Date: 20031203
Docket: T-685-02
Citation: 2003 FC 1417
BETWEEN:
YVELAINE MARIE MOSES
Applicant
and
HER MAJESTY THE QUEEN
Respondent
[1] There is substantial background to this successful motion to strike the judicial review application of Ms Moses by reason of mootness.
BACKGROUND
[2] In her 26 April 2002 application for judicial review, the application which was originally filed, Ms Moses, of the Lower Licola Indian Band of British Columbia, took exception to the fact that her illegitimate brother, a full brother, was registered as an Indian pursuant to section 6(1)(a) of the Indian Act (the "Act"), but that she had merely been granted registration pursuant to section 6.2 of the Act. Given Ms Moses' registration pursuant to section 6(2) of the Act, in contrast with her brother's section 6(1)(a) registration, she did not have a registration status which she could pass to her children. Ms Moses therefore sought a declaration that her registration breached sections 15 and 28 of the Canadian Chart of Rights and Freedoms.
[3] The initial motion to strike out the 26 April 2002 application was on the basis of want of jurisdiction. As I pointed out in the Reasons of 17 October 2002, the adding of Ms Moses' name to the register by the Registrar of the Department of Indian Affairs (the "Registrar"), pursuant to section 5(3) of the Act, did not constitute a decision, but merely the adding of a name to the register. There being no decision, there could be no judicial review by the Federal Court. In the result I struck out the substance of the 26 April 2002 judicial review application. However, so that Ms Moses would not be unduly prejudiced in her quest for treatment equal to that of her brother, I gave her the opportunity to seek, by way of a protest pursuant to section 14.2 of the Act, an investigation by the Registrar and a final decision. In that instance the Registrar offered to expedite the final decision. Here I would observe that the protest procedure set out in section 14.2 of the Act results, by subsection (7), in a decision of the Registrar which is final and conclusive, subject to any appeal. However, where the protest is with respect of the Indian register, such an appeal may only be made by the person lodging the protest, or that person's representative and that such an appeal, by section 14.3(1), must be made within six months. In the present instance the time for appeal has expired.
[4] To allow for the possibility that the Registrar would deny registration to Ms Moses, under one of the provisions of section 6(1) of the Act, thus denying inheritance of the registration, by her children, I provided that the 26 April 2002 application might be amended to reflect to eventual decision of the Registrar, thus putting the case of Ms Moses, in the sense a test case, but not a class proceeding, on a proper footing.
[5] In October 2002 Ms Moses protested the Registrar's preliminary determination and the section 6(2) designation, utilising the protest procedure under section 14.2 of the Act.
[6] Contrary to expectations which had been expressed by counsel for Ms Moses, the Registrar, at the conclusion of her section 14 investigation and consideration procedure, registered Ms Moses as an Indian pursuant to section 6(1)(f) of the Act on 7 May 2003. Section 6(1)(f) extends registration to an individual where both parents were or could have been registered as Indians. Indeed the Registrar appears to have granted registration on the basis that Ms Moses' mother would be entitled to registration as an Indian. Ms Moses' father was in fact registered as an Indian.
[7] In the result Ms Moses achieved a final decision confirming her registration as an Indian, a status which she will be able to pass down to her children. Here I would note, as set out in these Reasons, that the present registration of Ms Moses as an Indian, is in no way conditional on whether or not her mother ever in fact becomes a registered Indian.
[8] The next event was the filing of an amended application, as provided for in my 17 October 2002 Order, seeking a declaration that Ms Moses be entitled to registration as an Indian under section 6(1)(a) of the Act, rather than under section 6(1)(f). Both of these sections lead to registration with the same rights, but by a different approach. To expand, the approach taken by section 6(1)(a) provides a registration is extended to anyone who is registered or was entitled to be registered as an Indian immediately before 17 April 1985: Ms Moses' brother, as the illegitimate son of a registered Indian father, fell into this category, however it is a category which does not extend to an illegitimate daughter of an Indian father, or indeed of the same parents, as is the case in this instance. Section 6(1)(f) provides that a person is entitled to be registered if both parents are (or if deceased were) entitled to be registered as Indians. This is a situation found by the Registrar in the case of Ms Moses.
[9] In the amended application, dated 28 May 2003, Ms Moses still maintains that she has received a lesser class of registration than her full brother, leading to the sole objection that, should Ms Moses' mother not a registered or registerable as an Indian, the registration of Ms Moses might be reopened and her status revoked.
[10] In response, the Crown submits that affidavits of the Registrar and case law to establish that a registration, by way of a protest and determination under section 14 of the Act and subject to an appeal by Ms Moses herself, not a possibility in this instance as the period has run, is unassailable. However, before setting out some of the law relied upon I should consider the Court's approach in striking out judicial review applications.
CONSIDERATION
Striking Out an Application by Reason of Mootness
[11] The Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 cautioned against striking out a judicial review application exception in very exceptional circumstances. The case law, building on this concept, includes Garcia v. Canada (Minister of Justice) (1997), 129 F.T.R. 174 (F.C.T.D.), Bouchard v. Canada (Minister of National Defence) (1998), 158 F.T.R. 232 (F.C.T.D.) and Wheaton v. Canada Post Corp. (2000), 186 F.T.R. 108 (F.C.T.D.): generally these cases indicate that the exceptional circumstances test is met when a proceeding should be struck out to avoid wasting everyone's time. The exceptional circumstances test extends to instances in which the relief has become moot: see example Labbé v. Canada (The Lètourneau Commission) (1997) 128 F.T.R. 291 (F.C.T.D.); Narvey v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 1 (F.C.T.D.); Lee v. Canada (Minister of Citizenship and Immigration) (1997) 126 F.T.R. 229 (F.C.T.D.) and Pauktuutit, Iniut Women's Association v. Canada (2003), 229 F.T.R. 8 (F.C.T.D.). However to fall into the category of mootness, in a Charter situation, the test for mootness, as set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, by Mr Justice Sopinka at page 353, comes into play:
|
15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. |
The analysis required by Mr Justice Sopinka is in two steps:
|
16 The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. (loc.cit.) |
[12] Mr Justice Sopinka considered the reasoning behind the doctrine of mootness at pages 359 to 362 of Borowski (supra), concluding that there are three points to consider:
(i) the existence of an adversarial context;
(ii) judicial economy and the conservation of judicial resources; and
(iii) a need for the Court to demonstrate awareness of its proper function.
[13] There is a general policy, referred to in Borowski (supra), that the Court will decline to decide a case that raises hypothetical or abstract questions. This has a parallel in judicial review, for a court will not grant declaratory relief where the dispute is academic in the sense of a complete absence of any practical elements: see Pauktuutit (supra) at page 13. Here I would refer to Solosky v. The Queen, [1980] 1 S.C.R. 821 at 832, where Mr Justice Dickson noted two factors to consider in determining whether a controversy remained active enough that declaratory relief might be granted:
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The first factor is directed to the "reality of the dispute". It is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise. |
Justice Dickson then went on to observe that:
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... Once one accepts that the dispute is real and that the granting of judgment is discretionary, then the only further issue is whether the declaration is capable of having any practical effect in resolving the issues in the case. |
These concepts of examining the reality of the dispute and the practical effect, if any, of a declaration, should also be bounded by the caution, in constitutional matters, of deciding on only what is necessary in order to reach a resolution. Here I would refer first to Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 where Mr Justice Sopinka wrote, at page 111:
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This Court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues and the principle applies with even greater emphasis in circumstances in which the foundation upon which the proceedings were launched has ceased to exist. |
This is in line with an earlier comment by Mr Justice Estey in the Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 383:
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The development of the Charter, as it takes its place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken. ... |
Mr Justice Sopinka in Phillips (supra) also commented at page 113 that:
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This practice applies, a fortiori, when the substratum on which the case was based ceases to exist. The court is then required to opine on a hypothetical situation and not a real controversy. ... |
I set out the basis for this judicial caution in Pauktuutit (supra) at page 14:
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There is sound reason for not deciding issues which have ceased to exist or which may not come into existence in the foreseeable future: a policy which dictates restraint in constitutional cases is sound. It is based on the realisation that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. |
Mootness of the Present Issue
[14] The question I now turn to is whether the amended application of Ms Moses is clearly moot and ought not to proceed. As matters stand, the registration of Ms Moses by way of sections 14 and 6(1)(f) give her all her brother has except, submits counsel for Ms Moses, security. In the view of counsel the new registration could be revoked. Here I would observe that Ms Moses seek not to strike down the legislation, but rather some form of an individual remedy based on insecurity, based on the feeling that her registration as an Indian is in some way provisional or conditional.
[15] Certainly registration under section 6(1)(f) deals a fatal blow to any real and live controversy between the parties for, leaving aside the feeling of an insecure registration, Ms Moses could not gain more benefit were she be able to registered, for example, under section 6(1)(a).
[16] Counsel for the Crown submits and I agree that the matter has become hypothetical. Here counsel goes on to point out that even were the present Act amended to allow her to become registered under section 6(1)(a) Ms Moses' circumstances and benefits of registration will remain the same. Thus a decision by the Federal Court on this judicial review application would have no practical effect on the right Ms Moses enjoys, nor would such a decision provide her with additional benefits.
[17] At this point in the analysis it would be appropriate to consider the three points set out by Mr Justice Sopinka in Borowski (supra), the existence of an adversarial context, judicial economy and a need for the Court to demonstrate an awareness of its proper function. Dealing with the first point, the existence of an adversarial context, I have already observed that the substance of the registration which Ms Moses presently has would not change regardless of the outcome of the application. While there could be bystanders with some curiosity as to the constitutionality of section 6(1)(a) of the Act, as applied to individuals who might be in a situation similar to that which had bothered Ms Moses, she herself has no practical interest in the outcome. Moreover, as we shall see in a consideration of the permanency of the registration, there are no potential collateral consequences which might in some way provide the necessary adversarial context.
[18] The second consideration from Borowski (supra) is the efficient use of scarce judicial resources. Counsel for Ms Moses submits that the case is a simple one and would take the Court little time to dispose of the constitutional challenge. Counsel for the Crown takes a very different view, that to deal with the constitutional issues would take a vast number of documents and many days, for the Court would have to examine the entire Indian registration scheme and the changes to that scheme brought about by what was Bill-C 31, an act to amend the Indian Act. However these two diametrically opposed views, as to the amount of time such a consideration might take, miss the point. Any expenditure of judicial resources, which results in virtually no practical effect on the parties, should be avoided. Here I would pick up a point made by counsel for the Crown, that judicial review differs markedly from an action: unlike an action, whether the validity of a statute is challenged, there is no reason to exercise the discretion to hear a judicial review application where the dispute between the parties to and interested in the review is moot. To go further, to say that Ms Moses raises the general constitutionality of the Indian registration scheme as an issue of public importance, justifying the expenditure of scarce judicial resources, is to misunderstand the nature of her application, for Ms Moses seeks an individual remedy. Even taking the broadest possible approach, the declaration that Ms Moses seeks could only be of interest to other women in the same situation, that is a section 6(1)(f) registration under the Act, born illegitimately before 1985 to an Indian father, but even taking that approach, the declaration Ms Moses seeks would have no practical effect on that group of women.
[19] Much of this, and particularly the facts in the case of Ms Moses, have an interesting parallel in Lee (supra), a decision of Mr Justice Muldoon. In that instance the applicants sought to obtain certiorari, mandamus and declaratory relief in connection with the revocation of their immigrant visas by a visa officer in Hong Kong. However, before the matter was heard, the visas were re-issued. Thus the Court had to consider whether the judicial review sought by the applicants was moot, or whether the applicants were still entitled at least to declaratory relief, for such might be the case if the circumstances warranted. However all the circumstances considered, Mr Justice Muldoon dismissed the application, observing that:
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It is not the role of this court to decide purely abstract and academic questions, particularly when there is no obvious, useful purpose to be served by granting the declaratory relief sought by the applicants ...
(Page 223) |
and that:
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13 In spite of the applicants' argument that this is a "test case", both the absence of an adversarial context and the principle of judicial economy weigh against allowing these applications for judicial review to proceed when the underlying complaint of the applicants has been resolved in their favour.
(Page 234) |
Just as in Lee (supra), the underlying complaint of Ms Moses has been resolved in her favour and therefore, applying the facts of an absence of an adversarial context and of the need for judicial economy, the judicial review ought not to proceed, for on the cost and benefit analysis referred to by Mr Justice Sopinka, in Borowski (supra) at page 361 there is no real public interest which could overbalance the cost of deploying scare judicial resources.
[20] The third aspect, still dealing with the three points set out by Mr Justice Sopinka in Borowski (supra), is whether there is a "... need for the Court to demonstrate a measure of awareness of its proper law-making function." (page 362). In my view to pronounce a decision in the present instance, in the absence of a dispute having an effect on the rights of the parties, would be an intrusion into the role of the legislative branch of the government.
[21] The view that I have taken as to mootness, including as to the three considerations set out by Mr Justice Sopinka above, leaves no room for the exercise of a discretion to allow the matter to proceed. Such a proceeding would not have an appropriate adversarial context, would draw off, in a useless quest, scarce judicial resources and would pointlessly intrude on the role of the legislative branch of the government. However in the present instance this view does not necessarily end what I ought to consider.
Finality of the Decision
[22] There remains one point which bears on whether there ought to be a hearing of this case notwithstanding that it is by all tests a moot case. Counsel for Ms Moses expresses concern over the basis on which the Registrar reached her decision, that the mother of Ms Moses being entitled to registration as an Indian, Ms Moses fell into the category of those entitled to registration by virtue of section 6(1)(f): counsel expresses doubt that the mother of Ms Moses has any Indian ancestry.
[23] The short answer to this is that a decision of the Registrar, made pursuant to a protest under section 14 of the Act, which has not and indeed in this instance cannot now be appealed is, by section 14.2(7) of the Act, final and conclusive. Indeed, this is also the view of the Registrar as set out in her affidavit sworn 21 November 2003. The Registrar, in that affidavit, goes on to advise that "[t]he Registrar cannot and does not amend the registration of applicant once a registrar has made a final decision on a protest" (paragraph 8). The Registrar points out that where there has been an amendment or a revocation of registration in the past, that has only occurred where the Registrar has not made a final decision after a protest.
[24] This last comment leads to a case relied upon by counsel for the Applicant, Landry v. Canada 1996 118 F.T.R. 184, a decision of Mr Justice Nadon, as he then was. In Landry, the applicants asked the Court to prohibit the registrar from deleting their names from the Indian Register. The application for judicial review was dismissed because there was no decision of the registrar to review. That is because no protest under section 14.2 of the Act was involved. What in fact had occurred was a section 5.3 alteration to the register, that is the deletion of the name of a person not entitled to be registered, a preliminary step which could lead to a protest and a final decision under section 14 of the Act. Landry is of no assistance to the Applicant, to bolster the imagined spectre of deregistration, for there was no final decision in Landry which the Court might review. Mr Justice Nadon went on to point out that if the Registrar in fact deleted the names of the applicants, they might then protest under section 14.2 and following a decision on that protest the applicants could come to the Court. However at the point in time Mr Justice Nadon heard the matter the rights of the applicants were in no way affected. All of this is in contrast with the present situation in which a final decision, dealing with the rights of Ms Moses, has been made pursuant to section 14.2. The situation in Landry, where there was no final decision and the situation in the present instance, in which there has been a final and favourable decision, following a protest, are not comparable.
[25] Leaving aside that the present decision as to registration, by section 14.2(7) of the Act, is final and conclusive, there is also the application of the concept of functus officio once the Registrar has made a decision on a protest. By way of explanation, once an administrative tribunal has made a final decision in respect of a matter before it pursuant to its enabling statute, the decision cannot be re-visited by reason of a change of mind, an error within jurisdiction, or a change of circumstances: here see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at 861. There Mr Justice Sopinka, delivering the majority judgment, went on to say that an administrative tribunal can only re-open a matter if authorised by statute or where there had been a slip in drawing up a judgment or an error in expressing the manifested intention of the tribunal. Granted Mr Justice Sopinka went on, at page 862, to allow some flexibility in the application of the principle functus officio to administrative tribunals, but that any more relaxed approach, leading to re-opening a matter, was dependent upon implications in enabling statute that might allow the decision to be re-opened. Nor should the principle be applied slavishly where tribunal fails to dispose of issue, fairly raised n the proceeding and within the jurisdiction of the tribunal, for then the tribunal ought to be allowed to complete its statutory task: see page 862.
[26] In the present instance the Registrar had disposed of the issue which had been raised and had nothing further to do to complete her statutory task. Further, there is nothing in the enabling statute, the Indian Act, which would allow the Registrar to re-open the finding, by way of section 14 of the Act, that Ms Moses was in fact entitled to be registered as an Indian pursuant to section 6(1)(f) of the Act and was so registered.
CONCLUSION
[27] Counsel for Ms Moses has not convinced me of any reasons for or utility in the Court expending resources to review the decision of the Registrar, which final decision granted to Ms Moses the status and rights she sought. While Ms Moses obtained that status and those rights in a perhaps unexpected manner neither detracts from the mootness concept nor gives to the Court a reason to review the Registrar's decision.
[28] The application of Ms Moses is struck out, as moot, with costs to the Respondent.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
3 December 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-685-02
STYLE OF CAUSE: Yvelaine Marie Moses v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 26 November 2003
REASONS FOR ORDER: Hargrave P.
DATED: 3 December 2003
APPEARANCES:
Teressa Nahanee FOR APPLICANT
Craig Cameron FOR RESPONDENT
SOLICITORS OF RECORD:
Teressa Nahanee FOR APPLICANT
Barrister & Solicitor
Merritt, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia