Tacan v. Canada, 2005 FC 385

                                                                                        Date: 20050317

Docket: T-1756-01

Citation: 2005 FC 385

Ottawa, Ontario, March 17, 2005

Present:           THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON                              

BETWEEN:

                                             ALFRED TACAN, SOLOMON HALL,

and STAN McKAY

                                                                                                                                             Plaintiffs

                                                                           and

                                    HER MAJESTY THE QUEEN, in Right of Canada

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

[1]                Alfred Tacan, Solomon Hall and Stan McKay are members of the Sioux Valley First Nations and are "Indians" as defined by the Indian Act, R.S.C. 1985, c. I-5. Each of them enlisted in the Canadian Armed Forces to serve in either World War II (Messrs. Tacan and McKay) or the Korean War (Mr. Hall). They allege that aboriginal veterans were not accorded the same advantages as other veterans and that they are victims of systemic discrimination. They filed a statement of claim in the Federal Court on October 4, 2001 and the matter has been under case management since May, 2003. The defendant says that the claims are unfounded and are statute barred. I have concluded that the defendant's position prevails.

THE PLAINTIFFS

[2]         Mr. Tacan enlisted in the army during World War II. He served overseas, was discharged in 1946 and returned to the Sioux Valley Reserve in Manitoba. After his return, he obtained approximately $2,100 from the Canadian government to farm on the reserve. He initially encountered some difficulty in obtaining this funding. Mr. Tacan stopped farming in 1967 or 1968 and thereafter drove a school bus for about 15 years.

[3]                Mr. Hall enlisted in 1951 and served in the Korean War. After his honourable discharge in 1954, he returned to the Sioux Valley Reserve. Like Mr. Tacan, Mr. Hall was able, as an aboriginal war veteran, to receive a government grant of approximately $2,300 for inputs to a farm on the reserve. Between 1976 and 1979, the Department of Indian Affairs (DIA) paid for Mr. Hall's attendance at university. He finished three credits shy of the requirements for a Bachelor of Arts degree.

[4]                Mr. McKay enlisted in March, 1942, and was honourably discharged in July, 1942, because of his inability to meet the requisite physical standards during basic training. He did not go overseas. Upon his return to the Sioux Valley Reserve, Mr. McKay approached the Indian Agent, William Young, regarding financial assistance for the purchase of farm machinery. Mr. McKay failed to qualify for the veterans' benefit because he did not meet the eligibility requirements - he had not served overseas in the war, had not been in the military for at least a year and was not, at that time, receiving a disability pension. With Mr. Young's assistance, Mr. McKay was able to get a job on a farm on the reserve. Around 1978, with the help of his father, he was able to establish his own farm comprising approximately 500 acres of reserve land.

THE VETERANS' LAND ACT

[5]         At the end of World War II, the federal government instituted a program under which agricultural land was made available to veterans for settlement. The goal was to assist veterans in the acquisition of farm land and farm houses. In general terms, a Director appointed under the Veterans' Land Act, R.S.C. 1970, c. V-4, as am., was authorized to acquire land, building materials, livestock, and equipment using government funds. The Director would, in turn, sell a farming package (not exceeding $6,000 in cost) to each eligible veteran for 2/3 of the package's actual value. The sale price would be paid by the veteran to the Director over a maximum of 30 years at an interest rate of 3.5%. If the veteran defaulted on the contract, the Director could rescind the contract, take possession and dispose of the land and chattels to another veteran, or, with ministerial consent, to any other person.

[6]                The regime did not address the circumstances of settlement on provincial Crown lands, upon Indian lands, or upon land within national parks or otherwise vested in the federal Crown. Because Crown land could not be used as security for loans, it was determined that those who settled on such lands would get a grant of $2,320 applicable to farming, fishing, forestry or trapping. Similarly, because of the common ownership of reserve lands and the complex surrender procedure required to remove parcels of land from the reserve, the VLA, which provided for grants of full and exclusive ownership of farm land, could not be applied to lands in existing Indian reserves. Hence, amendments to the VLA were required.

[7]                Section 35A was added in 1945 and authorized the Director to grant up to $2,320 to an Indian veteran for on-reserve farming. First Nation veteran farmers would acquire limited occupational rights to parcels of reserve land. At the time, the Indian Affairs Branch (IAB) of the Department of Mines and Resources administered Indian matters and was charged with control and management of these Indian veterans' benefits. Effectively, this handed responsibility for the administration of the VLA on reserve lands to the local Indian Agent. The Indian Agent was responsible for providing details of VLA benefits, looking into a veteran's qualifications, and managing the $2,320 grant. Indian veterans could use their grant for the purchase of building materials and other costs of construction, the clearing of land, livestock and machinery, and forestry and commercial fishing equipment. Indian Agents did not receive the money. Once a purchase was considered to be justified within the terms of the VLA, the Indian Agent made the purchase on behalf of the veteran. For each purchase, the Agent filled out a form indicating the amount spent. Both the person selling the item and the Indian veteran receiving the goods had to sign this form, and both signatures had to be witnessed. Invoices and vouchers were forwarded to the IAB and payment was sent directly to the person or business selling the goods.

[8]                Subsequent amendments to the VLA provided new benefits to veterans. For example, in 1954, Part II was added and permitted financial and technical assistance to veterans constructing their own homes. In the same year, Part III was added to give additional loans to those veterans who had already received grants under the prior VLA system. The provisions and benefits of the VLA were made available to veterans of the Korean War by virtue of section 6 of the Veterans Benefits Act, 1954, S.C. 1953-54, c. 65. The Veterans' Land Regulations, SOR/65-215 required that all applications (of any sort) for Indian veterans be directed to the Department of Indian Affairs (DIA).

THE PLEADINGS

[9]                The pleadings, for purposes of this motion, are briefly summarized here. Without detracting from the detail contained in the 107 paragraphs comprising the statement of claim, the crux of the plaintiffs' allegations is, in my view, encapsulated at paragraph 7 of the document which states:

The plaintiffs assert they and their dependents have been wrongfully deprived of Veterans benefits they were legally and morally entitled to as a result of their service in World War II, and the Korean war, which benefits were received by their non-Indian fellow soldiers. These benefits include loss of valuable free land grants, land purchase loans and grants, home purchase and improvement loans, professional and other training assistance and various other Veterans' benefits. The Plaintiffs assert that the value of the lost benefits of which they were deprived is potentially in the hundreds of thousands of dollars or more, and the withholding of these benefits has cause (sic) some of the Veterans a life as civilians marked by poverty and humiliation. The denials of these benefits were contrary to international and domestic law prohibiting discrimination, and resulted from negligent administration and negligent misrepresentations by Department of Indian Affairs officials, or from deliberate misrepresentations of the entitlements by Indian Affairs officials, or from deliberate misrepresentations of the entitlements of Indian Veterans by D.V.A. and the Department of Indian Affairs officials, and from a deliberate or negligent misapplication of the laws, which on their face entitled the Plaintiffs to equal benefits. The Plaintiffs now seek equal recognition for equal service.

[10]            In their statement of claim, the plaintiffs allege that the off-reserve purchase grant and loan was the "economically superior choice" over the reserve grant scheme. None of the plaintiffs accessed the off-reserve benefits because they claim that the DIA and its officials neglected to advise them - and deliberately avoided advising them - of the option to apply for the off-reserve grant and loan. The plaintiffs say that this advice was based on an official policy, distributed to all DIA Indian Agents, that the $2,320 option was all that Indian veterans should receive. This, they allege, constituted a breach of fiduciary duty as well as negligent and fraudulent misrepresentation on the part of officials of the Canadian government and, as a result, the government is vicariously liable. There is, additionally, reference to an accounting.

[11]            The defendant's primary defence, and the one that is relevant to this motion, is that all or some of the plaintiffs' claims should be dismissed because they are statute barred either by the applicable limitations provisions or by the operation of section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. If the claims are not statute-barred, the defendant asserts that the claims cannot survive the equitable defences of laches and acquiescence.

THE CONTEXT OF THE MOTIONS

[12]            By order dated May 26, 2004, the case management judged ordered, among other things, that the limitations issues as raised in the statement of defence "shall be determined separately, pursuant to Federal Court Rule 107". The order establishes time requirements for the filing of materials and further provides that the motions are to be "done orally and not by written submissions". By order dated October 8, 2004, the case management judge ordered that: the plaintiffs' motion for an order determining whether the limitations defences, as raised by the defendant in the statement of defence, constitute a defence to the plaintiffs' claim, costs and other relief; and, the defendant's motions for orders striking out portions of the affidavits filed by the plaintiffs, permitting an amendment to paragraphs 67 and 70 of the amended statement of defence and granting summary judgment dismissing all claims of the plaintiffs, costs and other relief, be set down for hearing on February 14, 2005 for a duration of two days. The orders contemplate that the evidence will be by way of affidavit only (subject to cross examination) . Indeed, this was the procedure proposed by the parties.

[13]            The plaintiffs later sought a further order requesting that various paragraphs of the affidavit of David MacDonald sworn September 20, 2004, as well as specific exhibits thereto, be struck, but withdrew that request prior to the hearing.

[14]            At the hearing, the defendant withdrew the request to strike portions of each of the plaintiffs' affidavits and also "set aside" various other requests to a later time, if necessary. Left on the table were the defendant's requests for orders:

(1)         to strike all but paragraphs 1, 2 and 27 of the affidavit of Samuel Corrigan;

(2)         to amend paragraph 67 of the amended statement of defence to specifically plead

                        the limitations period contained in subsection 21(1) of The Public Officers Act,

C.C.S.M. c. P230;

(3)         for summary judgment dismissing all claims of the plaintiffs and giving judgment for the defendant on the grounds that all of their claims are statute barred or otherwise unfounded;

(4)         in the alternative, to strike from the statement of claim those claims that are statute barred or otherwise unfounded.

[15]            Neither party, in the written submissions, referred to the most recent jurisprudence of the Federal Court of Appeal regarding the granting of summary judgment. See: MacNeil Estate v. Canada (Department of Indian and Northern Affairs), [2004] 3 F.C.R. 3 (F.C.A.)(MacNeil); Trojan Technologies, Inc. v. Suntec Environmental Inc. (2004), 320 N.R. 322 (F.C.A.) (Trojan). Consequently, at the outset of the hearing, I provided counsel with the citations for these authorities and requested that they specifically include reference to them in their oral submissions. That was done.

[16]            The oral argument was somewhat convoluted in that the plaintiffs' objective, from the outset, was to obtain a determination with respect to the defendant's limitations defences. The defendant approached the matter primarily as an application for summary judgment in favour of Her Majesty. In responding to the defendant's motion, the plaintiffs argued against summary judgment while at the same time seeking a ruling as to whether their claims are statute barred and acknowledging that if that were so, the defendant could obtain summary judgment.

[17]            In an effort to alleviate confusion, I questioned the plaintiffs' counsel with respect to the plaintiffs' expectations regarding the "limitations issue". Counsel informed me that it is the plaintiffs' wish that the substantive issue of the applicability of the limitations issue be "heard and decided and determined totally by you and not go to trial".

[18]            Also of significance is the fact that the defendant, in her statement of defence, denies the existence of a fiduciary duty. In the written submissions for the motion, there is no such denial. Again, for clarification, I questioned the defendant's counsel in this regard. Counsel confirmed that my understanding of the defendant's position in her statement of defence was correct but advised me that, for purposes of the motion, Her Majesty's position is that there was no breach of fiduciary duty. While counsel did not specifically concede the existence of a fiduciary duty, I regard the defendant's position as tantamount to a concession (for purposes of the motion) that the defendant owed a fiduciary duty to the plaintiffs and I will proceed on that basis. This approach eliminates the necessity of addressing the various arguments of the plaintiffs regarding the existence of a fiduciary duty.

RECONCILIATION OF THE MOTIONS

[19]            The plaintiffs' motion is pursuant to Rule 107 as delineated in the case management judge's order. The defendant's motion is under Rule 213. Those rules provide:

Federal Court Rules, 1988,

SOR/98-106

107. (1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately.

(2) In an order under subsection (1), the Court may give directions regarding the procedures to be followed, including those applicable to examinations for discovery and the discovery of documents.

[...]

213. (1) A plaintiff may, after the defendant has filed a defence, or earlier with leave of the Court, and at any time before the time and place for trial are fixed, bring a motion for summary judgment on all or part of the claim set out in the statement of claim.

(2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.

Règles de la cour fédérale (1998),

DORS/98-106

107. (1) La Cour peut, à tout moment, ordonner l'instruction d'une question soulevée ou ordonner que les questions en litige dans une instance soient jugées séparément.

(2) La Cour peut assortir l'ordonnance visée au paragraphe (1) de directives concernant les procédures à suivre, notamment pour la tenue d'un interrogatoire préalable et la communication de documents.

[...]

213. (1) Le demandeur peut, après le dépôt de la défense du défendeur - ou avant si la Cour l'autorise - et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire sur tout ou partie de la réclamation contenue dans la déclaration.

(2) Le défendeur peut, après avoir signifié et déposé sa défense et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.

[20]            I think it is open to me to assume without deciding - subject to my finding later in these reasons in relation to one specific plaintiff - that a genuine issue exists with respect to the plaintiffs' claims. However, recourse may be had (regarding the defendant's motion) to Rule 216(3), to determine whether, notwithstanding the existence of a genuine issue, I may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if I am able, on the whole of the evidence, to find the facts necessary to decide the questions of fact and law. Here, the question to be determined is the limitations issue, irrespective of the fact that the claims may raise a genuine issue.

[21]            At this point, regard should be had to MacNeil, supra. In MacNeil, the defendant applied for summary judgment on the ground that the plaintiffs were barred by a limitations period from pursuing their claim. The Federal Court of Appeal noted, in relation to a limitations period, the distinctions between the burden of proof at trial and the burden of proof on a motion for summary judgment. Specifically, the Court stated that if a defendant argues at trial that a limitations period has prima facie expired, the plaintiff has the onus to prove, because the plaintiff was not aware of the material facts giving rise to the cause of action within the required period of time before the statement of claim was filed, that the limitations period has not expired. However, the onus for parties responding to a motion for summary judgment is not the same as that for plaintiffs at trial. Parties responding to a motion for summary judgment do not have the burden of proving all of the facts in their case. Rather, according to Rule 215, responding parties have only an evidentiary burden to put forward evidence showing that there is a genuine issue for trial.

[22]            The Court also reiterated its conclusions from earlier jurisprudence that it is not appropriate to conduct a trial on affidavit evidence with a view to determining issues where there are conflicts in the evidence, where the case turns on the drawing of inferences, or where an issue of credibility is at stake.

[23]            In relation to the differences in the evidence adduced at trial and on a motion, it seems to me that this matter can be distinguished from MacNeil in that all parties seek a determination as to whether the plaintiffs' claims are statute-barred and none of them want to proceed to a full-fledged trial to obtain it. Both sides agreed that the issue would be decided on the basis of affidavit evidence (subject to cross examination) and both ask that I arrive at a determination, if at all possible, on the basis of the evidence before me. In these circumstances and given the Rule 107 order of the case management judge, in my view it is incumbent on the parties, here, to place all of their evidence regarding the limitations issue before me. In short, shy of not having the benefit of seeing and hearing the witnesses, there should not be, to the extent that it is available, relevant and material evidence missing from the record. The parties agreed to a "trial" on the basis of affidavit evidence. That said, I will endeavour, in my analysis, to pay homage to both Rule 107 and the reasoning in MacNeil.

PRELIMINARY OBSERVATION

[24]       Before dealing specifically with the issue that is before me, it important to articulate what this matter is not about. This action is not about aboriginal veterans in general. It is not about the inequities or insensitive treatment that aboriginal veterans may or may not have been subjected to following the First and Second World Wars and the Korean War. The statement of claim relates to three named plaintiffs and the defendant, Her Majesty the Queen. Hence, this case and this motion concern only the named plaintiffs. It is not an action brought on behalf of the general aboriginal veterans population.

THE APPLICABLE LIMITATIONS LAW

[25]       Leaving aside for the time being the defendant's motion to amend the amended statement of defence to specifically plead The Public Officers Act, supra, it is common ground that the relevant legislation is The Limitation of Actions Act, C.C.S.M. c. L150 (the Act) for the Province of Manitoba. This is so because section 39 of the Federal Courts Act, R.S.C. 1985, c. F-7 incorporates by reference the limitations legislation in place in the province where the cause of action arose. The Court applies provincial limitation laws not as provincial law, but as federal law: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 (Wewaykum). Section 32 of the Crown Liability and Proceedings Act, supra, is to the same effect and provides that provincial limitation laws apply to an action against the Crown when the cause of action arises in a province.

[26]            The Manitoba legislation constitutes a complete code of limitations: Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. (1999), 130 Man. R. (2d) 283 (C.A.); Rarie v. Maxwell (1998), 131 Man. R. (2d) 184 (C.A.); Abbott v. Canada 2005 FC 163.

[27]            The plaintiffs seek damages based on allegations of breach of fiduciary duty, fraudulent misrepresentation and negligent misrepresentation. They also seek an accounting. Section 2 of the Act sets out the applicable limitations. The pertinent provisions of that section read:

[28]            The plaintiffs submit that the operative paragraphs are 2(1)(i) with respect to an accounting, 2(1)(j) with respect to fraudulent misrepresentation, 2(1)(k) with respect to fiduciary duty and 2(1)(n) with respect to negligent misrepresentation. Apart from reliance on The Public Officers Act,supra, the defendant does not dispute the plaintiffs' choices and I am content to accept them.

[29]            Breach of fiduciary duty and fraudulent misrepresentation have their own discoverability provision - actions must be commenced within 6 years from discovery. With respect to negligent misrepresentation and an account, the action must be brought within 6 years after the cause of action arose unless recourse can be had to Part II of the Act. The relevant provisions of Part II, which is entitled "Extension of Limitation Period", are subsections 14(1) and 14(3), which provide as follows:

[30]            Succinctly stated, there is no specific limitation on claims for breach of fiduciary duty or fraudulent misrepresentation. For all other causes of action, there is a 30 year ultimate limitation period. The 6 year limitation may be postponed for causes of action that do not have their own discoverability provision, if certain conditions are met, but no action (other than those with a built in discoverability provision) can be sustained more than 30 years after the cause of action arose.

[31]            The rationale behind limitation periods has been discussed in a number of decisions. See: M(K) v. M(H), [1992] 3 S.C.R. 6; Wewaykum, supra. In Novak v. Bond, [1999] 1 S.C.R. 808, Madam Justice McLachlin, as she then was, discussed, at paragraph 67, the characteristics of most limitations statutes:

...They are intended to: (1) define a time at which potential defendants may be free of ancient obligations, (2) prevent the bringing of claims where the evidence may have been lost to the passage of time, (3) provide an incentive for plaintiffs to bring suits in a timely fashion, and (4) account for the plaintiff's own circumstances assessed through a subjective/objective lens, when assessing whether a claim should be barred by the passage of time. To the extent they are reflected in the particular words and structure of the statute in question, the best interpretation of a limitations statute seeks to give effect to each of these characteristics.

[32]            Before embarking upon an analysis regarding the impact of the limitation provisions, it is necessary to examine the evidence regarding each of the plaintiffs.

STAN MCKAY

[33]       The evidence offered by Mr. McKay in relation to the motions is contained in his affidavit sworn July 7, 2004. Paraphrased, the affidavit states that Mr. McKay was 83 years old in July, 2004. He was born and lived on Old River Reserve. He had a grade 8 education and spent much of his youth working on the school farm looking after the horses, cattle and pigs. He was married, divorced, had two children from that marriage and 12 children from his relationship with his now-deceased common-law spouse.

[34]            He enlisted in the Canadian Armed Forces in March, 1942, sustained an ear injury during basic training, was hospitalized for several days and was discharged, without seeing active duty, in July, 1942. After returning to the reserve, he saw other veterans receive farm machinery and implements and he approached William Young, the Indian Agent, who informed him that he was not eligible for benefits. Mr. Young provided him with no other information nor was he given any forms to complete.

[35]            Mr. McKay worked on Mr. Young's farm and on his father's farm. He had (after his father's death) 500 acres on the reserve that he farmed until 1978 or 1979. In hindsight, he wishes that he could have farmed off the reserve. He states that he now understands that he could have done so but, at the time, Mr. Young told him that he could not. Mr. Young, who handled everything (the Chief and council had no power) never advised him that he could own land off reserve or apply for a loan. When Mr. McKay signed forms, they were not explained to him and he found many of them difficult to understand. He simply signed where Mr. Young told him to sign relying on Young to ensure that they were the right forms. He did not trust Young. He does not think he received all of the benefits to which he was entitled and was not told of those for which he could apply. He does receive pension benefits related to partial hearing loss in his left ear. At paragraph 12 of his affidavit he deposes:

It was only recently, through discussions with others, that I realized that I may not have received that to which I was entitled, however, I never considered hiring a lawyer for a long time. It was those recent discussions which prompted me to file this law suit. Prior to that, I did not even know how to start such an action. It never occurred to me to sue the Government.

[36]            The defendant refers to and relies upon Mr. McKay's videotaped evidence (March 17, 2004) and his examination for discovery (January 27, 2004). Mr. McKay testified that he was told by Mr. Young that he would not be eligible to obtain a grant to purchase farm machinery because he did not go overseas, did not serve for at least a year, and was not receiving a disability pension. He stated that he had never talked to anyone about the possibility of applying for the $6,000 off-reserve grant and that he had not considered farming off reserve because he already had enough land to manage on the reserve. He also stated that he "ran into" a lawyer in Yorkton, Saskatchewan sometime in the 1970's and talked to that lawyer about veterans' benefits.

[37]            Mr. McKay said that the Indian Agent never discouraged him from getting advice elsewhere with regard to getting more veterans' benefits. He testified that he does not feel that he was the victim of any discrimination and that he is merely concerned about the others who were. The following excerpts from the discovery transcript are illustrative:

204           Q              And did you ever consider farming off of Reserve?

A              No, I had enough on the Reserve there.

234           Q              So Sioux Valley is certainly your home?

A              Yes. That's my home

Q              So do you really think you would have liked to have lived off of Reserve?

A              Now?

Q              At any time?

A              No, I don't think so.

262           Q              I just wanted to make sure I understood, Mr. McKay, after we talked about these benefits that you have been getting. Was there any benefit that you think you should have got that you didn't get from either Veterans Affairs or Indian Affairs?

A              No, I don't think so.

280           Q              Alright. So you - did you feel that you were missing the boat on some benefits, that you should be getting more?

A              No, I don't feel that at all.

536           Q              In what respect, Mr. McKay - How do - where do you feel you were left out?

A              Well we - not speaking for myself but for other veterans, you know. They don't get help. Some of them don't get help even today, not a thing.

Q              Mm hmm.

A              Some of them passed away without getting anything. Yeah.

Q              But as far as you, personally, are concerned?

A              About others.

Q              Yeah?

A              Yeah.

Q              Not yourself?

A              No.

Q              So is that because you do not feel that you were the victim of any discrimination? Is that what you're telling me?

A              Yes, I guess so.

[38]            The defendant also tendered various documents pertaining to Mr. McKay's discharge from the army indicating the cause of his ear condition and the reasons for his discharge.

ALFRED TACAN

[39]       The evidence offered by Mr. Tacan in relation to the motions is contained in his affidavit sworn July 29, 2004. Summarized, his evidence is that he was born May 5, 1919, on Sioux Valley Reserve (formerly known as Oak River Reserve) and has lived there throughout his life. He and his wife have 15 children. He quit school when he was 17 after obtaining a grade 4 education from a Catholic Residential School and spending much of his school time working on the school farm looking after the horses, cattle and pigs. He is a World War II veteran. He enlisted in March, 1942, saw active duty in England and Italy, and was discharged in February, 1946. He "could read somewhat" when he enlisted and received further schooling during basic training in North Bay, Ontario.

[40]            Mr. Tacan spent several days in Winnipeg awaiting his formal discharge. He had a choice to remain in or get out of the army. He chose to be discharged and intended to return to the reserve because he had grown up there, his family was there, and it was his community. Upon discharge, an officer asked him if he wanted to stay on the reserve or go outside the reserve. The officer told him if he left the reserve, he would lose his status. Mr. Tacan deposes that, looking back, if he could have farmed outside the reserve without losing his status, it may have been something that he would have done. However, he was not provided with much information regarding the benefits available for First Nations veterans. After he indicated his intention to return to the reserve, all further discussions related to that choice and his desire to farm.

[41]            When he returned to the reserve, the Indian Agent, William Young, told Mr. Tacan that he was not entitled to any benefits. He was not given any information or provided with any forms to complete. Mr. Young encouraged him to stay on the reserve and told him if he left, he would lose his status. Young did not tell him that he could own land off reserve. About four years ago (2000), at a meeting in Winnipeg, Mr. Tacan spoke with a First Nations veteran who had farmed off reserve after his discharge, had applied for and received the $6,000 loan, had lost his status and as a result was unable to return to the reserve.

[42]            Because Mr. Tacan was not happy with Mr. Young's approach, in 1946, he and Joseph Sandy went to Winnipeg to get help from Indian Affairs or Veterans Affairs. After waiting for one day to speak with someone at Indian Affairs, they were told that the person was on holidays. They proceeded to the Fort Osborne Barracks and spoke with a colonel or major who telephoned Indian Affairs and spoke with the individual whom they had tried to see. Upon their return to the reserve, they found Mr. Young much more attentive and co-operative.

[43]            Mr. Tacan does not recall being advised of available benefits or receiving any brochures or letters. Mr. Young told him that, before he could receive benefits, he would have to farm land. Young would get angry if matters regarding veterans were discussed. Mr. Tacan received band approval to obtain reserve parcels of land for farming and applied for benefits in July, 1949. He did not apply for, or receive, re-establishment credits or other training allowances, nor was he advised of them. He obtained equipment to farm 120 acres, but had no input or choice regarding the equipment, which Mr. Young chose and he had to accept. He was not told how the equipment was to be purchased or if he had anything left of the grant.

[44]            During his dealings with Mr. Young, Mr. Tacan had several difficulties. Young handled everything and was the boss - there was no Chief or council with power. When Mr. Tacan signed forms, Mr. Young did not explain them, he just said where to sign. Mr. Tacan signed even though he found many of the forms difficult to understand. He relied on Mr. Young to make sure they were the right forms. Mr. Tacan did not trust Mr. Young and does not feel he received all of the benefits for which he could apply. At paragraph 26 of his affidavit, Mr. Tacan deposes:

It was only recently, through discussions with others, that I realized that I may not have received that to which I was entitled, however, I never considered hiring a lawyer for a long time. I had discussions with John Sioux, but no one, until very recently, told me that I should sue the Government. It was those recent discussions which prompted me to file this law suit. Prior to that, I did not even know how to start such an action. It never occurred to me to sue the Government.

[45]            Exhibited to his affidavit are copies of his discharge certificate, correspondence from the assistant district superintendent (VLA) dated July 25, 1946, a copy of the petition of band members regarding his acquisition of reserve land and his VLA application dated July 26, 1949.

[46]            The defendant relied upon various documents in relation to Mr. Tacan as well as the transcript of his examination for discovery conducted on January 27, 2004. On discovery, Mr. Tacan acknowledged that, at the time of his discharge, he was advised of the options of farming on or off the reserve and of the options relating to education and business opportunities. He chose to return to the reserve and, thereafter, processing in relation to him was carried out on that premise. He wanted to farm on the reserve with his brother and, together, they could receive two grants that provided them with the equipment they needed. Mr. Tacan felt that the Indian Agent, Mr. Young, was not doing what should have been done to assist veterans. Things in that regard improved after Mr. Tacan's trip to Winnipeg.

[47]            Mr. Tacan confirmed that Mr. Young retired in 1957 and that he had passed away (the death certificate provided by the defendant establishes that Mr. Young died on May 28, 1975). Mr. Tacan acknowledged that he attended meetings regarding veterans' benefits at the Royal Canadian Legion in Brandon, Manitoba, in the late 1940's and that he spoke to various white veterans in the 1950's. He could not identify the First Nations veteran with whom he had a conversation regarding the $6,000 grant (paragraph 14 of his affidavit) nor was he able to recall the conversation.

[48]            The documents establish, among other things, that Mr. Tacan and other aboriginal veterans (including the plaintiff Solomon Hall), in 1990, were actively involved in a pursuit of veterans' benefits from Veterans' Affairs and Indian Affairs with the assistance of John Sioux, Veterans Portfolio official for the Sioux Valley Indian Band. Mr. Tacan and others also pursued their claims through Ian B. Cowie and Associates. The law firm of Fillmore Riley was additionally involved in relation to Mr. Tacan. Correspondence claiming that the federal government had breached various duties to Messrs. Tacan, Hall, and others, and had caused them losses, was forwarded to Indian Affairs and Veterans' Affairs in 1990. Mr. Tacan also completed a questionnaire regarding his grievances for purposes of the Standing Senate Committee on Aboriginal Peoples in 1994.

SOLOMON HALL

[49]            Mr. Hall's affidavit was sworn on July 29, 2004, at which time he was 73 years of age. The contents of the affidavit disclose that Mr. Hall was born on Sioux Valley Reserve (formerly known as Oak River Reserve) and has lived there all his life. He is married and has eight children. He states that he was educated at a residential school in Brandon, has a grade 7 education and quit school at 17. He spent much of his school life working on the school farm caring for the horses, cattle and pigs. He "could read somewhat". He enlisted in the army at Winnipeg on February 22, 1951, saw active duty in Korea, and was honourably discharged on November 17, 1954.

[50]            Mr. Hall deposes that, upon discharge, he was not given much information about the benefits available to First Nations veterans. He was told by a personnel officer in Winnipeg to see the Indian Agent on the reserve regarding benefits. He does not recall receiving pamphlets or letters, or any explanation from anyone from Veterans' Affairs with respect to benefits. He did not give any thought to where he would live. He knew that he was from the reserve and would have to go back there. It was his home and his family was there.

[51]            Upon returning to the reserve, he was told by the Indian Agent, William Young, that he was not entitled to benefits. He was not provided with any forms to complete or given any information. Six weeks later, Mr. Young told him he would receive compensation in the form of land on the reserve. Mr. Hall was to follow his father with a certificate of possession for approximately 180 acres of land on the reserve that his father had farmed and for which his father had a certificate of possession.

[52]            Mr. Young informed Mr. Hall that he could get equipment up to a value of $2,300 but did not inform him of educational benefits, business loans or the ability to get assistance to purchase land outside of the reserve by way of the $6,000 loan available to veterans off-reserve. Mr. Hall states that Mr. Young did not treat him with respect; he treated him like a two-year-old child. Young told him that, as the government was giving the $2,300, he should go ahead and use it. Mr. Hall was not permitted to choose the equipment; he just picked it up from a dealership in Griswold. He was not told how it was purchased or whether there was anything left of the grant.

[53]            Mr. Young discouraged him from speaking to people at Veterans' Affairs and said that Mr. Hall should see him (Young) first. Mr. Hall says this is the way that it was on the reserve - they needed to see the agent for anything they wanted - it was pounded into them and that is how Mr. Hall and others would act. Mr. Hall does not recall hearing anything about benefits on the radio, or on television, or seeing any posters in relation to benefits. Mr. Young would get mad if matters related to veterans were discussed. Once, Mr. Hall and his brother attempted to speak with someone from Veterans' Affairs at Portage la Prairie. The Indian Agent there stopped them and threatened to have them thrown in jail.

[54]            During his dealings with Mr. Young, there was no Chief or council with power. Young handled everything and was the boss. When Mr. Hall signed forms, Mr. Young did not explain them. Young simply told Mr. Hall where to sign and he did. Mr. Hall found many of the forms difficult to understand and relied upon Mr. Young to ensure that they were the proper forms. Mr. Hall did not trust Mr. Young and does not think that he received all of the benefits for which he could apply. At paragraph 21 of his affidavit, Mr. Hall deposes:

It was only recently, through discussions with others, that I realized that I may not have received that to which I was entitled, however, I never considered hiring a lawyer for a long time. I had some discussions with John Sioux, but no one, until very recently, told me that I should sue the Government. It was those recent discussions which prompted me to file this law suit. Prior to that, I did not even know how to start such an action. It never occurred to me to sue the Government.

[55]            The defendant points to various excerpts from Mr. Hall's examination for discovery (January 29, 2004) and his video taped evidence (March 18, 2004) and to a number of documents pertaining to Mr. Hall. The defendant's evidence establishes that, by letter dated November 29, 1954, the Department of Veterans' Affairs (DVA) advised Mr. Hall of the availability of benefits for veterans and informed him that the benefits depended upon the nature of the service and the individual's particular rehabilitation needs. Mr. Hall was invited to contact any of the veterans' welfare officers to discuss the benefits and was provided with the Winnipeg office address and hours of operation.

[56]            Mr. Hall explained that the DIA paid for his attendance at Community College in Brandon where he upgraded to grade 12 and for his attendance at university from 1976-79 where he completed all but three courses required for his B.A. degree. Mr. Hall stated that he discussed veterans' benefits with his friends, in the 1960's, after the Indian Agent and DVA failed to assist him. He claims to have learned, at that time, that a non-aboriginal veteran was getting thousands of dollars from the government to buy land and household furniture. In correspondence to the DVA dated July 31, 1989, he detailed a number of his grievances and stated that he had stopped farming in 1958.

[57]            Mr. Hall further testified that he had a conversation with Ian B. Cowie of Ian B. Cowie and Associates in Ottawa (who was acting for the Sioux Valley Indian Band) who told him that he and other veterans were eligible to receive more money than they had received. He also spoke with John Sioux about these issues in 1989 or 1990. The transcripts of the Proceedings of the Standing Senate Committee of Aboriginal Peoples for October 5 and 25, 1994, indicate that Mr. Hall testified before the Senate Standing Committee in relation to the financial difficulties that aboriginal veterans had experienced.

THE ARGUMENT

[58]            A significant portion of the plaintiffs' submissions relate to the existence of a fiduciary duty. As earlier noted, the defendant's argument (although shy of a concession that a fiduciary duty exists) is premised on the basis that there was such a duty. As indicated, I will proceed on the basis that the defendant owed a fiduciary duty to the plaintiffs. Consequently, I see no need to detail the plaintiffs' various submissions in this regard.

[59]            There is divergence of opinion regarding the issue of who bears the onus of establishing the point in time when the limitations periods start to run. The plaintiffs point to Authorson (Litigation guardian of) v. Canada (Attorney General) (2003), 69 O.R. (3d) 129 (Sup. Ct. Jus.) (Authorson) and assert that where a fiduciary duty is found to exist , the onus is on the fiduciary. The defendant disagrees and, relying on Papaschase Indian Band No. 136 v. Canada (Attorney General), [2004] 4 C.N.L.R. 110 (Alta.Q.B.) (Papaschase), contends that the burden of proving lack of discovery lies with the plaintiffs, particularly in a case where, as here, it appears that the causes of action may have been discovered decades before the filing of the statement of claim.

[60]            There is also dissidence regarding the affidavit of Samuel Corrigan. The plaintiffs offered Dr. Corrigan as an expert regarding First Nations People and, in particular, Sioux Valley First Nation. The defendant takes exception and says that Dr. Corrigan is not a properly qualified expert. Her Majesty contends that, with the exception of the introductory and final paragraphs, Dr. Corrigan's affidavit should be struck because it is not necessary, it offends at least one of the exclusionary rules, it is unreliable, and since it presents a novel theory, it does not surpass the stricter standard regarding necessity and reliability delineated in R. v. Mohan, [1994] 2 S.C.R. 9 (Mohan). The plaintiffs counter that the evidence is relevant and that Dr. Corrigan's academic qualifications coupled with his personal life experiences are sufficient to warrant opinion evidence that, here, deals more with social mores and culture and the "soft type of things". It is necessary because the plaintiffs are attempting to prove the existence of custom, practice and tradition.

[61]            As to the limitation periods, the plaintiffs argue that the causes of action, particularly that of breach of fiduciary duty, continue to arise. The fiduciary duty owed by the Crown to the plaintiffs has not ceased. This, according to the plaintiffs, is because Her Majesty has an ongoing duty to advise them of the benefits available to them. Referring to Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 (commonly referred to as Apsassin), the plaintiffs assert that Madam Justice McLachlin, as she then was, determined that where the fiduciary duty is ongoing, the fiduciary is obligated to correct any mistake and absent correction, a second breach - failure to correct the initial breach - is perpetrated. Thus, by failing and continuing to fail to advise the plaintiffs of the off-reserve benefits, Her Majesty committed a second breach which continues and will continue until a correction occurs.

[62]            The plaintiffs maintain that the sui generis nature of the fiduciary relationship between these parties is trust-like rather than adversarial and that the degree of economic and social control and the discretion of the defendant has left aboriginal populations vulnerable. The conditions set out in the VLA, vesting control with the Indian Agent over Indian veterans' access to the VLA grant if they lived on the reserve, amounted to abdication by the defendant.

[63]            The VLA and its Regulations have never been repealed, therefore, they assert, the ability to apply for benefits continues beyond 1975. In relation to fraudulent misrepresentation, paragraph 1(1)(j) of the Act permits an action to be brought within six years from the discovery of the fraud, not from the date the cause of action arose. Referencing Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (C.A.) (Semiahmoo), they contend that a purposive interpretation of paragraph 2(1)(j) suggests that equitable fraud - not merely common law fraud - would be included. Equitable fraud as defined by Chief Justice Isaac, is "conduct which having regard to some special relationship between the two parties concerned, is an unconscionable thing for one to do towards the other".

[64]            Again pointing to Semiahmoo and the test therein - when would a reasonable person in the position of the plaintiffs, receiving appropriate advice, have initiated a cause of action against the Crown - leads the plaintiffs to contend that they are within the appropriate time limit for filing their claim. More specifically, they rely on the following comments of the Chief Justice:

In coming to the conclusion that the 6-year limitation period in subsection 3(4) should not begin to run until on or about 23 May 1989, I find it important to bear in mind that it is only in the last approximately fifteen years that Indian bands have been able to exercise the same degree of diligence with respect to their legal rights as might be expected of an ordinary member of society. To be more specific, it was not until the Supreme Court's 1984 decision in Guerin that courts clearly began to recognize a cause of action against the Crown for breach of fiduciary duty in land surrenders.

[65]            The plaintiffs extrapolate, from this quotation, a calculation that begins with the date of Semiahmoo (1997), and counts back 15 years to arrive at the year 1982 as being the earliest time when aboriginal peoples would have considered that they could achieve any degree of success in suing the Crown. Realistically, from the plaintiffs' perspective, one should expect even shorter time lines for aboriginal veterans who encounter obstacles such as age, health, education, individual experiences with the Crown, and cultural issues such as the negative attitude within their communities in relation to suing the Crown.

[66]            Since it is only recently that the plaintiffs considered suing the government, considering the obstacles that they would have had to overcome, the plaintiffs say that they are within the limitation periods for filing their claims.

ANALYSIS

[67]            The starting point of my analysis is Wewaykum, supra. The propositions from that authority, of particular relevance to this matter, are:

-         The policies behind a statute of limitations are well known. Witnesses are no longer available, historical documents are lost and difficult to contextualize, and expectations of fair practices change;

-        Evolving standards of conduct and new standards of liability eventually make it unfair to judge actions of the past by the standards of today. That is not to say that historical grievances should be ignored, or that injustice necessarily loses its sting with the passage of years;

-        Acceptance of the assertion of a continuing breach of fiduciary duty would defeat the legislative purpose of limitation periods with the result that for a fiduciary, in particular,

there would be no repose. Such a conclusion is not compatible with the context of the legislation.

[68]            With respect to the issue of who bears the onus of establishing the point in time when the limitation periods start to run, in accordance with my earlier undertaking to heed the principles in MacNeil, supra, for purposes of these particular motions, I will proceed on the basis that the onus lies with the defendant.

[69]            In a similar vein, and notwithstanding the defendant's compelling submissions in relation to the affidavit of Samuel Corrigan, I am not inclined, for purposes of these motions, to strike the impugned paragraphs. While there are frailties in Dr. Corrigan's evidence, specifically in relation to the requisite factual foundation, or lack thereof, to support the expressed opinions, at this stage and in furtherance of my goal to reconcile the motions, I accept the affidavit in its entirety.

[70]            The plaintiffs' position regarding a continuing breach of fiduciary duty ad infinitum cannot be sustained. Their reliance on Apsassin, supra, is misplaced. The ongoing duty in that case (in relation to the inadvertent transfer of mineral rights of reserve land) arose out of a duty to act to correct the error pursuant to the provisions of a particular section of the Indian Act, R.S.C. 1927, c. 98 that the court specifically regarded as an exceptional provision. The breach of the duty was specific in time. (See also: Semiahmoo, supra). That is not the situation here. To the contrary, each of the plaintiffs depose that "[i]t was only recently...that I realized that I may not have received the benefits to which I was entitled". There is no specificity as to time nor is there any indication as to what is meant by the word "recently". This omission is particularly troubling when regard is had to Mr. Hall's discovery evidence.

73             Q              Did you ever discuss veterans benefits with any of those friends when you ran into them?

A              Uh, just more recently, after when I couldn't get help from the Indian Agent, or the Department of Veterans' Affairs.

Q              So when would that have been?

A              Oh, likely in the '60's I guess.

[71]            The plaintiffs argument that they could apply for benefits after 1975 flies in the face of subsection 31(2) of the VLA which specifically prohibits the Director from accepting applications for benefits after March 31, 1975, in the case of veterans who have subsisting contracts with the Director, and after March 31, 1977, in all other cases.

[72]            The defendant persuasively refers to various points in time when the limitation periods with respect to Messrs. Tacan and Hall would have started to run. I do not find it necessary to review those submissions. Having given the plaintiffs Tacan and Hall every possible benefit of doubt, I have no hesitation in concluding that the defendant has met the onus of establishing that, in relation to those causes of action for which there is a built-in discoverability, the latest possible time when the limitation periods would start to run was 1990. That is not to say that the limitations clock did not start ticking at an earlier date, rather, that 1990 is the latest possible date.

[73]            The discoverability principle is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it. The question is - when would a reasonable person in the particular plaintiff's position have known of the material facts, if not all the details, upon which the claims are based: Peixeiro v. Haberman, [1997] 3 S.C.R. 549.

[74]            The evidence of Messrs. Tacan and Hall confirms their involvement with John Sioux and Ian B. Cowie in 1989 or 1990. In the case of Mr. Tacan, there was the additional involvement of Fillmore & Riley in 1990. The correspondence from John Sioux to the Departments of Indian Affairs and Veterans' Affairs dated February 1, 1990, on behalf of Messrs. Tacan and Hall, among others, alleges:

-        the legislation setting forth the benefits available to native veterans was confusing;

-        the Indian Agent's role was critical;

-        the legislation mandated that Indian Agents were to handle all cash transactions for the native veterans and to ensure that they received the maximum benefit from the federal assistance programs;

-        Mr. William Young was the Indian Agent to whom Messrs. Tacan's and Hall's benefits were entrusted;

-        they were encouraged and did attempt to begin farming operations on the reserve;

-        Mr. Young used their federal assistance entitlements to purchase farm machinery from a local supplier who was a relative of Mr. Young's;

-        the purchased equipment was grossly inadequate;

-        Mr. Young did not provide them with the guidance necessary for them to succeed;

-        Mr. Young failed to inform them of the availability of low interest loans, agricultural training, leases of land, monetary grants, construction assistance to build a single family dwelling, and farm assistance in the form of long term, low interest loans;

-        Mr. Young's omissions resulted in "cataclysmic consequences" on their lives. Their farms failed. They, and their families, were demoralized and devastated both financially and emotionally. They were forced onto welfare and a hand-to-mouth existence;

-        their farming operations might well have succeeded if they had received the benefits and assistance from the federal government to which all returning veterans were entitled;

-        they did not receive further assistance and they had no idea that they were entitled to further assistance;

-        the failure of the federal government to assist them as required by law resulted in great hardship to them as evidenced by the substandard housing in which they still live. Mr. Tacan lives in a one room house.

[75]            The correspondence goes on to allege breach of fiduciary duty by Mr. Young and the federal government. There are additional allegations of breach of the duty to instruct, guide and inform. There is a request for compensation for the unnecessary hardship they suffered as a result of the breaches.

[76]            The correspondence from Ian B. Cowie and Associates to the Department of Veterans Affairs dated March 10, 1990 references the issue of questions relating to possible claims arising from past "mal-administration of benefits to Indian veterans". The letter refers to and encloses a copy of Mr. Sioux's correspondence. The second last paragraph of the Cowie correspondence states:

While there are some clear options in respect of formal filing of claims, our hope is that discussion with you might identify some more pragmatic and immediate ways of trying to correct the wrongs that appear to have taken place in this area.

[77]            The inescapable conclusion is that the plaintiffs Tacan and Hall were aware of the material facts upon which their claims are based (in relation to those causes of action for which there is a built-in discoverability) not later than 1990. If there be any doubt with respect to the alleged fraudulent misrepresentation, that doubt is alleviated by the discovery and video taped evidence of Messrs. Tacan and Hall as well as the documents submitted by the defendant in relation to each of them.

[78]            In Abbott v. Canada 2005 FC 163, my colleague Mr. Justice Russell dealt with a limitation of actions issue in a matter involving residential leases. There, Justice Russell determined that there was no evidence that the plaintiffs were encouraged or led to believe by the Crown that the alleged claims did not have to be asserted in a timely manner nor was there anything to suggest that the plaintiffs could not have initiated proceedings at any time. The plaintiffs knew that legal action was possible but chose to pursue their grievances through the political process in the hope that a solution could be found. In such circumstances, the plaintiffs cannot later complain they should not be subject to a limitation of action.

[79]            In my view, that is precisely the situation here. The plaintiffs, Tacan and Hall, were indisputably aware of the material facts upon which their claims were based in 1990 and they chose to pursue the political process in the hope that a solution could be found. They cannot now say that their claims should not be statute barred. Neither the plaintiffs' calculation based upon their reading of Semiahmoo, supra, nor the affidavit of Samuel Corrigan assists them in this regard. The statement of claim was issued on October 4, 2001, more than ten years after the latest date upon which Messrs. Tacan and Hall were well positioned to initiate it. They are out of time.

[80]            What then of the alleged claims with respect to an account and negligent misrepresentation, which require that the action be brought within six years after the cause of action arose? In this respect, the plaintiffs, Tacan and Hall, point to the 30 year ultimate limitation period provided for in subsection 14(3) and submit that, if regard is had to their Semiahmoo calculation and to the affidavit of Samuel Corrigan, these causes of action would fall within the 30 years. That submission is misconceived.

[81]            Subsection 14(3) contains a restriction for actions commenced or continued pursuant to subsection 14(1). Thus, even where leave is granted to commence or continue an action under subsection 14(1), leave cannot be granted for an action more than 30 years after the occurrence of the acts or omissions that gave rise to the cause of action. Regard must be had to subsection 14(1). That subsection permits the extension of the limitation periods provided for in section 2 of the Act for causes of action for which there is no built-in discoverability. To extend the limitation periods in section 2, it is imperative that leave be sought and granted to begin or continue an action. However, there is a time limit - the application must have been commenced within 12 months between the date "on which the applicant first knew, or, in all the circumstances of the case, ought to have known, of all material facts of a decisive character upon which the action is based; and the date on which the application was made to the court for leave". Subsections 20(3) and (4) shed further light on the meaning of the term "material fact". Those subsections provide:

[82]            Again, giving Messrs. Tacan and Hall the widest possible berth, 1990 was the latest possible date upon which they knew (or to track the wording of the section - ought to have known) of all material facts of a decisive character upon which the action is based. Consequently, their application for leave to extend the limitation periods provided for in section 2 with respect to negligent misrepresentation and an account had to have been brought not later than 1991. By the time their statement of claim was filed on October 4, 2001, they were already ten years late. The plaintiffs Tacan and Hall are out of time.

[83]            The circumstances are different, but not better, for Stan McKay. Mr. McKay's evidence establishes that he was told, shortly after his discharge, why he did not qualify for benefits - he had not served overseas, had not served for at least one year and was not receiving a disability pension. Mr. McKay heard reports on the radio in the mid 1970's that a deadline date had been established for those wishing to apply for veterans' benefits, specifically farm loans or loans. He chose to do nothing because he was content to farm on the reserve. Mr. McKay's claim, if any, is several decades old and he is out of time. More importantly, Mr. McKay's evidence reveals that he has no personal interest in this action and his motivation for bringing it is out of concern for others (See: paragraph 37 of these reasons). As stated earlier, at paragraph 24 herein, this matter is not about aboriginal veterans in general or the inequities or insensitive treatment that aboriginal veterans may or may not have been subjected to following the First and Second World Wars and the Korean War. This matter relates to three named plaintiffs and the defendant. It was not commenced as a representative action under the former Rule 114, repealed, SOR/2002-417. The evidence must establish the foundation for and the link to the allegations in the statement of claim. In my view, not only are Mr. McKay's claims statute barred, he has no cause of action.

[84]            I emphasize that, in arriving at my conclusions, I have given serious consideration to whether, given the propositions in MacNeil, supra, these determinations are open to me. My recitation of the evidence regarding each of the plaintiffs, earlier in these reasons, was intentionally detailed and lengthy. While there are some conflicts in the evidence and some credibility issues in relation to whether there were breaches of the alleged duties, there are no such conflicts or credibility issues regarding the narrow issue of the limitation periods given the manner in which I have approached it. The lacunae in the plaintiffs' affidavits in this respect are rounded out in their video taped and discovery evidence. Nothing new has happened since 1990.

[85]            In the result, I conclude that the applicable limitation periods have expired, the plaintiffs are out of time and their claims are statute barred. The defendant is entitled to repose. However, that does not end the matter for the plaintiffs say that I have an inherent jurisdiction to waive the limitation bars.

INHERENT JURISDICTION

[86]            The plaintiffs submit, in the alternative, that I possess an inherent jurisdiction to waive the limitation periods and that I should exercise it in this case. The discretion to waive limitation deadlines has been confirmed in Orden Estate v. Grail (1996), 30 O.R. (3d) 643 (C.A.) aff'd., [1998] 3 S.C.R. 437.

[87]            This issue was determined by Mr. Justice Lemieux in Nicholson v. Canada (T.D.), [2000] 3 F.C. 225 (T.D.). Justice Lemieux concluded, citing Dawe v. Minister of National Revenue (Customs and Excise) (1994), 174 N.R. 1 (F.C.A.), that a limitation period cannot be waived or extended in the absence of clear statutory authority. Further, I endorse and adopt the reasoning of my colleague at paragraph 40 of his reasons where he stated:

[T]he need for an express grant of statutory authority to waive or extend a limitation period flows from the ample jurisprudence of the Supreme Court of Canada dealing with the general jurisdiction of the Federal Court and expressed in a series of decisions starting with ITO - International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752 and culminating in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 656. The case law makes it clear a statutory grant of jurisdiction by Parliament is one of three requirements for the exercise of the Court's competence, and, as between the Court and the provincial superior courts, it is the provincial superior courts who enjoy inherent jurisdiction.

[88]            I see no indication that Parliament has conferred, directly or by implication, a power on the Federal Court, to waive or extend the limitation periods contained in the Act. In the absence of an express statutory grant, I lack jurisdiction to extend the limitation periods and the plaintiffs' argument in this respect must fail. However, that does not end the matter for the plaintiffs submit, in the further alternative, that if the claims are statute barred, that the application of the limitation periods results in a breach of subsection 15(1) and section 7 of the Canadian Charter of Rights and Freedoms (the Charter) and/or subsections 1(a) and (b) of the Canadian Bill of Rights (the Bill of Rights).

CHARTER AND BILL OF RIGHTS

[89]            The relevant sections are, for ease of reference, set out below.

I will examine each of the provisions in turn.

Subsection 15(1) of the Charter

[90]            Both parties, appropriately, base their arguments regarding subsection 15(1) on the three-part framework articulated by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), _1999_ 1 S.C.R. 497 (Law), wherein Mr. Justice Iacobucci wrote:

Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

A) Does the impugned law a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

And

C) Does the differential treatment discriminate, imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect or perpetuation of promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?

[91]            Observing that some provincial limitation periods are more liberal than others, the plaintiffs submit that their substantive rights will differ depending upon their province of aboriginal residency (the location of their reserve). Specifically, the plaintiffs point to the following provisions in Ontario's Limitations Act, 2002, S.O. 2002, c. 24, Schedule B:

[92]            Since many of the claims advanced by the plaintiffs (who are aboriginal) are equitable in nature, they assert that their proceeding would be exempt, by virtue of subsection 2(1), from the application of any statutory limitation periods in Ontario. Consequently, it is said that, had the plaintiffs' reserve been established in Ontario rather than Manitoba, no limitation periods would apply and they would have been able to proceed with their claims.

[93]            Instead, their claims are subject to the more stringent and punitive Manitoba legislation. This, according to the plaintiffs, constitutes differential and discriminatory treatment under the law, contrary to subsection 15(1) of the Charter.

[94]            Asserting that their place of aboriginal residence (the location of their reserve) constitutes the basis for their differential treatment under the law, and that aboriginal residence is a ground analogous to those listed in subsection 15(1), the plaintiffs rely on Corbière v. Canada (Minister of Indian and Northern Affairs), _1999_ 2 S.C.R. 203 (Corbière), and contend that "aboriginality - residence" is, like the enumerated grounds, an immutable personal characteristic which can only be changed, if at all, at great cost to the individual.

[95]            In my view, the application of the Act's limitation periods does not breach the plaintiffs' right to equality under subsection 15(1) of the Charter.

[96]            It is not at all clear to me that the differences between the applicable limitation periods in Ontario and Manitoba are as absolute as the plaintiffs contend. A complete reading of Ontario's Limitations Act, 2002, supra, reveals that paragraphs 2(1)(e) and (f) are qualified as follows:

[97]            It may well be that the provisions of the former Ontario Limitations Act, R.S.O. 1980, c. L.15, or of Ontario's Public Authorities Protection Act, R.S.O. 1990, c. P.38, or of some other

legislation would impose a statutory limitation on the plaintiffs' claims, had they originated in

Ontario. At the hearing, the defendant made some submissions on this point, but they were not sufficiently developed to enable me, with any degree of comfort, to make a finding on this basis. Suffice it to say that, when regard is had to subsection 2(2) of the Limitations Act, 2002, it is not necessarily a foregone conclusion that the applicable limitation periods in Manitoba are more stringent and punitive than those that would apply in Ontario.

[98]            Even if the application of different provincial limitation periods did result in differential treatment, it does not follow that the plaintiffs are subject to this treatment on the basis of one or more enumerated or analogous grounds. The alleged basis for the difference in treatment under the law is the location of aboriginal plaintiffs' reserve in one province or another - in other words, the aboriginal plaintiffs' province of residence. Place of residence, generally, is not a basis for discrimination under the Charter: Siemans v. Manitoba, _2003_ 1 S.C.R. 6. As for the more particular "aboriginality - residence", that ground, as established in Corbière, supra, refers to the status of an aboriginal band member as living on-reserve or off-reserve. In this case, the limitation periods would have applied regardless of the plaintiffs' reserve status. Corbière does not stand for the proposition that the location of a reserve itself - aboriginal plaintiffs' province of residence - is an analogous ground. In fact, the Supreme Court in Corbière cautioned that "reserve status should not be confused with residence" and that, in establishing "aboriginality - residence" as an analogous ground, "no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground".

[99]            Although this disposes of the plaintiffs' argument regarding subsection 15(1), the Law framework requires that I consider the context in which the differential treatment of the plaintiffs under the law arises. Perhaps there is differential treatment as between aboriginal people from different provinces or territories of Canada in terms of their ability to maintain proceedings based on equitable claims or claims of aboriginal or treaty rights. However, in my view, if that is so, it does not emanate from negative stereotypes regarding aboriginal people in a particular province or territory or, for that matter, regarding aboriginal people in general. In other words, subjecting the substantive rights of individuals to stricter limitation periods because of their province or territory of residence does not demean the dignity of those individuals.

Section 7 of the Charter

[100]        Insofar as the limitation periods prevent them from enforcing their aboriginal rights, the plaintiffs argue that their rights, protected under section 7 of the Charter, have been breached. They contend that, by providing fewer and inferior benefits to veterans who chose to live on reserve, the VLA imposed a limit or burden on veterans who made such a choice. The importance of reserve life has been established by the Supreme Court in Corbière, supra, and in the affidavit evidence of Samuel Corrigan. The plaintiffs assert that the right to live on reserve is, in fact, an aboriginal right enshrined in subsection 35(1) of the Constitution Act, 1982. It follows that security of the person, protected under section 7 of the Charter, includes the right to seek compensation for the denial of the constitutional right to live on reserve without loss of benefits.

[101]        I conclude that the plaintiffs' rights under section 7 of the Charter are not breached. The plaintiffs' claims, for which they seek the remedy of damages, constitute an attempt to assert economic rights as against the defendant. Section 7 of the Charter has been held not to apply to economic rights: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429. Even if it were established that the right to live on reserve without loss of benefits is a constitutionally-enshrined right (and I make no such finding), it remains that the ability to seek monetary compensation for the denial of such a right relates to an economic interest. Money may almost always be argued to affect a plaintiff's liberty and security, but that is an incidental effect not contemplated by section 7 of the Charter: Whitbread v. Valley (1988), 26 B.C.L.R. (2d) 203 (C.A.) per Madam Justice McLachlin (as she then was) aff'd., _1990_ 3 S.C.R. 1273.

Section 1 of the Charter

[102]        In light of my finding that there has been no breach of the plaintiffs' rights under either subsection 15(1) or section 7 of the Charter, it is not necessary for me to determine whether the violation of the plaintiffs' rights is demonstrably justified as a reasonable limit under section 1. Nonetheless, had there been any breach, I would have found, pursuant to the test set out in R. v. Oakes, _1986_ 1 S.C.R. 103 that the limitation provisions in the Act are saved under section 1.

[103]        As earlier noted, limitation periods are intended to give potential defendants repose from "ancient obligations", to provide an incentive for plaintiffs to bring suit in a timely fashion, and to prevent the bringing of claims where evidence may have been lost by the passage of time: Novak v. Bond, supra. These are sufficiently important objectives and their benefits greatly outweigh the detrimental effect on potential plaintiffs who are precluded from pursuing "ancient" claims. Placing reasonable limitation periods on potential litigation is rationally connected to the pursuit of these objectives.

[104]        I add that it is reasonable, in the interests of respecting the principle of federalism, to allow provinces to set their own time limits.

[105]        In the sense that it must be chosen from a range of alternatives, an element of arbitrariness is inherent in any limitations period. However, legislators are not required, in every instance, to choose the least intrusive measure if it can be shown that the option selected from the range of alternatives is reasonable: Thompson Newspapers Co. v. Canada (Attorney General), _1988_ 1 S.C.R. 877. Though other options were available to the Manitoba legislature, the limitation periods it chose are reasonable.

Subsection 1(a) of the Bill of Rights

[106]        The right to claim for loss of enjoyment of property, say the plaintiffs, is denied by the imposition of limitation periods with respect to their claims. Further, they assert that the use of the phrase "due process of law" in subsection 1(a) signifies that they have a right to a hearing on the merits of their claims. Thus, the operation of the limitations bar to preclude such a hearing robs them of their right to "due process of law".

[107]        This argument cannot succeed. The application of the Act's limitation periods to bar the plaintiffs' claims does not result in a violation of their subsection 1(a) rights. My earlier remarks regarding section 7 of the Charter are equally germane here - the ability (or inability) to sue for damages is one step removed from any loss of enjoyment of property that may have been caused by the defendant through negligence or breach of any duty owed to the plaintiffs. Subsection 1(a) does not extend to rights incidental to those protected within its scope.

[108]        Even if it could be established that the ability to sue for damages falls within the scope of "enjoyment of property", it remains that such a right will have been "deprived ... by due process of law" pursuant to subsection 1(a). The due process of law pertaining to the right to sue for damages in this matter does not entail a hearing on the merits of the claims themselves. Rather, it warrants a hearing on whether the plaintiffs' claims are statute-barred. Due process has been afforded to the plaintiffs in tendering evidence and making submissions in support of their position that the limitation bars should not apply, in knowing the position of the defendant and being able to respond, and in my consideration of their evidence, submissions and responses before concluding that their claims are statute-barred. In short, the plaintiffs are deprived of the right to continue their proceeding only after the due process of law.

Subsection 1(b) of the Bill of Rights

[109]        Essentially, the arguments of the plaintiffs with regard to subsection 1(b) are identical to their subsection 15(1) Charter arguments - that the differences between the applicable limitation periods in the various provinces violates the right of aboriginal plaintiffs to equality before the law.

[110]        Any differences that may exist in the treatment of individuals under the limitation periods are not based on one of the prohibited grounds of discrimination listed under section 1 of the Bill of Rights. The limitation periods in the Act apply regardless of a plaintiff's race, religion, colour, or sex. Even if I were to accept that there are stark differences between the limitation periods applicable to aboriginal plaintiffs in Ontario and those applicable to aboriginal plaintiffs in Manitoba - I reiterate, for the reasons set out above, that I make no such conclusion - the basis for the differential treatment is the plaintiffs' place of residence. This is not a prohibited ground listed in section 1. I find, accordingly, that the plaintiff's rights under subsection 1(b) of the Bill of Rights have not been breached.

ANCILLARY ISSUES

[111]        I have not addressed the defendant's request to amend paragraph 67 of the amended statement of defence to specifically plead the limitations period contained in subsection 24(1) of the Public Officers Act, supra. Given my determination regarding the foregoing issues, it seems to me that this request is rendered moot. If that is not so, I see no reason, in view of the jurisprudence regarding amendments, to refuse the request.

[112]        The argument contained in the written submissions with respect to subsection 24(1) of the Crown Liability Act, R.S.C. 1970, c. C-30 was not advanced and I will say no more about it.

[113]        The question as to whether the claims can survive the equitable defences of laches and acquiescence is posited as an alternative in the event that I should determine that the claims, or some of them, are not statute barred. I have concluded otherwise and it is, consequently, not necessary to determine this question. However, for completeness, I will say that, had I not determined that the claims were statute barred, I would, on the strength of Wewaykum, supra, have agreed with the defendant that the defences of laches and acquiescence are available to Her Majesty. With respect to the "honour of the Crown", I find the reasoning in Her Majesty the Queen v. Stoney Band 2005 FCA 15 (notwithstanding that it was in the context of a status review) to be both persuasive and dispositive.

CONCLUSION

[114]        The defendant has established that the plaintiffs' causes of action are statute barred. I have no inherent jurisdiction to waive or extend the applicable limitation periods. The application of the limitation periods to the plaintiffs' claims does not breach section 7 or subsection 15(1) of the Charter or subsections 1(a) or (b) of the Bill of Rights. It follows that the defendant's motion for summary judgment will be granted.

COSTS

[115]     Both sides requested costs. The defendant has been successful and is entitled to costs. If the parties are unable to agree on costs (and they are encouraged to do so), they shall provide written submissions - not to exceed three pages, double spaced - on the issue of costs on or before March 24, 2005.

ORDER

THIS COURT ORDERS THAT the defendant's motion for summary judgment is granted.

            "Carolyn A. Layden-Stevenson"          

Judge

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1756-01

STYLE OF CAUSE:                         ALFRED TACAN, SOLOMON HALL,

and STAN McKAY

v.

HER MAJESTY THE QUEEN, in Right of Canada

PLACE OF HEARING:                    Winnipeg, Manitoba

DATE OF HEARING:                       February 15 and 16, 2005

REASONS FOR ORDER:              The Honourable Madam Justice Layden-Stevenson

DATED:                                              March 17, 2005         

APPEARANCES:

Douglas A. S. Paterson, Q.C.

Scott D. Abel                                                                         FOR PLAINTIFFS

Randal T. Smith, Q.C.

Jennifer Dundas                                                                    

Winnipeg, Manitoba                                                              FOR DEFENDANT

SOLICITORS OF RECORD:

Douglas A.S. Paterson, Q.C.

Scott D. Abel                                                                         

Paterson Patterson Wyman & Abel

Barristers and Solicitors                                                       FOR PLAINTIFFS

John H. Sims, Q.C.

Deputy Attorney General of Canada

Winnipeg, Manitoba                                                              FOR DEFENDANT