Sagkeeng First Nation v. Canada (Attorney General)

Sagkeeng First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-09-24
Neutral citation
2015 FC 1113
File numbers
T-722-12
Decision Content
Date: 20150924
Docket: T-722-12
Citation: 2015 FC 1113
Ottawa, Ontario, September 24, 2015
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
SAGKEENG FIRST NATION
Applicant
and
ATTORNEY GENERAL OF CANADA AND THE MINISTER OF ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT CANADA
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision issued by Ms. Nadine Stiller, Director, Funding Services Operations, Manitoba Region, Aboriginal Affairs and Northern Development Canada (“AANDC”), dated March 7, 2012. The decision was to only partially fund the Sagkeeng First Nation’s (“Sagkeeng” or “Band”) employer contributions to its defined benefits pension plan for its teachers, The Retirement Plan for the Employees of the Sagkeeng First Nation (“Pension Plan”). The application is brought pursuant to s 18.1 of the Federal Courts Act, RSC 1985, c F-7 (“Federal Courts Act”).
Background [2] Sagkeeng is legally known as the Fort Alexander Indian Band and is located in the province of Manitoba. The Government of Canada, by way of the Department of Indian and Aboriginal Affairs, now the Department of Aboriginal Affairs and Northern Development Canada and known as AANDC, administered education for Sagkeeng until 1974. At that time, AANDC delegated its responsibility in this regard to Sagkeeng. As a result, Sagkeeng became the employer of the teachers, who had previously been federal public servants, and transitioned those personnel to its Pension Plan. As the employer of the teachers, Sagkeeng was responsible for making the employer contributions to the Pension Plan.
[3] The Pension Plan is a defined benefits plan (“DB Plan”). This means that its contributions are calculated with reference to maintaining a fixed benefit amount and, therefore, employer contributions may fluctuate with the market and investment choices of the plan administrator. This is unlike a defined contribution pension plan (“DC Plan”), where employer contributions are fixed.
[4] Pursuant to the Pension Benefits Standards Act, 1985, RSC 1985, c 32 (2d Supp) and the Pension Benefits Standards Regulations, 1985, SOR/87-19, all pension plan deficiencies are to be remedied by additional employer contributions, referred to as special payments, to maintain the defined level of benefits.
[5] AANDC provides funding to Sagkeeng for payment of its employees’ benefits through the Band Employees Benefits Program (“BEB Program”), the particulars of which are set out in the Band Employee Benefits Program Policy (“BEB Policy”). AANDC and Sagkeeng enter into an annual funding arrangement (“FA”), which serves as the vehicle by which funding is actually received by Sagkeeng. The BEB Policy sets express limits on the amount that AANDC will fund employer contributions to DC Plans. It also contains an exemption for three DB Plans, including the Pension Plan. The exception does not provide an upper limit but instead provides that funding will be based on Actuarial Valuation Reports (“AVR”s).
[6] An AVR for the fiscal period ending August 31, 2008 identified, for the first time since its inception, that the Pension Plan was in a deficit position. The Pension Plan remained in a deficit position in the fiscal years 2009–2012, and Sagkeeng, as the employer, was required to make special payments to keep the Pension Plan solvent. Sagkeeng requested additional funding from AANDC to cover the cost of the special payments. In August 2010 AANDC advised Sagkeeng that special payments were not eligible for funding.
[7] Sagkeeng requested adjudication pursuant to the BEB Policy’s dispute resolution mechanism. The parties agreed to waive the requirement under that mechanism to proceed in the first instance with the adjudication before the Regional Director General of AANDC (“RDG”). Instead, a dispute resolution with the Director General, Governance (“DG”), was scheduled for January 5, 2011, this was later adjourned to February 8, 2011. On February 3, 2011, Sagkeeng cancelled the proceeding and advised by letter of March 9, 2011 that it could not proceed until it had received all relevant documents.
[8] On March 7, 2012, Ms. Stiller sent a letter to Sagkeeng confirming a meeting scheduled for March 9, 2012 and advising that AANDC had reconsidered its position concerning funding to be provided for the Pension Plan. This resulted in the payment of additional, but not full funding. That decision is the subject of this application for judicial review.
Decision Under Review [9] Given its brevity, the whole March 7, 2012 decision is set out below.
Dear Chief and Council:
Re: Meeting Scheduled March 9, 2012 – Band Employees Benefits Funding
This letter is to confirm the meeting scheduled for 1:00 pm Friday March 9, 2012 at the AANDC offices at 365 Hargrave Street, Winnipeg, MB. The purpose of the meeting is to discuss the BEB funding issues that have been disputed by your First Nation.
In advance of the meeting please note AANDC has reconsidered its position regarding funding to be provided for the Sagkeeng Defined Benefit Pension Plan, which results in additional BEB funding of $890,504.00.
If you have any questions on this matter, you can reach me at […]
Yours truly,
Nadine Stiller
Director, Funding Services Operations
Manitoba Region
Issues [10] The issues can be formulated as follows:
i. Does this Court have jurisdiction to hear this application for judicial review?
ii. Is the application for judicial review premature?
iii. Did AANDC commit a reviewable error?
Standard of Review [11] The first step in determining the appropriate standard of review is to ascertain whether existing jurisprudence has already resolved, in a satisfactory manner, the degree of deference owed to a particular category of question. If it has not, the Court must engage the second step, which is to determine the appropriate standard having regard to the nature of the question, the expertise of the tribunal, the presence or absence of a privative clause, and the purpose of the tribunal (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51-64 [Dunsmuir]; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48).
[12] In this matter the parties agree that the standard is reasonableness but provide no authorities previously establishing this in similar circumstances. I agree, however, that applying the Dunsmuir criteria in these circumstances leads to that standard. The decision under review was made in the context of the BEB Program and pursuant to the BEB Policy. Thus, while there is no enabling legislation that creates a tribunal or informs the decision-maker, this is an administrative decision concerning pension policy and funding. The Federal Court of Appeal in Elsipogtog First Nation v Canada (Attorney General), 2015 FCA 18 [Elsipogtog FCA] has recently dealt with the standard of review in analogous circumstances. In Elsipogtog FCA, the Court found that the reasonableness standard applied to the Minister’s interpretation of a Memorandum of Understanding that circumscribed his powers in the administration of an income assistance program. The Minister’s special familiarity with the terms of the Memorandum of Understanding justified a deferential standard of review. In my view, the interpretation of the BEB Program and BEB Policy in this case is a similar circumstance. Further, questions of fact, discretion and policy, as well as questions where the legal issues cannot be easily separated from the factual issues, generally attract a standard of reasonableness (Dunsmuir at paras 51, 53).
[13] Reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir at paras 45, 47-48; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59, 62).
Preliminary Issue – admission of new evidence [14] Pursuant to a case management Order dated January 19, 2015, the Respondents filed a supplementary memorandum of fact and law seeking to have admitted into evidence, at the judicial review hearing, a statement of claim attached as Exhibit “A” to an affidavit of Ms. Lisa Cholosky, counsel with the Department of Justice (“DOJ” ), affirmed on February 5, 2015. Ms. Cholosky states in her affidavit that she was assigned as counsel on September 3, 2014, that on November 25, 2014 she accepted service of the statement of claim and that she had no prior knowledge of the filing of it nor did a review of DOJ’s file reflect prior knowledge of the claim.
[15] The statement of claim is as between Acting Chief Derrick Henderson and Band Councillors: Kirby Swampy, Lyle Morrisseau and Joseph Daniels on their own behalf and on behalf of Sagkeeng First Nation also known as Fort Alexander Indian Band No. 262 and its members and on behalf of the Members of the Retirement Plan for employees of the Fort Alexander Indian Band, Plaintiffs, and Her Majesty the Queen in Right of Canada as represented by the Minister of Aboriginal Affairs and Northern Development Canada and the said Minister of Aboriginal Affairs and Northern Development Canada and the Attorney General of Canada, Defendants, filed in the Queen’s Bench of Manitoba, Winnipeg, as Court File No. Cl 14-01-91171 (“MBQB Statement of Claim”).
[16] The MBQB Statement of Claim, seeks, amongst other things, a declaration that the defendants therein are obliged, pursuant to an agreement or otherwise, to pay for the full costs, including special payments, of the contributions of Sagkeeng to the Pension Plan; special damages for all pecuniary losses including penalties, interest and fees resulting from the failure of the defendants to make the required contributions; general damages; aggravated, punitive and exemplary damages; and, interest and costs. The MBQB Statement of Claim sets out five causes of action: breach of contract, misrepresentation, interference with contractual relations by unlawful means, unjust enrichment, and, breach of fiduciary duty.
[17] As to breach of contract, Sagkeeng asserts that prior to the establishment of the Pension Plan an express or implied agreement existed between it and the defendants which included a material term or condition that the defendants would pay Sagkeeng the full costs, including special payments, of its contributions to the Pension Plan. As to misrepresentation, Sagkeeng asserts that the defendants represented to it, prior to the establishment of the Pension Plan and on an ongoing basis throughout its administration, that the defendants would pay Sagkeeng the full costs, including special payments, of the required Pension Plan contributions. The defendants owed a private law duty of care in making the representation to take reasonable care to ensure its accuracy.
[18] Sagkeeng also asserts that the defendants unlawfully interfered with their ability to fulfil their obligations under the Pension Plan as a result of the defendants’ refusal to provide the funding as required by agreement, the BEB Policy or otherwise and that the defendants were unjustly enriched. Further, that the relationship between Sagkeeng and the defendants is a fiduciary relationship giving rise to a fiduciary duty of care which was breached by the failure to provide full funding of the Pension Plan contributions.
[19] Sagkeeng claims that, as a result of these breaches, it has and will continue to suffer loss and damage with respect to the unpaid normal contributions, unpaid special contributions, interest and of penalties with respect to the unpaid contributions, loss and damage resulting from the use of other resources by Sagkeeng to pay the amounts that should have been paid by the defendants including reduction in programmes and support such as housing and housing maintenance, infrastructure as well as loss and damage to the members of the Pension Plan as a freeze on or reduction of benefits.
Respondents’ Position [20] The Respondents assert that the MBQB Statement of Claim meets the new evidence requirements of Rule 312 of the Federal Courts Rules, SOR 98/106 (“Federal Courts Rules”) and the test set out in Atlantic Engraving Ltd v Lapointe Rosenstein, 2002 FCA 503 at paras 8-9.
[21] Further, that it will assist the Court because it demonstrates that, at their core, Sagkeeng’s issues are less about a particular delegated authority involved in the process of making a specific decision, and more about damages and a determination of any ongoing obligations arising from an alleged contractual relationship between Sagkeeng and Canada (Manuge v Canada, 2010 SCC 67 at paras 17-22 [Manuge]).
[22] Further, Nation Huronne-Wendat v Canada, 2014 FC 91 at para 29 [Huronne-Wendat FC], aff’d 2014 FCA 264 which considered a very similar claim, addressed the question of whether the claim ought to have been proceeded by a judicial review. The Respondents submit that the Court in that case referred to Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 at para 76 [TeleZone] which stated “If the Plaintiff has a valid cause of action in damages he or she is normally entitled to pursue it” and reasoned that the primary distinction between a judicial review and a claim of damages is the nature of the remedies sought. That reasoning favours an action for damages in this matter. The Respondents also submit that the Crown ought not to be put to answering multiple proceedings when one will serve.
Sagkeeng’s Position [23] Sagkeeng submits that the test for leave in filing an additional affidavit pursuant to Rule 312 is not in dispute and was recently restated in Forest Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 88 [Forest Ethics]. There are two preliminary requirements that must be met: is the evidence admissible on the application for judicial review and is it relevant to an issue properly before the Court? Only if it meets these requirements should the Court go on to consider whether to exercise its discretion and, in that regard, referring to the guiding principles of whether the evidence could have been available with the exercise of due diligence, whether it assists the Court, and, whether it causes substantive or serious prejudice to the other party.
[24] The general rule in applications for judicial review is that, subject to certain exceptions, the evidentiary record before the Court is restricted to the evidentiary record that was before the administrative decision-maker whose decision is the subject of the review (Assn of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at paras 19-20 [Assn of Universities].
[25] Sagkeeng submits that the evidence contained in the Cholosky Affidavit was not before the decision-maker in this case and does not fall within an exception to the general rule.
[26] Further, that the Respondents do not take issue with the Court’s jurisdiction to review the impugned decision. Nor was the argument that the dispute between the parties should be resolved by way of an action for damages made by the Respondents in the first instance and it is not an argument that requires evidence to advance. In effect, the Respondents seek a stay of proceedings without advancing an application seeking that remedy as required by s 50 of the Federal Courts Act. Sagkeeng submits that the Court should not exercise its discretion to admit the Cholosky Affidavit in these circumstances.
[27] However, even if the affidavit is admitted, Manuge, Huronne-Wendat FC and TeleZone are distinguishable as they all address situations where the issue to be decided was whether an action should be stayed on the basis that the relief sought should have been obtained by means of an application for judicial review. Here Sagkeeng seeks a determination of its judicial review application in advance of its action for damages.
[28] And, although Sagkeeng’s Notice of Application does request relief in the nature of damages, its application record limits the relief sought to remedies specifically dealing with the impugned decision and not monetary compensation.
[29] Further, while the Respondents have not yet filed a defence to the MBQB Statement of Claim, their defence could allege that the action amounts to a collateral attack on the impugned decision. That is, because it was open to Sagkeeng to challenge the validity of the decision and, as it was not overturned, it is now bound by it. Accordingly, by filing the action Sagkeeng seeks to avoid a potential procedural pitfall.
[30] Sagkeeng also submits that this proceeding involves arguments that cannot be dealt with by the MBQB Statement of Claim such as whether the Respondents abused their discretion, made erroneous or unreasonable considerations in order to make the decision and whether it is discriminatory. Conversely, the action seeks damages under a number of causes of action unrelated to the impugned decision, although the ultimate goal to obtain additional funding with respect to the Pension Plan, is the same.
[31] Moreover, the Respondents are asking this Court to limit the avenues for relief available to Sagkeeng on the basis that doing so would be more convenient for the Respondents. However, where a valid application for judicial review has been advanced, the Court should not decline jurisdiction on the basis that it looks like a case that should be pursued by way of an action for damages (TeleZone at para 76) and in this case jurisdiction is not in dispute.
Analysis [32] Rule 312 permits a party, with leave of the Court, to file affidavits additional to those provided for in Rules 306 and 307.
[33] As stated by Justice Stratas in Forest Ethics:
[4] At the outset, in order to obtain an order under Rule 312 the applicants must satisfy two preliminary requirements:
(1) The evidence must be admissible on the application for judicial review. As is well known, normally the record before the reviewing court consists of the material that was before the decision-maker. There are exceptions to this. See Gitxsan Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages 144-45 (C.A.); Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22.
(2) The evidence must be relevant to an issue that is properly before the reviewing court. For example, certain issues may not be able to be raised for the first time on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654.
[5] Assuming the applicants establish these two preliminary requirements, they must convince the Court that it should exercise its discretion in favour of granting the order under Rule 312. The Court exercises its discretion on the basis of the evidence before it and proper principles.
[6] In Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101 at paragraph 2, this Court set out the principles that guide its discretion under Rule 312. It set out certain questions relevant to whether the granting of an order under Rule 312 is in the interests of justice:
(a) Was the evidence sought to be adduced available when the party filed its affidavits under Rule 306 or 308, as the case may be, or could it have been available with the exercise of due diligence?
(b) Will the evidence assist the Court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result?
(c) Will the evidence cause substantial or serious prejudice to the other party?
[34] In my view the Cholosky Affidavit, and more particularly the MBQB Statement of Claim, is not admissible. First, as pointed out by Sagkeeng, it was not before the decision-maker when the decision to refuse to fully fund the Pension Plan contributions was made, on that basis alone it should not be admitted (Assn of Universities at para 19). The Respondents do not submit that the Cholosky Affidavit falls within any exception to the general rule that the record before the reviewing court consists of the material that was before the administrative decision-maker. Further, in my view, not only does the affidavit not fall within any of the exceptions, it also does not serve to provide general background as the information it contains does not assist in understanding the issues relevant to this judicial review (Assn of Universities at para 20). Further, it is not relevant to the issue of whether AANDC committed a reviewable error in making the decision to deny full payment of all Pension Plan contributions.
[35] The Cholosky Affidavit does not assist the Court both because it is not relevant and because it is not sufficiently probative to affect the result. The existence of the MBQB Statement of Claim and its content will have no impact on the relief sought as described in the Sagkeeng’s written representations, being a declaration that the decision is invalid, quashed and/or of no force and effect, or, an order quashing the decision and referring it back to AANDC for redetermination on such terms as this Court deems just. Or, as I have framed this issue, a determination of whether the decision is reasonable.
[36] The Respondents submit that the Cholosky Affidavit will assist the Court as it demonstrates that Sagkeeng’s issues are not about delegated authority involved in the process of making a specific decision but are about damages. However, as noted above, the relief sought by way of Sagkeeng’s written representation concern the decision, not damages. Further, even if that were not so, it is unclear to me what impact the admission of the impugned affidavit could have on the outcome of the judicial review. As pointed out by Sagkeeng, the Respondents assert that the “preferred procedure” for addressing the issues is an action. Yet the Respondents do not bring a motion seeking to stay the application for judicial review as would be required by s 50 of the Federal Courts Act or even explicitly submit that the Court should exercise its discretion in that regard. Nor do the Respondents suggest that the application for judicial review should be converted to an action pursuant to Rule 18.4(2).
[37] I am also not convinced that the application for judicial review is a disguised claim for damages. As Sagkeeng admits, the ultimate goal of both the application and the action is the same, being full payment of the Pension Plan contributions by the Respondents, however, the essential character of the application pertains to the impugned decision in refusing to do so while the action pertains to the payment of damages. Subsection 18.1(3) of the Federal Courts Act does not permit damages to be awarded on an application for judicial review. In order to seek damages, the application must be converted to an action, either by seeking a direction from the Court under s 18.4(2) of the Federal Courts Act or by discontinuing the application and issuing a statement of claim (TeleZone).
[38] In TeleZone the Supreme Court of Canada stated that:
[18] This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity. The Court’s approach should be practical and pragmatic with that objective in mind.
[19] If a claimant seeks to set aside the order of a federal decision maker, it will have to proceed by judicial review, as the Grenier court held. However, if the claimant is content to let the order stand and instead seeks compensation for alleged losses (as here), there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks. Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours.
[39] In my view, this confirms that the choice of how to proceed lies with the applicant when there is more than one procedural avenue open to it. Here Sagkeeng seeks to set aside the administrative decision to only partially fund the Pension Plan. If it succeeds, then it is possible that it may not be necessary for it to pursue its action for damages.
[40] And, while the Respondents rely on paragraph 76 of TeleZone which states:
Where a plaintiff’s pleading alleges the elements of a private cause of action, I think the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that should be pursued on judicial review. If the plaintiff has a valid cause of action for damages, he or she is normally entitled to pursue it.
I agree with Sagkeeng that this is of little assistance to the Respondents in these circumstances as the jurisdiction of this Court to hear the application for judicial review is not in issue.
[41] Nor does Manuge assist the Respondents. There the Supreme Court found that the pleadings in issue, at their core, represented a claim for alleged breaches of s 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982 c 11and, therefore, that the action need not be stayed in favour of an application for judicial review. It also stated:
[17] Following TeleZone, there is no question that the Federal Court has jurisdiction to entertain Mr. Manuge’s claim as an action for damages: Federal Courts Act , s. 17(1) ; Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 , s. 21 ; TeleZone, at paras. 19-23 and 43-46; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626, at para. 17; Nu-Pharm Inc. v. Canada (Attorney General), 2010 SCC 65, [2010] 3 S.C.R. 648, at para. 16. Mr. Manuge’s pleadings disclose claims against the Crown seeking remedies that the Federal Court has authority to grant in an action.
[18] But under TeleZone, there is a residual discretion to stay an action if it is premised on public law considerations to such a degree that, in Binnie J.’s words, “in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong” (TeleZone, at para. 78). The Crown’s argument, in essence, is that Mr. Manuge’s action should be stayed on that basis.
[19] The exercise of the discretion to stay an action in this context is dependent on an identification of the essential character of the claim as an assertion of either private law or public law rights. I agree with the Crown that some of Mr. Manuge’s claims raise issues that are amenable to judicial review. However, the question is not just whether some aspects of Mr. Manuge’s pleadings could be addressed under ss. 18 and 18.1 of the Federal Courts Act , but what, in their essential character, his claims are for.
[42] The Supreme Court concluded that the discretion to grant a stay of the action should not be exercised in that case. Nor is this is not the circumstance that is now before me.
[43] Interestingly, in Huronne-Wendat FC, which also concerned a decision by AANDC to cap its contribution to the funding of another of the exempted defined DB Plans and a claim for damages in that regard brought by the First Nation, AANDC argued before this Court that because the First Nation was asking for an order depriving the decision of its effects for the years 2008-2012 it should first have applied for judicial review. Here, of course, it argues the opposite, suggesting that the action and not the judicial review should have been pursued.
[44] In Huronne-Wendat FC, Justice Gagné did not accept the AANDC’s position. She noted that the primary distinction between an application for judicial review and a claim for damages is the nature of the remedy sought and that is it always open to an applicant “to seek the performance of an obligation by equivalence rather than by specific performance” (para 28):
[29] It is possible to invoke the unlawfulness of an administrative decision as a source of the State’s contractual or extracontractual liability. “If the plaintiff has a valid cause of action for damages, he or she is normally entitled to pursue it” (Telezone, above, at para 76). In Quebec civil law, the plaintiff who invokes a fault (contractual or extracontractual), damage and a causal link between the two should also be entitled to bring an action in damages against the State. The Council’s action in damages, the ultimate private remedy, in based primarily on a breach of contract. It therefore appears to me that the Department is proposing a rather artificial distinction.
[45] Again, I do not see how this assists the Respondents as the decision in Huronne-Wendat FC simply confirms the right to proceed by way of an action, it does not compel that outcome.
[46] For all of these reasons, leave to admit the Cholosky Affidavit is denied.
Issue 1: Does this Court have jurisdiction to hear this application for judicial review? [47] Sagkeeng submits that this Court has jurisdiction to review the March 7, 2012 decision pursuant to s 18(1)(b) of the Federal Courts Act:
Definitions
Définitions
2. (1) In this Act,
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
[…]
“federal board, commission or other tribunal”
« office fédéral »
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
[…]
[…]
Extraordinary remedies, federal tribunals
Recours extraordinaires : offices fédéraux
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
18. (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral.
[48] Sagkeeng’s view is that the decision is one of a federal board, commission or other tribunal as Ms. Stiller articulated it on behalf of AANDC. The decision states that AANDC had reconsidered its position and Ms. Stiller’s evidence was that senior officials had obtained concurrence for partial payment towards the Pension Plan shortfall at AANDC headquarters (Affidavit of Nadine Stiller, affirmed August 17, 2012, para 55, Tab 4, Volume 1, Applicant’s Record (Stiller Affidavit)). Further, that the Deputy Minister’s office was notified of the intention to make a partial payment and made no objection (Answers to Written Examination Affidavit of Nadine Stiller, affirmed January 31, 2014, Tab 3, Vol 4, Tab 3 of the Applicant’s Record, p 1227 (Answers to Written Examination)). Sagkeeng submits that the decision articulated by Ms. Stiller is, ipso facto, the decision of the Deputy Minister of AANDC who was acting as a federal board, commission or other tribunal when he exercised or purported to exercise powers conferred by or under an act of Parliament. The Deputy Minister decided to provide Sagkeeng with the additional funding through the BEB Program and applied the BEB Policy, which program the Deputy Minister is authorized to operate pursuant to the Department of Indian Affairs and Northern Development Act, RSC 1985, c I-6, s 4 (“DIAND Act”). Accordingly, this Court has jurisdiction.
[49] The Respondents do not take issue with the Court’s jurisdiction to review the decision.
[50] The Federal Court of Appeal in Anisman v Canada (Border Services Agency), 2010 FCA 52 at para 29 stated that a two-step enquiry must be made in order to determine whether a body or person is a federal board, commission or other tribunal. First, it must be determined what jurisdiction or power the body or person seeks to exercise. Second, it must be determined what is the source or the origin of the jurisdiction or power which the body or person seeks to exercise.
[51] And, as stated by the Supreme Court of Canada in TeleZone:
[3] The definition of “federal board, commission or other tribunal” in the Act is sweeping. It means “any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown” (s. 2), with certain exceptions, not relevant here, e.g., decisions of Tax Court judges. The federal decision makers that are included run the gamut from the Prime Minister and major boards and agencies to the local border guard and customs official and everybody in between…
[52] The DIAND Act establishes the Department of Indian and Northern Affairs, over which the Minister presides and a Deputy Minister is appointed. The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not otherwise assigned, relating to Indian Affairs (DIAND Act, ss 2-4). The Department’s applied title is AANDC (Treasury Board of Canada, Federal Identity Program Policy). Pursuant to s 3 of the Indian Act, RSC, 1985 c I-5 (“Indian Act”), the Minister of Indian Affairs and Northern Development may authorize the Deputy Minister or the Chief Officer in charge of the branch of the Department relating to Indian Affairs to perform and exercise any of the duties, powers and functions of the Minister under the Indian Act or any other act of Parliament relating to Indian Affairs.
[53] As discussed further below, while the evidence of Ms. Stiller is certainly not as clear as it could and should have been as to the manner in which she was authorized to make the decision and AANDC’s organizational structure in that regard, I am satisfied that the decision to partially fund the Pension Plan shortfall was made by Ms. Stiller as part of her responsibilities as Director, Funding Services Operations of the Manitoba Region of AANDC, which position included the administration of funding to Sagkeeng. I am also satisfied that her decision purports to interpret and apply the BEB Policy, which policy was, presumably, established by AANDC. Further, that her decision was authorized by the Assistant Deputy Minister (“ADM”) with the knowledge of the Deputy Minister (“DM”), and was exercised or purported to exercise a delegation of power ultimately derived from s 4 of the DIAND Act read together with s 3 of the Indian Act. Therefore, it is a decision that falls within the definition of a federal board, commission or other tribunal, and this Court has jurisdiction to review it pursuant to s 18(1)(b) of the Federal Courts Act. The Respondents do not suggest otherwise.
Issue 2: Is the application for judicial review premature? [54] The BEB Policy contains the following dispute resolution mechanism:
Disputes regarding the accuracy of stated populations and programs administered will be adjudicated by the Regional Director General.
Disputes regarding the application of policy or formulae will be adjudicated by, in the first instance, the Regional Director General. If a satisfactory resolution is not achieved, the matter must be referred to the Director General, Governance, at headquarters.
Respondents’ Position [55] The Respondents take the position that document disclosure was provided to Sagkeeng both before and after the decision; discussions between the parties took place at various times allowing for a further exchange of information; documentation was received pursuant to Access to Information Requests of the Treasury Board; document disclosure under the Federal Courts Rules was made; and, Sagkeeng also pursued a motion regarding document disclosure. Although the issue of document disclosure was resolved, Sagkeeng did not subsequently request dispute resolution.
[56] Accordingly, the application for judicial review is premature because the dispute resolution mechanism contained in the BEB Policy was not being utilized. A party must exhaust a statutory administrative review process before applying to the Court for relief (Canada (Border Services Agency) v CB Powell Ltd, 2010 FCA 61 at paras 30-33 [CB Powell]). There are no exceptional or extraordinary circumstances in this case that would allow this judicial review to occur before Sagkeeng exhausts its rights and remedies under the administrative process (Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR 3 at para 105 [Matsqui]).
Sagkeeng’s Position [57] Sagkeeng submits that after the decision was issued neither it nor AANDC requested an adjudication. AANDC was asked whether it would participate in a dispute resolution proceeding under the BEB Policy but no response was provided. Further, that in paragraph 51 of her affidavit Ms. Stiller characterizes the decision as final, yet in paragraph 57 she indicates that the decision would be discussed on March 9, 2012. Accordingly, the March 9, 2012 meeting was not to adjudicate the issue but to notify Sagkeeng of the final decision.
[58] Sagkeeng submits that judicial review is a discretionary remedy and, absent exceptional circumstances, it should not occur until after the administrative process is complete (CB Powell at paras 30-33). However, in this case it is clear that the administrative process has been exhausted. Sagkeeng has expressed its dissatisfaction with the lack of documentary disclosure that it received in advance of a scheduled adjudication and this issue was not resolved. In advance of further meetings scheduled to discuss funding under the BEB Program, AANDC released a decision that it later called a final decision and Ms. Stiller’s evidence was that senior officials at AANDC Headquarters had concurred with partial payment towards the shortfall in the Pension Plan.
[59] Further, issues cannot be raised and an effective remedy cannot be granted by adjudicating them before the DG of AANDC. The final decision has been made and authorized by the person whose task it would be to resolve an adjudication of the issue under the BEB Policy. This lack of institutional independence gives rise to a reasonable apprehension of