SELF-GOVERNMENT

Board’s reasons inadequate and not intelligible

Board denied application for membership in Nunatsiavut Government pursuant to Labrador Inuit Land Claims Agreement. Applicant sought declaratory relief restoring applicant’s rights as beneficiary of agreement. Respondent conceded applicant was not afforded opportunity to fully present case to board in appeal. Respondent stated there was evidence before court that was not before board that may have affected decision had applicant been given opportunity to present it. Application for judicial review was allowed. Matter was referred back to board to afford applicant opportunity to adduce all evidence. In addition to breach of procedural fairness, board’s reasons were inadequate and not intelligible.

Mugford v. Nunatsiavut (Oct. 20, 2011, F.C., Kelen J., File No. T-1407-10) 208 A.C.W.S. (3d) 634 (15 pp.).

EXCLUSION AND EXPULSION

Applicant did not show meaningful rehabilitation

Applicant’s appeal of removal order on humanitarian and compassionate grounds was dismissed. Application for judicial review was dismissed. IAD’s reasons considered interests of applicant’s child. IAD was reasonable in assessment of lack of financial dependency of child on father. IAD considered all evidence. It was reasonable to conclude applicant did not show meaningful rehabilitation. IAD’s consideration of availability of family support system and recognition of positive factor was reasonable. IAD’s determination of applicant’s economic establishment was reasonable.

Koonjoo v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 21, 2011, F.C., Near J., File No. IMM-1231-11) 208 A.C.W.S. (3d) 375 (13 pp.).

PUBLIC SERVICE

Board did not have jurisdiction to hear applicant’s grievance

Applicant grieved competition for Parole Officer position. Grievance alleged that employer violated s. 5 of Public Service Employment Act (Can.) (“PSEA”); Article 37 of applicant’s collective agreement (non-discrimination clause); and Employment Equity Act (Can.). By time grievance was adjudicated, applicant indicated he was only seeking declaration that employer violated non-discrimination clause of his collective agreement and Canadian Human Rights Act (“CHRA”), as well as damages for that violation. Employer objected to jurisdiction of Public Service Labour Relations Board to hear grievance. Board dismissed applicant’s grievance on grounds that it did not have jurisdiction to hear grievance, pursuant to s. 208(2) of Public Service Labour Relations Act (Can.) (“PSLRA”). Application for judicial review was dismissed. Board was correct to find that it did not have jurisdiction to hear applicant’s grievance. Section 208(2) of PSLRA clearly precluded presentation of grievance where another administrative procedure for redress was provided under another PSLRA of Parliament other than CHRA. Facts giving rise to applicant’s grievance related to staffing appointment. Section 8 of PSEA, which was in force at time of applicant’s grievance, granted exclusive authority over appointments to Public Service Commission. Section 21 of PSEA granted unsuccessful candidates right to appeal any appointment decision to commission. It was this process - appeal under s. 21 of PSEA that applicant should have pursued for redress in relation to employer’s appointment decision.

Brown v. Treasury Board (Correctional Service of Canada) (Oct. 20, 2011, F.C., Kelen J., File No. T-1851-09) 208 A.C.W.S. (3d) 323 (14 pp.).

AGREEMENTS FOR TRANSFER TO PENITENTIARY

Objectives of international transfer of offenders scheme could not be achieved through transfer

Application by Canadian prison inmate, who was incarcerated in an American prison after he was convicted of conspiracy to distribute more than five kilograms of cocaine, for judicial review of a decision of Minister of Public Safety and Emergency Preparedness. Minister refused to approve applicant’s application under International Transfer of Offenders Act (Can.) to be transferred to Canada to serve remainder of his sentence. Reason was that objectives of international transfer of offenders scheme could not be effectively achieved through applicant’s transfer. Application dismissed. Minister properly exercised his discretion. Minister weighed purposes of Act, applicant’s positive and negative circumstances and relevant factors. One could reasonably conclude, based on information contained in record, that there was a factual basis for Minister’s decision and he was entitled to act as he did. Applicant was not denied procedural fairness. Court therefore deferred to Minister’s decision.

Newberry v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 3, 2011, F.C., Shore J., File No. T-1649-10) 97 W.C.B.
(2d) 470 (19 pp.).

SELF-GOVERNMENT

Appeal tribunal did not respect procedure and parameters

Applicant was candidate running for Chief in Band Council election. Applicant placed second by margin of three votes. Re-count reduced margin by two votes. Applicant launched appeal of election. Applicant challenged outcome of Band Council election. Appeal tribunal dismissed notice of appeal. Decision was signed by three individuals one of whom was not band member appointed to appeal tribunal. Application for judicial review was allowed. Appeal tribunal was “federal board, commission or other tribunal” for purposes of Federal Courts Act (Can.), and court had jurisdiction to consider application. Appeal tribunal did not respect procedure and parameters set out in Band’s Election Act. Appeal tribunal went beyond evidence referenced in notice of appeal and applicant’s affidavit of particulars in assessing whether there was sufficient evidence to move to second stage of appeal process. Appeal tribunal acted improperly and breached duty to act fairly. Appeal tribunal should have given applicant opportunity to hear and rebut opposing evidence in context of hearing. Appeal tribunal exceeded jurisdiction in assessing whether there was sufficient evidence to warrant appeal hearing. Appeal tribunal was not improperly constituted. Refusal by one of members to endorse preliminary ruling dismissing appeal was strong indication that there was sufficient evidence to warrant formal hearing.

Felix v. Sturgeon Lake First Nation (Oct. 6, 2011, F.C., Bedard J., File No. T-667-10) 207 A.C.W.S. (3d) 181 (25 pp.).

APPLICATION OF PROVINCIAL LAW

Parties could have been spared cost of litigation had sensible course of action been taken

Determination of costs following successful application for judicial review. Court had found that applicants were deprived of their voting rights and denied procedural fairness by respondents in violation of First Nation custom. In granting judgment court set aside decision of former Chief and Council to extend their terms of office, removed Chief and Council from office and ordered that election be held within 60 days. Applicants sought lump sum award giving them full indemnity on solicitor client basis for legal fees in amount of $258,850. Respondents contended that applicants should not be entitled to elevated costs as conduct of respondents or their counsel had not been reprehensible, scandalous or outrageous such as to justify exceptional award of solicitor-and-client costs. Respondents contended that issues were needlessly complicated in this proceeding by fact that applicants raised grounds from Canadian Charter of Rights and Freedoms when it was clear that such grounds had no foundation in law or facts. Relevant factors were that application was brought in interests of all of members of community, issues were complex and included conflicting evidence as to what constituted First Nation custom, conduct of respondent Chief and Councilors and their legal counsel tended to unnecessarily lengthen duration of proceedings, steps taken by respondent Chief and Councilors in proceeding were improper, vexatious or unnecessary, amount of work required to prepare for hearing, that written offer to settle was disregarded and that application was wholly successful. Applicants awarded costs on solicitor-client basis for application and for matters relating to this order for costs, fixed at a total of $285,000. Proceeding would not have been necessary had Chief and Council of First Nation put question of extension of their terms of office to membership as part of scheduled December 2010 election. All of parties could have been spared expense of costly litigation had that sensible course of action been taken. Failure of respondents to do so was blatant attempt to remain in power.

Shotclose v. Stoney First Nation (Sep. 7, 2011, F.C., Mosley J., File No. T-2085-10) 206 A.C.W.S. (3d) 445 (11 pp.).