Court of Appeal Decision of the Week

Civil Procedure: When Can a Non-party Appeal?

Case: Peavine Metis Settlement v. Whitehead, 2015 ABCA 366 (CanLII)

Keywords: Aboriginal Law; Rights of Appeal; Metis Settlement Appeal Tribunal; Metis Settlements Act, RSA 2000, c M-14; Indian Act, RSC 1985, c I-5

Synopsis:

At the Gift Lake Metis Settlement current members were given an opportunity to vote on the merits of granting membership to Lyle Whitehead and Brandon Laboucane.

Lester Calaheson objected to the validity of the voting list, maintaining that certain persons (on the current membership list) are ineligible for membership. An inaccurate membership list creates the following problem: persons who are not entitled to be members vote on matters affecting the Metis settlement.

Gift Lake Metis Settlement allows any person on the current membership list to vote and, following a close decision (Mr. Whitehead: 73 for admission, 72 against with 3 spoiled ballots; Mr. Laboucane: 72 for admission, 71 against with 5 spoiled ballots), Council gave third reading to by-laws making both Mr. Whitehead and Mr. Laboucane members.

Mr. Calaheson appealed this decision to the Metis Settlement Appeal Tribunal, asserting that at least 67 persons who are not eligible to be members were listed as members of the Gift Lake Settlement.

On May 15, 2015 the Appeal Tribunal held that the position adopted by Gift Lake Metis Settlement was both reasonable in the circumstances and lawful for the following reason: the Registrar does not backdate the removal of members from the Settlement Members List. Why? Because the Settlement Members List could not be relied on to accurately show who is and is not a member on any given day. A “go-forward” approach is preferred to retroactive termination of membership because, “In short, it would effectively undo self-governance on the Metis Settlements of Alberta” (see para. 34).

Although no one who participated in the Metis Settlement Appeal Tribunal proceeding sought permission to appeal, three other Metis Settlements (Peavine Metis Settlement, Elizabeth Metis Settlement and East Prairie Metis Settlement) now seek leave to appeal the Tribunal’s decision at the Court of Appeal.

Specifically, the Court of Appeal was asked to answer the following questions:

  1. Does this Court have jurisdiction to permit a non-party to the proceedings before the Appeal Tribunal to file a leave to appeal application?
  2. If so, should the Court exercise its jurisdiction in favour of the applicants and grant them permission to appeal?

Ultimately, the Court of Appeal found that an appeal is a statutory right. As such, a person is not entitled to an appeal or to seek leave to appeal without some specific statutory authorization.

As there is no statutory provision which expressly grants the applicant Metis Settlements the right to seek permission to appeal the Appeal Tribunal’s decision, the general rule – that only a party may seek permission to appeal – applies in this case.

Since the answer to the first question was negative, it was unnecessary for the Court of Appeal to answer the second question.

Importance:

For the Court of Appeal, the controversy in this case originated with the decision of Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239 (CanLII). In Cunningham, the Alberta Court of Appeal declared unconstitutional provisions in the Metis Settlement Act that had precluded some persons (registered Indians under the Indian Act) from being members of a Metis settlement. Many status Indians applied for and were granted membership in Metis settlements. However, the Supreme Court later reversed that decision and declared the challenged membership provisions in the Metis Settlement Act constitutional.

Although Section 204(1) of the Metis Settlements Act creates a limited right of appeal measured by subject matter, “regrettably” for the Court, no provision states who may seek leave to appeal.

The Court of Appeal found that the “principle of finality” militates in favour of allowing the parties to decide when a dispute has been resolved. See, for example, Alliance for Marriage and Family v. A.A., 2007 SCC 40 (CanLII) where the Supreme Court stated, in the context of Rule 18(5), it had never allowed a private applicant to revive litigation in which it had no personal interest. Moreover, the principle that judicial resources should be deployed in an economical manner suggested to the Court that it should be reluctant to hear an appeal from a decision that the parties have decided not to contest themselves.

The Court went on to state that, as a general rule, “a non-party cannot appeal”. Moreover, intervener status is “…not a sufficient reason to allow a non-party to appeal” (for an excellent summary of the relevant case law see paras. 46-47 and footnotes).

No exceptional circumstances could be found to justify permitting the applicants to appeal. The contested order did not compel the applicants to do or refrain from doing anything. The decision simply binds Gift Lake Metis Settlement, Mr. Calaheson, Mr. Whitehead and Mr. Laboucane. Furthermore, the law governing the obligation of the Registrar to protect the integrity of membership lists had been dealt with in Gauchier v Alberta (Metis Settlements Land Registry), 2014 ABCA 356 (CanLII) and neither of the applicants could have been parties before the Tribunal.

Counsel for the Applicants: Richard Hajduk (Hajduk Gibbs LLP, Edmonton)

Counsel for the Respondent Gift Lake Metis Settlement: Paul Seaman (Gowling Lafleur Henderson LLP, Vancouver)

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

Counsel for the Respondents Registrar of the Metis Settlements Land Registry and Metis Settlements General Council: Jamie Speer (Alberta Justice and Solicitor General, Edmonton)

Respondents: Lyle Whitehead, Brandon Laboucane, and Lester Calaheson (In Person)

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Posted: Wednesday, December 02, 2015