Ontario (Indigenous Police) v. Canada (Public Safety)

Indigenous Police Chiefs of Ontario v. Canada (Public Safety)
Court (s) Database
Federal Court Decisions
Date
2023-06-30
Neutral citation
2023 FC 916
File numbers
T-961-23
Decision Content
Date: 20230630
Docket: T-961-23
Citation: 2023 FC 916
Montréal, Québec, June 30, 2023
PRESENT: Mr. Justice Gascon
BETWEEN:
INDIGENOUS POLICE CHIEFS OF ONTARIO
Complainants / Moving Party
and
PUBLIC SAFETY CANADA
Respondent
and
ASSEMBLY OF FIRST NATIONS
Intervener
ORDER AND REASONS
I. Overview [1] The Complainants, the Indigenous Police Chiefs of Ontario [IPCO], bring an urgent motion for interlocutory relief under section 44 of the Federal Courts Act, RSC 1985, c F-7 [FC Act]. The motion arises out of the implementation of a federal program administered by the government of Canada [Canada] through Public Safety Canada [PSC], namely, the First Nations and Inuit Policing Program [FNIPP]. Pursuant to the FNIPP, agreements are adopted between provincial and federal governments and First Nations for the funding of self-administered Indigenous police services.
[2] On March 29, 2023, IPCO filed a complaint to the Canadian Human Rights Commission [Commission] under the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], in which it alleges discrimination in the FNIPP and the terms and conditions it imposes for the funding of Indigenous police services [Complaint].
[3] In this motion, IPCO requests declaratory and injunctive relief against the Respondent, PSC, in order to circumvent the alleged discriminatory effects of the FNIPP and compel PSC to continue funding three specific self-administered Indigenous police services. These are the Treaty Three Police Service [T3PS], the Anishinabek Police Service [APS], and the UCCM Anishnaabe Police Service [UCCM] [together, the Three Police Services]. IPCO claims that PSC refused to enter in good faith negotiations before the expiry of funding agreements with a number of self-administered Indigenous police services, which resulted in T3PS, APS, and UCCM losing funding as of March 31, 2023. IPCO further maintains that the loss of funding for the Three Police Services will imminently lead to the cessation of policing services in 45 Indigenous communities, resulting in the need for interlocutory orders to prevent the irreparable harm that such circumstances will inevitably cause to Indigenous people living in these communities.
[4] More specifically, IPCO asks the Court to issue a mandatory order requiring PSC to immediately reinstate funding for the Three Police Services whose funding under the FNIPP expired on March 31, 2023, as well as a prohibitive order requiring PSC to suspend the effects of section 6 of the Terms and Conditions — Funding for First Nations and Inuit Policing [Terms and Conditions], or relieve the T3PS, APS, and UCCM police services from compliance with this section.
[5] IPCO submits that the Court has jurisdiction to issue the requested injunctive relief pursuant to section 44 of the FC Act, and that it satisfies each prong of the conjunctive three-part test set forth by the Supreme Court of Canada [SCC] in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald] for the issuance of interlocutory injunctions. IPCO claims that: 1) a serious issue to be tried has been raised in its underlying Complaint; 2) the Indigenous communities served by the Three Police Services will suffer irreparable harm if interlocutory injunctive relief is not granted; and 3) the balance of convenience, which compares the harm IPCO and the Three Police Services will suffer to the harm done to PSC, as well as the public interest, favours IPCO.
[6] On this motion, the Court is not tasked with deciding the merits of IPCO’s Complaint under the CHRA or, more generally, the adequacy of funding of self-administered Indigenous police services in Canada. The Court’s role is to determine whether IPCO satisfies the requirements to be granted the declaratory and injunctive relief sought.
[7] There are five issues to be determined in this matter: 1) whether section 44 of the FC Act can apply in the circumstances; 2) whether PSC is issue estopped from contradicting certain findings made in three recent judicial decisions relating to the FNIPP; 3) whether IPCO meets the requirements for a declaratory relief; 4) whether IPCO meets the well-established tripartite test to obtain injunctive relief; and 5) if so, what are the appropriate remedies.
[8] Further to my review of the parties’ written and oral submissions and of the evidence, IPCO’s motion will be granted in part. I am satisfied that IPCO meets the applicable conditions for the issuance of a mandatory interlocutory injunction reinstating, on a temporary basis and on certain conditions, the funding of the T3PS, APS, and UCCM police services. The Court has jurisdiction pursuant to section 44 of the FC Act, and IPCO has demonstrated that a serious issue to be tried exists, that the Indigenous communities served by the Three Police Services will suffer irreparable harm if an injunction is not granted, and that the balance of convenience tilts in IPCO’s favour. I conclude that this is an exceptional situation where it is just and equitable for the Court to intervene. However, there are no grounds to issue any form of declaratory relief or to order the outright suspension of the prohibitions still contained in section 6 of the Terms and Conditions.
II. Background A. Factual context [9] It is undisputed that Indigenous communities have a long and difficult history with the criminal justice system in Canada and with non-Indigenous police services. First Nations communities across the country continue to suffer from serious public safety crises and disproportionate levels of crime. It is in this context that Canada adopted the First Nations Policing Policy, first introduced in June 1991 and last updated in 1996 [Policy].
[10] The Policy aims at ensuring that Indigenous communities have “access to police services that are professional, effective, culturally appropriate, and accountable to the communities they serve” (Policy at p 1), and that they benefit from “policing services that are responsive to their particular needs and that meet acceptable standards with respect to the quality and level of service” (Policy at p 3). The Policy allows Indigenous communities to create self-administered Indigenous police services, providing culturally appropriate policing based on Indigenous approaches to justice and safety.
[11] The purpose of the Policy is to “contribute to the improvement of social order, public security and personal safety in First Nations communities, including that of women, children and other vulnerable groups” (Policy at p 2). The Policy also establishes that First Nations communities “should have access to policing services which are responsive to their particular policing needs and which are equal in quality and level of service to policing services found in communities with similar conditions in the region” (Policy at p 4). The Policy lists broad policing cost categories eligible for funding (Policy at p 8).
[12] The Policy governs the FNIPP, which PSC — a federal government ministry — has the responsibility to administer. Through the FNIPP, Canada and the provincial government of Ontario [Ontario] both fund self-administered Indigenous police services in Ontario by way of funding agreements with First Nations. Under the FNIPP, funding for self-administered Indigenous police services is provided through tripartite agreements signed between the First Nations, Canada, and the relevant provincial or territorial government.
[13] IPCO represents nine self-administered Indigenous police services in Ontario, including T3PS, APS, and UCCM.
(1) T3PS, APS, and UCCM police services agreements [14] T3PS provides policing services to 23 Indigenous communities with a combined population of 23,000 people in the area of Grand Council Treaty #3 in Northern Ontario.
[15] APS serves 16 Indigenous communities located on a vast geographic area spanning hundreds of kilometers from Southern to Northern Ontario, and regrouping approximately 30,000 individuals.
[16] For its part, UCCM serves six Indigenous communities, with a combined population of 2,000 individuals, located in the District of Manitoulin Island in Northern Ontario. Furthermore, UCCM supports the Ontario Provincial Police and the Wikwemikong Tribal Police Service in their operations.
[17] On August 23, 2022, in light of the imminent expiry of their funding agreements, representatives of Ontario reached out to T3PS and Canada to set up a meeting and begin discussions for the renewal of their Indigenous police services funding agreement. Similar communications occurred with APS and UCCM on September 23, 2022.
[18] T3PS, Ontario, and Canada met on November 22 and 23, 2022. Following their meetings, the parties exchanged various correspondences. Among others, T3PS expressed its unwillingness to discuss operational needs until the parties signed terms of reference governing the negotiations. The parties both suggested subsequent meeting dates, but they did not meet again.
[19] Similarly, APS met with Canada and Ontario on October 19, 2022, and subsequently on December 8, 2022. Despite further correspondence, they did not reach an agreement.
[20] For its part, UCCM never attended a meeting, after it cancelled the first agreed-upon meeting date.
[21] On February 27, 2023, PSC communicated with T3PS and UCCM and indicated that Canada was prepared to offer increases to the current funding levels of their police services. A similar communication was sent to APS on March 14, 2023. Canada sent further additional increases to those funding amounts on March 23, 2023. T3PS was advised that roughly $25.5 million in funding for up to 105 officers was available for 2023-24, with another increase of four officers for 2024-25. According to PSC, this represented a 40% increase from T3PS’s 2021 levels. APS was advised that over $24 million in funding for up to 92 officers was available for 2023-24, with another increase of an additional four officers for 2024-25. This represented a 48% increase from APS’s 2021 levels. Finally, UCCM was advised that over $9.6 million in funding for up to 31 officers was available for 2023-24, with another increase of an additional officer for 2024-25. This represented a 78% increase from UCCM’s 2021 levels.
[22] On March 17, 2023, T3PS, APS, and UCCM sent a joint letter to PSC. The letter contained three “preconditions” for negotiation before the three Indigenous police services would accept a one-year extension of the current funding agreements. Securing such a one-year extension would give T3PS, APS, and UCCM time to negotiate long-term agreements for the funding of their respective police services. The preconditions were that: 1) parties commit to the attendance of a decision maker with decision-making authority at each negotiation table; 2) a “Negotiations Terms of Reference” be finalized, recognizing the unique context of Indigenous policing and shared commitments to encouraging self-determination, in line with the honour of the Crown, reconciliation, and the Policy; and 3) each table be funded by Canada, as is regularly done in other contexts [together, the Preconditions].
[23] At the time, PSC was not prepared to agree to the “Terms of Reference” proposed by IPCO, to consider setting aside certain prohibitions contained in the Terms and Conditions (such as the funding of legal services in the context of the FNIPP), or to commit to have precise decision makers present at all negotiation meetings.
[24] I pause to underline that, contrary to the impression left by some of the written and oral submissions made by IPCO, the three Preconditions are not to be confused with the three prohibitions set out in section 6 of the Terms and Conditions and which, on this motion, IPCO is asking the Court to suspend.
(2) Expiry of funding agreements and the Complaint [25] On March 29, 2023, IPCO filed its Complaint with the Commission about Canada’s alleged discriminatory and systemic underfunding of Indigenous police services under the FNIPP. IPCO submitted the Complaint on behalf of the nine self-administered First Nations police services it represents. In the Complaint, IPCO claims that PSC ignores the recent findings of Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v Public Safety Canada, 2022 CHRT 4 [Dominique], of Canada (Attorney General) v Pekuakamiulnuatsh First Nation, 2023 FC 267 [Pekuakamiulnuatsh], and of Takuhikan c Procureur général du Québec, 2022 QCCA 1699 [Takuhikan], and instead forces Indigenous communities to accept the same discriminatory FNIPP Terms and Conditions, or else lose funding.
[26] On March 31, 2023, the funding agreements of T3PS, APS, and UCCM expired, despite the efforts of the parties to reach an agreement. The cessation affects approximately 30,000 to 40,000 individuals from the 45 Indigenous communities served by T3PS, APS, and UCCM.
[27] Since the expiry of their respective funding agreement, T3PS, APS, and UCCM have not received any funds from Canada and Ontario. T3PS, APS, and UCCM have been able to maintain their operations for a few more weeks, but T3PS expects to run out of funds by the end of June 2023, and APS and UCCM by July 2023.
[28] I point out that, on May 26, 2023, Canada sent further offers of 90-day funding extensions to T3PS, APS, and UCCM “for the express purpose of issuing a payment,” with the aim to help alleviate the existing financial problems caused by the failure to renew the funding agreements. However, such extensions of funding would maintain “the parameters of the contribution agreement that expired in March 2023.”
(3) The Complaint [29] The Complaint, which is the underlying action at the source of IPCO’s present motion for declaratory and interlocutory relief, can be summarized as follows. It arises out of what IPCO claims is the ongoing systemic discrimination perpetuated by Canada through its deliberate and wilful underfunding and under-resourcing of the safety of Indigenous communities through the FNIPP. IPCO maintains that Canada discriminates against First Nations in the provision of the FNIPP, resulting in a discriminatory denial of safety to Indigenous people. In sum, IPCO argues that, as a result of Canada’s discriminatory conduct, the establishment of equitable policing for Indigenous communities, comparable to the policing and safety that the rest of the country experiences, remains out of reach for Indigenous people.
[30] More specifically, IPCO submits in the Complaint that the perpetuation of inequitable policing for First Nations communities is engineered by: 1) the deliberate concealment of the Policy and the imposition of the discriminatory and restrictive Terms and Conditions designed to keep First Nations down; and 2) Canada’s use of unconscionable bargaining tactics with First Nations with respect to the expiry and negotiation of tripartite funding agreements under the FNIPP.
[31] IPCO contends that the FNIPP Terms and Conditions — which, it says, were drafted by Canada with no consultation with Indigenous communities — impose restrictions and prohibitions designed to impede the ability of First Nations police services to deliver adequate, effective, and culturally responsive policing. In particular, IPCO takes issue with section 6 of the Terms and Conditions, which lists the following items as “ineligible expenditures” for the funding of self-administered Indigenous police services: “[c]osts related to amortization, depreciation, and interest on loans; legal costs related to the negotiation of the agreement and any dispute related to the agreement or the funding received under the agreement; profit, defined as an excess of revenues over expenditures; and costs for specialized policing services, such as ERT, Canine Units and Forensic Services.”
[32] IPCO claims that the prohibitions on funding for access to legal advice, for mortgages and loans, and for specialized policing units contained in section 6 of the Terms and Conditions are discriminatory, as they impose lower standards of policing to First Nations, compared to those available to comparable non-Indigenous communities. This, says IPCO, amounts to a denial of service contrary to section 5 of the CHRA, as it makes it impossible to provide basic policing services to the First Nations.
[33] In terms of relief, IPCO seeks the following remedies in its Complaint to the Commission: 1) a declaration that the Crown has breached the CHRA, and an order that it cease and desist from doing so; 2) an order that the Crown comply with the terms of its own Policy, including, but not limited to, the guarantees described in the Complaint; 3) damages of $40,000 per person based on the total population of communities served by IPCO, reflecting the wilful and reckless nature of the discriminatory conduct; and 4) appropriate public interest remedies. Even though the Complaint itself deals extensively with what IPCO describes as Canada’s discriminatory FNIPP Terms and Conditions, no specific relief is sought with respect to the prohibited “ineligible expenditures” contained in section 6 of these Terms and Conditions.
[34] I pause to observe that, by letter dated June 27, 2023 — i.e., after the hearing before the Court which took place on June 14, 2023 —, counsel for PSC informed the Court that, on June 24, 2023, Canada modified, by way of a ministerial amendment, section 6 of the Terms and Conditions to remove “specialized police services, such as ERT, Canine Units and Forensic Services” from the list of expenditures ineligible for FNIPP funding. The other ineligible expenditures listed in section 6 of the Terms and Conditions, however, have not changed. On June 28, 2023, counsel for IPCO sent a letter to the Court to provide additional context and relevant documents (including a supplementary affidavit affirmed by T3PS’s Chief Kai Liu) in relation to this late amendment made by PSC to the Terms and Conditions.
(4) Cases underlying the Complaint [35] The Complaint heavily relies on the Dominique, Pekuakamiulnuatsh, and Takuhikan precedents issued in 2022 and 2023. In Dominique, issued on January 31, 2022, the Canadian Human Rights Tribunal [CHRT] found that Canada discriminated against the Pekuakamiulnuatsh First Nation in its implementation of the FNIPP. Particularly, the CHRT determined that discrimination occurred because of the short duration of the funding agreements, the lack of funding, and the poor level of policing services to this First Nation.
[36] On February 27, 2023, the CHRT decision was upheld by this Court in Pekuakamiulnuatsh, on an application for judicial review. According to IPCO, the Court then confirmed that Canada discriminates against Indigenous peoples through chronic underfunding of the FNIPP and through discriminatory terms directly contravening the underlying Policy. PSC has appealed the Pekuakamiulnuatsh decision at the Federal Court of Appeal [FCA], but has not sought a stay of the decision pending the outcome of that appeal.
[37] Finally, in a decision issued on December 15, 2022 in Takuhikan, the Quebec Court of Appeal [QCCA] held that, on the basis of the same factual context as in Dominique, Canada and the provincial government of Quebec breached their obligations under the honour of the Crown in applying the FNIPP in a manner that allows the underfunding of Indigenous police services to the Pekuakamiulnuatsh First Nation.
B. Intervener [38] By an order of this Court issued on June 12, 2023, the Assembly of First Nations [AFN] was granted leave to intervene in the present matter. The AFN advocates and promotes relationships between the Crown and diverse First Nations. It has a long history of intervening in judicial proceedings, providing courts with insight on the legal questions involving First Nations.
[39] PSC did not oppose the proposed intervention but asked that AFN’s intervention be subject to the following terms:
The AFN shall not be allowed to file any evidence or raise new issues;
The AFN shall be entitled to file a memorandum of fact and law [MOFL] of no more than 10 pages;
Canada shall be entitled to file a MOFL of no more than 5 pages in reply; and
The AFN shall not be entitled to seek its costs against any other party.
[40] The Court accepted these terms, and the issues that the AFN could address in its written and oral submissions were limited as follows:
Whether the discriminatory application and administration of the FNIPP by PSC has resulted in chronic and systematic underfunding for First Nations police services;
The AFN’s engagement with PSC in a process to co-develop legislation to recognize First Nations policing as an essential service; and
Whether First Nations possess the right to self-determination with respect to determining their own community safety needs and the right to exercise their jurisdiction over policing.
[41] The AFN was also granted permission to make oral submissions at the hearing before the Court, not exceeding 15 minutes.
C. Orders sought [42] In its MOFL, IPCO specified the orders it is requesting from the Court. These are as follows:
1. A declaratory relief reaffirming the CHRT decision in Dominique, the decision of this Court in Pekuakamiulnuatsh, and the decision of the QCCA in Takuhikan:
a. That the FNIPP is a service that is provided to Indigenous communities by Canada as defined in paragraph 5(b) of the CHRA;
b. That the implementation of the FNIPP deprives Indigenous communities from being able to access basic policing services, which results in the perpetuation of existing discrimination faced by Indigenous people; and
c. That the implementation of the FNIPP violates Canada’s honour of the Crown obligations by failing to fund Indigenous police services at a level comparable to that of surrounding communities with similar conditions.
2. A prohibitive injunctive relief:
a. Enjoining Canada from enforcing specific identified clauses in section 6 of the Terms and Conditions (namely, clauses prohibiting essential police services, prohibiting financing of infrastructure, and prohibiting expenditures on legal representation); and/or
b. In the alternative, an order relieving T3PS, APS, and UCCM from any obligation of compliance with the specific identified clauses in section 6 of the Terms and Conditions (namely, clauses prohibiting essential police services, prohibiting financing of infrastructure, and prohibiting expenditures on legal representation);
3. A mandatory injunctive relief, ordering Canada to flow funds to T3PS, APS, and UCCM for a 12-month period, consistent with the Policy and in at least the amounts flowed through the last tripartite funding agreement for the 2022-2023 fiscal period.
[43] At the hearing before the Court, counsel for IPCO confirmed that the reliefs detailed in IPCO’s MOFL replace and supersede the reliefs initially described in IPCO’s Notice of Motion. Counsel further confirmed that the three remedies sought were independent from one another.
D. Relevant statutory framework [44] The relevant statutory provisions read as follows.
(1) FC Act
Mandamus, injunction, specific performance or appointment of receiver
Mandamus, injonction, exécution intégrale ou nomination d’un séquestre
44 In addition to any other relief that the Federal Court of Appeal or the Federal Court may grant or award, a mandamus, an injunction or an order for specific performance may be granted or a receiver appointed by that court in all cases in which it appears to the court to be just or convenient to do so. The order may be made either unconditionally or on any terms and conditions that the court considers just.
44 Indépendamment de toute autre forme de réparation qu’elle peut accorder, la Cour d’appel fédérale ou la Cour fédérale peut, dans tous les cas où il lui paraît juste ou opportun de le faire, décerner un mandamus, une injonction ou une ordonnance d’exécution intégrale, ou nommer un séquestre, soit sans condition, soit selon les modalités qu’elle juge équitables.
(2) Federal Courts Rules, SOR/98-106 [FC Rules]
Motion before proceeding commenced
Requête antérieure à l’instance
372 (1) A motion under this Part may not be brought before the commencement of a proceeding except in a case of urgency.
372 (1) Une requête ne peut être présentée en vertu de la présente partie avant l’introduction de l’instance, sauf en cas d’urgence.
Undertaking to commence proceeding
Engagement
(2) A party bringing a motion before the commencement of a proceeding shall undertake to commence the proceeding within the time fixed by the Court.
(2) La personne qui présente une requête visée au paragraphe (1) s’engage à introduire l’instance dans le délai fixé par la Cour.
Availability
Injonction interlocutoire
373 (1) On motion, a judge may grant an interlocutory injunction.
373 (1) Un juge peut accorder une injonction interlocutoire sur requête.
Undertaking to abide by order
Engagement
(2) Unless a judge orders otherwise, a party bringing a motion for an interlocutory injunction shall undertake to abide by any order concerning damages caused by the granting or extension of the injunction.
(2) Sauf ordonnance contraire du juge, la partie qui présente une requête pour l’obtention d’une injonction interlocutoire s’engage à se conformer à toute ordonnance concernant les dommages-intérêts découlant de la délivrance ou de la prolongation de l’injonction.
Expedited hearing
Instruction accélérée
(3) Where it appears to a judge that the issues in a motion for an interlocutory injunction should be decided by an expedited hearing of the proceeding, the judge may make an order under rule 385.
(3) Si le juge est d’avis que les questions en litige dans la requête devraient être tranchées par une instruction accélérée de l’instance, il peut rendre une ordonnance aux termes de la règle 385.
Evidence at hearing
Preuve à l’audition
(4) A judge may order that any evidence submitted at the hearing of a motion for an interlocutory injunction shall be considered as evidence submitted at the hearing of the proceeding.
(4) Le juge peut ordonner que la preuve présentée à l’audition de la requête soit considérée comme une preuve présentée à l’instruction de l’instance.
III. Analysis A. Preliminary issues (1) Jurisdiction of the Court [45] IPCO argues that, pursuant to section 44 of the FC Act, the Court has jurisdiction to hear its motion and to grant injunctive relief, pending the proceedings before the Commission. Relying on the SCC decision in Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 SCR 626 [Canadian Liberty Net], IPCO argues that Parliament entrusted the Court with a general supervisory role over proceedings under the CHRA. IPCO claims that, in this context, the Court may grant an injunction “[i]n addition to any other relief,” even in the event that the substance of the dispute remains to be determined by a different decision maker. As such, IPCO submits that, through section 44 of the FC Act, Parliament intended to grant to the Court a general administrative jurisdiction over all federal boards and tribunals, including the Commission.
[46] I agree. Section 44 of the FC Act provides this Court with jurisdiction to grant injunctive relief concerning administrative proceedings and decisions, even in circumstances where there is no proceeding before the Court.
[47] There is a line of authority standing for the proposition that the Court has jurisdiction to issue a freestanding interlocutory injunction pending a CHRA complaint. Indeed, section 44 of the FC Act can be and has been relied on to supervise and oversee the CHRA process (Canadian Liberty Net at paras 36–37; Letnes v Canada (Attorney General), 2020 FC 636 [Letnes] at para 23; Toutsaint v Canada (Attorney General), 2019 FC 817 [Toutsaint] at para 65; Colasimone v Canada (Attorney General), 2017 FC 953 [Colasimone] at para 7; Drennan v Canada (Attorney General), 2008 FC 10 [Drennan] at para 23). It applies to the CHRA process before both the Commission and the CHRT.
[48] In Canadian Liberty Net, the SCC established that section 44 of the FC Act empowers the Court to issue freestanding interim injunctive relief even in situations where the merits of the underlying case, action or application will be heard by another decision maker who cannot issue injunctions (Pier 1 Imports (US), Inc v Canada (Public Safety and Emergency Preparedness), 2018 FC 963 at para 48). Pursuant to the language of section 44, the Court can do so “in all cases in which it appears to [it] to be just or convenient.” In other words, the Court has residual jurisdiction to grant a freestanding injunction even if the final disposition of the dispute is left to an administrative decision maker and is not before the Court (Canadian Liberty Net at para 20).
[49] PSC has not challenged the Court’s jurisdiction to hear this motion.
[50] I pause to underline, however, that section 44 of the FC Act does not invest the Court with any freestanding power to issue declaratory relief. Such declaratory power results from other provisions of the FC Act.
(2) Issue estoppel [51] In its motion, IPCO relies on the doctrine of res judicata and submits that PSC is issue estopped from contesting several factual and legal findings made in Dominique, Pekuakamiulnuatsh, and Takuhikan. Particularly, IPCO claims that the following findings should not be at issue on this motion:
That the FNIPP is a “service,” within the meaning of section 5 of the CHRA;
That Canada discriminates against Indigenous peoples through its implementation of the FNIPP;
That Canada’s discriminatory practices stem from its failure to fulfil the guarantees of the underlying Policy that governs the FNIPP;
That the goal of substantive equality set out in the underlying Policy is not achieved and cannot be achieved by the FNIPP because of its very structure;
That the Canadian government is legally bound to guarantee a standard of policing in Indigenous communities that is adapted to their needs and that is equal in quality and quantity to services provided in similar non-Indigenous communities;
That this obligation extends to a legal guarantee that police service models in Indigenous communities should be at least equivalent to those offered in neighbouring communities with similar conditions, and that Indigenous communities should be involved in choosing a model that is adapted to their particular needs while also being as cost-effective as possible;
That the very structure of the FNIPP results in a denial of service, as the FNIPP makes it impossible for Indigenous communities to receive basic policing services, since basic services are effectively ruled out under the funding formula;
That funding under the FNIPP is both arbitrary and inadequate;
That Canada’s discriminatory actions have violated the honour of the Crown;
That underfunding exacerbates existing discrimination against Indigenous communities by increasing their dependency on the federal Crown; and
That Canada cannot justify its discriminatory conduct based on its excuse that the FNIPP is a “contribution program.”
[52] I am not convinced by IPCO’s arguments on issue estoppel.
[53] The principle of issue estoppel applies when a person attempts to relitigate a particular matter (whether a question of law, of fact, or of mixed fact and law) that was determined in a prior proceeding to which that person — or that person’s privy — was a party. Issue estoppel, or preclusion arising out of an issue already decided, is one of the two components of res judicata, the other being cause of action estoppel.
[54] The conditions to the operation of issue estoppel are well known. First, they require three elements: 1) that the same question has been decided; 2) that the judicial decision which is said to create the estoppel was final; and 3) that the parties to that judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies (Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 [Danyluk] at paras 25, 33; Tuccaro v Canada, 2014 FCA 184 at para 14). In Danyluk, the SCC noted that “estoppel extends to the material facts and the conclusions of law or of mixed fact and law […] that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk at para 24). The principle of estoppel thus prevents new litigation on the same issue between the same parties, even if the issue arises in the context of a different cause of action.
[55] There are two steps to the test for applying issue estoppel. First, the Court must be satisfied that the three conditions described above for triggering the application of the doctrine have been met. If so, the Court must then consider whether it should exercise its discretion to refuse to apply the doctrine of issue estoppel (Timm v Canada, 2014 FCA 8 [Timm] at paras 22–23). Thus, even if the Court concludes that the doctrine’s three conditions have been met, it may nevertheless refuse to apply issue estoppel in order to ensure that principles of fairness are adhered to. The Court’s discretion at this second step of the analysis “must be exercised with regard to the particular circumstances of each case” (Timm at para 24, citing Danyluk at para 67).
[56] On this motion, IPCO does not meet any of the three elements of the test, and issue estoppel and the doctrine of res judicata therefore cannot apply.
[57] First, the decisions in Dominique, Pekuakamiulnuatsh, and Takuhikan addressed whether the amounts and duration of the FNIPP funding of the Pekuakamiulnuatsh First Nation in Quebec were discriminatory and contrary to the CHRA. Conversely, the issue in the underlying IPCO’s Complaint will be whether the funding of the nine self-administered First Nations police services in Ontario is discriminatory under the FNIPP and contrary to the CHRA. I agree with PSC that these are different questions involving different evidence.
[58] Second, “[a] decision must be final before res judicata can apply. If an appeal is pending, the decision is not final” (Novopharm Ltd v Eli Lilly and Co (TD), [1999] 1 FC 515 at para 29). As stated by the FCA in Canada v MacDonald, 2021 FCA 6 at paragraph 15, “an order or judgment under appeal is not final for the purposes of the doctrine of res judicata.” Since there is an appeal pending before the FCA in Pekuakamiulnuatsh, the findings made in that case and in Dominique are not final. Moreover, Dominique is not final for the purpose of issue estoppel, since the CHRT still has to determine the issue of remedy. The remedy hearing has yet to occur, where the CHRT will consider whether to order Canada to “cease” from doing something pursuant to paragraph 53(2)(a) of the CHRA.
[59] Third, the findings made in Dominique, Pekuakamiulnuatsh, and Takuhikan cannot be issue estopped, as the parties in those cases and in the present proceeding are not the same (Angle v MNR, [1975] 2 SCR 248; Blocker v Canada (Citizenship and Immigration), 2022 FC 1101 at para 31). More specifically, the complainants are different.
[60] This is not to say that the Court should ignore the prior factual and legal findings made in Dominique, Pekuakamiulnuatsh, and Takuhikan with respect to the FNIPP and its discriminatory features. Those findings certainly have an important bearing on this motion and on the relief sought by IPCO, as they directly relate to the FNIPP and its implementation by PSC through the Terms and Conditions. They will therefore be considered below. But the similarity between different factual situations is not sufficient to trigger an issue estoppel.
B. Declaratory relief [61] I now turn to the first remedy sought by IPCO on this motion, namely, declaratory relief reaffirming three conclusions allegedly stemming from the CHRT decision in Dominique, the decision of this Court in Pekuakamiulnuatsh, and the decision of the QCCA in Takuhikan.
[62] I decline to grant the requested declaratory relief for the following three reasons.
[63] First, as pointed out by PSC, this relief was not raised by IPCO in its Notice of Motion, and it cannot be added as a remedy for the first time through the insertion of a paragraph in IPCO’s MOFL. Absent unusual circumstances, a court may only grant the relief that is sought in the notice of motion (FC Rules at para 359(b); Energizer Brands LLC v The Gillette Company, 2020 FCA 49 at para 39). Here, IPCO has failed to demonstrate the existence of any unusual circumstances that would justify adding declaratory relief at the late stage of its MOFL.
[64] In a letter to the Court, counsel for IPCO claimed that discussions had taken place between the parties in the context of the cross-examinations on affidavits, pursuant to which IPCO could allegedly add to the injunctive relief singled out in its Notice of Motion. However, my review of the evidence leads me to conclude that such exchanges strictly related to additional details to be provided in relation to the prohibitive and mandatory injunctive relief initially laid out by IPCO in its Notice of Motion. Contrary to the suggestion made by counsel for IPCO, I can find no indication in the cross-examination of Ms. Debra Bouchie (one of IPCO’s six affiants), or elsewhere in the record, that new declaratory relief was discussed between the parties or even contemplated after the filing of the Notice of Motion. The discussions referred to in the cross-examinations revolved solely around particularizing the injunctive relief, and were not about adding something not contemplated in the initial Notice of Motion, such as declaratory relief.
[65] Second, declaratory relief should not be made by the Court until after a full hearing on the merits and with complete evidence. In Calwell Fishing Ltd v Canada, 2016 FC 312 [Calwell] at paragraph 119, the Court described the declaratory relief as a “discretionary remedy whereby a court can issue a declaratory judgment, that is a judicial statement confirming or denying a legal right or existing legal situation. The Court lacks jurisdiction to make declarations of fact.” The issuance of a declaration requires the Court to have jurisdiction to hear the issue, a real dispute, a genuine interest in the resolution of the issue by the moving party, and an interest by the respondents to oppose the declaration (Ewert v Canada, 2018 SCC 30 at para 81). The declaratory relief sought by IPCO is inappropriate in the circumstances, given that IPCO has only requested a motion for an interlocutory injunction pursuant to section 44 of the FC Act and that declaratory relief is not an appropriate remedy on an interlocutory motion (Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 [Wasylynuk] at para 69, citing Sawridge Band v Canada, 2003 FCT 347 at para 6, aff’d 2004 FCA 16).
[66] Third, a moving party seeking declaratory relief is still required to establish the elements of the relief sought (Calwell at para 149). IPCO had the evidentiary burden to demonstrate that it is entitled to declaratory relief (Calwell at paras 170–171, 248–250). In my view, IPCO has failed to do so. The record and the affidavit evidence do not demonstrate that the three specific declarations sought are appropriate and of practical utility, especially in the context where the decisions on which IPCO relies are currently under appeal. I am not satisfied that, at this stage, IPCO has established that the Dominique, Pekuakamiulnuatsh, or Takuhikan decisions necessarily have the specific meaning and scope it asks the Court to declare they have.
[67] In light of the foregoing, IPCO’s request for declaratory relief will be denied.
C. Interlocutory injunctions [68] The essence of IPCO’s motion relates to the prohibitive and mandatory injunctive reliefs it is seeking.
(1) Th