Mushkegowuk Council, et al. v. Ontario

Mushkegowuk Council, et al. v. Ontario Collection Decisions of the Court of Appeal Date 2000-03-02 Docket numbers C32803 Judges Doherty, David H.; Laskin, John Ivan; Moldaver, Michael James Subject Civil Decision Content DATE: 20000302 DOCKET: C32803 COURT OF APPEAL FOR ONTARIO RE: MUSHKEGOWUK COUNCIL, ATTAWAPISKAT FIRST NATION, CHAPLEAU FIRST NATION, FORT ALBANY FIRST NATION, KASHECHEWAN FIRST NATION, MISSANABIE FIRST NATION, MOOSE CREE FIRST NATION and WEENUSK FIRST NATION (Respondents) – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Appellant) – and – ATTORNEY GENERAL FOR CANADA (Intervener) BEFORE: DOHERTY, LASKIN and MOLDAVER JJ.A. COUNSEL: Lori Sterling, Peter Landmann and Rebecca Givens for the appellant Murray Klippenstein for the respondents Charlotte Ann Bell and Scott Warwick for the intervener HEARD: February 29, 2000 On appeal from the judgment of Mr. Justice Pitt dated August 23, 1999. E N D O R S E M E N T [1] At the outset of the argument, the court explored with the parties the possibility of resolving the specific issue raised in this litigation without addressing the broader issues underlying the litigation. Although the parties could not come to any agreement on the exact disposition of the appeal, they did, through their co-operative efforts, arrive at a clear statement of their positions which, in our view, were not far apart. Given the positions taken by the parties before us, we are satisfied that this litigation can, and should be resolved by relief that does not address the broad constitutional issues underlying the litigation. Those issues were addressed by Pitt J. and we want to make it clear that in disposing of the case in the way we do, we are not addressing the merits of the issues considered by him. We should not be taken as coming to any conclusion one way or the other on those issues. [2] In our view, the specific problem raised in this litigation is properly resolved by an order in the following terms: 1. The judgment of Pitt J. is set aside. 2. The respondents are entitled to a declaration that in the light of the 1965 Welfare Agreement, the powers granted to the Minister under s. 38 of the Ontario Works Act must be exercised with the consent of the band. 3. Any band not wanting to be a delivery agent under s. 38 of the Ontario Works Act shall indicate to the Minister on or before July 1, 2000 that it does not consent to being a delivery agent and the Minister shall immediately revoke the designation of that band. 4. The designation of the bands as delivery agents under Regulation 136-98 shall continue while the bands determine whether they wish to consent to being delivery agents. It shall continue, however, on the understanding expressed in paragraph 13 of the reasons for judgment of Sharpe J.A. granting a stay in these proceedings. 5. There shall be no order for costs on the appeal. [3] Given the declaration in paragraph 2, the court does not find it necessary to decide and does not decide the constitutional issues raised by the parties, and specifically does not decide whether, apart from the 1965 Agreement, the consent of a band would be required before the government could designate it under s. 38 of the Ontario Works Act.