Archived - Dispute Resolution Guideline 2018-2019

1.0 Effective Date

• 1.1 This Dispute Resolution Guideline (DRG) takes effect on April 1st, 2013.

2.0 Application

• 2.1 This DRG applies in respect of Disputes under a Canada Common Funding Agreement for First Nations and Tribal Councils between a First Nation or Tribal Council, on the one hand, and Canada as represented by the Minister of Health and/or the Minister of Aboriginal Affairs and Northern Development Canada, on the other.
• 2.2 This DRG sets out the process that Canada and the First Nation or Tribal Council (referred to as "the Council") will follow when they choose to resolve a Dispute by Mediation or Facilitated Discussions as contemplated by the Canada Common Funding Agreement. The parties may modify the processes herein or choose other processes where they both agree. The DRG also fills the role of the Policy on Dispute Resolution to be issued by Canada under the original version of that funding agreement.
• 2.3 This DRG is not a Government of Canada policy or directive and is not intended to apply in respect of any other agreements, including legislated self-government agreements and funding agreements resulting from federal-provincial accords unless such other agreements specifically import this DRG or contain words which provide that the parties may agree to a dispute resolution process and where they voluntarily choose to follow this process.

3.0 Guideline Statement

• 3.1 Objective
  The objective of the DRG is to support fair, effective, and efficient resolution of any Dispute between Canada and a Council regarding the interpretation of a provision of a Canada Common Funding Agreement or an obligation of either party under that agreement where both Canada and the Council agree to choose Facilitated Discussions or Mediation to resolve it. Mediation or Facilitated Discussions provide a means to try to settle a Dispute without resorting to litigation and by engaging the assistance of an independent third party.
• 3.2 Expected Result
  The expected result is to provide a process to assist the parties to try to settle Disputes promptly by means other than litigation.
• 3.3 Participation by the Departments
  Canada may be represented in any dispute resolution process under the Canada Common Funding Agreement and this DRG by one or both of the participating departments, as is appropriate in Canada’s sole discretion depending on the nature and subject matter of the Dispute.

4.0 Dispute Resolution Process

• 4.1 If either Canada or the Council wishes to use Mediation or Facilitated Discussions to try to resolve a Dispute in accordance with this DRG, the initiating party will provide to the other party:
  • a written notice that they wish to use Mediation or Facilitated Discussions, as the case may be, to attempt to resolve the Dispute,
  • the name of their representative for that purpose, and
  • a concise summary of the matter in Dispute.
• 4.2 Canada and the Council will attempt to settle the Dispute through negotiations and they may make any arrangements for this purpose that they each find acceptable.
• 4.3 If Canada and the Council each agree to use Mediation or Facilitated Discussions in accordance with this DRG, they will select representatives to meet or communicate within fifteen (15) business days of the date the initiating party receives notice of agreement from the other party (or at such other time as the parties may agree in writing ) to discuss the selection of: (i) an independent third party acceptable to both Canada and the Council to act as mediator or facilitator, as the case may be; or (ii) the selection of an independent centre or organization acceptable to Canada and the Council to select the independent third party.
• 4.4 The independent third party or independent center or organization will be appointed within fifteen (15) business days (or at such other time as the parties may agree in writing) after Canada and the Council have met or communicated to discuss the selection.
• 4.5 Once the independent third party is appointed, Canada and the Council will, with the assistance of the independent third party, promptly seek to agree to a specific process for the Mediation or Facilitated Discussions, as the case may be, and then promptly seek to resolve the Dispute. Unless otherwise agreed, the mediator or facilitator will only be engaged to seek to assist the parties to resolve the Dispute, and will offer no recommendations, findings, decisions or rulings as to the substance of the matters in Dispute.
• 4.6 If the Dispute is resolved, Canada and the Council will confirm this in writing and will enter into any agreements that may be necessary to put the resolution into effect.
• 4.7 If the Dispute is not resolved to the satisfaction of either Canada or the Council within 45 business days from the date the notice of Dispute under section 4.1 is received, the unsatisfied party may withdraw from this dispute resolution process and either Canada or the Council may then submit the Dispute to a Court or Courts of competent jurisdiction.

5.0 Financial Obligations

• 5.1 Canada and the Council will bear equally the costs of the independent third party.

6.0 Effect of Dispute Resolution Process

• 6.1 Proceeding with a dispute resolution process as described in the DRG will not, unless Canada and the Council agree, suspend or delay any rights or obligations of the parties, including:
  • the past and ongoing obligations of the parties under the Canada Common Funding Agreement.
  • a decision by Canada that the Council is in default under the Canada Common Funding Agreement, or
  • Canada’s right to take default, remedial, audit, evaluation, or funding reduction actions under the Canada Common Funding Agreement.

7.0 Admissibility in Legal Proceedings

• 7.1 Any information exchanged between Canada and the Council during the process set out in Section 4.0 (Dispute Resolution Process) will not be admissible in any legal proceedings unless otherwise required by law, including without limitation:
  • any minutes or other records of any meetings between Canada and the Council; and
  • any admissions, discussion, or offers of settlement, whether made verbally or in writing by either Canada or the Council.

Appendix A: Definitions

Canada: Her Majesty the Queen in Right of Canada as represented by the Minister of Health and the Minister of Aboriginal Affairs and Northern Development Canada that is party to a Canada Common Funding Agreement for First Nations and Tribal Councils.

Council: a First Nation or Tribal Council that is party to a Canada Common Funding Agreement for First Nations and Tribal Councils.

Dispute: a dispute between Canada and the Council regarding the interpretation of a provision of a Canada Common Funding Agreement or the obligation of a party under that agreement.

DRG: means this Dispute Resolution Guideline.

Facilitated Discussions: means discussions between the parties that are organized or lead by an independent third party on an informal basis to assist them to identify possible mutually agreeable solutions to their Dispute

Mediation: means a form of Facilitated Discussions where the independent third party, under a mediation agreement between the parties, actively leads, guides or oversees discussions to assist the parties identify possible mutually agreeable solutions to their Dispute through a defined process that may include a timetable and confidentiality and production of document rules to be agreed by the parties.