DATE: 20020909 DOCKET: C37421

COURT OF APPEAL FOR ONTARIO

RE: LYNN GEHL (Plaintiff/Appellant) v. ATTORNEY GENERAL OF CANADA (Defendant/Respondent)

BEFORE: O’CONNOR A.C.J.O., CATZMAN and DOHERTY JJ.A.

COUNSEL: Kimberly R. Murray and Brian Eyolfson, for the appellant Debra McAllister and Brad Gotkin, for the respondent

HEARD: September 5, 2002

RELEASED ORALLY: September 5, 2002

On appeal from the judgment of Justice K.E. Swinton dated November 8, 2001.

E N D O R S E M E N T

[1] [1] The claim is based on an allegation that the Registrar created and implemented an unconstitutional presumption that the appellant’s unknown paternal grandfather was not an Indian. While this allegation is made in the statement of claim, it is clear from the documents referred to and relied upon in the statement of claim that the Registrar did not in fact employ the presumption alleged. It is also clear from those documents that the Registrar did not purport to exercise any discretion but instead, as Swinton J. found, applied the provisions of the Indian Act.

[2] [2] The Registrar concluded that the information in support of the appellant’s protest that her paternal grandfather was an Indian was insufficient to warrant a finding that she was entitled to registration. The correctness of that decision is not in issue in this appeal and we make no comment on it. That decision, however, can be addressed on the statutory review of the Registrar’s decision in the Superior Court.

[1] [3] There seems to be some confusion about what avenues are open to the appellant in challenging the Registrar’s decision. In that connection, the Attorney General has undertaken as follows:

The respondent agrees that, if the appellant pursues proceedings to impugn the constitutional validity of the Act relating to entitlement to Indian status and to registration in the Indian Register, it will not take the position that if there is any unconstitutionality it derives not from the provisions of the statute but rather from the manner in which the Registrar made the determinations that he or she did.

[2] [4] The Attorney General also acknowledged that, on the statutory review, the appellant may raise the constitutionality of the Registrar’s decision and in a separate proceeding in the Superior Court the appellant can challenge the constitutionality of the Indian Act. The Attorney General will not oppose the two proceedings being heard at the same time.

[3] [5] The appeal is, therefore, dismissed. There will be no order as to costs.

“Dennis O’Connor A.C.J.O.”

“M.A. Catzman J.A.”

“Doherty J.A.”