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COMMUNITIES AND GOVERNANCE - Government funding and services

Wednesday, June 19, 2019 @ 10:01 AM  


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Application by the Dauphin River First Nation (DRFN) for judicial review of the decision by Indigenous Services Canada (ISC) to terminate evacuee benefits. In the spring of 2011, DRFN was evacuated due to the flooding of its reserve lands. Many members of the DRFN were forced to relocate temporarily to Winnipeg or elsewhere in Manitoba. ISC provided DRFN members with benefits aimed at securing alternative housing while waiting for new houses to be ready. Many, if not all, of the 53 houses previously existing in DRFN were destroyed or rendered inhabitable. In the summer of 2018, 70 new houses were ready or about to be ready for occupancy. As a result, ISC declared that the evacuation was over and terminated the evacuee benefits. DRFN took the position that the 70 houses built so far were insufficient to address the needs of the community and there remained 45 evacuee families who had no home to return to when their benefits were terminated. It submitted that when the community was evacuated, ISC promised that a house would be built for every evacuated family. It also argued that the decision was not made in a procedurally fair manner. The Attorney General denied that such a promise was ever made and took the position that the termination of the evacuee benefits was reasonable because DRFN now had more houses and a lower rate of occupancy than before the flood. The Attorney General further argued that the decision to provide or to terminate benefits was a prerogative decision that courts could not review.

HELD: Application dismissed. Whether the Attorney General’s arguments were viewed as a challenge to the court’s jurisdiction or the justiciability of the matter, the argument failed. The decision was not shielded from review because it was made under the royal prerogative or involved the application of public funds. However, the process leading to the decision complied with the requirements of procedural fairness. ISC did not make promises that were clear, unambiguous and unqualified, to give rise to a legitimate expectation. In any event, the doctrine of legitimate expectation related only to process and not to substance. Furthermore, the decision was reasonable. The decision took into account the collective needs of DRFN members. The decision maker was not required to consider individual situations before terminating the evacuee benefits program. DRFN failed to prove that a fiduciary duty existed in this case.

Dauphin River First Nation v. Canada (Attorney General), [2019] F.C.J. No. 541, Federal Court, S. Grammond J., May 9, 2019. Digest No. TLD-June172019008