC 16, refd to. [para. 66].

Counsel:

Harold L. Doherty, for the applicant;

Susan R. Taylor, for the respondent.

Solicitors of Record:

Harold L. Doherty, Fredericton, New Brunswick, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Fredericton, New Brunswick, on January 12, 2010, by Beaudry, J., of the Federal Court, who delivered the following decision on January 21, 2010.