Supreme Court of Canada

Minister of Indian Affairs and Northern Development v. Ranville et al., [1982] 2 S.C.R. 518

Date: 1982-09-28

The Minister of Indian Affairs and Northern Development Appellant;

and

Sean Ranville and Danielle Winona Ranville Respondents.

File No.: 16218.

1982: March 24; 1982: September 28.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Mclntyre and Chouinard JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Jurisdiction—Federal Court of Appeal—Application to review and set aside—Judge acting pursuant to s. 9(4) of Indian Act—Whether judge acting qua s. 96 judge or persona designata—Concept of persona designata rejected—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 28—Indian Act, R.S.C. 1970, c. I-6, s. 9(4) [as amended by 1974-75-76 (Can.), c. 48, s. 25(1)].

Courts—Stare decisis—Departure from prior decision.

A county court judge, exercising jurisdiction under s. 9(4) of the Indian Act, reversed a decision of the Registrar of the Department of Indian Affairs and Northern Development that respondents children were not entitled to be included in the Indian Register. The Federal Court of Appeal dismissed the appellant’s application under s. 28 of the Federal Court Act to review and set aside the county court judge’s decision on the ground of want of jurisdiction. The Federal Court of Appeal held that the county court judge was excluded from the definition of “federal board, commission or other tribunal” within the meaning of ss. 2 and 28 of the Federal Court Act by the words “other than… any… person… appointed… under s. 96 of the British North America Act, 1867”. The Federal Court of Appeal concluded that a judge acting under s. 9(4) of the Indian Act was acting qua s. 96 judge, not persona designata. Hence this appeal to determine whether the Federal Court of Appeal has jurisdiction to review and set aside a decision of a judge acting pursuant to s. 9(4) of the Indian Act.

Held: The appeal should be dismissed.

Per Laskin C.J. and Dickson, Estey, Mclntyre and Chouinard JJ.: According to earlier jurisprudence, the

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Federal Court of Appeal would have jurisdiction re a s. 96 court judge if he is acting persona designata. In Herman v. Deputy Attorney General of Canada the majority of this Court adopted the test for persona designata:

is the judge exercising a peculiar, and distinct, and exceptional jurisdiction, separate and unrelated to the tasks which he performs from day-to-day as a judge and having nothing in common with the court of which he is a member.

The appellant has not met the test in Herman. A judge acting under s. 9(4) of the Indian Act is not exercising exceptional jurisdiction. The judge in this case acted as a substitute, which a persona designata cannot do. A judge acting under s. 9(4) of the Indian Act sits in an appellate capacity. The fact that he is empowered to exercise powers as a commissioner under the Inquiries Act does not make him persona designata under the test in Herman.

The judicially created concept of persona designata is a source of more confusion than enlightenment, serves no useful purpose in the present context and can be readily jettisoned without prejudice to legal principle. The statutory language should be adhered to, free of the ingerence of the notion of persona designata. Whenever a statutory power is conferred upon a s. 96 judge or officer of a court, the power should be deemed exercisable in an official capacity as representing the court, unless there is express provision to the contrary.

It is acknowledged that this decision conflicts with the majority view in Commonwealth of Puerto Rico v. Hernandez. The traditional justification for stare decisis is certainty in the law. This of course remains an important consideration even though this Court has announced its willingness, for compelling reasons, to overturn a prior decision. In this instance adherence to the stare decisis principle would generate more uncertainty than certainty.

Per Ritchie and Beetz JJ. concurring in the result: The test in Herman was not met. In addition, the principle of stare decisis remains an important consideration in this Court even though it has announced its willingness to overturn a prior decision for compelling reasons.

Herman v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729, applied; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, overruled;

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Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, considered; Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; Re Farm Products Marketing Act, [1957] S.C.R. 198; Binus v. The Queen, [1967] S.C.R. 594; Peda v. The Queen, [1969] S.C.R. 905; Barnett v. Harrison, [1976] 2 S.C.R. 531; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; A.V.G. Management Science Ltd. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43; Bell v. The Queen, [1979] 2 S.C.R. 212; Paquette v. The Queen, [1977] 2 S.C.R. 189; Dunbar v. The King (1936), 67 C.C.C. 20 (S.C.C.); McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Farwell v. The Queen (1894), 22 S.C.R. 553; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; Reference re Residential Tenancies Act (1980), 26 O.R. (2d) 609; Williams v. R. in Right of Canada, [1981] 1 W.W.R. 606; Collins v. The Queen, [1980] 1 F.C. 146; Equipements Rocbec Inc. v. Ministre du Revenu national, [1980] C.S. 1089; Re Cataract Ice Ltd. and B.P. Oil Ltd. (1981), 31 O.R. (2d) 644, referred to.

APPEAL from a judgment of the Federal Court of Appeal, [1982] 1 F.C. 485, dismissing appellant’s application to review and set aside a decision of Hudson Co. Ct. J. (1979), 26 O.R. (2d) 721. Appeal dismissed.

Eric Bowie, Q.C., and Ian MacGregor, for the appellant.

William T. Badcock, for the respondents.

The judgment of Laskin C.J. and Dickson, Estey, Mclntyre and Chouinard JJ. was delivered by

DICKSON J.—The question is whether the Federal Court of Appeal has jurisdiction under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 to review and set aside the decision of a judge acting pursuant to s. 9(4) of the Indian Act, R.S.C. 1970, c. I-6. Section 28 of the Federal Court Act empowers the Federal Court of Appeal to review and set aside certain decisions or orders made by or in the course of proceedings before “a federal board, commission or other tribunal”. Section 2 [hereinafter referred to as s. 2(g)] of the Act provides that:

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“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of The British North America Act, 1867. [Emphasis added.]

I

The issue is whether a judge exercising jurisdiction under s. 9(4) of the Indian Act is acting qua s. 96 judge, in which case the Federal Court of Appeal, by reason of the concluding words of the definition of “federal board, commission or other tribunal”, would not have jurisdiction or whether he is acting persona designata, in which case, according to earlier jurisprudence, the Court would have jurisdiction.

Section 9(4) of the Indian Act empowers the judge of the Supreme Court, Superior Court, county or district court to enquire into certain decisions of the Registrar of the Department of Indian Affairs and Northern Development. The Registrar is in charge of the Indian Register. The name of every person who is entitled to be registered as an Indian is recorded in the Register. The name of every such person who is a member of a band is entered in the band list for that band. The Indian Act provides that the Registrar may at any time add to or delete from a Band List the name of any person who is entitled or not entitled, as the case may be, to have his name included in that list. Within three months after the name of a person has been deleted from a Band List the person whose name has been deleted may protest to the Registrar, who is obliged to cause an investigation to be made and to render a decision. Within three months from the date of a decision the person in respect of whom the protest was made may request the Registrar to refer the decision to a judge for review. In the Province of Prince Edward Island the referral is to a judge of the Supreme Court, in the Province of Quebec to a judge of the Superior Court and in any other province, to a judge of the

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county or district court of the county or district in which the band is situated or in which the person in respect of whom the protest was made resides, or of such other county or district as the Minister may designate. Section 9(4) of the Indian Act in its entirety reads:

(4) The judge of the Supreme Court, Superior Court, county or district court, as the case may be, shall inquire into the correctness of the Registrar’s decision, and for such purposes may exercise all of the powers of a commissioner under Part I of the Inquiries Act; the judge shall decide whether the person in respect of whom the protest was made is, in accordance with this Act, entitled or not entitled, as the case may be, to have his name included in the Indian Register, and the decision of the judge is final and conclusive.

II

The facts are not in dispute. Sean Gerald Ranville and Danielle Winona Ranville were born to Myrelene Henderson, a registered Indian under the Indian Act on February 1, 1971 and September 24, 1972 respectively. Myrelene Henderson was unmarried at the time. Each child was registered as an Indian under the Indian Act and added to the Fort Alexander Band List in Manitoba. On March 2, 1974 Myrelene Henderson married the father of the children, Brian Gerald Ranville, a non-Indian. The Registrar thereupon deleted the names of the children from the Fort Alexander Band List stating as his reason that there was “no provision in the Indian Act for the registration of the legitimate children of non-Indian parents”. Myrelene Henderson had lost her status as a registered Indian upon her marriage to a non-Indian and the Registrar applied s. 2(1) of the provincial Legitimacy Act, 1962 (Man.), c. 38 which provides that a person is legitimate from birth for all purposes of the law of Manitoba where his parents intermarry subsequent to his birth. The Indian Act does not define “legitimate” or “illegitimate” nor does it provide for the legitimation of a child by the marriage of its parents after its birth.

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Myrelene Henderson protested to the Registrar the deletion of her children from the Band List. The Registrar affirmed his decision to delete the children and Myrelene Henderson requested that the decision be referred to a judge for review pursuant to s. 9(3) of the Indian Act.

County Court Judge Hudson, basing himself in large part upon this Court’s decision in Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751, reversed the Registrar’s decision and found that the children were entitled to have their names included on the Band List.

The Minister of Indian Affairs and Northern Development applied for review of the decision of Judge Hudson to the Federal Court of Appeal under s. 28 of the Federal Court Act. Heald J., speaking for the Court, in short reasons, dismissed the application for lack of jurisdiction. He held that Judge Hudson was not acting persona designata. His decision could not therefore be reviewed by the Federal Court of Appeal as a decision of a “federal board, commission or other tribunal”. Mr. Justice Heald said:

The decisions of the Supreme Court of Canada in Herman et al vs. The Deputy Attorney General of Canada, (1978 DTC. 6456) and in The Minister of National Revenue vs. Coopers and Lybrand (1979 SCR 495) have imposed an obligation on a party alleging that a Judge is acting pursuant to a statutory provision in the special capacity of persona designata of finding in the statute specific provisions that such is the case (see the Herman case, supra, per Dickson, J. at p. 6462 and Laskin, C.J. at p. 6466).

The test formulated in Herman v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729, was as follows (at p. 749):

Prima facie, Parliament should be taken to intend a judge to act qua judge whenever by statute it grants powers to a judge. He who alleges that a judge is acting in the special capacity of persona designata must find in the specific legislation provisions which clearly evidence a contrary intention on the part of Parliament. The test to be applied in considering whether such a contrary

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intention appears in the relevant statute can be cast in the form of a question: is the judge exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and having nothing in common with the court of which he is a member?

The Federal Court of Appeal found no specific provision in the relevant sections of the Indian Act to indicate that Judge Hudson was acting as a persona designata.

The appellant Minister argues that Judge Hudson was indeed acting as a persona designata and points to an obiter dicta of Beetz J. in Natural Parents v. Superintendent of Child Welfare, supra, to the effect that a county or district court judge acting pursuant to ss. 5 to 10 of the Indian Act is acting as a persona designata. The appellant then attempts to make s. 9(4) of the Indian Act conform to the test set out in Herman. The respondent, on the other hand, simply argues that the test set out in Herman is not met in this case.

III

The introduction of the concept of persona designata has the effect of cutting down the exclusionary language of s. 2(g) of the Federal Court Act and, as the Chief Justice has noted in Herman is responsible for the futile “interpretative exercises” into which the courts have been dragged. In attempting to catch s. 96 judges under the first part of the s. 2(g) definition by characterizing them as persona designata counsel are distorting the plain meaning of the section and obscuring its purpose. As I stated in Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495 (at p. 509):

A judge does not become persona designata merely through the exercise of powers conferred by a statute other than the provincial Judicature Act or its counterpart. Given its widest sweep, s. 28 could make subject to review by the Federal Court of Appeal, decisions or orders of provincial federally-appointed judges, pursuant

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to such federal enactments as the Criminal Code, the Divorce Act or the Bills of Exchange Act. That could not have been intended.

It would seem to have been the will of Parliament, in enacting the concluding words of the relevant paragraph of s. 2 of the Federal Court Act, that ordinarily the acts of federally-appointed provincial judges, pursuant to authority given to them by federal statutes, will not be subject to supervision by the Federal Court of Appeal.

I was rather of the opinion that this troublesome notion of persona designata had been given its quietus in the recent Herman decision. The Chief Justice’s aversion in Herman to the concept of persona designata could not have been more evident (at pp. 731-32):

…it is high time to relieve the Courts of the interpretative exercises that have been common in this country when they think that a decision has to be made whether a statutory jurisdiction has been vested in a Judge qua Judge or as persona designata. More than fifty years ago, D.M. Gordon, one of Canada’s outstanding scholarly practitioners, wrote in the Canadian Bar Review (see (1927), 5 Can. Bar Rev. 174, at p. 185) that “the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles”. I agree completely with this sentiment.

In the test formulated in Herman I endeavoured to confine the notion of persona designata to the most exceptional circumstances. The Federal Court of Appeal and the provincial courts which have had to deal with the notion since the Herman decision have grasped how exceptional recourse to persona designata must be. So far as I am aware, in applying the test in Herman, no federally-appointed judge has yet been found to be a persona designata (see Reference re Residential Tenancies Act (1980), 26 O.R. (2d) 609 (Ont. C.A.); Williams v. R. in Right of Canada, [1981] 1 W.W.R. 606 (B.C.C.A.); Collins v. The Queen, [1980] 1 F.C. 146 (F.C.A.); Equipements Rocbec Inc. v. Ministre du Revenu national, [1980] C.S. 1089 (Que. S.C.); Re Cataract Ice Ltd. and B.P. Oil Ltd. (1981), 31 O.R. (2d) 644 (Ont. H.C.)). Counsel for the appellant did not provide the

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Court with any cases to the contrary.

Counsel for the appellant tried to bolster his contention that Judge Hudson was acting as a persona designata by reference to the Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, and to the Natural Parents decision. Both of these cases, however, were decided before Herman. Mr. Justice Ritchie and Mr. Justice Beetz, upon whose reasons the appellant relies, both concurred in my reasons in Herman. I agree with Mr. Justice Steele in Re Cataract Ice Ltd., supra, that “Re Herman has changed the entire approach to the issue of when a Judge sits persona designata and when he sits as a member of the Court” (at p. 646).

I am in respectful agreement with the opinion of the Federal Court of Appeal that the appellant has not met the test in Herman. He is not exercising any exceptional jurisdiction unrelated to his ordinary capacity. A persona designata does not have the authority to act by substitute, yet in the present appeal Chief Judge Coo of the County Court of York, to whom the Registrar originally referred the inquiry into the correctness of the Registrar’s decision, substituted Judge Hudson and appointed him to conduct the review. I also agree that a judge acting pursuant to s. 9(4) of the Indian Act sits in an appellate capacity. The fact that he is empowered to exercise all of the powers of a Commissioner under Part I of the Inquiries Act is not such as to make him persona designata under the test in Herman. I would go further.

Although originally in favour of permitting some latitude for the play of persona designata in the operation of s. 2(g) of the Federal Court Act, in the hope of reconciling fairly recent judicial pronouncements, I am now of the view that the concept is a source of more confusion than enlightenment. As I pointed out in Herman (at pp. 741-42):

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From a reading of s. 2(g) of the Act one could readily draw the conclusion that it was the intention of Parliament that no decision of a federally-appointed judge of a provincial court would be subject to the review jurisdiction of the Federal Court of Appeal, nor subject to the jurisdiction of the Trial Division under s. 18, which is similarly restricted to any federal board, commission or other tribunal.

It is this reading of s. 2(g), free of the ingerence of the notion of persona designata, which was espoused by the Chief Justice in Herman. I am now of the opinion that the words of the Chief Justice in Herman should be adopted and I would declare that whenever a statutory power is conferred upon a s. 96 judge or officer of a court, the power should be deemed exercisable in an official capacity as representing the court, unless there is express provision to the contrary.

I am not unmindful of the fact that this decision conflicts with the majority view expressed by Pigeon J. in Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, especially at pp. 237-38 (Abbott, Judson, Spence and Laskin JJ. dissenting). The traditional justification for the stare decisis principle is certainty in the law. This of course remains an important consideration even though this Court has announced its willingness, for compelling reasons, to overturn a prior decision. See Re Farm Products Marketing Act, [1957] S.C.R. 198, at p. 212; Binus v. The Queen, [1967] S.C.R. 594, at p. 601; Peda v. The Queen, [1969] S.C.R. 905, at p. 911; Barnett v. Harrison, [1976] 2 S.C.R. 531, at p. 559; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at p. 161; A.V.G. Management Science Ltd. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43, at p. 57; Bell v. The Queen, [1979] 2 S.C.R. 212, at pp. 219-20. Cases which might be cited in which earlier decisions of the Court were overruled are: Paquette v. The Queen, [1977] 2 S.C.R. 189, at p. 197 overruling Dunbar v. The King (1936), 67 C.C.C. 20 (S.C.C.); McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, at p. 661 overruling Farwell v. The Queen (1894), 22 S.C.R. 553;

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Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at p. 830.

In this instance adherence to the stare decisis principle would generate more uncertainty than certainty. The Herman case decided that persona designata status would be recognized only in exceptional circumstances. This, however, leaves open to debate just how exceptional the circumstances are in a particular case. Thus, continued recognition of the distinction approved by this Court in Commonwealth of Puerto Rico v. Hernandez, supra, can only have the effect of creating doubt as to which review or appeal route a party should follow. The judge-made concept of persona designata, so far as I can determine, serves no useful purpose in the present context, and can readily be jettisoned without prejudice to legal principle. Having regard to the clear and unambiguous language of s. 2(g) of the Federal Court Act, “other than […] any […] person […] appointed […] under section 96 of The British North America Act, 1867”, I am of the opinion that the proper course is fidelity to the statutory language as evidence of legislative intention.

I would dismiss the appeal with costs.

The reasons of Ritchie and Beetz JJ. were delivered by

RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by Mr. Justice Dickson in this case and I agree with him in concluding that the appeal should be dismissed with costs and that the test formulated in Herman v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729, at p. 749 has not been met.

I am also in full agreement with my brother Dickson in the views which he expresses in the penultimate paragraph of his reasons for judgment to the effect that the principle of stare decisis remains an important consideration in this Court even though it has announced its willingness to overturn a prior decision. In this regard I subscribe to what was said by Cartwright J. (as he then was) in Binus v. The Queen, [1967] S.R.C. 594, at p. 601 in the following terms:

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I do not doubt the power of this Court to depart from a previous judgment of its own but, where the earlier decision has not been made per incuriam, and especially in cases in which Parliament or the Legislature is free to alter the law on the point decided, I think that such a departure should be made only for compelling reasons.

Appeal dismissed with costs.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondents: William T. Badcock, Ottawa.