BETWEEN:
MÉTIS NATIONAL COUNCIL OF WOMEN and SHEILA D. GENAILLE
(Applicants)
and
THE ATTORNEY GENERAL OF CANADA
(Respondent)
Heard at Ottawa, Ontario, on February 14, 2006.
Judgment delivered at Ottawa, Ontario, on February 20, 2006.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
MALONE J.A.
Docket: A-127-05
Citation: 2006 FCA 77
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
MÉTIS NATIONAL COUNCIL OF WOMEN and SHEILA D. GENAILLE
Appellants
(Applicants)
and
THE ATTORNEY GENERAL OF CANADA
Respondent
(Respondent)
REASONS FOR JUDGMENT
[1] This is an appeal of a Federal Court judgment (2005 FC 230) that dismissed with costs the appellants' challenge to the decision of the federal government not to permit the Métis National Council of Women (MNCW) to become a party to an agreement under a program created by Human Resources Development Canada (HRDC). The program in question is referred to in the record as "Post Pathways" because it was developed after the 1995 review of its predecessor program, called "Pathways to Success: Aboriginal Employment and Training Strategy". The principal purpose of both programs is labour market development for Aboriginal people.
[2] The Post Pathways program has been put into effect through three National Framework Agreements. Each National Framework Agreement has as a signatory an organization that HRDC considers to represent, at the national level, one of the three major Aboriginal groups. Those three organizations are the Assembly of First Nations (representing the First Nations), the Inuit Tapirisat of Canada (representing the Inuit), and the MétisNational Council (MNC) (representing the Métis).
[3] Each National Framework Agreement provides for the negotiation of labour market development funding with local or regional organizations. For ease of reference, I will use the term "Métis Pathway Agreement" to refer to both the National Framework Agreement with the MNC and the related agreements with local or regional Métis organizations.
[4] The MNCW is not a signatory to a MétisPathway Agreement, but it believes that it should be. The MNCW believes that the failure of the federal government to permit it to become a signatory to a Métis Pathway Agreement is a breach of the rights of Métis women under section 15 and section 28 of the Canadian Charter of Rights and Freedoms. Sections 15 and 28 of the Charter read as follows:
| 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
...
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. |
15. (1) La loi ne fait acception de personne et s'applique également B tous, et tous ont droit B la mLme protection et au mLme bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
[...]
28. Indépendamment des autres dispositions de la présente charte, les droits et libertés qui y sont mentionnés sont garantis également aux personnes des deux sexes. |
[5] The MNCW and three Métis women commenced an application for judicial review in the Federal Court seeking a number of remedies. By the time the application was heard in the Federal Court, there were only two applicants, the MNCW and Sheila Genaille. Ms. Genaille is a Métis woman with a long history of involvement in organizations dedicated to promoting the interests of Métis women. She is the president of the MNCW.
[6] The appellants asked the Federal Court for (1) a declaration that the failure of the federal government to include the MNCW as a signatory to a Métis Pathway Agreement violates sections 15 and 28 of the Charter, (2) a declaration that the failure of the federal government to provide equal funding for job creation and employment for Métis women under those agreements (as in effect from 1997 to 1999) violates sections 15 and section 28 of the Charter, (3) an order that the regional Métis Pathway Agreements be read so that funding and jobs and training provided under those agreements would be provided equally to men and women living in and outside of Métis communities, and (4) an order that the Métis Pathway Agreements be read so that MNCW is added as a signatory and is entitled to appoint a regional Métis woman representative on the administrative boards that deal with them.
[7] The relief sought could not be obtained unless the factual elements necessary to establish a Charter claim were proven on a balance of probabilities. The Charter rights that the appellants claim have been breached are rights that can be asserted only by or on behalf of an individual. However, it is part of the foundation of the appellants' case that the MNCW, through the various Métis women's organizations that comprise its membership, represents all or at least a substantial number of Métis women in Canada. The appellants also assert that MNCW has the capacity to ensure, if their application for judicial review were to succeed, that Métis women would obtain the advantages that are intended to flow from the Métis Pathway Agreements. The appellants say that those advantages, are being denied to Métis women because the present arrangements exclude the MNCW from participating in a Métis Pathway Agreement.
[8] Given the relief sought, the burden was on the appellants to adduce evidence that Métis women are being denied the benefit of the Pathways program under the present arrangements, and that the MNCW is sufficiently representative of Métis women that the alleged deficiency in the delivery of services to Métis women would be remedied by the relief sought. These are questions of fact that the judge was required to determine on the basis of the evidence presented. The principles of appellate review preclude this Court from interfering with those findings of fact in
the absence of palpable and overriding error. It follows that any finding of fact made by the judge must stand if it is reasonably supported by the evidence.
[9] As I understand the reasons of the judge, he made several findings of fact that, in combination, are fatal to the appellants' claim. He found insufficient evidence that Métis women are not properly represented by the MNC, or that Métis women have encountered difficulties in accessing programming or funding under the current arrangements. He was also not satisfied, on the evidence presented, that the MNCW enjoys substantial support among Métis women.
[10] After a careful review of the record and the arguments of counsel for the appellants, I am compelled to conclude that the judge's findings of fact were reasonably open to him, given the evidence before him. It follows that this appeal cannot succeed.
[11] The Crown has asked for costs of this appeal. The appellants have argued that they should not be liable for the costs in this Court or the Federal Court. The practice in both Courts is that costs normally follow the event. The record discloses no reason to depart from that practice in this case. I would dismiss this appeal with costs.
"K. Sharlow"
"I agree
Marshall Rothstein J.A.".
"I agree
B. Malone J.A.".
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-127-05
STYLE OF CAUSE: MétisNational Council of Women and Sheila D. Genaille v. The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 14, 2006
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
APPEARANCES:
| FOR THE APPELLANTS (APPLICANTS)
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| FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Kingston, Ontario |
FOR THE APPELLANTS (APPLICANTS)
|
|
Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT (RESPONDENT)
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