Date: 20150324
Docket: A-307-14
Citation: 2015 FCA 82
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CORAM: |
PELLETIER J.A. WEBB J.A. BOIVIN J.A. |
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BETWEEN: |
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CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, and CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE |
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Appellants |
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and |
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ATTORNEY GENERAL OF CANADA |
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Respondent |
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Heard at Ottawa, Ontario, on March 24, 2015.
Judgment delivered from the Bench at Ottawa, Ontario, on March 24, 2015.
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REASONS FOR JUDGMENT OF THE COURT BY: |
PELLETIER J.A. |
Date: 20150324
Docket: A-307-14
Citation: 2015 FCA 82
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CORAM: |
PELLETIER J.A. WEBB J.A. BOIVIN J.A.
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BETWEEN: |
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CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, and CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE |
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Appellants |
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and |
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ATTORNEY GENERAL OF CANADA |
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Respondent |
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on March 24, 2015).
PELLETIER J.A.
[1] We are all of the view that this appeal should be dismissed.
[2] It is common ground that the standard of review of the Commission’s decision is reasonableness. The Commission concluded that the appellants had not shown that the differential treatment of which they complained was as a result of discrimination on a prohibited ground. We are agreed that this conclusion is reasonable for the following reasons.
[3] Even if we assume that the PwC study demonstrates that the appellant First Nations are subject to differential treatment, the evidence only shows that the “special characteristic” (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536 at paragraph 19) of the appellants which gives rise to this differential treatment is their size relative to other First Nations in Ontario. Size is not a prohibited ground of discrimination.
[4] The Commission did not have before it evidence which would allow it to find that the size of a First Nation was in some way a proxy for the national or ethnic character of that First Nation.
[5] In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, for example, it was the evidence of the difference in the aerobic capacity between men and women which allowed the tribunal to make the link between an apparently neutral rule and systemic gender based discrimination. In this case, recognizing that we are at the Commission and not at the Tribunal stage, the appellants have not pointed to any facts or any line of reasoning which would allow the Commission to make a link between band size and national or ethnic origin.
[6] As a result, the Commission’s decision that any differential treatment was not based on national or ethnic origin was reasonable.
[7] The appeal will therefore be dismissed with costs.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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Docket: |
A-307-14 |
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STYLE OF CAUSE: |
CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, AND CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE v. ATTORNEY GENERAL OF CANADA |
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PLACE OF HEARING: |
Ottawa, Ontario |
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DATE OF HEARING: |
March 24, 2015 |
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REASONS FOR JUDGMENT OF THE COURT BY: |
PELLETIER J.A. WEBB J.A. BOIVIN J.A.
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DELIVERED FROM THE BENCH BY: |
PELLETIER J.A. |
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APPEARANCES:
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Paul Champ Bijon Roy
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For The Appellants CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, AND CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE
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Helen Gray
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For The Respondent ATTORNEY GENERAL OF CANADA |
SOLICITORS OF RECORD:
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Champ & Associates Ottawa, Ontario |
For The Appellants CHIEF R. DONALD MARACLE IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE MOHAWKS OF THE BAY OF QUINTE, CHIEF WILLIAM MONTOUR IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE SIX NATIONS OF THE GRAND RIVER, CHIEF JOEL ABRAM IN HIS PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF THE ONEIDA NATION OF THE THAMES, AND CHIEF HAZEL FOX-RECOLLET IN HER PERSONAL CAPACITY AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE MEMBERS OF WIKWEMIKONG UNCEDED INDIAN RESERVE
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William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario |
For The Respondent ATTORNEY GENERAL OF CANADA |