Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada

Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada
Collection
Canadian Human Rights Tribunal
Date
2022-01-31
Neutral citation
2022 CHRT 4
File number(s)
T2251/0618
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Grounds
National or Ethnic Origin
Race
Summary:
In this case, the Tribunal had to decide if the First Nations Policing Program (FNPP) discriminated against Gilbert Dominique, a representative of the Pekuakamiulnuatsh, members of the Mashteuiatsh community (the "complainant"). This program, implemented and financed in part by the federal government, enables First Nations to have an Indigenous police service.
The Tribunal found that the complainant was discriminated against by Public Safety Canada in the provision of a service, on the ground of race and national or ethnic origin.
In 1996, the community of Mashteuiatsh chose to set up a self-administered First Nations police service, adapted to its needs, rather than use the services of the Sûreté du Québec (SQ). This police service was eligible for public funding under the FNPP. To provide the funding, Tripartite agreements were signed between the federal government, the Government of Quebec, and the First Nation. Under these agreements, funding is provided in part by the federal and provincial governments on a set cost-shared basis.
The evidence before the Tribunal showed that the Mashteuiatsh First Nation police service is chronically underfunded: the funding does not allow the First Nation to offer its members a basic police service comparable to that enjoyed by neighboring communities. When the First Nation attempts to do so, it runs a deficit year after year.
In examining the merits of the complaint, the Tribunal first found that the complainant and the Pekuakamiulnuatsh are members of a First Nation and, as such, have the characteristics of race and national or ethnic origin that are prohibited grounds of discrimination.
The Tribunal then determined that the funding provided under the FNPP—which was tied to program monitoring, related assistance to the First Nation, and requests for accountability reports—constitutes a service. The Tribunal found that the Respondent, in implementing the FNPP, is providing a service to the Complainant.
To decide whether there was adverse treatment, and whether that adverse treatment was based on a prohibited ground of discrimination, the Tribunal then examined the FNPP in the historical and current context of First Nations policing on reserves in Quebec, including reports of inquiries into the provision of police services to First Nations communities. The Tribunal also emphasized that it must take judicial notice of certain facts, including systemic discrimination and racism against members of First Nations, and known conflicts between the police and this visible minority.
The Tribunal also emphasized that, whether or not it is required to do so, once the federal government decides to provide benefits under the FNPP, it is obliged to do so in a non-discriminatory manner.
The Tribunal found that the funding received from the federal and provincial governments as a result of the FNPP does not allow the Mashteuiastsh police to provide police services at the same level as that provided by non-First Nations police forces. The only way for the First Nation to provide its community with services comparable to those offered to the neighboring municipalities, and to other citizens of Quebec, would be to use the services of the SQ. However, the evidence showed that the SQ is not able to offer services adapted to the particular needs of the First Nation. The complainant and the Pekuakamiulnuatsh are at a disadvantage because of this trade-off, which they alone are faced with as members of First Nations, and they are denied equal opportunity.
The Tribunal found that the implementation of the FNPP perpetuates existing discrimination, and that the goal of substantive equality is not being and cannot be achieved through the FNPP, because of its very structure, which necessarily results in a denial of service. The Tribunal will hear submissions from the parties at a later date on the issue of remedies.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
4
Date:
January 31, 2022
File No.:
T2251/0618
[ENGLISH TRANSLATION]
Between:
Gilbert Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation)
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Public Safety Canada
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Preamble 1
II. Background of complaint 3
III. Tribunal’s Decision 4
IV. Issues 4
V. Discrimination law 5
VI. Preliminary questions 7
A. Tribunal’s jurisdiction—collateral attack on the PA 7
B. Res judicata—Superior Court of Québec and appeal to Quebec Court of Appeal 12
(i) Res judicata 14
(ii) Final judgment 17
(iii) Identity of the parties 18
(iv) Abuse of process and residual discretion 20
(v) Additional remarks—some of the complainant’s arguments 21
VII. Analysis 22
A. Prohibited grounds of discrimination – Race and national or ethnic origin 23
B. Adverse treatment on a prohibited ground of discrimination in the provision of a service (paragraph 5(b) of the CHRA) 23
(i) Police services 24
(ii) Public Safety Canada provides a “service” under section 5 of the CHRA 33
(iii) Adverse treatment based on a prohibited ground of discrimination 41
C. Respondent’s defence (section 16(1) of the CHRA) 66
VIII. Decision 71
IX. Continuation of the procedure: remedies 72
I. Preamble
[1] The Canadian Human Rights Tribunal (“Tribunal”), by its very nature, deals with sensitive and delicate issues that affect what Canadians certainly value most: their self‑identity, that is, what they are inherently as human beings.
[2] The Tribunal is a quasi-judicial entity that applies the Canadian Human Rights Act (“CHRA”), an act that guarantees “quasi-constitutional” rights (Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII); Canada (Human Rights Commission) v. Canada (Attorney General), 2016 FCA 200 (CanLII)).
[3] The purpose of the Tribunal is to review litigation involving fundamental rights and freedoms that are undeniably guaranteed to everyone. Guaranteeing these rights is of paramount importance in a free and democratic society like Canadian society, and these guarantees help to safeguard human dignity (Polhill v. Keeseekoowenin First Nation, 2017 CHRT 34, at para. 51 [Polhill]).
[4] In Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 SCR 497, at paragraph 53, the Supreme Court of Canada wrote the following:
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.
[5] Complaints involving First Nations across Canada have their own contexts and their own specific characteristics, again, by their very nature. No one contests that courts and tribunals across the country can take judicial notice of the systemic and historical factors affecting First Nations (R v. Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128 [Williams]; see also Willcott v. Freeway Transportation, 2019 CHRT 29 (CanLII) [Willcott], at para. 234; Nielsen v. Nee Tahi Buhn Indian Band, 2019 CHRT 50 (CanLII) [Nielsen], at para. 136).
[6] In First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 (CanLII) [Family Caring Society 2016], at paragraph 402, the Tribunal repeated that the social, political and legal contexts must be taken into account in its analysis when determining whether there has been discrimination in a substantive sense.
[7] In the context of Indigenous peoples, stereotyping and prejudice resulting from colonialism, population displacements and the residential school system are all relevant (same reference; see also R v. Turpin, 1989 CanLII 98, [1989] 1 SCR 1296, at page 1332; Corbière v. Canada (Minister of Indian and Northern Affairs Canada), 1999 CanLII 687, [1999] 2 SCR 203, at para. 66; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 SCR 950, at para. 69; R. v. Kapp, 2008 SCC 41 (CanLII), [2008] 2 SCR 483, at para. 59 [Kapp]).
[8] Although the decision was a criminal and penal matter, the Supreme Court’s reasons in R. v. Ipeelee, 2012 SCC 13 (CanLII) [Ipeelee], at paragraph 60, are, without doubt, entirely relevant in the circumstances. The Court wrote the following:
Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.
[Emphasis in original.]
[9] The Tribunal recognizes the suffering that First Nations, their communities, and their families have experienced and continue to experience to this day. The Tribunal salutes their strength and their courage in this pursuit of justice and healing, on a path towards truth and reconciliation.
[10] That being said, the Tribunal must base its decision on the evidence presented to it and decide, on a balance of probabilities, whether the complaint is substantiated or not (section 53 of the CHRA).
II. Background of complaint
[11] The case before the Tribunal concerns a complaint filed by Gilbert Dominique, on behalf of the Pekuakamiulnuatsh (the “Complainant”), who are members of the Mashteuiatsh community in the Saguenay–Lac-Saint-Jean region of Quebec.
[12] The complaint was filed with the Canadian Human Rights Commission (“Commission”) on February 12, 2016, against Public Safety Canada (the “Respondent”) under section 5 of the CHRA.
[13] Specifically, the Complainant alleges he experienced adverse differential treatment by the Respondent in the provision of services (paragraph 5(b) of the CHRA) resulting from the implementation of the First Nations Policing Policy (C-4, the “Policy”), which implements the First Nations Policing Program (“FNPP” or the “program”), on the basis of his race and national/ethnic origin.
[14] The Complainant essentially submits that the adverse differential treatment was a result of the inadequate funding he was provided, the short durations of the agreements he is required to sign, and the subpar level of the police services offered to the members of the community.
[15] It must be noted that this decision by the Tribunal only aims to determine whether there was any discrimination or not. The parties and the Tribunal agreed to separate the hearing into two distinct parts, one leading to a decision on liability and the other to a decision on the remedies to be granted, if any.
[16] The five-day hearing was held on December 15, 16, 21, 22, and 23, 2020. Because of the global health crisis, which is also affecting Canada, the Tribunal heard the parties’ evidence by videoconference. No significant problems arose during the hearing with regard to the use of technology, and any minor hiccups were resolved in a timely manner.
[17] In this same vein, and although it has no effect on its decision, the Tribunal cannot ignore the very high level of professionalism of the representatives of each party in this matter. The Tribunal recognizes their sustained work and efforts in bringing this case to term. They respected all the Tribunal’s directives to the letter throughout the case management stage, during evidence management, and at the hearing. The collegiality between the representatives was palpable, making an inherently litigious and adversarial process much more serene and efficient.
III. Tribunal’s decision
[18] The Tribunal must inevitably rule on the dispute on the basis of the evidence the parties presented to it at the hearing.
[19] For the reasons that follow, the Tribunal finds the complaint to be substantiated (subsection 53(2) of the CHRA).
IV. Issues
[20] The Tribunal will follow the analysis developed in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), at paragraph 33 [Moore], to determine whether the complainant was the victim of discrimination by the Respondent in the provision of services under paragraph 5(b) of the CHRA.
[21] The issues are therefore the following:
(1) Is there a prohibited ground of discrimination under the CHRA?
(2) Was there adverse differential treatment (adverse impact) in the provision of a service customarily available to the general public under paragraph 5(b) of the CHRA?
(3) Was the prohibited ground of discrimination a factor in the adverse impact?
[22] The Tribunal will first address the two arguments made by the Respondent, who raised some concerns regarding the Tribunal’s jurisdiction to deal with the complaint, on the one hand, and regarding the possible application of res judicata, on the other.
V. Discrimination law
[23] The purpose of the CHRA is set out in section 2. The CHRA aims to guarantee that all individuals have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on prohibited grounds of discrimination.
[24] It is well accepted in the case law that the onus is on the complainant to, first of all, meet their burden of proof on a balance of probabilities. This is what is traditionally called proof of prima facie discrimination.
[25] Specifically, the complainant must present a prima facie case on a balance of probabilities. As the Supreme Court of Canada stated in Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536, at paragraph 28 [Simpsons-Sears]:
A prima facie case . . . is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.
[26] In this same vein and as developed in Moore, a complainant must prove the following three elements:
(1) that there is a prohibited ground of discrimination under the CHRA;
(2) that they experienced an adverse impact (in this case, under section 5); and
(3) that the prohibited ground of discrimination was a factor in the adverse impact.
(See also Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 789 (CanLII), at para. 63 [Bombardier]; Simpsons‑Sears, at para. 28).
[27] As the Tribunal has stated on several occasions, an intention to discriminate is not required, nor is a complainant required to show that the prohibited ground of discrimination was the sole cause of the adverse impact (Bombardier, at paras. 40 and 44).
[28] It is also recognized that discrimination is generally neither open nor intentional. This is why the Tribunal must consider all the circumstances of the complaint to determine if there is a “subtle scent of discrimination”, as the Tribunal has described it (Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT) [Basi]). The Tribunal can therefore draw certain inferences from the circumstantial evidence in cases where the evidence offered in support of the allegations makes such an inference more probable than the other possible inferences or hypotheses. Nonetheless, this circumstantial evidence must be tangibly related to the impugned decision or conduct of the respondent (Bombardier, at para. 88).
[29] It is also well established that when the Tribunal must decide whether a complainant’s burden of proof has been met, it must consider the evidence as a whole, which includes the evidence submitted by the respondent (Bombardier, at para. 58; Lally v. Telus, 2014 FCA 214 (CanLII), at para. 31).
[30] In doing so, the Tribunal could, for example, find that the complainant did not meet the burden of proof for their case if the evidence they presented is incomplete or if the respondent is able to present evidence refuting the complainant’s allegations (Dulce Crowchild v. Nation Tsuut’ina, 2020 CHRT 6 (CanLII), at para. 10; Brunskill v. Canada Post Corporation, 2019 CHRT 22 (CanLII), at paras. 64 and 65 [Brunskill]; Nielsen, at para. 47; Polhill, at para. 58; Willcott, at para. 12).
[31] On the other hand, if the complainant is able to meet the prima facie burden of proof, and depending on the circumstances of the complaint, the respondent may rely on defences in the CHRA, particularly under paragraphs 15(1)(a) and (e) of the CHRA, which are based on the existence of bona fide occupational requirements or justification, and the defence under section 16 of the CHRA, regarding special programs.
[32] Lastly, the respondent could also present evidence to limit their liability under subsection 65(2) of the CHRA, when applicable in the circumstances.
VI. Preliminary matters
A. Tribunal’s jurisdiction—collateral attack on the PA
[33] As the Tribunal noted at paragraph 22 above, the Respondent introduced a major argument that the Tribunal does not have jurisdiction in this case. The Tribunal cannot agree with the Respondent’s claims, for the reasons that follow.
[34] First, the Respondent alleges that the proceeding brought by the Complainant is, in part, a collateral attack on the Quebec legislation that provides for police services on its territory, the Police Act, CQLR, c. P-13.1 (“PA”). Because this is a provincial act, the Tribunal would therefore not have jurisdiction. In this vein, the Respondent submits that, in his statement of particulars, the Complainant argued that the PA and the tripartite agreements are responsible for the alleged discrimination and that the tripartite agreements are necessarily linked to the provincial act.
[35] In other words, the Respondent considers that when the Complainant argues that the PA and the tripartite agreements do not provide for minimum level 1 police services—which would be discriminatory—it is actually a collateral attack on the PA. It therefore argues that the Complainant did not challenge the validity of the PA in the appropriate forum and that the question of levels of police services offered is closely linked to the PA, a provincial act, and therefore excluded from the Tribunal’s jurisdiction.
[36] It further argues that any suggestion by the Complainant that the fact the tripartite agreements do not set any levels of police service is a discriminatory act amounts to a collateral attack on the PA. It adds that it would be impossible for the federal government to provide such a level of police service because this is under the exclusive jurisdiction of the province (subsection 92(14) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in RSC 1985, App. II, No. 5 (“Constitution Act, 1867”).
[37] I disagree with the Respondent, and I believe the Tribunal has jurisdiction to hear this complaint. As previously noted, I do not agree with the Respondent’s argument that the complaint is, in whole or in part, a collateral attack on the PA.
[38] It is undisputed that the Tribunal has no jurisdiction over a provincial act because it can only address issues under the Parliament of Canada’s jurisdiction. The purpose of the CHRA, stated in section 2, is clear on this:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament . . .
[Emphasis added.]
[39] It is also undisputed that police services are under provincial jurisdiction, in accordance with the authority the provinces have over the administration of justice (subs. 92(14) of the Constitution Act, 1867; see also Quebec (Attorney General) v. Picard, 2020 FCA 74, at para. 42).
[40] However, the evidence is clear that the FNPP is a federal program. The three parties involved have obligations and rights that result from the application of this program, as set out in the tripartite agreements (between the federal government, the provincial or territorial government and First Nations).
[41] It is also clear from the evidence that one of the main components of applying the FNPP and implementing the tripartite agreements is the funding itself, which is provided, in part, by the Government of Canada. The Tribunal writes “in part” because the implementation of the FNPP is funded by the federal government and the province on a well-defined pro-rata basis of 52 percent and 48 percent of the cost of the police services, respectively.
[42] However, this funding distribution only becomes effective in implementing the FNPP. In other words, if it did not apply the program, the federal government would not be involved in Indigenous police services since it is the province that ensures its territory is served by a police service, in accordance with the separation of powers set out in the Constitution Act, 1867 (at subs. 92(14)).
[43] This funding allows First Nations communities to establish an Indigenous police service according to various existing models that are set out in the FNPP. The evidence also indicates that the federal government’s funding therefore circumscribes the funding offered by the provinces or territories; the Tribunal will address this aspect later in the decision.
[44] The Tribunal is satisfied that the FNPP, its application and its implementation fall under its jurisdiction.
[45] Additionally, the Tribunal notes that the Respondent’s arguments regarding the issue of jurisdiction completely ignore the Tribunal’s analysis in Family Caring Society 2016, at paragraphs 78 to 86.
[46] We must remember that Parliament retains its exclusive legislative jurisdiction over “Indians, and Lands reserved for the Indians” under subsection 91(24) of the Constitution Act, 1867. On this point, the Tribunal will not repeat the analysis of members Marchildon and Lustig in Family Caring Society 2016, but it notes that this analysis, in the circumstances of the present complaint, is entirely relevant, convincing and unassailable.
[47] While the Tribunal understands that Public Safety Canada does not offer direct and “on the ground” police services to Indigenous communities on reserve, which was shown by the evidence, it nonetheless funds part of the police services that are offered on reserve.
[48] Depending on the model chosen, these police services can be offered by the province or territory or, as in the case of the Mashteuiatsh community, by the First Nation directly. In other words, Mashteuiatsh established its own Indigenous police service to provide on-reserve policing.
[49] Therefore, police services on First Nations’ reserves necessarily overlap the jurisdictions of the Parliament of Canada and of the provinces and territories. The federal government retains its exclusive legislative jurisdiction over “Indians, and Lands reserved for the Indians” (subsection 91(24) of the Constitution Act, 1867) while the provinces and territories retain their jurisdiction over the administration of justice (subsection 92(14) of the Constitution Act, 1867), which includes police services.
[50] The federal Parliament decided to become involved in Indigenous police services as permitted under the Constitution, and in accordance with the division of powers set out in the Constitution Act 1867. It did not decide to offer police services on the Mashteuiatsh reserve, strictly speaking, but it did make a deliberate decision to become involved, specifically by creating a funding program for First Nations police services. In creating and implementing the FNPP, it decided to develop a program, implement it and finance it.
[51] It is acknowledged that once the federal Parliament decides to become involved in this regard, it cannot do so in a discriminatory manner; this is reflected in the Supreme Court’s reasoning in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624, at paragraph 42 [Eldridge].
[52] In that case, and although it was ruling on a comparable situation involving the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Canadian Charter”), the Supreme Court found that the government cannot escape review under the Canadian Charter by entering into commercial or private agreements. The Tribunal adopted this analysis in Family Caring Society 2016. These conclusions by the Supreme Court are just as relevant in the circumstances of the present case.
[53] Although the federal government is not necessarily becoming involved by providing police services itself in the Mashteuiatsh community, it did decide to implement a funding program that is managed by Public Safety Canada.
[54] The fact that police services are offered by a third party, for example the province or territory or even the First Nation itself, as in the case of Mashteuiatsh, does not mean that the Government of Canada can escape human rights reviews under the Canadian Charter (Eldridge, at para. 42) or the CHRA (Family Caring Society 2016, at paras. 83 to 86).
[55] In this regard, paragraph 86 of Family Caring Society 2016 is echoed in our case: the federal government, because of its constitutional obligation to First Nations, is in a situation where it offers Indigenous peoples the possibility of establishing an Indigenous police service via the implementation of the FNPP. Acting through a federal department, Public Safety Canada, it supervises the program, negotiates tripartite agreements and requires a degree of accountability from the First Nations. Thus, the Tribunal has the jurisdiction to determine whether Public Safety Canada, in this area, discriminated against the complainant.
[56] On another note, although the Complainant alleges in his statement of particulars that neither the PA nor the tripartite agreements [translation] “. . . provide policing coverage that meets the basic minimum level for the communities served by an Indigenous police force” (Complainant’s Statement of Particulars, at para. 12), the Tribunal finds that it is the part involving the application and implementation of the FNPP and the resulting tripartite agreements that is relevant in the case before it.
[57] This observation is confirmed when paragraph 13 of the Complainant’s statement of particulars is read together with paragraph 12. In that document, the Complainant states that the level of funding from the FNPP does not allow him to offer a minimum of policing coverage on the reserve, equivalent to the coverage offered by non-Indigenous police forces in Quebec.
[58] The Tribunal does not understand this argument by the Complainant, who aims to challenge the minimum threshold of services set out right in the PA, which in any event is allegedly not under its jurisdiction. The Tribunal instead understands that he is alleging that the funding offered through the implementation of the FNPP, a federal program, does not allow him to ensure his members have a minimum level of police service, which would be equivalent to the level 1 minimum threshold under the PA. Therefore, the level of services is closely linked to the funding itself, which would affect the services offered to members of Mashteuiatsh. This assertion was already conceded by the Respondent in its outline of argument, at paragraphs 159 and 160.
[59] Therefore, the Tribunal is not satisfied that the exercise the Respondent is asking it to do is required in the circumstances. The Tribunal is not persuaded that the Complainant’s complaint is, in whole or in part, a collateral attack on the PA.
[60] At any rate, the Tribunal will not need to take a position on the PA. The Tribunal is able to determine, on the evidence presented at the hearing, whether the FNPP and its application have discriminatory effects under the CHRA stemming from the funding offered and the resulting level of police services, as well as from the duration of the agreements.
[61] For these reasons, the Tribunal dismisses this part of the Respondent’s arguments and continues its analysis.
B. Res judicata—Superior Court of Québec and appeal to Court of Appeal of Québec
[62] The Respondent argued that the Complainant is attempting to present the Tribunal with a legal debate that has already been heard before another court of law.
[63] Indeed, the Superior Court of Québec (“Superior Court”) ruled on an originating application on December 19, 2019, and dismissed the plaintiff’s action (Takuhikan c. Procureur général du Québec, 2019 QCCS 5699 (CanLII) [Takuhikan]). That decision was, however, appealed. As of the date of the present decision, the parties have not informed the Tribunal whether the Court of Appeal has ruled on that appeal.
[64] The Respondent argues that in the Tribunal proceeding, the Complainant is raising the same legal reasoning with regard to the Crown’s obligations to negotiate in good faith, act with honour and fulfill its fiduciary duty to First Nations
[65] In its opinion, all the arguments tied to this reasoning were already decided by the Honourable Robert Dufresne in Takuhikan and are therefore res judicata, such that the Tribunal cannot reconsider them.
[66] Moreover, the Respondent submits that certain findings of fact, of law and of mixed fact and law that were previously decided by the Superior Court should not be brought before the Tribunal again. The Respondent listed a series of conclusions the Superior Court drew in this regard (Respondent’s Outline of Argument, at para. 75).
[67] The Respondent relies on Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII) [Toronto] and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII) [Penner] and bases its arguments on the principles of issue estoppel, the availability of more appropriate recourse, and the avoidance of multiplicity of proceedings and contradictory judgments.
[68] It is important to note that the Respondent is not asking for the complaint before the Tribunal to be dismissed in its entirety on the basis of issue estoppel. It is instead asking that the findings of fact, of law and of mixed fact and law made by the Superior Court not be challenged at the hearing of the complaint before the Tribunal (Respondent’s Outline of Argument, at para. 76).
[69] The Tribunal finds that it must review the key principles of issue estoppel. First, there are multiple doctrines enshrining the finality of judicial decisions:
issue estoppel and cause of action estoppel (subcategories of res judicata);
collateral attack; and
abuse of process.
[70] These doctrines have a fundamental place in our legal system, under both common law and Canadian civil law. They are the vehicles our legal systems have used to embody in the litigation process the principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice. All these principles emanate from the greater principle of fairness (British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII) [Figliola], at para. 25).
[71] As noted by my colleague Colleen Harrington in Beattie and Bangloy v. Indigenous and Northern Affairs Canada, 2019 CHRT 45 (CanLII), at paragraph 64, confirmed by the Federal Court of Appeal in Bangloy v. The Attorney General of Canada, 2021 FCA 245 [Beattie and Bangloy], and relying on the reasons of our colleague Kirsten Mercer in Todd v. City of Ottawa, 2017 CHRT 23 (CanLII), at paragraph 36, the greater doctrine of finality provides that once an issue is decided by a competent court or tribunal, it cannot be relitigated, except in an appeal or a judicial review proceeding.
[72] First of all, the Supreme Court recognized that this doctrine and its related discretionary power apply to administrative tribunals and their decisions (Penner, at para. 31; Figliola, at para. 26).
[73] In the present case, when the Respondent states that the issues of fact, law and mixed fact and law that the Superior Court has already decided should not be relitigated by the Tribunal, we understand that the respondent is referring to the principle of issue estoppel. It is therefore in light of this principle that the Tribunal will analyze the Respondent’s arguments.
[74] The test for applying the doctrine of issue estoppel as described in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), at paragraph 33 [Danyluk], requires a two-step analysis.
[75] First, for issue estoppel to apply, three conditions must be met:
(1) the same question has been decided;
(2) the earlier decision was final; and
(3) the parties or their privies were the same.
(See Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), at page 254 [Angle]; Figliola, at para. 27; Beattie and Bangloy, at para. 66).
[76] It has also been established that the decision maker retains discretion to not apply issue estoppel when its application would work an injustice (Penner, at para. 29). As noted by the Supreme Court in Danyluk, at paragraph 1, this discretion is based on the idea that “[a] judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice.”
[77] In other words, if the three conditions are met, the Tribunal must then ask whether, in exercising its discretion, this form of estoppel ought to be applied (Danyluk, para. 33).
[78] The Tribunal will analyze these three conditions in the next paragraphs.
(i) Res judicata
[79] First, the issue before the Tribunal was not decided by the Superior Court.
[80] It is agreed that same facts (or the same “factual matrix”) can lead to two different causes of action (Danyluk, at para. 54; McIntosh v. Parent, 1924 CanLII 401 (ON CA), at page 423). This is true in the present case.
[81] For the purposes of applying issue estoppel, however, care must be taken to not confuse “cause of action” and “issue”, the first being covered by issue estoppel, which does not apply in this case since the causes of action are clearly different (see for example E. Charbonneau, “Préclusion, res judicata et préclusion découlant d’une question déjà tranchée : des éclaircissements s’imposent”, in the Canadian Bar Review, Vol. 93, No. 2, 371, at page 381).
[82] The Tribunal also notes that “issue” and “facts” must not be confused (Mangat v. Canada (Citizenship and Immigration), 2019 FC 1299 (CanLII), at para. 23; Alderman v. North Shore Studio Management Ltd., 1997 CanLII 2053 (BC SC), at para. 15). On this subject, the Supreme Court of Canada reminds us that
. . . [issue] estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceeding.
(Danyluk, at para. 54) [Emphasis added.]
[83] In other words, and again from Danyluk, citing Angle, “[t]he question out of which the estoppel is said to arise must have been ‘fundamental to the decision arrived at’ in the earlier proceeding” (para. 24; see also Donald J. Lange, The Doctrine of Res Judicata, 2nd ed. (Markham: Lexis Nexis Butterworths: 2004), at page 385).
[84] The Tribunal again notes that the Respondent had filed a motion for a stay of the Tribunal’s proceedings in 2017 because of the originating application filed in Superior Court, which had striking similarities to the complaint before the Tribunal. The Tribunal dismissed the motion for the reasons stated in Gilbert Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2019 CHRT 9 (CanLII) [Dominique 2019].
[85] Without presenting the Tribunal’s reasoning in that ruling in its entirety, one of the important grounds in support of dismissing the motion was that the Superior Court and the Tribunal were asked to perform very different legal analyses, one based in part on the Crown’s obligations to negotiate in good faith, act with honour and discharge its fiduciary duties to the First Nations (Dominique 2019, at paragraphs 16 to 18). It is a notable difference, in that the Tribunal must apply an analysis based on human rights and discrimination as developed in Moore, among other cases.
[86] It is relevant to cite certain excerpts from Dominique 2019. At paragraph 12, the Tribunal wrote:
A court or tribunal must rule on the facts, interpret them and apply the law to the facts of each case. Based to its own jurisdiction and the nature of disputes that it hears, a court or tribunal is required to analyze the facts according to its own unique perspective. Therefore, two of them may hear evidence that is similar or identical on a number of different aspects, but they must analyze this evidence differently with a view to rendering judgments that will not have the same effects. Consequently, it is above all the nature of the dispute that is important.
[87] At paragraphs 16 to 18, the Tribunal concluded as follows:
[16] The proceedings before the Superior Court involve aspects and principles which are not part of the analysis performed by the Tribunal and developed in Moore. The parties are asking the Superior Court to analyze, among other issues, whether the defendants failed to fulfill their obligations to negotiate in good faith, to act with honour and to discharge their fiduciary duties to the First Nation (see the originating application, as well as the issues set out in in the request for setting down for trial and judgment by way of a joint declaration). The Tribunal has not been asked to take a position on these aspects in these proceedings.
[17] As noted by the Honorable Sandra Bouchard, this forms the cornerstone of the First Nation’s action in the Superior Court (see paragraphs 32 and 33 of her judgment, Pekuakamiulnuatsh Takuhikan c. Procureur général du Canada, 2017 QCCS 4787). She provides useful insight into the foundations of the principle of the honour of the Crown and the Crown’s fiduciary duty, as well as the potential vulnerability assessment concerning the plaintiff (see judgment, para. 46).
[18] There is nothing in the analysis made by the Honourable Sandra Bouchard concerning the notions of fiduciary duties, the honour of the Crown or good faith negotiations that would suggest the need to present evidence concerning any prohibited ground for discrimination or adverse differential treatment that the complainant allegedly suffered in the context of the provision or denial of services. Moreover, there is nothing to suggest the need to present evidence concerning an existing link