T-595-01
2005 FC 230
Métis National Council of Women and Sheila G. Genaille (Applicants)
v.
The Attorney General of Canada (Respondent)
Indexed as: Métis National Council of Women v. Canada (Attorney General) (F.C.)
Federal Court, Kelen J.--Ottawa, January 17, 18 and February 18, 2005.
Constitutional Law -- Charter of Rights -- Aboriginal Peoples -- Applicants challenging exclusion from Aboriginal job creation, training program set up to address unemployment among Aboriginal peoples -- Whether respondent violated Charter, ss. 15, 28 by excluding applicants from employment programs -- Applicants must demonstrate Métis women have encountered difficulties accessing programming, funding under Métis National Council (MNC) national framework structure -- No evidence Métis women treated differently on basis of gender, not properly represented by MNC -- No evidence of level of support for Métis National Council of Women (MNCW) by Métis Women.
Constitutional Law -- Charter of Rights -- Equality Rights -- Applicants submitting exclusion from Aboriginal job creation and training program violation of right to equality under Canadian Charter of Rights and Freedoms, ss. 15, 28 -- Principles governing s. 15 analysis -- Whether program imposes differential treatment between claimants, others in purpose, effect -- Appropriate comparator group Métis men able to access employment programming, funding through Métis National Council (MNC), affiliates -- S.C.C. decision in Native Women's Assn. of Canada v. Canada applied -- No evidence MNC failed to properly represent interests of Métis women -- No evidence of level of support for MNCW by Métis women -- Applicants failed to establish differential treatment by HRDC against Métis women, individual applicant.
Practice -- Mootness -- Crown submitting case moot as particular program challenged by applicants ended in March 1999 -- Test for mootness set out by S.C.C. two-fold -- First branch of test met as no longer concrete dispute between parties concerning Post-Pathways program -- As to second branch of test, even if dispute has disappeared, Court exercised discretion to decide application on merits because ruling by Court could have practical impact for applicants under subsequent program.
Practice -- Parties -- Applicant in case seeking declaration breach of Charter, s. 15 equality rights dying before case heard -- Estate seeking to continue application -- Charter, s. 15 claim inherently personal -- Estate not permitted to continue Charter, s. 15 challenge.
This was an application by the Métis National Council of Women (MNCW) and a Métis woman, challenging their exclusion from an Aboriginal job creation and training program implemented by the Government of Canada to address high levels of unemployment among Aboriginal peoples. The applicants submitted that their exclusion from all aspects of this program, including consultations, administration, agreements and funding, is a violation of their right to equality under sections 15 and 28 of the Canadian Charter of Rights and Freedoms. The MNCW is a non-profit organization whose mandate is to promote and enhance the well-being of Métis women and their families, and to address issues and concerns of the Métis, particularly women, in Canada and internationally. Following its incorporation, the MNCW had a close working relationship with the Métis National Council (MNC), a national organization representing Métis people across Canada. In 1989, the federal government began developing an Aboriginal-specific employment and training program known as "Pathways to Success". The program was based on the government's recognition that Aboriginal communities must be directly involved in managing and allocating funds for training programs within their particular communities. In late 1994, the federal government determined that the Pathways program should be restructured to provide Aboriginal peoples with more responsibility over their human resource development. This restructured program, commenced in 1996, was called the "Post-Pathways Strategy". Under that program, the federal government transferred and allocated over $600 million in Aboriginal job funding. Following the expiration of the Post-Pathways program in 1999, Human Resources Development Canada (HRDC) launched a new program called the "Aboriginal Human Resources Development Strategy", which was extended until March 2005. The main issue was whether the federal government violated sections 15 and 28 of the Charter by excluding the applicants from the Post-Pathways and Aboriginal Human Resources Development programs.
Held, the application should be dismissed.
Two preliminary issues were raised. The first was whether the Estate of Joyce Gus, a Métis woman who had died in March 2004, should be permitted to continue the application on her behalf. A motion was brought in response to the respondent's objection made pursuant to rule 117 of the Federal Courts Rules. Rule 117 does not provide authority for an assignment or devolution of interest in a proceeding; it merely addresses the necessary procedural requirements. The Estate of Ms. Gus was not permitted to continue the Charter section 15 challenge on her behalf since a strong line of case law characterizes a section 15 claim as inherently personal. The second preliminary issue was whether the case was moot because the particular program challenged by the applicants ended in March 1999 and the agreements they sought to have amended to include MNCW as a signatory had expired. The test for mootness, as set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), is two-fold. First, it is necessary to consider whether the required tangible and concrete dispute between the parties has disappeared. Second, even if the dispute has disappeared, the Court must decide whether to exercise its discretion to hear the case in any event. With respect to the first branch of the test, there was no longer a concrete dispute between the parties concerning the Post-Pathways program which has long ended. However, the Court applied the rationales identified in Borowski and exercised its discretion to decide the application on its merits. An adversarial context prevailed; a ruling by the Court could have a practical impact for the applicants under subsequent programs; and the Court would not be intruding into the role of the legislature, but ensuring that the government operates in accordance with the constitutional rights of Canadians.
The approach to an equality analysis under subsection 15(1) of the Charter was set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration). There are three broad inquiries that a court should undertake when reviewing an impugned law or action. The first inquiry is whether the program imposes differential treatment between the claimants and others, either in purpose or effect. As this inquiry is comparative in nature, the Court must begin by identifying what group or persons the applicants should be compared with. The original comparator group put advanced by the applicants was the MNC. The applicants claimed that the MNC is an inherently male-dominated organization that marginalizes the interests of women and actively seeks to exclude the MNCW from participating in all aspects of the Aboriginal employment programs. Because the first inquiry under the Law test focuses on differential treatment on the basis of personal characteristics, it was appropriate to consider which individuals or groups of individuals are benefitting from the employment programs. This application concerned discrimination against Métis women as compared with Métis men who are able to access benefits, be it programming or funding, under the employment programs. Therefore, the appropriate comparator group for the purpose of this application was Métis men who are able to access employment programming or funding through the MNC or its affiliates.
The differential treatment claimed by the applicants was not evident. They submitted that they have experienced differential treatment under the employment programs because the federal government has refused to extend bilateral agreements to the MNCW and its affiliates, whereas the MNC and its affiliates have been awarded such agreements. The difficulty with the applicant's argument was that it was premised solely on the exclusion of the MNCW which, as a corporation, does not enjoy equality rights under the Charter nor does it have innate personal characteristics. To establish differential treatment the applicants had to demonstrate that the exclusion of the MNCW from negotiations and bilateral agreements had the effect of treating the individual applicant or Métis women in general differently on the basis of gender. To accomplish this, the applicants first had to demonstrate that MNCW represents the interests of Métis women and second, that the MNC, which purports to represent all Métis people, does not adequately represent the needs and interests of Métis women. The evidence did not support the contention that the MNC is less representative of Métis women with respect to employment programs than the MNCW. Nor was there any evidence that the MNC advocates a male-dominated viewpoint, or gives a preference to male Métis with respect to the negotiation, administration and disbursal of funds under the employment programs. Finally, there was no evidence that Métis women support the MNCW, as compared to the MNC. There were no witnesses from any of the regional associations of Métis women who indicated that these associations support the MNCW, as opposed to the MNC, or that the MNC does not properly or adequately represent the interests of Métis women. The Court could not conclude that the exclusion of the MNCW from negotiations or from regional bilateral agreements had the effect of treating Métis women differently from Métis men who benefit from programming and funding under the Aboriginal employment programs. Nor could the Court conclude that HRDC acted incorrectly or unreasonably in excluding the MNCW. The applicants did not establish differential treatment by HRDC against Métis women or the individual applicant.
statutes and regulations judicially
considered
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(b), 15, 28. |
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(2). |
| Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 117. |
| Indian Act, R.S.C., 1985, c. I-5. |
cases judicially considered
applied:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; (1999), 170 D.L.R. (4th) 1; 43 C.C.E.L. (2d) 49; 236 N.R. 1; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; (1994), 119 D.L.R. (4th) 224; [1995] 1 C.N.L.R. 47; 24 C.R.R. (2d) 233; 173 N.R. 241.
considered:
Stinson Estate v. British Columbia (1999), 182 D.L.R. (4th) 407; [2000] 3 W.W.R. 48; 133 B.C.A.C. 15; 70 B.C.L.R. (3d) 233; 70 C.R.R. (2d) 59; 1999 BCCA 761; Collins v. Abrams (2004), 195 B.C.A.C. 47; 2004 BCCA 96; Canada (Attorney General) v. Vincent Estate (2004), 257 F.T.R. 107; 2004 FC 1016; Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697; (2003), 100 C.R.R. (2d) 255; 299 N.R. 307; 2003 FCA 3; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; (1999), 173 D.L.R. (4th) 1; [1999] 3 C.N.L.R. 19; 239 N.R. 1; Lovelace v. Ontario, [2000] 1 S.C.R. 950; (2000), 188 D.L.R. (4th) 193; [2000] 4 C.N.L.R. 145; 75 C.R.R. (2d) 189; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37; Ardoch Algonquin First Nation v. Canada (Attorney General), [2003] 2 F.C. 350; (2002), 98 C.R.R. (2d) 245; 223 F.T.R. 161; 2002 FCT 1058; affd [2004] 2 F.C.R. 108; [2004] 2 C.N.L.R. 118; 315 N.R. 76; 2003 FCA 473.
referred to:
Tacan v. Canada (2003), 237 F.T.R. 304; 2003 FC 915; Hislop v. Canada (Attorney General) (2004), 246 D.L.R. (4th) 644; 192 O.A.C. 331 (Ont. C.A.); Arona v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 24 (T.D.) (QL).
APPLICATION for judicial review by the Métis National Council of Women and a Métis woman challenging their exclusion from an Aboriginal job creation and training program implemented by the Government of Canada as a violation of their right to equality under sections 15 and 28 of the Canadian Charter of Rights and Freedoms. Application dismissed.
appearances:
Kathleen A. Lahey for applicants.
M. Sean Gaudet for respondent.
solicitors of record:
Kathleen A. Lahey, Kingston, Ontario, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Kelen J.: This is an application by the Métis National Council of Women (MNCW) and Sheila Genaille, a Métis woman, challenging their exclusion from an Aboriginal job creation and training program implemented by the Government of Canada. The program challenged by the applicants, the Post-Pathways Strategy, is the second in a trilogy of labour market development programs introduced to address high levels of unemployment among Aboriginal peoples. The applicants submit that their exclusion from all aspects of this program, including consultations, administration, agreements and funding, is a violation of their right to equality under sections 15 and 28 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.-K.) [R.S.C., 1985, Appendix II, No. 44]].
RELIEF SOUGHT
[2]The applicants seek the following relief from the Court:
· a declaration that the respondent's failure to include the applicant Métis National Council of Women as a signatory to the national bilateral agreement executed in October 1995 with the Métis National Council and the regional bilateral agreements executed thereunder with groups affiliated with the Métis National Council, all of which provide those groups with funding, management, and control of federal employment training programs for Métis people, violates sections 15 and 28 of the Canadian Charter of Rights and Freedoms;
· a declaration that the respondent's failure to provide equal funding for job creation and employment for Métis women who live in or who live away from Métis communities under the agreements signed with the Métis National Council and the regional Métis associations in 1997-1998 and 1998-1999 violates sections 15 and 28 of the Canadian Charter of Rights and Freedoms;
· an order that these regional bilateral agreements be read so that funding for job creation and employment thereunder would be provided equally to men and women living in Métis communities and men and women living outside of Métis communities, and that job training programs and jobs will be created equally for women and men in and outside Métis communities; and
· an order that these agreements be read so that the Métis National Council of Women is added as a signatory to the national framework agreement signed between Canada and the Métis National Council and to regional funding agreements signed between Canada and regional Métis associations, and that the Métis National Council of Women is to appoint a regional Métis woman representative on each administrative board that deals with these funding agreements.
BACKGROUND
[3]This current dispute has been before the Court for over seven years. Initially, the applicants commenced an action, which after a number of interlocutory proceedings, including an order to strike the action, was converted into an application for judicial review.
The Applicants
[4]The applicant Sheila Genaille is a seventh generation Métis woman and long-standing president of the MNCW.
[5]The applicant MNCW is a non-profit organization incorporated by Ms. Genaille and others in 1992. According to its by-laws, the MNCW is a federation of provincial and territorial Métis women's organizations that represent Métis women in their respective province or territory. The mandate of the MNCW is to promote and enhance the well-being of Métis woman and their families, and to address issues and concerns of the Métis, particularly women, in Canada and internationally.
[6]Following its incorporation, the MNCW had a close working relationship with the Métis National Council (MNC), a national organization representing Métis people across Canada. The MNC, along with the Assembly of First Nations (AFN) and the Inuit Tapirisat of Canada (ITC), were the three national organizations with whom the federal government executed relationship agreements under Post-Pathways and its successor Aboriginal job creation program. According to the government, the MNC was chosen because it has historically represented the Métis people, it was set up by the Métis to be their representative organization at a national level and it has established political structures.
[7]In 1993, a falling out occurred between the MNC and the MNCW, or at least with Ms. Genaille as president. Ms. Genaille deposed that the wife of the president of the MNC attempted to remove her as president of the MNCW and held herself out as the president of the MNCW. Ms. Genaille further deposed that in June 1994 during an MNC meeting, she was expelled in her capacity as president of the MNCW. By the end of the year, the president of the MNC ejected Ms. Genaille from her office space at the MNC offices.
[8]Beginning in 1995, the MNCW unsuccessfully sought to deal autonomously with the federal government in all program areas, particularly in relation to Aboriginal employment programming. According to the applicants, the MNC has strenuously opposed any attempt by the MNCW to deal separately with the government. The applicants state that the MNC also refuses to share administration or allocation of funding received under the employment programming with the MNCW or its affiliates. This, they submit, has led to their exclusion from all aspects of the programming.
The Former Applicants
[9]When this application was originally commenced there were two applicants in addition to Ms. Genaille and the MNCW. The first was Joyce Gus, a Métis woman who held executive positions with a number of regional Métis women's organizations including the Red River Michif Women's Council, an affiliate of the MNCW. Ms. Gus died on March 11, 2004 and for the reasons discussed below the Court will not permit her Estate to continue with the application.
[10]The other original applicant was Doreen Fleury, a Métis woman who filed an affidavit in support of this application. The affidavit was withdrawn on consent and Ms. Fleury is no longer a party to this proceeding.
The Funding Programs
The First Program: Pathways to Success (1991-1995)
[11]Beginning in 1989, the federal government began developing an Aboriginal-specific employment and training program known as "Pathways to Success". The program was based on the government's recognition that Aboriginal communities must be directly involved in managing and allocating funds for training programs within their particular communities. One of the program's principal features was the establishment of a national management board made up of Aboriginal groups and officials from Human Resources Development Canada (HRDC) as well as local and regional management boards made up of representatives of Aboriginal groups. The local and regional boards set training priorities and decided what initiatives would best achieve employment in their communities, although HRDC made the actual funding contributions.
[12]At least one women's organization, the Native Women's Association of Canada (NWAC), held a seat on the national management board. The MNCW, which was formed after the commencement of the program, gained representation on various local boards, but not the national management board.
The Second Program: Post-Pathways Program (1996-1999)
[13]In late 1994, the federal government conducted a structural review of the Pathways program. It was determined that the program should be restructured to provide Aboriginal peoples with more responsibility over their human resource development. This restructured program, called the "Post-Pathways Strategy", commenced in 1996 when the federal government entered into political accords (national framework agreements or NFAs) with the AFN, the ITC and the MNC. The agreements set out the framework for subsequent negotiation of funding agreements between HRDC and regional Aboriginal groups, most of whom were affiliates of the AFN, the ITC and the MNC. These funding agreements were referred to as regional bilateral agreements (RBAs) and enabled regional groups to design, deliver and implement human resource development projects within their communities. Under the Post-Pathways program, the federal government transferred and allocated over $600 million in Aboriginal job funding.
[14]During the course of the program, concerns were raised about whether the RBA-holders could properly address the needs of Aboriginal peoples living in urban environments. As a result, HRDC implemented a special initiative in which approximately $22 million was allocated to three different Aboriginal organizations: the National Association of Friendship Centres, the NWAC and the Congress of Aboriginal People.
The Third Program: Aboriginal Human Resources Development Strategy (1999-2004/05)
[15]Following the expiration of the Post-Pathways program in 1999, HRDC launched a new program called the "Aboriginal Human Resources Development Strategy" (AHRDS). The AHRDS is similar in purpose and structure to Post-Pathways, but seeks to improve, build and expand on it. The program commenced in April 1999 and was originally scheduled to end in March 2004, but has been extended until March 31, 2005. As was the case under Post-Pathways, HRDC entered into national accords with the AFN, ITC and MNC and entered into further agreements with provincial and regional organizations affiliated with the national organizations (these funding agreements are called Aboriginal Human Resource Development Agreements or AHRDAs).
TWO PRELIMINARY ISSUES
[16]The Court must consider two preliminary issues before embarking on the Charter analysis. First, whether the Estate of Joyce Gus should be permitted to continue the application on her behalf and second, whether the application, as put forward by the applicants, is moot.
Issue No. 1
Motion by Estate of Joyce Gus
[17]At the commencement of the hearing, the Estate of Joyce Gus brought forward a motion requesting that it be allowed to continue the application on behalf of the deceased. The motion was in response to the respondent's objection made pursuant to rule 117 of the Federal Courts Rules [SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)] which state:
117. (1) Subject to subsection (2), where an interest of a party in, or the liability of a party under, a proceeding is assigned or transmitted to, or devolves upon, another person, the other person may, after serving and filing a notice and affidavit setting out the basis for the assignment, transmission or devolution, carry on the proceeding.
(2) If a party to a proceeding objects to its continuance by a person referred to in subsection (1), the person seeking to continue the proceeding shall bring a motion for an order to be substituted for the original party.
[18]As discussed by Justice Snider in Tacan v. Canada (2003), 237 F.T.R. 304 (F.C.), rule 117 does not provide authority for an assignment or devolution of interest in a proceeding; it merely addresses the necessary procedural requirements. Accordingly, in order to determine if the assignment or devolution of interest is permissible, the Court must look to the common law or relevant statutory provisions.
[19]In the present case, the respondent submits that the Estate cannot continue an action for violation of the equality provision under the Charter because it is an inherently personal right. The respondent relies on the decision of the British Columbia Court of Appeal in Stinson Estate v. British Columbia (1999), 182 D.L.R. (4th) 407, at paragraph 11 in which it held that:
Section 15 protects the equality rights of "every individual". The rights guaranteed are personal, and the power to enforce the guarantee resides in the person whose rights have been infringed. Here it is the estate of the deceased which seeks a remedy for the alleged breach of Mrs. Stinson's right. Such a claim is not open to the estate, as a third party, under the language of the Charter.
[20]This passage was recently adopted by the Ontario Court of Appeal in Hislop v. Canada (Attorney General) (2004), 246 D.L.R. (4th) 644.
[21]The respondent also relies on the decision of the British Columbia Court of Appeal in Collins v. Abrams (2004), 195 B.C.A.C. 47, at paragraph 17 in which the Court stated that an executrix could not:
. . . acquire a right to commence or to continue a constitutional challenge based on the violation of Charter rights belonging to someone other than herself. At best, in order to participate in a civil challenge in relation to an infringement of the constitutional rights of a third person, it is necessary to meet the test for public interest standing. [Emphasis added.]
[22]The Estate of Ms. Gus submits that the majority of the cases cited by the respondent are distinguishable because they concern situations where an estate attempted to commence a Charter challenge after the death of the individual. By contrast, the Estate of Ms. Gus is merely seeking to continue an application commenced by the applicant while she was alive. In that regard, it refers to Canada (Attorney General) v. Vincent Estate (2004), 257 F.T.R. 107 (F.C.) in which Justice McKay held, in the context of a judicial review, that a tribunal did not err in granting standing to an estate to pursue a section 15 Charter claim initiated by the applicant during her lifetime.
[23]The decision in Vincent Estate is the only case that the applicants could locate to counter the strong line of jurisprudence that characterizes a section 15 claim as inherently personal. Moreover, in Vincent Estate, Justice MacKay did not engage in his own analysis of whether an estate could continue with an equality challenge, rather he chose not to interfere with the tribunal's decision allowing the participation of the estate. Given these circumstances, I am of the view that the Estate of Ms. Gus is not permitted to continue the section 15 Charter challenge on her behalf.
[24]Although the Estate will not be permitted to continue as an applicant, the evidence of Ms. Gus, which has been subject to cross-examination, can be used in the proceeding, thus ensuring that the remaining applicants will not be prejudiced.
Issue No. 2
Mootness
[25]The Crown submits that the case is moot because the particular program challenged by the applicants (the Post-Pathways Strategy) ended in March 1999 and the agreements that they seek to have amended to include MNCW as a signatory have expired. Although Post-Pathways was replaced with the AHRDS in 1999, the applicants have not brought this challenge in respect of the latter program.
[26]The test for mootness, as set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, is two-fold. First, it is necessary to consider whether the required tangible and concrete dispute between the parties has disappeared. Second, even if the dispute has disappeared, the Court must decide whether to exercise its discretion to hear the case in any event.
[27]With respect to the first branch of the test, I am satisfied that there is no longer a concrete dispute between the parties concerning the Post-Pathways program. The program has long ended and there would be no purpose in adding the MNCW as a signatory to an agreement that has expired.
[28]Although there is no longer a concrete dispute regarding the Post-Pathways program, the Court can still exercise its discretion to hear the case in the appropriate circumstances. Justice Sopinka, in Borowski, identified three rationales that a reviewing court should consider in exercising such a discretion. Specifically, the court should examine whether an adversarial context prevails, whether the decision under review will have some practical effect on the rights of the parties and will not be a waste of judicial resources, and finally, whether a judgment by the court will be seen as an intrusion into the legislative branch of government.
[29]In the present case, there is no question that an adversarial context prevails. The parties have maintained an adversarial stance and have argued their positions with determination, particularly the applicants.
[30]With regard to practical effect, the applicants submit that while technically the Post-Pathways program had a beginning and end date, it should not be seen as a discrete initiative. Rather, the program was simply one step in an ongoing process by the government to devolve control over employment programming to Aboriginal peoples. The applicants indicate that although different terminology is employed in Post-Pathways and AHRDS, the substance of the programs remains the same, including those parties eligible for funding and devolution agreements. Therefore, a decision by the Court that the respondent has breached the equality rights of the applicants in the administration of the Post-Pathways program will have a practical effect on how the applicants are treated in future evolutions of the government's Aboriginal employment initiative.
[31]I am in agreement with the applicants' characterization of the program. It is clear that the current AHRDS program is in substance a continuation of the Post-Pathways program and that a ruling by the Court could have a practical impact for the applicants under AHRDS and subsequent programs. By all accounts, it appears that the devolution process commenced by the government will continue for some time.
[32]The third rationale identified in Borowski is the need for the Court to be aware of its proper law-making function relative to the legislature. In the present case, a ruling by the Court would not be seen as an intrusion into the role of the legislature. By contrast, the Court would be performing the function that is at the very core of its jurisdiction: ensuring that the government operates in accordance with the constitutional rights of Canadians.
[33]For these reasons, the Court will exercise its discretion to decide the application on its merits.
CHARTER ANALYSIS
[34]The central issue in this application is whether the federal government violated sections 15 and 28 of the Charter by excluding the applicants from the Post-Pathways and Aboriginal Human Resources Development programs (collectively the "employment programs").
Relevant Constitutional Provisions
[35]Sections 15 and 28 of the Charter read as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
. . .
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
[36]Subsection 35(2) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendice II, No. 44]] states:
35. (1) . . .
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
Principles governing a section 15 analysis
[37]The approach to be followed in conducting an equality analysis under subsection 15(1) of the Charter was set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. Justice Iacobucci, writing for the Court, emphasized that the approach must be purposive and contextual in order to reflect the strong remedial nature of the equality guarantee and to avoid the pitfalls of a formalistic or mechanical approach. To this end, he outlined three broad inquiries that a court should undertake when reviewing an impugned law or action, at paragraph 39:
First, does the impugned law [program] (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?
[38]With respect to the last inquiry, Justice Iacobucci set out four contextual factors that a court should consider when determining whether differential treatment amounts to substantive discrimination. They are: pre-existing disadvantage of the claimant, the relationship between the grounds and the claimant's characteristics or circumstances, the ameliorative purposes or effects of the program and the nature of the interest affected.
[39]All three broad inquiries are to be conducted in light of the purpose of subsection 15(1), which is described in Law, at paragraph 88:
(4) In general terms, the purpose of s.15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
The First Inquiry--Differential Treatment
[40]The first stage of the Law test is to determine whether the program imposes differential treatment between the claimants and others, either in purpose or effect. In other words, does the program draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively different treatment between the claimant and others on the basis of one or more personal characteristics.
[41]As this inquiry is comparative in nature, the Court must begin by identifying what group or persons the applicants should be compared with. As discussed by Justice Iacobucci in Law, the applicant will usually choose the comparator, however, a court may refine the comparison if the applicant's characterization is insufficient.
The Comparator Group
[42]In the present case, it is clear from the application that the original comparator group put forward by the applicants is the MNC. The applicants claim that the MNC is an inherently male-dominated organization that marginalizes the interests of women and actively seeks to exclude the MNCW from participating in all aspects of the Aboriginal employment programs. Moreover, because the MNC is the only Métis organization to have a national framework agreement with the government, the applicants and, more generally, Métis women are being denied access to critical employment programming and funding.
[43]The respondent generally agrees that the MNC is the appropriate comparator group, however, it would look beneath the organization to consider the individuals whom the applicants claim are benefiting from the employment programs. Because the first inquiry under the Law test focuses on differential treatment on the basis of personal characteristics, I agree it is appropriate to consider which individuals or groups of individuals are benefiting from the employment programs. The applicants claim that the MNC represents predominantly the interests of Métis men, therefore, the Court will refine the comparator slightly to "Métis men who are able to access employment programming or funding through the MNC or its affiliates".
[44]At the hearing, counsel for the applicants sought to mount a section 15 Charter claim against a further comparator group, the NWAC. The applicants argued that the government had discriminated against them on the basis of race by entering into a separate employment funding agreement with NWAC (an organization primarily representing status Indian women) and not awarding a similar agreement to the MNCW.
[45]The respondent objected to the introduction of NWAC as a comparator and to a discrimination claim based on race because this was not part of the original application and as a result, the respondent did not lead any evidence to rebut this allegation. Upon review of the application for judicial review, I must agree with the respondent's submissions. This application concerns discrimination against Métis women as compared with Métis men who are able to access benefits, be it programming or funding, under the employment programs. While race is certainly an element to be taken into account when considering the pre-existing disadvantage of the applicants as well as the other contextual factors relevant to a discrimination analysis, it is not open to the applicants to raise an entirely new claim based on race. It is well established that the Court will only deal with grounds of review invoked by the applicant in the originating notice of application and in the supporting affidavits. If the applicants were able to invoke new grounds of review at the hearing, the respondent would be prejudiced because it was not given an opportunity to address the new grounds in its affidavit or consider filing an affidavit to address a new issue. See Arona v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J No. 24 (T.D.) (QL) per Gibson J., at paragraph 9. See also Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697, at paragraph 20 where the Court of Appeal refused to consider a new comparator group raised on appeal because a change in comparator could work prejudice and unfairness to the parties who, before the decision maker, proceeded under a different assumption and adduced evidence accordingly.
[46]As a result, the appropriate comparator group for the purpose of this application is Métis men who are able to access employment programming or funding through the MNC or its affiliates.
Evidence required to establish differential treatment in other Aboriginal cases and in the present case
[47]In many instances, the first stage of the Law test is easily satisfied because it is clear that the applicants have been treated differently as compared to the comparator group. For example, in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 the Supreme Court had no difficulty finding that the Indian Act [R.S.C., 1985, c. I-5] drew a distinction between band members living on-reserve and those living off-reserve since the latter were excluded from the definition of persons eligible to vote in band elections. Similarly, in Lovelace v. Ontario, [2000] 1 S.C.R. 950 the Government of Ontario confirmed that the appellants, as non-band members, were subject to differential treatment because they were excluded from sharing in a fund designed for members of Indian bands.
[48]In Ardoch Algonquin First Nation v. Canada (Attorney General), [2003] 2 F.C. 350 (T.D.), affd [2004] 2 F.C.R. 108 (F.C.A.) the applicants challenged the same programs at issue in this proceeding. Justice Lemieux had no difficulty concluding that the employment programs drew a distinction between the applicants, who were urban and non-status Indians, and the comparator group of First Nations members living on reserves. In that case, the facts were clear, and the respondent acknowledged that urban and non-status Indians were not able to properly access employment programming under the framework agreement signed with the AFN.
[49]By contrast, the differential treatment claimed by the applicants in the present case is not evident. The applicants submit that they have experienced differential treatment under the employment programs because the federal government has refused to extend bilateral agreements to the MNCW and its affiliates, whereas the MNC and its affiliates have been awarded such agreements. The applicants state that the demonstrated exclusion of the MNCW is sufficient to discharge their burden under stage one of the Law test.
[50]The difficulty with the applicants' argument is that it is premised solely on the exclusion of the MNCW which, as a corporation, does not enjoy equality rights under the Charter nor does it have innate personal characteristics. See Ardoch (F.C.A.), at paragraph 23. Thus the fact that the MNCW has been excluded does not by itself demonstrate that there has been differential treatment within the meaning of subsection 15(1). In my view, to establish differential treatment the applicants have to demonstrate that the exclusion of the MNCW from negotiations and bilateral agreements has the effect of treating the individual applicant or Métis women in general differently on the basis of gender. To accomplish this, the applicants first have to demonstrate that MNCW represents the interests of Métis women and second, that the MNC, which purports to represent all Métis people, does not adequately represent the needs and interests of Métis women.
Evidence of differential treatment adduced in Native Women's Assn. of Canada v. Canada
[51]In Native Women's Assoc. of Canada v. Canada, [1994] 3 S.C.R. 627 (Native Women's) the Supreme Court of Canada considered a similar issue to the case at bar, namely whether the equality provision in the Charter requires that government funding be provided to a women's Aboriginal group in order to promote the representation of women. Because of the similarities between this case and the current proceeding, it is worth a review at this juncture.
[52]The Native Women's case considered whether there was a violation of section 15 of the Charter because a women's group had been excluded from representing the interests of Aboriginal women in negotiations with the federal government. In the early 1990s, the government entered into a contribution agreement with four Aboriginal organizations to provide $10 million to fund participation in constitutional negotiations. The concern of the NWAC was that the national Aboriginal organizations funded by the government were, as Justice Sopinka stated at page 636 of the decision:
. . . male-dominated so that there was little likelihood that a male majority would adopt the pro-Charter view of the NWAC.
[53]Justice Sopinka held that the arguments of the NWAC relate more closely to an equality argument under section 15 of the Charter than paragraph 2(b) Charter argument. He stated at pages 657-658:
In either case, regardless of how the arguments are framed, it will be seen that the evidence does not support the conclusions urged by the respondents.
There is no question here of the Government of Canada attempting to suppress NWAC's expression of its point of view with respect to the Constitution. The s. 2(b) argument advanced is dependent on a finding that the funding of and participation by NWAC were essential to provide an equal voice for the rights of women. A corollary to this submission is that the funded groups are not representative of Native women because they advocate a male-dominated aboriginal self-government. This is the submission that was accepted by the Court of Appeal and is the foundation of its judgment. A review of the factual record reveals that there was no evidence to support the contention that the funded groups were less representative of the viewpoint of women with respect to the Constitution. Nor was there any evidence with respect to the level of support of NWAC by women as compared to the funded groups. As well, the evidence does not support the contention that the funded groups advocate a male-dominated form of self-government. At this point, a closer examination of the evidence is necessary in order to illustrate my conclusion.
[54]Justice Sopinka made several findings relevant to the case at bar. In particular, he concluded that there was no evidence to support the contention that the funded groups were less representative of the viewpoint of women than NWAC or that the funded groups advocated a male-dominated viewpoint. Moreover, there was no evidence of the level of support of NWAC by women as compared to the funded groups.
[55]As will be discussed further below, I have come to exactly the same conclusion in the present case. The evidence before the Court does not support the contention that the MNC is less representative of Métis women with respect to the employment programs than the MNCW. Nor is there any evidence that the MNC advocates a male-dominated viewpoint, or gives a preference to male Métis with respect to the negotiation, administration and disbursal of funds under the employment programs. Finally, there is no evidence that Métis women support the MNCW, as compared to the MNC.
[56]Justice Sopinka concluded at page 665 that the arguments with respect to section 15 of the Charter failed for a lack of evidence. He held:
I have concluded that the arguments of the respondents with respect to s. 15 must also fail. The lack of an evidentiary basis for the arguments with respect to ss. 2(b) and 28 is equally applicable to any arguments advanced under s. 15(1) of the Charter in this case. I agree with the Court of Appeal that s. 15(1) is of no assistance to the respondents.
[57]Justice Sopinka was speaking on behalf of seven Supreme Court Judges, including Chief Justice Lamer and Justice Iacobucci. Justices L'Heureux-Dubé and McLachlin [as she then was] gave concurring reasons.
[58]Counsel for the applicants submitted that the Native Women's decision of the Supreme Court is no longer applicable law because the Supreme Court has restated the general approach to a section 15 analysis, which must be purposive and contextual and mandates a three-stage inquiry. In my view, the Supreme Court of Canada's decision in Law, does not affect the elementary principle that a person challenging a government law, program or action under section 15 of the Charter must provide some evidence to support the contention.
Evidence of differential treatment adduced in the present case
(i) No evidence that the MNC fails to properly represent the interests of Métis women
[59]MNC purports to represent the needs and interests of all Métis persons, including women. Moreover, the national framework agreement with the MNC recognizes that gender equity is an essential characteristic of all programming and service delivery and that gender equity is to be recognized in all regional bilateral agreements negotiated with MNC affiliates. Consequently, it is not evident from the outset that by entering into an agreement with the MNC, the government has excluded Métis women from benefits under the employment programs. In order to establish that Métis women are being treated differently under the employment programs, the applicants must adduce some evidence to demonstrate that the MNC does not properly represent the interests of women or that the MNC advocates a male-dominated viewpoint.
[60]The applicants did not present any evidence as to the composition of the MNC or the participation of women in that organization. The only evidence on the record was provided by a witness for the respondent. It states that the MNC is governed by a board of directors made up of presidents of provincial Métis associations and the national president. For the year 2001, there is a photograph of the Board of Governors at page 394 of Volume 1 of the Application Record for the respondent. The photograph shows seven persons on the Board of Governors, which include two women; Lisa McCallum, spokesperson of the Métis Women's Secretariat, and Audrey Poitras, President, Métis Nation of Alberta. Other evidence shows that Audrey Poitras has served as interim president of the MNC.
[61]The evidence also shows the Métis Nation of Ontario which is governed by 20 elected members of the Métis community. Seventeen of the elected members are shown in the evidence, of which six are women.
[62]The evidence also shows that there is an association of Métis women in Ontario called the Women of the Métis Nation in Ontario (WMNO). There are 13 elected representatives on the WMNO. There is no evidence that the WMNO supports the applicants in this case.
[63]Furthermore, the applicants have adduced almost no evidence to demonstrate that Métis women have encountered difficulties accessing programming or funding under the MNC national framework structure. In her affidavit at paragraph 17 and following, Joyce Gus deposed that her company submitted an application for project funding to the Manitoba Métis Federation for a project designed to assess the level and nature of need in Métis communities in the region for education and resources relating to family violence. The proposal would have created employment for two staff persons and would have provided employment training in an area of known need to members of the community. It is alleged that this application was not processed, that it was repeatedly put "on hold", and then on June 1, 1998 in a letter from a woman representing the Manitoba Métis Federation, Ms. Gus was advised that the management board referred the proposal to "Denise Thomas, Vice-President of the Southeast Region of the Manitoba Federation Inc.", because:
Your proposed activities were in fact a duplication of various duties of the Métis child and family support worker currently based in the Southeast Regional office.
[64]In my view, this does not constitute sufficient evidence that Métis women have been treated differently, or that the administration of the program is male-dominated. From the evidence on the record, the key officials making the decisions as to whether to accept this project were all women. I cannot find that this evidence demonstrates differential treatment on the basis of gender.
[65]The only other evidence on the record consists of a document, which is a skeletal overview of the gender of Métis who received employment grants for the fiscal year ending March 1999 (Volume 1, application record of the respondent, page 361). This document breaks down the number of male and female recipients of benefits in 13 regions of Canada. In all cases, the number of female recipients is equal to or similar to the number of male recipients. For example, the first region provided is the Métis Provincial Council of British Columbia, where 56% of the clients receiving benefits under the program were female Métis. The actual number is 171 female Métis received benefits and 131 male Métis received benefits.
[66]The applicants must provide at least some rudimentary evidence to demonstrate that they are being treated differently on the basis of personal characteristics (i.e., gender). In my view, the applicants have produced no evidence to show that Métis women are not properly represented by the MNC or that they have encountered difficulties accessing benefits under the MNC national framework structure compared to Métis men. In fact, the evidence presented by the respondent suggests otherwise.
(ii) No evidence of level of support for MNCW by Métis women
[67]In order to demonstrate that the exclusion of the MNCW has the effect of treating Métis women differently, the applicants must also establish that the MNCW enjoys some measure of support among Métis women. Based on the record, there is a complete absence of evidence in this respect. The affidavit evidence from Ms. Genaille is that the MNCW is comprised of six affiliated Métis women's organizations and that these six affiliates account for approximately 62,000 Métis women out of the approximate 70,000 Métis women in Canada. Upon cross-examination of Ms. Genaille, it was clear to the Court that this evidence is not credible. In cross-examination, Application Record, Volume 2, page 873, and for the next approximate 75 pages, it is obvious that Ms. Genaille does not have any evidence regarding the level of support by Métis women for the MNCW. There is no membership list and there is no credible evidence that the regional Métis women's organizations support the MNCW. The cross-examination showed that the witness seems to have made up the information. For example, the exchange at pages 891-895 of the cross-examination demonstrates that the deponent did not provide any credible evidence for the number of Métis women supporting the six regional associations of Métis women. Moreover, there was no evidence that the regional associations of Métis women supported the MNCW, as opposed to the MNC. The evidence was simply lacking and whatever evidence was provided, was shown on cross-examination to not be credible or intelligible.
[68]The Court appreciates that the Métis women may not keep membership lists, and that this is not a prerequisite to demonstrating support. However, there were no witnesses from any of these regional associations of Métis women who indicated that regional associations support the MNCW, as opposed to the MNC, or that the MNC does not properly or adequately represent the interests of Métis women.
CONCLUSION
[69]Based on the record before the Court, there is insufficient evidence to conclude that the MNC advocates a male-dominated perspective or that it does not properly represent the needs and interests of Métis women. Moreover, the applicants have provided no credible evidence with respect to the level of support enjoyed by the MNCW as compared to the MNC. In such circumstances, the Court cannot conclude that the exclusion of the MNCW from negotiations or from regional bilateral agreements has the effect of treating Métis women differently from Métis men who benefit from programming and funding under the Aboriginal employment programs.
[70]Moreover, this is an application for judicial review of the decision by HRDC to exclude Métis women. The evidence on the record before HRDC is such that on any standard of review, the Court cannot conclude that HRDC acted incorrectly or unreasonably in excluding the MNCW. The MNCW presented HRDC with no evidence that it represents the interests of Métis women, that the MNC does not represent the interests of Métis women, or that the delivery of the employment opportunity programs has the effect of treating Métis women differently on the basis of personal characteristics.
[71]For these reasons, the applicants have not established differential treatment by HRDC against Métis women or the individual applicant. Accordingly, the Court finds that the applicants have not passed the first stage of inquiry in a section 15 Charter claim. As the applicants have not met the first stage of the inquiry, there is no need to proceed to the remaining two stages under the section 15 equality analysis and this application for judicial review must be dismissed.
COSTS
[72]Both parties seek their costs. The applicants seek their costs in any event of their success. In view of the fact that the applicants have adduced no evidence of differential treatment for Métis women in relation to Métis men, which is an obvious and minimum evidentiary requirement for a case such as this, there is no reason not to award the respondent his legal costs on a party-and-party basis. This application was missing the elementary evidentiary basis necessary to mount such a constitutional challenge.