2003 FCA 265
A-39-02
The Registrar of the Indian Register, Indian and Northern Affairs Canada and The Attorney General of Canada (Appellants)
v.
John Jeremiah Sinclair (Respondent)
A-239-02
John Jeremiah Sinclair (Appellant)
v.
The Registrar of the Indian Register, Indian and Northern Affairs Canada and The Attorney General of Canada (Respondents)
Indexed as: Canada (Registrar, Indian Register) v. Sinclair (C.A.)
Court of Appeal, Desjardins, Nadon and Sexton JJ.A.-- Ottawa, June 11, 2003.
Federal Court Jurisdiction -- Trial Division -- Questions referred to Trial Division -- Facts highly disputed -- Trial Division lacking jurisdiction to hear matter -- Federal Court Act, s. 18.3(1) jurisdiction not extending to questions involving disputed facts -- Court of Appeal therefore unable to hear matter -- Appeals, cross-appeal, decisions of Trial Division, reference quashed.
statutes and regulations judicially
considered
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.3 (as enacted by S.C. 1990, c. 8, s. 5).
| Indian Act, R.S.C., 1985, c. I-5, s. 14.3(5) (as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 4; (2nd Supp.), c. 27, s. 10; S.C. 1990, c. 16, s. 14; c. 17, s. 25; 1992, c. 51, s. 54; 1998, c. 30, s. 14; 1999, c. 3, s. 69). |
cases judicially considered
referred to:
Air Canada v. Canada (Commissioner of Official Languages) (1999), 241 N.R. 157 (F.C.A.); Immigration Act (Canada) (Re) (1991), 137 N.R. 64 (F.C.A.); Martin Service Station Ltd. v. Minister of National Revenue, [1977] 2 S.C.R. 996; (1976), 67 D.L.R. (3d) 294; 76 CLLC 130; 9 N.R. 257.
APPEALS and CROSS APPEAL from Trial Division decisions (Canada (Registrar, Indian Register) v. Sinclair, [2002] 3 F.C. 292; (2001), 212 D.L.R. (4th) 169; [2002] 3 C.N.L.R. 21; 215 F.T.R. 194; Canada (Registrar, Indian Register) v. Sinclair (2001), 200 D.L.R. (4th) 347; [2001] 4 C.N.L.R. 11; 203 F.T.R. 275) answering two questions referred to the Court concerning registrability on the Indian Register. Appeals and cross-appeal quashed.
appearances:
John B. Edmond for appellants in A-39-02, respondents in A-239-02.
Marc LeClair and Michelle LeClair-Harding for respondent in A-39-02, appellant in A-239-02.
solicitors of record:
Deputy Attorney General of Canada for appellants in A-39-02, respondents in A-239-02.
Marc LeClair, Ottawa, for respondent in A-39-02, appellant in A-239-02.
The following are the reasons for judgment of the Court rendered in English by
[1]Desjardins J.A.: We are of the view that this reference was not properly brought before the Trial Division. The questions referred by the (Acting) Registrar of the Indian Register were as follows:
1. Would I err in law in deciding that, under the provisions of the Indian Act, the Respondent is not entitled to have his name entered on the Indian Register and assigned an Indian Registry number under the said Act?
2. In the event the first question is answered in the negative, would I err in law in deleting the Respondent's name and Indian registry number from the Indian Register pursuant to section 5(3) of the Indian Act, prior to the Respondent exhausting his protest and appeals against my decision under sections 14.2 and 14.3 of the Indian Act, on the basis that the deletion of his name and registry number would, (but for the existence of an interlocutory injunction issued on the 16th of February, 1999 by the Associate Chief Justice of the Federal Court of Canada restraining me from deleting the Respondent's name pending the final disposition of the within proceeding in the Trial Division), cause the Respondent to lose access to the benefits available to him as a Registered Indian residing in the Province of Alberta, pending the determination of his appeals.
[2]Both questions require clarification on the status of Isabelle Courtoreille prior to the signature of Treaty No. 8.
[3]The facts of this case are highly disputed and cannot be entertained by the Trial Division, considering that eventually an appeal lies from the decision of the Registrar of the Indian Register (after protest) to the provincial courts as provided in subsection 14.3(5) [as enacted by R.S.C., 1985 (1st Supp.), c. 32, s. 4; (2nd Supp.), c. 27, s. 10; S.C. 1990, c. 16, s. 14; c. 17, s. 25; 1992, c. 51, s. 54; 1998, c. 30, s. 14; 1999, c. 3, s. 69] of the Indian Act, R.S.C., 1985, c. I-5.
[4]The jurisdiction of the Trial Division, under a reference by a federal board, commission or other tribunal, is stated in subsection 18.3(1) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] and is limited to "any question or issue of law, of jurisdiction or of practice and procedure". That subsection indeed provides:
18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Trial Division for hearing and determination. [Our emphasis.]
[5]This jurisdiction does not extend to questions which involve disputed facts raised in this reference (Air Canada v. Canada (Commissioner of Official Languages) (1999), 241 N.R. 157 (F.C.A.); Immigration Act (Canada) (Re) (1991), 137 N.R. 64 (F.C.A.); Martin Service Station Ltd. v. Minister of National Revenue, [1977] 2 S.C.R. 996).
[6]The Trial Division lacked jurisdiction to hear the reference as brought by the Registrar of the Indian Register. We therefore cannot hear this matter.
[7]The appeals, the cross-appeal, the decisions of the Trial Division and the reference will be quashed [[2002] 3 F.C. 292 and (2001), 200 D.L.R. (4th) 347].
[8]There will be no costs in the circumstances.