Dakota Plains First Nation v. Smoke

Date: 20220616

Docket: T-137-22

Citation: 2022 FC 911

Ottawa, Ontario, June 16, 2022

PRESENT: The Honourable Mr. Justice Ahmed

BETWEEN:

DAKOTA PLAINS WAHPETON OYATE

as represented by EVANGELINE TOWLE in her

capacity as Hereditary Chief of Dakota Plains Wahpeton

Oyate,

CRAIG BLACKSMITH and ALVIN SMOKE

in their capacity as representative Dakota Plains Wahpeton Oyate

Council Members

Applicants

and

DONALD RAYMOND SMOKE

Respondent

ORDER AND REASONS

I.

Overview

[1]

On January 25, 2022, the Applicants filed a Notice of Application seeking judicial review

“in respect of which entity or person have the legal authority to govern the Dakota Plains

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Wahpeton Oyate”. The Notice of Application identifies two Band Council Resolutions (“BCR”)

for review: one BCR made on September 27, 2021 (the “September BCR”) and another BCR

made on December 16, 2021 (the “December 16 BCR”). The September BCR appoints the

Respondent, Donald Raymond Smoke, as the Hereditary Chief of Dakota Plains First Nation

(“Dakota Plains”). The December 16 BCR removes the Applicant, Evangeline Towle, as the

signing authority for Dakota Plains.

[2]

In support of their Application, the Applicants served the following affidavits on the

Respondent on February 24, 2022: the Affidavit of Evangeline Towle, the Affidavit of Craig

Blacksmith, the Affidavit of Jason Towle, the Affidavit of Chandelle Smoke-Towle, the

Affidavit of Alvin Smoke, and the Affidavit of Katherine Whitecloud (the “Impugned

Affidavits”).

[3]

The Respondent brings a motion in writing under Rule 369 of the Federal Court Rules,

SOR/98-106 (the “Rules”) requesting that the Court strike the Applicants’ Notice of Application

in its entirety, or, in the alternative, strike portions of the Notice of Application and the

Impugned Affidavits. The grounds for this motion are that the Notice of Application: a) is ultra

vires the Court’s jurisdiction, and b) was filed outside the 30-day limitation period under section

18.1(2) of the Federal Courts Act, RSC, 1985, c. F-7 (the “Federal Courts Act”).

[4]

The Applicants oppose the motion to strike, submitting that there is no fatal flaw in the

Notice of Application that would merit the striking of the Application in its entirety, or portions

thereof. Alternatively, if this Court determines that the Respondent has raised a debatable issue,

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the Applicants submit that the motion should be dismissed and deferred to the Applications

Judge for determination.

II.

Issues

[5]

This motion to strike raises the following issues:

A. Whether the Applicants’ Notice of Application should be struck in its entirety.

B. Whether portions of the Applicants’ Notice of Application and the associated relief

sought should be struck.

C. Whether portions of the Applicants’ affidavits should be struck.

Analysis

III.

A.

Whether the Applicants’ Notice of Application should be struck in its entirety.

[6]

The threshold for striking a notice of application for judicial review is very high. There

must be “[…] a “show stopper” or a “knockout punch” – an obvious, fatal flaw striking at the

root of this Court’s power to entertain the application” (Canada (National Revenue) v JP

Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para 47 (“JP Morgan”); see also

Robert Aquilini Successor Trust v Canada (Attorney General), 2021 46435 (FC) at para

18 (“Robert Aquilini”); Louie v Ts'kw'aylaxw First Nation, 2018 116818 (FC) at para

10). An “obvious fatal flaw” cannot be found where the issues at stake are debatable (David

Suzuki Foundation v Canada (Health), 2018 FC 380 () at para 130 (“David Suzuki”). At

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paragraph 66 of JP Morgan, the Federal Court of Appeal held that the following would qualify

as a fatal flaw warranting the striking out of a Notice of Application:

a)

b)

c)

If the notice of application fails to state a cognizable administrative law claim

which can be brought in the Federal Court;

If the Federal Court is not able to deal with the administrative law claim by virtue

of the Federal Courts Act or some other legal principle; or

If the Federal Court cannot grant the relief sought in the notice of application.

[7]

As recently affirmed by this Court in Robert Aquilini,

[20] The Notice of Application should be read as generously as

possible, in a manner that accommodates any inadequacies in the

allegations that are merely the result of deficiencies in the drafting

of the document: Prairies Tubulars (2015) Inc. v Canada (Border

Services Agency), 2018 FC 991 at para 26 [Prairies Tubulars].

[21] The Court must also read the Notice of Application

“holistically and practically without fastening onto matters of

form” in order to gain “‘a realistic appreciation’ of the

application’s ‘essential character’”: JP Morgan, above at para. 50.

(1)

The jurisdiction of the Federal Court to hear this judicial review.

[8]

The Respondent argues that the Applicants’ Notice of Application fails to name a

“federal board, commission or other tribunal” (as defined in section 2(1) of the Federal Courts

Act) as a respondent in respect of the decisions they seek to judicial review – the September BCR

and the December 16 BCR. As such, the Respondent argues that the Application is ultra vires

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the Court’s jurisdiction because Donald Raymond Smoke, in his personal capacity, does not

constitute a “federal board, commission or other tribunal”.

[9]

The Respondent notes that both the September BCR and the December BCR are signed

by Chief and Council. The September BCR bears three signatures in addition to the signature of

Donald Raymond Smoke. The December 16 BCR bears the signature of nine council members

in addition to the signature of Chief Donald Smoke. The relief sought in the Notice of

Application requests that this Court grant relief only as against the Respondent, Donald

Raymond Smoke. The Respondent further submits that, as the Applicants’ application for

judicial review is ultra vires this Honourable Court’s jurisdiction ab initio, any request for leave

to amend and/or add respondents to rectify the fatal flaw in the Notice of Application must be

denied.

[10] The Respondent distinguishes this case from this Court’s decisions in Marcel Colomb

First Nation v Colomb, 2016 FC 1270 (“Marcel Colomb”), Da'naxda'xw First Nation v Peters,

2021 FC 360 (“Da'naxda'xw”) and Ojibway Nation of Saugeen v Derose, 2022 FC 531

(“Saugeen”) as none of these decisions named a single individual as the respondent, either in

their personal capacity or as one of a number of members of a federal board. In fact, the

Applicants failed to name any of the three decision makers of the September BCR and instead

only name the Respondent, who effectively is the subject of the September BCR but not the

decision-maker. The Respondent maintains that the September BCR is in fact the discrete and

identifiable decision at issue.

Page: 6

[11] The Applicants submit that the Federal Court does in fact have jurisdiction over this

matter. The Federal Court has exclusive original jurisdiction over decisions of a federal board,

commission or other tribunal. At paragraph 33 of Gamblin v Norway House Cree Nation Band

Council, 2012 FC 1536 (“Gamblin”), this Court cites the finding in Balfour v Norway House

Cree Nation, 2006 FC 213 at paragraph 20:

[20] The jurisprudence has established that an Indian Band Council

constitutes a “federal board, commission or other tribunal”

pursuant to section 18 of the [Federal Courts Act] […] As such, the

Federal Court of Appeal confirmed in Salt River First Nation 195

(Council) v. Salt River First Nation 195 [2003] F.C.J. No. 1538, at

paragraph 18, that this Court has jurisdiction to issue a writ of quo

warranto or to grant declaratory relief against an Indian Band

Council and its constituent members […] [Emphasis in original].

[12] Subsection 2(1) of the Indian Act, RSC 1985, c I-5 (the “Indian Act”) defines a “council

of the band” as including: “(d) in the case of any other band, the council chosen according to the

custom of the band, or, if there is no council, the chief of the band chosen according to the

custom of the band”. The Applicants note that the Notice of Application addresses the issues of

which entity or persons have the legal authority to govern Dakota Plains, in respect of the

September BCR and the December 16 BCR. In Marcel Colomb, this Court was asked to

determine a similar issue to that which is raised in the present case and found that there “can be

no doubt that the Federal Court has the jurisdiction to deal with […] the central and fundamental

issue in this dispute […] [w]hich of FCC or MCC are the legitimate Chief and Council of

MCFN?” (at para 153).

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[13] The Applicants maintain that the Notice of Application correctly and clearly sets out that

the Dakota Plains governance is a “council of the band” as defined in subsection 2(1) of the

Indian Act and that the Respondent is a purported constituent member of such band council (the

purported Hereditary Chief). The Applicants argue that the Respondent was not listed in his

personal capacity for this judicial review. Rather, the Applicants did not name the Respondent in

his purported capacity as Hereditary Chief of Dakota Plains because the Applicants do not

recognize him as such and have asked the Court for a determination on this issue. The

Applicants note that in Marcel Colomb, this Court took specific notice that “[a]lthough MCC are

not named in the style of cause on that file as representing MCFN (for the obvious reasons that

FCC did not recognize them as such) the position they take up […] is based upon their claim to

be the legitimate Chief and Council of MCFN.” (at para 33). Therefore, as in Marcel Colomb,

this Court has found that failure to name the Respondent in a specific capacity is not fatal to the

Application and does not mean that they are responding in their personal capacity. Rather, this

Court has looked to the “position they take up” in the litigation to determine a respondent’s

capacity as a party.

[14] Furthermore, the Applicants submit that the Federal Court has jurisdiction to determine

issues of Indigenous governance (see: Da'naxda'xw; Marcel Colomb; Saugeen) and to issue the

relief sought in the Notice of Application, including writs in the nature of quo warranto (Federal

Courts Act, subsections 18(1) and 18(3)). The Applicants assert that it can be shown that a) there

exists no fatal flaw in the Application on the basis of jurisdiction; b) the matter is properly before

this Court; c) the remedies sought are within the jurisdiction of this Court to grant; and d) the

Notice of Application is therefore not an abuse of this Court’s process. As such, the Notice of

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Application should not be struck and this matter should proceed as filed and be appropriately

decided by the Applications Judge after the parties have had a full opportunity to present

evidence and argument (Robert Aquilini at para 64).

[15] I agree with the Applicants’ position that the jurisprudence clearly shows that the Court

has jurisdiction over this matter. Indeed, while the Respondent is the sole person named in the

Notice of Application, I can appreciate the Applicants’ explanation that they did not name the

Respondent in his capacity as the Hereditary Chief of Dakota Plains, because the Applicants do

not recognize him as such. The disagreement over who is to govern Dakota Plains is precisely

the issue before this Court. The Respondent in this matter is holding himself out to be the

Hereditary Chief of Dakota Plains, according to custom. As noted by the Applicants, this

Court’s jurisprudence has established that a First Nation’s band council constitutes a “federal

board, commission or other tribunal” and this Court has jurisdiction over decisions made by a

First Nation’s band council (Gamblin at paras 29-63). This Court has also determined that

decisions made pursuant to custom are reviewable in this Court. In Thomas v One Arrow First

Nation, 2019 FC 1663 (“One Arrow”), my colleague Justice Grammond stated at paragraph 14:

There can be no serious dispute that this Court has jurisdiction to

review decisions made under a First Nation’s election laws,

including where these laws are said to be “customary.” See, for

example, Canatonquin v Gabriel, [1980] 2 FC 792 (CA); Ratt v

Matchewan, 2010 FC 160 at paragraphs 96–106; Gamblin v

Norway House Cree Nation Band Council, 2012 FC 1536 at

paragraphs 29–63.

(2)

The 30-day time limit prescribed by subsection 18.1(2) of the Federal Courts

Act.

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[16] Subsection 18.1(2) of the Federal Courts Act requires that an applicant bring its

application for judicial review within 30 days after the decision was first communicated. The

Respondent submits that both the September BCR and the December 16 BCR were made over

30 days before the Notice of Application was filed on January 25, 2022. The Applicants have

not included in the grounds of their Notice of Application when they first became aware of the

September BCR or the December 16 BCR. The Applicants did not make any request for an

extension of time to file. They also failed to explain the delay in the filing of their application

for judicial review and failed to plead any grounds upon which this Court could rely on to

exercise its discretion and grant such an extension of time.

[17] The Respondent argues that filing a Notice of Application within the time limitation

prescribed is a threshold issue that the Applicants ought to have been required to address at the

outset by seeking relief from the Court. Further, as there is an absence of grounds identified in

the Notice of Application sufficient to support a request for such relief, the Respondent submits

that there is no basis before the Court that could reasonably support such an order. On its face,

the failure to comply with the time limitation constitutes a fatal flaw and as such, the Notice of

Application ought to be struck. Additionally, the Respondent maintains that the September BCR

and the December 16 BCR are two distinct, discrete decisions: they were made by different

decision-makers, are not connected, and do not contain any similarities. As such, they cannot

constitute “continuing acts” or a “course of conduct”.

[18] The Applicants submit that generally, issues of timeliness are to be addressed at the

application stage, and not on a motion to strike (David Suzuki at para 155). The Applicants rely

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on David Suzuki to argue that this Court has established that the word “matter” in subsection

18.1(1) of the Federal Courts Act is broader than “decision or order” in subsection 18.1(2). As

such, the 30-day limitation period set out in subsection 18.1(2) does not apply where an applicant

is seeking to review a “matter” which is not a “decision or order” (David Suzuki at para 156). A

“matter” can include a policy or a course of conduct (David Suzuki at para 157). In David

Suzuki, this Court found that although the application for judicial review in that matter targeted

several decisions, each decision was part of a course of conduct challenged by the applicants and

was a matter not subject to subsection 18.1(2). The Court summarizes the relevant jurisprudence

at paragraph 173 of the decision:

To summarize, the jurisprudence noted above highlights the

following:

● Issues of timeliness (i.e. the application of subsection

18.1(2)) are generally addressed at the application stage,

and not on a motion to strike (Hamilton-Wentworth; see

also James Richardson at para 14, Airth at para 13).

● The 30-day limitation period in subsection 18.1(2) does not

apply where the applicant is seeking to review a matter,

which is not a decision or order (Krause, CBC).

● A matter includes a policy or a course of conduct (Airth,

Sweet, Moresby).

● A course of conduct includes a “general decision, the

implementation steps, or a combination of the two, where

they combine to result in unlawful government action”

(Krause, Fisher).

● In the context of government decisions and actions, the

focus is on whether there is a “closely connected course of

allegedly unlawful government action” (Fisher at para 79).

● A course of conduct may also include an ongoing practice

(CBC at para 26).

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● Both the Rule 302 and subsection 18.1(2) jurisprudence

tend to use the term “course of conduct”, and both consider

whether there are closely connected decisions.

● More than one decision may be reviewed in a single

application – as an exception to Rule 302 – where it is a

continuing act (Mahmood, Truehope) or, as it was

characterized in Khadr, a continuing court of conduct. The

factors to consider in determining whether there is a

continuing act or course of conduct include: whether the

decisions are closely connected; whether there are

similarities or differences in the fact situations, including,

the type of relief sought, the legal issues raised, the basis of

the decision and decision-making bodies; whether it is

difficult to pinpoint a single decision; and, based on the

similarities and differences, whether separate reviews

would be a waste of time and effort (Mahmood, Truehope).

[19] In Saugeen, this Court was asked to determine the lawful Chief and Headmen for the

Ojibway Nation of Saugeen and found that the applications in that case pertained to a course of

conduct that cannot be narrowed down to a discrete decision that would be the subject of judicial

review (at para 25). The Applicants submit that it is clear on the face of their Application that

the issues in this matter form a continuing course of conduct that go the heart of the governance

dispute at issue, and that the relief sought is clearly set out and reviewable under the jurisdiction

of this Court, as it was in Saugeen. Given this, the Applicants submit that they were not required

by the Rules to request an extension of time to file their Application because the prescribed time

limit of 30 days does not apply in this case.

[20] I agree with the Applicants’ position that the 30-day time limit prescribed by subsection

18.1(2) of the Federal Courts Act does not apply, as the matter at issue before this Court cannot

be narrowed down to a specific decision. Rather, the matter consists of a governance dispute,

which is a continuing course of conduct, as was the case in Saugeen (at para 25).

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[21] Overall, I refuse the motion to strike the Notice of Application in its entirety. In JP

Morgan, the Court highlighted the importance of reading the notice of application “with a view

to understanding the real essence of the application” (at para 49). The Court goes on to note at

paragraph 50, “The Court must gain “a realistic appreciation” of the application’s “essential

character” by reading it holistically and practically without fastening onto matters of form…”

(internal citations omitted). Furthermore, where the issue raised by the moving party as the basis

for dismissing the application is determined to be a debatable issue, the circumstances do not

warrant dismissal of the application at a preliminary stage; rather, the issue should be determined

by the Applications Judge (Robert Aquilini at para 19). I find that the issues raised in this matter

are debatable, and the Respondent has not demonstrated an ‘obvious fatal flaw’ in the Notice of

Application.

B.

Whether portions of the Applicants’ Notice of Application and the associated relief

sought should be struck.

[22] At paragraphs 38-40 of JP Morgan, the Federal Court of Appeal addresses the

requirements of a notice of application for judicial review:

[38] In a notice of application for judicial review, an applicant

must set out a “precise” statement of the relief sought and a

“complete” and “concise” statement of the grounds intended to be

argued: Federal Courts Rules, SOR/98-106, Rules 301(d) and (e).

[39] A “complete” statement of grounds means all the legal bases

and material facts that, if taken as true, will support granting the

relief sought.

[40] A “concise” statement of grounds must include the material

facts necessary to show that the Court can and should grant the

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relief sought. It does not include the evidence by which those facts

are to be proved.

[23] The Court stresses that before stating a ground, a party must have some evidence to

support it and it is an abuse of process to initiate proceedings with unsupported allegations in the

hope that something will later turn up (at paras 44-45).

(1)

Paragraph 1(a) of the Notice of Application and the associated relief sought

[24] Paragraph 1(a) of the Notice of Application addresses the September BCR, which was

signed by the Respondent and recognizes him as the Hereditary Chief of Dakota Plains, with the

authority to govern Dakota Plains. The Respondent submits that paragraph 1(a) of the Notice of

Application should be struck because it fails to identify on what grounds of review the

Applicants are challenging the September BCR and fails to set out adequate grounds for the

relief sought. The Respondent argues that the Notice of Application does not specifically

identify the material facts supporting each of these grounds of review. The allegation that the

Respondent is holding himself out as the Hereditary Chief of Dakota Plains relates to the

Respondent’s conduct after the September BCR was made and does not speak to the grounds to

challenge the September BCR itself. None of the paragraphs from 3(h) to 3(q) identify what the

Respondent’s jurisdiction was, or how the Respondent acted beyond his jurisdiction and in a way

that was contrary to law. The Respondent further submits that his appointment as Hereditary

Chief complies with the purported band custom alleged by the Applicants in their Notice of

Application, and no grounds for review are alleged in relation to said compliance.

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[25] The Applicants contend that in relation to the governance dispute in issue, of which the

September BCR forms part, their Notice of Application sets out a “precise” statement of the

relief sought from paragraphs 2(a) to 2(n) and a “complete” and “concise” statement of the

grounds intended to be argued from paragraphs 3(h) to 3(q). The Notice of Application at

paragraph 3(r) notes that the Respondent “has acted without jurisdiction, acted beyond its

jurisdiction, and acted in a way that was contrary to law”, which the Applicants argue are

recognized grounds for review by this Court pursuant to subsection 18.1(4) of the Federal

Courts Act. As such, the Applicants submit that there is no “fatal flaw” which would merit

striking paragraph 1(a) and the associated relief sought. Presuming the facts in the Notice of

Application to be true (Robert Aquilini at para 22), the Respondent’s mere disagreement with the

articulation of the facts in the Application is not a fatal flaw nor grounds to strike the Notice of

Application or portions thereof. The Applicants submit that this is an issue that the Respondent

can and should raise at the hearing of the Application on its full merits and not on a motion to

strike.

[26] I do not find that paragraph 1(a) of the Notice of Application and the associated relief

sought should be struck. A notice of application is to be read as generously as possible,

holistically and practically, without fastening onto matters of form in order to gain a realistic

appreciation of the essential character of the application (Robert Aquilini at paras 20-21). Read

generously, the Notice of Application addresses a governance dispute – for which the parties are

in disagreement over underlying facts. I agree with the Applicants that this is an issue to be

raised when the Application is heard on its full merits. I am also satisfied that the grounds of

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review identified by the Applicants are recognized grounds under paragraph 18.1(4)(a) of the

Federal Courts Act.

(2)

Paragraph 1(b) of the Notice of Application and the associated reliefs sought

[27] The Respondent submits that the portions of the Notice of Application that relate to the

requested review of the December 16 BCR ought to be struck. First, the Respondent argues that

contrary to Rule 302 of the Rules, the Applicants seek to review two discreet decisions: the

September BCR and the December 16 BCR. The Applicants ought to have sought relief from

this Court to permit the review of both decisions and there is an absence of grounds in the Notice

of Application to support a request for such relief. Accordingly, the Applicants’ request for

review of the December 16 BCR should be struck, along with the associated claims for relief at

paragraphs 2(e)-(f) and 2(3)(s)-(w) of the Notice of Application.

[28] Second, the Respondent submits that, even though it was made by BCR, the December

16 BCR is not amenable to judicial review because it involves a private or commercial decision

(Maloney v Shubenacadie First Nation, 2014 FC 129 at para 30). The December 16 BCR relates

to the management of signing authorities of the Dakota Plains General Bank Account with Peace

Hills Trust Company. The Respondent argues that this decision did not flow from any statutory

authority or any power that is public in nature. The Respondent relies on Peace Hills Truth Co. v

Moccasin, 2005 FC 1364, where this Court found that a BCR relating to a commercial loan

agreement was purely a matter of private law, independent of public interest and therefore not

amenable to judicial review (at paras 61-62).

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[29] The Applicants submit that Rule 302 does not apply in this case and paragraph 1(b) of the

Notice of Application should not be struck as it forms an integral part of the course of conduct in

issue. The Applicants maintain that jurisprudence has established that Rule 302 does not apply

where it can be shown that the subject matter of the judicial review is a matter at issue that forms

part of a “continuous course of conduct” and justifies an exception to Rule 302 to permit judicial

review of more than a single order where an applicant challenges continuing acts or a course of

conduct (Gagnon v Bell, 2016 FC 1222 at para 35 (“Gagnon”); David Suzuki at para 164).

Where various impugned decisions are closely related and stem from the same series of events,

Rule 302 may not apply, and in the event that it does, this Court may exercise its discretion under

Rule 55 and dispense with compliance with Rule 302.

[30] The Applicants argue that the present case is a governance dispute and concerns the

Respondent’s course of conduct in his purported capacity as the Hereditary Chief of Dakota

Plains. The Applicants challenge the Respondent’s lawful authority to hold such office and

challenge his unlawful exercise of such office, akin to the issues considered in Da'naxda'xw and

Saugeen. The Applicants submit that the matter of governance of Dakota Plains is not merely a

matter of the composition of the council of the band, but also includes the protection of band

funds for its government functioning and for the benefit of all Dakota Plains members (Marcel

Colomb at para 127). It is in the best interest of all community members that all facets of the

governance dispute be dealt with on this judicial review.

[31]

The Applicants note that decisions of this Court have expanded on what may be

considered a course of conduct. This Court has applied the jurisprudence in a manner that

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permits a reviewing court to focus on the general decision, the implementation steps, or a

combination of the two where the result is an unlawful government action vis-à-vis the applicant

(Saugeen, David Suzuki at para 161). In David Suzuki, this Court notes: “the important point is

not whether the policy itself or individual steps to implement it are challenged, but whether there

is a closely connected course of allegedly unlawful government action that the applicant seeks to

restrain” (at para 162).

[32] Second, the Applicants maintain that the December 16 BCR forms part of the impugned

course of conduct and is a public law decision that is amenable to judicial review. The

December 16 BCR was signed by the Respondent acting in his purported capacity as Hereditary

Chief and directly relates to the signing authority for the Dakota Plains’ general bank account –

which holds public funds used in administering government functions. In Marcel Colomb, this

Court found that since the contract at issue related to the use of public funds in administering

government functions, it was not akin to a private law arrangement and was sufficiently public in

nature to warrant being the subject of judicial review (at paras 123-124).

[33] I agree with the Applicants’ arguments on both points. First, for the same reasons that I

find the September BCR and the December 16 BCR form part of a continuing course of conduct,

the December 16 BCR is not a discreet decision but rather part of the governance dispute at issue

in this matter. The December 16 BCR was signed by the Respondent, purports to change the

signing authority of the Dakota Plains First Nation bank account, and removed the Applicant,

Evangeline Towle, as a signing authority. In my view, the signing authority is intricately related

to the governance dispute at issue in this matter. Accordingly, I find that this is a case where

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Rule 302 does not apply, as it can be shown that the subject matter of the judicial review is a

matter at issue that forms part of a “continuous course of conduct” (Gagnon at para 35). As

noted in One Arrow at paragraph 17:

It is true that Rule 302 of the Federal Courts Rules, SOR/98-106,

provides that an application for judicial review shall be made

against a single decision. Nevertheless, an exception is made

where the impugned decisions form part of a “continuous course of

conduct:” Parenteau v Badger, 2016 FC 535 at paragraph 15. This

is what happened here.

[34]

Second, I agree that the December 16 BCR involves the administering of public funds

for government functions. It is thus characterized as a public decision that can be considered by

this Court. As noted by this Court in Marcel Colomb at paragraph 156,

The status of this contract has a lot to do with the legitimacy of its

termination by MCC. Should it turn out that MCC are not the

legitimate Chief and Council of MCFN and never were, the

legality of any acts and omissions of MCC will be an inevitable

consideration for the Court. The contract simply cannot be

disconnected from the central issue of this dispute. Nor can the

Court’s jurisdiction to review the termination of that contract.

(3)

The remedies sought

[35] The Respondent takes issue with the Applicants’ request for relief in the nature of quo

warranto to declare Evangeline Towle the Chief of Dakota Plains and to recognize her as the

interim Hereditary Chief. The Respondent submits that while paragraph 18(1)(a) of the Federal

Courts Act permits the Court to issue writs of quo warranto when the authority by which a

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public office is held is successfully challenged (Da'naxda'xw at para 174), it does not provide the

Court with the power to appoint or confirm a person or entity as a lawful office holder.

[36] Furthermore, the Respondent takes issue with the Applicants’ requests for interim relief

at paragraphs 2(l)(1)(a), 2(l)(1)(b) and 2(l)(3) of their Notice of Application. The Respondent

argues that the Applicants failed to plead sufficient grounds in their Notice of Application that

would satisfy the three-part test from RJR-MacDonald Inc. v Canada (Attorney General), [1994]

1 SCR 311 when seeking an interlocutory injunction or a stay of proceedings. The Respondent

submits that the Applicants a) have failed to demonstrate that there is a serious question to be

tried; b) have not pled any grounds that they would suffer irreparable harm; and c) have provided

no statement regarding the balance of convenience and which party would suffer greater harm

from the granting or refusal of the interim relief.

[37] The Applicants contend that the substance of the relief sought from this Court in

paragraph 2(d) of the Notice of Application is akin to that in Saugeen and Da'naxda'xw, and that

the remedy of quo warranto is in fact available to this Court to grant. The Applicants submit

that the substance of the request for relief is clear and obvious: they wish for this Court to declare

Evangeline Towle the lawful Chief of Dakota Plains. As such, paragraph 2(d) does not merit

being struck.

[38] With respect to their request for interim relief, the Applicants argue that it was not

advanced on motion and is not fatal to the Application. Their choice not to advance the claim for

interim relief and to aim for a resolution of the main Application does not cause prejudice to the

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Respondent, and striking the identified paragraphs does not assist in clarifying the issues

between the parties. It also does not assist with proceeding with the main Application in a

timelier manner. As such, the Applicants submit that the paragraphs above do not merit being

struck.

[39] With respect to the Respondent’s reliance on Da'naxda'xw, I would note that the Court in

Da'naxda'xw states the following in their discussion of quo warranto:

[176] As a preliminary point, I note that quo warranto challenges

the right of an individual office holder to hold that particular

office. Accordingly, it is not clear to me that the Court can issue a

writ of quo warranto declaring which council of the band is the

lawful governing body. […]

[40] As noted by the Applicants, in Saugeen, this Court exercised its jurisdiction to name a

lawful governing authority and therefore recognized that this remedy is available in matters of

Indigenous governance (at para 91). While it remains to be determined if quo warranto is the

appropriate relief in this situation, I find that it nonetheless remains an available remedy to this

Court.

[41] With respect to the Applicants’ request for injunctive relief, I agree with the Applicants

that striking the aforementioned paragraphs would not result in clarifying the issues between the

parties in this proceeding. In my view, the matters outlined in the Notice of Application ought to

proceed to be heard on their merits.

Page: 21

C.

Whether portions of the Applicants’ affidavits should be struck

[42] The Respondent submits that, in the event this Court is not prepared to strike the Notice

of Application in its entirety, but strikes portions of it, the corresponding portions of the

Impugned Affidavits ought to also be struck. Alternatively, the Respondent submits that this

Court ought to strike the following impugned paragraphs and associated exhibits in the

Impugned Affidavits:

a)

b)

Paragraphs 37, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64

and associated exhibits of the Affidavit of Evangeline Towle, affirmed February 22,

2022;

Paragraphs 18, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,

42, 46, 47, 48, 49, 50, 51, 52, 65, 66, 67, 68, 69, 70, 71, 72, 75, 77, 78, 79 and

associated exhibits of the Affidavit of Craig Blacksmith, affirmed February 22,

2022;

c)

d)

e)

Paragraphs 8, 9, 32 and associated exhibits of the Affidavit of Jason Towle,

affirmed February 22, 2022;

Paragraphs 12, 16, 17, 22, 32, 42, 43, 45, 50, 51 and associated exhibits of the

Affidavit of Chandelle Smoke-Towle, affirmed February 22, 2022;

Paragraphs 8, 9, 10, 13, 14, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,

32, 33 and associated exhibits of the Affidavit of Alvin Smoke, affirmed February

22, 2022; and

f)

Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36 and 37 of the Affidavit of

Katherine Whitecloud, affirmed February 22, 2022.

Page: 22

[43] As a preliminary matter, this Court must determine whether to provide an advanced

ruling on the within motion to strike out the impugned paragraphs and associated exhibits to the

Impugned Affidavits, or whether the motion ought to be reserved for the consideration of the

presiding judge hearing the Application. The Respondent notes that while in some

circumstances, this task is best left to the Court hearing the application, there are instances where

screening inadmissible evidence at a preliminary stage results in a more efficient use of the

parties’ and the Court’s time and resources. In particular, when the affidavits are replete with

inadmissible paragraphs, it may be fairer and more efficient to determine their admissibility in

advance (Hunt v Stassen, 2019 ONSC 4466 at paras 11-13).

[44] Whether this Court provides an advance ruling on an evidentiary issue in a judicial

review is a matter of discretion to be exercised on the basis of recognized factors, including: a)

whether the advanced ruling would allow the hearing to proceed in a more timely and orderly

fashion; and b) whether the result of the motion is relatively clear cut or obvious. If ‘reasonable

minds’ might differ on the issue, then the ruling should be left to the body hearing the case

(Bernard v Canada (Revenue Agency), 2015 FCA 263 (“Bernard”) at para 11).

[45] The Respondent submits that the volume of the impugned paragraphs is such that the

Respondent would suffer prejudice if required to respond to and cross-examine the affiants. This

would significantly impede the efficient and timely adjudication of this matter. The Respondent

also submits that the result of the within motion is clear cut and obvious. The crux of the issue

on this Notice of Application for judicial review is the validity of the September BCR, and that

the Notice of Application fails to stand on its own in relation to the expanded scope alleged by

Page: 23

the Applicants. The Impugned Affidavits include several paragraphs pertaining to events that

arose after the September BCR decision and are therefore irrelevant to the Notice of Application

as a whole. Further, the Respondent argues that other paragraphs in the Impugned Affidavits

contain no nexus to the grounds or relief sought, fail to provide the affiants’ source of

information and belief, are speculative and include opinion evidence.

[46] The Applicants submit that this Court has emphasized that motions to strike all or parts of

affidavits are not to become routine, particularly where the question is one of relevancy (Mayne

Pharma (Canada) Inc. v Aventis Pharma Inc., 2005 FCA 50 () at para 13 (“Mayne

Pharma”), citing P.S. Part Source Inc. v Canadian Tire Corp. 2001 FCA 8, [2001] FCJ No. 181

at para 18). The reasons for this being that applications for judicial review must quickly proceed

on the merits, and the procedural impact of a motion to strike is to unduly delay a decision on the

merits. The Applicants argue that the Respondent misrepresents the ‘crux’ of the Application by

confining its scope to the issue of validity of the September BCR and suggesting that its judicial

review should be conducted using only the material that was before the decision-maker during

the decision-making process. The Applicants submit that in fact, the scope of the matter is far

broader. As such, the Respondent’s request to strike portions of the Applicants’ affidavits must

be dismissed.

[47] In my view, an advanced ruling to strike portions of the Impugned Affidavits is not

merited in this case. The Respondent has not demonstrated that the evidence is obviously

irrelevant or prejudicial (Mayne Pharma at para 13), and I find that “reasonable minds” might

differ on the issue raised (Bernard at para 11). As such, I find that it is preferable to defer the

Page: 24

decision about the impugned paragraphs and associated exhibits in the Impugned Affidavits to

the Court hearing the application on its merits. They are best placed to assess the Impugned

Affidavits in the context of the application as a whole. This is particularly so given my view that

the matter at issue does not involve one discreet decision (the September BCR), but instead

addresses a course of conduct regarding the governance of Dakota Plains, similar to that

reviewed in the case of Saugeen. In light of this conclusion, there is no need to address the

Respondent’s submissions regarding the substance of the Impugned Affidavits at this stage.

IV.

Costs

[48] I see no reason to deviate from the general rule that costs should follow the event. I

therefore order that costs be awarded to the Applicants on this motion in the amount of $1,000,

inclusive of disbursements and taxes.

V.

Conclusion

[49] For the reasons above, the Respondent’s motion to strike the Notice of Application in its

entirety is dismissed, as is the Respondent’s alternative request that the Court strike portions of

the Notice of Application. I also find that an advanced ruling to strike portions of the Impugned

Affidavits is not merited in this case and must be deferred to the Applications Judge for

determination.

Page: 25

ORDER in T-137-22

THIS COURT ORDERS that:

1. The motion to strike the Notice of Application is dismissed.

2. Costs payable to the Applicants by the Respondent in the amount $1,000 inclusive of

disbursements and taxes.

"Shirzad A."

Judge

FEDERAL COURT

SOLICITORS OF RECORD

T-137-22

DOCKET:

DAKOTA PLAINS WAHPETON OYATE as

STYLE OF CAUSE:

represented by EVANGELINE TOWLE in her capacity

as Hereditary Chief of Dakota Plains Wahpeton Oyate,

CRAIG BLACKSMITH and ALVIN SMOKE in their

capacity as representative Dakota Plains Wahpeton Oyate

Council Members v DONALD RAYMOND SMOKE

MOTION IN WRITING UNDER RULE 369 OF THE FEDERAL COURTS RULES

AHMED J.

ORDER AND REASONS:

DATED:

JUNE 16, 2022

WRITTEN SUBMISSIONS BY:

Jessica Barlow

Markus Buchart

FOR THE APPLICANTS

FOR THE RESPONDENT

Devon C. Mazur

Amanda Cheys

SOLICITORS OF RECORD:

Jerch Law

Barristers and Solicitors

Winnipeg, Manitoba

FOR THE APPLICANTS

FOR THE RESPONDENT

Myers LLP

Barristers and Solicitors

Winnipeg, Manitoba