Stagg v. Canada (Attorney General)

Stagg v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-05-09
Neutral citation
2019 FC 630
File numbers
T-1600-18
Decision Content
Date: 20190509
Docket: T-1600-18
Citation: 2019 FC 630
Ottawa, Ontario, May 9, 2019
PRESENT: Mr. Justice Grammond
BETWEEN:
CHIEF JOHN STAGG, COUNCILLOR LEONARD SUMNER, COUNCILLOR OWEN STAGG IN THEIR PERSONAL CAPACITY AND AS REPRESENTATIVES OF THE DAUPHIN RIVER FIRST NATION, AND THE SAID DAUPHIN RIVER FIRST NATION AS REPRESENTATIVE FOR ALL ITS MEMBERS
Applicants
and
THE ATTORNEY GENERAL OF CANADA, THE HONOURABLE RALPH GOODALE, MINISTER OF PUBLIC SAFETY,
THE HONOURABLE JANE PHILPOTT, MINISTER OF INDIGENOUS SERVICES CANADA, THE HONOURABLE CAROLYN BENNETT, MINISTER OF CROWN-INDIGENOUS RELATIONS AND NORTHERN AFFAIRS
Respondents
JUDGMENT AND REASONS
[1] In the spring of 2011, the Dauphin River First Nation [DRFN] was evacuated due to the flooding of its reserve lands. Many of its members have been forced to relocate temporarily in the Winnipeg area or elsewhere in Manitoba. The rebuilding of the community took longer than expected. Indigenous Services Canada [ISC], through a number of intermediaries, provided DRFN members with benefits aimed at securing alternative housing while waiting for new houses to be ready. In the summer of 2018, as new houses were ready or about to be ready for occupancy, it declared that the evacuation was over and terminated the evacuee benefits.
[2] DRFN objected to the termination of evacuee benefits and now seeks judicial review of that decision. It says that the 70 houses that have been built so far are insufficient to address the needs of the community and that there remain 45 evacuee families who have no home to return to when their benefits are terminated. It argues that when the community was evacuated, ISC promised that a house would be built for every evacuated family. It also argues that the decision was not made in a procedurally fair manner.
[3] The Attorney General, on its part, denies that such a promise was ever made. He adds that the termination of the evacuee benefits was reasonable, because DRFN now has more houses and a lower rate of occupancy than before the flood, even when the natural increase of its population is taken into account. The Attorney General also argues that the decision to provide or to terminate benefits is a prerogative decision that courts cannot review.
[4] DRFN’s application for judicial review is denied. The decision is not shielded from review because it is made under the royal prerogative or involved the allocation of public funds. However, the process leading to the decision complied with the requirements of procedural fairness. Most importantly, the decision was reasonable, as it took into account the collective needs of DRFN members. Given DRFN’s role in allocating houses to its members, the decision-maker was not required to inquire into individual needs. Lastly, references to certain documents generated in the course of negotiations did not render the decision unreasonable.
I. Background
[5] As usual, a proper understanding of the case requires a detailed analysis of the facts. But it is difficult to appreciate the relevance of certain facts unless one begins with a summary of legislation and policy in two areas that intersect in this case: the provision of housing and emergency management and assistance.
[6] In these reasons, I refer to the relevant government department as Indigenous Services Canada or ISC. ISC was formerly part of a larger department, most recently known as Aboriginal Affairs and Northern Development Canada.
A. Housing for First Nations
[7] Housing is a fundamental human need. In this regard, Article 11 of the International Covenant on Economic, Social and Cultural Rights recognizes “the right of everyone to an adequate standard of living … including … housing.” In this country, however, housing is often considered to be a private matter. Individuals are expected to find housing by themselves and to resort to their own resources to cover housing costs. Nevertheless, federal and provincial governments have adopted various strategies to make housing more affordable. At the federal level, the National Housing Act, RSC 1985, c N-11, aims to “promote housing affordability” through the provision of financing or various forms of subsidies. Most provinces regulate residential tenancies and provide housing subsidies or other forms of housing assistance to low-income families. See, for example, The Housing and Renewal Corporation Act, CCSM c H160.
[8] Housing in First Nations communities is also provided through a combination of public and private initiative. Given the economic situation in many First Nations communities, as well as the constraints on private ownership flowing from the Indian Act, RSC 1985, c I-5, and other factors, public funding plays a more important role than in non-Indigenous communities. In many cases, such as in DRFN, First Nations build houses with whatever federal funding is available and rent them or simply allocate them to their members. Decisions regarding the allocation of housing are made by First Nations, either according to section 20 of the Indian Act, which deals with certificates of possession, through rental agreements or through more informal arrangements. The federal government plays no role in the allocation of housing in First Nations communities.
[9] While the federal government appears to accept the political responsibility to provide adequate housing to First Nation communities, the legal basis for the provision of that assistance is unclear. It may be, as DRFN suggested before me, that an obligation to provide housing flows from the treaty relationship between the Crown and many Indigenous peoples. DRFN, for one, is a party to Treaty 2. In the Indigenous tradition, treaties were meant to establish a family relationship between treaty partners (wahkohtowin): Treaty Elders of Saskatchewan, Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations (Calgary: University of Calgary Press, 2000) at 33–36. Family members may have a duty to assist each other in times of need. Moreover, DRFN highlighted the fact that the availability of proper housing would be a prerequisite to the exercise of the harvesting rights enshrined in the treaties or in the Constitution Act, 1930. However, the evidentiary record in this case is insufficient to determine the existence and scope of a treaty right to housing.
[10] Parliament has not enacted legislation that deals specifically with First Nations housing (see, in this regard, Canada (Attorney General) v Simon, 2012 FCA 312 at paras 4–6; Janna Promislow and Naiomi Metallic, “Realizing Aboriginal Administrative Law”, in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 3rd ed (Toronto: Emond Montgomery, 2018) 87, 93–108 ). It appears that funding for housing is provided either by the Canadian Mortgage and Housing Corporation [CMHC] under the general provisions of the National Housing Act, or under policies of ISC. The relevant policies are not in evidence before me.
[11] It is common knowledge that the situation of housing in First Nations communities is particularly difficult, to the point that some speak of a crisis. More than twenty years ago, the Royal Commission on Aboriginal Peoples described the situation as follows:
Aboriginal housing and community services are in a bad state, by all measures falling below the standards that prevail elsewhere in Canada and threatening the health and well-being of Aboriginal people. The inadequacy of these services is visible evidence of the poverty and marginalization experienced disproportionately by Aboriginal people. […]
The problem is threefold: lack of adequate incomes to support the private acquisition of housing, absence of a functioning housing market in many localities where Aboriginal people live, and lack of clarity and agreement on the nature and extent of government responsibility to respond to the problem. […]
(Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol 3, Gathering Strength (Ottawa: Canada Communication Group 1996) at 341).
[12] Indeed, it appears that there was a certain level of overcrowding at DRFN prior to the 2011 flood. The affidavits of Tanita and Alexis Cruly provide an illustration: the three Cruly sisters, two of whom were adults, lived in a three-bedroom house, together with their mother and stepfather, as well as the four-year old daughter of one of them. ISC has calculated that in 2011, the occupancy rate, that is, the number of residents per housing unit in DRFN, was 3.8. In comparison, the average occupancy rate for Manitoba First Nations was 5.4, while the overall average in Manitoba was 2.6.
B. Emergency Assistance
[13] Most Canadians would expect their governments to protect them in case of an emergency. Indeed, emergency planning has become a significant responsibility of all levels of government. Emergency planning includes prevention, preparedness, response when an emergency occurs and recovery.
[14] Recovering from an emergency may involve the reconstruction of communities and the temporary housing of persons who were evacuated. Those measures are critical for the persons who are the most affected by an emergency. Despite their importance, however, there is no statutory right to these measures, as will become apparent from a review of the relevant legislation.
[15] The federal Emergency Management Act, SC 2007, c 15, is a very short statute. It is based on the premise that emergency preparedness is a jurisdiction shared between the various levels of government in Canada. Section 4 sets out a number of responsibilities of the federal government with respect to emergencies. In particular, it empowers the federal government to declare that a provincial emergency is of “federal concern” and, upon such a declaration, to provide financial assistance to a province. Section 6 provides that federal ministers shall prepare emergency plans with respect to matters falling under their jurisdiction. Pursuant to that authority, ISC or its predecessors have set up an Emergency Management Assistance Program [EMAP].
[16] Manitoba’s Emergency Measures Act, CCSM c E80, contains, among other things, provisions requiring government departments and local authorities to prepare emergency plans. It also provides for the declaration of a state of emergency and for exceptional powers to be exercised on such an occasion. Part IV of the Act relates to disaster assistance. Section 16.1 allows for the provision of disaster assistance in accordance with policies adopted by the government. It also states that such assistance is “gratuitous” and not subject to appeal, except to the Disaster Assistance Appeal Board created by section 17.
[17] We can now turn to the events that affected the Interlake region of Manitoba in 2011 and DRFN in particular.
C. The 2011 Flood and Reconstruction Efforts
[18] Flooding has been an issue in Manitoba for a long time. The provincial government is involved in managing water flows, preventing floods and mitigating flooding damage and has built a number of works to that end. One of them is the Portage Diversion, a canal that allows the diversion of excess water flows of the Assiniboine River into Lake Manitoba. The waters of Lake Manitoba flow into the Fairford River, then into Lake St. Martin, then into the Dauphin River, which exits in Lake Winnipeg. DRFN is located at the mouth of the Dauphin River in Lake Winnipeg.
[19] In the spring of 2011, a combination of factors led to record water levels in the Assiniboine River basin and elsewhere in Manitoba. In order to minimize the possibility of flooding along the Assiniboine, in particular in Winnipeg and the environs, the provincial government diverted considerable quantities of water into Lake Manitoba through the Portage Diversion. This had the effect of greatly increasing the flow of the Dauphin River. Major floods took place in the Interlake region. Several communities were badly damaged, including DRFN. DRFN describes the water management measures taken by the government of Manitoba as a conscious decision to sacrifice DRFN, and other communities in the region, in order to save Winnipeg and other densely populated areas.
[20] In view of the impending flood, DRFN was evacuated in May 2011, and its members relocated, mostly in the Winnipeg area. Many, if not all of the 53 houses then existing in DRFN were destroyed or rendered inhabitable.
[21] In 2013, DRFN initiated an action against the federal government in the Manitoba Court of Queen’s Bench, with respect to the losses sustained as a result of the 2011 flood. Little progress has been made in bringing this action to trial. The parties have preferred to negotiate a comprehensive settlement agreement [CSA]. Those negotiations have led to an agreement-in-principle [AIP] in 2017, but no CSA has been signed yet.
[22] Although no CSA has yet been signed, the federal government funded DRFN reconstruction efforts, with the participation of the government of Manitoba. Before the flood, there were 53 houses in DRFN: affidavit of Aaron O’Keefe, Respondent’s Record [RR] at 8, para 21. The initial plan, which was the object of an agreement between DRFN and the government of Manitoba in 2014, provided for the installation of 41 pre-built houses. However, in 2016, as DRFN identified additional needs, the federal government agreed to fund the construction of 20 additional houses and the renovation of another one. And even those numbers were exceeded, as an additional seven houses were built with funding approved by CMHC. The construction of those houses was completed in the summer or fall of 2018. Hence, there are now 70 new houses in DRFN.
[23] In addition, the federal government funded the reconstruction and the building of new collective infrastructure. As a result, DRFN now has a new band office, water and sewage system, health center and K-8 school.
[24] Nevertheless, DRFN takes the position that this is insufficient to cover the housing needs of DRFN members. At meetings with ISC held in the fall of 2017, it asserted that 45 additional houses would be needed. It says that it came to this conclusion as a result of a needs assessment performed in 2017, which would explain that it had not taken this position earlier.
[25] A motion to certify a class action against the federal and Manitoba governments was also filed in the Manitoba Court of Queen’s Bench. The motion was initially dismissed against Manitoba as the judge found that a class action was not the preferable procedure to address the members’ claims: Anderson v Manitoba, 2014 MBQB 255 [Anderson MBQB]. The Court of Appeal, however, reversed that finding and certified the class action against Manitoba: Anderson v Manitoba, 2017 MBCA 14. I understand that this action has been settled, but both parties agree that this settlement has no bearing on the issues before me. In the same decision, the Court of Queen’s Bench dismissed the claims against the federal government as disclosing no cause of action: Anderson MBQB at paragraphs 170–192. That finding was not appealed.
D. The Evacuation Benefits
[26] One sad consequence of emergencies such as the 2011 flood is that persons who have been evacuated are often unable to return to their homes until significant remedial or reconstruction work is completed. As a result, emergency measures programs often include relocation assistance, aiming at providing evacuees with the means of living while their homes remain unavailable.
[27] Such assistance, which the parties have referred to as “evacuee benefits,” has been provided to DRFN members who were evacuated in 2011. For the purposes of this application, the precise scope of those benefits is immaterial. Affidavits sworn by five evacuees describe the monthly benefits as including the payment of rent directly to their landlords, for sums in the range of $800-$1200, as well as a cash payment for incidentals, in the range of $200-$300.
[28] The precise manner in which those benefits have been channelled to their recipients was made clear to DRFN only in the course of the present proceedings. The federal government adopted an order-in-council under the Emergency Management Act declaring the 2011 flood to be of national concern and authorizing payments to the province of Manitoba. As a result, the federal government made payments intended to cover, among other things, the payment of relocation assistance to both Indigenous and non-Indigenous Manitobans. The provincial government then contracted with a private non-governmental organization, initially the Manitoba Association of Native Firefighters and, starting in 2014, the Canadian Red Cross Society [Red Cross], for the actual delivery of assistance to the intended recipients. The lines of authority and accountability remain unclear. Thus, the federal government signed an agreement directly with the Red Cross in 2014. That agreement contains a statement of work that defines the services to be provided to the evacuees by reference to the provincial Disaster Financial Assistance Program. It also states that the Red Cross will seek reimbursement from the government of Manitoba. We do not know whether the benefits come within the purview of Manitoba’s Emergency Measures Act. Nevertheless, at the hearing of this application, counsel for the respondents admitted that the federal government is making decisions with respect to evacuee benefits and that the Red Cross would simply follow those decisions.
E. The Challenged Decision
[29] In the winter or early spring of 2018, ISC officials formed the view that DRFN had been restored to a state that allowed evacuees to return home. They asked DRFN to co-sign a letter to all evacuees informing them of the end of the evacuation and the termination of benefits. DRFN, however, declined to do so. As a result, ISC decided to terminate the evacuee benefits as of July 31, 2018. That decision was conveyed to DRFN members by letters from the Regional Director General, dated May 30, 2018, to each evacuee head of household. ISC says that most of those letters were received over the summer, with a few exceptions: affidavit of Aaron O’Keefe, RR at 15-16, paragraphs 43–44.
[30] DRFN objected to the termination of benefits, because of its view that 45 additional houses were needed to accommodate all evacuees, given the growth of community membership since the flood. That position was expressed, among other things, in a letter dated June 15, 2018, to then-Minister of ISC Jane Philpott. As a result of those representations, ISC agreed to delay the termination of evacuee benefits by one month, that is, benefits would end on August 31, 2018. ISC did not agree, however, to delay that termination indefinitely. That was confirmed by a letter of the Acting Regional Director General of ISC on August 23, 2018.
[31] As further discussions did not result in an agreement, DRFN brought the present application on August 31, 2018, also seeking interim and interlocutory relief. During a telephone conference held on that day with the undersigned, counsel for the respondents agreed to provide evacuee benefits until September 30, 2018, on the understanding that a motion for interlocutory injunction would be heard before that date. Counsel for both parties later agreed that the benefits would be provided until a decision is made on the main application, which rendered the motion for an interlocutory injunction moot. At this time, only the benefits for the 45 evacuee heads of households who have not been allocated a house remain in issue. DRFN no longer challenges the termination of benefits for other evacuees.
[32] The parties do not agree as to what the decision under review exactly is. DRFN says that it is the letter dated August 23, 2018, because the decision made on May 24, 2018 had been “rescinded.” The Attorney General, on its part, says that the decision to terminate benefits was made on May 24, 2018, and was never rescinded, only delayed. I agree with the latter view, because ISC never wavered in its intention to terminate the benefits, although it agreed to delay the implementation of the decision by one month. The fact that ISC refused to reconsider its decision does not amount to a new decision being made. I note that in spite of this, neither party suggested that an extension of time was needed.
[33] Perhaps because of the disagreement as to when the decision was made, the parties also disagree as to what constitutes the reasons for that decision. In this regard, we must not lose sight of the fact that the decision is not the result of an adjudicative process. Thus, this is a case in which we need to “look to the record” to find what those reasons are: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 15, [2011] 3 SCR 708 [Newfoundland Nurses]. This record includes not only the letters of May 24, 2018 and August 23, 2018, but also several iterations of a “decision note” prepared for the Regional Director General as well as additional information provided by ISC’s affiants. From those sources, I find that the reasons for the decision challenged by this application include:
“The construction of all new housing at Dauphin River to address the impacts of flooding should be completed by June 30, 2018” (May 30, 2018 letter);
The construction of 70 houses for 234 evacuees would bring the occupancy rate to 3.34, well below the average for Manitoba First Nations, and below the occupancy rate in DRFN before the flood (April 26, 2018 decision note);
“It is uncertain of how many of the 234 evacuees will move home as there is the potential of a large number of false evacuees on the current red cross evacuee list, as well as evacuees who may no longer want to return home to Dauphin River [sic]” (May 24, 2018 decision note);
The cost, estimated at $11 million, of building an additional 43 houses, as well as the fact that $2 million was offered for new housing in 2018-19 (May 24, 2018 decision note);
“Dauphin River was originally supposed to demolish existing homes as new homes were being replaced; however the First Nation has been able to keep many of the existing homes which could accommodate future growth” (April 26, 2018 decision note);
“The number of houses needed to address the impacts of the flood of 2011 was jointly agreed upon and acknowledged by Band Council Resolution, signed August 25, 2016 and in the Agreement of Principle signed May 10, 2017” (August 23, 2018 letter; also mentioned in the April 26, 2018 decision note).
[34] Over the course of the proceedings, both parties made claims that certain documents, in particular the 2016 band council resolution [BCR] and the 2017 AIP, were covered by settlement privilege and were not admissible in evidence. However, as I explain later, the real thrust of those submissions is that the Regional Director General should not have taken those documents into account when making his decision, not that I should not look at them. Therefore, I have admitted those documents and I will deal with the settlement privilege claim when reviewing the merits.
II. Analysis
[35] The subject-matter of the present application for judicial review is the termination of the evacuee benefits. Yet, this issue cannot be entirely separated from the larger issue of the sufficiency of housing. Intuitively, the evacuation cannot be ended until every family is able to return to a repaired or a new house. But the lapse of time – seven years between the flood and the decision challenged – made things more complicated. When DRFN was evacuated, one could have thought that a family was the group of persons who inhabited the same house. However, as time went by, as children became adults, as babies were born, as coupled formed or separated and as people passed away, the families of 2011 may not be the same as the families of 2018. Hence DRFN’s claim that 45 more houses are needed to fulfil the needs of its members.
[36] Resolving this issue is further complicated by the fact that the parties undertook reconstruction efforts before negotiating a comprehensive settlement of all issues arising from the flood. Thus, there is no agreement as to the number of houses to be built, nor as to the terms of the evacuee benefits program. There is no consensus on the metrics to be used to measure the needs of the community.
[37] This judgment is divided in three parts. I first need to address an objection raised by the Attorney General to this Court’s jurisdiction and capacity to decide the matters at issue. I will explain why I find that the dispute is justiciable. I will then turn to the objections raised by DRFN to the process followed by ISC to make its decision. I will explain why those concerns are unfounded. I will then review the merits of the decision. Ultimately, I find that the decision was reasonable.
[38] At this juncture, I wish to make clear what this case is not about. This is not a claim for damages resulting from the flood. A class action to that effect was settled with Manitoba, and the claim against Canada will be decided by the Manitoba Court of Queen’s Bench, on a more fulsome evidentiary record – unless, of course, the parties settle in the meantime. Neither is this a claim based on a right to housing, whatever its source. The case was not argued on that basis and DRFN has not claimed any remedy regarding housing. And unlike First Nations Child and Family Caring Society of Canada v Canada (Attorney General), 2016 CHRT 2, this is not a discrimination claim. No evidence was adduced for the purpose of showing that DRFN members were adversely treated on the basis of a prohibited ground of discrimination.
A. Jurisdiction, Justiciability and Standard of Review
[39] Before dealing with the merits, I must address an objection raised by the Attorney General, who argues that the decision to terminate benefits is “not subject to judicial review.” He says that the federal government has no legal obligation to provide evacuee benefits. The provision of those benefits would be an exercise of the royal prerogative, which would be subject to review on constitutional grounds only. The decision to provide such benefits would be a discretionary policy decision unsuitable for review by the courts.
[40] These arguments can be understood as a challenge either to this Court’s jurisdiction or the justiciability of the matter. At the hearing, counsel for the Attorney General confirmed that he wished to advance both aspects of the argument. Nevertheless, whether viewed from the perspective of jurisdiction or justiciability, the argument fails.
[41] This Court’s jurisdiction to review exercises of the royal prerogative is firmly established and, indeed, is expressly provided for in the definition of “federal board, commission or other tribunal” in section 2 of the Federal Courts Act, RSC 1985, c F-7: Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at paragraphs 36–58 [Hupacasath]. Our Court has reviewed decisions that are generally understood to be made under the royal prerogative, such as the issuance of passports (for example, Lipskaia v Canada (Attorney General), 2018 FC 789) or the conclusion or withdrawal from international treaties (Hupacasath; Turp v Canada (Justice), 2012 FC 893, [2014] 1 FCR 439).
[42] The Attorney General cited Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44 [Khadr], as authority for the proposition that courts have jurisdiction “to review exercises of the prerogative power for constitutionality” (at paragraph 37) but not otherwise. However, the Supreme Court’s reference to judicial review on constitutional grounds is explained by the fact that the claim in that case was based on the Charter. It was not meant to exclude other grounds of review: Hupacasath at paragraph 61. (To the extent that Hospitality House Refugee Ministry Inc v Canada (Attorney General), 2013 FC 543, says otherwise, it has been overtaken by Hupacasath.) As the Ontario Court of Appeal wrote in Black v Canada (Prime Minister) (2001), 199 DLR (4th) 228 at 245 [Black]: “the expanding scope of judicial review and of Crown liability make it no longer tenable to hold that the exercise of a prerogative power is insulated from judicial review merely because it is a prerogative and not a statutory power.” (See also Patrice Garant, Droit administratif, 7th ed (Cowansville, Qc: Yvon Blais, 2017) at 45−49 [Garant, Droit administratif]; Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) (loose-leaf ed) at para 1.9 [Hogg, Constitutional Law].)
[43] Adopting the approach put forward by the Attorney General would cause significant practical problems. A precise definition of the royal prerogative would be needed, as this Court’s jurisdiction would depend on the characterization of the source of the decision under review. Yet, there is no agreement as to which decisions are made under the royal prerogative and which are made under another source of authority, as I will now demonstrate.
[44] The royal prerogative has been described as the “residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown” (Khadr at paragraph 34). Descriptions of the royal prerogative usually focus on powers that relate to traditional State functions, such as defence, foreign affairs, honours and mercy, as well as a number of traditional immunities: see, for example, Craig Forcese, “The Executive, the Royal Prerogative, and the Constitution” in Peter Oliver, Patrick Macklem and Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) [Forcese, “The Executive”]; Philippe Lagassé, “Parliamentary and Judicial Ambivalence Towards Executive Prerogative Powers in Canada” (2012) 55 Canadian Public Administration 157 [Lagassé, “Prerogative Powers”]; Paul Lordon, Crown Law (Toronto: Butterworths, 1991) at 75−106; Garant, Droit administratif at 49-75.
[45] Yet, it has sometimes been suggested that the royal prerogative also includes powers held by the Crown as a natural person, such as the power to enter into contracts or the power to spend money. It is sometimes said that government spending programs that are not backed up by an elaborate statutory scheme are made under the prerogative: see, for example, Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at paragraphs 354–402, [2015] 2 FC 267. Such a characterization, however, is difficult to reconcile with the well-established rule to the effect that the government may not spend public money without Parliament’s approval: Financial Administration Act, RSC 1985, c F-11, s 26. More generally, the very idea of royal prerogative suggests powers that are unavailable to natural persons. In this regard, Professor Hogg says (Constitutional Law at para 1.9):
Powers or privileges enjoyed equally with private persons are not, strictly speaking, part of the prerogative. For example, the Crown has the power to acquire and dispose of property, and to enter into contracts, but these are not prerogative powers, because they are possessed by everyone.
[46] It may also be difficult to determine whether the royal prerogative has been displaced by legislation: see, for example, the contrasting perspectives in Lagassé, “Prerogative Power” and Forcese, “The Executive.” It would be highly inconvenient if this Court’s jurisdiction depended on a detailed analysis of such a complex legal issue.
[47] In Gestion Complexe Cousineau (1989) Inc v Canada (Minister of Public Works and Government Services), [1995] 2 FC 694 (CA), Justice Robert Décary of the Federal Court of Appeal warned against making this Court’s jurisdiction dependent on fine distinctions regarding the source of authority for the decision reviewed (at 705):
As between an interpretation tending to make judicial review more readily available and providing a firm and uniform basis for the Court’s jurisdiction and an interpretation which limits access to judicial review, carves up the Court’s jurisdiction by uncertain and unworkable criteria and inevitably would lead to an avalanche of preliminary litigation, the choice is clear. I cannot assume that Parliament intended to make life difficult for litigants.
[48] Thus, the better view is that the Crown is not acting under the royal prerogative when it sets up a spending program that is not supported by specific legislation, such as the emergency assistance program at issue here. And even if I were wrong in this conclusion, Hupacasath tells us that a decision made under the royal prerogative is not beyond this Court’s jurisdiction.
[49] Nevertheless, the Attorney General’s objection may be recast as a challenge to the justiciability of the matter, instead of a challenge to jurisdiction. Jurisdiction and justiciability are different concepts. In Hupacasath, Justice David Stratas of the Federal Court of Appeal explained the concept of justiciability in the following terms, at paragraphs 62 and 66:
Justiciability, sometimes called the “political questions objection,” concerns the appropriateness and ability of a court to deal with an issue before it. Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government.
[…]
Usually when a judicial review of executive action is brought, the courts are institutionally capable of assessing whether or not the executive has acted reasonably, i.e., within a range of acceptability and defensibility, and that assessment is the proper role of the courts within the constitutional separation of powers […]. In rare cases, however, exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers. For example, it is hard to conceive of a court reviewing in wartime a general’s strategic decision to deploy military forces in a particular way.
[50] The phrase “high policy” has sometimes been used to describe the kind of decisions that are not justiciable (Forcese, “The Executive,” at 166). In contrast, where “high policy” issues are not at stake, “the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual” (Black, at 246–247). Although it was traditionally said that the wisdom of discretionary decisions is not a matter for the courts, the evolution of administrative law in recent decades has resulted in a widening of the grounds on which administrative decisions may be reviewed. Thus, the decisive factor is not the political implications of the matter or the decision’s discretionary component, but the fact that the question “has a sufficient legal component to warrant the intervention of the judicial branch:” Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525 at 545 [Re Canada Assistance Plan]; see also Lorne M Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed (Toronto: Carswell, 2012).
[51] In this case, it is difficult to discern any “high policy” issues similar to those at stake in Black or Operation Dismantle. In spite of this, the Attorney General argues that the matter is not justiciable because no one has a right to emergency assistance, citing Anderson MBQB, at paragraph 173. Yet, the fact that there is no right in the strict sense does not make the matter non-justiciable. For example, even though no one has a right to a passport, the process by which decisions regarding passports are made is justiciable (Black, at 247) and this Court has often reviewed such decisions, as I noted above. Likewise, the fact that a payment is made ex gratia (that is, in the absence of an obligation in the strict sense) does not render a matter non-justiciable. When the government chooses to make ex gratia payments to a group of individuals, it may set out a process and substantive conditions. Compliance with that process and those conditions raises justiciable issues, as shown by a number of decisions from this Court: see, for example, Kastner v Canada (Attorney General), 2004 FC 773; Briand v Canada (Attorney General), 2018 FC 279.
[52] The Attorney General also argues that the decision challenged is not justiciable because it involves budgetary matters. Indeed, budgetary decisions may not always be justiciable, as the allocation of public money is a political matter involving choices that cannot be measured against any legal standard. Yet, the mere fact that a decision involves monetary benefits or has an impact on the public purse does not push it beyond the pale of justiciability. In general terms, a decision is less susceptible to be justiciable when its scope is broad. Purely operational decisions will usually be justiciable.
[53] Here, the decision challenged does not pertain to the choice to create ISC’s EMAP program nor to the scope or main parameters of the program. It is a decision that terminates the benefits provided to 45 families in the wake of a specific evacuation, on the basis, if I may summarize it that way, that the conditions that required the evacuation are no longer present. This is not the kind of decision that we would usually describe as a policy one. Courts are well-equipped to review such a decision to ensure that it was made in a procedurally fair manner and that it is reasonable. In this regard, an analogy may be drawn with Tesla Motors Canada ULC v Ontario (Ministry of Transportation), 2018 ONSC 5062, where the precise manner in which an environmental subsidy program was terminated was held to be justiciable.
[54] This brings me to the selection of the standard of review. Where this Court reviews an administrative decision, even in a non-adjudicative context, there is a strong presumption that the decision can only be overturned if it is shown to be unreasonable: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paragraph 50, [2013] 2 SCR 559; Barreau du Québec v Quebec (Attorney General), 2017 SCC 56 at paragraphs 15−16, [2017] 2 SCR 488.
[55] DRFN seeks to rebut the presumption by asserting that the decision-maker in this case has no specific expertise and that the rationale for deference is absent. I disagree. The decision challenged deals with the provision of services to members of First Nations. This is the daily work of ISC officials. They certainly have more knowledge and expertise regarding those matters than this Court. While the Regional Director General is not specifically empowered by legislation, he has the subject-matter expertise that underpins deference in judicial review. Although the precise context may have been different, this Court has reviewed decisions made by ISC or its predecessors with respect to funding decisions or the administration of service programs and concluded that the standard of review was reasonableness: Pikangikum First Nation v Canada (Minister of Indian and Northern Affairs), 2002 FCT 1246; Ermineskin v Canada, 2008 FC 741 at paragraph 43; Tobique Indian Band v Canada, 2010 FC 67 at paragraph 56; Kehewin Cree Nation v Canada, 2011 FC 364 at paragraphs 16-18; Thunderchild First Nation v Canada (Indian Affairs and Nort