First Nations are parties in multiple suits tackled by Federal Court this week
This week, the Federal Court of Appeal dealt with matters relating to proceedings of the Social Security Tribunal and Employment and Social Development Canada. The Federal Court held hearings in cases involving issues of government relations, aeronautics, and copyright infringement.
Federal Court of Appeal
On Tuesday, the appellate court heard Attorney General of Canada v. Bacile, A-3-23. A judicial review application asked it to set aside a decision of the Social Security Tribunal’s appeal division. This decision was unreasonable when it found that the respondent experienced an interruption of earnings on July 15, 2021, the federal attorney general alleged.
Rather, the evidence showed that the respondent continued getting health and dental benefits until their expiry on Oct. 7, 2021, which properly amounted to income under s. 35(10)(d) of the Employment Insurance Regulations, SOR/96-332, the attorney general argued.
On Wednesday, the appellate court heard Attorney General of Canada v. Scott, A-172-22, which arose from allegations of workplace violence against the respondent during an off-duty incident. He unsuccessfully filed a complaint with his employer and with the Labour Program of Employment and Social Development Canada.
The labour minister’s delegate dismissed the complaint for lack of jurisdiction upon finding that the allegations did not occur when the respondent was in the workplace. A judge of the Federal Court allowed the respondent’s judicial review application.
The application judge ruled that the labour minister’s delegate unreasonably dismissed the complaint on jurisdictional grounds before investigating the substance of the allegations. The present appeal claimed that the judge wrongly interpreted s. 127.1 of the Canada Labour Code, 1985.
Federal Court
On Monday, the Federal Court heard the related cases of Salt River First Nation No. 195 v. Heron, T-2191-22 and Heron v. Salt River First Nation No. 195, T-2206-22, which arose from a Band Council Resolution passed by four councillors of Salt River First Nation No. 195 on Oct.13, 2022.
The resolution did the following:
- suspended the chief from exercising her duties and powers for 60 days under a provision of SRFN’s Election Code
- canceled a “special meeting,” which the chief called for Oct. 22, 2022 and which sought the removal of sitting councillors Brad Laviolette and Kendra Bourke
- appointed Laviolette as acting chief during the suspension period
However, an Oct. 23, 2022 meeting led to decisions purporting to remove the two councillors. In Salt River First Nation No. 195 v. Heron, 2022 FC 1627, SRFN filed a judicial review application challenging the chief’s decision to call this meeting.
The Federal Court suspended the removal decisions until it could rule on the merits. The balance of convenience favoured granting injunctive relief to allow SRFN’s council to continue its functions pending the disposition of the judicial review application, the court held.
In Heron v. Salt River First Nation No. 195, 2022 FC 1628, the chief brought a judicial review application seeking to quash and to set aside the resolution suspending her. She moved to stay her suspension so that she could resume her duties in the meantime.
The Federal Court entirely dismissed the chief’s motion for interim injunctive relief. The balance of convenience favoured denying the stay, the court determined.
On Tuesday, the court heard Enoch Cree Nation et al v. His Majesty the King et al, T-1947-13. In the underlying claim, Enoch Cree Nation alleged that the construction of an aerodrome in Parkland County in central Alberta by Parkland Airport Development Corporation and others was against the law and was an ongoing danger or threat to its treaty rights, Aboriginal rights, traditional way of life, and Aboriginal cultural values.
In Enoch Cree Nation v. Canada, 2016 FC 994, the Federal Court disqualified Parlee McLaws LLP from acting for the First Nation in certain court files based on a conflict of interest.
Also on Tuesday, the court heard Johnson v. Canadian Tennis Association et al, T-1686-21. This involved a copyright infringement lawsuit against numerous defendants, including the Canadian Tennis Association.
In Johnson v. Canadian Tennis Association, 2022 FC 1759, the plaintiff moved for the assignment of a new case management Judge. The Federal Court dismissed the motion. It held that the judge’s involvement in the proceeding was impartial, reasonable, and fair and that the test for reasonable apprehension of bias was not met.
On Wednesday, the court heard Toronto Regional Real Estate Board v. IMS Incorporated c.o.b. as Restats, T-900-20. This arose from an alleged breach of the Toronto Regional Real Estate Board (TRREB)’s copyright over its multiple listing service system, which gave online access to information such as active real estate listings to its members and to its partner real estate boards.
In Toronto Regional Real Estate Board v. IMS Incorporated, 2021 FC 1239, the TRREB filed a motion challenging a judge’s decision entirely striking its claim for lack of jurisdiction and for abuse of the court’s process. The Federal Court allowed TRREB’s motion and granted it leave to amend its statement of claim relating to its copyright claims.
