COURT OF APPEAL FOR ONTARIO
DATE: 20000302
DOCKET: C32803
RE: MUSHKEGOWUK COUNCIL, ATTAWAPISKAT FIRST NATION,
CHAPLEAU FIRST NATION, FORT ALBANY FIRST NATION,
KASHECHEWAN FIRST NATION, MISSANABIE FIRST NATION,
MOOSE CREE FIRST NATION and WEENUSK FIRST NATION
(Respondents) – and – HER MAJESTY THE QUEEN IN
RIGHT OF ONTARIO (Appellant) – and – ATTORNEY
GENERAL FOR CANADA (Intervener)
BEFORE: DOHERTY, LASKIN and MOLDAVER JJ.A.
COUNSEL: Lori Sterling, Peter Landmann and Rebecca Givens
for the appellant
Murray Klippenstein
for the respondents
Charlotte Ann Bell and Scott Warwick
for the intervener
HEARD: February 29, 2000
On appeal from the judgment of Mr. Justice Pitt dated August 23, 1999.
E N D O R S E M E N T
[1] At the outset of the argument, the court explored with the
parties the possibility of resolving the specific issue raised in
this litigation without addressing the broader issues underlying
the litigation. Although the parties could not come to any
agreement on the exact disposition of the appeal, they did,
through their co-operative efforts, arrive at a clear statement
of their positions which, in our view, were not far apart. Given
the positions taken by the parties before us, we are satisfied
that this litigation can, and should be resolved by relief that
does not address the broad constitutional issues underlying the
litigation. Those issues were addressed by Pitt J. and we want
to make it clear that in disposing of the case in the way we do,
we are not addressing the merits of the issues considered by him.
We should not be taken as coming to any conclusion one way or the
other on those issues.
[2] In our view, the specific problem raised in this litigation
is properly resolved by an order in the following terms:
The judgment of Pitt J. is set aside.
The respondents are entitled to a declaration that in the
light of the 1965 Welfare Agreement, the powers granted to the
Minister under s. 38 of the Ontario Works Act must be exercised
with the consent of the band.
- Any band not wanting to be a delivery agent under s. 38 of
the Ontario Works Act shall indicate to the Minister on or before
July 1, 2000 that it does not consent to being a delivery agent
and the Minister shall immediately revoke the designation of that
band.
- The designation of the bands as delivery agents under
Regulation 136-98 shall continue while the bands determine
whether they wish to consent to being delivery agents. It shall
continue, however, on the understanding expressed in paragraph 13
of the reasons for judgment of Sharpe J.A. granting a stay in
these proceedings.
- There shall be no order for costs on the appeal.
[3] Given the declaration in paragraph 2, the court does not
find it necessary to decide and does not decide the
constitutional issues raised by the parties, and specifically
does not decide whether, apart from the 1965 Agreement, the
consent of a band would be required before the government could
designate it under s. 38 of the Ontario Works Act.