Date: 20040924
Dockets: T-489-04/
T-539-04
Citation: 2004 FC 1313
T-489-04
BETWEEN:
NIPISIHKOPAHK EDUCATION AUTHORITY
of the SAMSON CREE NATION
Applicant
and
ATTORNEY GENERAL OF CANADA, DON ADAMSON,
SANDI BASSET, DENNIS CHERNICK, MAXIME CLAYBOURNE,
SHIRLEY DEEN and ROBERT A. SHARMA
Respondents
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
AND BETWEEN:
T-539-04
ERMINESKIN TRIBE, also known as ERMINESKIN TRIBAL
ENTERPRISES and ERMINESKIN BAND
Applicant
and
ATTORNEY GENERAL OF CANADA and
TAMMY FOUREYES
Respondents
- and -
CANADIAN HUMAN RIGHTS COMMISSION
REASONS FOR ORDER
(Delivered from the Bench at Calgary, Alberta, on September 24, 2004.)
HUGESSEN J.:
[1] In these two court files, each of the Applicant Indian Bands seeks judicial review of a decision by the Commission to refer complaints by eight individuals alleging discrimination under the Canadian Human Rights Act to the Canadian Human Rights Tribunal. Both the Applicants now seek a stay of the proceedings before the Tribunal.
[2] These reasons deal with both applications and will be filed in both files. It is conceded that both the Applicants raise a serious issue in their judicial review applications. Briefly, that issue is whether by virtue of Section 67 of the Canadian Human Rights Act or by the operation of treaty and the constitutionalization of treaty rights by virtue of Section 35 of the Constitution Act. The Applicants are not subject to the provisions of the Human Rights Act.
[3] That said and the question of serious issue having been resolved in favour of the Applicants I must move on to the other two parts of the Classic 3 Part Test which applies when a Court has to consider whether or not it should grant a stay.
[4] First, as to irreparable harm, the Applicants carry the burden of proof and there is no evidence in these files that the Applicants have suffered or will suffer any harm whatever from the proceedings before the Commission or the tribunal. Notably, the Applicants have not to date been ordered to do anything, let alone anything that they don't want to do, and they have not been ordered or restrained from doing anything that they think they have a right to do.
[5] They argue that they are not subject to the Human Rights Act and of the Tribunal. But that question has not yet been determined one way or the other. The Applicants have simply been given the opportunity to defend themselves and to argue their constitutional position before the tribunal which is a body competent to decide the question.
[6] That is no harm of any sort. If the Tribunal agrees with the Applicants the matter will end there. Even if the Tribunal disagrees and decides against them they still will not have suffered any harm whatever, unless and until, the tribunal after full enquiry issues an Order against the Applicants. That in my view will be time enough to decide if the Applicants' constitutional position and argument justifies seeking a stay of the Tribunal's final Order.
[7] Turning now to the final question namely, the balance of convenience, I do not agree that the fact that the two Applicant Bands count some 10,000 members whereas the complainants number only eight is a consideration of any relevance whatsoever.
[8] In fact as I have said, to date, the Applicants have suffered and will suffer no more inconvenience than the relatively minor one of having an opportunity to litigate their position before a competent body. Something I would add parenthetically which they have already been doing on the evidence for at least five years with the result that the proceedings in the human rights complaint have been held up.
[9] On the other hand the complainants have already been forced to see their complaints delayed for that same five-year period and time is moving on. Any enquiry by the Tribunal will become less effective as the time between the events complained of and the holding of the enquiry lengthens. That's a truism. Justice delayed is justice denied. And the complainants have had a serious inconvenience imposed on them by having their hearing postponed almost indefinitely.
[10] There is also, and this is an aspect of what I have just said, an important public interest to be served and to be protected in having complaints before the Tribunal dealt with expeditiously.
[11] That interest as I have already indicated has certainly not been notably respected here.
[12] I conclude that the applicants fail on the second and third branches of the test and the motions for stay in each file must be dismissed.
[13] On the matter of costs, I do not think it proper to order costs in the present case in favour of the Tribunal or the Commission but I do think that the individual complainants who sought and obtained party status in this Court because the Applicants had not included them in their original applications and whom made what I say with respect was a useful contribution to the debate in this Court should be allowed and order for costs. And I will order that in the NEA file the Applicant pay to the individual complainant/Respondents collectively the sum of $3,000.00 payable forthwith and in any event of the cause.
"James K. Hugessen"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS T-489-04, T-539-04
STYLES OF CAUSE: T-489-04
Nipisihkopahk Education Authority of the Samson Cree
Nation
Applicant
and
Attorney General of Canada and Others
Respondents
and
Canadian Human Rights Commission
Intervener
T-539-04
Ermineskin Tribe et al
Applicant
and
Attorney General of Canada and Tammy Foureyes
Respondents
and
Canadian Human Rights Commission
Intervener
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: September 24, 2004,
- 2 -
REASONS FOR ORDER: HUGESSESEN J.
APPEARANCES:
Ms. Priscilla Kennedy FOR APPLICANT
Ms. Tanya Knobloch
FOR RESPONDENT
(AGC)
Ms. Katrina Haymond FOR OTHER RESPONDENTS
Ms. Ritu Khullar FOR INTERVENER
SOLICITORS OF RECORD:
Parlee McLaws LLP
Edmonton, Alberta FOR APPLICANT
Morris Rosenberg FOR
Deputy Attorney General of RESPONDENT
Canada (AGC)
Field LLP FOR OTHER
Edmonton, Alberta RESPONDENTS
Chivers Carpenter FOR
Edmonton, Alberta INTERVENER