CITATION: Beaucage v. Métis Nation of Ontario, 2020 ONSC 483

DIVISIONAL COURT FILE NO.: 309/17

DATE: 20200123

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PIERRE LAWRENCE BEAUCAGE, Applicant

-and -

MÉTIS NATION OF ONTARIO and THE ATTORNEY GENERAL OF ONTARIO, Respondents

BEFORE: D.L. CORBETT, MYERS, AND GOMERY JJ.

COUNSEL: H.J. Yehuda Levinson, for the Applicant

Jason Madden and Megan Strachan, for the Respondent Métis Nation of Ontario

HEARD at Toronto: January 20, 2020

ENDORSEMENT

[1] Mr. Beaucage asks this panel to review the decision of Matheson J. dated January 24, 2019 quashing his application for judicial review. The motion is brought pursuant to s. 21(5) of the Courts of Justice Act, RSO 1990, c C.43. Mr. Beaucage also moves to introduce fresh evidence for this review hearing.

[2] In 2017, Mr. Beaucage was denied membership in the respondent Métis Nation of Ontario (“MNO”). He sought judicial review of that decision.

[3] Matheson J. determined that MNO is a private voluntary organization incorporated without share capital under the Corporations Act, RSO 1990, c C.38. While MNO aspires to be recognized as a government with public law responsibilities to its citizens in Ontario, Matheson J. found “that objective has not yet been achieved.” As such, following the decision of the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, she held that the decision to refuse Mr. Beaucage membership in MNO was not a public law decision reviewable by this court on an application for judicial review. The application for judicial review could therefore not succeed and was quashed.

[4] We were not asked to consider whether the question raised before Matheson J. was one that ought to have been determined by a single judge on a motion to quash or left to the panel hearing the main application. Accordingly, we do not make any comment on that issue.

[5] We advised the parties at the hearing that the motion to admit fresh evidence and the motion to review the decision of Matheson J. quashing the application were both dismissed with reasons to follow. These are our reasons.

Fresh Evidence

[6] The applicant moved to introduce into evidence before us a copy of the Métis Government Recognition and Self-Government Agreement between MNO and Canada dated June 17, 2019 (the “2019 Agreement”). This agreement did not exist at the time of the hearing before Matheson J. However, its existence was contemplated by a prior agreement that had laid out the negotiating framework under which the 2019 Agreement had been negotiated and signed. The “framework” agreement was before Matheson J.

[7] The parties agree that the well-known test for admitting fresh evidence on appeals from Palmer v R., 1979 8 (SCC), [1980] 1 SCR 759, at para. 22, applies to this motion. The only question under the Palmer test in issue is whether the 2019 Agreement would have likely affected the result had it been before Matheson J.

[8] Mr. Levinson submits that the 2019 Agreement confirms the status of MNO as a government entity that is or ought to be subject to public law remedies. However, the applicant’s argument rests on the horns of a dilemma. For the 2019 Agreement to have affected the result, either (a) it must be seen as confirming that in 2017 MNO was already a government; or (b) the entry into the 2019 Agreement must be seen to have made a change to the status of MNO that retroactively applies to the decision it made concerning Mr. Beaucage in 2017. Neither argument can succeed.

[9] Matheson J. understood and made the point clearly that MNO was on a pathway toward recognition of the Métis Nation as a government entity. As discussed above, she held that it has not arrived as yet at its destination. The 2019 Agreement moves MNO closer to legal recognition by Canada as the Métis Nation in Ontario. But it sets out a number of actions that still must occur before that happens.

[10] If the agreement is just confirmatory of the applicant’s argument that in 2017 MNO was sufficiently governmental to be subject to public law, that would not have affected the result reached by Matheson J. The motion judge recognized that there was a continuum of steps toward recognition of MNO as a government. She held that only once MNO was formally recognized as a government would it be subject to public law and judicial review. Therefore, the fact that MNO was closer but had still not yet arrived at formal recognition could not have affected that outcome.

[11] If, on the other hand, the 2019 Agreement made a substantial change in 2019 such that MNO is now a government, the issue is whether that can affect the membership decision made in 2017 when MNO was still a private entity. Mr. Levinson was not able to explain how that could occur. While some changes in a party’s status might affect the court’s ability to adjudicate a prior matter, such as when a party becomes under disability or goes bankrupt, for example, there is nothing in the 2019 Agreement that sheds any light on why a new Métis Nation successor to MNO would be bound by a 2017 decision of the predecessor corporate negotiating party as to its membership under the bylaws then in place. In fact, the 2019 Agreement envisions a new constitution being developed for the Métis Nation that will include a citizenship law. Decisions under that law, when eventually taken by the Métis Nation, may well be subject to different appeal and review criteria. Time will tell. But we see no basis to find that the 2019 Agreement has already recognized MNO as a government under the Constitution of Canada or that the 2019 Agreement has a retroactive or retrospective effect on the 2017 decision concerning Mr. Beaucage.

[12] For these reasons, Mr. Beaucage’s motion to admit fresh evidence cannot succeed.

The Merits

[13] Mr. Levinson essentially argues that Matheson J. erred in two ways:

a. She failed to find that the decision to reject Mr. Beaucage’s membership request was the exercise of a statutory power of decision which is amenable to judicial review under ss. 2 and 6 of the Judicial Review Procedure Act, RSO 1990, c J.1; or;

b. She failed to find that the power exercised by MNO to reject Mr. Beaucage’s application for membership of the corporation was sufficiently governmental or public in nature so as to be subject to judicial review.

[14] In our view, the reasons of Matheson J. address both of these arguments thoroughly and correctly. We accordingly see no basis to interfere with her decision.

[15] We also note that the applicant’s arguments do not appear to us to be consistent with the status of negotiations between Canada and the MNO. MNO is recognized by the federal government as a legitimate representative of Métis communities in Ontario for the purposes of negotiating the terms of formal recognition of a Métis Nation. The negotiations are between two entities aimed at enabling a Métis Nation to be recognized as a government under the Constitution of Canada. While MNO argues that it is already a government, Canada does not yet formally recognize it as such. It seems to us to be inconsistent and possibly counter-productive for the court to find that MNO is subject to the burden of judicial review under the public law as it if were already a government while MNO is denied the benefits of governmental recognition under Canadian law. If the laws of Canada do not yet recognize MNO as a government, then it would be invasive and disrespectful for the public law to subject it to judicial review as if it were a government while at the same time denying recognition of such status. The proper approach, as found by Matheson J., is to treat MNO as a private entity subject to the private law until such time as public law is formally extended to it.

[16] Accordingly, the motion is dismissed. The parties agreed that costs of $15,000 would be awarded to the successful party on the motion to admit fresh evidence and on the motion to set aside Matheson J.’s order. Accordingly, Mr. Beaucage will pay costs fixed at $15,000 to MNO.

D.L. Corbett J.

Myers J.

Gomery J.

Date of Judgment: January 20, 2020

Date of Release of Reasons: January 23, 2020