SUPREME
COURT OF CANADA
Between:
Chief
Sheldon Taypotat, Michael Bob, Janice McKay, Iris Taypotat
and
Vera Wasacase as Chief and Council Representatives
of
the Kahkewistahaw First Nation
Appellants
and
Louis
Taypotat
Respondent
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner and Gascon JJ.
Reasons
for Judgment:
(paras. 1 to 35)
|
Abella J. (McLachlin C.J. and Cromwell,
Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
|
Kahkewistahaw
First Nation v. Taypotat, 2015 SCC 30, [2015]
2 S.C.R. 548
Chief Sheldon Taypotat, Michael Bob,
Janice McKay,
Iris Taypotat and Vera Wasacase as Chief
and Council
Representatives
of the Kahkewistahaw First Nation Appellants
v.
Louis Taypotat Respondent
Indexed as: Kahkewistahaw First Nation v. Taypotat
2015 SCC 30
File No.: 35518.
2014: October 9; 2015: May 28.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner and Gascon JJ.
on appeal from the federal
court of appeal
Constitutional
law — Charter of Rights — Right to equality — Elections — Eligibility
requirements — Kahkewistahaw Election Act requires that candidates for Chief or
Band Councillor have Grade 12 education — Whether education requirement
violates s. 15(1) of Canadian Charter of Rights and Freedoms — Kahkewistahaw
Election Act, s. 9.03(c).
In
the 1996 Report of the Royal Commission on Aboriginal Peoples, education was
identified as a top priority for promoting collective and individual well-being
in Aboriginal communities, and for helping those communities prepare to assume
the complete range of responsibilities associated with self-government. In
response to these goals — promoting good governance and encouraging education —
the Kahkewistahaw First Nation in Saskatchewan spent 13 years developing an
Election Code which included a Grade 12 education requirement for
candidates who wished to be Chief or a Band Councillor. Louis Taypotat, who had
been Chief for most of the previous three decades, was 76 years old and had a
Grade 10 education. Despite the fact that he was Chief for much of the
consultation process that led to the development of the new Election Code, he
challenged the process, his disqualification and the constitutionality of the
Grade 12 requirement. Only the constitutional issue is before this Court. His
argument was that the Grade 12 educational requirement violated s. 15(1) of the
Canadian Charter of Rights and Freedoms because “educational attainment
is analogous to race and age” for the purposes of s. 15(1) . In the Federal
Court, de Montigny J. dismissed the application. The Federal Court of Appeal
allowed the appeal. The grounds on which it based its decision, age and
residence on a reserve, were not pleaded.
Held: The appeal should be allowed and the decision of de Montigny J.
restored.
The
approach to s. 15 was most recently set out in Quebec (Attorney General) v.
A, [2013] 1 S.C.R. 61, at paras. 319-47. It requires a flexible and
contextual inquiry into whether a distinction has the effect of perpetuating
arbitrary disadvantage on the claimant because of his or her membership in an
enumerated or analogous group. It is an approach which recognizes that
persistent systemic disadvantages have operated to limit the opportunities
available to members of certain groups in society and seeks to prevent conduct
that perpetuates those disadvantages. The focus of s. 15 is on laws that draw discriminatory
distinctions — that is, distinctions that have the effect of perpetuating
arbitrary disadvantage based on an individual’s membership in an enumerated or
analogous group. The s. 15(1) analysis is accordingly concerned with
substantive equality.
The
first part of the s. 15 analysis asks whether a law creates a distinction on
the basis of an enumerated or analogous ground. The second part of the analysis
focuses on arbitrary — or discriminatory — disadvantage, that is, whether the
impugned law fails to respond to the actual capacities and needs of the members
of the group and instead imposes burdens or denies a benefit in a manner that
has the effect of reinforcing, perpetuating or exacerbating their disadvantage.
To
establish a prima facie violation of s. 15(1) , the claimant must
therefore demonstrate that the law at issue has a disproportionate effect on
the claimant based on his or her membership in an enumerated or analogous group.
At the second stage of the analysis, the specific evidence required will vary
depending on the context of the claim.
While
facially neutral qualifications like education requirements may well be a proxy
for, or mask, a discriminatory impact, this case falls on the absence of any
evidence linking the requirement to a disparate impact on members of an
enumerated or analogous group. There is virtually no evidence about the
relationship between age, residency on a reserve, and education levels in the
Kahkewistahaw First Nation. Nor is there any evidence about the effect of the
education provisions on older community members, on community members who live
on a reserve, or on individuals who belong to both of these groups. Most
significantly, the record is silent about the education levels of members of
the Kahkewistahaw First Nation who live on a reserve.
Statistical
evidence is not always required to establish that a facially neutral law
infringes s. 15. In some cases, the disparate impact on an enumerated or
analogous group will be apparent and immediate. The evidence in this case,
however, does not point to any such link between the education requirement and
a disparate impact on the basis of an enumerated or analogous ground. While the
evidentiary burden need not be onerous, the evidence must amount to more than a
web of instinct. Accordingly, the education provisions in the Kahkewistahaw
Election Act do not represent a prima facie violation of s. 15.
Cases Cited
Applied:
Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; referred
to: Withler v. Canada (Attorney General), 2011 SCC 12, [2011]
1 S.C.R. 396; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143; Corbiere
v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R.
203; Law v. Canada (Minister of Employment and Immigration), [1999] 1
S.C.R. 497; Griggs v. Duke Power Co., 401 U.S. 424 (1971); British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 15 .
Civil Rights Act of 1964, Pub. L. 88-352,
78 Stat. 241 (1964), Title VII.
Indian Act, R.S.C. 1985, c. I-5 .
Kahkewistahaw Election Act [en. pursuant
to the Order Amending the Indian Bands Council Elections Order
(Kahkewistahaw), SOR/2011-49], ss. 9.03(c), 9.04, 9.05, 10.01(d).
Authors Cited
Canada. Royal Commission on Aboriginal Peoples. Report of the
Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength.
Ottawa: The Commission, 1996.
Canada. Statistics Canada. Educational Portrait of Canada, 2006
Census. Ottawa: Minister of Industry, 2008.
Richards, John. Closing the Aboriginal/non-Aboriginal Education
Gaps. C.D. Howe Institute Backgrounder 116 (online:
https://www.cdhowe.org/), 2008.
Smith, Lynn, and William Black. “The Equality Rights” (2013), 62 S.C.L.R.
(2d) 301.
APPEAL
from a judgment of the Federal Court of Appeal (Blais C.J. and Mainville and
Near JJ.A.), 2013 FCA 192, 447 N.R. 352, 365 D.L.R. (4th) 485, [2014] 1
C.N.L.R. 375, [2013] F.C.J. No. 938 (QL), 2013 CarswellNat 3091 (WL Can.), setting
aside a decision of de Montigny J., 2012 FC 1036, 417 F.T.R. 160, 268 C.R.R.
(2d) 77, [2013] 1 C.N.L.R. 349, [2012] F.C.J. No. 1125 (QL), 2012 CarswellNat
3389 (WL Can.). Appeal allowed.
Eugene Meehan, Q.C., Marie-France Major, James D. Jodouin and Marcus R. Davies, for the appellants.
Mervin C. Phillips and Leane Phillips, for the respondent.
The judgment of the court was
delivered by
[1]
Abella J. — In the 1996 Report of the Royal
Commission on Aboriginal Peoples, education was identified as a top priority
for promoting collective and individual well-being in Aboriginal communities,
and for helping those communities prepare to assume the complete range of
responsibilities associated with self-government:
In our public hearings,
Aboriginal parents, elders, youth and leaders came forward to tell us of the
vital importance of education in achieving their vision of a prosperous
future. Education is seen as the vehicle for both enhancing the life of the
individual and reaching collective goals.
. . .
Over the past two
decades, as the determination to re-establish self-governing nations has
gathered momentum, Aboriginal people have repeatedly stressed the importance of
building their capacity to operate contemporary self-governing structures. . . .
. . .
. . .
Education is essential to hone the talents needed to assume the
responsibilities of the present and future . . . .
(Report
of the Royal Commission on Aboriginal Peoples, vol. 3, Gathering
Strength (1996), at pp. 433 and 540-41)
[2]
In response to these aspirational goals —
promoting good governance and encouraging education — the Kahkewistahaw First
Nation in Saskatchewan spent 13 years developing an Election Code which
included a Grade 12 requirement for candidates who wished to be Chief or a Band
Councillor. This had the effect of preventing Louis Taypotat, who had been
Chief for most of the previous three decades, from running again for office.
Despite the fact that he was Chief for much of the consultation process that
led to the development of the new Election Code, he challenged the process, his
disqualification and the constitutionality of the Grade 12 requirement. The
only remaining issue in this appeal is the constitutional challenge.
Background
[3]
The Department of Indian Affairs and Northern
Development has an established process by which First Nations communities who
have been subject to the election provisions of the Indian Act, R.S.C.
1985, c. I-5 , can elect their leaders under their own Election Codes. Before
the Minister authorizes a community to take this step, the community has to
prepare a written election code which meets certain minimum requirements,
including compliance with the Canadian Charter of Rights and Freedoms . A
majority of the voting members of the First Nation must be in favour of the
Code.
[4]
Louis Taypotat is 76 years old. He is a member
of the Kahkewistahaw First Nation, a community of approximately 2,000 people in
Saskatchewan. He has a Grade 10 education and received an honorary diploma
from the Saskatchewan Indian Institute of Technology in recognition of his
service to his community. He was the elected Chief of the Kahkewistahaw First
Nation for a total of more than 27 years — from 1973 to 1989, from 1992 to 1993
and from 1997 to 2007. His elections were held under the procedure set out in
the Indian Act .
[5]
In the late 1990s, the Kahkewistahaw First
Nation began the process of developing its own community Election Code. The
community consultation to develop and ratify the code took 13 years. Much of
the process, which was conducted publicly and openly, was under the guidance of
Louis Taypotat as Chief.
[6]
The first draft of the Code was developed in
1998. It included a provision that required candidates for Chief or Band
Councillor to have “formal education at a post-secondary level or equivalent
education/experience”. Subsequent drafts, including the final version,
specified that candidates are required to have at least a Grade 12 education: Kahkewistahaw
Election Act, s. 9.03(c). Candidates have to demonstrate to the
Electoral Officer that they have the requisite level of education before they
are permitted to run: Kahkewistahaw Election Act, s. 10.01(d).
[7]
The first ratification vote of the final version
of the Code, the Kahkewistahaw Election Act, was held in September 2008
while Louis Taypotat was Chief. Turnout was too low to reflect the support
required by the Department. A second ratification vote was held in March 2009.
Turnout was again too low to satisfy the Department. As a result, the
Department approved a “continuation vote” to supplement the second vote. In
order to ensure its integrity, only members who had not voted in the second
vote were eligible to vote in the continuation vote. It was held in January
2010.
[8]
The continuation vote resulted in the Kahkewistahaw
Election Act getting between 84 and 85 per cent approval. As a
result, the Department removed the Kahkewistahaw First Nation from the election
provisions of the Indian Act and authorized it to operate pursuant to
its own Kahkewistahaw Election Act on February 18, 2011.
[9]
The first election under the Kahkewistahaw
Election Act was scheduled for May 13, 2011. Louis Taypotat submitted documents
to enable him to run as a candidate for Chief, but the Electoral Officer
refused to certify his candidacy because he did not demonstrate that he had a
Grade 12 or equivalent level of education. His nephew, Sheldon Taypotat, who
had previously been elected as Chief in May 2009, in the last election held
under the Indian Act , became Chief.
[10]
Louis Taypotat brought an application for
judicial review of the Kahkewistahaw Election Act process. Of
particular relevance, he argued that the Grade 12 educational requirement
violated s. 15(1) of the Charter because “educational attainment is
analogous to race and age” for the purposes of s. 15(1) .
[11]
The Federal Court dismissed the application.
Justice de Montigny held that Louis Taypotat had produced no evidence to
demonstrate that education was an analogous ground for the purposes of s. 15 .
[12]
On appeal, Louis Taypotat advanced 10 separate
grounds. The newly formulated basis for his s. 15 submission, which had not
been raised in his application for judicial review to the Federal Court, was
that residential school survivors without a Grade 12 education constituted an
analogous group for the purposes of s. 15 .
[13]
Although it dismissed nine of the grounds for
appeal “without difficulty”, the Federal Court of Appeal allowed Mr. Taypotat’s
claim under s. 15 of the Charter . It did not deal explicitly with the
argument that residential school survivors without a Grade 12 education
constituted an analogous group for the purposes of s. 15 , but concluded
instead, even though it was not pleaded, that the education requirement had a
discriminatory impact on the basis of age. In addition, without anyone having
raised the issue, it found the education requirement discriminated on the basis
of “residence on a reserve”.
[14]
Before this Court, Louis Taypotat relied on the
Federal Court of Appeal’s conclusions to reformulate his s. 15 claim. He now
argues that the education requirement violates s. 15(1) because it has a
disproportionate effect on older community members who live on a reserve.
[15]
While facially neutral qualifications like
education requirements may well be a proxy for, or mask, a discriminatory
impact, this case falls not on the existence of the requirement, but on the
absence of any evidence linking the requirement to a disparate impact on
members of an enumerated or analogous group.
Analysis
[16]
The approach to s. 15 was most recently set out
in Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 319-47.
It clarifies that s. 15(1) of the Charter requires a “flexible and
contextual inquiry into whether a distinction has the effect of perpetuating
arbitrary disadvantage on the claimant because of his or her membership in
an enumerated or analogous group”: para. 331 (emphasis added).
[17]
This Court has repeatedly confirmed that s. 15
protects substantive equality: Quebec v. A, at para. 325; Withler v.
Canada (Attorney General), [2011] 1
S.C.R. 396, at para. 2; R. v. Kapp, [2008] 2 S.C.R.
483, at para. 16; Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143. It is an approach which recognizes that persistent systemic
disadvantages have operated to limit the opportunities available to members of
certain groups in society and seeks to prevent conduct that perpetuates those
disadvantages. As McIntyre J. observed in Andrews, such an
approach rests on the idea that not every difference in treatment will
necessarily result in inequality and that identical treatment may frequently
produce serious inequality: p. 164.
[18]
The focus of s. 15 is therefore on laws that
draw discriminatory distinctions — that is, distinctions that have the
effect of perpetuating arbitrary disadvantage based on an individual’s
membership in an enumerated or analogous group: Andrews, at pp.
174-75; Quebec v. A, at para. 331. The s. 15(1) analysis is
accordingly concerned with the social and economic context in which a claim of
inequality arises, and with the effects of the challenged law or action on the
claimant group: Quebec v. A, at para. 331.
[19]
The first part of the s. 15 analysis therefore
asks whether, on its face or in its impact, a law creates a distinction on
the basis of an enumerated or analogous ground. Limiting claims to enumerated
or analogous grounds, which “stand as constant markers of suspect decision
making or potential discrimination”, screens out those claims “having nothing
to do with substantive equality and helps keep the focus on equality for groups
that are disadvantaged in the larger social and economic context”: Corbiere
v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R.
203, at para. 8; Lynn Smith and William Black, “The Equality Rights”
(2013), 62 S.C.L.R. (2d) 301, at p. 336. Claimants may frame their
claim in terms of one protected ground or several, depending on the conduct at
issue and how it interacts with the disadvantage imposed on members of the
claimant’s group: Law v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497, at para. 37.
[20]
The second part of the analysis focuses on
arbitrary — or discriminatory — disadvantage, that is, whether the impugned law
fails to respond to the actual capacities and needs of the members of the group
and instead imposes burdens or denies a benefit in a manner that has the effect
of reinforcing, perpetuating or exacerbating their disadvantage:
The root of s. 15 is our awareness
that certain groups have been historically discriminated against, and that the
perpetuation of such discrimination should be curtailed. If the state conduct
widens the gap between the historically disadvantaged group and the rest of
society rather than narrowing it, then it is discriminatory. [Quebec v. A,
at para. 332]
[21]
To establish a prima facie violation of
s. 15(1) , the claimant must therefore demonstrate that the law at issue has a
disproportionate effect on the claimant based on his or her membership in an
enumerated or analogous group. At the second stage of the analysis, the
specific evidence required will vary depending on the context of the claim, but
“evidence that goes to establishing a claimant’s historical position of
disadvantage” will be relevant: Withler, at para. 38; Quebec
v. A, at para. 327.
[22]
The question in this case is which “enumerated
or analogous group” faces discrimination, and whether Mr. Taypotat has
established that the education requirement set out in the Kahkewistahaw
Election Act has a disproportionate effect on the members of any such
group.
[23]
There is no question that education requirements
for employment could, in certain circumstances, be shown to have a
discriminatory impact in violation of s. 15 . In Griggs v. Duke Power Co.,
401 U.S. 424 (1971), for example, the United States Supreme Court concluded
that it was a violation of Title VII of the Civil Rights Act of 1964 for
an employer to require that employees have a high school diploma to work as,
among other things, a coal handler or in maintenance at a power plant. The
effect of this facially neutral requirement was to disproportionately exclude
African Americans from positions in the plant. The court concluded that:
. . . practices, procedures,
or tests neutral on their face, and even neutral in terms of intent, cannot be
maintained if they operate to “freeze” the status quo of prior discriminatory
employment practices. [p. 430]
As the court observed, employment
requirements that are unrelated to measuring job capability can operate as
“built-in headwinds” for minority groups, and will therefore be discriminatory:
p. 432. See also British Columbia (Public Service Employee Relations
Commission) v. BCGSEU, [1999] 3 S.C.R. 3.
[24]
In this case, however, there is virtually no
evidence about the relationship between age, residency on a reserve, and
education levels in the Kahkewistahaw First Nation to demonstrate the operation
of such a “headwind”. Nor is there any evidence about the effect of the
education provisions on older community members, on community members who live
on a reserve, or on individuals who belong to both of these groups.
[25]
That may well be because the bases on which the
Federal Court of Appeal decided the s. 15 issue — age and residence on a
reserve — were not pleaded by Louis Taypotat either in his judicial review
application or as a ground of appeal from the Federal Court to the Federal
Court of Appeal. The Federal Court of Appeal instead appears to have raised the
issues on its own initiative.
[26]
In R. v. Mian, [2014] 2 S.C.R. 689, at
para. 41, this Court clarified that an appellate court may only raise new
issues on its own initiative when failing to do so would risk an injustice. The
court must also be satisfied that there is a “sufficient basis in the record on
which to resolve the issue”: para. 51. The Federal Court of Appeal’s decision
to raise the issue of residence on a reserve on its own initiative is
particularly troubling because “residence on a reserve” has not been recognized
as an analogous ground for the purposes of s. 15 . Corbiere recognized off-reserve
residence as an analogous ground, but declined to address whether residence on
a reserve would similarly trigger the protection of s. 15 : paras. 6 and 62. The
Court’s recognition of off-reserve residence as an analogous ground in Corbiere
relied in part on the argument that First Nations people living off-reserve
have experienced unique disadvantages relative to community members living on a
reserve and that, for many, the decision to live off-reserve was either forced
or heavily constrained. With respect, I would be reluctant to impose a simple
mirror inference without argument or evidence from the parties.
[27]
In this case, there was no factual record to
support deciding the appeal as a violation of the s. 15 rights of community
members who live on a reserve. Most significantly, the record is silent about
the education levels of members of the Kahkewistahaw First Nation who live on a
reserve. The only evidence on the record dealing with education and residence
on a reserve covers First Nations persons between 20 and 24 in Saskatchewan as
a whole. The data does not address education levels among other age groups:
John Richards, Closing the Aboriginal/non-Aboriginal Education Gaps (2008)
(online) (the “C.D. Howe Report”), at p. 4.
[28]
Finally, even if it had been properly raised and
argued by the parties, I have serious doubts about the merits of the argument
that the education requirements in the Kahkewistahaw Election Act have
the effect of imposing arbitrary disadvantage on community members based on
their residence on the reserve. The Kahkewistahaw Election Act specifically
requires that the Chief and three of the four Councillors must reside on
the reserve during their term: ss. 9.04 and 9.05. Far from having the effect
of excluding community members who live on the reserve, the Kahkewistahaw
Election Act is specifically designed to foster their participation in
community governance. As a result, in the context of the Kahkewistahaw
Election Act as a whole, it is difficult to conclude that it has the effect
of perpetuating arbitrary disadvantage against these community members.
[29]
Accordingly, in my view the Court of Appeal
erred in concluding that the education provisions in the Kahkewistahaw
Election Act represent a prima facie violation of the s. 15 rights
of community members who live on the reserve.
[30]
Turning to the conclusion reached by the
Federal Court of Appeal that the education requirements discriminate against
older members of the community, we confront similar evidentiary vacuums. The
Federal Court of Appeal relied on two pieces of statistical evidence in support
of this conclusion. The first was data from the 2006 census, about which the
Federal Court of Appeal took judicial notice. That data showed that
15% of Canadians between the age
of 25 and 64 had less than a high school education. However, this number
increases considerably with age, ranging from 11% for 25-34 year olds to 23%
for 55-64 year olds: Statistics Canada, Educational Portrait of Canada,
2006 Census (Ottawa: Minister of Industry, 2008) at p. 10 (Catalogue number
97-560). [para. 52]
[31]
Census data can certainly be a useful
evidentiary tool to demonstrate that a law has a disadvantaging impact. But
this case is about a particular Election Code in a particular First Nations
community. I find it difficult to draw even a weak inference about the
correlation between age and education among the almost 2000 members of the
Kahkewistahaw First Nation from census data about the Canadian population
generally. As a result, in my respectful view, the Court of Appeal
erred in taking judicial notice of this data as a key to its conclusion that
the Kahkewistahaw First Nation’s Election Code would have a disadvantaging
effect on older community members.
[32]
The second statistical basis for the Federal
Court of Appeal’s finding was aggregate educational data in the C.D. Howe
Report dealing with all aboriginal people in Canada: pp. 4-5. The Federal Court
of Appeal used this data to conclude that the provision would have a
disproportionate impact on older community members in the Kahkewistahaw First
Nation. But the data relates to all Aboriginal people in Canada, including the
Métis, the Inuit, and First Nations. It is less helpful in shedding light on
the relationship between age and education in the specific context of the
members of the Kahkewistahaw First Nation. It captures a vastly larger, more
diverse population than the community affected by the Code in this case and
does not meaningfully illuminate whether and to what extent the Grade 12
education requirement functions to disadvantage older community members of the
Kahkewistahaw First Nation.
[33]
Finally, in his submissions before this Court,
Mr. Taypotat reframed the Federal Court of Appeal’s conclusion slightly,
asserting that the education provisions discriminate against older community
members who live on a reserve, rather than, as the Court of Appeal found,
against both older community members and those who live on the reserve.
On this issue, too, the record is silent and we are left only with Mr.
Taypotat’s bare assertion. This is not to say that statistical evidence is
invariably required to establish that a facially neutral law infringes s. 15 .
In some cases, the disparate impact on an enumerated or analogous group will be
apparent and immediate. The evidence in this case, however, does not point to
any such link between the education requirement and a disparate impact on the
basis of an enumerated or analogous ground.
[34]
I think intuition may well lead us to the
conclusion that the provision has some disparate impact, but before we put the
Kahkewistahaw First Nation to the burden of justifying a breach of s. 15 in its
Kahkewistahaw Election Act, there must be enough evidence to show a prima
facie breach. While the evidentiary burden need not be onerous, the
evidence must amount to more than a web of instinct. The evidence before us,
even in combination, does not rise to the level of demonstrating any
relationship between age, residence on a reserve, and education among members
of the Kahkewistahaw First Nation, let alone that arbitrary disadvantage
results from the impugned provisions.
[35]
I would therefore allow the appeal with costs
and restore the decision of de Montigny J.
Appeal
allowed with costs.
Solicitors for the
appellants: Supreme Advocacy, Ottawa; Bainbridge Jodouin Cheecham, Saskatoon.
Solicitors for the
respondent: Phillips & Co., Regina.