Court of Appeal Decision of the Week

Challenging a Tribunal’s Discretion to Extend Time Periods

Case: Isbister v Metis Settlements Appeal Tribunal, 2015 ABCA 164

Keywords: Aboriginal, administrative tribunal, extension to time to appeal, membership, Métis, Indian Act

Synopsis: Linda Isbister, the appellant, lived on the Fishing Lake Metis Settlement for most of the first 22 years of her life between 1948 and 1970. After 1970, the evidence was unclear as to when she was living on or off the Settlement. In 1982, at the time of her marriage she was registered as an Indian under the Indian Act. She was 35 years old. In 2008 she was living on the Settlement and was serving as its administrator. She applied for membership and it was approved by the Council. Four and a half years later, in 2013, the respondent appealed the approval of Isbister’s membership application. The Metis Settlements Appeal Tribunal extended the time to appeal (normally 45 days). They held that she was not entitled to apply for membership by virtue of s. 75(2) of the Indian Act because she acquired Indian status through marriage after she reached 18 years of age. It revoked her membership in the Settlement. The C.A. allowed the appeal, vacated the Tribunal’s order and restoring Isbister’s name to the membership list.

Importance: Many administrative tribunals have provisions in their home statutes providing decision-makers the discretion to allow for non-compliance with rules and to extend time periods. Indeed, these provisions often go to the core of the purpose of administrative tribunals: to provide a specialized alternative to an often slow and expensive court process. At issue in this appeal is a time extension provision and more specifically whether it was reasonable for a tribunal to extend a 45-day time period to allow for an appeal brought 4 1/2 years later. This decision provides an example of how such a provision may be successfully attacked.

The Metis Settlements Act, RSA 2000, c M-14 provides as follows:

83(2) If a settlement council approves an application for membership in a settlement, any member of the settlement may appeal in writing to the Appeal Tribunal within 45 days after the application was approved.

202 When a matter before the Appeal Tribunal is, by this Act or any other enactment or by any rule or decision of the Tribunal, required to be done within a specified time and if the circumstances of the case in its opinion so require, the Tribunal may, with or without notice, extend the time so specified or waive the requirement whether or not the time has expired.

The C.A. took a restrictive view of the operation of the extension provision. It found that it was unreasonable for the Tribunal to conclude that it had the power under s. 202 to extend the appeal period contained in s. 83(2) for bringing an appeal. Section 202 only operates once an appeal is validly before the Tribunal and therefore doesn’t apply to s. 83(2). The Court also considered that there was no specific power in the Act to extend the appeal period and that the provision must be interpreted with related provisions regarding when a membership approval was “final”. To conclude its interpretation, the Court considered policy and the Legislature’s objective of “securing certainty and finality in these important matters” of membership (para. 42).

The C.A. dismissed all other grounds of appeal suggesting that if it was not for the delay in bringing the appeal, the Tribunal may have been acting reasonably in revoking the appellant’s membership.

Counsel for the Appellant: Patrice Taylor (Taylor, Patrice Lea, Barrister & Solicitor, Lac La Biche)

Counsel for the Respondent Metis Settlements Appeal Tribunal: Kirk Lambrecht, Q.C. (Shores Jardine LLP, Edmonton)

Counsel for the Respondent Fishing Lake Metis Settlement: Janice Agrios, Q.C., (Kennedy Agrios LLP, Edmonton)

Counsel for the Respondent Morris Aulotte: Thomas Owen and Tara Rout (Owen Law, Edmonton)

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Posted: Tuesday, May 19, 2015