Beattie and Bangloy v. Indigenous and Northern Affairs Canada

Beattie and Bangloy v. Indigenous and Northern Affairs Canada
Collection
Canadian Human Rights Tribunal
Date
2019-11-01
Neutral citation
2019 CHRT 45
File number(s)
T2229/5117
Decision-maker(s)
Harrington, Colleen
Decision type
Decision
Decision status
Final
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
45
Date:
November 1, 2019
File No.:
T2229/5117
Between:
Joyce Beattie and Nikota Bangloy
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Indigenous and Northern Affairs Canada
Respondent
Decision
Member:
Colleen Harrington
Table of Contents
I. Overview 1
II. Issues 3
A. Preliminary Issues 3
B. Section 5 Discrimination 3
C. Section 14.1 Retaliation 3
III. Evidence 4
Education Funding 6
Treaty Annuities 9
IV. Analysis 12
A. Preliminary Issues 12
(i) The Treaty Annuities Issue is Not Moot 12
(a) Respondent’s Position 12
(b) Complainants’ Position 12
(c) The Law: Mootness 13
(d) Analysis 14
(ii) The Education Funding Issue Has Already Been Decided by the Federal Court 15
(a) Respondent’s Position 15
(b) Complainants’ Position 17
(c) The Law: Finality Doctrines 17
(d) Analysis 19
B. Section 5 discrimination 22
The Law: Establishing discrimination under section 5 of the Act 22
(i) Failing to provide Ms. Bangloy with information about how to receive Treaty 11 education funding for her children’s private school tuition is not discrimination under section 5 of the Act 24
(a) Complainants’ Position 24
(b) Respondent’s Position 24
(c) Analysis 24
(ii) Refusing to provide treaty annuities to the Complainants because they were not on a Band list maintained by the Respondent is not discrimination under section 5 of the Act 28
(a) Complainants’ Position 28
(b) Respondent’s Position 29
(c) Analysis 29
Conclusion section 5 discrimination 31
C. Section 14.1 retaliation 31
The Law: Retaliation 31
Retaliation relating to education funding under Treaty 11 33
(i) Failing to provide Ms. Bangloy with information about how to receive Treaty 11 education funding for her children’s private school tuition is not retaliation under section 14.1 of the Act 33
(a) Complainants’ Position 33
(b) Respondent’s Position 33
(c) Analysis 33
(ii) Refusing to reimburse Ms. Bangloy for the tuition costs she has incurred for her sons to attend private schools in Alberta is not retaliation under section 14.1 of the Act 35
(a) Complainants’ Position 35
(b) Respondent’s Position 35
(c) Analysis 35
Retaliation relating to treaty annuities 37
(i) Refusing to provide treaty annuities to the Complainants because they were not on a band list maintained by the Respondent is retaliation under section 14.1 of the Act 37
(a) Complainants’ Position 37
(b) Respondent’s Position 38
(c) Analysis 38
(ii) Refusing to pay the children’s annuities back to their respective births is not retaliation under section 14.1 of the Act 43
(iii) Refusing to enter the Complainants’ names on the Loucheux No.6 Band list is not retaliation under section 14.1 of the Act 44
Conclusion section 14.1 retaliation 45
V. ORDER 45
1. Order for consultation and reconciliation 46
2. Order to pay treaty annuities owing 47
3. Compensation for pain and suffering 47
4. Special compensation 50
5. Interest 53
I. Overview
[1] The Complainants in this matter are Joyce Beattie, her daughter Nikota Bangloy, and Ms. Bangloy’s 2 minor children (“the children”). All are “aboriginal peoples of Canada” as defined by section 35 of the Constitution Act, 1982.
[2] The Complainants say they are entitled to certain benefits provided pursuant to Treaty number 11, by virtue of their race or national or ethnic origin, which are grounds protected from discrimination under section 3 of the Canadian Human Rights Act (“the Act” or “CHRA”). They argue that the Respondent, Indigenous and Northern Affairs Canada, has discriminated against them contrary to section 5 of the Act by refusing to provide them with these treaty benefits. The Complainants also argue that the Respondent’s refusal of these benefits is retaliation for filing a previous human rights complaint, contrary to section 14.1 of the Act.
[3] Treaty 11 is an agreement that was entered into between the Government of Canada and “the Indians occupying the territory north of the 60th parallel and along the Mackenzie river and the Arctic ocean” [1] in 1921. The Treaty states that “the Slave, Dogrib, Loucheux, Hare and other Indians inhabiting the” tract of land defined in the Treaty “do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for His Majesty the King and His Successors forever, all their rights, titles, and privileges whatsoever to the lands included within the” Treaty tract. In exchange for this land, the Government made certain promises to the Indigenous signatories. The 2 provisions of Treaty 11 that are relevant to this complaint are as follows:
HIS MAJESTY, also agrees that during the coming year, and annually thereafter, He will cause to be paid to the said Indians in cash, at suitable places and dates, of which the said Indians shall be duly notified, to each Chief twenty-five dollars, to each Headman fifteen dollars, and to every other Indian of whatever age five dollars, to be paid only to heads of families for the members thereof. [emphasis added]
…
FURTHER, His Majesty agrees to pay the salaries of teachers to instruct the children of said Indians in such manner as His Majesty’s Government may deem advisable. [2]
[4] The Complainants argue that they are entitled to both the $5 per year treaty annuities and the education funding pursuant to Treaty 11, as they are descendants of “Indian inhabitants of the Northwest Territories who adhered to Treaty number 11 on July 21, 1921.” [3] They say that, since 2014, the Respondent has refused to provide them with these treaty benefits.
[5] The Respondent says that, during the course of a previous Canadian Human Rights Tribunal hearing, it paid the Complainants’ treaty annuities up to 2013. However, when the Complainants decided that they no longer wanted their names on the Band list of any Treaty 11 Band, which was a requirement of the Respondent’s treaty annuities payment policy, the Respondent notified them that it could no longer pay them annuities. Just prior to the inquiry into this complaint, the Respondent determined that the Complainants fall within an exception to this policy requirement, and so have agreed to pay their annuities back to 2014.
[6] The education funding complaint relates to Ms. Bangloy’s request that the Respondent reimburse her for tuition she has paid for the children to attend private schools in Alberta. The Respondent says that the Treaty’s education benefits do not apply outside of the tract of land defined in the Treaty, which is mainly in the Northwest Territories. It says that this issue was already determined by the Federal Court of Canada and so should not be considered by the Tribunal.
[7] I agree that the Complainants experienced retaliatory discrimination through the Respondent’s delay in evaluating their entitlement to treaty annuities on an individual basis until just prior to the scheduled hearing dates in this matter. I do not agree that they were the victims of a discriminatory practice relating to the denial of educational funding for Ms. Bangloy’s children, and therefore dismiss that aspect of the complaint.
II. Issues
[8] While the substance of this complaint relates to discrimination and retaliation under sections 5 and 14.1 of the Act, the Respondent has argued that the complaint, or parts of it, should be dismissed on the basis of preliminary issues that it has raised. I agree that I must deal with these preliminary issues prior to considering the alleged discriminatory practices under the Act. The following issues are considered in this decision:
A. Preliminary Issues
i) Is the treaty annuities issue moot because the Respondent agreed prior to the hearing to pay the Complainants’ annuities, without requiring them to be on a Band list?
ii) Has the education funding issue already been decided by the Federal Court?
B. Section 5 Discrimination
i) Did the Respondent discriminate against the Complainants contrary to section 5 of the Act by failing to provide Ms. Bangloy with information about how to receive Treaty 11 education funding for her children’s private school tuition?
ii) Did the Respondent discriminate against the Complainants contrary to section 5 of the Act by refusing to pay their treaty annuities because they were not on a Band list?
C. Section 14.1 Retaliation
i) With respect to the education funding aspect of the complaint, did the Respondent retaliate against the Complainants contrary to section 14.1 of the Act:
a) by failing to provide Ms. Bangloy with information about how to receive education funding for her children’s private school tuition? or
b) by failing to reimburse her for the tuition she has paid for her sons to attend private schools in Alberta?
ii) With respect to the treaty annuities aspect of the complaint, did the Respondent retaliate against the Complainants contrary to section 14.1 of the Act:
a) by refusing to pay their treaty annuities because they were not on a Band list? or
b) by refusing to pay the children’s annuities back to their births? or
c) by refusing to add the Complainants’ names to the Loucheux No.6 Band list?
III. Evidence
[9] At the hearing into this complaint, documentary evidence in the form of a Common Books of Documents was filed on the consent of both parties. Oral testimony was provided by Ms. Beattie and Ms. Bangloy for the Complainants, and Adrian Walraven for the Respondent, on the issue of education funding. The parties also filed an Agreed Statement of Facts.
[10] Joyce Beattie was born in 1949 in the community now known as Tsiigetchic in the Northwest Territories (“NWT”). Her biological mother was a member of the Fort Good Hope Band. Shortly after her birth she was custom adopted by parents who were members of what was then known as the Loucheux No.6 Indian Band. Both the Fort Good Hope Band and the Loucheux No.6 Band were signatories to Treaty 11.
[11] Ms. Beattie filed a previous human rights complaint against the Respondent in 2011 (the “adoption complaint”). Tribunal Member Lustig, who inquired into Ms. Beattie’s adoption complaint, concluded that she had been discriminated against by the Respondent on the basis of her family status, for the time that the Respondent refused to recognize her custom adoption as a basis to change her registration under the Indian Act, and for refusing to remove her name from the band list of her biological mother’s Fort Good Hope Band.
[12] During the course of the previous complaint proceeding, Ms. Beattie’s registration under the Indian Act was amended to reflect her custom adoption. This resulted in her grandchildren becoming eligible for registration for the first time due to the passage of the Gender Equity in Indian Registration Act, S.C. 2010, c.18 (“GEIRA”), which came into force in January of 2011. [4] In September of 2013, around the time of the Tribunal’s inquiry into the adoption complaint, the Respondent paid Ms. Beattie, Ms. Bangloy, and Ms. Bangloy’s children their treaty annuities up to and including 2013.
[13] The Tribunal released its decision in the adoption complaint in January of 2014. Following this, Ms. Beattie and Ms. Bangloy requested treaty annuities for themselves and the children for 2014. However, because they had asked to have their names removed from the Fort Good Hope Band List, and did not want to be added to the Band list of any other Treaty 11 Band, the Respondent denied them ongoing treaty annuities. The Respondent says this was based on its Treaty Annuity Payment Policy, which required those requesting treaty annuities to be registered members of a Band whose membership list is maintained by the Respondent.
[14] Ms. Bangloy had also requested annuities for the children from the date of their respective births until 2010. The Respondent denied this request, saying the children had only become eligible to receive annuities upon their registration under the Indian Act, which was only possible once the Indian Act was revised as a result of GEIRA in 2011.
[15] In addition to her request for treaty annuities, Ms. Bangloy asked where she should send the receipts for tuition that she had paid for her children to attend private schools in Alberta. The Respondent’s NWT Regional Office, with whom Ms. Bangloy was communicating, advised that it did not provide for the reimbursement of education fees.
[16] On July 11, 2014, Bruce Beattie, who is the Complainants’ representative in this matter, sent an email to the Respondent, saying that its response to the Complainants’ requests for treaty annuities and education funding “raises a serious issue of retaliatory treatment by the Respondent against Joyce Beattie and each of her descendants in respect to the statutory band membership issue addressed during the Tribunal inquiry and forming part of the final resolution of the discrimination complaints” in the Tribunal’s January 10, 2014 decision. [5] He suggested that the response indicated “a post-decision attempt to administratively abrogate all of the Complainant’s and each of her descendant’s existing Treaty 11 rights and entitlements. It is the Complainant’s view that such treatment by the Respondent constitutes deliberate retaliation which is prohibited by s.14.1 of the” CHRA. He said a formal complaint would be submitted shortly to the Canadian Human Rights Commission (“Commission”) about this alleged retaliation.
[17] In August of 2014, Ms. Bangloy communicated again with the Respondent’s NWT office, asking for a contact person in Ottawa to whom she could direct her questions about Treaty 11 education funding. Janice Ploughman from the NWT office replied to say she had sent an email asking for contact information for someone “on the Education File in Ottawa to assist you with your inquiry regarding the reimbursement of Education receipts. I will send contact information as soon as I get it.” [6] Ms. Ploughman also indicated that the Complainants’ names had been moved to “the General Band List for the NWT in July of 2013”, although the Tribunal did not hear any further evidence about this list at the hearing.
[18] From this point, I will separate the evidence relating to education funding from the evidence relating to treaty annuities, for the sake of clarity.
Education Funding
[19] On September 4, 2014, Ms. Ploughman emailed Ms. Bangloy to ask whether the education receipts were for “K-12 or post-secondary”. [7] She said she was searching for further information in order to direct Ms. Bangloy’s education inquiry. Ms. Bangloy advised that the receipts were for Montessori preschool for both children, as well as for all years of their elementary education in private schools. Ms. Ploughman wrote back to Ms. Bangloy to provide her with the name of a contact person in another regional office, although this person was unable to assist Ms. Bangloy.
[20] On December 29, 2014, Ms. Bangloy wrote to Ms. Ploughman asking her to, “please provide me with a contact person in Ottawa that I should be directing my questions to”. [8]
[21] Ms. Bangloy testified that she did not receive any response from the Respondent to her December 2014 request to be provided with a contact person in Ottawa, nor did she receive any information about how or where to submit her tuition reimbursement request. She said that, as a result, she continued to pay to send her children to a private school in Alberta, which she has determined is the most suitable education for them.
[22] Adrian Walraven testified on behalf of the Respondent. He has been the Senior Director of Policy and Planning in the education and social development programs branch of Indigenous Services Canada [9] in Gatineau, Quebec since January of 2015. Mr. Walraven confirmed that no records could be located within his department of any communications relating to Ms. Bangloy’s tuition reimbursement request. He stated that he did not know why she had not received a reply to her inquiry and, in response to questions posed by Ms. Bangloy in cross-examination, he apologized to her for this.
[23] Mr. Walraven testified that the Respondent’s view is that Ms. Bangloy is requesting the same educational benefits for her children that had already been considered and rejected by the Federal Court with respect to her own education.
[24] The evidence provided in the Common Book of Documents shows that Joyce Beattie asked the Respondent to pay the educational costs for her children in the 1980s and 1990s. This included her daughter Nikota’s private schooling. The documents show that the Respondent did cover some of their educational costs because the family was residing on various reserves in British Columbia and so qualified for education funding administered by the Respondent.
[25] According to Mr. Walraven, although education is generally a provincial, and not a federal, responsibility, the Respondent, pursuant to the Indian Act, has taken responsibility for the education of First Nations students ordinarily residing on reserves or Crown land. He testified that, if a child ordinarily resident on a reserve attends a provincial public or private school, rather than a school on their reserve, the Respondent provides funding through the student’s Band to help pay the school fees.
[26] The documentary evidence shows that the amount the Respondent will pay towards such school fees is fixed, and is set out in a “Master Tuition Agreement” between the Respondent and the Ministry of Education for a particular province. The Master Tuition Agreement between Canada and British Columbia dated March 31, 1988 says that the Respondent will pay “a tuition fee in an amount determined … for each Indian student attending a public school.” [10] The amount of tuition provided is based on the average within the school district in which a particular school is located. [11]
[27] Mr. Walraven testified that, although the Master Tuition Agreement refers to attendance at a provincial public school, the Respondent will also pay the same fixed amount for a student to attend a private school. Any difference between the tuition charged by the private school and the amount set out in the Tuition Agreement must be paid by the child’s family or community. This is what the Respondent agreed to pay towards Nikota’s private schooling, so long as the Beatties were residing on a reserve. The documents show that, then as now, the Beatties were of the view that “residence on or off reserve has no bearing on rights or entitlements under Treaty 11” and that Treaty 11 education benefits are the entitlements of “individual Indians not bands.” [12]
[28] The Beatties had requested that the Respondent pay the full amount of Nikota’s private school tuition, rather than only the amount set out in the Master Tuition Agreement, which left them to pay the difference. In response to this request the then Minister of Indian Affairs and Northern Development wrote to Joyce Beattie on December 12, 1990, reiterating that the Indian Act provides the Respondent department with the legislative authority to provide schooling to “registered Indian children ordinarily resident on reserve or Crown land”. He said that such schooling “is provided for all registered Indian children living on reserve, whether they are treaty Indians or not.” [13]
[29] The documentary evidence shows that, after the Beatties advised the Respondent that they were no longer residing on a reserve, the Respondent wrote to say that it would not “recognize tuition payments for your children after that date.” [14]
[30] The Beatties commenced an action in the Federal Court of Canada, claiming the Respondent was responsible for paying all of the education costs for their children pursuant to the education provision in Treaty 11. The issue decided by the Federal Court was whether the benefits under the education provision in Treaty 11 were confined to the Treaty area. In dismissing the Beatties’ applications, the Court decided that the education benefits do not extend beyond the boundaries of the Treaty area. [15] The Complainants did not appeal the Federal Court’s decision.
[31] Ms. Bangloy testified that, while she is familiar with the 1997 Federal Court decision, she is of the view that that case was different from the present complaint, which involves her children’s education as opposed to her own.
[32] Mr. Walraven testified that the Respondent continues to fund education for children living on reserve in the same manner as set out in the Minister’s 1990 letter.
[33] Ms. Bangloy and her family reside in Okotoks, Alberta, not on a reserve, nor within the area defined in Treaty 11.
Treaty Annuities
[34] On November 7, 2014, the Respondent advised the Complainants that their requests for Treaty 11 annuities were under review.
[35] During the course of the adoption complaint proceedings, the Respondent recognized the Complainants’ entitlement to be added to the Band list of Ms. Beattie’s adoptive parents. As a result, in December 2014 and January 2015, Bruce Beattie contacted the Respondent, asking that the Complainants be added to the Loucheux No.6 Band List. The Respondent replied that the name of this band had changed several times since Treaty 11 was signed in 1921 and is now called the Gwichya Gwich’in Band. It said it would not maintain a separate band list for the Loucheux No.6 Treaty 11 Band.
[36] Mr. Beattie indicated that he considered the Respondent’s position to be retaliatory and unconstitutional and that the Complainants would file a new human rights complaint about this issue. The Complainants filed the present human rights complaint on January 26, 2015. One of the allegations in the complaint is that the Respondent retaliated against the Complainants by refusing to reflect their proper membership in the band of Ms. Beattie’s adoptive parents.
[37] Although they had received no further reply from the Respondent following its November 7, 2014 email advising that their annuity requests were under review, in August of 2017, both Ms. Beattie and Ms. Bangloy submitted Treaty Annuity Payment Requests for themselves and the children, writing “Treaty 11” as the name of their Band. Following this, Ms. Ploughman sent an email to Sean Sullivan, who was to be the Respondent’s witness at the hearing to testify about the treaty annuities issue, saying: “We need to deal with this family. No response does not put us in a good light.” [16]
[38] The Complainants testified that they received no reply to their August 2017 request to be provided with treaty annuities.
[39] The inquiry into this complaint was scheduled to begin on December 3, 2018. In a letter dated November 29, 2018, the Respondent advised the Complainants and the Tribunal that it had reviewed its treaty annuities policy. As a result, it had determined that the Complainants’ situation was more akin to one of the exceptions set out in Chapter 4 of its Treaty Policy Manual, which do not require band membership in order to qualify for treaty annuities. As such, the Respondent advised that it would pay the Complainants’ Treaty 11 annuities without requiring them to be members of a Treaty 11 Band.
[40] In this November 29, 2018 letter, the Respondent stated that, while it did not admit that its conduct was discriminatory under section 5 of the Act, it was willing to consent to an award of $5,000 “to account for any inconvenience or hardship the Complainants may have experienced related to the treaty annuities issue.” The Respondent stated that, as it was of the view that the treaty annuities issue was now moot, it would not be calling its witness to testify about that issue at the hearing the following week.
[41] On December 18, 2018, at the request of the Tribunal, the Respondent provided a letter explaining that, as all four Complainants had already received treaty annuities up to and including 2013, they would receive annuities from 2014 onwards without the need to be members of a Treaty 11 Band. The Respondent noted that Joyce Beattie and Nikota Bangloy had previously received Treaty 11 annuities from birth as a result of the settlement of a previous Federal Court action. As part of that settlement, the Respondent provided them with a letter from the then Deputy Minister dated April 22, 1993, which states:
Joyce Wilma Beattie, Nikota Beattie, and T’Seluq Beattie’s Treaty Eleven entitlements are not linked to status but may be linked to other factors, one of which is ancestry. In the case of Joyce Wilma Beattie, Nikota Beattie and T’Seluq Beattie, the annuity entitlements pursuant to Treaty Eleven accrued at birth and thereafter have continued to exist, and are treaty entitlements that have been recognized and affirmed by s.35(1) of the Constitution Act, 1982. [17]
[42] In its December 18, 2018 letter, the Respondent also repeated its position that the children had only become eligible to receive treaty annuities upon their entitlement to registration and band membership as a result of GEIRA, which came into force in 2011.
[43] The Complainants responded to the December 18, 2018 letter on December 21, 2018, stating their view that the Respondent’s reference to the children’s entitlement to annuities from 2011, rather than from their respective births, was a threat of further retaliation against the children contrary to section 14.1 of the Act. The Complainants’ view is that registration under the Indian Act has no relation to one’s eligibility for Treaty 11 benefits such as treaty annuities.
[44] The Respondent did not call any witnesses to testify with respect to the Treaty Annuities issue.
IV. Analysis
A. Preliminary Issues
(i) The Treaty Annuities Issue is Not Moot
(a) Respondent’s Position
[45] The Respondent says the doctrine of mootness applies where the decision of a court will not have the effect of resolving a controversy that affects the rights of the parties. It argues that the Tribunal should not exercise its discretion to determine the treaty annuities issue because the Respondent agreed, in its November 29, 2018 letter, to pay the Complainants’ annuities without requiring actual Band membership. It has also consented to an award of $5,000 for any inconvenience or hardship the Complainants may have suffered. As there is no longer a live controversy between the parties, the Respondent claims that the treaty annuities complaint is moot.
(b) Complainants’ Position
[46] The Complainants disagree that the issue is moot. They point out that the Respondent similarly changed its position and then argued their complaint was moot in a previous human rights case.
(c) The Law: Mootness
[47] In the Supreme Court of Canada case of Borowski v. Canada, the Court said that if, subsequent to the initiation of the proceeding, “events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.” [18] Mootness is “an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question.” [19] Once a court or tribunal has determined “whether the required tangible and concrete dispute has disappeared and the issues have become academic”, it must then decide whether to exercise its discretion to hear the case. [20]
[48] In determining whether to exercise its discretion to consider a particular issue in such circumstances, a court or tribunal should consider the rationale underlying the policy and practice of applying the mootness doctrine. In Collins v. Abrams et al, [21] the British Columbia Supreme Court summarized the rationale at paragraph 6:
(1) A court’s competence to resolve legal disputes is rooted in the adversary system, and in the absence of an adversarial context the issues may not be well and fully argued;
(2) Judicial resources should be conserved for where they are needed; and
(3) Courts must remain within their proper law-making function. Pronouncing judgments in the absence of disputes affecting the rights of parties may be viewed as intruding on the sphere of the legislative branch.
[49] In Beattie v. AANDC the Respondent changed its positions during the course of the complaint proceedings. It agreed that Ms. Beattie could change her registration under the Indian Act and remove her name from the Fort Good Hope Band list, based on her custom adoption. The Respondent then argued that its revised positions rendered moot the issue of whether its initial refusal of the Complainant’s requests constituted discrimination under s.5 of the Act.
[50] Member Lustig disagreed. He stated:
[88] … If a person voluntarily ceases the conduct that is alleged by a Complainant to be discriminatory prior to a hearing being held into the Complaint, the Complaint can still be found to be substantiated by the Tribunal for the period of time prior to the cessation that the conduct took place, notwithstanding that a remedy may not be imposed. Hence a matter does not become moot simply because the person allegedly carrying on the impugned conduct decides to stop the conduct or because no remedial order might be imposed if the Tribunal makes a finding that the conduct was discriminatory while it was carried on and finds that the Complaint is substantiated.
[51] Member Lustig determined that liability was still a live issue for the period of time before the Respondent changed its positions, and that the issue of both personal and public interest remedies remained to be considered. He also concluded that, as the hearing had already taken place and “the issues fully argued in an adversarial context involving important quasi-constitutional rights, there is no valid argument here in support of saving scarce judicial resources, etc., as per the tests set out for mootness by the case law.” [22]
(d) Analysis
[52] I agree with the Tribunal’s reasoning at paragraph 88 of Beattie v. AANDC, as set out above, and apply it to the present case. Liability is still a live issue in this matter. While the Respondent has again voluntarily ceased the conduct that is alleged to be discriminatory prior to the hearing into this matter, I agree that the Tribunal can consider the time period prior to the cessation of the conduct.
[53] Remedy is also a live issue, despite the Respondent’s argument that this case raises no issues of public importance because it does not refer to any individuals beyond the Complainants. In terms of the remedies sought by the Complainants, they indicate in their closing submissions that, while they do not object to the payment of $5,000 for the “inconvenience or hardship” they experienced, as offered by the Respondent just prior to the hearing, they would request that that amount be paid to each of the four Complainants under s.53(2)(e) of the Act, as compensation for pain and suffering. They are also seeking $20,000 for each complainant as compensation for wilful or reckless discrimination under s.53(3) of the Act.
[54] While I appreciate that, by offering to pay the Complainants $5,000 for the inconvenience and hardship caused by its delay in determining the treaty annuities issue, the Respondent hoped to avoid the need for a hearing into this issue, the Complainants were not required to accept this money. It was offered only four days before the hearing was scheduled to begin. Remedies are to be considered by the Tribunal on a case by case basis, and are dependent on its factual findings and the applicable law. The offer of money prior to the hearing does not make the matter moot.
[55] As in Beattie v. AANDC, the hearing has already taken place. As such, the risk of wasting judicial resources is not in issue.
[56] Finally, it was only after the hearing that the Respondent provided the Complainants with a summary of how much each Complainant would be paid in retroactive annuities. In doing so, it highlighted the fact that the Complainants were requesting annuities for Ms. Bangloy’s children back to their respective births, rather than to 2011, an issue that clearly needs to be addressed.
[57] I am of the view that the live controversy between the parties did not disappear as a result of the Respondent’s pre-hearing letter. As such, the treaty annuities issue is not moot and will be dealt with in this decision.
(ii) The Education Funding Issue Has Already Been Decided by the Federal Court
(a) Respondent’s Position
[58] The Respondent argues that the issue of whether it is responsible, pursuant to Treaty 11, for paying the tuition costs for Ms. Bangloy’s children to attend private schools outside of the Treaty area has already been decided by the Federal Court in a case involving the same Complainants: Beattie v. Canada (Minister of Indian Affairs and Northern Development). [23]
[59] In Beattie v. MIAND, Ms. Beattie argued before the Court that her daughter Nikota’s private school tuition, which was incurred outside the Treaty area, should be covered under the “salaries of the teachers” provision of Treaty 11.
[60] The Respondent says the Federal Court considered the context in which Treaty 11 was negotiated, including historical documentary evidence, and concluded that any education benefits conferred by Treaty 11 do not extend beyond the Treaty area. Justice Tremblay-Lamer stated that, by virtue of subsection 35(1) of the Constitution Act, 1982, “treaty children” are “constitutionally guaranteed to have access to free education”, although the free education, “is confined to the area defined in the treaty”. [24]
[61] The Respondent points out that the Complainants are now seeking the same relief from the Tribunal that the Federal Court previously denied. They are asking yet again for the Respondent to pay the tuition for private schools not located in the Treaty area, based upon the “salaries of the teachers” provision of the Treaty.
[62] The Respondent argues that the Federal Court’s decision, which was not appealed, is final, and so permitting the education complaint to proceed in a different forum would be contrary to the doctrines of issue estoppel, abuse of process, and collateral attack. In particular, the Respondent says allowing this complaint to proceed would endorse an inappropriate method of challenging the validity, and undermine the finality, of the Federal Court decision, and would risk creating inconsistent interpretations of the scope of the education provision of Treaty 11. As such, it argues, I must dismiss this complaint.
(b) Complainants’ Position
[63] The Complainants do not respond directly to the Respondent’s argument that they are attempting to relitigate the same issue before the Tribunal as was already decided by the Federal Court. Rather, they make various arguments about why Treaty 11 supports their request for education funding.
(c) The Law: Finality Doctrines
[64] This Tribunal in Todd v. City of Ottawa recently stated that, “The finality doctrines of collateral attack, issue estoppel and abuse of process by relitigation stem from one of the most basic principles of the common law: that an issue, once determined by a competent court or tribunal, cannot be redetermined except by an appeal or judicial review of the initial decision.” [25]
[65] In British Columbia (Workers’ Compensation Board) v. Figliola, the Supreme Court of Canada noted that, “At their heart, the [finality] doctrines exist to prevent unfairness by preventing ‘abuse of the decision-making process’ …”. [26] The Court set out the principles underlying these doctrines:
It is in the interests of the public and the parties that the finality of a decision can be relied on;
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings;
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision;
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources. [27]
[66] In order to dismiss a complaint on the basis of issue estoppel, a decision maker must be satisfied that 3 preconditions are met: 1) the same question has already been decided; 2) the earlier decision was final; and 3) the parties, or their privies, were the same in both proceedings. [28]
[67] The Supreme Court has held that, even where the preconditions for issue estoppel are not strictly met, the doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as, “judicial economy, consistency, finality and the integrity of the administration of justice”. [29]
[68] The Supreme Court has also said that, “the application of the finality doctrines is a highly discretionary exercise, driven by the needs of both substantive and procedural justice.” [30] In Penner v. Niagara (Regional Police Services Board), the Supreme Court stated that, “a judicial doctrine developed to serve the ends of justice should not be applied mechanistically to work an injustice”. [31]
[69] In order to ensure fairness, a decision-maker is to follow a two-step analysis when deciding whether issue estoppel should be applied in a particular case. The first step requires a determination as to whether the 3 pre-conditions for issue estoppel are met. If so, the decision-maker must then determine as a matter of discretion whether the doctrine should be applied in the specific circumstances of the case. [32]
[70] In Penner, the Supreme Court observed that unfairness may arise in 2 different ways when applying the doctrine of issue estoppel. First, the prior process itself may have been unfair. Second, even if the prior proceeding was conducted fairly, it may still be unfair to rely on the result of that process to preclude the subsequent claim. [33] This may arise “where there is a significant difference between the purposes, processes or stakes involved in the two proceedings”, although the decision-maker must assess such differences while also recognizing the importance of finality in the law. [34]
[71] The Tribunal in Todd noted that the criteria to be considered when determining the fairness of applying issue estoppel in a particular case are not fixed, but may include:
The purpose of the legislative framework enacted for each proceeding;
The availability of an appeal;
The procedural safeguards available to the parties;
The expertise of the decision makers;
The circumstances giving rise to the prior proceeding; and
The potential injustice of applying an estoppel. [35]
[72] In Toronto (City), Justice Arbour stated that the discretionary aspect that applies to prevent issue estoppel from creating an unfair or unjust situation, should equally apply to the doctrine of abuse of process. [36]
(d) Analysis
[73] I will first consider whether I am barred from considering this complaint on the basis of issue estoppel. In order to do so, I must determine whether the previous decision meets the 3 preconditions set out above.
1) Was the same question already decided by the Federal Court?
[74] In Beattie v. MIAND, Joyce Beattie argued that Treaty 11’s education clause had no necessary connection to the land that was ceded in the Treaty, and so the obligation to pay the salaries of tea