First Nations Child and Family Caring Society of Canada and Assembly of First Nations v. Attorney General of Canada (representing the Minister of Indian Affairs and Northern Development)

First Nations Child and Family Caring Society of Canada and Assembly of First Nations v. Attorney General of Canada (representing the Minister of Indian Affairs and Northern Development)
Collection
Canadian Human Rights Tribunal
Date
2011-03-14
Neutral citation
2011 CHRT 4
File number(s)
T1340/7008
Decision type
Decision
Decision Content
I. DECISION SUMMARY
Indian and Northern Affairs Canada (INAC, the Crown, the respondent) provides funding to First Nations service providers who provide child welfare services (child welfare) to First Nations children residing on reserves. The First Nations Child and Family Caring Society of Canada (the Society or complainant) and the Assembly of First Nations (AFN or complainant) assert that INAC does more than fund. They say INAC provides child welfare directly or indirectly to these children. They say the funding is inadequate when compared to the funding that provinces provide to other children residing off reserve. They say this funding differentiates adversely against these First Nations children contrary to section 5(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA or Act).
The Crown brings a motion for a ruling that questions arising out of the complaint are not within the jurisdiction of the Canadian Human Rights Tribunal (the Tribunal). It argues principally that funding / transfer payments do not constitute the provision of “services” within the meaning of the CHRA, and that INAC’s funding cannot as a matter of law be compared to provincial funding. It says that these two questions may be dealt with now and without a full hearing wherein witnesses would testify and more evidence would be tendered.
The CHRA does not require that the Tribunal hold a hearing with witnesses in every case. The onus is on the Crown in this motion to demonstrate that this is the case here. The Tribunal must be satisfied that the parties have had a full and ample opportunity to be heard and to present their evidence. The Tribunal will only entertain a motion to dismiss a complaint wherein more evidence could not conceivably be of any assistance: where the Crown has shown that the facts are clear, complete and uncontroverted, or where the Crown has shown that the issues involve pure questions of law. If the Crown meets this onus, the Tribunal may decide the substantive questions in a motion forum.
There are two principle questions that the Crown wishes me to answer in this motion:
i. Is INAC’s funding program a “service” within the meaning of s. 5(b) of the Act?
ii. Can two different service providers be compared to each other to find adverse differentiation, or for that matter, is a comparison even required?
On the services question, the Crown has not met its onus of demonstrating that the facts are clear, complete and uncontroverted. I cannot decide the question. On the comparator question, the Crown has met its onus. It has satisfied me that the “comparator” question is a pure question of law. I can decide this question on the basis of the materials filed in this motion. I find that the CHRA does require a comparison to be made, but not the one proposed by the complainants. Two different service providers cannot be compared to each other. Accordingly, even if I were to find that INAC is a service provider as asserted by the complainants, the CHRA does not allow INAC as a service provider to be compared to the provinces as service providers. The complaint could not succeed, even if a further hearing were held on the services question. Accordingly the complaint must be dismissed. A summary of my reasons follow.
A. Services
The Crown’s motion has resulted in the following evidence being placed before me. In this case, the Crown, and the complainants, and two interveners, Chiefs of Ontario (The Ont. Chiefs) and Amnesty International (Amnesty), have filed the documents and the submissions as outlined in Appendix “A”. I have vetted the materials filed relevant to this motion, more than 10,000 pages. Ironically, this volume of materials appears to be grossly insufficient to address the scope and breadth of this complaint.
INAC’s funding is complex. INAC’s funding supports 108 First Nations child welfare service providers to deliver child welfare to approximately 160,000 children and youth in approximately 447 of 663 First Nations. There may be at least 50 to 60 funding agreements and memoranda relating to Directive 20-1 alone that are involved (not yet filed). There are provincial and territorial differences in funding schemes and differences in service models: e.g. self-managed reserves versus other First Nations reserves. What are the terms and conditions of these various funding agreements? What are the terms and conditions of each of the various memoranda of understanding? Does INAC control the type of child welfare delivered through any or each of the funding terms and conditions? Do these terms and conditions define the content of child welfare? As well, do INAC’s auditing measures go beyond simply ensuring accountability of funds? Do INAC’s auditing measures in fact constitute an action by INAC demonstrating that INAC is delivering child welfare? Again, even if the transfer payments are on the whole only transfer payments, is there a discrete subset of the program administration wherein INAC can be said to control the content of child welfare? The Crown has not met its onus. The material facts are not clear, complete and uncontroverted. This is due in part to the scope and breadth of this complaint that exceeds any complaint filed with the Tribunal to date. In this case, the Canadian Human Rights Commission (the Commission) did not conduct an investigation of the relevant facts before referring the complaint to the Tribunal for a hearing. Rather, it wrote that the “main arguments being adduced are legal and not factual in nature and are not settled in law”.
Irrespective of the Commission’s referral decision, it is incumbent on the Tribunal to help the parties to diligently narrow the broad and complex factual issues, while identifying and determining any clear legal issues that arise in this complaint. As one means of achieving this objective, I offered the parties a Tribunal Member to work with them in process mediation to narrow the factual and legal issues. The parties did not reach agreement on material facts. The parties chose not to file with the Tribunal to date a consolidated Agreed Statement of Facts. Given the expanse of the complaint, and a lack of reasonable definition to its parameters, I cannot decide the services issue on the evidence filed.
B. Comparator
However, on the evidence and submissions filed, I can decide the comparator issue. I can determine whether the allegation of adverse differentiation is legally deficient. Section 5(b) of the CHRA states that a service provider may not adversely differentiate against an individual in providing services customarily available to the public. Whether these words in the CHRA require a comparison, and if so, the manner of comparison, are pure questions of law. The Crown has met its onus of demonstrating that this is a pure question of law that may be decided now. The parties have had full and ample opportunity to be heard on this question of law. There is no further evidence that the complainants can file that will further their position.
I decide as follows: In order to find that adverse differentiation exists, one has to compare the experience of the alleged victims with that of someone else receiving those same services from the same provider. How else can one experience adverse differentiation? These words of the CHRA must be accorded their clear meaning as intended by Parliament. These words are unique to the CHRA. These words have been decided by the Federal Court of Appeal as requiring a comparative analysis in the case of Singh v. Canada (Department of External Affairs), [1989] 1 F.C. 430 (F.C.A.) [Singh]. Further, the complaint itself seeks a comparison. The heart of the complaint involves comparing INAC’s funding to provincial funding.
Regarding the issue of choice of comparator, the parties agree that INAC does not fund or regulate child welfare for off-reserve children. The provision of child welfare to off reserve children is entirely a provincial matter falling within section 92 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. Can federal government funding be compared to provincial government funding to find adverse differentiation as set out in section 5(b) of the Act? The answer is no.
The Act does not allow a comparison to be made between two different service providers with two different service recipients. Federal funding goes to on-reserve First Nations children for child welfare. Provincial funding goes to all children who live off-reserve. These constitute separate and distinct service providers with separate service recipients. The two cannot be compared.
Let us look at how the Act works. As an example, the Act allows an Aboriginal person who receives lesser service from a government to file a complaint if a non-Aboriginal person receives better service from the same government. However, the Act does not allow an Aboriginal person, or any other person, to claim differential treatment if another person receives better service from a different government.
Were it otherwise, the far-reaching impact of the proposed reasoning would also extend to employment. As another example, the Act allows an Aboriginal employee who receives different treatment from an employer to file a complaint if a non-Aboriginal employee receives better treatment from the same employer. However, the Act does not allow an Aboriginal employee, or any other employee, to claim differential treatment if another employee receives better treatment from a different employer.
In addition, such reasoning would extend to allow a member of one First Nation to argue that her First Nation adversely differentiated against her by comparing the services she received with those offered by another First Nation to another First Nation member.
There would be no limit to the comparisons that could be made. Further, in this case, the comparison sought to be made is between constitutionally independent jurisdictions: the federal government and the provincial / territorial governments.
On this issue, the parties have had a full and ample opportunity to file affidavits, cross-examine on affidavits, appear before the Tribunal with their lawyers, and submit arguments. Further, the parties were granted an opportunity to file submissions until August 23, 2010 and December 23, 2010 (see Appendix “A”) respectively, with respect to three new decisions. These were New Brunswick Human Rights Commission v. Province of New Brunswick (Department of Social Development), 2010 NBCA 40 [NBHRC v. PNB] released on June 3, 2010, and two decisions of the Supreme Court of Canada being NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45 [NIL/TU,O], and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, 2010 SCC 46 [Native Child and Family Services of Toronto] rendered together on November 4, 2010. They were also granted the opportunity to file submissions with respect to the United Nations Declaration on the Rights of Indigenous Peoples GA Res. 61/295 (Annex), UN GAOR, 61st Sess., Supp. No. 49, Vol. III, UN Doc. A/61/49 (2008) 15 (UNDRIP). No further evidence in a further hearing with witnesses can make this legal issue any clearer. Indeed, a further hearing may result in the devotion of time and resources to a protracted and lengthy fact finding exercise that is irrelevant to the legal flaw identified. Any further hearing would be moot. The complaint cannot succeed on this legal point.
Cultural Considerations – Canada’s First Nations People – Oral Tradition
The hearing of this motion opened with an Algonquin prayer recited by Elder Bertha Commanda. In deciding this motion, I am acutely aware of the need to be cognizant and respectful of the cultural concerns of Canada’s First Nations people. The AFN, the Society and the Commission make vigorous submissions to move towards both a hearing and a determination that the CHRA allows a finding of adverse differential treatment by comparing the actions of one race based service provider or funder, in this case, INAC, to that of the provinces. I acknowledge the importance of the oral tradition to the First Nations people. However, had this complaint proceeded to a hearing with witnesses, which would be fruitless, the hearing would have been complex and lengthy, potentially stretching into years of protracted litigation. Such a hearing would have been mired with the requisite burden of emotional and legal costs for all parties and the witnesses. In fact, the Tribunal has been criticized by the Federal Court of Appeal for mismanaging a pay equity hearing that spanned more than ten years before the Tribunal, and is still in litigation (Public Service Alliance of Canada v Canada Post Corporation, 2010 FCA 56 at para. 145 [Canada Post] (leave to appeal to SCC granted Docket No. 33668, 33669, 33670). Proceeding to a viva voce hearing on a complaint that cannot succeed on a legal basis does not serve the parties or the justice system. This is not access to justice. This is contrary to access to justice.
It is important to understand that the name of the CHRA is misleading. Even though its name imports a notion that the CHRA and the Tribunal may cure a range of human rights violations, the Tribunal’s mandate is restricted to remedying discrimination on the legislated grounds in legislated areas such as employment, services, and residential accommodation, to name a few. Thus, Canada’s First Nations people and their fellow Canadians are restricted from obtaining broader human rights remedies that do not involve a discriminatory practice within the meaning of the Act. Unless the subject matter of the complaint falls within a section of the anti-discrimination statute, it cannot succeed.
Finally, I am mindful of the constitutional quagmire that Canada’s First Nations people find themselves in. However, the legal tools for contesting allegedly inequitable funding do not lie in s. 5(b) of the CHRA as it is currently framed. The Tribunal is not a court seized with a constitutional challenge. It does not have the ability to redefine the meaning of adverse differentiation to suit the circumstances. The Tribunal must reside with integrity within the four corners of the statute that creates it. The claims may well be cognizable through the initialization of other legal processes, or in political action and / or ongoing federal and provincial consultations, or may ultimately even require statutory amendments. The laudable arguments of the complainant group may be well received by those appropriately charged with hearing them.
II. WHAT IS THIS COMPLAINT ABOUT? The Society and the AFN assert that thousands of First Nations children living on Canadian reserves do not receive adequate funding of child welfare. Child welfare for children residing off reserve is funded by provinces or territories. The complainants seek that INAC be required by law to fund child welfare to similar levels as provinces and territories. They allege that a First Nations child residing on a reserve receives less child welfare and protection services than another Canadian child, possibly living across the highway, not on reserve. They allege that the provinces fund child welfare to a significantly greater extent than INAC does and that INAC’s underfunding results in a systemic discriminatory impact upon the lives of Aboriginal children residing on reserves. They allege that this underfunding results in culturally inappropriate delivery of such services contrary to the purposes of the funding program. They seek that the Tribunal order INAC to increase funding by 109 million dollars per year to address existing funding shortfalls.
Specifically, the complaint alleges that a funding formula, Directive 20-1, Chapter 5 (Directive 20-1) contravenes s. 5 of the Act in that registered First Nations children and families resident on reserve are provided with inequitable levels of child welfare because of their race and national, ethnic origin as compared to non-Aboriginal and other children residing off reserve. The particulars / pleadings filed by the complainant group broaden the discrimination allegation to include the INAC First Nations Child and Family Services Program (FNCFS Program), that includes both Directive 20-1 and the Enhanced Prevention-Focused Approach funding (EPFA), and the funding INAC provides in Ontario pursuant to the Memorandum of Agreement Respecting Welfare Programs for Indians known as the 1965 Welfare Agreement (1965 Agt.).
III. WHAT IS THIS MOTION ABOUT?
A. Crown Says Tribunal has no Jurisdiction to Hear the Complaint
The respondent brings a motion for an order to dismiss this complaint for lack of jurisdiction alleging that the complaint does not come within the provisions of section 5(b) of the CHRA. The other parties say that the motion is unfounded and premature and that the matter should proceed immediately to a full hearing on the merits.
B. What are the Issues in this Motion?
i. Does the Act require the Tribunal to hold a viva voce hearing inquiry in every case?
ii. If not, can the Tribunal decide the following issues in this motion:
a. Is INAC providing a service for the purposes of s. 5(b) of the Act? Is funding justiciable?
b. Does adverse differentiation within the meaning of s. 5(b) of the Act require a comparator group? Alternatively, does it allow a comparison between two service providers?
IV. CAN THE TRIBUNAL DECIDE THE ISSUES IN THIS MOTION BASED ON THE MATERIALS FILED WITHOUT A VIVA VOCE HEARING?
The essence of this motion involves whether or not the complainants should be able to proceed to a viva voce hearing or whether this Tribunal may decide the complaint now, based on the materials before it without a viva voce hearing? The parties have widely diverging views on the Tribunal’s authority to decide the issues raised in the motion at this stage.
A. Summary of the Positions of the Parties
The Crown
The Crown’s position appears somewhat multi-faceted. On one hand, the Crown in some instances characterizes its motion as being “jurisdictional” in nature, and submits that the Tribunal may determine the limits of its own jurisdiction at any time during the course of the inquiry. Whereas it has been judicially recognized that the Tribunal has the authority to dismiss a complaint without a viva voce hearing for abuse of process, the Crown asserts that bringing a complaint outside the jurisdiction of the Tribunal is an abuse of process and thus susceptible to summary dismissal. However, at other points in its representations, the Crown characterizes its motion as concerning matters going directly to the “merits” of the complaint. In this last regard the Crown argues that the burden is on the complainants to demonstrate, on a balance of probabilities, that they have shown a prima facie case of discrimination, and that this burden remains with the complainants throughout the inquiry. Moreover, the Crown also asserts that the matters raised in its motion deal with questions of law, which the Tribunal may decide in the course of hearing and determining any matter under inquiry. The Crown rejects the use of legal tests developed from rules of civil procedure, in particular, the “plain and obvious test”, which the civil Courts apply when hearing motions to strike a claim that allegedly discloses no reasonable cause of action.
The Commission
The Commission’s position is also multifaceted. First, the Commission alleges that the Tribunal may only dismiss a complaint after a hearing on the merits, unless it can be demonstrated that to pursue the inquiry would be an abuse of process. Even in the context of abuse of process, the power of summary dismissal must only be exercised with a great deal of caution, and only in the clearest of cases. The threshold to prove abuse of process is extremely high—the proceedings must be unfair to the point that they are contrary to the interests of justice. Second, the Commission asserts that the issue before the Tribunal in regards to the motion is whether it is “plain and obvious” that the complainants and Commission’s pleadings disclose no reasonable cause of action—or in CHRA terms—whether the respondent has demonstrated that the complaint is devoid of any merit. To strike the complaint, the Tribunal must find that, assuming all the facts alleged to be true and complete by means of affidavits, there is no chance that the complaint will succeed. Moreover, a claim should not be struck if it involves a serious question of law or questions of general importance, or if additional facts are required before the complainants’ rights can be decided on the merits.
The Society
In the Society’s view, the Crown must establish that it is “plain and obvious” that the complaint should be dismissed without a viva voce hearing and in the absence of a complete evidentiary record, and contrary to a direction of the Federal Court pertaining to judicial review of the Commission’s referral decision. The Society notes that the Tribunal has been loath to grant motions to dismiss, given the language of the CHRA, and the significance and remedial objectives of human rights legislation. Two particular legislative features militating against summary dismissal are: (i) the screening provisions enabling the Commission to dispose of a complaint without a Tribunal inquiry; and, (ii) the Tribunal’s duty, set out in s. 50(1) of the Act, to give all parties a full and ample opportunity to present evidence and make arguments on the matters raised in the complaint. While Tribunal jurisprudence has recognized an authority to dismiss a complaint by motion in circumstances where the issues in the complaint have been heard in another forum, or where there is a clear breach of natural justice, the Society argues that such circumstances are not present in the case at hand. However, the Society also asserts that motions for preliminary dismissal should not be granted where the disposition of the case on the merits calls for an assessment and finding of fact, or where the claim raises a difficult and important point of law. Finally, in the Society’s view, the current case is not a case that could ever be dismissed on a preliminary basis. It involves a significant personal interest for thousands of children. It raises difficult and important issues of law previously unaddressed. It has wide ranging precedential impact, and is fact driven where the facts are myriad and complex, and where the facts will inform the Tribunal’s jurisdictional analysis.
The Ont. Chiefs
The Ont. Chiefs submit that the Crown’s motion is premature, and inappropriate given the Federal Court’s refusal to judicially review the Commission’s referral of the case for inquiry. The Ont. Chiefs assert that unless it is clear and plain that the complaint has absolutely no merit, the Crown’s motion must be dismissed. The Crown must establish that it is plain and obvious that the complaint will inevitably fail even after a full record is laid before the Tribunal. The Ont. Chiefs argue that the jurisdictional and other issues raised by the Crown should be decided on a full body of evidence, as opposed to the relatively threadbare record attached to the current motion. A full record before the Tribunal is crucial, given the enormous stakes of the motion, namely determination of whether a program with a funding component falls within s. 5 of the CHRA. A negative finding on this point would effectively exempt from CHRA review the bulk of federal programming in relation to First Nations. Making a preliminary decision could also prejudice the parties by delaying a hearing on the merits, for if the case is terminated on preliminary grounds and this ruling is overturned by the superior courts, the parties will be obliged to start their case several years in the future (even though they are ready to proceed on the merits now). By the time the preliminary dismissal is remitted to the Tribunal, key witnesses may no longer be available. Judicial economy militates against the fragmentation of the proceeding in this way.
B. The CHRA Does Not Require a Viva Voce Hearing in Every Case
Material Facts are Clear and Uncontroverted or Questions of Pure Law
The Tribunal is a creature of statute and exists as part of a larger legislative scheme for identifying and remedying discrimination. Accordingly, the question as to the appropriateness of the motion for summary dismissal requires an examination of the Act. By examining all relevant aspects of the Tribunal’s enabling statute, one may determine precisely what forms of case disposition Parliament intended the Tribunal to carry out. Any ambiguities in the enabling legislation must be interpreted in a manner that furthers, rather than frustrates the objectives of the CHRA (Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36 at para. 42 [Bell Canada]).
The Tribunal is an independent body established by the Act to hold inquiries into complaints referred to it by the Commission. The Act provides that the Tribunal may hold two types of inquiries, one with a viva voce hearing and one without. Under s. 50(1) of the Act, the assigned Member shall inquire into the complaint and “shall” give all parties a “full and ample opportunity”, in person, or through counsel, to appear at the inquiry, present evidence and make representations. Section 50(3) of the CHRA authorizes the Tribunal Member presiding over a hearing of the inquiry to summon witnesses, compel them to give evidence and produce such documents and things as are necessary, administer oaths, receive such evidence and other information, on oath, by affidavit, or otherwise that the Member sees fit, and decide procedural and evidentiary questions. In Canada (Human Rights Commission) v. Canada Post Corp., 2004 FC 81 at para. 17 [Cremasco], aff’d in Canadian Human Rights Commission v. Canada Post Corp., 2004 FCA 363, the Federal Court made clear that the inquiry is distinct from the “hearing” and is not coextensive with the term “hearing”, as that word is used in s. 50(3) of the Act. In Cremasco, supra, the Federal Court held that Parliament’s use of the term "inquiry" in subsection 50(1) and the term "hearing" in subsection 50(3) of the CHRA clearly indicates that the referral of a matter to the Tribunal does not necessarily have to result in a hearing in every case. Thus, while dismissal of the complaint requires an inquiry, it does not “necessarily” require a hearing.
Further to s. 48.9(2) of the Act the Tribunal shall proceed as informally and expeditiously as possible. As the Court said in Cremasco, supra, at para. 18, “it is hard to fathom a reason why it would be in anyone's interest to have the Tribunal hold a hearing in cases where it considers that such a hearing would amount to an abuse of its process.” In such endeavours, of particular relevance to the current issue is the inference to be drawn from s. 53(1) of the Act, namely, that the Tribunal can only dismiss a complaint “…[a]t the conclusion of an inquiry”. [emphasis added]
The repeated use of the word “shall” in these provisions strongly suggests the imposition of two mandatory duties on the Tribunal: on one hand, it must conduct its process as informally and expeditiously as natural justice will permit. On the other hand, it must ensure that in every inquiry the Tribunal accords a full and ample opportunity for the parties to participate as described. In this aspect, the Act is exceptional in codifying the common law duty of adherence to the principles of natural justice as well as the common law principles that administrative tribunals operate informally and expeditiously and neatly juxtaposes them as countervailing duties in s. 48.9(1) of the Act. It is for the Tribunal to find the judicial fulcrum in each case.
The instruction in s. 48.9(2) of the CHRA to proceed with informality and expedition is subject to two important limits: the principles of natural justice and the Canadian Human Rights Tribunal Rules of Procedure, May 3rd, 2004 (Rules of Procedure).
But when can dismissal occur in the absence of a viva voce hearing? Here again, the Cremasco decision, supra, is instructive. In Cremasco, supra, the Court held that the Tribunal can dismiss a case without holding a hearing where holding a hearing would amount to an abuse of process. In the Cremasco case, supra, the particular form of abuse of process at issue was the re-litigation of previously decided questions, which is sanctioned by the doctrine of res judicata, or issue estoppel. There are other forms of abuse of process, but the question which immediately arises is, does Cremasco, supra, detail the only conceivable situation where the Tribunal can dismiss the complaint without a hearing? I do not believe so. I believe that the logic of the Cremasco decision, supra, based as it is on the legislative scheme of the CHRA, can be extended to other contexts, so long as no complaint is dismissed before the conclusion of an inquiry. And as has been seen above, the fundamental procedural requirement in any inquiry is the granting to parties of a “full and ample opportunity” to present evidence and make representations (as per s. 50(1) of the Act). But what this opportunity actually entails will depend on the nature of the specific case and the reasons for which dismissal is being sought.
Thus when faced with a request to dismiss the case in the context of a motion inquiry, all the bases for the motion must be closely scrutinized to ensure that each one lends themselves to adjudication—in motion format—in compliance with s. 50(1) of the Act.
The consequence of this analysis is that the moving party in a pre-hearing motion to dismiss bears a double onus:
(1) The “procedural” onus of convincing the Tribunal that the issues raised can be properly adjudicated in the context of a motion (as opposed to a viva voce hearing) and in full compliance with the Tribunal’s statutory obligation to provide all parties a full and ample opportunity to be heard.
(2) The “substantive” onus of convincing the Tribunal that the reasons for dismissal are valid.
Given the wording of the Act and the objectives of the legislative scheme (in particular, the promotion of equal opportunity) it is appropriate that the party seeking summary disposition of the complaint justify why summary proceedings are appropriate. In practical terms, assuming that the Tribunal has safeguarded the rights of the parties for a full and ample opportunity to appear at the inquiry and make representations, the moving party must satisfy the Tribunal that the motion forum is one in which the rights of all parties to present evidence is safeguarded; i.e. that no further evidence can be of assistance in making the determination at hand.
This may occur in two instances: a) where the moving party has demonstrated that the material facts in the relevant case are clear and are not in dispute and/or b) the issues raised involve only questions of pure law. Thus, additional evidence is of no assistance.
C. Does Using a Motion Forum to Decide a Complaint Based on Uncontroverted Facts or a Legal Issue Comply with Natural Justice?
Does the Motion Forum in this Case Comply with Natural Justice?
Parties have the right to a fair hearing (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 22 and 28 [Baker]; see also Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG, 2006 FCA 398 at para. 26 [Uniboard]).
The factors affecting the content of the duty of fairness were discussed by the Supreme Court in Baker, supra, at paras. 22-27, and include the nature of the decision being made and the process followed in making it, the nature of the statutory scheme and the terms of the statute, the importance of the decision to the individuals affected, the legitimate expectations of the person challenging the decision, and the choices of procedure made by the agency itself, particularly when it has expertise and the statute gives it procedural discretion. Each of these five factors are not to be routinely applied to a given process but must be adapted to the particular context (Uniboard, supra). A case by case analysis is required to meet the requirements of procedural fairness (Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49 [Ha]).
i. Consider the Nature of the Decision Being Made and the Process – How Judicial is it?
Pertaining to the administrative process, I observe that the Tribunal’s administrative process is very close to the judicial process, and has been characterized as very Court-like as its hearings have “...much the same structure as a formal trial before a Court” (see Bell Canada, supra, at para. 23). However, the Courts do not utilize the “trial model” for the disposition of every case (see Federal Courts Rules, SOR/98-106, Rule 210 (motion for default judgment); Rule 213 (motion for summary judgment or summary trial); Rule 220 (preliminary determination of question of law or admissibility); Rule 221 (motion to strike out pleading); Part 5 (Applications)). Thus any analogy drawn between Tribunal adjudication and “judicial decision-making” should reflect the fact that a good part of “judicial decision-making” involves final – or potentially final—disposition of cases outside of the “trial model”.
ii. Consider the Statutory Scheme and the Terms of the Statute – How Final is the Decision?
The nature of the statutory scheme and the terms of the statute pursuant to which the body operates need to be examined in view of the degree of finality of the decision in question. While it is true that a Tribunal decision dismissing a complaint under the CHRA is not subject to appeal, it is not protected by a privative clause either, and Tribunal decisions are reviewable without leave, by the Federal Court, followed by an appeal as of right to the Federal Court of Appeal (Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 52, 64, 123, 143; Federal Courts Act, R.S.C. 1985, c. F-7, ss.18, 27, 28). I note that in Ha, supra, the Court held that judicial review cannot be equated to full appeal rights because the reviewing judge’s authority may be limited with respect to the substantive issues of the case. This is not to say that the availability of judicial review has no relevance whatsoever, especially as in this case here where there is no privative clause, no leave is required and the judicial review proceeds directly to the Federal Court. Ha, supra, is a case in point: it is grounded in the examination of the particular statutory scheme of the Immigration and Refugee Protection Act, 2001, c. 27, s. 72 wherein leave is required for judicial review.
iii. Consider the Importance of the Decision to the Individual or Individuals Affected
In considering the importance of the decision to the affected individuals, the Supreme Court directed that "[t]he more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated" (Baker, supra, at para. 25). Yet, all decisions are equally important for those who are affected by them and thus there is a need to examine how the decision may actually affect the persons concerned. I believe that the cultural and constitutional considerations that resonate throughout this case militate in favour of significant procedural fairness. I am also fastidiously conscious of the quasi-constitutional nature of human rights litigation juxtaposed against the uniqueness of this case, the significant cultural, social and political ramifications of the decision for First Nations, as well as the oral tradition history of First Nations people that may be incongruous with the use of affidavit evidence that forms the basis of the motion.
In the same vein, I observe that the Crown’s affiant, Ms. Johnston deposed that INAC has increased funding from 193 million in 1996 to 523 million in 2008-2009 under the EPFA available in 5 provinces, and has tripled funding in this time period. The complainant group does not appear to contest these figures. Rather, it argues that this funding increase is insufficient, funding remains inadequate, and further that some provinces are seeking to access EPFA but are unable to do so due to INAC’s failure to make it available to them.
iv. Consider the Legitimate Expectations of the Parties – Did they Reasonably Expect a Viva Voce Hearing?
The legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. This factor raises the question of whether the complainant group in this motion had a reasonable expectation that the merits of the case would be dealt with exclusively by means of a viva voce “trial-type” hearing. Of significant relevance to this issue are the Tribunal’s informal Rules of Procedure, of which Rule 3 provides a broad opportunity for the bringing of motions, the presentation of evidence in support thereof, and in answer thereto, and flexibility in the options for disposition. The Rules of Procedure may not have the status of statutory instruments, but that does not diminish their ability to assist parties and members of the public to predict how the Tribunal may likely proceed (see Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 at paras. 55-56 [Thamotharem]). Another consideration affecting the legitimate expectations of the parties in this case would be the absence of any firm promises made to them that all substantive matters would be dealt with in a formal hearing under s. 50(3) of the Act.
The former Chairperson’s approach to case management of this case may have been less structured, but he was not irrevocably seized with the case for purposes of s. 48.2(2) of the CHRA. The parties would have known as of September 2009 that his term was due to expire imminently. Indeed, he had been pro tempore since January 1, 2009 (P.C. 2008-1886, C. Gaz. 2009.I.151.). Further, while he outlined a schedule for a viva voce hearing of this complaint, his schedule was not rigorously adhered to under his tenure. In a December 2009 case management conference, I asked the parties if they wished to make submissions regarding how I should exercise any discretion I may have had to extend the former Chairperson’s tenure for the purposes of this inquiry. The parties chose not to avail themselves of this opportunity.
Since early November of 2009, through case management discussions, the parties have been aware that there was a serious possibility that the “trial model” would not be dogmatically adhered to in this case. As well, the Tribunal offered the parties new and innovative ways to work towards agreement concerning issues, facts and the presentation of evidence in dispute through the assignment of another Tribunal Member to act as a process mediator in January 2010. Finally, the complainant group had been aware of the Crown’s intention to address these issues in this motion as threshold issues through the Crown’s filing in November 2008 of a judicial review application of the Commission’s referral decision. I will address the orders of Prothonotary Aronovitch and the appeal decision in respect of those orders below in another context (which were only rendered on November 24, 2009 and March 30, 2010 respectively). All in all, abbreviation of the process, if appropriate, could have been reasonably antici