Date: 20000322
Docket: T-1252-99
BETWEEN:
JEANNINE MORIN, personally, and on behalf of
a class of persons having the same interest, which
class is more particularly described in Appendix "A"
of the Statement of Claim
Plaintiffs
-and-
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
LAFRENIÈRE, P.
[1] These reasons arise out a motion by the Defendant to strike out paragraph 9 of the statement of claim pursuant to Rule 221 of the Federal Court Rules, 1998 as disclosing no reasonable cause of action. The paragraph in question states that lands leased by the Plaintiffs from the Defendant are a "residential land lease community" as defined in landlord and tenant legislation of Ontario and that the provincial regime therefore governs. The Defendant submits that the leased lands are "lands reserved for the Indians" over which Parliament has exclusive jurisdiction and that consequently the Ontario legislation is inapplicable.
[2] On a motion to strike out for want of a reasonable cause of action, the facts set out in the statement of claim must be taken as proven. Moreover, a determination as to whether it is plain and obvious that the cause of action cannot possibly succeed must be made without the assistance of any affidavit material. The Court must ultimately exercise great care in applying the "plain and obvious test" for the reasons as articulated by Prothonotary Hargrave in Hodgson et al v. Ermineskin Indian Band No. 9421:
| This law on striking out of pleadings is sometimes referred to as trite law. Yet it bears repeating for otherwise, perhaps in an effort to save expense for all concerned and to preserve the resources of the Court, there is a temptation to strike out a pleading too easily. To strike out without keeping strictly to the safeguards of the stringent requirements is to deprive a party of what may well be a proper and deserved day in court and perhaps in the process, on occasion, stifle the advancement or refinement of the law. However, where a proceeding is fruitless and will not lead to a practical result, the resources of all concerned ought not to be squandered. |
THE FACTS
[3] The parties are in agreement that the relevant facts are succinctly set out in the Defendant"s written submissions.
[4] The Plaintiffs are lessees of lots described in Appendix "A" of the Statement of Claim pursuant to several leases entered into between themselves and the Defendant, Her Majesty the Queen. The leases are for a term of years ending March31, 2004.
[5] The leases contain a provision for negotiating the annual fair market rent payable for the period of 5 years commencing April 1, 1999. Failing agreement between the parties as to fair market rent, the leases provide that the Minister of Indian Affairs and Northern Development (the "Minister") determines the "fair market rent" payable for the five year term.
[6] The leases further provide that in the event the lessees disagree with the Minister"s determination, they may refer the question of rental to this Court.
[7] The Plaintiffs allege that the Nipissing Band, acting on behalf of the Minister pursuant to delegated authority, failed to negotiate the rental as required by the leases and further, unilaterally set the rent without consideration of fair market value of the land and without considering the applicable Bank of Canada rate.
[8] The Plaintiffs further allege that the Nipissing Band exceeded its authority in making the rental determination by failing to follow the terms of the leases and the terms of the Ministerial delegation described in paragraph 5 of the Statement of Claim.
[9] Consequently, the Plaintiffs seek a determination of fair market rent payable, with respect to the leases of the various categories of lots outlined in Appendix "A" of the Statement of Claim for the period April 1, 1999 to March 31, 2004, as well as interim rent payable pending the outcome of the present proceeding.
[10] At paragraph 9 of the Statement of Claim, the Plaintiffs plead that the leased lands comprise a "residential land lease community" as defined in Ontario landlord and tenant legislation and are therefore subject to the provincial legislative regime. The Plaintiffs plead and rely on the provisions of the Rent Control Act , S.O. 1992, as amended, and The Tenant Protection Act, S.O. 1997, as amended.
[11] The Tenant Protection Act repeals The Rent Control Act, 1992. Thus, it is only the provisions of The Tenant Protection Act which need be addressed in this motion. Provisions of The Tenant Protection Act which would directly limit Her Majesty the Queen in Right of Canada as lessor to the leases in issue are sections 8(4), 17(4), 17(5), 31, 32, 33, 34, 35, 39, 41, 43, 48, 69, 70, 71, 72, 105, 117, 121, 122, 123, 124, 126, 127, 129, 138, 142, 146, 149, 157-199, 206 and 208.
THE DEFENDANT"S POSITION (MOVING PARTY)
[12] The Defendant submits that The Rent Control Act and The Tenant Protection Act do not apply to "lands reserved for the Indians" and thus cannot be relied upon by the Plaintiff to found a cause of action.
[13] The Defendant contends that Parliament has exclusive federal jurisdiction over "Indians, and Lands reserved for the Indians" based essentially on the following reasoning of Chouinard, J. in Derrickson v. Derrickson2:
| Section 91(24) of the Constitution Act, 1867 confers exclusive legislative authority on Parliament of Canada in "all Matters" coming within the subject "Indians, and Lands reserved for the Indians". |
| Title to reserve lands is vested in the Crown, federal or provincial. So long as they remain such, reserve lands are administered by the Federal Government and Parliament has exclusive legislative authority over them. The Indian Act, enacted under that authority, provides in s. 18(1): |
| 18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band. |
| The purpose of the above subsection is to ensure that lands reserved for Indians are and remain used for the use and benefit of the land. |
[14] The Defendant submits that lands in question remained reserve lands notwithstanding their surrender for leasing purposes (see Re Stony Plain Indian Reserve No. 135 3). As such, Parliament retains exclusive legislative authority with respect to the possession, occupation, use, control and management of the leased lands in issue as expressed in various provisions of the Indian Act, R.S.C. 1985, c. I-5.
[15] The Defendant further submits that section 91(24) of the Constitution Act, 1867 protects a core federal jurisdiction (i.e. Indians and lands reserved for Indians) from provincial laws of general application through the operation of the doctrine of interjurisdictional immunity. Each head of federal legislative power under the Constitution Act, 1867, it is argued, possesses a basic, minimum and unassailable content which the provinces are not permitted to regulate indirectly through valid laws of general application.
[16] The Defendant submits that it is important to maintain uniformity in the Crown"s management of Indian affairs. This key factor must be taken into account when considering whether provincial laws of general application can indirectly regulate such a core federal jurisdiction (see Ordon Estate v. Grail 4).
[17] It is submitted that the application of provincial rent control legislation would make it impossible for Canada to abide by its treaty obligations relating to Indian matters. More specifically, it would make it impossible for Canada to fulfill its fiduciary obligations to lease surrendered reserve lands in the best interests of the Indian band. This obligation was recognized by the Supreme Court of Canada in Guerin v. The
Queen 5:
| The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians....The ©Indianª interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians... The Crown"s original purpose in declaring the Indian"s interest to be inalienable otherwise than to the Crown was to facilitate the Crown"s ability to represent the Indians in dealings with third parties... Through the confirmation in the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties, Parliament has conferred upon the Crown a discretion to decide for itself where the Indians" best interests really lie. This is the effect of s. 18(1) of the Act. |
THE PLAINTIFFS" POSITION (RESPONDING PARTY)
[18] The Plaintiffs submit that the facts contained in the impugned pleading are deemed to be proven for the purpose of the motion. Since paragraph 9 of the Statement of Claim pleads that the subject lands are a "residential land lease community", this fact must be accepted as proven. Section 1 of The Tenant Protection Act defines "land lease community"as follows:
| "land lease community" means the land on which one or more occupied land lease homes are situate and includes the rental units and the land, structures, services and facilities of which the landlord retains possession and that are intended for the common use and enjoyment of the tenants of the landlord; ("zone résidentielle à baux fonciers") |
[19] In addition to the facts pleaded in the Statement of Claim, the Plaintiffs submit that the Court is entitled to take judicial notice of the following facts with respect to landlord and tenant legislation:
| (1) that it is exclusively assigned to the province under the Constitution Act, 1867; |
| (2) that it is a fundamental and sweeping component of any modern state that has a major impact on the living conditions found in society; |
| (3) that it comprises a complex code of rules to manage the balance between two historically adverse parties, the landlord and the tenant; |
| (4) that its purpose is to protect the tenant from the usually dominant landlord and does not allow for contracting out; |
| (5) that the rent control provisions represent a crucial control over balancing the rights of tenants against maintaining the stock of affordable rental housing; and |
| (6) that the net effect of the legislation is to stabilize one of the most important areas of the citizen"s life - the need for shelter. |
[20] The Plaintiffs submit that landlord and tenant legislation is exclusively assigned to the province under section 92(13) of the Constitution Act, 1867 - "Property and Civil Rights". Consequently, no federal landlord and tenant legislation is permissible save as ancillary legislation to a section 91 power. The Plaintiffs argue that the only federal legislation which has been enacted is the Indian Act and that the provincial legislation does not conflict with any of its provisions.
[21] The Plaintiffs submit that the general rule is that provincial laws apply to Indians and lands reserved for Indians (see R. v. Hill 6, Four B Manufacturing v. United Garment Workers 7 and R. v. Francis 8) unless they fall under certain exceptions carved out in the
case law 9 as follows:
1) provincial laws cannot derogate from constitutionally protected Indian rights;
2) provincial laws may not affect "Indianness" - the status or capacities of Indians;
3) provincial laws may not single out Indians for special treatment;
4) provincial laws may not affect the Indian interest in land;
5) provincial laws are subject to paramount federal legislation.
[22] The Plaintiffs seek to distinguish the Ordon Estate10 decision on the basis that it involves actual conflict between provincial and federal legislation. They argue that there is no such conflict in this case and even if one arose, the effect of the decision is that any offending provincial provision would be "read down".
[23] Finally, the Plaintiffs submit that the provincial landlord and tenant legislation becomes applicable to lands reserved to Indians through section 88 of the Indian Act which incorporates by reference provincial laws of general application. They maintain that Parliament is at liberty to occupy this field by enacting legislation for Indians and lands for Indians, but until it does, provincial legislation applies.
ANALYSIS
[24] Consideration as to whether paragraph 9 of the statement of claim ought to be struck out should be in the context of the whole of the statement of claim. Moreover, the statement of claim must be read with "a generous eye and should only ©be struckª if it is plain and obvious that the pleading must fail at trial" (see Martel v. Samson Band 11).
[25] In Cardinal v. Alberta (Attorney General)12, Martland J., speaking for the majority, discussed the application of provincial statutes to Indians and Indian Reserves:
| A Provincial Legislature could not enact legislation in relation to Indians, or in relation to Indian Reserves, but this is far from saying that the effect of s. 91(24) of the British North America Act, 1867, was to create enclaves within a Province within the boundaries of which Provincial legislation could have no application. In my opinion, the test as to the application of Provincial legislation within a Reserve is the same as with respect to its application within the Province and that is that it must be within the authority of s. 92 and must not be in relation to a subject-matter assigned exclusively to the Canadian Parliament under s. 91. Two of those subjects are Indians and Indian Reserves, but if Provincial legislation within the limits of s. 92 is not construed as being legislation in relation to those classes of subjects (or any other subject under s. 91) it is applicable anywhere in the Province, including Indian Reserves, even though Indians or Indian Reserves might be affected by it. My point is that s. 91(24) enumerates classes of subjects over which the Federal Parliament has the exclusive power to legislate, but it does not purport to define areas within a Province within which the power of a Province to enact legislation, otherwise within its powers, is to be excluded. |
[26] Based on the above, there is no automatic exclusion of provincial legislation. The Court must first assess whether provincial legislation is "in relation to" a subject-matter assigned exclusively to Parliament under s. 91.
[27] I am mindful of three decisions cited by the Defendant which stand for the proposition that the exclusive power to legislate with respect to residential tenancies upon Indian land reserves resides with Parliament 13. Notably, in the matter of the Millbrook Indian Band, Morrison, J. was dealing with an application to quash a decision of the Northern Counties Residential Tenancies Board on the grounds that it exceeded its jurisdiction by making a decision relating to Indian reserve lands. He concluded that the provincial residential tenancy legislation had the effect of regulating the use of the Indian reserve land and was therefore inapplicable based on the following reasoning:
| Counsel for the respondent has argued that the Residential Tenancies Act does not deal with the use of land but rather with a relationship which arose out of a particular land use. I find it difficult to accept this argument as it seems to me that the Residential Tenancies Act basically is legislation dealing with the management, use and control of land by both landlords and tenants. Indeed, s. 6 [am. 1970-1971, c. 74, s. 2; 1975, c. 64, s. 3] of the Residential Tenancies Act, provides for compliance with laws respecting health, safety and housing standards. |
| There is no question but that the Province does have the right to enact legislation of this type pursuant to the property and civil rights clause, s. 92(13) of the British North America Act, 1867. However, when this legislation which in its application to Indian reserves does relate to the control and the regulation of tenancies on an Indian reserve, then it becomes legislation in relation to the use of land reserved for Indians. Consequently, it would therefore appear to be in conflict with s. 91(24) of the British North America Act, 1867 and would have no application to Indian reserves. The exclusive power to legislate on "Indians, and Lands reserved for the Indians" is granted by s. 91(24) of the British North America Act, 1867 to the Canadian Parliament. |
[28] An appeal from this decision was dismissed by the Appeal Division of the Nova Scotia Supreme Court on other grounds14.
[29] This decision, as well as the two others cited by the Defendant, are fairly compelling. However, all three are at the trial level and no appellate court has yet to deal specifically with these issues raised by the Plaintiffs in this proceeding. Is rent control legislation applicable to non-Indians leasing Indian reserve lands ? Is the provincial legislation truly "in relation to" to Indian reserve lands ? In my view, the Plaintiffs raise an arguable case that provincial landlord and tenant legislation, or parts thereof, may be applicable. This argument may be difficult, but I am not prepared to say that it has no possibility of success.
[30] Moreover, I must accept as proven that the lands in question are a "land lease community" within the meaning of The Tenant Protection Act . In fact, there is no factual basis upon which I can conclude, as asserted by the Defendant, that the lands are "lands reserved for the Indians".
CONCLUSION
[31] I have concluded that the defendant's motion must fail. It is not plain and obvious that the impugned paragraph does not disclose a reasonable cause of action and cannot possibly succeed.
Prothonotary
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1252-99 |
| STYLE OF CAUSE: JEANNINE MORIN, personally, and on behalf of a class of persons having the same interest, which class is more particularly described in Appendix "A" |
of the Statement of Claim
| - and - |
| HER MAJESTY THE QUEEN |
| DATE OF HEARING: MONDAY, DECEMBER 6, 1999 |
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: LAFRENIÈRE P. |
DATED: WEDNESDAY, MARCH 22, 2000
APPEARANCES: Mr. Hubert E. Mantha, and
Ms. S. Leclair
| For the Plaintiffs |
| Mr. Gary N. Penner |
| For the Defendant |
SOLICITORS OF RECORD: Hubert E. Mantha
Barrister and Solicitor
215 College Street
Suite 216
Toronto, Ontario
M5T 1R1
| For the Plaintiffs |
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 20000322
Docket: T-1252-99
Between:
| JEANNINE MORIN, personally, and on behalf ofa class of persons having the same interest, which class is more particularly described in Appendix "A" |
of the Statement of Claim
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
| REASONS FOR ORDER |
__________________
2 ©1986ª 1 S.C.R. 285 at p. 293
3 ©1982ª W.W.R. 133 (Alta. C.A.)
5 ©1984ª 2 S.C.R. 335 at pp. 376, 382-384
9 Hogg, Constitutional Law of Canada, (1998) Vol. 1, Chapter 27, pp 27-10 et seq.
11 [1999] F.C.J. No. 374 (T.D.) (QL), at paragraph 2.
12 [1974] S.C.R. 695 at page 703
13 Anderson v. Triple Creek Estate, ©1990ª B.C.J. No. 1754 (S.C); Matsqui Indian Band v. Bird , ©1992ª B.C.J. No. 1887 (S.C.) and Re A.G.N.S. and Millbrook Indian Band , (1978), 84 D.L.R. (3d) 174 (N.S.S.C.)
14 Re A.G.N.S. and Millbrook Indian Band, (1978), 93 D.L.R. (3d) 230