COURT OF APPEAL FOR ONTARIO

CITATION: Gehl v. Canada (Attorney General), 2017 ONCA 319

DATE: 20170420

DOCKET: C60706

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Lynn Gehl

Applicant (Appellant)

and

Attorney General of Canada

Respondent (Respondent)

Mary Eberts, Christa Big Canoe, and Emilie Lahaie, for
    the appellant

Christine Mohr and Andrea Bourke, for the respondent

Renée Pelletier and Krista Nerland, for the intervener,
    the Womens Legal Education and Action Fund

Heard: December 20, 2016

On appeal from the judgment of Justice Elizabeth M.
    Stewart of the Superior Court of Justice, dated June 2, 2015, with reasons
    reported at 2015 ONSC 3481, [2015] 3 C.N.L.R. 35.

Sharpe J.A.:

A.       Overview

[1]

The issue on this appeal is whether the appellant, Dr. Lynn Gehl, is
    entitled to be registered as an Indian
[1]
under the
Indian Act
, R.S.C. 1985, c. I-5 (the Act). Dr. Gehls
    entitlement turns on amendments made in 1985 to bring the Act into compliance
    with s. 15 of the
Charter of Rights and Freedoms
(the
Charter
)
.
Those amendments repealed
    discriminatory provisions in the Act that had deprived several of Dr. Gehls
    ancestors of their Indian status, and retrospectively restored their status.

[2]

Dr. Gehls paternal grandmother became a status Indian as a result of
    the 1985 amendments. Dr. Gehls father was born in 1935. The identity of his
    father, Dr. Gehls paternal grandfather, is unknown.

[3]

Following the 1985 amendments, Dr. Gehl brought an application to
    register as an Indian. The Registrar for Aboriginal Affairs and Northern
    Development Canada (the Registrar) denied Dr. Gehls application for
    registration on the ground that to qualify for status under the Act, Dr. Gehl
    had to prove that both her paternal grandmother and grandfather had status, and
    she had failed to prove the status of her unknown grandfather.

[4]

Dr. Gehl, supported by the intervener LEAF, argues that s. 6(1)(f) of
    the Act and the Proof of Paternity Policy (the Policy), adopted by the
    Registrar for determining paternity, infringe s. 15 of the
Charter
by
    discriminating against her and other descendants of illegitimate children of
    aboriginal women on grounds of sex. As I will explain, stripped to its
    essentials, Dr. Gehls argument is that, on the basis of the evidence she
    presented, she is entitled to status.

B.      Indian Status and the 1985 Amendments to the
Indian
    Act

[5]

Entitlement to Indian status is determined by the Act.

[6]

Before 1951, the Act provided that registration was to be done by Indian
    agents and other local officials. Section 29 of the
Indian Act
, S.C.
    1951, c. 29, created a centralized Indian Registry.

[7]

Prior to 1985, entitlement to register as an Indian was transmitted
    solely through the male line. The child of an Indian man was entitled to
    registration, even if the mother of the child was non-Indian. A non-Indian
    woman who married an Indian man was also entitled to register. Conversely,
    Indian women lost their Indian status upon marrying a non-Indian man, and the
    children of an Indian woman and a non-Indian man were not entitled to register.

[8]

The only exception to the patrilineal rule was in relation to
    illegitimate children. Although the exact procedures differed over time, the
    pre-1985
Indian Act
contained what amounted to a rebuttable
    presumption that the illegitimate children of Indian women were fathered by
    Indian men, and that therefore these children were entitled to register as
    Indians. Conversely, Indian fathers could pass on status to their illegitimate sons,
    but not to their illegitimate daughters: see
Martin v. Chapman
, [1983]
    1 S.C.R. 365. In
Descheneaux c. Canada (Procureur général),
2015 QCCS
    3555, [2016] 2 C.N.L.R. 175, the Quebec Superior Court held that the denial of
    status to an illegitimate daughter born to an Indian father before 1985 was
    contrary to s. 15 of the
Charter
.

[9]

There was widespread dissatisfaction with the pre-1985 statutory regime
    for determining Indian status. Many within the aboriginal community considered
    the rules to be at odds with First Nations traditions. Although a majority of
    the Supreme Court held in
A.G. Canada v. Lavell
, [1974] S.C.R. 1349,
    that depriving an Indian woman of her status upon marriage to a non-Indian man
    did not violate the guarantee of equality in the
Canadian Bill of Rights
,
    S.C. 1960, c. 44, that decision was widely criticized and it became apparent
    that a major overhaul was required in light of the
Charter.

[10]

In 1985, Parliament amended the Act

with a view to
    making it compliant with the
Charter
s

s. 15 guarantee of equality. These amendments followed extensive
    consultation with relevant stakeholders. The amendments sought to balance the
    claims of equality-seeking groups with the need to respect the autonomy of
    First Nations and their control over band membership, as well as the potential
    impact on communities and resources resulting from adding large numbers of new
    registrants. I attach as Appendix A the relevant provisions from the
    legislation, present and past.

[11]

When introducing the amendments, David Crombie, then
    Minister for Indian Affairs, stated that the amendments sought to achieve and
    balance the following objectives (
House of Commons Debates
, 33rd
    Parl., 1st Sess., March 1, 1985, at p. 2645):

a)

to end
    discrimination against women created by their loss of entitlement to
    registration through marriage to non-Indians;

b)

to restore
    entitlement to registration to those who had lost it due to this
    discrimination, including restoring membership in a band;

c)

to ensure that
    no one should gain or lose entitlement to registration due to marriage;

d)

to ensure that
    anyone who had acquired status under the registration scheme prior to the 1985
    amendments would not lose it; and,

e)

to provide the
    First Nations that desired the ability to determine their own membership with a
    statutory mechanism to do so on a going forward basis.

[12]

Provisions in the pre-1985 Act stipulating exclusive patrilineal
    transmission of status were repealed, as were the provisions stipulating that
    Indian women lost status upon marriage to a non-status male. Pursuant to s. 6(1)(c),
    Indian status was retroactively returned to women who had lost their status
    after marrying non-Indian men. Under s. 6(1)(a), those who had Indian status in
    1985 were entitled to maintain this status even if they would not otherwise
    have status under the new regime. For example, the status of a non-Indian woman
    who had gained the right to register by marrying an Indian man was protected.

[13]

The 1985 amendments also established a new two-tier system of
    registration. Children with two Indian parents now receive s. 6(1)(f) or full
    status, whereas a child with only one Indian parent receives s. 6(2) or
    partial status. Those with full status can pass on Indian status to their own
    children, regardless of the Indian status of the other parent. In contrast,
    those with partial status can pass on Indian status to their own child only if
    the other parent also has Indian status (whether full or partial). This is
    known as the two-parent rule, and creates what is known as the second generation
    cut-off.

[14]

The 1985 amendments also removed all reference to illegitimacy. The
    rules apply equally to all children, whether or not their parents are married.
    The presumption of Indian paternity in favour of illegitimate children born to
    Indian women was repealed. To maintain the two-parent rule, the second
    generation cut-off and the distinction between full and partial status, the
    status of both parents must be determined by the Registrar when deciding the
    status of the child.

[15]

Further amendments were introduced in 2010 in response to the
    decision of the British Columbia Court of Appeal in
McIvor v. Canada
    (Registrar of Indian and Northern Affairs)
, 2009 BCCA 153, 91 B.C.L.R.
    (4th) 1. In that case, aspects of the old legislation favouring male parentage
    and disfavouring female parentage were found to have been carried forward in
    the 1985 amendments, and s. 6(1)(a) and s. 6(1)(c) were struck down. A
    temporary suspension of the declaration of invalidity afforded Parliament the
    opportunity to amend the Act. The amendment, adding s. 6(1)(c.1), was made in
    the
Gender Equity in Indian Registration Act
, S.C. 2010, c. 18.

[16]

The Act provides, in s. 14.2 that the Registrar is to determine
    eligibility for registration. The office of the Registrar investigates the applicants
    ancestry and makes a determination. If registration is refused, the applicant
    can protest the decision, and if the protest is refused, an appeal lies to the provincial
    superior court pursuant to s. 14.3.

[17]

Following the 1985 amendments, the Registrar developed the Policy. The
    Policy, at least as it stood at the time the Registrar considered Dr. Gehls
    application and protest, is an internal departmental guide. It is not expressly
    contemplated by the Act and it is not a regulation. At the time of Dr. Gehls
    application for registration and protest, the Policy was in draft form and not
    generally available to the public.

[18]

The Policy sets out five types of evidence of paternity that the
    Registrar will accept, in the following order of preference:

1) Birth certificates of provincial, territorial or state Vital
    Statistics authorities naming the father;

2) Court orders declaring paternity;

3) Statutory declarations, preferably by the mother and father,
    but two close relatives will suffice if they can identify the father from their
    own personal knowledge;

4) If the father denies paternity, it is preferable if the
    mother works with the Vital Statistics Authorities to find other types of
    acceptable evidence to have the fathers name added to the birth certificate;

5) Where confidentiality or personal safety is a concern and
    none of the above is available, the Registrar may consider other evidence, such
    as a hearing or DNA testing.

C.      Dr. Gehls Family Tree

[19]

In order to understand how the 1985 amendments affect Dr. Gehls
    entitlement to register, a review of her family tree is required. I attach a
    chart showing Dr. Gehls family tree as Appendix B to these reasons.

[20]

Prior to the 1985 amendments, Dr. Gehls status was as follows. When her
    father, Rodney Gagnon, was born out of wedlock in 1935, he had no Indian status
    because his mother, Mary Viola Bernadette Gagne, had no status at the time of
    his birth. The reason Mary Gagne had no status was because her mother, Annie
    Menes, lost her status when she married Joseph Gagnon. Joseph Gagnon lacked
    status because his mother, Angeline Jocko, lacked status at the time of his
    birth because of her marriage to a non-status man whose identity is unknown.

D.

HISTORY OF THESE PROCEEDINGS

[21]

Dr. Gehl applied for registration in 1994. The Registrar determined that
    s. 6(1)(c) of the 1985 amendments retroactively restored the status Annie Menes
    had lost upon her marriage to Joseph Gagnon. Joseph Gagnon retroactively
    acquired status as the status of his mother, Angeline Jocko, was restored by s.
    6(1)(c). The restoration of Indian status to both of Mary Gagnes parents
    retroactively provided her with s. 6(1)(f) full Indian status. However, in
    the view of the Registrar, as the identity of Rodney Gagnons father was
    unknown, he could only claim status through one parent, his mother, and
    accordingly, he only acquired partial status. As Dr. Gehls mother had no
    status, the Registrar considered her to be the child of one status Indian parent
    with s. 6(2) or partial status. Accordingly, Dr. Gehl could not satisfy the two-parent
    rule, and had no right to be registered.

[22]

Dr. Gehl protested the Registrars decision and then appealed the
    refusal of her protest to the Superior Court. That appeal has been held in
    abeyance following the commencement of this action for
Charter
relief but
    the appeal remains open.

[23]

This claim was originally framed as one for damages, but after it was
    struck out with leave to amend, the claim became one for declaratory relief.
    The action lay dormant for a lengthy period, but as the relevant facts were not
    in dispute, the parties eventually agreed to have the issue resolved by way of a
    motion for summary judgment in 2014.

e.       Motion for summary judgment

[24]

On the summary judgment motion, Dr. Gehl asserted that s. 6 of the Act

and the Policy infringed s. 15 of the
Charter
because they
    discriminated against her on the enumerated grounds of race and sex and on the
    analogous grounds of family or marital status. She argued that the mother of a
    child will always be known, but there will frequently be situations where the
    Indian mother of a child either does not know the identity of the father of her
    child, or cannot reveal that identity except at unacceptable personal cost.
    Additionally, Dr. Gehl alleged that s. 6 of the Act

and the Policy
    discriminated on grounds of marital status and/or illegitimacy. Dr. Gehl argued
    that she and her father should benefit from the same positive presumption of
    Indian paternity that had existed under the pre-1985 Act in relation to the
    illegitimate children of status Indian mothers.

[25]

The Attorney General asserted that the denial of Dr. Gehls Indian
    status did not turn on race, gender, family or marital status, or illegitimacy.
    It was the unknowable identity of Dr. Gehls paternal grandfather that
    prevented her from proving entitlement to registration, and the Attorney
    General submitted that unknowable paternity was not an analogous ground and
    therefore did not engage
Charter
considerations.

[26]

The motion judge found that s. 6 of the Act

and the Policy
    treated all applicants the same. An onus is placed on all applicants to
    establish entitlement to registration as an Indian by establishing the Indian
    status of their parents. The motion judge agreed with the Crown that
    unknowable paternity was the factor preventing Dr. Gehl from registration as
    an Indian, and that this was not an analogous ground under s. 15. Adopting a
    positive presumption of paternity for the illegitimate children of Indian women
    would contradict the clear statutory requirement that registration be granted
    only to individuals with at least two status Indians as grandparents. The first
    step of the s. 15 test was therefore not met, as the law did not create a
    distinction based on an enumerated or analogous ground. However, were
    discrimination to have been found, the motion judge noted that she would not
    consider it to create a disadvantage by perpetuating prejudice or stereotype.
    Based on those findings, the motion judge did not proceed to consider s. 1 of
    the
Charter
or the issue of remedy.

[27]

The motion judge went on to make several
obiter
comments about
    the application of the Policy to Dr. Gehl. The motion judge indicated that the
    evidence the Policy allows is distinctly problematic in situations such as Dr.
    Gehls, where, through no fault of her own, an applicant has no information
    about her grandfather, and thus cannot prove entitlement to registration. The
    motion judge stated, at para. 90, that [r]equiring anything more from Gehl
    than her statutory declaration attesting to her lack of any reasonable basis
    for belief that the father of her father would not have been entitled to
    registration may go beyond the requirements of the legislation. She concluded
    that such a statutory declaration might constitute acceptable evidence to
    satisfy the two-parent requirement of the Act, and would not amount to
    establishing a positive presumption of Indian paternity. This type of evidence
    would be no less probative than the residential and other circumstantial
    details that the Registrar, pursuant to the Policy, already viewed as
    acceptable. In the motion judges view, such an approach could prevent
    injustice in cases akin to Dr. Gehls while remaining consistent with the
    statutory language, history and objectives of the Act which must include
    cultural preservation and vitality (para. 91).

f.       Issues

[28]

Before the motion judge, and to some extent before this court, Dr.
    Gehls submissions were presented as a challenge to the constitutional validity
    of s. 6. However, in my view, the essential point is the proposition advanced
    by Ms. Eberts on Dr. Gehls behalf and by LEAF, namely, that the Registrar
    should accept evidence of the kind submitted by Dr. Gehl as to the paternity of
    her grandfather as sufficient to establish status.

[29]

Dr. Gehl also moves for the admission of fresh evidence relating to
    directives issued by the Registrar to deal with the 2010 amendments that followed
    the
McIvor
case.

g.      Analysis

[30]

I will first dispense with two preliminary matters,
    namely the Attorney Generals argument that the challenge to the interpretation
    of s. 6 reflected by the Policy is barred by an earlier court ruling, and Dr.
    Gehls application to admit fresh evidence.

(1)
Ruling striking out the
    original statement of claim

[31]

The Attorney General submits that Dr. Gehls challenge to the Policy is
    barred by a ruling made by a Superior Court judge on November 8, 2001, striking
    out the statement of claim with leave to amend: [2002] 4 C.N.L.R. 108 (Ont.
    S.C.J.). The original statement of claim sought damages for denial of Dr.
    Gehls s. 15 equality rights and a declaration that she is entitled to registration
    under the Act. Various causes of action were asserted, including misfeasance in
    public office.

[32]

I do not agree with the Attorney Generals argument that the 2001
    decision striking the original statement of claim precludes Dr. Gehl from
    challenging application of the Policy to her situation. No mention of the
    Policy was made in the 2001 decision. This matter proceeded to summary judgment
    in 2014 on the basis of an amended statement of claim asking for various forms
    of declaratory relief, including the following:

·

that
    s. 6 of the Act in its application to the plaintiff, is contrary to s. 15 of
    the
Charter
;

·

that
    s. 6 violates the s. 15 rights of applicants for registration whose ancestors
    were born out of wedlock;

·

that
    s. 6 violates the s. 15 rights of applicants for registration who do not know
    their or their ancestors paternity;

·

that
    s. 6 of the Act be interpreted and applied in a manner that does not
    disadvantage individuals or descendants of individuals whose paternity is
    unknown; and,

·

that
    the plaintiff is entitled to be registered pursuant to s. 6.

[33]

In my view, the current statement of claim is fundamentally different
    from that struck out in 2001. The claim for damages is gone and the focus is on
    declaratory relief. The amended claim directly puts in issue how an applicant
    is to establish the paternity of an unknown ancestor. I reject the submission
    that Dr. Gehl should be precluded from raising those issues on the basis of the
    2001 order.

(2)
Fresh evidence

[34]

Dr. Gehl moves for the admission as fresh evidence
    of directives issued by the Registrar following the 2010 amendments to the Act
    indicating that, in some circumstances, the pre-1985 presumption of paternity
    is applied to persons born before 1985. While this evidence was not known or
    available to Dr. Gehl at the time of the summary judgment motion, I am not
    persuaded that it is relevant to the issues before us. The proposed fresh
    evidence shows that the Registrar applies the pre-1985 presumption of paternity
    to individuals who had status under the pre-1985 Act at the time of their
    birth. That does not assist Dr. Gehl, as Mary Gagne did not have status at the
    time of Rodney Gagnons birth, but only acquired status as a result of the 1985
    amendments.

[35]

Accordingly, I would not admit the fresh evidence.

(3)
The Policy and the decision denying Dr. Gehl status

[36]

While her action was framed as a constitutional
    challenge, during the argument of this appeal it became clear that Dr. Gehl
    does not press her challenge to the constitutional validity of s. 6(1)(f) or
    the two-parent rule. Dr. Gehl does, however, challenge the adequacy and
    reasonableness of the Policy. Her central submission is that, on the evidence
    she has presented and on a proper application of s. 6(1)(f), it is unreasonable
    to deny her status.

[37]

This argument should have been advanced by way of
    her statutory appeal from the Registrars dismissal of Dr. Gehls protest
    against the decision denying her status. However, the focus of this action has
    considerably evolved over time and, as it has evolved, it has largely overtaken
    the statutory appeal. The issue has been argued fully before us. In these
    circumstances, it is in the interest of justice for this court to deal with
    that issue, subject to the procedural confines of this appeal.
As I have
    already noted, the Policy has no statutory force. It is not a regulation or
    instrument adopted pursuant to any provision of the Act. The version of the
    Policy before us on this appeal, and the version the Registrar considered in
    relation to Dr. Gehls case, is marked DRAFT FOR DISCUSSION PURPOSES ONLY. It
    was not published or available to the public at the time the Registrar dealt
    with Dr. Gehls protest. We were advised in oral argument by counsel for the
    Attorney General that the Draft Policy has now been adopted by the Registrar.
    Whatever status it may now have, at the time the Registrar dealt with Dr.
    Gehls protest, the Draft Policy is properly characterized as an exercise of
    administrative discretion. It was an informal and internal document, adopted by
    the Registrar to assist departmental officials when making determinations of
    entitlement to registration. It
was administrative rather than
    legislative in nature: see
Greater Vancouver Transportation
    Authority
, [2009] SCC 31, at paras. 58-66;
Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
, 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 85.

[38]

It is a basic proposition that administrative decision-makers must act
    consistently with the values underlying the grant of discretion, including
Charter
values:
Doré v. Barreau du Québec
, 2012 SCC 12, [2012] 1 S.C.R. 395,
    at para. 24.  The courts accord deference to the administrative
    decision-makers exercise of discretion. Provided the decision-maker has
    properly balanced the
Charter
value with the statutory objectives, the
    decision will be found to be reasonable:
Doré
at para. 58. On the other
    hand, if the decision-maker fails to balance the
Charter
rights or
    values at issue with the statutory objective in a reasonable manner, the
    decision is vulnerable to review: see
Loyola High School v. Quebec (Attorney
    General)
, 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 79, and
Doré
at
    para. 49.

[39]

I now turn to the relevant
Charter
rights and values that bear
    upon the Policy as it applies to Dr. Gehl.

[40]

Section 15 of the
Charter
provides:

Every individual is equal before and under the
    law and has the right to the equal protection and equal benefit of the law
    without discrimination and, in particular, without discrimination based on
    race, national or ethnic origin, colour, religion, sex, age or mental or
    physical disability.

[41]

There is no dispute that denial of Indian status constitutes denial of
    the benefit of the law. Indian status carries with it an important bundle of
    legal rights. Registration entails access to significant material benefits,
    including some tax exemptions, extended health coverage and financial
    assistance with post-secondary education. There are also very significant
    intangible benefits. Registration represents the right to belong to and be
    recognized as a member of a community, and to participate in its life and
    governance. Registration also includes the right to pass on Indian status to
    ones children, described by the British Columbia Court of Appeal in
McIvor
,
    at para. 71, as being of significant spiritual and cultural value. In many
    First Nations communities, registration is also tied to band membership and
    rights of participation in band elections.

[42]

Section 15 involves a flexible and contextual two-part inquiry:
Quebec
    v. A.,
2013 SCC 5, [2013] 1 S.C.R. 61, at para. 331. At the first stage,
    the question is whether on its face or in its impact, the law creates a
    distinction based on an enumerated or analogous ground:
Kahkewistahaw
    First Nation v. Taypotat
, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 19.
    At the second stage, the inquiry is whether the impugned law fails to respond
    to the actual capacities and needs of the members of the group and instead
    imposes burdens or denies benefits in a manner that has the effect of
    reinforcing, perpetuating or exacerbating their disadvantage:
Taypotat
,
    at para. 20.

[43]

I agree with the Attorney General that the determination of entitlement
    to registration on the basis of the entitlement of both parents is, on its
    face, a gender-neutral rule. However, I also agree with Dr. Gehls submission
    that the Registrar was required to guard against an exercise of discretion that
    results in substantive inequality.

[44]

Proof of identity of a parent is, as a matter of biology and common experience,
    more difficult for a mother to establish than a father. There can hardly ever
    be any doubt about maternity, but there may be considerable doubt about
    paternity. Moreover, a woman may have good reason for her reluctance or
    inability to disclose the identity of her childs father. The child may be the
    product of a relationship the mother is reluctant or unable to disclose. The
    pregnancy may be the result of a relationship with a man the mother is fearful
    of identifying, for example, a relative, or the spouse or partner of a friend
    or family member. The pregnancy may be the product of abuse, rape or incest.
    The mother may have had multiple sexual partners.

[45]

The Policy imposes a relatively strict burden of proof
    essentially based upon documentary evidence. The Policy provides that where
    confidentiality or personal safety is a concern and documentary proof of
    paternity is not available, the Registrar may consider conducting a hearing and
    considering other evidence. However, the Policy falls well short of what is
    required to address the circumstances that I have just described making proof
    of paternity problematic for many women. This failure perpetuates the long
    history of disadvantage suffered by Indigenous women. As Parliament itself
    recognized in 1985, the historic practice of stripping and denying Indigenous
    women of status represented a significant disadvantage that was inconsistent
    with the
Charters
promise of equality.

[46]

A pertinent feature of the 1985 amendments is that
    they removed all reference to illegitimacy. This change flowed from
    implementation of the two-parent rule, and it removed the only right a woman
    had to confer status upon her child in her own right in the years prior to 1985.

[47]

At the time of Rodney Gagnons birth in 1935,
the
Indian Act
, R.S.C. 1927, c.
    98, s. 12, provided that the illegitimate child of an Indian woman had band
    membership unless the child was excluded from membership by the Superintendent
    General. Section 11(e) of
the Indian Act,
S.C. 1951, c. 29, provided
    that the illegitimate child of an Indian woman was entitled to register unless
    the Registrar is satisfied that the father of the child was not an Indian.

[48]

The Attorney General opposes Dr. Gehls argument
    that she should be able to benefit from both the pre- and the post-1985
    legislation. The 1985 amendments restored rights unjustly taken away by
    discrimination, but it repealed rather than preserved the pre-1985 presumption
    of paternity upon which Dr. Gehl seeks to rely. It was only by virtue of the
    1985 amendments that Dr. Gehls paternal grandmother acquired status.
Dr.
    Gehl therefore cannot rely on the presumption of paternity, which was no longer
    available by the time her paternal grandmother gained status.
If
    Dr. Gehl is to qualify for status, the Attorney General submits, she must do so
    on the basis of the provisions of the post-1985 amendments to the Act.

[49]

I agree that Dr. Gehl cannot rely on the pre-1985 presumption
    of paternity. I would point out, however, that the 1985 amendments did not
    replace the former presumption of paternity with a presumption of
    non-paternity. Section 6(1)(f) is silent on the issue of standard and burden of
    proof, and the post-1985 Act imposes no presumption, one way or the other.

[50]

While the identity of Dr. Gehls paternal grandfather is unknown, as the
    motion judge observed there is some evidence to support an inference that he
    had Indian status, and there is no evidence that her unknown paternal
    grandfather did not have status. There is evidence that Dr. Gehls great
    grandparents lived on the Golden Lake Reserve, as did her grandmother. Dr.
    Gehls fathers birth certificate states that he was born on the Renfrew or
    Golden Lake reserve. There is evidence that he was accepted by the community
    and that he lived on the reserve for some time after his birth. His godfather
    was a prominent elder from the reserve. There is no evidence that he was ever
    excluded from the Golden Lake community. That evidence is, of course, far from
    conclusive but, as the motion judge suggested, in the absence of any evidence
    to the contrary, it is capable of supporting an inference that Dr. Gehls
    fathers situation satisfies the two-parent rule, and that he therefore had
    full status.

[51]

I agree with Dr. Gehls submission that when
    applied to her situation, the Policy unreasonably fails to take into account evidence
    of the kind that she has submitted and to the fact that Dr. Gehls father was
    born 50 years before the 1985 amendments. He was born in an era when
    illegitimacy carried with it significant social stigma, and when Indigenous
    women suffered from even greater discrimination and disadvantage than they do
    today. He was also born in an era when the law would have given him the benefit
    of a presumption favouring status had his mother not been unjustly deprived of
    her status.

[52]

The imposition of a relatively strict burden of proving
    paternity may well be appropriate to circumstances arising after 1985, when the
    new regime came into force and after the iniquities of the prior regime had
    been eliminated. However, it is unreasonable to apply that same burden to Dr.
    Gehls circumstances in relation to a birth that occurred 50 years prior to the
    amendments and to individuals who had been unjustly deprived of status. To
    impose such a burden fails to take into account and reflect both the equality-enhancing
    and the remedial purposes of the 1985 amendments. Those amendments reached back
    in time and restored rights lost over 100 years ago because of the iniquitous
    provisions of the pre-1985 Act. That restorative purpose would be frustrated if
    some allowance were not given for the difficulty in establishing the identity
    of the unknown father of an illegitimate child born over 80 years ago on a
    reserve to an Indigenous woman who herself had been wrongly deprived of status.

[53]

In summary, the Registrars application of the Policy to
    Dr. Gehls circumstances failed to take into account the equality-enhancing values
    and remedial objectives underlying the 1985 amendments, and was therefore unreasonable.

H.      DISPOSITION

[54]

Ordinarily, in a proceeding of this nature, a court will not substitute
    its decision for that of an administrative decision-maker, but rather will
    remit the matter back to the administrative decision-maker for further
    consideration. However there is an exception where doing so would be
    pointless as there is only one possible outcome in view of the courts
    decision:
Giguère v. Chambre des Notaires du Quebec
, 2004 SCC 1,
    [2004] 1 S.C.R. 3, at para. 66. In my view, this case falls within that
    category. Dr. Gehl presented some evidence from which it could be inferred that
    her paternal grandfather had status. There is no evidence to the contrary. As
    the motion judge suggested, requiring more from Dr. Gehl than the evidence she
    has provided and a statutory declaration that she has no basis for believing
    that her paternal grandfather would not have been entitled to registration goes
    beyond what, on a reasonable interpretation, the Act requires. Accordingly, it
    is appropriate for this court to grant Dr. Gehl a declaration that she is
    entitled to be registered pursuant to s. 6(2) of the Act as the child of one
    parent with full status.

[55]

If the parties are unable to agree as to the costs of this appeal, they
    may make brief written submissions to the panel.

Robert J. Sharpe J.A.

Lauwers and Miller JJ.A. (Concurring):

[56]

We concur with our colleague in
    the result, and agree with much of his reasoning. We would, however, resolve
    this appeal solely on the basis of administrative law principles, without
    resort to the concept of
Charter
values.  Before setting out our approach to these issues, we review some of the
    procedural context and history.

A.

procedural
    overview

[57]

In the ordinary course, a person such as Dr. Gehl who seeks registration
    under s. 14.1 of the
Indian Act
,

R.S.C. 1985, c. I-5,

makes
    a request to the Registrar to have her name included on the Indian Register or on
    a Band List. Dr. Gehl applied to be registered on November 28, 1994. Her
    application was denied on February 13, 1995. She protested the decision under
    s. 14.2 of the Act on March 16, 1995. The Registrar responded in a letter dated
    February 4, 1997, advising Dr. Gehl of the intention to uphold the decision,
    and explaining the factual basis and reasoning behind the decision. The
    Registrar invited Dr. Gehl to provide further written submissions if she wished
    to challenge either the Registrars factual findings or reasoning.  Dr. Gehl did
    so by letter dated May 2, 1997. The Registrar issued a final denial on April
    27, 1998.

[58]

Dr. Gehl was entitled to appeal
    the Registrars decision to the Ontario Superior Court of Justice within six
    months under s. 14.3 of the
Indian Act
, and she did so. The appeal went into abeyance.

[59]

In 2001, a few years after she filed her statutory appeal, Dr. Gehl
    started an action in the Superior Court of Justice seeking damages against the
    Crown pursuant to s. 24(1) of the
Charter
and for misfeasance in
    public office. She also sought a declaration that the legislation was
    unconstitutional and declarations that she and her father were entitled to
    registration under the legislation. The Crown moved to strike the statement of claim
    as disclosing no cause of action. The motion was heard by Swinton J., who
    allowed the motion but granted Dr. Gehl leave to amend. Her reasons are found
    at
Gehl v. Canada (Attorney General)
, [2001] 4 C.N.L.R. 108 (Ont.
    S.C.). Justice Swinton found, at para. 13:

[T]he Registrar is not exercising
    a broad discretion as in
Eldridge
[
v. British Columbia (Attorney
    General)
, [1997] 3 S.C.R 624], when making a decision about entitlement to
    registration; rather, the Registrar is required to determine eligibility for registration
    in accordance with the criteria found in s. 6 of the Act and to determine
    protests in accordance with procedure set out in s. 14.2(4).

She added, at para. 14: it is the current
Indian Act
that sets out Indian status, and it creates the
    barrier to the plaintiffs registration, not a policy decision taken by the Registrar.
    Since it is not an administrative policy which places obstacles to the plaintiffs
    registration, she noted at para. 15, the action based on s. 24(1) of the
Charter
must fail. Justice Swinton therefore struck the
    statement of claim, with leave to amend, stating at para. 15: if there is
    denial of equality rights, the proper method to proceed is by way of a request
    for declaration under s. 52(1) of the
Charter
that the statute is invalid.

[60]

Taking her cue from Swinton J., Dr.
    Gehl responded by issuing an amended statement of claim dated October 18, 2002
    seeking a declaration that s. 6 of the
Indian Act
violates s. 15(1) of the
Charter
, and an order striking it down under s. 52. In
    addition to the attack on s. 6 of the
Indian Act
, Dr. Gehl also sought
    the following declarations:

(b) A declaration that section 6 of the 1985 Act be interpreted
    and applied in a manner that does not disadvantage individuals or decedents of
    individuals whose paternity is unknown, or whose ancestors had never been
    registered or recognized as Indians;

(c) A declaration that the plaintiffs father, Rodney Peter
    Gagnon, has entitlement to be registered pursuant to section 6(1)(a) of the
    1985 Act;

(d) A declaration that the plaintiff has entitlement to be
    registered pursuant to section 6(1)(a) of the 1985 Act.

[61]

We concur with our colleague that
    the arguments advanced in the summary judgment motion could have and should
    have been advanced in the statutory appeal from the Registrars dismissal of
    Dr. Gehls protest.

B.

procedural
    concerns

[62]

Dr. Gehl let the action languish
    for many years until 2014 when the parties agreed to schedule a motion for summary
    judgment, which was heard by the motion judge and is the subject of this
    appeal.

[63]

The motion judge dismissed the
    motion on the basis that Dr. Gehl had failed to prove that the
Indian Act
provided for differential treatment based on an enumerated or analogous ground
    under s. 15 of the
Charter
(at para.
    82).

[64]

The radical change in the Dr.
    Gehls position before this court is that she has effectively abandoned her
    challenge to the constitutional validity of s. 6(1)(f) of the
Indian
    Act
or the 2-parent rule. Instead, she challenges
    the Registrars Policy and the Registrars decision.

[65]

There are procedural obstacles to the challenge to the Registrars
    Policy. There was no formal policy in existence in 1998 when the Registrars
    decision was made. The Policy, which formalized the practices that had
    developed within the Registrars office over time, did not come into existence
    until well after the litigation had been started. Further, as our colleague
    notes, the Policy is not law and is not amenable to
Charter
review:
Greater
    Vancouver Transportation Authority v. Canadian Federation of Students  British
    Columbia Component
, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 58;
Little
    Sisters Book and Art Emporium v. Canada (Minister of Justice)
, 2000 SCC 69,
    [2000] 2 S.C.R. 1120, at para. 85.

[66]

There are also procedural difficulties with the claim for declaratory
    relief based on legal entitlements under the Indian Act. To be clear,
    ordinarily a superior court should decline to hear an application for
    declaratory relief where another procedure has been legislatively provided, as
    in this case. Although the court has a broad jurisdiction to grant declaratory
    relief under s. 97 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    the court can, on a discretionary basis, decline to issue a declaration where,
    as here, Parliament has provided access to as broad a remedy through another
    process:
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R.
    809, at paras. 36, 40;
Peiroo v. Canada
(1989), 69 O.R. (2d) 253
    (C.A.).

[67]

However, we concur with our
    colleague that in these circumstances it is in the interest of justice for
    this court to deal with [the] issue. This court is in as good a position as
    the appeal judge would have been in the normal statutory appeal process to
    decide the issues. While it would be procedurally correct to require Dr. Gehl
    to resume the statutory appeal, with the possibility of another appeal to this
    court, it would serve no useful purpose and would waste scarce judicial
    resources. We propose to resolve this appeal on the same grounds as were
    brought in the statutory appeal to the Superior Court.

C.

substantive
    concerns

[68]

Our colleague proposes to resolve
    this appeal on the basis that the Registrars decision is inconsistent with
Charter
values. However, in our view there is no reason to
    resort to either
Charter
rights
    or
Charter
values in what is
    essentially the appeal of the Registrars decision. In prioritizing
    administrative law analysis, we follow the practice of the Supreme Court in
    cases such as
Baker v. Canada (Minister of Citizenship and Immigration)
,
    [1999] 2 S.C.R. 817, at para. 11 and
Chieu v. Canada (Minister of
    Citizenship and Immigration)
, 2002 SCC 3, [2002] 1 S.C.R. 84, at paras.
    19-20, 24. We first address the administrative law resolution of this appeal,
    and then explain why we are unable to agree with our colleagues approach.

(1)

The administrative law
    solution is sufficient

[69]

In light of the way the case has
    evolved, it should be resolved on straightforward administrative law grounds on
    the basis that the Registrars decision is simply unreasonable. We concur with our
    colleague, who notes at para. 52, when applied to [Dr. Gehls] situation, the Policy
    unreasonably fails to take into account evidence of the kind that she has submitted.
    There is no need to resort to
Charter
rights or
Charter
values
    to provide Dr. Gehl with the remedy she seeks.

[70]

The result of the Registrars decision is that Ms. Gehl
    is prevented from accessing benefits  benefits constitutionally guaranteed by
    s. 35 of the
Constitution Act, 1982
 because
    of an imposed burden that she prove something that, in the circumstances,
    cannot be proven.

[71]

Dr. Gehl gave the Registrar circumstantial
    evidence capable of supporting the inference that her paternal grandfather was,
    more likely than not, entitled to registration. Her application was denied on
    the basis that a claimant must that specifically identify an ancestor by name,
    in all circumstances, as a precondition to registration:

It is unfortunate that there is no possibility
    of identifying Rodney Gagnons birth father. However, for the purposes of
    registration under the
Indian Act
, a
    determination is made on the entitlement to registration of each parent, as far
    as such information is available.
Without knowing the identity of
    Rodney Gagnons father, I cannot reasonably conclude that he is entitled to
    registration under the Act
. [Emphasis added.]

Letter from the Registrar, April 27, 1998

[72]

The wrong in the Registrars decision is caused by the
    application of a categorical evidentiary rule that works in an exclusionary
    manner to deny registration and status to an entitled individual who cannot
    identify a relevant ancestor by
name
. It is the demand for evidence of
    specific identity when, in some circumstances, only circumstantial evidence of
    Indian status of an ancestor whose actual identity is not known (and is not
    knowable) is available.

[73]

The application of this rule  by which the Registrar
    refused Dr. Gehls application  is unreasonable because it is at odds with the
    purpose of s. 6 of the
Indian Act
, which is to provide for the
    registration of persons who are entitled to registration. It potentially denies
    the benefit of registration to some persons whom the Act entitles to
    registration  as the Registrar acknowledged on cross-examination  solely
    because of their inability to satisfy an unreasonable evidential demand not
    mandated by the Act. The demand for evidence of a specific identity is
    unreasonable because it is a demand for evidence which is not only superfluous,
    but now, through the passage of time, unobtainable in this instance.

[74]

The circumstantial evidence advanced by Dr. Gehl is
    capable of supporting an inference that her paternal grandfather was of
    aboriginal ancestry: his baptismal certificate indicates her father was born on
    the reserve; his godparents were members of the reserve community; he resided
    on the reserve during his childhood; there is no record of his being denied
    participation in the activities of the community.

[75]

In the circumstances of an historical
    claim such as this one, it is sufficient for the claimant to provide some
    evidence capable of giving rise to the inference that an unknown father may
    have had status, which constitutes sufficient proof of paternity for the
    purposes of the legislation, in the absence of any evidence to the contrary. We
    would grant the remedy sought on this basis alone.

(2)

A
Charter
values analysis should be avoided where possible

[76]

The foregoing analysis is
    sufficient to resolve this appeal. We make two substantive observations on our
    colleagues proposal to resolve the appeal through the application of
Charter
values. First,
where a case can be resolved
    without reference to
Charter
values, prudence suggests they should not
    be invoked
. In our view, a
Charter
values analysis would unnecessarily inject
    subjectivity and uncertainty into the legal analysis. Second, there is no need
    to resort to
Charter
values to
    displace any deference that an appellate body might owe to the original
    decision-maker, because in Dr. Gehls case no deference is owed to the
    Registrar
.

(a)

Charter
rights and values should not be invoked in this case

[77]

Dr. Gehl has abandoned her constitutional challenge to the legislation
    and is now focused on whether the Registrars decision, which applied a rule
    later formalized into a policy, deprives her of rights under the legislation. As
    we have explained, any child who is unable to identify either her father or
    mother is denied the benefits of registration because of an evidential rule
    that in some circumstances frustrates the purpose of the statute. As our
    colleague rightly points out,
the difficulty faced by a
    claimant who is unable to identify a parent will almost always be in
    establishing the identity of a father. But the unreasonableness of the
    Registrars decision does not turn on whether the unknown parent is the mother
    or father, and is not best described as a matter of discrimination or
    inequality. The decision would be no less unreasonable if Dr. Gehl had been
    denied registration because of an inability to identify her biological mother
    or grandmother.
The appeal to
Charter
values does not add
    anything to the substantive administrative law analysis, as we noted above, and
    does no work in reaching the outcome.

[78]

Our objection to the use of
Charter
values in this appeal is
    not simply because it is unnecessary to the result. There are good reasons why
    the role that
Charter
values can play in judicial reasoning has been
    carefully circumscribed. One reason is the risk that an appeal to
Charter
values can pre-empt
Charter
rights analysis, and thus risk
    subordinating
Charter
rights. A party bringing a
Charter
challenge
    is entitled to a judicial determination of whether the
Charter
right
    has been limited, and the government must have the opportunity to argue that
    such a limit is justified under s. 1 of the
Charter
:
Symes v.
    Canada
, [1993] 4 S.C.R. 695, [1993] S.C.J. No. 131, at para. 105 (QL) [
per
Iacobucci J.]. Our colleagues reasons elide the two distinct legal concepts of
Charter
rights and
Charter
values.

[79]

Furthermore, there is good reason to maintain a modest role for
Charter
values in judicial reasoning generally and in statutory interpretation
    specifically.
Charter
values lend themselves to subjective application
    because there is no doctrinal structure to guide their identification or application.
     Their use injects a measure of indeterminacy into judicial reasoning because
    of the irremediably subjective  and value laden  nature of selecting some
Charter
values from among others, and of assigning relative priority among
Charter
values and competing constitutional and common law principles. The problem of
    subjectivity is particularly acute when
Charter
values are understood
    as competing with
Charter
rights.

[80]

With respect to the identification and selection of
Charter
values, it must be noted that they are not a discrete set, like
Charter
rights, which were the product of a constitutional settlement and are easily
    ascertained by consulting a constitutional text. The identification of
Charter
values has been
ad hoc
. Sometimes (as in our colleagues reason) they
    track the language of an enumerated right, in this case, equality.

[81]

Other times
Charter
values have been formulated at a
    much higher level of abstraction  as concepts such as justice, liberty,
    autonomy or dignity:
Loyola High School v. Quebec (Attorney General)
,
    2015 SCC 12, [2015] 1 S.C.R. 613. The meaning of these concepts  and their juridical
    application  is both contestable and contested.  Philosophers have debated the
    requirements of justice, for example, for thousands of years. The same could be
    said of many other
Charter
values.

[82]

With respect to their operation in judicial reasoning, problems
    can arise from a lack of clarity about the subordinate relationship of
Charter
values to
Charter
rights, the plurality of
Charter
values,
    and their uncertain relationship to each other and to constitutional and common
    law principles. Unlike
Charter
rights, which are largely negative and
    will thus rarely conflict, multiple
Charter
values can simultaneously
    apply in a given dispute, and can easily be in conflict. In this case, for
    example, although equality seems like an apposite value, it is a capacious
    concept that goes beyond the legal right established in s. 15 of the
Charter
.
    Every conception of equality, as the Supreme Court noted in adopting the words
    of J.H. Schaar in
Andrews v. Law Society of British Columbia
, [1989] 1
    S.C.R. 143, [1989] S.C.J. No. 6, is at once a psychology, an ethic, a theory
    of social relations, and a vision of the good society (at para. 26 (QL)). The
Charter
value of equality potentially competes and conflicts with the autonomy and
    liberty of native bands, principles that were identified as
Charter
values in
R. v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras.
    44-48, and which, according to the s. 1
Charter
evidence tendered in
    this case, informed the compromise that underlies s. 6 of the
Indian Act
.

[83]

In light of these and other problems, the Supreme Court has limited the
    role
Charter
values can play in statutory interpretation. In
Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    paras. 28, 60-66, the Supreme Court held that
Charter
values have no
    role in the interpretation of legislation unless the text is ambiguous, in the
    sense that one or more meanings are available that are equally in accordance
    with the intentions of the statute: see, most recently,
Wilson v. British
    Columbia (Superintendent of Motor Vehicles)
, 2015 SCC 47, [2015] 3 S.C.R.
    300, at para. 25.  Absent such ambiguity,
Charter
values have no role
    to play in statutory interpretation. This stance reinforces our view that a
Charter
values analysis should be avoided where it is not necessary to the outcome
    sought by the party.

(b)

Deference is not owed to the Registrar

[84]

Although we agree with our
    colleague that deference is not owed to the Registrar, we do not arrive at that
    conclusion on the basis that the Registrar
failed to balance the
Charter
rights or values at issue with the statutory objective in a reasonable manner,
    citing
Loyola
, at para.
79, and
Doré v. Barreau du
    Québec
, 2012 SCC 12, [2012] 1 S.C.R. 395
,
at para.
49.

[85]

We take a more direct route. The Registrar was not exercising
    discretionary power in refusing Dr. Gehls registration request, and therefore
    her decision does not attract deference.

[86]

Deference is required only if the
    administrative decision maker is exercising, as
Doré
prescribes,
a relevant grant of discretion. But, as Swinton J.
    observed, no discretionary power is exercised by the Registrar in determining
    whether Dr. Gehl is entitled to registration under the
Indian Act
.
The concept of discretion is explained in
Baker
,
    at para. 52: "The concept of discretion refers to decisions where the law
    does not dictate a specific outcome, or where the decision-maker is given a
    choice of options within a statutorily imposed set of boundaries." No such
    choice of options is given to the Registrar by s. 6 of the
Indian Act
.

In "Another View of
Baker
"
    (1999), 7 R.A.L. 163 at 164, James L.H. Sprague observed, and we agree:

Filling in legislative gaps and making choices among various
    options is not true discretion. That is trying to discern what the legislator
    meant to say. The legislator never said, or intended to say, that where there
    is a gap, the law is to be whatever a decision-maker may decide it should be.
    No, where the decision-maker has to fill in gaps or otherwise interpret law he
    or she is not exercising discretion. He or she is simply doing his or her best
    to ascertain what the law is  he or she is not a law-maker (or at any rate is
    not supposed to be).

[87]

The Registrars obligation is to administer
    legislation that determines the question of Dr. Gehls entitlement. It follows
    that the Registrar must get it right in accordance with the statutory criteria,
    and is subject to an appeal to the Superior Court of Justice on the standard of
    correctness. (In our view it is significant that the statutory appeal is to the
    Superior Court rather than to a statutory body with subject-specific
    expertise.) Although the Registrar, or more likely the officials working under
    the Registrar, might develop some kind of field sensitivity and facility in
    researching historical records, in no sense does the Registrar exercise
    discretionary power. Nor is any special expertise exercised by the Registrar in
    determining entitlement. This court does not owe deference to the Registrar and
    does not need to invoke
Charter
values in order to overcome deference, as our colleague proposes.

D.

Remedy

[88]

We agree with our colleague that this falls within the category
    of exceptional cases in which remitting the matter to the decision-maker would
    pointless since there is only one possible outcome. Dr. Gehl presented evidence
    from which it could be inferred that her paternal grandfather had status. There
    is no evidence to the contrary. As the motion judge suggested, requiring more
    from Dr. Gehl than the evidence she has provided and a statutory declaration
    that she has no basis for believing that her paternal grandfather would not
    have been entitled to registration goes beyond what, on a reasonable
    interpretation, the Act requires.

[89]

Accordingly, we would allow the appeal and grant the declaration that
    Dr. Gehl is entitled to be registered under s. 6(2) of the
Indian Act
as
    the child of one parent with full status

Released:
RJS APR 20
    2017

P.
    Lauwers J.A.

B.W.
    Miller J.A.

Appendix A

Indian Act
, R.S.C. 1927, c. 98

2
. In this Act, unless the context
    otherwise requires...

(
d
) "Indian" means

(
i
) any male person of Indian
    blood reputed to belong to a particular band;

(
ii
) any child of such person; or

(
iii
) any woman who is or was
    lawfully married to such person; ...

12
. Any illegitimate child may,
    unless he has, with the consent of the band whereof the father or mother of
    such child is a member, shared in the distribution moneys of such band for a
    period exceeding two years, be, at any time, excluded from the membership
    thereof by the Superintendent General.

14
. Any Indian woman who marries any
    person other than an Indian, or a non-treaty Indian, shall cease to be an
    Indian in every respect within the meaning of this Act, except that she shall
    be entitled to share equally with the members of the band to which she formerly
    belonged, in the annual or semi-annual distribution of their annuities,
    interest moneys and rents; but such income may be commuted to her at any time
    at ten years' purchase, with the approval of the Superintendent General.

Indian Act
, S.C. 1951, c. 29

10
. Where the name of a male person is included in, omitted
    from, added to or deleted from a Band List or a General List, the names of his
    wife and his minor children shall also be included, omitted, added or deleted,
    as the case may be.

11
. Subject to section twelve, a person is entitled to be
    registered if that person

(
a
) on the twenty-sixth day of
    May, eighteen hundred and seventy-four, was, for the purposes of An Act
    providing for the organization of the Department of the Secretary of State of
    Canada, and for the management of Indian and Ordnance Lands, chapter forty-two
    of the statutes of 1868, as amended by section six of chapter six of the
    statutes of 1869, and section eight of chapter twenty-one of the statutes of 1874,
    considered to be entitled to hold, use or enjoy the lands and other immovable
    property belonging to or appropriated to the use of the various tribes, bands
    or bodies of Indians in Canada,

(
b
) is
    a member of a band

(
i
) for whose use and benefit, in common,
    lands have been set apart or since the twenty-sixth day of May, eighteen
    hundred and seventy-four have been agreed by treaty to be set apart, or

(
ii
) that has been declared by the
    Governor in Council to be a band for the purposes of this Act,

(
c
) is
    a male person who is a direct descendant in the male line of a male person
    described in paragraph (a) or (b),

(
d
) is
    the legitimate child of

(
i
) a male person described in
    paragraph (a) or (b), or

(
ii
) a person described in
    paragraph (c),

(
e
) is
    the illegitimate child of a female person described in paragraph (a), (b) or
    (d), unless the Registrar is satisfied that the father of the child was not an
    Indian and the Registrar has declared that the child is not entitled to be
    registered, or

(
f
) is
    the wife or widow of a person who is entitled to be registered by virtue of
    paragraph (a), (b), (c), (d) or (e).

12
.
(1)
The following persons are not entitled to be
    registered, namely,

(
a
) a
    person who

(i) has received or has been allotted
    half-breed lands or money scrip,

(ii) is a descendant of a person
    described in subparagraph (i),

(iii) is enfranchised, or

(iv) is a person born of a marriage
    entered into after the coming into force of this Act and has attained the age
    of twenty-one years, whose mother and whose father's mother are not persons
    described in paragraph (a), (b), (d), or entitled to be registered by virtue of
    paragraph (e) of section eleven, unless, being a woman, that person is the wife
    or widow of a person described in section eleven, and

(
b
) a
    woman who is married to a person who is not an Indian.

Act to amend the Indian Act
, S.C. 1956, c. 40

3
. (
1
) Paragraph (e) of
    section 11 of the said Act is repealed and the following substituted therefor:

(
e
) is the

illegitimate

child

of a female person described in paragraph
    (a), (b) or (d); or.

(
2
) Section 12 of the said Act is
    amended by adding thereto, immediately after subsection (1) thereof, the
    following subsection:

(
1a
) The addition to a Band List of
    the name of an

illegitimate
    child

described in paragraph (e)
    of section 11 may be protested at any time within twelve months after the
    addition, and if upon the protest it is decided that the father of the child
    was not an Indian, the child is not entitled to be registered under paragraph
    (e) of section 11.

(
3
) This section applies only to
    persons born after the coming into force of this Act.

Indian Act
, R.S.C. 1985, c. I-5 (as amended in by
    the
Gender Equity in Indian Registration Act
, S.C. 2010, c. 18, which
    added ss. 6(1)(c.1))

Persons entitled to be registered

6

(
1
)
Subject to section 7, a person is
    entitled to be registered if

(
a
)
that
    person was registered or entitled to be registered immediately prior to April
    17, 1985;

(
b
)
that
    person is a member of a body of persons that has been declared by the Governor
    in Council on or after April 17, 1985 to be a band for the purposes of this
    Act;

(
c
)
the
    name of that person was omitted or deleted from the Indian Register, or from a
    band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph
    12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an
    order made under subsection 109(2), as each provision read immediately prior to
    April 17, 1985, or under any former provision of this Act relating to the same
    subject-matter as any of those provisions;

(
c.1
)
that
    person

(
i
) is a person whose
    mothers name was, as a result of the mothers marriage, omitted or deleted
    from the Indian Register, or from a band list prior to September 4, 1951, under
    paragraph 12(1)(b) or under subparagraph 12(1)(a)(iii) pursuant to an order
    made under subsection 109(2), as each provision read immediately prior to April
    17, 1985, or under any former provision of this Act relating to the same
    subject-matter as any of those provisions,

(
ii
) is a person whose other
    parent is not entitled to be registered or, if no longer living, was not at the
    time of death entitled to be registered or was not an Indian at that time if
    the death occurred prior to September 4, 1951,

(
iii
) was born on or after
    the day on which the marriage referred to in subparagraph (i) occurred and,
    unless the persons parents married each other prior to April 17, 1985, was
    born prior to that date, and

(
iv
) had or adopted a child,
    on or after September 4, 1951, with a person who was not entitled to be
    registered on the day on which the child was born or adopted;

(
d
)
the
    name of that person was omitted or deleted from the Indian Register, or from a
    band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant
    to an order made under subsection 109(1), as each provision read immediately
    prior to April 17, 1
(
985, or under any former
    provision of this Act relating to the same subject-matter as any of those
    provisions;

(
e
)
the
    name of that person was omitted or deleted from the Indian Register, or from a
    band list prior to September 4, 1951,

(
i
)
under
    section 13, as it read immediately prior to September 4, 1951, or under any
    former provision of this Act relating to the same subject-matter as that
    section, or

(
ii
)
under
    section 111, as it read immediately prior to July 1, 1920, or under any former
    provision of this Act relating to the same subject-matter as that section; or

(
f
)
that
    person is a person both of whose parents are or, if no longer living, were at
    the time of death entitled to be registered under this section.

(2)
Subject to section 7, a person is entitled to be
    registered if that person is a person one of whose parents is or, if no longer
    living, was at the time of death entitled to be registered under subsection (1).

(3)
For the purposes of paragraph (1)(f) and subsection
    (2),

(a)
a person who was no longer living immediately prior
    to April 17, 1985 but who was at the time of death entitled to be registered
    shall be deemed to be entitled to be registered under paragraph (1)(a);

(b)
a person described in paragraph (1)(c), (d), (e) or
    (f) or subsection (2) and who was no longer living on April 17, 1985 shall be
    deemed to be entitled to be registered under that provision; and

(c)
a person described in paragraph (1)(c.1) and who
    was no longer living on the day on which that paragraph comes into force is
    deemed to be entitled to be registered under that paragraph
.

Appendix B

[1]
In these reasons, I use the word Indian and the phrase status Indian
    interchangeably to refer to a person who is entitled to register under the
Indian
    Act
. I use the words non-status and non-Indian to refer to persons who
    are not entitled to register under the Act.


COURT OF APPEAL FOR ONTARIO

CITATION: Goldman v. Kudelya, 2017 ONCA 300

DATE: 20170413

DOCKET: C61585

Epstein, Benotto and Trotter JJ.A.

BETWEEN

Jesse Irwin Goldman

Applicant (Appellant)

and

Larisa Kudelya

Respondent
    (Respondent)

Bryan R. G. Smith, for the appellant

Larisa Kudelya, in person

Heard: March 16, 2017

On appeal from the order of Justice Richard T. Bennett of
    the Superior Court of Justice, dated December 17, 2015.

Benotto J.A.:

[1]

The parties are the parents of a 10 year old girl. They have been
    disputing custody since she was three. In 2013, a trial judge made a final
    order with detailed provisions for parallel parenting. In 2014, the appellant
    (father) launched a motion to change seeking sole custody. After a six day
    hearing, the motion to change was dismissed. The motion judge found that there
    had not been a material change in circumstances and added that he would not, in
    any event, have awarded sole custody to the father. The father appeals claiming
    that the motion judge erred in failing to find a material change in
    circumstances and also erred in not granting him sole custody.

[2]

For the reasons that follow, I would dismiss the appeal.

A.

FACTS

[3]

The parties were married in 2004. The father is a lawyer; the mother is
    a registered nurse. They have one child, born January 2007. They separated in
    January 2010 when the mother was contacted by a woman who provided her with
    evidence of the fathers affairs. This was the genesis for ongoing mistrust, anger
    and a sense of betrayal that the mother felt towards the father.

[4]

The parties immediately embarked upon what has been accurately described
    as high conflict litigation. The police, childrens services agencies and the
    courts became involved. In August 2010, the court appointed Dr. Irwin Butkowsky
    to conduct an assessment pursuant to s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12
.

[5]

Dr. Butkowsky conducted an extensive assessment and prepared detailed
    recommendations with respect to parenting. In his opinion, both parents were
    loving and had good parenting skills. The difficulty was the lack of mutual
    trust leading to ongoing conflict. His recommendation for decision-making for the
    child focused on a concept known as parallel parenting or divided custody.
    This means that each parent has decision-making authority in certain areas
    after consultation with the other. For example, the father has decision-making
    authority over education, the mother over health issues. Dr. Butkowsky was of
    the view that in situations of intense conflict, shared parenting, which
    involves joint decision-making, would increase the likelihood of the child being
    exposed to conflict.

[6]

Dr. Butkowsky further recommended that the parties attend joint
    education/facilitation with a qualified mental health professional who could
    serve as a parenting coordinator and assist in the implementation and
    maintenance of the recommended parenting plan.

[7]

Dr. Butkowsky met with the parties to achieve agreement. The parties did
    not agree. They proceeded to settle the financial issues and went to trial on
    child related matters in June and July 2012.

Trial before Kaufman J.

[8]

After a 15-day trial, Kaufman J. concluded that Dr. Butkowskys recommendations
    should be implemented. The trial judges reasons reflect a keen awareness of
    the extent of the conflict between the parents. He referred to Dr. Butkowskys
    testimony that these parents are incapable of cooperative communication and
    mutually trusting interaction. He also acknowledged that the parents display
    mutual mistrust, underlying mutual hostility, high levels of conflict and
    apparently poor conflict resolution skills.

[9]

The trial judge accepted Dr. Butkowskys recommendations with respect to
    parallel parenting and the appointment of a mutually agreed upon parenting
    coordinator with arbitral powers. The trial judge concluded, at para. 193:

Awards of custody should not reflect a winner and a loser; the
    mere fact that [the childs] parents have been involved in the prolonged and
    somewhat sordid case, if the trend continues, could make the child a loser

Having heard the evidence of the witnesses and placing
    considerable emphasis on the most thorough report of Dr. Butkowsky, this court
    is satisfied that the recommendations set out in the report provide a complete
    package for checks and balances to ensure that these parents pay more than lip
    service to the concept of the best interests of their daughter.

[10]

The trial judge ordered that if the parties could not agree on a
    parenting coordinator, Dr. Butkowsky would choose.  No appeal was taken from
    this order.

[11]

The judgment was released on August 6, 2013. Fourteen months later, on
    October 23, 2014, the father commenced his motion to change.

Motion to change

[12]

The motion was heard by Bennett J. in June and August 2015. The father
    sought to change Kaufman J.s judgment to grant the father sole custody and
    primary residence of the child. The primary basis for his motion  as
    understood by the motion judge  was that a parenting coordinator had not been
    put in place. The father claimed that this was the mothers fault. The mother,
    of course, disputed this.

[13]

The motion judge instructed himself that in order to vary the initial
    order, he must find a material change in circumstances. He reviewed in some
    detail the trial judges findings about the relationship between the parties.
    He concluded that the parties were incredibly hostile, and that the mother, in
    particular, was the cause of much of the drama. He then considered the parties
    current situation. He found that the father had tried to rise above the
    conflict, but that he continues to subtly intimidate the [mother] provoking an
    adverse reaction. He further found that the mother is an intelligent woman who
    loves her daughter, but is unable to dissociate her anger at the father from
    her parenting responsibilities.

[14]

The motion judge reviewed a number of high conflict incidents relating
    to family holidays, religious occasions, summer camp, schooling and the
    appointment of a parenting coordinator. The motion judge found that although
    the mother was responsible for most of these incidents, the father was not
    totally blameless.

[15]

In a 30-page decision, the motion judge concluded, at para. 151:

For the reasons extensively set out above I find that there has
    been no material change in circumstances and that the events that have taken
    place since the first trial are events that are within the realm of what was
    anticipated by Justice Kaufman.

[16]

The motion judge found that even if there had been a material change in
    circumstances, he would not have granted the father sole custody. In his view,
    there was a risk that the father would alienate the child from her mother.

[17]

He ordered the parties to agree to a parenting coordinator within 10
    days, failing which  in accordance with the trial judgment of Kaufman J.  Dr.
    Butkowsky would appoint one.

[18]

The father appeals this order alleging that the motion judge erred in
    not finding a material change in circumstances and erred in not granting him
    sole custody. Further, the father submits that the motion judge erred in
    authorizing Dr. Butkowsky to appoint a parenting coordinator in the absence of
    agreement by the parties. If he is granted sole custody, seeks a termination of
    his child support payments.

The fresh evidence

[19]

Both parties seek to rely on fresh evidence describing the ongoing
    conflict. The fresh evidence details the recent conflict concerning appointing
    a parenting coordinator and arranging counselling for the child. Predictably,
    each spouse points the finger at the other.

[20]

The fathers fresh evidence focuses largely on efforts to arrange
    counselling for the child. He alleges that, even though the mother told the
    motion judge that she agreed to obtain counselling for the child, she has not
    done so. (It appears to be common ground that counselling falls within the
    purview of health, a topic over which the mother has decision-making
    authority.) The mothers evidence suggests that it is the father who has been
    thwarting her efforts to arrange counselling.

B.

ISSUES

[21]

The issues to be addressed are:

1.

Should the fresh evidence be admitted?

2.

Has there been a material change in circumstances?

3.

Did the motion judge err in authorizing Dr. Butkowsky to appoint a
    parenting coordinator if the parties could not agree on one?

[22]

In light of my conclusions on the above issues, it is not necessary to
    address the motion judges refusal to change custody or the fathers request to
    terminate child support payments.

C.

ANALYSIS

(1)

Should the fresh evidence be admitted?

[23]

The principles governing the admissibility of fresh evidence on appeal
    are outlined in
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775.
    The
Palmer
test requires the applicant to satisfy four
    criteria: (i) the evidence could not have been adduced at trial; (ii) the
    evidence must be relevant in that it bears on a decisive or potentially
    decisive issue; (iii) the evidence must be reasonably capable of belief; and
    (iv) the evidence must be such that, if believed, it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[24]

If these were the only criteria for admissibility, the proposed evidence
    would not meet the test. The evidence reflects nothing new but a continuation
    of the conflict that existed at the first trial and at the time of the motion
    to change. On this basis, it would not reasonably have affected the result.
    Further, the evidence consists largely of an exchange of allegations and
    denials which this court is not in a position to resolve.

[25]

But the test here is different. The
Palmer
criteria are more
    flexible where an appeal involves the best interests of a child, and it is
    important to have the most current information possible when determining the
    childs best interests [g]iven the inevitable fluidity in a childs
    development:
Childrens Aid Society of Owen Sound v. R.D.
(2003),
    178 O.A.C. 69, at para. 21. Even on this expanded test, the proposed evidence
    fails.

[26]

The proposed evidence is predominantly focused on the parents inability
    to appoint a parenting coordinator and arrange counselling for the child.

[27]

Ironically, the most relevant portion of the fresh evidence is that with
    which both parties agree and which could have been admitted on consent. That
    is, the parties now have a parenting coordinator in place. The parties have
    retained Linda Chodos and have started meeting with her. The father raises the
    issue that Ms. Chodos is not complying with the order of Bennett J. because she
    has not agreed to stay on for a two-year term. Instead, she has agreed to work
    with the parties for six months at a time and evaluate the ongoing suitability
    of the process at each six-month interval. In my view, Ms. Chodos cannot be
    faulted for requiring regular evaluations. It would make little sense to continue
    an unsuitable process. In addition, the father, having agreed to this sensible process,
    cannot now raise it as an issue.

[28]

The issue of counselling factors predominantly in the fresh evidence. The
    father alleges that the child is floundering. The mother does not agree. The
    more flexible approach to the
Palmer
test in custody matters is not an
    opportunity for parents to continue an affidavit war. The reason for the more
    flexible approach is to provide the court with current information about the
    condition, means, needs, circumstances and well-being of the child. Nowhere in
    the fresh evidence here is this addressed.

[29]

The evidence of the childs need for counselling is not new. The evidence
    was before the motion judge and put to him as a basis for a finding of a
    material change; he was not asked to decide that the evidence demonstrated a
    need for counselling. The evidence related to three events of conflict between
    the parents which greatly upset the child: Rosh Hashanah 2014; the cancelling
    of summer camp in 2014; and Thanksgiving 2014. The motion judge fully
    considered all three events.

[30]

The three events are not new and there is no fresh evidence about
    them. They do not relate to the childs current need for counselling.

[31]

With the exception of the agreed-upon fact that a parenting coordinator
    is now in place, I would not admit the fresh evidence.

(2)

Has there been a material change in circumstances?

[32]

The authority for a change of a final custody order is found in s. 17 of
    the
Divorce Act
, R.S.C. 1985, c. 3
.
The relevant portions are as follows:

17

(1)
A court of competent
    jurisdiction may make an order varying, rescinding or suspending, prospectively
    or retroactively,

(b)
a custody order or
    any provision thereof on application by either or both former spouses or by any
    other person.

(5)
Before the court makes a variation order in
    respect of a custody order, the court shall satisfy itself that there has been
    a change in the condition, means, needs or other circumstances of the child of
    the marriage occurring since the making of the custody order or the last
    variation order made in respect of that order, as the case may be, and, in
    making the variation order, the court shall take into consideration only the
    best interests of the child as determined by reference to that change.

(9)
In making a variation order varying a custody
    order, the court shall give effect to the principle that a child of the marriage
    should have as much contact with each former spouse as is consistent with the
    best interests of the child and, for that purpose, where the variation order
    would grant custody of the child to a person who does not currently have
    custody, the court shall take into consideration the willingness of that person
    to facilitate such contact.

[33]

For over two decades the law has been clear about the test to be applied
    when the court is asked to vary a custody order. In
Gordon v. Goertz
,

[1996] 2 S.C.R. 27, the Supreme
    Court clarified that s. 17 calls for a two-stage inquiry. First, there must be
    a material change in the situation of the child which represent[s] a distinct
    departure from what the court could reasonably have anticipated in making the
    previous order:
Gordon
, at para. 12.

[34]

If there is no material change, the inquiry ends. If there is a material
    change, the court must move to the second stage and consider the best interests
    of the child and whether to vary the original order.

[35]

The material change relied on by the father before the motion judge was
    that a parenting coordinator has not been put in place as was a requirement of
    the consent portion of Justice Kaufmans Order. Before this court, the
    material change alleged was reframed somewhat. The father alleged that the
    material change was the fact that the expectation of the trial judge of a
    failsafe appointment of a parenting coordinator was not realized, and thus
    the checks and balances anticipated were not in place.

[36]

I would not give effect to either iteration of the alleged material
    change.

[37]

First, it is clear from the trial decision of Kaufman J. that he
    anticipated that either party might frustrate or just not agree to the
    appointment of a parenting coordinator. That is why he provided the alternative
    of having Dr. Butkowsky make the appointment.

[38]

Second, a fair reading of Kaufman J.s reasons indicates very clearly
    that, far from assuming any solution was failsafe, he was concerned that the
    prolonged and somewhat sordid situation would make the child a loser
if the trend continues
 (emphasis added). In my view, he
    was aware that the trend of conflict might continue and was attempting to make
    the best decision in a difficult set of circumstances.

[39]

Third, the ongoing problems associated with the appointment of a
    parenting coordinator were symptomatic of the long-standing conflict between
    the parties. Those problems were not unanticipated. As stated by the motion
    judge, at para. 139:

I find that rather than this being a material change in circumstances,
    it was in fact contemplated by both Dr. Butkowsky and by Justice Kaufman that
    the [mother] may well attempt to reject any parenting coordinator recommended
    by Dr. Butkowsky.

[40]

And, at para. 143:

[T]he court finds that the [mother] not being cooperative is in
    fact something that was in fact contemplated by Justice Kaufman and was
    provided for in his decision. The [mothers] lack of cooperation is hardly a
    material change but in fact is a continuation of her actions since the
    [fathers] mistress arrived at her door with revelation and proof of his
    indiscretion.

[41]

The conflict here began when the parties separated. It continued
    throughout the litigation, and it was considered and anticipated by Kaufman J. A
    continuation of the conflict does not establish a material change in
    circumstances. This court confirmed this principle in
Litman v. Sherman
,
    2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a
    situation where conflict between the parties was, regrettably, the norm".
    At paras. 36-37, the court said:

According to the trial judge, since the birth of their child,
    the parties have been altogether incapable of cooperating with one another in
    order to raise [the child]. This finding is well supported by the evidence. The
    parties willingness to work through a parenting coordinator does not detract
    from that finding; rather it reinforces it, given one was necessary to begin
    with and given this regime quickly deteriorated and proved unworkable. It
    follows that  the conflict between the parties did not constitute either
    a change or a situation that could not have been foreseen by them at the time
    of [the original] order.

[42]

The father submits that
Litman
is distinguishable because the
    change in circumstances in this case is not the continuing conflict. Rather, it
    is the failure of the plan put forth by the trial judge. I have already
    addressed this submission and would add that the parenting coordinator is now
    in place, thus the plan has not in fact failed. That it took longer than usual
    is not surprising given the level of conflict here.

[43]

I see no error in the motion judges finding that there was no material
    change in circumstances and that the events that took place after the trial
    were within the realm of what could reasonably have been anticipated by the
    trial judge.

(3)

Did the motion judge err in authorizing Dr. Butkowsky to
appoint a parenting coordinator if the parties could
    not agree on one?

[44]

The father submits that it was not open to the motion judge to delegate
    custody, access and parenting decisions to a third party. There was no agreed-to
    process for selecting a parenting coordinator. The father is no longer willing
    to submit to the parenting coordinator process given the mothers lack of
    cooperation.

[45]

The content of the motion judges order was not new. The motion judges
    order simply restated Kaufman J.s original order after the first trial, when
    he accepted Dr. Butkowskys recommendation that if the parties did not agree on
    a parenting coordinator, he would have the authority to name one. No appeal was
    taken from this judgment. In fact, the basis for the fathers motion to change
    was the fact that a parenting coordinator had not been appointed. I see no
    reason for appellate intervention on this issue.

D.

DISPOSITION

[46]

I would dismiss the appeal with costs payable to the respondent (mother)
    in the amount of $1,000.00 inclusive of disbursements and HST.

Released: April 13, 2017

M.L. Benotto J.A.

I agree Gloria
    Epstein J.A.

I agree G.T. Trotter
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hunks v. Hunks, 2017 ONCA 331

DATE: 20170424

DOCKET: C61093

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Donna Jean Hunks

Applicant (Appellant)

and

Gary Eugene Hunks

Respondent (Respondent)

Trent Zimmerman, for the appellant

P. Alan R. Giles, for the respondent

Heard: December 16, 2016

On appeal from the order of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated September 16, 2015.

COSTS ENDORSEMENT

[1]

On March 27, 2017, this court released its reasons for decision in this
    matter.  It allowed the appeal, set aside the order that had been made below,
    and ordered costs of the appeal in favour of the appellant, fixed at $10,000,
    all inclusive.  The court indicated that if the parties were unable to agree on
    how costs of the motion below should be dealt with, they could make written
    submissions on that matter.

[2]

The court has now received the parties submissions.  Based on those
    submissions, we are satisfied that the costs of the motion below is a matter
    best left to the trial judge.

[3]

The appeal did not dispose of all of the issues that divide the
    parties.  Thus, the court understands that the trial will resume.  The trial
    judge will be in the best position to fairly determine the matter of costs of
    the motion below (after factoring in the result on appeal) once the outstanding
    issues have been adjudicated upon and she has considered such things as rule 49
    offers.

[4]

In her written submissions on this matter, the appellant expressed a
    concern that the respondent was attempting to dispute this courts order as to
    costs of the appeal.  We do not read the respondents submissions in that way.
    We understand his submissions to be directed solely to the question of how
    costs of the motion below should be dealt with.  To ensure that there is no
    misunderstanding on this point, we would simply reiterate that this courts
    order as to costs of the appeal remains: the appellant is entitled to costs of
    the appeal fixed at $10,000, all inclusive.

[5]

For the reasons given, this court makes no determination as to costs of
    the motion below, instead leaving that matter to the trial judge.

Eileen
    E. Gillese J.A.

J.
    MacFarland J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hydro One Networks Inc. v.
    Ontario (Provincial Police), 2017 ONCA 299

DATE: 20170412

DOCKET: C62302

Feldman, Gillese and Pepall JJ.A.

BETWEEN

Hydro One Networks Inc.

Applicant (Appellant)

and

Ontario Provincial Police

Respondent (Respondent)

Robert Ryan, for the appellant

Christopher Diana and Hera Evans, for the respondent

Heard: February 3, 2017

On appeal from the order of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated May 19, 2016, with reasons reported at
    2016 ONSC 3329.

ENDORSEMENT

[1]

This endorsement is to be
    read with the courts endorsement dated February 9, 2017, where the court asked
    the parties to provide written submissions with respect to its jurisdiction to
    hear the appeal. The court has now received and considered the written
    submissions.

[2]

Hydro One appeals the application
    judges decision to decline to make a general declaration that the Ontario Provincial
    Police (the OPP) is obligated to produce to Hydro One, on request, and when
    it has suffered a loss as a result of a motor vehicle accident on a highway, a
    copy of the accident report disclosing the names and addresses of the driver(s)
    and owner(s), the drivers license number, insurance information and vehicle
    permit number.

[3]

Hydro One notes that s. 200(1)
    of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the
HTA
) obligates
    every person in charge of a vehicle that is involved in an accident on a highway
    to provide that information on request to anyone who sustains a loss, to the
    police, and to any witness. Hydro One argues that it cannot take advantage of
    this provision when it suffers only property loss and no representative is
    present on the scene to make the request.

[4]

In order to obtain the same
    information from the accident report, it must obtain the accident report from
    the OPP. The OPP will only produce the report under the authority of a court
    order (such orders are often made under r. 30 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194) and takes the position that certain
    privacy provisions under the
Freedom of Information and Protection of Privacy
    Act
, R.S.O. 1990, c. F.31 (the
FIPPA
) preclude it from
    otherwise doing so.

[5]

In our view, although this
    court may have jurisdiction to hear this appeal, it is not appropriate to take
    jurisdiction. Given the consent order, there is no longer any active
lis
before the court.  The general nature of the remaining outstanding relief sought
    is not supported by any record that sets out the facts and circumstances necessary
    to provide a context for any decision. Nor are all necessary or potentially
    interested parties before the court.  This includes the Privacy Commissioner,
    to advise on the nature and role of any relevant privacy issues under
FIPPA
,
    the Attorney General to advise on the role of s. 200(1) of the
HTA
in
    this context, and a representative of the personal injury bar to advise on the
    consequences of any such declaration on other potentially affected parties. We
    would also observe that the parties may wish to consider whether this issue is
    best addressed by the legislature.

[6]

For the above reasons, the
    appeal is quashed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

S.E.
    Pepall J.A.