Date: 19981202
Docket: T-1804-97
BETWEEN:
MARY VICKY SCRIMBITT
Applicant
- and -
HER MAJESTY THE QUEEN,
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
and SAKIMAY INDIAN BAND COUNCIL
Respondents
REASONS FOR ORDER
Motion for Extension of Time
[Delivered from the Bench at Edmonton, Alberta,
on Friday, November 20, 1998 as edited]
ROTHSTEIN J.:
The 1987 Minister's Decision
[1] The applicant applies for an extension of time to seek judicial review of a number of decisions of the respondents. The first is the Minister of Indian Affairs and Northern Development's 1987 decision to grant the Sakimay Band control over its own membership list pursuant to section 10 of the Indian Act, R.S.C. 1985, c. I-5.
[2] The applicant says that the Minister knew or should have known that the Sakimay Band's policy was to discriminate with respect to Bill C-31 individuals"to deny membership rights to Indian women who married non-natives. The evidence is that when the Band submitted its Membership Code to the Minister in 1987 requesting that control of its membership list be transferred to the Band, the Code explicitly provided:
| 1. Commencing that date in which, pursuant to subsection 10(6) of the Indian Act, 1985 notice was given to the Minister, a person is entitled to have his name entered in the Band list for Sakimay if: |
| b) that person is entitled to be registered under paragraph 6(1)(c) of the Indian Act, 1985 as a member of the Sakimay Band. |
[3] Sandra Ginnish, Director General of Legislation, Research and Cabinet Affairs, Department of Indian Affairs and Northern Development stated in her affidavit:
| I have recently conducted a review of the relevant departmental records. Based on this review, my previous involvement in making a recommendation to the Minister in respect of the submission of the Sakimay Band in 1987 and my general knowledge of the project as team leader during the relevant time, I unequivocally state that I do not have any personal knowledge, nor do departmental files contain any indication whatsoever, that the Sakimay Band had a policy in place in 1987 which discriminated against Bill C-31 reinstatees by restricting their membership and voting rights. |
The Ginnish affidavit was put to the Chief of the Band in cross-examination on his affidavit. He had no information to contradict the Ginnish evidence.
[4] If the Band had a policy in place in 1987 that discriminated against Bill C-31 reinstatees, the evidence is that the Minister did not know of such policy. There is no evidence from which to infer that he should have known of such a policy. The applicant has not demonstrated a serious issue with respect to the Minister's 1987 decision to transfer control of the Sakimay membership list to the Band.
[5] The extension application respecting the 1987 decision of the Minister is dismissed.
The Band Council's Policy, 1993, 1995, and 1997 Decisions
[6] The applicant also asks for an extension of time to seek judicial review of four Band Council decisions going back at least to 1993 and 1995. These are decisions all of which have the effect of denying the applicant the right to vote in Band elections. Counsel for the applicant confirms that in challenging these decisions, the applicant is really seeking an order confirming her right to vote as a member of the Sakimay Indian Band. She bases her claim on section 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, sections 10 and 77 of the Indian Act, as well as other reasons.
[7] Counsel for the Band concedes that the applicant raises arguable issues although he submits that the Band has legitimate arguments to make in opposition, including arguments based on the inherent right of the Band to control its membership and social issues such as overcrowding on the Reserve. For purposes of an extension application, it is only necessary for the applicant to demonstrate an arguable issue. In my view, she has done that.
[8] However, I am not satisfied the applicant has justified the delay from 1993 and 1995 to the time she filed a statement of claim in this Court in September 1996 or her judicial review application in August of 1997. I have no doubt that from the time she was denied voting rights in 1993, that she intended to do something about it. Apparently she was attempting to obtain financing to commence and continue court proceedings but this does not justify her delay. The Federal Court Rules 1998 provide time limits and these time limits must be respected. While extensions are granted when they are justified, extensions for years are extraordinary and the delay has not been adequately explained in respect of these decisions.
[9] I now turn to the 1997 decision of the Band Council. On February 11,1997, the applicant wrote to the Band Council seeking to be included on the voter's list of the Sakimay Band. The Band Council did not respond to her request. However, on voting day she was not allowed to vote. I infer that it was on election day in 1997 that the decision of the Band Council not to permit her to vote was communicated to her. The exact voting day in 1997 is not in the evidence. However, previous voting dates were in late April every second year. I infer the voting date in 1997 was in late April.
[10] After the applicant commenced an action in the Federal Court in September 1996, the respondent moved to strike out the statement of claim on the grounds, amongst others, that the relief sought could only be obtained by judicial review. The motion was heard on January 9, 1997. The reasons were delivered on March 20, 1997. The motion was granted in respect of the prerogative relief sought and this portion of the statement of claim was struck out.
[11] The reasons of the Court indicated that the applicant could commence a judicial review application for prerogative and declaratory relief. However, there was no mention of the prerogative and declaratory relief by way of judicial review in the order that was issued. The applicant sought clarification. In the meantime, the 1997 election was held in which she was denied the right to vote. The Court issued an amended order on July 24, 1997 making reference to the applicant being able to commence a judicial review application seeking prerogative and declaratory relief. The information before me is that the order was communicated to the applicant by registered mail. The applicant would be deemed to receive notice of the decision on or about August 3, 1997.
[12] The applicant's judicial review application, including an application to seek judicial review of the Band Council's 1997 decision not to permit her to vote was brought by the applicant on August 27, 1997, within 30 days of the July 24, 1997 clarification order being communicated to her.
[13] Counsel for the Band says the July 24, 1997 clarification order had nothing to do with the decision not to allow the applicant to vote in 1997 and he is correct. However, as applicant's counsel points out, during the relevant time, the applicant was waiting for clarification from the Court with respect to prior Band Council decisions and a period of about three months passed before the Court responded to her request. In the particular circumstances of this case, it appears the Court itself was a participant in delay. I think it would be wrong if the Court were to hold the applicant to a strict time limit when the Court itself was in part to blame for the delay.
[14] One other consideration is relevant. The Band's decisions in 1993, 1995 and 1997 have denied the applicant the right to vote. If the judicial review cannot proceed on the basis of the 1997 decision, the applicant will have to await a 1999 decision and commence a new judicial review if she is denied the right to vote in 1999.
[15] In all the circumstances, justice in this case demands that the extension to bring the judicial review in respect of the 1997 decision of the Band Council be allowed.
[16] Counsel for the Band makes the point that there have been a multiplicity of proceedings which have caused unnecessary expense to the Band. He refers in particular to proceedings brought in the Saskatchewan Court of Queen's Bench which are still outstanding. It appears that the applicant has done nothing further with respect to those proceedings for over two years. Counsel for the applicant indicates that she would not object to a condition being placed on the extension application that the Queen's Bench action be discontinued. However, she asks that the condition be that the Saskatchewan proceedings be discontinued without costs.
[17] It is not the place of this Court to determine whether costs should be payable, the amount, or by whom, with regard to proceedings in the Court of Queen's Bench of Saskatchewan. That is for the Queen's Bench to determine. The condition on the extension application shall be only that the applicant take immediate steps to discontinue the proceedings in the Court of Queen's Bench of Saskatchewan.
The Minister's 1993 and 1994 Decisions
[18] Finally, the applicant seeks an extension of time to seek judicial review of 1993 and 1994 decisions of the Minister:
| The decision of the Department of Indian Affairs and Northern Development contained in a letter, dated July 19, 1993, refusing the Applicant's request for assistance to have her status as a Band member clarified and to having her name placed back on the Sakimay Band's voters list; |
| The decision of the Minister of the Department of Indian Affairs and Northern Development, contained in a letter dated March 21, 1994, indicating that the Department had no responsibility in relation to the issue of the Applicant's exclusion from the Sakimay Band membership list; |
The Minister takes no position with respect to the application to extend time with respect to these decisions. While I have some misgiving about these causes of action, after hearing counsel for the applicant, I cannot say there is no arguable case at this time. However, I think pursuing these reviews together with the one against the 1997 Band Council decision will result in further delay and complexity. Both counsel agree.
[19] The extension application is allowed but the judicial reviews in respect of these orders will not be consolidated with the judicial review against the 1997 Band Council decision.
Costs
[20] In view of divided success, there will no order as to costs. However, all parties are cautioned that they must bear in mind that it is important to be focussed with respect to the relief sought and defences raised. Hereafter on motions, the Court will scrutinize the parties' positions very carefully and will order costs in any event of the cause and payable forthwith if it concludes that the proceedings have been unnecessarily complicated by any party.
Other Procedural Matters
[21] The judicial review with respect to the 1997 Band Council decision will be continued in court file T-1804-97. Her majesty the Queen and the Minister of Indian Affairs and Northern Development are deleted as a respondents in this court file. With respect to the 1993 and 1994 orders of the Minister, the applicant is given leave to file a new notice of application seeking judicial review of both ministerial decisions. The notice of application in respect of the Minister's decisions shall be filed and served on or before December 7, 1998.
[22] With respect to court file T-1804-97, the applicant's record shall be filed and served on or before January 13, 1999. The respondent shall file and serve its record on or before February 11, 1999. The judicial review in this matter shall commence on Monday, February 15, 1999 at 10:00 a.m. at Edmonton, Alberta.
[23] With respect to the judicial review of the Minister's decisions under a new court file, counsel have undertaken to write to the Court requesting that the proceeding be managed as a specially managed proceeding pursuant to Rule 384. Upon receipt of such letter, the Court will entertain the application.
"Marshall Rothstein"
Judge
Toronto, Ontario
December 2, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1804-97
| STYLE OF CAUSE: MARY VICKY SCRIMBITT |
- and -
| HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, AND SAKIMAY INDIAN BAND COUNCIL |
DATE OF HEARING: FRIDAY, NOVEMBER 20, 1998
PLACE OF HEARING: EDMONTON, ALBERTA
REASONS FOR ORDER BY: ROTHSTEIN J.
DATED: WEDNESDAY, DECEMBER 2, 1998
APPEARANCES: Ms. Janet Hutchison
For the Applicant
Ms. Myra Yuzak
| For the Respondent, The Minister of Indian Affairs and Northern Development |
| Mr. Gordon McKenzie |
| For the Respondent, Sakimay Indian Band Council |
| SOLICITORS OF RECORD: Dale Gibson Associates |
| Barristers & Solicitors |
| 11018 -125th Street |
| Edmonton, Alberta |
| T5M 0M1 |
| For the Applicant |
Solicitors of record ... continuation
| Morris Rosenberg |
Deputy Attorney General
of Canada
| For the Respondent, the Minister of Indian Affairs and Northern Development |
| Bishop & McKenzie |
| Barristers & Solicitors |
| 2500-10104 103 Avenue North West |
| Edmonton, Alberta |
| T5J 1V3 |
FEDERAL COURT OF CANADA
Date: 19981202
Docket: T-1804-97
Between:
| MARY VICKY SCRIMBITT |
Applicant
- and -
| HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, and SAKIMAY INDIAN BAND COUNCIL |
Respondents
| REASONS FOR ORDER |