Date: 20110418
Docket: T-1261-01
Citation: 2011 FC 457
Ottawa, Ontario, April 18, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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DALVIN STEWART POTSKIN
ALBERT LAWRENCE POTSKIN and RICHELLE MARIE POTSKIN
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Plaintiffs
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and
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HER MAJESTY THE QUEEN
IN RIGHT OF CANADA as represented by the
MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
At
the time of their birth, the Plaintiffs were illegitimate children within the
meaning of paragraph 11(1)(e) of the Indian Act, RSC 1970, c. I-6 (the “Former
Act”). Therefore, they were registered on the Band List of the Sawridge Band,
of which their mother was a member at that time. When they were still toddlers,
their mother married Neil Morin, a member of the Enoch Band. The following
year, she and Mr. Morin signed Statutory Declarations declaring Mr. Morin to be
the natural father of the Plaintiffs. Shortly after receiving a copy of those
Statutory Declarations, the Registrar under the Former Act instructed the
Lesser Slave Lake Indian Regional Council to report the transfer of the
Plaintiffs from the Sawridge Band to the Enoch Band, as contemplated by section
10 of the Act.
[2]
When
their mother transferred from the Sawridge Band to the Enoch Band subsequent to
her marriage to Mr. Morin, she received a payment in the amount of $210,891.62.
This represented the difference between the value of a per capita share
in the Sawridge Band and the value of a per capita share in the Enoch
Band.
[3]
The
Plaintiffs maintain that a similar payment should have been made to a trustee,
to hold on their behalf until they reached the age of majority. However, no
such payment on their behalf was ever made to anyone. As a result, they
commenced this action alleging, among other things, that the Defendant breached
its fiduciary obligation to protect their economic interests.
[4]
For
the reasons that follow, I find that on the particular facts of this case, the Defendant
did not owe to the Plaintiffs the specific fiduciary obligations that the
Plaintiffs have identified. I also find that if the Defendant had any fiduciary
obligations towards the Plaintiffs, those obligations were not breached by the
actions taken by the Registrar or any other persons in the Department of Indian
Affairs and Northern Development (the “Department”).
[5]
I
also find that this action is barred by the Limitation of Actions Act,
RSA 1980, c L-15 and/or the Limitations Act, RSA 2000, c L-12, which are
the relevant limitations statutes in this case.
I. Background
[6]
The
Plaintiffs are all children of Harriet Potskin. Dalvin Stewart Potskin was born
on February 7, 1979. Albert Lawrence Potskin was born on March 27, 1980.
Richelle Marie Potskin was born on April 14, 1981.
[7]
Given
that Harriett Potskin was unmarried at the time of their birth, the Plaintiffs
were registered on the Band List of the Sawridge Band, of which she was a
member, as contemplated by paragraph 11(1)(e) of the Former Act.
[8]
The
Former Act was administered by the Defendant Minister of Indian Affairs and
Northern Development. Pursuant to section 5 of the Former Act, an Indian
Register was required to be maintained, consisting of Band Lists and General
Lists in which were recorded the names of every person entitled to be
registered as an Indian. The Indian Register and all such membership lists were
controlled by the Registrar.
[9]
On
or about November 27, 1981, Harriet Potskin married Neil Morin, a member of the
Enoch Band. As required by section 14 of the Former Act, she therefore transferred
from the Sawridge Band to the Enoch Band.
[10]
Pursuant
to subsection 16(3) of the Former Act, the Sawridge Band then made two
payments. The first payment, in the above-mentioned amount of $210,891.62, was
made to Harriet Potskin. The second payment, in the amount of approximately
$6,000, was made to the Enoch Band. That sum represented the value of a per
capita share in the Enoch Band. Together, the two sums represented the
value of a per capita share in the Sawridge Band at that time.
[11]
On
April 15, 1982, Harriet Potskin and Neil Morin signed Statutory Declarations
declaring Neil Morin to be the natural father of the Plaintiffs. However, for
one reason or another, those Statutory Declarations were not forwarded to the
Registrar until March 29, 1983, when they were sent to the Registrar by Mr.
David Fennell, the solicitor for the Sawridge Band. In his cover letter to the
Registrar, Mr. Fennell stated that the Plaintiffs “should have been transferred
to the Enoch Band List as they are now the legitimate children of their father.”
In addition, he requested that the Registrar “deal with this matter as
expeditiously as possible.” It appears that the reason why the Sawridge Band
was anxious to have the matter dealt with promptly was that it had been
continuing to issue oil royalty cheques on a regular basis to Mrs. Harriet
Potskin on behalf of the Plaintiffs.
[12]
On
April 27, 1983 the Registrar wrote to the Lesser Slave Lake Indian Regional
Council to request that the Council report the transfer of the Plaintiffs from
the Sawridge Band to the Enoch Band in its next Band Membership Report for the
former Band. By copy of its letter to the Office Manager of the Enoch Band, it
requested that Band to do the same.
[13]
To
this date, the Plaintiffs remain members of the Enoch Band. However, neither
they nor the Enoch Band has ever received payments from the Sawridge Band
similar to those that were made subsequent to their mother’s transfer to the
Enoch Band.
II. Relevant
Legislation
[14]
Pursuant
to subsection 2(1) of the Former Act, the Registrar was the officer of the
Department who was in charge of the Indian Register.
[15]
The
transfer of the Plaintiffs and their mother from the Sawridge Band List to the
Enoch Band List maintained by the Registrar resulted from the operation of
subsection 7(1), section 10, paragraphs 11(1)(d) and (e), and section 14 of the
Former Act. Those provisions, which are part of a scheme that focused upon the
status of the male in spousal and parental relationships (Martin v Chapman,
[1983] 1 S.C.R. 365, at 370), stated as follows:
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Indian Act, RSC 1970, c. I-6
Definition and
Registration of Indians
[…]
7. (1) The
Registrar may at any time add to or delete from a Band List or a General List
the name of any person who, in accordance with this Act, is entitled or not
entitled, as the case may be, to have his name included in that List.
[…]
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. R.S.,
c. 149, s. 10.
[…]
11. (1)
Subject to section 12, a person is entitled to be registered if that person
[…]
(d) is the
legitimate child of
(i)
a male person
described in paragraph (a), (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);
or
[…]
14. A woman
who is a member of a band ceases to be a member of that band if she marries a
person who is not a member of that band, but if she marries a member of
another band, she thereupon becomes a member of the band of which her husband
is a member. R.S.,
c. 149, s. 14.
|
|
Loi sur les indiens, SRC 1970,
c. I-6
Définition et
enregistrement des indiens
[…]
7. (1)
Le registraire peut en tout temps ajouter à une liste de bande ou à une liste
générale, ou en retrancher, le nom de toute personne qui, d’après la présente
loi, a ou n’a pas droit, selon le cas, à l’inclusion de son nom dans cette
liste.
[…]
10.
Lorsque le nom d’une personne du sexe masculin est inclus dans une liste de
bande ou une liste générale, ou y est ajouté ou omis, ou en est retranché,
les noms de son épouse et de ses enfants mineurs doivent également être
inclus, ajoutés, omis ou retranchés, selon le cas. S.R., c. 149, art. 10.
[…]
11.
(1) Sous réserve de l’article 12, une personne a droit d’être inscrite si
[…]
d)
elle est l’enfant légitime
(i)
d’une personne du sexe masculin décrite à l’alinéa a) ou b), ou
(ii)
d’une personne décrite à l’alinéa c);
e)
elle est l’enfant illégitime d’une personne du sexe féminin décrite à
l’alinéa a), b) ou d); ou
[…]
14.
Une femme qui est membre d’une bande cesse d’en faire partie si elle épouse
une personne qui n’en est pas membre, mais si elle épouse un membre d’une
autre bande, elle entre dès lors dans la bande à laquelle appartient son
mari. S.R., c. 149, art. 14.
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[16]
Subsection
15(1) of the Former Act allowed for the payment of a per capita share of the
monies held by Her Majesty on behalf of an Indian Band, and certain other
monies, to an Indian who became “enfranchised” or who otherwise ceased to be a
member of that Band. Subsection 15(3) identified the options available to the
Minister where such a person was under the age of twenty-one. However, subsection
16(1) of the Former Act excluded the operation of section 15 in situations
where a person ceased to be a member of one Band by reason of becoming a member
of another Band. Moreover, subsection 16(2) specifically precluded such a
person from any entitlement to any interest in the lands or moneys held by Her
Majesty on behalf of the former Band. Pursuant to subsection 16(3), this was
subject to one exception, namely, where a woman transferred from one Band to
another Band by reason of marriage. The full text of these provisions were as
follows:
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Indian Act, RSC 1970, c. I-6
Definition and
Registration of Indians
[…]
15. (1)
Subject to subsection (2), an Indian who becomes enfranchised or who otherwise
ceases to be a member of a band is entitled to receive from Her Majesty
(a) one per
capita share of the capital and revenue moneys held by Her Majesty on behalf
of the band, and
(b) an amount
equal to the amount that in the opinion of the Minister he would have
received during the next succeeding twenty years under any treaty then in
existence between the band and Her Majesty if he had continued to be a member
of the band.
[…]
(3) Where by
virtue of this section moneys are payable to a person who is under the age of
twenty-one, the Minister may
(a) pay the
moneys to the parent, guardian or other person having the custody of that
person or to the public trustee, public administrator or other like official
for the province in which that person resides, or
(b) cause
payment of the moneys to be withheld until that person reaches the age of
twenty-one.
[…]
16. (1)
Section 15 does not apply to a person who ceases to be a member of one band
by reason of his becoming a member of another band, but, subject to
subsection (3), there shall be transferred to the credit of the latter band
the amount to which that person would, but for this section, have been
entitled under section 15.
(2) A person
who ceases to be a member of one band by reason of his becoming a member of
another band is not entitled to any interest in the lands or moneys held by
Her Majesty on behalf of the former band, but he is entitled to the same
interest in common in lands and moneys held by Her Majesty on behalf of the
latter band as other members of that band.
(3) Where a
woman who is a member of one band becomes a member of another band by reason
of marriage, and the per capita share of the capital and revenue moneys held
by Her Majesty on behalf of the first-mentioned band is greater than the per
capita share of such moneys so held for the second-mentioned band, there
shall be transferred to the credit of the second-mentioned band an amount
equal to the per capita share held for that band, and the remainder of the
money to which the woman would, but for this section, have been entitled
under section 15 shall be paid to her in such manner and at such times as the
Minister may determine. R.S., c. 149, s. 16.
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Loi sur les indiens, SRC 1970,
c. I-6
Définition et
enregistrement des indiens
[…]
15.
(1) Sous réserve du paragraphe (2), un Indien qui devient émancipé ou qui,
d’autre manière, cesse d’être membre d’une bande a droit de recevoir de Sa
Majesté
a) une
part per capita des fonds de capital et de revenu détenus par Sa
Majesté au nom de la bande, et
b)
un montant égal à la somme que, de l’avis du Ministre, il aurait reçue durant
les vingt années suivantes aux termes de tout traité alors en vigueur entre
la bande et Sa Majesté s’il était demeuré membre de la bande.
[…]
(3)
Lorsqu’en vertu du présent article, des deniers sont payables à une personne
de moins de vingt et un ans, le Ministre peut
a) payer
les deniers au père ou à la mère, au tuteur ou à l’autre personne ayant la
garde de cette personne, ou au curateur public ou administrateur public ou
autre semblable fonctionnaire de la province où réside ladite personne, ou
b) faire
suspendre le paiement des deniers jusqu’à ce que la personne ait atteint
l’âge de vingt et un ans.
[…]
16.
(1) L’article 15 ne s’applique pas à une personne qui cesse d’appartenir à
une bande du fait qu’elle devient membre d’une autre bande, mais, sous
réserve du paragraphe (3), le montant auquel cette personne aurait eu droit
en vertu de l’article 15, sans le présent article, doit être transféré au
crédit de la bande en dernier lieu mentionnée.
(2)
Une personne qui cesse de faire partie d’une bande du fait qu’elle est
devenue membre d’une autre bande n’a droit à aucun intérêt dans les terres ou
deniers détenus par Sa Majesté au nom de la bande en premier lieu mentionnée,
mais elle a droit au même intérêt en commun, dans les terres et les deniers
détenus par Sa Majesté au nom de la bande en deuxième lieu mentionnée, que
les autres membres de cette dernière.
(3)
Lorsqu’une femme qui fait partie d’une bande devient membre d’une autre bande
du fait de son mariage et que la part per capita des fonds de capital
et de revenu détenus par Sa Majesté au nom de la bande en premier lieu
mentionnée, est plus élevée que la part per capita des fonds ainsi
détenus pour la bande en deuxième lieu mentionnée, il doit être transféré au
crédit de la bande en deuxième lieu mentionnée un montant égal à la part per
capita détenue pour cette bande, et le solde des deniers auxquels cette
femme aurait eu droit aux termes de l’article 15, dans le présent article,
doit lui être versé de la manière et aux époques que le Ministre détermine. S.R.,
c. 149, art. 16.
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[17]
In
addition, section 9 of the Former Act allowed, among other things, a person to
protest, in writing to the Registrar, the inclusion, omission, addition or
deletion of that person’s name on or from a Band List or a General List. In the
event of an adverse decision on the protest, section 9 also allowed such a
person to request the Registrar to refer the decision to a judge for review. In
this case, it is common ground that no such protest or request for judicial
review was ever made.
[18]
Finally,
it is relevant to note that the management, use and expenditure of “Indian
moneys” under the Former Act was governed by sections 61 to 69. Among other
things, subsection 61(1) provided that “Indian moneys shall be expended only
for the benefit of the Indians or bands for whose use and benefit in common the
moneys are received or held …”
III. Issues
[19]
In
their Statement of Claim, the Plaintiffs alleged that the Defendant breached:
i.
a
statutory obligation that they claimed existed under subsection 15(3) of the
Former
Act;
ii. an
unspecified treaty obligation of fair dealing; and
iii. a fiduciary
obligation to protect their economic interests.
[20]
Those
allegations were all baldly asserted. It does not appear that the Plaintiffs
articulated, at any time prior to the trial, the specific nature of the alleged
obligations that they claimed had been breached.
[21]
At
trial, the Plaintiffs abandoned their claims that the Defendant had breached
statutory and treaty obligations owed to them. Indeed, as to the alleged
statutory obligations, counsel to the Plaintiffs acknowledged that:
i.
a
plain reading of subsections 16(1), 16(2) and 16(3) of the Former Act supported
the Defendant’s position that subsection 15(3) did not apply to the Plaintiffs;
and, therefore
ii. there was no
basis upon which they could maintain that the Defendant had breached a
statutory obligation, whether under subsection 15(3) or otherwise, to ensure
that they were paid the difference between the value of a per capita
share in the Sawridge Band and a per capita share of the Enoch Band
(Court Transcript, pp 205-207, 257, and 274).
[22]
In
short, the Plaintiffs accepted that, unlike their mother, who was entitled to
be paid such an amount by virtue of being an Indian woman explicitly described
in subsection 16(3), they had no statutory entitlement to be paid any monies as
a result of their transfer from the Sawridge Band to the Enoch Band.
[23]
In
addition to abandoning their claims that the Defendant had breached statutory
and treaty obligations owed to them, the Plaintiffs also abandoned at trial
their claims to: (i) judgment in the amount of $500,000 or such further or
other sum as may be proved at trial; (ii) punitive damages in the sum of $100,000; and (iii) costs on a solicitor client
basis.
[24]
Accordingly,
the only remaining issue is whether the Defendant breached a fiduciary duty
owed to the Plaintiffs.
IV. Analysis
A. Did the Defendant
owe a fiduciary duty to the Plaintiffs?
[25]
As
noted above, the Plaintiffs claimed that the Defendant breached a fiduciary
obligation to protect their economic interests. At trial, they clarified, for
what appears to have been the first time, the specific nature of the fiduciary obligation
that they claim was owed to them in the circumstances of this case. It bears
underscoring that, before providing that clarification, the Plaintiffs conceded
that they had no entitlement to receive any payments from the Sawridge Band when
they transferred the Enoch Band.
[26]
Having
made that concession, the Plaintiffs then claimed that, prior to the point in
time at which their parents signed the Statutory Declarations that the
Registrar relied upon in directing the transfer of their names from the
Sawridge Band List to the Enoch Band List, the Registrar had a fiduciary
obligation to advise their parents, in their capacity as their guardians:
i.
of
the potential adverse financial consequences associated with signing the Statutory
Declarations; and
ii. that it was
open to them to refrain from signing the Statutory Declarations.
[27]
The
principal adverse financial consequence that they identified was the
significant difference between the monthly payments made by the Sawridge Band
and the Enoch Band to their respective members. Mrs. Potskin testified that she
received approximately $100 per month for each of the Plaintiffs from the
Sawridge Band, whereas the corresponding payments received from the Enoch Band
were only approximately $25 per month. In addition, counsel to the Plaintiffs
implied that the Plaintiffs also may have been deprived of other financial benefits
that might have been associated with being a member of the Sawridge Band,
because a per capita share in that Band was worth approximately 30 times
the value of a per capita share in the Enoch Band.
[28]
Moreover,
the Plaintiffs claimed that, subsequent to the signing of the Statutory
Declarations, the Registrar had a fiduciary duty to advise their parents of:
i.
the
aforementioned potential adverse financial consequences; and
ii. their right
to protest the transfer, pursuant to subsection 9(3) of the Former Act, within
the three month time period set forth in that provision.
1. The Fiduciary Duties Alleged to Exist Prior to the Execution of the
Statutory Declarations
[29]
The
fiduciary duties that the Plaintiffs claim were breached prior to the signing
of the Statutory Declarations of paternity do not require significant
discussion. In short, there is no persuasive evidence that the Registrar or
anyone at the Department knew or ought to have known, prior to the execution of
those documents that the Plaintiffs’ parents were considering executing, or had been requested to execute, those
documents. Indeed, there is no persuasive evidence that the Registrar or
anyone at the Department knew or ought to have known that the Statutory
Declarations had been signed prior to when they were sent to the Registrar by
Mr. Fennell, on March 29, 1983.
[30]
During
the Defendant’s examination for discovery, Mrs. Potskin testified that the
first time the Department was made aware of the identity of the Plaintiffs’
father was after Mr. Fennell sent the Statutory Declarations of paternity to
the Department in March 1983. The Plaintiff Dalvin Potskin testified that he
adopted the testimony given by his mother on behalf of the Plaintiffs, and that
he was authorized to give answers on behalf of his siblings.
[31]
During
trial, a question arose as to whether Carole Holland, the Commissioner of Oaths
who witnessed the execution of the Statutory Declarations by Harriet Potskin
and Neil Morin, was an employee of the Department at that time. During his
direct examination of Harriet Potskin, counsel to the Plaintiffs asked whether
Mrs. Potskin was aware that another employee of the Department, Susan Weston,
had testified that Ms. Holland was in fact an employee of the Department. Mrs. Potskin
replied in the affirmative. However, counsel to the Defendant subsequently read
into evidence the relevant portion of the transcript of the examination of Ms.
Weston, dated January 17, 2006. That transcript revealed that Ms. Weston was
not aware of whether Ms. Holland was employed with the Department at the time
that Mrs. Potskin and Neil Morin signed their Statutory Declarations of
paternity. After stating this fact, Ms. Weston simply stated that Ms. Holland
was an employee of the Department when Ms. Weston began working with the
department in December 1984.
[32]
Significantly,
the Plaintiffs’ counsel did not ask Mrs. Potskin whether, at the time she and
Neil Morin signed the Statutory Declarations, they believed that Ms. Holland
was employed by the Department. Instead, his focus was on: (i) the
circumstances under which she and Mr. Morin signed the Statutory Declarations;
(ii) the communications she had with the Department; and (iii) whether anyone
at the Department ever represented to her that monies were or would be held in
trust for the Plaintiffs.
[33]
Regarding
the circumstances under which the Statutory Declarations were signed, Mrs.
Potskin testified that counsel to the Sawridge Band, Mr. Fennell, required her
to sign a Statutory Declaration of paternity in late 1981 or early 1982, before
the Sawridge Band would be prepared to release to her a special Christmas bonus
that was paid to its Band Members at that time. She stated that she did not
want to sign the declaration because she knew that it would probably lead to
the Plaintiffs being transferred to the Enoch Band. However, she agreed to sign
the document after Mr. Fennell told her that her children would receive a
payment similar to the one that she received. Mrs. Potskin testified that Mr.
Fennell added that, because they were minors, their respective payments would
be placed in a trust account for them.
[34]
As
it turned out, the document that Mrs. Potskin signed at Mr. Fennell’s request
either was misplaced or was not in fact a Statutory Declaration of paternity.
As a result, Mrs. Potskin testified that, in April 1982, after she made an
enquiry at the Enoch Band Office about why she had been receiving royalties
from both the Sawridge Band and the Enoch Band, a representative of the latter
Band requested her and Neil Morin to sign the Statutory Declarations of
paternity that were the only such declarations filed in evidence in these
proceedings. Those documents were executed on April 15, 1982. There is no
evidence to suggest that they were signed under any form of duress.
[35]
For
some reason, it was not until March 1983, when Mr. Fennell discovered that the
Plaintiffs remained on the Sawridge Band list, that copies of those Statutory
Declarations were forwarded to the Department for what appears to have been the
first time. No evidence was adduced to suggest that the Department may have been
aware, prior to March 1983, of the existence of those Statutory Declarations,
or the Statutory Declaration that Mrs. Potskin testified to having signed at
the behest of Mr. Fennell in late 1981 or early 1982.
[36]
With
respect to her communications with the Department, Mrs. Potskin testified that
she contacted the Department on numerous occasions. However, she did not state
that any of those contacts were made prior to when she and Mr. Morin signed the
Statutory Declarations. Indeed, two of the three people with whom she testified
she had communicated at the Department (Mr. Sisson and Ms. Weston) did not
begin to work at the Department until long after the Statutory Declarations had
been signed. No evidence was adduced regarding when the third person (Mr.
Hughes) started to work at the Department.
[37]
With
respect to the question of whether anyone in the Department ever represented to
her that monies were being held in trust for the Plaintiffs, Mrs. Potskin
testified that no such representations were ever made by anyone in the
Department. She stated that those representations were made by Chief Twim of
the Sawridge Band and Mr. Fennell. There was no evidence that anyone at the
Department ever knew or ought to have known that such representations had been
made by Chief Twim and Mr. Fennell.
[38]
Based
on the foregoing, I find that the Plaintiffs have not established, on a balance
of probabilities that the Registrar or anyone else at the Department knew or
ought to have known, prior to the point in time when the Statutory Declarations
of paternity were signed, that their parents were considering executing, or had
been requested to execute, those documents. As noted above, the evidence does
not establish that anyone at the Department knew those documents had been
signed until almost a year later, on March 29, 1983. Accordingly, even if I were
prepared to agree with the Plaintiffs’ submission that, prior to when the
Statutory Declarations of paternity were signed, the fiduciary obligations
described at paragraph 26 above were owed to them by the Defendant, the
Defendant could not have breached those obligations. That said, for the reasons
discussed below, I find that the Defendant was not subject to any of the
fiduciary obligations asserted by the Plaintiffs.
[39]
I
will now turn to the fiduciary duties that the Plaintiffs claim were owed to
them and their parents subsequent to the signing of the Statutory
Declarations.
2. The Fiduciary Duties
Alleged to Exist After the Execution of the Statutory Declarations
[40]
In
Frame v Smith, [1987] 2 S.C.R. 99, at 136, it was observed that fiduciary
obligations have been imposed by the courts when relationships possess the
following three general characteristics:
1. The
fiduciary has scope for the exercise of some discretion or power.
2.
The
fiduciary can unilaterally exercise that power or discretion so as to affect
the beneficiary’s legal or practical interests.
3.
The
beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary
holding the discretion or power.
[41]
In
Blueberry River Indian Band v Canada (Department of Indian Affairs and
Northern Development), [1995] 4 S.C.R. 344, at para 38, this view was briefly
endorsed in the context of considering whether the circumstances of that case
gave rise to a fiduciary obligation on the Crown with respect to the surrender
of an Aboriginal reserve.
[42]
The
leading cases in which the nature of the Crown’s fiduciary obligation, if any,
towards Aboriginal peoples has been assessed in greater detail have emphasized
the existence of Crown discretion as being a critical threshold issue in the assessment.
[43]
In
Guerin v the Queen, [1984] 2 S.C.R. 335 at 383, Justice Dickson (as he then
was), placed the importance of Crown discretion in context by noting, at the
outset of his discussion of the Crown’s fiduciary obligation in that case, that
“[t]he concept of fiduciary
obligation originated long ago in the notion of breach of confidence, one of
the original heads of jurisdiction in Chancery.” After observing that, in
enacting the Former Act, Parliament conferred discretion upon the Crown to
protect Aboriginal peoples’ “interests in transactions with third parties” from
being exploited, he then proceeded to state, at p. 384, the following:
This discretion on the part of the Crown, far
from ousting, as the Crown contends, the jurisdiction of the courts to regulate
the relationship between the Crown and the Indians, has the effect of
transforming the Crown's obligation into a fiduciary one. Professor Ernest
Weinrib maintains in his article The Fiduciary Obligation (1975), 25 UTLJ
1, at p. 7, that "the hallmark of a fiduciary relation is that the
relative legal positions are such that one party is at the mercy of the other's
discretion." Earlier, at p 4, he puts the point in the following
way:
[Where there is a fiduciary
obligation] there is a relation in which the principal's interests can be
affected by, and are therefore dependent on, the manner in which the fiduciary
uses the discretion which has been delegated to him. The fiduciary
obligation is the law's blunt tool for the control of this discretion.
I make no comment upon whether this description is
broad enough to embrace all fiduciary obligations. I do agree, however, that
where by statute, agreement, or perhaps by unilateral undertaking, one party
has an obligation to act for the benefit of another, and that obligation
carries with it a discretionary power, the party thus empowered becomes a
fiduciary. Equity will then supervise the relationship by holding him to the
fiduciary's strict standard of conduct.
[Emphasis added.]
[44]
Importantly,
Justice Dickson then clarified, at p. 385, that “[p]ublic law duties, the
performance of which requires the exercise of discretion, do not typically give
rise to a fiduciary relationship. As the ‘political trust’ cases indicate, the
Crown is not normally viewed as a fiduciary in the exercise of its legislative
or administrative function.”
[45]
The
requirement that there be an exercise of Crown discretion, beyond the exercise
of the Crown’s legislative or administrative function, before a fiduciary
obligation towards Aboriginal peoples will be recognized, has been embraced in
several subsequent cases. Those cases have recognized that the existence of a
public law duty on the part of the Crown does not exclude the possibility that
a fiduciary obligation will be found to exist in connection with the exercise
of the Crown’s discretion. However, before such an obligation will be
triggered, the public duty must be “in the nature of a private law duty”, or
the obligation must originate “in a private law context” (Wewaykum Indian Band
v Canada, [2002] 4
SCR 245, at paras 85 and 96). This is so even in a general context in which the
Crown may be said to be in a fiduciary relationship with Aboriginal peoples (Wewaykum,
above, at paras 83 and 92).
[46]
In
Ermineskin Indian Band and Nation v Canada, [2009] 1 S.C.R. 222, at para
128, it was held that the surrender of the interests of the appellant Indian
Bands’ interests in oil and gas reserves found beneath the surface of their
reserves gave rise to fiduciary obligations on the part of the Crown with
respect to (i) the granting of rights to others to exploit those resources; and
(ii) the manner in which the Crown handled the royalties received from such
exploitation of the Bands’ resources. Such obligations were found to arise by
virtue of the Crown’s “discretion with respect to the terms on which it granted
rights to exploit the minerals and with respect to the way in which it dealt
with the royalties it received on the bands’ behalf” (Ermineskin, above,
at paras 69-70, and 74).
[47]
That
said, the Court proceeded to observe that “[a] fiduciary that acts in
accordance with legislation cannot be said to be breaching its fiduciary duty”
(Ermineskin, above, at para 128).
[48]
This
approach is consistent with the jurisprudence of this Court and the Federal
Court of Appeal. For example, in Fairford First Nation v Canada (Attorney
General),
[1999] 2 FC 48, at para 63 (TD), it was held that “duties that arise from
legislative or executive action are public law duties” and that “[s]uch duties
… typically do not give rise to a fiduciary relationship.” With this in mind,
the Court concluded:
[T]he
actions taken by the Indian Affairs Branch arose under and by reason of the Indian
Act and the Department of Citizenship and Immigration Act and were
public law duties. There is no indication they would be in the nature of
private law duties such as when Indian land is surrendered. Nor is there any
suggestion the Crown was exercising a discretion or power for on or behalf of
the Indians. For these reasons, course of conduct by the Crown in its dealings
with and for Indians under these Acts generally, may not be relied upon as a
basis for the creation of a fiduciary duty upon the Crown and, in particular,
with respect to its involvement with the Water Control Structure in this case.”
(Fairford, above, at para 63.)
[49]
A
similar position was adopted in Tsartlip Indian Band v Canada (Minister of
Indian Affairs and Northern Development), [2000] 2 FC 314, at
para 35 (CA), where the Federal Court of Appeal held:
The concept of fiduciary duty is remarkably unsuited, in my
view, for the purpose of defining what is the role of the Minister when, in the
exercise of his statutory duties with respect to the management of land in a
reserve, he assesses the competing interests of a member of a band on the one
hand, and of the band as a whole. The Minister has no interest in the outcome
of his decision. The Crown does not stand to gain any benefit from the decision
of the Minister. Whatever the decision, the lands will remain lands on the reserve.
There is no adversarial relationship between the Crown and the band as a whole
or the member of the band. There is no legitimate public purpose to be advanced
by the Minister which would be adverse to the interest of the Aboriginal
people. There is no "exploitation" by the Crown of the band's or the
locatee's rights.
[50]
In
Sam v Canada (Minister of Indian Affairs and Northern
Development), 2006 FC 1009, at para 67, the passage immediately above
was quoted with approval by my colleague Justice Tremblay-Lamer, who added:
[69] I
echo the words of the Court of Appeal in Tsartlip that the concept of
fiduciary duty is unsuited to the Minister’s exercise of his discretionary
powers under the Act with respect to the management of reserve land. Under
subsection 50(4), the Minister’s role is simply to approve or not. The Minister
is an uninterested participant in the process. The Crown is not a party and has
nothing to gain from section 50 sales as these sales are only open to those
eligible individuals under the Act, those being band members.
[51]
In
Squamish Indian Band v Canada, [2000] FCJ No 1568, at
para 521 (TD), my colleague Justice Simpson went further and held as follows:
It cannot be the case that each time legislation gives the
Crown discretion to act, a Private Law Fiduciary Duty or even a sui generis
fiduciary duty applies. This must be so because, in matters of public law,
there will generally not be a reasonable expectation that the Crown is acting
for the sole benefit of the party affected by the legislation. For this reason,
it is my conclusion that, in matters of public law, discretion and
vulnerability can exist without triggering a fiduciary standard. There would
have to be special circumstances, other than those created by the legislation,
to justify the imposition of a fiduciary duty on the Crown.
[52]
In
the case at bar, no special circumstances were identified that would justify
the imposition of such a fiduciary duty on the Crown.
[53]
Other
courts have also taken the view that the Crown is not subject to any fiduciary
duty in the exercise of its purely public law statutory responsibilities under
the Act. This includes the exercise of the Registrar’s duties under the Act.
For example, in Tuplin v Canada (Registrar of Indian & Northern Affairs),
2001 PESCTD 89, the Prince Edward Island Supreme Court (Trial Division)
rejected the appellant’s assertion that the Registrar had a fiduciary duty
towards him and his father when making her decision under the protest
provisions in section 14.2 of the Indian Act, RSC 1985, c. I-5. In the
course of reaching this conclusion, the Court observed:
56 This case calls
for a note of clarification regarding application of fiduciary duty to
government relations in aboriginal matters. There is an element of fiduciary duty
in government relations with aboriginal peoples, applicable to negotiations and
like matters. However, its presence does not extend to the Registrar's
administration of an individual protest. In my understanding, the Supreme Court
directives do not intend fiduciary duty to override, emasculate, or stand in
conflict with the performance by an administrator such as the Registrar of a
public law duty specifically prescribed by statute.
[54]
The
same conclusion was reached in Wilson v Canada (Registrar
of the Indian Registry) (1999), 71 BCLR (3d) 145, at para 79 (SC).
[55]
Applying
the jurisprudence discussed above to the Plaintiffs’ claims, it is clear that,
in the particular factual matrix of this case, the Crown did not owe to the
Plaintiffs any of the fiduciary obligations to which the Plaintiffs claim the
Defendant was subject.
[56]
None
of the hallmarks of a fiduciary relationship that are identified in that
jurisprudence were present in the relationship that existed between the
Plaintiffs, as represented by their mother, and the Department.
[57]
In
brief, counsel to the Plaintiffs conceded that, once the Registrar received the
executed Statutory Declarations of paternity from Mrs. Potskin and Neil Morin,
the Registrar had no discretion as to whether to transfer the Plaintiffs from
the Sawridge Band to the Enoch Band (Court Transcript, at pp. 183, 203 and
241).
[58]
Moreover,
throughout the history of this matter, the Registrar and other representatives
of the Department who were involved were simply exercising public law duties
that were not “in the nature of a private law duty” and that did not originate
“in a private law context” (Wewaykum, above, at paras 85 and 96).
[59]
I
am satisfied that, throughout their involvement in this matter, the Registrar
and other representatives of the Department were simply acting in accordance
with their responsibilities under the Former Act, such that they could not be
said to have breached any fiduciary duty towards the Plaintiffs (Ermineskin,
above, at para 128; Fairford, above, at para 63).
[60]
As
in Sam, above, the Department was an uninterested participant throughout
its dealings with the Plaintiffs and their parents. In this context, the
above-quoted comments made by the Federal Court of Appeal in Tsartlip
apply with equal force. In short, the Department appears to have been caught
between competing interests of the Plaintiffs and the Sawridge Band. The
Department had no interest in the outcome of the matter, namely, whether the
Plaintiffs remained on the Band List of the Sawridge Band or were transferred
to the Band List of the Enoch Band, as contemplated by section 10 of the Former
Act. The Department did not stand to gain any benefit from the transfer of the
Plaintiffs to the Enoch Band. In addition, there was no adversarial relationship
between the Department and the Plaintiffs, the Sawridge Band or the Enoch Band.
[61]
The
Plaintiffs attempted to support their position by relying statements made by
the Supreme Court in Haida Nation v British Colombia (Minister of
Forests),
[2004] 3 S.C.R. 511, at para 43. However, that part of the Court’s decision dealt
with the scope of the Crown’s duty to consult and accommodate, in
connection with unresolved land claims. In that regard, it was held that
the content of that duty “varies with the circumstances” (para 39). The
Court then proceeded to state: “At one end of the spectrum lie cases where the
claim to title is weak, the Aboriginal right limited, or the potential for
infringement minor. In such cases, the only duty on the Crown may be to give
notice, disclose information, and discuss any issues raised in response to the
notice” (Haida, above, at para 43). Earlier in that case, it was
specifically determined that “[t]he Aboriginal interest in question is
insufficiently specific for the honour of the Crown to mandate that the Crown
act in the Aboriginal Group’s best interest, as a fiduciary, in exercising
discretionary control over the subject of the right or title” (Haida,
above, at para18). Accordingly, that case does not assist the Plaintiffs.
[62]
In
summary, based on all of the foregoing, I find that, subsequent to its receipt
of the Statutory Declarations signed by the Plaintiffs’ parents, the Department
did not owe to the Plaintiffs any of the fiduciary obligations described at
paragraph 28 above.
B. Did the Defendant
breach the fiduciary duty it owed to the Plaintiffs?
[63]
Given
my conclusions in Part IV.A above, it follows that the Defendant did not breach
any of the fiduciary obligations that the Plaintiffs claimed were owed to them.
[64]
In
short, there is no persuasive evidence that the Registrar or anyone else in the
Department was aware that steps were being taken to effect the transfer of the
Plaintiffs from the Sawridge Band to the Enoch Band until March 29, 1983, approximately
one year after Harriet Potskin and Neil Morin signed the Statutory Declarations
of paternity. So, even assuming, to put the matter in the best possible light
for the Plaintiffs, that the Registrar owed fiduciary duties to advise the
Plaintiffs’ parents of the potential adverse financial consequences that might
be associated with signing those Statutory Declarations, and that it was open
to them to refrain from signing those documents, the Registrar was never in a
position in which those duties could be exercised on behalf of the Plaintiffs.
In these circumstances, it cannot be said that those fiduciary duties were
breached, assuming that they even existed.
[65]
For
the reasons discussed in Part IV.A above, once the Statutory Declarations of
paternity were signed, the Registrar did not have a fiduciary obligation to
advise the Plaintiffs or their parents of either: (i) the potential adverse
financial consequences that could result from the transfer of the Plaintiffs
from the Sawridge Band to the Enoch Band; or (ii) their right to protest the
transfer, pursuant to subsection 9(3) of the Former Act, within the three month
time period set forth in that provision. Accordingly, the Registrar’s failure
to provide such advice did not constitute a breach of any fiduciary duty.
[66]
Even
if the Registrar had recognized that the Plaintiffs might be adversely impacted
financially by virtue of being transferred from the Sawridge Band to the Enoch
Band, the Registrar would not have breached any fiduciary duty that may have
been owed to the Plaintiffs, by simply directing that such transfer occur. In
acting as he did, the Registrar simply fulfilled the responsibilities that were
contemplated by sections 10, 11 and 16 of the Former Act.
[67]
Specifically,
once the Registrar was satisfied that Neil Morin was the natural father of the
Plaintiffs, section 10 and paragraph 11(1)(d) of the Former Act contemplated
that the Plaintiffs should be transferred to his band, namely, the Enoch Band.
In addition, subsections 16(2) and (3) explicitly and implicitly contemplated
that the Plaintiffs were not entitled to any interest in the lands or moneys
held by the Crown on behalf of the Sawridge Band. Moreover, as counsel to the
Plaintiffs conceded during the trial of this matter, the plain wording of
subsection 16(1) is inconsistent with the Plaintiffs’ initial claim that they
were entitled, under subsection 15(3) of the Former Act, to receive a share of
the Sawridge Band’s monies, upon their ceasing to be members of that band.
[68]
The
evidence suggests that the Department’s interpretation of these provisions in
the Former Act was consistent with the interpretation and policies that it
maintained prior and subsequent to the execution of the Statutory Declarations
by the Plaintiffs’ parents (Agreed Exhibit Book, Exhibits #1, 2, 16, 17, 23,
28, 34, 36, 38 and 41). That interpretation also was consistent with the legal
advice received by the Department, after Mrs. Potskin’s inquiries prompted
local officials who were unaware of the Department’s position regarding the
aforementioned provisions of the Former Act to request clarification from the
Department’s head office in Ottawa.
[69]
There
was nothing in the Former Act that required the Registrar or anyone else in the
Department to advise the Plaintiffs or their parents of: (i) the financial
consequences of being transferred from the Sawridge Band to the Enoch Band; or
(ii) their right to protest that transfer, pursuant to subsection 9(3) of the
Former Act. There was also nothing in the Former Act that required the consent
of either the person(s) being transferred or the Bands involved in the
transfer.
[70]
Indeed,
Mrs. Potskin was well aware of at least some of the adverse financial
consequences that would be associated with such a transfer, because, for a
period of time in early 1982, she was receiving monthly payments from both the
Sawridge Band and the Enoch Band. As discussed above, those payments were
approximately $100 and $25 per person, respectively. It was the receipt of
these payments from both Bands that prompted her to make the inquiries which,
in turn, led the Enoch Band to request that she and Neil Morin sign the
Statutory Declarations that led to the official transfer of the Plaintiffs to
the Enoch Band.
[71]
During
the trial, counsel to the Plaintiffs kept returning to Mrs. Potskin’s
allegation that Mr. Fennell and Chief Twim represented to her that a portion of
the Plaintiffs’ per capita share interest in the Sawridge Band would be
placed in trust for the Plaintiffs until they reached the age of majority. When
pressed as to the relevance of that allegation for the purposes of these
proceedings, he suggested that it could be inferred from this that the
Department was aware that “something was going on with Mrs. Potskin that [it]
ought to be getting involved with” (Court Transcript, at pp. 222-223). However,
the only “evidence” that he identified to support this assertion was a document
from another file, involving Mrs. Potskin’s sister and her nephews.
[72]
That
document was a letter from the Registrar, dated February 1, 1984, to Mr.
Fennell in which the Registrar: (i) agreed with Mr. Fennell that, upon the
marriage of the parents of two of Harriet Potskin’s nephews, he would “have to
transfer [the nephews] from the Sawridge Band to [their father’s band] under
the provisions of section 10 of the Indian Act”; and (ii) stated that, “in such
an instance, an appropriate portion of per capita share of the Sawridge Band
also becomes transferable to the [father’s band] as provided by section 15 of
the Indian Act.” In my view, that letter does not provide any
persuasive support whatsoever for the claim that the Department was aware that
“something was going on with Mrs. Potskin [and the Plaintiffs that the
Department] ought to be getting involved with.” That letter involved Mrs.
Potskin’s nephews, rather than the Plaintiffs, and post-dated, by almost two
years, the point in time at which Mrs. Potskin and Neil Morin signed their
Statutory Declarations. As to the reference in the letter to section 15, it may
well have simply been a typographical error. In any event, it has little, if
any, import for the case at bar.
[73]
Counsel
to the Plaintiffs attempted to rely on another document from the file of Mrs.
Potskin’s nephews, to support the claim that the Department should have advised
Mrs. Potskin that she was not obliged to sign a Statutory Declaration of
paternity. However, unlike her sister, who approached the Department to inquire
as to the potential consequences of signing such a declaration, Mrs. Potskin
made no such similar approach to the Department prior to signing her Statutory
Declaration. As discussed above, the Department did not know anything about
this matter until after Mrs. Potskin and Neil Morin signed their Statutory
Declarations.
[74]
Moreover,
the Department did not advise Mrs. Potskin’s sister that she was not obliged to
sign a Statutory Declaration of paternity. It simply stated that if Statutory
Declarations were provided by both parents, the Department would be obliged to
report their children’s transfer to their father’s band, subject to one
exception, namely, where the children were found to be not entitled to to be
registered (Exhibit 36).
[75]
In
passing, I should add that I have great difficulty with the suggestion that it
might be possible for the Department to breach a fiduciary obligation owed to
the Plaintiffs, by failing to advise their mother as to how she might avoid the
application of the law. This is particularly so given that: (i) Dalvin Potskin
and Mrs. Potskin appear to have accepted, in examination for discovery and
testimony, respectively, that Neil Morin is the natural father of the Plaintiffs;
and (ii) the only other evidence regarding the paternity of the Plaintiffs
suggests that Mr. Morin is in fact the Plaintiffs’ natural father. At no time
did Mrs. Potskin or Dalvin Potskin ever take the opportunity to raise any doubt
on this point.
[76]
In
summary, I find that the Defendant did not breach any fiduciary obligation owed
to the Plaintiffs by failing to advise them or their parents of either: (i) the
potential adverse financial consequences that could result from the transfer of
the Plaintiffs from the Sawridge Band to the Enoch Band; or (ii) their right to
protest the transfer, pursuant to subsection 9(3) of the Former Act.
[77]
There
was no exploitation, wrongdoing, misconduct, disloyalty, lack of good faith or
even-handedness, ineptitude or other behaviour that could be said to be
tantamount to a breach of confidence or that otherwise might provide the basis
for this Court to find that the Defendant breached any fiduciary obligation
that the Defendant may have owed to the Plaintiffs in respect of their economic
interests (Guerin, above, at 383; Wewaykum, above, at paras 80
and 95). The Registrar simply acted in accordance with his statutory
responsibilities (Ermineskin, above, at para 128; Fairford,
above, at para 63; Tsartlip, above, at para 35; Sam, above, at
para 67).
C.
Did the Plaintiffs initiate this action beyond the applicable limitation
period?
[78]
It
was common ground between the parties that, pursuant to the Crown Liability
and Proceedings Act, RSC 1985, c C-50, ss 24 and 32, and the Federal
Courts Act, RSC 1985, c F-7, s 39, the applicable limitation period in this
case is that which is established by the laws of Alberta (Court Transcript, p.
287).
[79]
The
Plaintiffs filed their Statement of Claim on July 10, 2001. They submit that
this action was brought within the applicable limitation period, because the
Defendant continued to reassess its position regarding the interplay between
subsection 15(3) and section 16, until February 5, 2001, when it finally
provided a definitive response regarding its position. I disagree.
[80]
On
examination for discovery, Mrs. Potksin stated as follows:
I’ve been trying to do this lawsuit forever. I started it,
like in 1989 and procrastinated, left it alone for a few years; and strated [sic]again
with Tony Mandamin and then kind of left it alone. And finally got serious
about this, yes. And I gathered a little bit of information and then lose [sic]
the paperwork again.
[81]
The
foregoing passage indicates that Mrs. Potskin was well aware, at least as early
as approximately 1989, that she had a potential cause of action in respect of
the claims that are the subject of this action.
[82]
In
any event, on December 10, 1993, Mr. Jim Sisson, the Acting Director of the
Lands and Trust Services Branch of the Department’s Alberta Region, confirmed
in writing the verbal response that he gave to Mrs. Potskin on December 2,
1993. In his letter, he explained that her file had been forwarded to Ottawa
for review and that it had been determined by officials in Ottawa that the
Plaintiffs “were not entitled to a share of Sawridge Band Indian moneys in
respect to [sic] their transfer of band membership.” Mr. Sisson also
explained that subsection 15(3) of the Former Act had no application to a minor
who transferred into another Band pursuant to subsection 16(1), and that the
Plaintiffs fell within the scope of the latter provision.
[83]
In
my view, as of the date of that letter from Mr. Sisson, Mrs. Potskin, on behalf
of the Plaintiffs, ought to have been able to determine whether the Plaintiffs
had a potential cause of action in respect of this matter, by exercising
reasonable due diligence and retaining counsel (Canada (Attorney General) v
Lameman, [2008] 1 S.C.R. 372, at para 16; Central Trust Co v Rafuse,
[1986] 2 S.C.R. 147, at 224; Stack v Hildebrand, 2010 ABCA 108, at para 14).
[84]
If
I am wrong on this point, then, at the very latest, the Plaintiffs discovered
that they had a potential cause of action when they retained legal counsel, in
1994 or early 1995. On January 25, 1995, their former legal counsel, Mr. Tony
Mandamin, wrote to the Department to advise that he was advancing a claim on
behalf of the Defendants. In his letter, Mr. Mandamin stated that: (i) the claim
was for the funds the Plaintiffs should have received upon their transfer from
the Sawridge Band to the Enoch Band; (ii) the Crown, through the Minister and
his officials, stood in a fiduciary relationship with the Plaintiffs; and (iii)
the Crown was obligated to protect their interests. Mr. Mandamin elaborated on
this position in a more detailed letter dated March 22, 1995.
[85]
At
the end of the latter letter, Mr. Mandamin: (i) stated that he understood that
the Department was reconsidering the matter “in conjunction with Justice
Department lawyers”; and (ii) requested that his letter be forwarded to those
lawyers, so that they could give consideration to the “fiduciary and trust
issues arising in this case.” Even if I were to agree with the Plaintiffs’
position that the applicable limitation period did not start to run until the
Defendant reached a definitive position on this matter and communicated that
position to the Plaintiffs, I find that this occurred on June 28, 1995. In a
letter written to Mr. Mandamin, dated July 28, 2005, Mr. Gregor MacIntosh,
Director General of the Registration, Revenues and Band Governance Branch at
the Department’s headquarters in Ottawa, confirmed the advice
that he stated was provided to Mr. Mandamin verbally on June 28, 1995. That
advice was that the Plaintiffs were not entitled to any Sawridge Band monies as
a result of their transfer to the Enoch Band.
[86]
The
Plaintiffs’ current counsel claims that the Department continued to reassess
its position until February 5, 2001. I disagree. In response to letters that he
wrote to the Department on June 9, 2000 and December 8, 2000, Mr. Daniel Kumpf,
an official in the Department’s Alberta Region, stated:
Please be advised that my staff consulted with our
Indian Moneys Directorate in Ottawa on this issue. As indicated in Susan Weston’s June
30, 1995 correspondence (copy attached) a reassessment of this issue was
completed. As a result of this review, the department’s position remains
unchanged from our position set out in the letter dated July 28, 1995 from
Gregor MacIntosh to Tony Mandamin (copy attached).
[87]
In
my view, it is clear from the foregoing passage that the last internal
reassessment of the Department’s position took place in June 1995. As I have
noted above, that position was communicated to Mr. Mandamin on June 28, 1995.
Accordingly, even if I were to accept the Plaintiffs’ position that the
applicable limitation period did not start to run until the Department finished
reassessing its position regarding the interplay between subsection 15(3) and
section 16 of the Former Act, that date would be June 28, 1995. The Statement
of Claim in this matter was filed more than six years after that date.
[88]
The
date upon which the last of the Plaintiffs reached the age of majority in Alberta was on April
19, 1999, which is more than two years before their Statement of Claim was
filed.
[89]
Therefore,
even under the former Limitation of Actions Act, RSA 1980, c L-15, this
action was statute-barred.
[90]
However,
the applicable limitation period is now set forth in the Limitations Act,
RSA 2000, c L-12, which was proclaimed into force on March 1, 1999. Pursuant to
section 2 of that legislation, the limitation period in this matter expired by
the earlier of:
i.
June
28, 2001, which is six years after the latest date by which the Plaintiffs
ought to have known that they had a potential cause of action, and is the most
favourable date under the Limitation of Actions Act, above; and
ii. March 1,
2001, which is two years after the Limitations Act, above, came into
force.
[91]
Subsections
2(1) and 2(2) of the Limitations Act, above, set forth the transitional
provisions applicable to causes of action arising before March 1, 1999. Those
provisions state:
Limitations Act, RSA 2000, c. L-12
Application
2(1)
This Act applies where a claimant seeks a remedial order in a proceeding
commenced on or after March 1, 1999, whether the claim arises before, on or
after March 1, 1999.
(2)
Subject to sections 11 and 13, if, before March 1, 1999, the claimant knew, or
in the circumstances ought to have known, of a claim and the claimant has not
sought a remedial order before the earlier of
(a)
the time provided by the Limitation of Actions Act, RSA 1980 cL-15, that
would have been applicable but for this Act, or
(b)
two years after the Limitations Act, SA 1996 cL-15.1, came into force,
the
defendant, on pleading this Act as a defence, is entitled to immunity from
liability in respect of the claim.
(2.1) With respect to a claim for the recovery of possession
of land as defined in the Limitation of Actions Act, RSA 1980 cL-15, subsection (2) shall be read without
reference to clause (b) of that subsection.
(3) Except as provided in subsection (4), this Act is
applicable to any claim, including a claim to which this Act can apply arising
under any law that is subject to the legislative jurisdiction of the Parliament
of Canada, if
(a) the remedial order is sought in a proceeding before a
court created by the Province, or
(b) the claim arose within the Province and the remedial
order is sought in a proceeding before a court created by the Parliament of
Canada.
(4) This Act does not apply where a claimant seeks
(a) a remedial order based on adverse possession of real
property owned by the Crown, or
(b) a remedial order the granting of which is subject to a
limitation provision in any other enactment of the Province.
(5) The Crown is bound by this Act.
[92]
Accordingly,
it is clear that the applicable limitation period in this matter expired on
March 1, 2001, before the Statement of Claim was filed by the Plaintiffs. This
action is therefore statute-barred, even on a view of the facts that is the
most favourable to the Plaintiffs.
V. Procedural
Issues
[93]
Just
before the Plaintiffs closed their case at trial, they verbally sought leave to
amend their pleadings, pursuant to Rule 201 of the Federal Courts Rules,
SOR/98-106. In short, they sought to amend their pleadings to add the Enoch
Band as a party to the proceedings. They wanted to do this to enable the Plaintiffs
to claim, on behalf of the Enoch Band, the monies that the Enoch Band should
have received from the Sawridge Band, pursuant to subsection 16(1) of the
Former Act, when the Plaintiffs were transferred from the latter to the former.
[94]
I
rejected the Plaintiffs’ request from the Bench, on the basis that I was
inclined to agree with the Defendant’s position that it would suffer
substantial prejudice if the amendment were allowed. I added that I did not
believe that it would be appropriate to allow the amendment in the circumstances.
[95]
Those
circumstances were essentially those that were identified by the Defendant.
These included the following: (i) the Plaintiffs gave no indication during the
pre-trial conference or at the outset of the trial that this potential amendment
might be sought; (ii) no discovery had been conducted in respect of the issue
of why the Enoch Band had not received from the Sawridge Band the payment
contemplated by subsection 16(1); (iii) no party led evidence in respect of
that issue; (iv) there was no document from the Enoch Band authorizing the
Plaintiffs to seek that payment on behalf of the Enoch Band; (v) there was no
evidence that the Plaintiffs had even consulted with the leadership of the
Enoch Band in respect of this issue; and (vi) the Enoch Band appears to have
had the opportunity to join this lawsuit as long ago as 1998, when one of the
Plaintiffs’ parents discussed this lawsuit with representatives of the Band,
which subsequently extended a loan to enable the Plaintiffs to retain their current
counsel.
[96]
Based
on the foregoing, it would not have been in the interest of justice to permit
the proposed amendment. In my view, such an amendment would have resulted in
severe prejudice to the Defendant that would not have been compensable by a cost
award (Maurice v Canada (Minister of Indian
Affairs and Northern Development), 2004 FC 528, at paras 10-11; Rule 76).
[97]
After
the Plaintiffs closed their case and had addressed all issues with the
exception of whether this action was statute-barred, their counsel asked for
leave to adduce into the evidentiary record three additional documents. Prior
to that time, he had not disclosed the documents, which he stated had just been
found over the lunch period that day, to counsel to the Defendant. After briefly
exploring whether any of those documents might be particularly relevant, such
that it might be contrary to the interests of justice to refuse the Plaintiffs’
request, I upheld the Defendant’s objection to that request.
[98]
In
short, I agree with the Defendant that Rule 232(1) contemplates that the Court
should not allow a party to adduce documents into evidence that fail to meet
one of the three requirements set forth therein, or that fail to meet the
exception set forth in Rule 232(2), unless it would be in the interest of
justice or otherwise appropriate to grant the party’s request. In the case of
the three documents sought to be adduced by the Plaintiffs, I am not persuaded
that it would have been in the interest of justice or otherwise appropriate to
grant the Plaintiffs’ request, particularly given (i) the very late stage in
the proceedings at which the request was made; (ii) the prejudice that would be
caused to the Defendant; and (iii) the very limited, if any, relevance of the
documents to the issues that then remained in this case.
VI. Conclusion
[99]
The
Plaintiffs clearly suffered at least some adverse financial consequences, such
as reduced monthly royalty payments, as a result of their transfer from the
Sawridge Band to the Enoch Band. However, those consequences flowed directly
from the Registrar’s application of the Former Act. In short, section 10 of the
Former Act required the minor children of a male Aboriginal to be registered on
the same Band List as their father.
[100] In these
circumstances, even if the Registrar could be said to have owed a general
fiduciary duty to protect the Plaintiffs’ economic interests, he did not breach
that duty by (i) directing the transfer of the Plaintiffs from the Sawridge
Band to the Enoch Band; (ii) failing to advise the Plaintiffs’ parents of the
potential adverse financial consequences associated with signing the Statutory
Declarations of paternity; (iii) failing to advise the Plaintiffs’ parents that
it was open to them to refrain from signing those documents; or (iv) failing to
advise the Plaintiffs’ parents of their right to protest the transfer, pursuant
to subsection 9(3) of the Former Act.
[101] Moreover, this
action was brought beyond the applicable limitation period. As such, it is
statute-barred.
[102] This action
is, therefore, dismissed with costs to the Defendant.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This action
is dismissed with costs to the Defendant; and,
2. The style of
cause in this matter shall be amended to reflect the correct spelling of the
Plaintiffs’ names, as indicated in the style of cause above.
“Paul S. Crampton”
_______________________
Judge
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