RHONDA KAQUITTS Applicant v. COUNCIL OF THE CHINIKI FIRST NATION, 2019 FC 498

Date: 20190418 Docket: T-2053-18 Citation: 2019 FC 498 Ottawa, Ontario, April 18, 2019 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: RHONDA KAQUITTS Applicant and COUNCIL OF THE CHINIKI FIRST NATION Respondent ORDER AND REASONS I. Overview [ 1 ] This Order and Reasons address two motions brought in writing under Rule 369 of the Federal Courts Rules , SOR/98-106 [the Rules ]. The first is a motion filed by the Applicant, seeking an extension of time to file affidavits in support of the within Application for Judicial Review [the Application].

The second motion was filed by the Respondent and seeks dismissal of the Application. [ 2 ] For the reasons that follow, the Respondent’s motion to dismiss the Application is dismissed, and the Applicant’s motion for an extension of time is granted. II. Background [ 3 ] The Applicant, Ms. Rhonda Kaquitts, is a member of the Chiniki First Nation. She resides in a house, referred to in this proceeding as " “House 5053,” " located on Chiniki First Nation reserve lands in the Province of Alberta.

The Respondent, the Council of the Chiniki First Nation [the Council], is the governing body of the Chiniki First Nation, which is one of three First Nations that make up the Stoney Nakoda First Nation in Alberta. [ 4 ] On November 29, 2018, Ms. Kaquitts filed a Notice of Application, commencing the Application, which seeks to set aside a November 8, 2018 decision by the Council to evict her from House 5053. That initiative resulted from Ms.

Kaquitts’ receipt on November 21, 2018, of a letter from the Council’s solicitors, dated November 8, 2018, which, inter alia , demanded that she vacate and remove all of her belongings from House 5053 by November 30, 2018. It appears that that this letter had been authorized by the Council in a Band Council Resolution dated November 16, 2018 [the BCR]. [ 5 ] On February 11, 2019, Ms. Kaquitts filed the first of the motions presently under consideration, seeking an extension of time to file supporting affidavits, which under Rule 306 were due 30 days after issuance of the Notice of Application.

On February 21, 2019, the Council filed its response to Ms. Kaquitts’ motion, advising that it was filing a motion to dismiss the Application and requesting that the Court consider both motions concurrently. The Council also advised that, if its motion is dismissed and the Application permitted to proceed, then the Council would consent to Ms.

Kaquitts’ motion for an extension of time, although requesting that its own deadline to file affidavits under Rule 307 in response to the Applicant’s affidavits (which have already been served upon the Respondent) run from the date the parties receive notice of the Court’s decision on both motions. [ 6 ] On February 21, 2019, the Council also filed its motion seeking to dismiss the Application, on two grounds: (

a) that the Court does not have jurisdiction over the Application; and (

b) that the Application was filed out of time pursuant to s 18.1(2) of the Federal Courts Act , RSC 1985, c F-7 . On March 6, 2019, Ms. Kaquitts filed written submissions and authorities in response to this motion, and on March 12, 2019, the Council filed written submissions and authorities in reply to that response. III. Issues [ 7 ] Because of the position the Council has taken on Ms. Kaquitts’ motion, consenting thereto if its own motion should fail, the outcome of Ms. Kaquitts’ motion turns entirely on the outcome of the Council’s motion to dismiss.

As such, the issues for the Court to decide are solely those raised by the Council’s motion. The Council frames those issues as follows: A . Does the Court have jurisdiction to review the November 18 BCR? B . Was this Application for Judicial Review filed in time?

[8] While the Council does not cite a particular Rule in support of its motion to dismiss the Application, I regard this as a motion underRule 221(1)(a), which allows the Court to strike a pleading on the ground that it discloses no reasonable cause of action. Also, whileneither party raised the jurisprudence applicable to the application of this Rule, I am conscious of the decision in David BullLaboratories (Can) Inc v Pharmacia Inc, [1995] 1 FCR 588 (CA) [David Bull], which held that, while the Court has the jurisdiction todismiss in a

summary way a motion (then the equivalent of what is now termed an application) which is so clearly improper as to bebereft of any possibility of success, such cases must be very exceptional. This is because applications are themselves

summaryproceedings, intended to be moved along to the hearing stage as quickly as possible (see also Rule 18.4(1), which is to the same effect),such that the proper way to contest an application which a respondent considers to be without merit is to raise such issues at the hearingof the application itself, rather than bringing a motion to strike. [9] In the course of the below analysis of the issues raised by the Council’s motion, I will return to other jurisprudence which hasconsidered David Bull.

In the meantime, guided by the principles explained above, I would reframe the issues for the Court’sconsideration as follows: A. Should the Court dismiss the Application on the basis that it does not have jurisdiction to judicially review the decision challengedtherein? B. Should the Court dismiss the Application on the basis that it was not filed in time? IV. Analysis A.

Should the Court dismiss the Application on the basis that it does not havejurisdiction to judicially review the decision challenged therein? [10] Notwithstanding the principles explained in David Bull, I read subsequent case law as supporting the conclusion that it may beappropriate for the Court to a grant a motion to strike an application for judicial review, where the motion raises an issue such as theCourt’s jurisdiction, which strikes at the root of the Court’s power to entertain the application (see Canada (National Revenue) v JPMorgan Asset Management (Canada) Inc, 2013 FCA 250 at para 47).

Also, while Rule 221(2) provides that no evidence shall be heardon a motion for an order under Rule 221(1)(a), Mil Davie Inc v Hibernia Management & Development Co (1998), (FCA), 226 NR 369 (Fed CA) held at paragraph 8 that this prohibition does not apply to a motion to strike based on want of jurisdiction,as the Court must be satisfied that there are facts or allegations of facts supporting an attribution of jurisdiction. As such, I find itappropriate to consider the Council’s arguments that the Court is without jurisdiction to entertain Ms.

Kaquitts’ Application, as well asthe evidence that the parties have filed in this motion in support of their respective positions on that issue. [11] Ms. Kaquitts seeks to invoke the Court’s jurisdiction under s 18(1) of the Federal Courts Act, affording it exclusive originaljurisdiction surrounding judicial review of the decision of any "“federal board, commission or other tribunal.”" As explained in Vollant vSioui, 2006 FC 487 at para 25, the case law is replete with authorities holding that a band council is, for purposes of s 18 of the FederalCourts Act, a federal board, commission or other tribunal.

I do not understand the Council to be taking issue with that particularproposition. Rather, the Council takes the position that the decision impugned in the Application is of a private nature and is thereforenot the sort of decision which is subject to challenge under s 18.

That is, the Council argues that it is not a federal board, commission orother tribunal when conducting itself in relation to private contractual matters. [12] In support of its position, the Council refers the Court to the decision of the Federal Court of Appeal in Air Canada v Toronto PortAuthority, 2011 FCA 347 [Air Canada] at paras 50-53, which confirmed that not all conduct of a federal board, commission or othertribunal is amenable to review under the Federal Courts Act, with the determination turning on whether the conduct in question is bestcharacterized as having been public or private in nature.

Air Canada explained the distinction as follows at paragraph 52: 52 Every significant federal tribunal has public powers of decision-making. But alongside these are express or impliedpowers to act in certain private ways, such as renting and managing premises, hiring support staff, and so on. In a technicalsense, each of these powers finds its ultimate source in a federal statute. But, as the governing cases cited belowdemonstrate, many exercises of those powers cannot be reviewable.

For example, suppose that a well-known federal tribunalterminates its contract with a company to supply janitorial services for its premises. In doing so, it is not exercising a powercentral to the administrative mandate given to it by Parliament. Rather, it is acting like any other business. The tribunal’spower in that case is best characterized as a private power, not a public power.

Absent some exceptional circumstances, thejanitorial company’s recourse lies in an action for breach of contract, not an application for judicial review of the tribunal’sdecision to terminate the contract. [13] The Council also relies on Cairns v Farm Credit Corp, (FC), [1992] 2 FC 115 at paras 16-17, which identifiedthe importance of weighing the particular circumstances in which the decision-making body is acting. [14] The Council characterizes the decision which Ms. Kaquitts challenges as the decision, reflected in the BCR, to engage legal counselto enforce the Council’s rights.

It submits that this decision is akin to hiring an employee, citing Air Canada as authority that such adecision is private and not reviewable. By way of background to that position, it refers to affidavit evidence provided by Ms. Kaquitts,which attaches copies of correspondence from the Council to Ms. Kaquitts and her family in November and December of 2008, statingthat the current occupants must move from House 5053. Based thereon, the Council submits that the decision to evict Ms.

Kaquitts was made in 2008 and that the BCR represents simply a decision to hire legal counsel to enforce the 2008 decision. [15] In response to the Council’s position that the decision she is challenging is a private matter, Ms. Kaquitts relies on the recentdecision by Chief Justice Crampton in Jimmie v Council of the Squiala First Nation, 2018 FC 190 [Jimmie], which also involved anapplication for judicial review of a band council’s attempt to evict a band member from residential premises. As in the present case, the

respondent in Jimmie argued that the eviction was of a private nature, as the council was enforcing its private law rights as a property owner and landlord, and was not subject to judicial review. The Court disagreed with this position, finding at paragraphs 70-71 that the council’s decision to evict the applicant from the house in which she had lived for many years represented the exercise of a public law power.

In reaching that conclusion, the Court analyzed the following eight factors derived from Air Canada to be considered in assessing whether a challenged decision was public or private in nature: A . the character of the matter for which review is sought; B . the nature of the decision-maker and its responsibilities; C . the extent to which a decision is founded in and shaped by law as opposed to private discretion; D . the body’s relationship to other statutory schemes or other parts of government; E . the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity; F . the suitability of public law remedies; G . the existence of compulsory power; and H . an " “exceptional” " category of cases where the conduct has attained a serious public dimension. [ 16 ] In its reply to Ms.

Kaquitts’ submissions relying on Jimmie , the Council raised no arguments in an effort to distinguish Jimmie from the circumstances of the present case.

In my view, the circumstances are sufficiently similar that it is not necessary to canvass in detail again each of the factors that the Court comprehensively addressed in Jimmie , other than to consider whether there are distinguishing features between the two cases that could warrant a different decision. [ 17 ] In that respect, I note that, in considering the character of the matter for which review is sought, the Court in Jimmie considered the fact that the band council resolution made explicit reference to the council’s obligation to all band members to manage land and housing in a fair manner and in the best interests of the band.

Also, the letter communicating the eviction decision to the applicant stated that the house was on band-owned land and was not subject to a Certificate of Possession (a document contemplated by s 20 of the Indian Act , RSC 1985, c I-5 to evidence an individual’s right to possess land in a reserve). The BCR in the present case does not make similar express reference to the principles underlying the Council’s management of the lands under its administration. However, the BCR confirmed Council’s approval of the November 8, 2018 letter from its lawyers to Ms.

Kaquitts, which letter refers to the fact that she does not hold a Certificate of Possession, Certificate of Occupation, or an allotment under the Indian Act . Moreover, I see no difference between the character of the matter under consideration in Jimmie and the present case.

Both involve the exercise by a band council of its authority to manage land and housing under its administration in the interests of its membership, i.e. for a public purpose. [ 18 ] I acknowledge the Council’s argument that the impugned decision should be characterized as a decision to retain legal counsel rather than a decision to evict Ms. Kaquitts. In my view, and as I note further below in connection with the Council’s timeliness argument, the precise relationship between the events of 2008 and the events of 2018 are better left to be addressed at the hearing of this Application.

However, for purposes of the Council’s jurisdictional argument, I consider the decision reflected in the BCR and implemented in subsequent communication with Ms. Kaquitts to be sufficiently related to the Council’s mandate, to manage the land and housing interests of its membership, for the character of the decision to favour a finding that it was made for a public purpose.

It would be disregarding the true character of the decision to characterize it as just a decision to retain counsel, as opposed to a decision in connection with the eviction of one of the First Nation’s members. [ 19 ] In considering the nature of the decision-maker and its responsibilities, the extent to which the decision is founded in and shaped by law as opposed to private discretion, and the decision-maker’s relationship to other statutory schemes or other parts of government, Jimmie relied substantially on the Squiala First Nation Land Code and the First Nations Land Management Act , SC 1999, c 24 [ FNLMA ], the provisions of which contemplate adoption of such a code in order to set out rules and procedures for administration of land in a reserve of a First Nation.

The Court noted that the Squiala First Nation Land Code referred to its application to land in which all members of the First Nation have a common interest. [ 20 ] In the present case, there is no evidence of a similar Land Code having been adopted by the Chiniki First Nation or argument surrounding application of the FNLMA .

However, the evidence presented by the Council in support of this motion includes the affidavit of its CEO, Brian Evans, which explains that, in accordance with Chiniki Tribal Custom and Tradition, the Chiniki Chief and Council allocate and terminate all housing in regard to the Chiniki First Nation members.

As in Jimmie , I consider the eviction decision to have been taken by Council in furtherance of its mandate to manage the First Nation’s lands and the housing needs of its members, which mandate has an important public dimension. [ 21 ] Also, the Council’s submissions to the Court in support of its motion rely on s 20(1) of the Indian Act , which precludes lawful possession of land in a reserve other than as allocated by the council of the band, with the approval of the Minister. As such, the Council clearly relies on authority founded in law in support of the decision to evict Ms. Kaquitts.

Both that factor and the Council’s resulting relationship to statutory or governmental authority favour the same conclusion as in Jimmie . [ 22 ] In my view, the comments in Jimmie on the remaining four factors apply equally to the case at hand. Taking into account all the factors, I see no reason to arrive at a decision different from that in Jimmie . My conclusion is that the decision being challenged in the present case represents the exercise of a public law power, over which the Court has jurisdiction. B. Should the Court dismiss the Application on the basis that it was not filed in time?

[23] The Council’s position surrounding the timeliness of Ms. Kaquitts’ filing of the Application depends on its argument that thedecision that is really being challenged is the 2008 decision to evict Ms. Kaquitts. Council submits that, given the requirement in s18.1(2) of the Federal Courts Act that an application for judicial review must be made within 30 days after the time the decision wasfirst communicated to the party affected by it, Ms. Kaquitts is at least 10 years out of time to challenge the decision. [24] In response, Ms.

Kaquitts argues principally that, if it is the Council’s position that the decision in question was made in December2008, then the Council is prevented from taking any legal steps to enforce its decision either due to the effect of the Limitations Act, RSAc L-12 or due to the effect of the equitable doctrine of estoppel by conduct.

The Council’s reply relates principally to the doctrine ofestoppel, arguing that to employ that principle to create a right of possession in reserve land would be inconsistent with s 20 of the IndianAct. [25] Returning to the jurisprudence considering the principles explained in David Bull, I note that John McKellar Charitable Foundationv Canada (Customs & Revenue Agency), 2006 FC 733 considered those principles in the context of a motion to strike an application forjudicial review on the same basis as asserted by the Council, i.e. that it was not brought within the 30 day time period contemplated by s18.1(2) of the Federal Courts Act.

In dismissing the motion, Justice Barnes held as follows at paragraph 16: 16 The question remains as to whether I should dismiss the underlying application because of the ostensible failure byMcKellar to comply with the 30 day filing requirement or to obtain an extension pursuant to

section 18.1 (2). On this issue, Iam assisted by the thoughtful decision by Madam Justice Eleanor Dawson in Hamilton-Wentworth (Regional Municipality)v. Canada (Minister of the Environment), (FC), [2000] F.C.J. No. 440 (Fed. T.D.).

There MadamJustice Dawson carefully considered the David Bull decision in the context of the same filing deadline applicable to this caseand held at paragraphs 39 and 40: I note that even in actions where, as the Court of Appeal noted in David Bull Laboratories, supra, striking out ismuch more feasible, a limitation defence is not sufficient ground to strike out a statement of claim, but rather isa defence to be raised in a statement of defence.

By analogy, where a proceeding is commenced by application,any issue of application of a time bar ought, in the usual case, to be argued at the hearing of the application, andnot on a motion to strike. That is not to say that in no case could an application be struck for being commenced out of time, but it would,in my view, be only in an exceptional case.

I agree with Justice Dawson and I do not see anything about the circumstances of this case which would render itexceptional or justify a departure from the usual approach. [26] I similarly see nothing exceptional in the present case which would warrant a departure from the David Bull principles. As notedearlier in these Reasons, the precise relationship between the events of 2008 and the events of 2018 are better left to be addressed at thehearing of this Application. I therefore decline to rule on the Council’s argument that Ms.

Kaquitts has filed the Application out of time,other than to say that this is not an appropriate argument to advance in support of a motion to strike. V. Conclusion and Costs [27] The result is that the Council’s motion to dismiss the Application must itself be dismissed. I will therefore grant Ms. Kaquitts’motion for an extension of time to file her affidavits. [28] The Council claimed costs in its motion to dismiss. As it has failed in that motion, I award costs against it, in relation to that motiononly. No costs are awarded in Ms. Kaquitt’s motion for an extension of time.

ORDER IN T-2053-18 THIS COURT ORDERS that: 1. The Applicant’s motion for an extension of time to serve and file her supporting affidavits and documentary exhibits under Rule306 is granted, and such time is hereby extended to 5 days after the date of this Order. 2. The Respondent’s deadline to serve and file its supporting affidavits and documentary exhibits under Rule 307 shall run from thedate of this Order. 3. The Respondent’s motion to dismiss the Application is dismissed. 4. The Applicant is awarded costs in the Respondent’s motion to dismiss. 5.

No costs are awarded in the Applicant’s motion for an extension of time. “Richard F. Southcott” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-2053-18 STYLE OF CAUSE: RHONDA KAQUITTS V COUNCIL OF THE CHINIKI FIRST NATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO, PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: Southcott, J. DATED: april 18, 2019 WRITTEN REPRESENTATIONS BY : Andrew Wilson For The Applicant K. Colleen Verville For The Respondent SOLICITORS OF RECORD : Jensen Shawa Solomon Duguid Hawkes LLP Calgary, Alberta For The Respondent MLT Aikins LLP Edmonton, Alberta FOR THE RESPONDENT