2023 NBCA 1, 2023 NBCA 1

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 23-22-CA NEW BRUNSWICK LOTTERIES AND GAMING CORPORATION, and THE PROVINCE OF NEW BRUNSWICK as represented by THE MINISTER OF FINANCE APPELLANTS LA SOCIÉTÉ DES LOTERIES ET DES JEUX DU NOUVEAU-BRUNSWICK et PROVINCE DU NOUVEAU-BRUNSWICK, représentée par LE MINISTRE DES FINANCES APPELANTES - and - - et - MADAWASKA FIRST NATION RESPONDENT PREMIÈRE NATION DE MADAWASKA INTIMÉE New Brunswick Lotteries and Gaming Corporation et al. v.

Madawaska First Nation, 2023 NBCA 1 CORAM: The Honourable Justice Drapeau The Honourable Justice French The Honourable Justice LeBlond La Société des loteries et des jeux du Nouveau- Brunswick et autre c.

Première Nation de Madawaska, 2023 NBCA 1 CORAM : l’honorable juge Drapeau l’honorable juge French l’honorable juge LeBlond Appeal from a decision of the Court of Queen’s Bench: February 25, 2022 Appel d’une décision de la Cour du Banc de la Reine : le 25 février 2022 History of Case: Historique de la cause : Decision under appeal: 2022 NBQB 48 Décision frappée d’appel : 2022 NBBR 48 Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: June 28, 2022 Appel entendu : le 28 juin 2022

Judgment rendered: January 12, 2023 Jugement rendu : le 12 janvier 2023 Reasons for judgment: The Honourable Justice French Concurred in by: The Honourable Justice Drapeau The Honourable Justice LeBlond Counsel at hearing: For the appellants: Michael Leonard Hynes and E. Rose Campbell For the respondent: Nick Kennedy and Sarah Glickman Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge Drapeau l’honorable juge LeBlond Avocats à l’audience : Pour les appelantes : Michael Leonard Hynes et E.

Rose Campbell Pour l’intimée : Nick Kennedy et Sarah Glickman THE COURT The appeal is allowed solely for the purpose of varying para. 2 of the Judgment Following Hearing or Trial to set aside the referral back and order the New Brunswick Lotteries and Gaming Corporation pay Madawaska First Nation 95% of the net profits of the Corporation, after provision for prizes and the payment of expenses, from video gaming devices used at the casino on Madawaska’s reserve. The Appellants shall pay one set of costs on appeal in the amount of $5,000.

LA COUR L’appel est accueilli uniquement pour modifier le par. 2 du jugement rendu à l’issue de l’audience ou du procès en annulant le renvoi et en ordonnant à la Société des loteries et des jeux du Nouveau- Brunswick de payer à la Première Nation de Madawaska 95 % des profits nets de la Société, après affectation des sommes nécessaires au paiement des prix et à l’acquittement des frais, provenant des appareils de jeux vidéo utilisés au casino sur la réserve de Madawaska. Les appelantes sont tenues de payer une masse de dépens en appel de 5 000 $. The judgment of the Court was delivered by FRENCH, J.A. I.

Overview and Issues [ 1 ] The dispute in this appeal stems from the New Brunswick Lotteries and Gaming Corporation’s conclusion that it has no ability or obligation under s. 24 of the Gaming Control Act , S.N.B. 2008, c G-1.5 , to pay the Madawaska First Nation a

share of the profit generated from gaming conducted on video gaming devices at the casino on its reserve. On judicial review, the application judge disagreed. [ 2 ] In s. 24, “band” and “reserve” are defined by incorporating the

definitions of those words from the Indian Act , R.S.C., 1985, c. I-5 ; however, in place of “band,” I will use First Nation and I will refer to the respondent, Madawaska First Nation, as Madawaska. [ 3 ] Consistent with the purpose of regulating gaming in the province, the provisions of the Gaming Control Act are predominately of general application; however, as its legislative history indicates, the object of s. 24 is more targeted and its application is much more limited. [ 4 ] A legislative provision respecting profit-sharing generated from gaming conducted on a First Nation’s reserve was first enacted in 1996, as a discrete amendment to the Lotteries Act , S.N.B. 1976, c. L-13.1 .

Section 11.2 was the legislated response to the Province of New Brunswick having entered into agreements with various First Nations in 1995. These agreements, which were commonly called Revenue Sharing Agreements, included a framework for a further, future agreement regarding gaming on a First Nation’s reserve and sharing of the profit from such gaming, which are called Self-Licensing Agreements. Parenthetically, this was only one small part of Revenue Sharing Agreements.

They predominantly focussed on the Province’s agreement to pay First Nations, straight away, 95% of the tobacco, gasoline and sales taxes collected from sales on reserves to individuals other than Status Indians. [ 5 ] To accommodate the Self-Licensing Agreements, s. 11.2(1) authorized the Minister of Finance to enter into an agreement with a First Nation respecting the operation of gaming on its reserve, and s. 11.2(4) stated that (1) the Minister may pay the First Nation in respect of “any breakopen tickets” used on the reserve (s. 11.2(4)(a)), and (2) the Lotteries Commission may pay the First Nation 95% of net profits from gaming “ on the band’s reserve that utilizes video gaming devices ” (emphasis added; s. 11.2(4)(b)). [ 6 ] In 2007, the Province and Madawaska entered into the prescribed agreement respecting on-reserve gaming, as permitted by s. 11.2(1).

Since then, the Minister has paid Madawaska for “breakopen tickets” used on the reserve, and, since April 2008, the Lotteries Commission (now the New Brunswick Lotteries and Gaming Corporation) has paid Madawaska 95% of the net profit from video lottery terminals on the reserve that were managed by the Atlantic Lottery Corporation (“the ALC”). [ 7 ] In 2008, the Gaming Control Act was enacted, repealing the Lotteries Act and providing, among other things, for the operation of casinos in New Brunswick. The key regulations under the new Act included the Casino Regulation , N.B.

Reg. 2009- 24 , and the Video Lottery Scheme Regulation , N.B. Reg. 2008-112 , which was largely the same as the prior Video Lottery Scheme Regulation , N.B. Reg. 90-142 , under the Lotteries Act . Importantly for this case, s. 11.2 was continued as s. 24, unchanged in any material respect. Indeed, like s. 11.2(4)( b ), s. 24(5)(

b) provides that the New Brunswick Lotteries and Gaming Corporation may pay a First Nation 95% of net profits from gaming “ on the band’s reserve that utilizes video gaming devices ” (emphasis added). [ 8 ] Madawaska’s 95% share of the net profit from video lottery terminals on its reserve was considerable. In 2015, it received over 1.8 million dollars.

However, after a casino opened on the reserve in 2015, the income paid by the Gaming Corporation was reduced to less than 1.3 million (in 2017) and, after the ALC removed the last of its 35 video lottery terminals, the income paid by the Gaming Corporation was reduced to less than $10,000 (in 2018). [ 9 ] In July 2019, Madawaska asked the Gaming Corporation to share, pursuant to s. 24(5)(b), the net profit from “video gaming devices” used on its reserve at the casino.

It maintained devices used at the casino were the same type as those used by the ALC and for which profit had been shared. [ 10 ] Neither the Gaming Control Act , nor the Video Lottery Scheme Regulation , nor the Casino Regulation define “video gaming devices” or “video lottery terminals.” Similarly, these terms were not defined under the Lotteries Act or its regulations. [ 11 ] In October 2019, the Gaming Corporation advised Madawaska that it could not share profit from gaming devices used in casinos because they were not “video gaming devices” within the meaning of s. 24(5)(b); it interpreted “video gaming devices” as intended to only include devices that were part of the “ video lottery scheme ” managed by the ALC under the Video Lottery Scheme Regulation .

[ 12 ] The following day, Madawaska asked for a meeting with the Gaming Corporation to discuss their different

interpretations of “video gaming devices” for the purposes of s. 24(5)(

b) and, failing a change in the Corporation’s position, to discuss having their different views adjudicated under the arbitration provision of Madawaska’s agreement with the Province. In a written response, the Gaming Corporation later reported that the issue would be raised with its Board.

The Corporation later advised that the issue raised by Madawaska was on the agenda for its December 5 th Board meeting. [ 13 ] In December 2019, Madawaska was advised by email that there would not be a meeting to discuss the issue as the Gaming Corporation had, “after further analysis […] and consideration by the members of the Board,” confirmed its view that “video gaming devices” within the meaning of s. 24(5)(

b) did not include gaming devices used at a casino. In January 2020, it issued a letter to the same effect. [ 14 ] Madawaska filed an application for judicial review of the January 2020 decision. In its Notice of Application, Madawaska asserted the application was commenced within the time required for doing so and it requested, in the alternative, an order extending the time pursuant to Rule 69.03 of the Rules of Court .

The Appellants filed a motion asking that the application be dismissed for not being commenced within three months of the Gaming Corporation’s October 2019 letter. [ 15 ] Based on the January 2020 letter, the application judge decided the application was commenced in the time required under Rule 69.03 and, as a result, he did not address Madawaska’s alternate request for an order extending time. Whether the disagreement over the Gaming Corporation’s position on its ability to pay under s. 24(5)(

b) could have been dealt with as part of an application for the

interpretation of a statute, under Rule 16, or as an action for the recovery of an amount due, was not raised. [ 16 ] Additionally, the judge found the Gaming Corporation’s refusal to pay, based on its conclusion that s. 24(5)(

b) did not provide the authority to do so, was unreasonable: Profits from the VLTs at the Madawaska Entertainment Centre were shared with Madawaska up until the 35 machines were removed after the establishment of the Grey Rock Casino. The Grey Rock Casino is the first (and only) casino to be established on a reserve. In my view, if the Province wished to discontinue sharing profits with Madawaska from devices that, on their face are “video gaming devices”, it had an obligation to do so explicitly. This could have been done in two ways.

First, the GCA [ Gaming Control Act ] could have been amended to distinguish between lottery schemes at casinos and other lottery schemes. No such “carving out” was done. Second, the GCA could have been amended to define “video gaming devices” to exclude those devices utilized at a casino (i.e. electronic gaming equipment). This too was not done. Instead the Province seeks to rely on s. 6 of the Video Lottery Scheme Regulation to import that definition into the GCA . I reject the Province’s position.

Section 6 of the Video Lottery Scheme Regulation does not define “video gaming devices”. Rather, it sets out a list of characteristics that a “video gaming device used in a video lottery scheme” must have. It does not stipulate what characteristics are required for casino gaming machines.

I reject the argument that, by necessary implication, machines utilized at the Grey Rock Casino that do not have those same characteristics are not “video gaming devices”. […] Finally, the Gaming Corporation relied on the term “electronic gaming equipment” found in the Casino Regulation to limit the scope of its profit-sharing authority. My comments respecting the use of s. 6 of the Video Lottery Scheme Regulation to limit the statutory power found in s. 24(5)(

b) apply equally to this purported use of the Casino Regulation . In any event, on its face, and in light of all the foregoing, the casino equipment falls within the definition of “electronic gaming equipment” being “equipment for playing of lottery schemes on or through computers or video devices” . […] Section 24(5)(

b) of the GCA empowers the Gaming Corporation to share profits from a lottery scheme on a First Nation reserve that utilizes “video gaming devices”. The term “video gaming devices” is not defined anywhere in the legislative scheme. The Casino Regulation , however, defines “electronic gaming equipment” as “equipment for the playing of lottery schemes on or through computers or video devices”. Considering the plain and ordinary meaning of those words, “electronic gaming equipment” includes “video gaming devices”. As Grey Rock Casino utilizes “electronic gaming devices” that are “video gaming devices” section 24(5)(

b) of the GCA authorizes the Gaming Corporation to share profits with Madawaska .

[Emphasis added; paras. 66-67, 71 and 74] [ 17 ] Having concluded the Gaming Corporation had the authority to share the net profit from devices at the casino, he referred the matter back to the Gaming Corporation: […] The matter is remitted back to the Gaming Corporation with a direction that it share gaming profits from the Grey Rock Casino with Madawaska in accordance with the provisions of s. 24(5)(

b) of the GCA and provided Madawaska meets the conditions thereof. [para. 77] II. Issues on Appeal [ 18 ] The Gaming Corporation and the Province, as represented by the Minister of Finance, appealed. They contend the judge erred in: 1) finding as a fact that the decision for which Madawaska sought judicial review was made in January 2020; 2) finding the Gaming Corporation had the statutory authority to share casino gaming profits under s. 24(5)(

b) by:

a) failing to properly apply the reasonableness standard to the Corporation’s determination that the devices at the casino “are not video gaming devices for the purposes” of s. 24(5)(b); and b) (i) “failing to recognize the expertise of the [Corporation] in the

interpretation of its home statute,” (ii) “failing to recognize the deference that should be accorded to [its] decision that it did not have statutory authority to […] share casino gambling profits” under s. 24(5)(b), and (iii) “applying, in effect, the correctness standard in his review of the decision”; and 3) directing the Gaming Corporation (on remitting the matter back) to share casino gaming profits, “thereby depriving the [Corporation] of its right to exercise [its residual statutory] discretion whether to share such profits under ” s. 24(5)(b). [ 19 ] I would dismiss the appeal.

First, there is no reversible error in the judge’s determination that Madawaska’s application was commenced in time based on the Gaming Corporation’s written representation (of October 7, 2019) that it would address Madawaska’s request to meet and be heard on the

interpretation of s. 24(5)(

b) and, alternatively, on the issue of arbitration. Additionally, although the judge determined neither:

(1) Madawaska’s submission that the October 2019 communication was not final; nor (2) its request, if necessary, for an order extending the time to commence its application, had I concluded the application judge erred, I would have determined those issues in favour of Madawaska, either of which would have resulted in a determination that its application was commenced in time. [ 20 ] Second, the application judge did not “effectively” undertake a correctness review, as the Appellants contend. He reviewed the decision for reasonableness and, applying Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 , he appropriately considered the statutory framework within which the decision was made. Neither the expertise of the Gaming Corporation nor the deference owed to its assessment of its own statute provide a basis for disregarding the plain language of s. 24(5)(b), which is consistent with a contextual reading of the provision in view of the scheme of the Gaming Control Act and its regulations. Further, there is no error in his determination that the Gaming Corporation’s decision was not reasonable because the Corporation’s

interpretation of the provision is not justifiable. [ 21 ] Lastly, the application judge did not decide that the Gaming Corporation has no residual discretion under s. 24(5)(

b) to refuse to pay Madawaska. However, on appeal, Madawaska asked this Court to order the Gaming Corporation pay since it has no residual discretion under s. 24(5) that permits it to refuse to pay – a position it advanced before the application judge but was not addressed. Since this Court is in as good a position to decide the issue, rather than remit the matter back to the application judge, I would make the decision that ought to have been made on the record before him. In my opinion, the Gaming Commission does not have the residual discretion it claims, and Madawaska ought to be paid its share of the net profit for the video gaming devices at the casino.

III. Analysis [ 22 ] I will first address the Appellants’ challenge to the application judge’s finding that the Gaming Commission’s

interpretation of s. 24(5)(

b) was not reasonable. A. Did the judge err in finding that the Gaming Corporation’s

interpretation of “video gaming devices” was unreasonable? [ 23 ] In an appeal from a decision disposing of an application for judicial review, an appeal court is required to place itself in the shoes of the application judge; as recently stated in Regional Health Authority B, doing business as Horizon Health Network v. Dr. deVries , 2022 NBCA 20 , [2022] N.B.J. No. 94 (QL) : Typically, when reviewing a judicial review decision, this Court’s role is to determine whether the application judge chose the correct standard of review and applied it properly: Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 , at paras. 45-47 ; Ayotte v. Université de Moncton, 2021 NBCA 15 , [2021] N.B.J. No. 70 (QL) , at para. 18 . [para. 3] [ 24 ] The application judge applied the reasonableness standard in his review of the Gaming Corporation’s decision. As he explained: Madawaska’s application for review centers on its allegation that the Gaming Corporation misinterpreted s. 24(5)(

b) of the GCA and incorrectly limited the scope of that provision. Both parties agree that the standard of review is “reasonableness”. While Madawaska’s submissions are generally based on the reasonableness standard, it also alleges that by misinterpreting the GCA the Gaming Corporation also fettered its discretion and the decision ought to be quashed on that basis alone. This hints at a “correctness” standard.

However, the standard of review is reasonableness. [para. 36] [ 25 ] Undoubtedly, the application judge identified the correct standard of review. [ 26 ] However, the Appellants assert that, despite having correctly stated he was required to apply a reasonableness standard, the application judge “appl[ied], in effect, the correctness standard in his review of the decision.” This assertion is grounded principally in their contention that he failed to adequately “recognize the expertise of the [Corporation] in the

interpretation of its home statute” and “recognize the deference that should be accorded” its decision. In my opinion, these are inaccurate characterizations of his review and no more need be said about them. [ 27 ] What remains to be addressed in this part of my reasons is the Appellants’ contention that the application judge’s interpretative analysis is flawed and does not support his determination that its

interpretation was unreasonable. [ 28 ] To be reasonable, a decision “must be justified in relation to the constellation of law and facts that are relevant ” ( Vavilov , at para 105 ). This includes being justified in relation to “the governing statutory scheme; other relevant statutory or common law; [and] the principles of statutory

interpretation” ( Vavilov , at para 106 ). [ 29 ] A decision founded upon the

interpretation of a statutory provision may be unreasonable, and indefensible, where it fails to consider “a key element of a statutory provision’s text, context or purpose” and may have been different had that element been considered ( Vavilov , at para 122 ). Additionally, the review of a decision for the reasonableness of its statutory

interpretation may lead to the conclusion “that the interplay of text, context and purpose leaves room for a single reasonable

interpretation of the statutory provision” at issue ( Vavilov , at para 124 ). [ 30 ] The application judge’s review of the Gaming Corporation’s decision was guided by these principles. He cited the following passages from the decision of the Supreme Court in Vavilov , which I also consider to be helpful to reproduce:

It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinentaspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to underminethe decision as a whole. It is well established that decision makers are not required “to explicitly address all possible shades of meaning”of a given provision: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3.

Just like judges,administrative decision makers may find it unnecessary to dwell on each and every signal of statutory intent in their reasons. In manycases, it may be necessary to touch upon only the most salient aspects of the text, context or purpose.

If, however, it is clear that theadministrative decision maker may well, had it considered a key element of a statutory provision's text, context or purpose, havearrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances.Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question iswhether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decisionmaker.

There may be other cases in which the administrative decision maker has not explicitly considered the meaning of a relevant provision inits reasons, but the reviewing court is able to discern the

interpretation adopted by the decision maker from the record and determinewhether that

interpretation is reasonable. Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the“correct”

interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that theinterplay of text, context and purpose leaves room for a single reasonable

interpretation of the statutory provision, or aspect ofthe statutory provision, that is at issue: Dunsmuir, at paras. 72-76. One case in which this conclusion was reached was Nova TubeInc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52., in which Laskin J.A., after analyzing the reasoning of theadministrative decision maker (at paras. 26-61 ), held that the decision maker's

interpretation had been unreasonable, and,furthermore, that the factors he had considered in his analysis weighed so overwhelmingly in favour of the opposite

interpretation thatthat was the only reasonable

interpretation of the provision: para. 61. As discussed below, it would serve no useful purpose in such acase to remit the interpretative question to the original decision maker. Even so, a court should generally pause beforedefinitively pronouncing upon the

interpretation of a provision entrusted to an administrative decision maker. [Emphasis added;paras. 122-124]

(1) Section 24 and the

interpretation of “video gaming devices” [31] As “video gaming devices” is not defined, the legislative intent respecting the type of devices that permit theGaming Corporation to share profits, from gaming “on the band’s reserve that utilizes video gaming devices,” must flow from readingthose words “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object ofthe Act, and the intention of [the Legislature]” (see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, [1998]S.C.J. No. 2 (QL), at para. 21, Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, and Vavilov,at para. 117, all quoting E. Driedger, Construction of Statutes (2nd ed. 1983, at p. 87). [32] Before this Court, the Appellants submit the legislative scheme provides for the regulation of gaming in acasino under the Casino Regulation, distinct from gaming that is managed by the ALC, and this evidences an intention for “videogaming devices” to include only devices used as part of the ALC’s video lottery scheme under the Video Lottery Scheme Regulation.

Inmy view, and as will be explained below, this disregards the legislative use of the words “video gaming devices” prior to the GamingControl Act and the Casino Regulation and it ignores entirely the purpose of s. 24(5)(

b) and the context of the Self-LicensingAgreements between the Province and First Nations. [33] While the purposes of the Gaming Control Act are expressly set out in s. 2, the object of s. 24(5)(

b) must bediscerned from the provision itself, read in the context of the Gaming Control Act as a whole, and informed by the provision’s legislativehistory.

Section 24 reveals that it is firmly rooted in the formation of agreements between the Province and First Nations regarding on-reserve gaming, and the sharing of income under s. 24(5) is a product of such agreements. In its entirety, s. 24 provides: Agreements with bands 24(1) The following

definitions apply in thissection. Accords conclus avec des bandes 24(1) Les définitions qui suivent s’appliquentau présent article.

“band” means a band as defined in the Indian Act (Canada) that is authorized to enter into an agreement under subsection (2). (bande) “reserve” means a reserve, as defined in the Indian Act (Canada) , as the reserve exists on the date the agreement with respect to such reserve is or was entered into under subsection (2) and includes any addition to the reserve described in any amendments to the agreement. (réserve) 24

(2) Notwithstanding any other provision in this Act or any provision in the regulations under this Act or any other agreement under this Act, the Minister may , on behalf of Her Majesty the Queen in right of the Province, enter into an agreement with a band with respect to the establishment by the band of a gaming commission for the purpose of licensing and regulating lottery schemes on the band’s reserve and with respect to the conduct, management and operation of any lottery scheme on the band’s reserve . 24

(3) The parties to an agreement under subsection (2) may amend the agreement for the purpose of applying the agreement to any addition to the reserve described in the amendment. 24

(4) An agreement under subsection (2) may be amended, terminated or cancelled in accordance with this

section and the terms and conditions in the agreement. 24

(5) Where an agreement entered into under subsection (2) is in force and there is no breach of any of its terms or conditions, (

a) the Minister may pay to the band out of the Consolidated Fund the cost of any breakopen tickets for use in a lottery scheme on the band’s reserve that are purchased by the band from a supplier approved by the Corporation, less the costs of the supplier with respect to such tickets, and (

b) the Corporation may pay to the band the difference between the net profits of the Corporation , after provision for prizes and the payment of expenses, from a lottery scheme on the band’s reserve that utilizes video gaming devices and 5% of the net profits, after provision for prizes and the payment of expenses, from such lottery scheme. « bande » Bande définie par la

Loi sur les Indiens (Canada) qui est autorisée à conclure des accords en vertu du paragraphe (2). (band) « réserve » Réserve définie par la

Loi sur les Indiens (Canada) telle qu’elle existe à la date où l’accord la concernant est conclu en vertu du paragraphe (2); la présente définition s’entend également de toute addition à la réserve décrite dans toute modification de l’accord. (reserve) 24

(2) Par dérogation aux autres dispositions de la présente loi ou à toute disposition de son règlement d’application ou de tout autre accord conclu en vertu de la présente loi le ministre peut , pour le compte de Sa Majesté la Reine du chef de la province, conclure un accord avec une bande relativement aussi bien à l’établissement par elle d’une commission des jeux aux fins de délivrer des licences et de réglementer les loteries sur sa réserve qu’à la tenue, à la gestion et à l’exploitation de toute loterie sur sa réserve . 24

(3) Les parties à un accord conclu en vertu du paragraphe (2) peuvent le modifier aux fins de l’appliquer à toute addition à la réserve décrite dans la modification. 24

(4) L’accord conclu en vertu du paragraphe (2) peut être modifié, résilié ou annulé conformément au présent

article ainsi qu’aux modalités et aux conditions de l’accord. 24

(5) Lorsque l’accord conclu en vertu du paragraphe (2) est en vigueur et qu’aucune de ses modalités ou de ses conditions n’a été violée :

a) le ministre peut payer à la bande sur le Fonds consolidé les frais de tous billets à languette pour utilisation dans une loterie sur la réserve de la bande que celle-ci achète à un fournisseur approuvé par la Société, moins les frais du fournisseur relatifs à ces billets;

b) la Société peut payer à la bande la différence entre les profits nets de la Société , après affectation des sommes nécessaires au paiement des prix et à l’acquittement des frais, provenant d’une loterie sur la réserve de la bande qui utilise des appareils de jeux vidéo et 5 % des profits nets provenant de cette loterie, après affectation des sommes nécessaires au paiement des prix et à l’acquittement des frais. [Les caractères gras et le soulignement

[Emphasis added.] sont de moi.] (2) 1976 – The Lotteries Act and the meaning of “lottery scheme” [ 34 ] While “lottery scheme,” even as it is used in s. 24(5)(b), may give rise to common notions of lotteries or lottery tickets (or specific types of gaming), its meaning is much broader.

Indeed, in the present analysis, “lottery scheme” may be viewed under both the Lotteries Act and the Gaming Control Act as almost synonymous with gaming. [ 35 ] For many years, the Criminal Code largely prohibited gaming, with certain exceptions – one of which is a “lottery scheme” approved by a province. [ 36 ] In 1976, when the Lotteries Act was enacted, it defined “lottery scheme” as having the same meaning as in the Criminal Code .

It stands to reason the Legislature sought to clearly indicate that the gaming approved by the Lotteries Act fell within the exception established by the Code . “Lottery scheme” is similarly defined under the Gaming Control Act . [ 37 ] In 1976, the Criminal Code defined “lottery scheme” as including “a game.” It defined “game” as meaning “a game of chance or mixed chance and skill.” The definition of “lottery scheme” in the Criminal Code has changed over time, but none of the changes precludes “lottery scheme” from being viewed, in this case, as including the gaming conducted under the legislation.

A current definition of “lottery scheme” in the Code is in the attached Appendix. [ 38 ] Also of interest is that, in 1976, the Criminal Code defined “gaming equipment” as “anything that is or may be used for the purpose of playing games for betting.” [ 39 ] The Lotteries Act provided for the creation of the Lotteries Commission of New Brunswick, which is the predecessor to the Gaming Commission.

The Lotteries Commission was “composed of three members, namely, the Minister and two Deputy Ministers.” [ 40 ] Additionally, the Lotteries Act provided for the Province, through the Lotteries Commission, to participate in the formation of the Atlantic Lottery Corporation, along with the other Atlantic provinces, which similarly participate in the ALC through their provincial Crown corporations responsible for gaming. [ 41 ] Initially, the main program of the ALC included the sale of lottery tickets.

This would continue to be its principal business until about 1990. (3) 1990 Amendment of Lotteries Act – first use of “video gaming devices” [ 42 ] In June 1990, the Lotteries Act was amended to provide for the regulation of what were then commonly called “video lottery terminals.” This description has continued to be used to the present. At that time, video lottery terminals were owned primarily by private enterprises, most of which would become members of the New Brunswick Coin Machine Operators Association .

This background to video lottery terminals and the legislative adoption of the video lottery scheme in the province was addressed in Doucet and Dauphinee v. Spielo Manufacturing Incorporated and Manship , 2011 NBCA 44 , 372 N.B.R. (2d) 1 : The story begins with Mr. Manship working in the coin-operated machine business, in Moncton, as a service technician from 1977 until 1986.

In 1986, he started a proprietorship and contacted CADMI Microelectronics Inc., a research and development engineering firm associated with the University of Moncton, to have them work on a coin conversion board and a technical feasibility study on building a gaming machine. In time, Mr. Doucet would rise to the position of “President” of CADMI. In 1988, Mr. Manship attended a trade show in Las Vegas and learned about the South Dakota Video Lottery Program. Upon return home, he met with a group of local coin operators to discuss the possibility of setting up such a program in New Brunswick.

In 1989, the New Brunswick Coin Operators Association was formed and a proposal submitted to the New Brunswick Lottery Commission. Mr. Manship was the technology officer of the Association. When it became clear that the lottery system would be accepted, Mr. Manship left the Association and began working full- time on building a video lottery terminal (VLT). In June of 1990, Mr. Manship incorporated Spielo for the purpose of manufacturing and

marketing VLT’s. At that time, he owned 100% of Spielo’s issued shares. [Emphasis added; para. 21] (For more regarding VLT and the video lottery scheme, see also Phillips v. Atlantic Lottery Corp. et al. (1992), (NBCA), 129 N.B.R. (2d) 168, [1992] N.B.J. No. 570 (QL) (C.A.); Spielo Manufacturing Inc. v. IGT, [1995] N.B.J. No. 564 (QL) (C.A.);Northern and Bluebird Amusement Co. v. 053857 NB Inc. (2001), N.B.R. (2d) (Supp.) No. 33, [2001] N.B.J. No. 27 (QL); 055455 NBInc. et al. v.

Atlantic Lottery Corp. et al., 2015 NBQB 231, 443 N.B.R. (2d) 46.) [43] Importantly, it was this June 1990 amendment that gave rise to the use of “video gaming devices.” The termwas not defined and, as noted, it continues to be undefined. In my view, this is reflective of an intent that these words be read consistentwith their plain and ordinary meaning: 7.1 The Commission may, for the purpose ofdeveloping, organizing, undertaking,conducting and managing a lottery schemethat utilizes video gaming devices (

a) enter into agreements with any person toeffect the transfer of ownership of videogaming devices to or from the Commissionby purchase, sale or otherwise, and (

b) enter into agreements with any personrespecting the conduct and management bythe Commission of lottery schemes thatutilize video gaming devices owned orcontrolled by the Commission. 7.2(1) The Lieutenant-Governor in Councilmay establish policies for the Commission tofollow in the conduct and management by theCommission of lottery schemes that utilizevideo gaming devices. [Emphasis added.] 7.1 La Commission peut, afin d’élaborer,organiser, entreprendre, tenir et administrerune loterie qui utilise les appareils de jeuxvidéo

a) conclure des accords avec toute personnepour effectuer un transfert de propriétéd’appareils de jeux vidéo à la Commissionou de la Commission par achat, vente ouautrement, et

b) conclure des accords avec toute personneconcernant la tenue et l’administration par laCommission des loteries qui utilisent lesappareils de jeux vidéo qui lui appartiennentou dont elle a le contrôle. 7.2(1) Le lieutenant-gouverneur en conseilpeut établir des politiques à suivre par laCommission pour la tenue et l’administrationdes loteries qui utilisent des appareils dejeux vidéo. [Les caractères gras et le soulignement sontde moi.] [44] On November 22, 1990, the Video Lottery Scheme Regulation – Lotteries Act was filed. It provided:

2 I n this Regulation […] “ video lottery scheme ” means any lottery scheme, authorized under the Criminal Code (Canada) and conducted and managed by [the ALC], that utilizes video gaming devices . 3 The [ALC] may conduct and manage a video lottery scheme in accordance with an agreement under paragraph 8(

b) of the Act. [Emphasis added.] 2 Dans le présent règlement […] « système de loterie vidéo » désigne un système de loteri e autorisé par le Code criminel (Canada) , tenu et administré par la Société, qui utilise des appareils de pari vidéo . 3 La Société peut tenir et administrer un système de loterie conformément à un accord prévu à l’alinéa 8b) de la Loi. [Les caractères gras et le soulignement sont de moi.] [ 45 ] Additionally, t his regulation prohibited the ALC from entering into an agreement with a video lottery terminal owner unless it was a member of the New Brunswick Coin Machine Operators Association, and certain additional conditions were met:

7 (5) [ALC] shall not enter into an agreement under subsection (2) with an owner who (

a) has been convicted within the previous five years of (

i) an offence under

Part VII of the Criminal Code (Canada) , or (ii) any other criminal offence making it inappropriate, in [ALC’s] opinion, that the owner should be involved in the operation of a video lottery scheme, (

b) manufactures or sells video gaming devices , (

c) is a siteholder, (

d) owns, in [ALC’s] opinion, more than five per cent of the video gaming devices placed in approved premises under this Regulation, (

e) has family or commercial connections that would be harmful, in [ALC’s] opinion, to the operation, integrity or reputation of a video lottery scheme, (

f) resides outside New Brunswick, (

g) is less than nineteen years old, or (

h) is not a member of the New Brunswick Coin Machine Operators Association. [Emphasis added.] 7

(5) La Société ne peut conclure un accord prévu au paragraphe (2) avec un propriétaire qui

a) a, dans les cinq années précédentes, été déclaré coupable (

i) d’une infraction prévue à la

Partie VII du Code criminel (Canada) , ou (ii) de toute autre infraction criminelle qui, selon la Société, rendrait inappropriée l’implication du propriétaire dans l’exploitation d’un système de loterie vidéo,

b) fabrique ou vend des appareils de pari vidéo ,

c) est un maître des lieux,

d) est, de l’avis de la Société propriétaire de plus de cinq pour cent des appareils de pari vidéo placés dans des locaux approuvés en vertu du présent règlement,

e) a des liens familiaux ou des relations commerciales qui seraient préjudiciables, de l’avis de la Société, à l’exploitation, l’intégrité ou la réputation d’un système de loterie vidéo,

f) réside hors du Nouveau-Brunswick,

g) est âgé de moins de dix-neuf ans, ou

h) n’est pas membre du New Brunswick Coin Machine Operators Association . [Les caractères gras et le soulignement sont de moi.] [ 46 ] The participation of the members of the New Brunswick Coin Machine Operators Association in the video lottery business/scheme continued until 2002, when their contracts were not renewed and the ALC assumed the role of owner.

In 2002, s. 7(5) of the Regulation was repealed. [ 47 ] While these devices were commonly referred to as video lottery terminals, the Lotteries Act used plain words to describe all such devices, namely “video gaming devices.” It is my view that, while the “video gaming devices” permitted to be used in the province were those that satisfied the Video Lottery Scheme Regulation , the words “video gaming devices” describe the devices themselves, including those that do not meet the requirement of the Video Lottery Scheme Regulation .

A reading of the Regulation indicates “video gaming devices” is not restricted to those that meet the criteria of the Regulation .

(4) 1995 – Revenue sharing between the Province and First Nations [ 48 ] During the early-to-mid 1990s, the Province and the First Nations in the province negotiated and entered into what have been called Revenue Sharing Agreements. The agreement with Madawaska, dated April 28, 1995, is entitled: “Agreement on the Collection of Provincial: Tobacco Tax, Gasoline Tax, Sales Tax and Self-Licensing Relating to Gaming .” The recitals reflect the background and rationale for these agreements: Whereas

section 87 of the Indian Act , R.S.C. 1985, c.

I-6 , exempts from taxation the personal property of an Indian or Band situated on a reserve, and Whereas it is the position of the First Nation that such exemption is applicable to cigarette and tobacco products and gasoline and motive fuel purchased by Indians on the Madawaska Maliseet First Nation Reserve, and Whereas the Parties are desirous of cooperating with each other so as to resolve the question as to the alleged entitlement to an exemption whilst at the same time protecting the integrity of the provincial administration of tax in the Province of New Brunswick . [Emphasis added.] [ 49 ] Under the agreement, Madawaska agreed to collect provincial tax from the on-reserve sale of tobacco, gasoline, and other items “to persons other than Status Indians” and, in exchange, the Province agreed to pay/remit to Madawaska 95% of such tobacco, gasoline and sales taxes collected: EXTENT OF SHARING OF TAX The Minister and the First Nation agree that the Minister will share the Tobacco Tax, the Gasoline and Motive Fuel Tax, and the Social Services and Education Tax collected by the First Nation or retail vendors on tobacco products, gasoline and motive fuel, and goods taxable under the Social Services and Education Tax Act sold on the Madawaska Maliseet First Nation Reserve to persons other than Status Indians in the following ratio: Band’s share 95% Minister’s share 5% [ 50 ] In relation to gaming, the Revenue Sharing Agreement established a framework for Madawaska to conduct on- reserve gaming and share in the revenue by prescribing the form of agreement between Madawaska and the Minister to accomplish this; a “ Self-Licensing Agreement ” was attached as a

Schedule to the Revenue Sharing Agreement. The Self-Licensing Agreement provided for Madawaska to establish a gaming commission, with responsibility for gaming on the reserve. [ 51 ] To legislatively provide for the sharing of tax and gaming revenue as contemplated by the Revenue Sharing Agreements, in 1996, the Revenue Administration Act , S.N.B. 1983, c. R-10.22 , was amended to permit the Minister to “enter into an agreement with a band with respect to the sharing of the revenue from the taxes referred to in the agreement that are collected on the band’s reserve from taxpayers who are not Indians” (s. 11.1).

A copy of s. 11.1 of the Revenue Administration Act is in the attached Appendix. Also in 1996, the Lotteries Act was amended to permit a sharing of revenue from gaming, by the addition of s. 11.2 . (5) 1996 – Addition of s. 11.2 to the Lotteries Act in relation to “Self-Licensing Agreements”

[ 52 ] In 1996, the Lotteries Act was amended to include s. 11.2, the predecessor to s. 24.

Section 11.2(4) provided for a sharing of the gaming revenue where a Self-Licensing Agreement was in force: 11.2

(4) Where an agreement entered into under subsection (1) is in force and there is no breach of any of its terms or conditions, (

a) the Minister may pay to the band out of the Consolidated Fund the cost of any Breakopen tickets for use in a lottery scheme on the band’s reserve that are purchased by the band from a supplier approved by the Commission, less the costs of the supplier with respect to such tickets, and (

b) the Commission may pay to the band the difference between the net profits of the Commission , after provision for prizes and the payment of expenses, from a lottery scheme on the band’s reserve that utilizes video gaming devices and five per cent of the net profits, after provision for prizes and the payment of expenses, from such lottery scheme. [Emphasis added.] 11.2

(4) Lorsqu’un accord conclu en vertu du paragraphe (1) est en vigueur et qu’il n’y a aucun bris de ses modalités ou conditions,

a) le Ministre peut payer à la bande sur le Fonds consolidé les frais de tous billets à languette pour utilisation dans une loterie sur la réserve de la bande que la bande achète d’un fournisseur agréé par la Commission, moins les frais du fournisseur relativement à ces billets, et

b) la Commission peut payer à la bande la différence entre les bénéfices nets de la Commission , après affectation des sommes nécessaires au paiement des prix et règlement des frais, provenant d’une loterie sur la réserve de la bande qui utilise des appareils de jeux vidéo et cinq pour cent des bénéfices nets, après affectation des sommes nécessaires au paiement des prix et règlement des frais, provenant de cette loterie. [Les caractères gras et le soulignement sont de moi.] [ 53 ] As noted previously, this provision is virtually identical to s. 24(5) of the Casino Gaming Act , and “video gaming devices” continues to be used for identifying the source of the gaming income to be shared. [ 54 ] In my opinion, “video gaming devices” was used in s. 11.2(4) to be consistent with s. 7.1 of the Lotteries Act and, similarly, to identify particular types of gaming devices using undefined words that are intended to be read according to their plain and ordinary meaning.

While the devices permitted to be used in New Brunswick for gaming included only those that met the requirements of the Video Lottery Scheme Regulation , this does not mean “video gaming devices” was to be read as describing only devices that satisfied the requirements of the Regulation . [ 55 ] It cannot go unnoticed that s. 11.2(4)(

b) provided for a First Nation to be paid the same proportion of net income from gaming (that is, 95%) as the proportion of tobacco, gasoline, and sales taxes the Province had expressly agreed to pay under the Revenue Sharing Agreements. I will return to this when I address the issue of the Gaming Corporation’s claim to have a residual discretion to pay under s. 24(5)(b). [ 56 ] While the Province entered into gaming agreements with two First Nations between 2003 and 2006, it was not until early February 2007 that Madawaska authorized the execution of its Self-Licensing Agreement.

While an executed copy of this agreement is not in the record, no issue was taken with the application judge using this date as when the Self-Licensing Agreement was entered into. [ 57 ] As noted, by April 2008, the Lotteries Commission began sharing (pursuant to s. 11.2(4) of the Lotteries Act ) 95% of the net profit from video lottery terminals managed by the ALC at the Madawaska Entertainment Centre. (6) 2008 – The Gaming Control Act

[ 58 ] In June 2008, the Gaming Control Act was enacted. Parts 1 and 2, including s. 24, were proclaimed and came into force on June 26, 2008.

Part 2 also continued the Lotteries Commission as the Gaming Corporation. [ 59 ] Parts 3 to 6, which repealed the Lotteries Act , came into effect on October 1, 2008, as did the Video Lottery Scheme Regulation . The Casino Regulation came into force on April 1, 2009. [ 60 ] Like the Lotteries Act , the Gaming Control Act does not define “video gaming devices” for the purposes of s. 24, or otherwise. Nor is it expressly defined by regulation. While the words are used frequently in the Video Lottery Scheme Regulation , they are not used in the Casino Regulation .

As noted, the Appellants submit this reflects a legislative scheme that indicates an intention for “video gaming devices” to include only devices used as part of the video lottery scheme under the Video Lottery Scheme Regulation . [ 61 ] Undoubtedly, the Gaming Control Act establishes distinct regimes for regulating gaming at a casino and gaming conducted by the ALC. Effectively, the ALC alone conducts and manages the video lottery scheme established by the Video Lottery Scheme Regulation .

This authority is conferred by s. 3 of the Regulation , which is the same as the 1990 Regulation : ALC to conduct and manage video lottery scheme 3 ALC may conduct and manage a video lottery scheme in accordance with an agreement under paragraph 7(

d) of the Act. Système de loterie vidéo tenu et géré par la SLA 3 La SLA peut tenir et gérer un système de loterie vidéo conformément à l’accord prévu à l’alinéa 7d) de la Loi. [ 62 ] The Video Lottery Scheme Regulation defines a “video lottery scheme” as any gaming that uses video gaming devices (albeit with minor variation from the 1990 Regulation ): 2 The following

definitions apply in this Regulation . […] “ video lottery scheme ” means any lottery scheme authorized under the Criminal Code (Canada) that utilizes video gaming devices. [Emphasis added.] 2 Les définitions qui suivent s’appliquent au présent règlement . […] « système de loterie vidéo »

Système de loterie autorisé par le Code criminel (Canada) qui utilise des appareils de jeux vidéo. […] [Les caractères gras et le soulignement sont de moi.] [ 63 ] Additionally, the Video Lottery Scheme Regulation sets out the parameters of a video lottery scheme managed by the ALC, including the characteristics and limits on the video gaming devices used. This includes, for example, prescribing the number of video gaming devices that may be placed in the province, in a single location and in a “casino market area.” [ 64 ]

Section 7 of the Video Lottery Scheme Regulation provides that “the ALC may approve a video gaming device offered to it for use in a video lottery scheme if it is satisfied the video gaming device,” for example, meets the requirements of

section 6 of the Regulation , only plays the type of games approved by the Gaming Corporation; can be integrated with the ALC’s system; and has been acquired through approved or reputable manufacturers or distributors.

Section 6 requires the ALC “ensure that a video gaming device used in a video lottery scheme has” certain characteristics, including being “ programmed to award as prizes not less than 80% and not more than 96% of the credits wagered” (emphasis added); requiring all money accepted be divided into credits denominated in values of 5 cents, 10 cents and 25 cents; limiting the loss at any one time to $2.50; and not permitting a prize for any one game to be greater than $2,500.

[ 65 ] In some provisions of the Video Lottery Scheme Regulation , “video gaming devices” is used to refer to devices managed by the ALC. However, in other provisions, “video gaming devices” is used to describe devices that are not approved by the ALC or do not meet the requirements of the Video Lottery Scheme Regulation . [ 66 ] The Casino Regulation does not use the term “video gaming devices.” It uses and defines “gaming equipment.” The Casino Regulation also defines the more specific “electronic gaming equipment.” These terms are defined as follows: “gaming equipment” means equipment that (

a) could influence the outcome of a game of chance that is held in a casino, or (

b) is integral to the conduct, management or operation of a game of chance described in paragraph (a). “electronic gaming equipment” means equipment for the playing of lottery schemes on or through computers or video devices . [Emphasis added.] « appareil de jeu » Appareil et tout autre matériel de jeu qui :

a) ou bien pourrait influencer le résultat d’un jeu de hasard tenu dans un casino;

b) ou bien constitue une

partie intégrante de la tenue, de la gestion ou de l’exploitation du jeu de hasard visé à l’alinéa a). « appareil de jeu électronique » Appareil servant à participer à une loterie au moyen d’un ordinateur ou d’un dispositif vidéo . [Les caractères gras et le soulignement sont de moi.] [ 67 ] It is apparent that, on a plain reading, “electronic gaming equipment” includes “video devices” used for gaming. [ 68 ] The record is not entirely clear respecting the type of gaming offered at the casino on Madawaska’s reserve, and no doubt it may vary from time to time.

As an indication of the gaming that may occur, I would note the agreement between the Gaming Corporation and the operator of the casino defines “casino games” as including “video lottery terminals;” however, it also expressly excludes any “video lottery terminals operated” by the ALC.

Undoubtedly, this represents a level of precision that does not exist in the Act or the Regulations : “Casino Games” means all authorized electronic gaming devices located within the Facility and includes reel-type slot machines, video lottery terminals and multi-station electronic tables such as black jack and roulette, but shall not include video lottery terminals operated and managed on behalf of the Province of New Brunswick by the Atlantic Lottery Corporation nor live table games conducted against the house without the express written consent of Sonco and NBLGC[.] [Emphasis added.] [ 69 ] I pause to note that the agreement between the Gaming Corporation and the operator of the casino was in issue before the application judge.

The Appellants submitted it had a bearing on the

interpretation of s. 24(5)(

b) since, as they argued, it provides that the Gaming Corporation is not responsible for paying any portion of the casino’s “Gross Gaming Revenue” to Madawaska. The judge rejected this contention because Madawaska is not a signatory to that agreement, and even if it were, he doubted it could modify the Gaming Corporation’s statutory obligation under s. 24(5)(b).

This was not raised as an issue before us, presumably because the application judge’s reasoning is sound. [ 70 ] The common reference to “video lottery terminals” is also reflected in a letter from the Deputy Minister of Finance, dated July 21, 2015, notifying Madawaska of an overpayment made to it under s. 24(5)(b). In doing so, the Deputy Minister describes the profit-sharing arrangement under that provision: I am writing to you with respect to your gaming revenue sharing arrangements with the Province of New Brunswick and the

discovery of accounting errors that have led to an overpayment of video lottery gaming revenue to First Nations under the agreements. The purpose of this letter is to provide you with some background information as well as to offer to meet with you to answer any questions that you may have regarding the calculations. As you are aware, pursuant to Section 24(5) b of the Gaming Control Act , the Province shares 95% of the net profits from Video Lottery Terminals (VLTs) on reserve with your first nation .

Each month, the Atlantic Lottery Corporation (ALC) provides a monthly profit report to the Province of New Brunswick. The report details the operating revenues and expenditures of the video lottery program, as well as the Province’s net profit on terminals located in First Nations’ communities. The Province uses the report to calculate monthly profit remittances to the bands as provided for under the Gaming Control Act . [Emphasis added.] [ 71 ] This letter also reflects how the Province and the Gaming Corporation seemingly act in unison or interchangeably.

This is similarly reflected in the Gaming Corporation’s communications to Madawaska in response to its request for a share of the profit from the devices at the casino. [ 72 ] Based on the overpayment issue (raised in the letter of July 2015) being addressed through the use of the arbitration provision under Madawaska’s agreement with the Province, Madawaska highlights that its request to use the arbitration provision to determine the disagreement over the meaning of “video gaming device” in s. 24(5)(b), was not without precedent, nor is it an unexpected or unreasonable request.

(7) The application judge’s review of the Gaming Corporation’s

interpretation [ 73 ] The reasons offered by the Gaming Corporation for denying Madawaska’s request were not expansive. They indicate that its

interpretation is solely based on the words “video gaming devices” being used in the Video Lottery Scheme Regulation , but not in the Casino Regulation . No other basis for its conclusion was given. [ 74 ] Similarly, in submitting that the application judge erred, the Appellants contend he failed to properly recognize the importance of the Video Lottery Scheme Regulation and the Casino Regulation to the

interpretation of “video gaming devices” in s. 24(5) (b); they emphasize that this regulatory scheme, which distinguishes between casino and other gaming, is fundamental to a proper interpretative analysis. Indeed, the Appellants maintain it plays a near determinative role in evidencing a legislative intention for “video gaming devices” to include only devices that are operated by the ALC under the Video Lottery Scheme Regulation – and to exclude such devices when used in casinos. In essence, the Appellants contend “video gaming devices” is defined by the Video Lottery Scheme Regulation . [ 75 ] Although the regulations play an important

part in the scheme of the Gaming Control Act , in my opinion, the interpretative analysis used by the Gaming Corporation to reach its decision, and advanced by the Appellants before us, omits other important aspects of the required analysis. First, the Gaming Corporation’s

interpretation fails to give any meaningful consideration to the plain meaning of the words, in the context of the legislation as a whole, and there is no recognition of the words’ or the provision’s legislative history.

It also excludes any consideration of the context that derives from the agreement (with a First Nation) that is a statutory condition precedent to the profit-sharing under the provision being interpreted. [ 76 ] Second, the application judge’s interpretative analysis is sound; it is grounded in the plain meaning of the words, read in the context of the provision itself and viewed against the legislative framework, including the regulations. [ 77 ] Third, the application judge’s analysis is fortified by the legislative use of “video gaming devices” in both: (1) the 1990 amendment to the Lotteries Act that permitted the operation and regulation of video lottery terminals in the province under the Video Lottery Scheme Regulation ; and (2) the 1996 amendment, which added the profit-sharing provision that is now s. 24(5)(b).

When the Legislature saw fit to regulate the use of video lottery terminals in 1990, it was decided to do so by using “video gaming devices” in both the Act and in the Video Lottery Scheme Regulation . It is not disputed that “video gaming devices” includes video lottery terminals. Also, the Video Lottery Scheme Regulation of 1990 recognized the existence of “video gaming devices” or video lottery terminals that did not satisfy the ownership requirements or other conditions under the regulation. The words of the Act merely describe a type of device.

The Regulation imposes conditions and requirements that permit such devices to be used under the scheme created by the Regulation . Further, at that time, and in 1996, there was no provision for casinos upon which to base the interpretative approach relied upon so heavily by the Appellants.

[ 78 ] While there are good reasons to regulate and administer casinos separately from the more retail-like and community-accessible video lottery scheme operated by the ALC under the Video Lottery Scheme Regulation , it is another thing to suggest, as the Appellants contend, that the legislative intent of the enactment of the Gaming Control Act in 2008 was to change, by narrowing or restricting through regulation, the meaning of “video gaming devices” in a provision that had been adopted from the Lotteries Act in substantially its original form. Indeed, in this regard, the Appellants effectively submit that, without any material change to the provision after 1996, s. 24(5)(

b) should be read as though it provided, after 2008: video gaming devices that are part of a video lottery scheme operated by the ALC under the Video Lottery Scheme Regulation . [ 79 ] Lastly, even from a reading of the Video Lottery Scheme Regulation filed in 2008, it is apparent “video gaming devices” is used in a manner that includes devices that have not been modified, programmed, or otherwise configured in a way that satisfies the requirement of the Regulation for use in its video lottery scheme. [ 80 ] For these reasons, it is my opinion that the application judge properly applied the correct standard of review in concluding the Gaming Corporation’s

interpretation and decision was unreasonable. B. Did the application judge err in deciding Madawaska’s application was commenced in time? [ 81 ] In my vie w, the application judge did not err in deciding Madawaska’s application was commenced in time.

His determination turned on the Gaming Corporation’s undertaking to consider Madawaska’s request to meet to discuss profit-sharing and, if necessary, dispute resolution by arbitration under their Self-Licensing Agreement, and his finding that it was reasonable for Madawaska to understand “there was a possibility the issue of profit sharing would be revisited.” [ 82 ] By letter dated October 7, 2019, Madawaska was advised its request for a sharing of profit from video gaming devices at the casino was denied.

The letter was from Ian Hollohan, which identified him as the “Director, Agency Relations and Policy,” Finance and Treasury Board and the “Secretary to the Board, New Brunswick Lotteries and Gaming Corporation.” It gave the following reasons for its conclusion regarding s. 24(5) (b): The Grey Rock Casino is a casino as per our agreement with the operator, as well as the Gaming Control Act and its associated regulation (i.e. the Casino Regulation ). The electronic gaming devices in the Grey Rock Casino are “electronic gaming equipment” as defined in the Casino Regulation .

As per the Video Lottery Scheme Regulation , “video gaming devices” are those used in a video lottery scheme conducted and managed on behalf of the province by the Atlantic Lottery Corporation (ALC) and have specific characteristics as laid out in that regulation . Section 24(5) (

b) of the Gaming Control Act contemplates and provides authorization to the NBLGC only for the sharing of profit from video gaming devices (those utilized in a video lottery scheme) on a band’s reserve, and not from electronic gaming equipment (utilized in a casino lottery scheme) . As such, no authorization exists under the Gaming Control Act for the NBLGC to share revenue received from the operation of the Grey Rock Casino with the Band. […] [Emphasis added.] [ 83 ] On October 8, 2019, Madawaska took issue with this

interpretation of s. 24(5)(

b) and, after setting out the basis for its

interpretation, it requested a meeting: Given the huge discrepancy between our

interpretations, I feel that we should have a face to face meeting with the appropriate people to discuss this further . Should discussion fail to result in a resolution, I would suggest we invoke

section 11 (Dispute Resolution Process) under the Gaming Agreement between the Province and the First Nation. […] [Emphasis added.] [ 84 ] On October 18, 2019, Mr. Hollohan advised by email that Madawaska’s request for a meeting to discuss the issue would be raised with the Board: As contact for the band, I just wanted to let you know we are bringing the request to meet and discuss this issue to the Board of the

NBLGC for consideration and direction . I don’t have a firm timeline yet as to when that will happen but I will let you know as soon as I do. Thanks and have a good weekend. [Emphasis added.] [ 85 ] On November 19, 2019, in response to an inquiry from Madawaska “on what the Board decided and when can we meet,” Mr. Hollohan replied: This item is on the agenda for our board meeting of December 5 th . I will let you know as soon as I do. [Emphasis added.] [ 86 ] On December 21, 2019, Mr.

Hollohan advised by email: After further analysis and advice from our legal counsel and consideration by the members of the Board of Directors of the NBLGC, our view on this matter is unchanged. As such, we do not feel it necessary to

schedule a meeting to further discuss the issue. [Emphasis added.] [ 87 ] This email did not expressly address Madawaska’s request to arbitrate, and it made a further request to meet “as per our gaming agreement concerning dispute resolution.” By letter dated January 15, 2020, Mr. Hollohan advised: This letter is in response to your email of December 31, 2019. I will reiterate that the Board of Directors of the NBLGC has given your request significant consideration and its position on the matter is clear and has been communicated to you. Furthermore, as is clearly laid out in

Section 8 of our gaming agreement, any decision to commence a dispute resolution process is contingent on the joint agreement of the parties . Any further communication you may have on this issue should be directed to the Office of the Attorney General. [ 88 ] While before the application judge the Appellants maintained that the Gaming Corporation only agreed to consider meeting to discuss the issue of arbitration, the judge rejected this assertion. He found, as Madawaska understood, the Gaming Corporation had agreed to consider meeting for the purpose of discussing: (1) the

interpretation of “video gaming devices;” and (2) the use of arbitration under its agreement with the Province if the disputed

interpretation could not be resolved by agreement. The judge found, from the affidavit evidence of the parties regarding their communications, that Madawaska was led to believe the Gaming Corporation would consider its request: In my view, the Gaming Corporation led Chief Bernard to believe that her request to meet and discuss the issue of profit-sharing would be raised with the Corporation's Board of Directors. Relying on this advice Madawaska acquiesced in bringing this application .

In the circumstances, it would be unfair to permit the Gaming Corporation to rely on the limitations period starting as of October 7. Instead Madawaska is permitted to rely on a limitation period commencing when it was notified that the promised meeting would not occur . This notification was received on January 15, 2020. Given the extension to limitation periods as a result of the COVID-19 pandemic, the application was brought within the prescribed time limit. Accordingly, the respondent's motion is dismissed. Although it is not necessary to dispose of this motion, Madawaska makes a compelling argument that Mr.

Hollohan’s representation of further consideration of “the issue” renders the October 7, 2019 decision conditional, not final, and therefore not judicially reviewable. Again, it is not necessary to decide that issue as I have disposed of this motion on the “reasonable expectations” issue. [Emphasis added; paras. 34-35] [ 89 ] The Appellants do not assert the judge made a palpable and overriding error in his assessment of this evidence.

In any event, he did not. [ 90 ] The crux of the issue before the application judge then centered on the effect of the Gaming Corporation’s undertaking that its Board would consider Madawaska’s request to meet to discuss profit-sharing and, if necessary, arbitration .

[ 91 ] In addition to the Appellants’ motion to dismiss (on the basis the decision was made on October 7, 2019), the application judge had before him Madawaska’s contention that: (1) the October 7 letter could not be viewed as final, in spite of its facial clarity, given the Gaming Corporation’s undertaking; and

(2) Madawaska’s legitimate expectation that the decision need not be viewed as final until the Gaming Corporation responded to its request. Lastly, there was Madawaska’s request for an order extending, if necessary, the three-month period under Rule 69.03. [ 92 ] The judge found Madawaska’s submission, that the October 7 letter was not final, to be persuasive when viewed in the context of the Gaming Corporations subsequent communications with Madawaska; however, he did not decide the issue on this basis.

Instead, he rejected the Appellants’ contention the letter should be the starting point for the three-month time period because he concluded the undertaking gave rise to a legitimate expectation that the decision need not be viewed as final until, at least, Madawaska’s request to meet was answered. [ 93 ] The Appellants maintain the judge erred by applying the doctrine of legitimate expectations and failing to explain how the requirements of the doctrine were met.

However, before us, the essence of the Appellants’ position is that the communications subsequent to the October 7 letter, including the Gaming Corporation’s undertaking, can have no bearing on the limitation issue, in any analysis, given the judge’s finding that the letter was clear on its face. [ 94 ] The Appellants cite reported decisions that address the characteristics of a clear, unambiguous, and unconditional decision; however, in support of its motion before the application judge and this Court, no authority could be provided for its contention that the undertaking made by the Gaming Corporation to take Madawaska’s requests to the board on December 5, 2019, were, at law, of no consequence to the limitation issue. [ 95 ] In my view, the uncontested factual determination made by the judge respecting the scope of the Gaming Corporation’s undertaking provided a basis for rejecting the Appellants’ contention that the October 7 letter was a final decision for the purpose of the three-month time-limit.

This is so regardless of whether it is based upon a legitimate expectation, as the judge concluded, or a determination that the decision communicated in the letter was not final in the sense that the Gaming Corporation made it subject to its undertaking to consider Madawaska’s request to meet regarding the two issues raised and advise of its response.

In either case, the result is the same. [ 96 ] Even accepting the Appellants’ contention that a legitimate expectation cannot arise independent of a discrete process before a decision maker, in this case, the process before the Gaming Corporation was the, admittedly minor, act of deciding Madawaska’s request to meet and advise of its decision. Ostensibly, this process included, as represented by the Gaming Corporation, having the Board consider the request at a meeting of the Board on December 5, 2019, and based on the conflicting

interpretation of s. 24(5)(

b) advanced by Madawaska with its written request to meet. I say ostensibly because there was some indication the Gaming Corporation did not take the matter to the Board, as it had represented it would and as it also suggested it had.

In any event, that is not material to this analysis. [ 97 ] The legitimate expectation that arose from this, as found by the judge, was the understanding that, at least until that process had run its course and an answer given to Madawaska, the decision was not final, in the limited sense that, depending on the answer to Madawaska’s request, either the decision could be reconsidered after hearing from Madawaska at the meeting or, alternatively the dispute could be resolved through the arbitration provision in their contract, and avoiding a need to challenge the decision by applying for judicial review or commencing some other proceeding to enforce the obligation to share profit .

As the judge also found, Madawaska reasonably relied on this expectation. Recall that only a few years earlier, the dispute between the Gaming Corporation and Madawaska (as well as other First Nations), over the calculation of expenses under s. 24(5) (b), was resolved through arbitration. [ 98 ] In assessing the circumstances, it must be acknowledged the decision/position communicated to Madawaska on October 7 was at the opposite end of the spectrum from more formal decisions that are, for example, made or issued by a tribunal.

The parties’ ongoing relationship meant they had regular, frequent, and, generally, informal communications regarding such matters.

Additionally, unlike with tribunals or other decision makers, where a statutory authority to reconsider a decision may be necessary, there was no suggestion that the Gaming Corporation lacked the authority or ability to change its position at any time. [ 99 ] Moreover, even if the doctrine of legitimate expectations was impermissibly engaged by the application judge, as the Appellants argue, in the circumstances of this case, the undertaking found by him represented enough of a resiling from the October 7 decision that it was or became conditional, if only to the extent that the Gaming Corporation had yet to determine whether it would engage with Madawaska in a reconsideration of its position regarding profit-sharing or have their dispute resolved under the arbitration provision of their contract, and make it clear to Madawaska the path to resolve their dispute required applying for judicial

review or commencing some other proceeding to enforce its claim. Indeed, the Gaming Corporation later advised that “after further analysis […] and consideration by the members of the Board,” it had decided that it was not willing to meet with Madawaska. Although not argued as such, the Gaming Corporation appears to have reconsidered its decision based on Madawaska’s written position on the

interpretation of s. 24(5)(b), albeit without hearing from Madawaska at the meeting that had been requested. [ 100 ] Further, even if the Appellants had established that the judge erred, this would not be sufficient to allow the appeal and dispose of the matter. Madawaska’s application for an extension of time under Rule 69.03 was not determined by the application judge. [ 101 ] While this Court has commented on the exceptionality of the circumstances that would warrant an extension of time under Rule 69.03, it has not had the opportunity to set out the criteria for doing so.

In view of the limited submissions made in this case, I do not propose to do so. Instead, I would assess Madawaska’s request for an extension by an analogous application of the factors considered when deciding a request for an extension of time to appeal. [ 102 ] It is clear from Madawaska’s prompt response to the October 7 letter that it had an intention to challenge the decision; it sought to engage the arbitration process if the issue could not be resolved at the requested meeting.

In other words, within the time for judicially reviewing the decision, Madawaska had the intention to do so. [ 103 ] Second, there is no suggestion of prejudice to the Gaming Corporation. Madawaska’s request for an extension was raised in its application and the Gaming Corporation had an opportunity to identify the prejudice, if any, and none has been identified. Further, I cannot contemplate any manner in which it would have been prejudiced, as contemplated when considering an extension of time. [ 104 ] Third, as to the reasons for the delay, they are rooted in the conduct of the decision maker.

The application judge found it was reasonable for Madawaska to view the Gaming Corporation’s undertaking as permitting it to not treat the decision as final, at least until it received a response to its request. I agree with this assessment. It is my view that such conduct by a decision-maker falls within the exceptional circumstances that form a justifiable basis for granting an extension of time.

In any event, even if the undertaking to consider Madawaska’s request was not as clear as has been found by the application judge, the ambiguity generated by the Gaming Corporation’s subsequent communication with Madawaska is such that it would be unjust to not consider this a sufficiently compelling reason for not having commenced the application while a decision from the Gaming Corporation on its request, which included the proposal of arbitration, was pending. [ 105 ] Fourth, in considering the merits of the challenge to the decision targeted by the judicial review application, this is indisputably a situation where there can be no suggestion that the review sought was frivolous or without merit, or that there was no arguable case.

This is evident, with the benefit of hindsight, from the disposition. [ 106 ] Considering all of this, if necessary, I would have extended the time for Madawaska to commence its application under Rule 69.03. [ 107 ] I would dismiss this ground of appeal. C.

Did the application judge err in remitting the matter and should this Court make the Order requested in Madawaska’s application for judicial review? [ 108 ] The Appellants maintain the judge erred in remitting the matter to the Gaming Corporation because he did so in a manner that deprived “the [Corporation] of its right to exercise [its residual statutory] discretion whether to share such profits under” s. 24(5) (b).

The judge stated: […] The matter is remitted back to the Gaming Corporation with a direction that it share gaming profits from the Grey Rock Casino with Madawaska in accordance with the provisions of s. 24(5)(

b) of the GCA and provided Madawaska meets the conditions thereof . [Emphasis added; para. 77]

[ 109 ] This direction is only unclear if, as the Appellants contend, the Gaming Corporation has a residual discretion whether to pay 95% of the net profit, even where: (1) there is an agreement between the Province and Madawaska; (2) the agreement is in good standing; and (3) the net income claimed from the casino on the reserve is from “video gaming devices.” These express statutory conditions to profit-sharing have all been met. The application judge found that “[t]he Province concede[d] that the 2017 Self-Licensing Agreement satisfies the first requirement”; and, more critically, “no breaches

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