BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER
OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Heard at Edmonton, Alberta, on November 25, 2008.
Judgment delivered from the Bench at Edmonton, Alberta, on November 25, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL J.A.
Docket: A-540-04
Citation: 2008 FCA 368
CORAM: LINDEN J.A.
RYER J.A.
TRUDEL J.A.
BETWEEN:
OCTAVIE CALLIHOO
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER
OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on November 25, 2008)
[1] This is an appeal from an order of Mr. Justice Hugessen, 2004 FC 1312, delivered from the Bench at Calgary, Alberta, on September 23, 2004, with Reasons for Order issued on September 24, 2004, finding that the Court had no jurisdiction to entertain an action in respect of the removal of the appellant’s name from the register as a status Indian by operation of subsection 17(6) of the Federal Courts Act, R.S.C. 1985, c. F-7 and section 14.3 of the Indian Act, R.S.C. 1985, c. I-5 and allowing the respondent’s motion for a summary judgment.
[2] The appellant was first registered as an Indian on December 23, 1988. On September 2, 1998, the registrar informed the appellant that her name would be deleted from the register because of the information that brought into question the Indian status of her paternal great grandfather: Appellant’s Memorandum at paragraphs 1-2; AB, Tab 5 at p. 26 at paragraph 7; Reasons at paragraphs 5-6.
[3] On December 1, 1998, the appellant’s son and a lawyer responded on her behalf indicating that the appellant should continue to be on the register. The parties have agreed that this letter did not constitute a protest.
[4] In February 1999, the registrar informed the appellant in writing that her name had been deleted from the register and also of her rights and avenues to protest the deletion. In March 1999, the appellant’s counsel informed the registrar of the appellant’s decision to protest the deletion, but no protest was filed: Reasons at paragraphs 7-8.
[5] Instead, on December 13, 2000, the appellant commenced an action in the Federal Court. In the original statement of claim, the appellant sought declaratory relief that paragraph 6(1)(a) of the Act was unconstitutional as it violated her rights under sections 15 and 28 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act (1982) (U.K.), 1982, c. 11.
[6] The Motions Judge concluded that the Federal Court had no jurisdiction to entertain the action. Because the action sought declaratory relief primarily for the purposes of declaring that the appellant was a status Indian and entitled to registration as such, the declarations that the applicable provisions of the Act were unconstitutional were “wholly consequential upon that primary purpose of the action”: Reasons at paragraphs 3-4.
[7] According to the Motions Judge, the Federal Court had no jurisdiction over declaratory relief sought for the following reasons:
11 In my view, Sections 14.2 and 14.3 of the Indian Act contain a complete code for the determination of questions of Indian status in a case such as this. It provides for a protest from the Registrar's decision. That protest is made to the Registrar who is then instructed to conduct an enquiry. Upon the Registrar deciding that protest there has created a Right of Appeal to the Provincial Superior Courts. That Right of Appeal is of critical importance.
12 First of all, in my view, it excludes this Court's jurisdiction in a case such as this. Earlier cases held that this Court could make declarations with respect to Indian status under the previous provisions of the Indian Act but it must be remembered that since that time the Federal Courts Act has been amended, and where this Court previously had exclusive jurisdiction with respect to certain actions against the federal Crown, that jurisdiction is now concurrent, and more importantly, is excluded in cases where jurisdiction is given to the provincial Superior Courts.
…
14 This is precisely such a case. Subsection 17(6) of the Federal Courts Act has the effect of removing this Court's jurisdiction in the circumstances envisaged by Sections 14.2 and 14.3 of the Indian Act. There is a complete code as I say of procedure laid down for protesting the Registrar's decision and making an alternate determination of a person's right to Indian status in the circumstances such as they obtained here: ibid. at paragraphs 11-14.
[8] Having found that the appellant did not follow the protest and appeal procedures set out in the Act, the Motions Judge dismissed the action. However, being of the opinion that the appellant was “a lady of considerable age and limited means,” he did not make an Order for costs: ibid. at paragraphs 16 and 18.
[9] The appellant is now appealing this Order to this Court.
Issues
[10] The main issue on this appeal is whether the Motions Judge erred with respect to jurisdiction of the Federal Court to entertain the appellant’s action. While the parties raise a number of other arguments, those arguments are corollary to the main issue before this Court.
[11] The essential requirements that must be present in order for the Federal Court to have jurisdiction are well-established and set out in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 [ITO International] at paragraph 11:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.
[12] Based on the ordinary meaning of the relevant provisions of the Act and of the Federal Courts Act, the Motions Judge correctly stated that subsection 17(6) of the Federal Courts Act had the effect of removing the Federal Court’s jurisdiction in the circumstances contemplated by sections 14.2 and 14.3 of the Act. The proper avenue for the appellant was to avail herself of the right to protest within a three-year limitation period prescribed by subsection 14.2(1) of the Act that ended in September 2001, and further, of a statutory right of appeal to the Alberta Court of Queen’s Bench pursuant to subsections 14.1(1) and (5) of the Act. Counsel for both parties have informed the Court that the appellant has now exercised that right and that those proceedings have been stayed pending a decision from the Registrar following the appellant’s request for registration as a status Indian under the Indian Act.
[13] We find that the appellant’s failure to satisfy the first requirement in ITO International, supra, is sufficient to dispose of the issue of jurisdiction and renders it unnecessary to address the second and third requirements of the test.
[14] This being said, the Motions Judge did not err in concluding that the appellant’s Charter claim was wholly consequential on her claim under the Act. The record of correspondence between the appellant’s solicitors and the registrar in December 1998 and March 1999 and the original statement of claim filed in the Federal Court clearly indicate that the appellant ultimately sought a declaration of entitlement to Indian status. Therefore, in raising the constitutionality of paragraph 6(1)(a) of the Act, she purports to seek this declaration indirectly: AB, Tab 4 at pp. 17-22 and Tab 9 at pp. 167-177.
[15] Finally, we find that in raising alternative grounds at paragraphs 71-96 of the Memorandum, the appellant purports to argue the merits of her claim under the Act and the Charter before this Court. Because these grounds were not considered by the Motions Judge, they will not be considered in this appeal.
[16] For these reasons, this appeal will be dismissed without costs as the Respondent does not seek its costs in any event of the cause: Respondent’s Memorandum at paragraph 48.
“Johanne Trudel”
______________________________
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-540-04
(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED SEPTEMBER 24, 2004 IN FEDERAL COURT FILE NO. T-2311-00)
STYLE OF CAUSE: OCTAVIE CALLIHOO v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: November 25, 2008
REASONS FOR JUDGMENT OF THE COURT BY: Linden, Ryer, Trudel JJ.A.
DELIVERED FROM THE BENCH BY: Trudel, J.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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FOR THE APPELLANT
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John H. Sims, Q.C., Deputy Attorney General of Canada - Ottawa, ON |
FOR THE RESPONDENT
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