Docket: A-455-15
Citation:
2016 FCA 238
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CORAM:
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GAUTHIER J.A.
STRATAS J.A.
GLEASON J.A.
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BETWEEN:
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CHIEF RICHARD
HORSEMAN AND THE HORSE LAKE FIRST NATION
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Appellants
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
Chief Horseman and the Horse Lake First Nation
appeal from the decision of the Federal Court (2015 FC 1149) declining to
certify the Appellants’ proposed class action on the basis that they failed to
meet all the criteria set out in Rule 334.16 of the Federal Court Rules,
SOR/98-106. More particularly, the Federal Court concluded that the claims of
the class members did not raise a common question of law or fact pursuant to
Rule 334.16(1)(c) and the representative plaintiffs did not meet the
requirements of Rule 334.16(1)(e).
[2]
In their amended Notice of Appeal, the
Appellants state that:
1. The [Federal Court] erred in law in concluding that the issue,
of whether the annuity provision of each of the Numbered Treaties 1 to 11
provides for the right to receive an annuity payment that is adjusted annually
to account for inflation and changes in purchasing power, was not an issue that
was common to all members of the proposed class, as this conclusion is contrary
to the principles of commonality in class proceedings set out by the Supreme
Court of Canada in Vivendi Canada Inc., v. Dell’Aniello, 2014 SCC 1; and
2. The [Federal Court] erred in law concluding that the appellant
Chief Eugene Horseman was not an adequate representative plaintiff because the
[Federal Court] imposed a standard of knowledge for a representative plaintiff
about the law and a class proceeding that is not required for a person to act
as a representative plaintiff.
[3]
Although in their memorandum the Appellants made
brief arguments in respect of the other three common issues they had initially
proposed to the Federal Court, they rightly did not pursue them before us.
[4]
Absent an extricable question of law, the issue
of whether the claims raise a common question and the issue of the suitability
of a representative plaintiff (Rule 334.16(e)) are questions of mixed
fact and law involving an appreciation of the evidence on the motion and a
certain field-sensitivity in trial management on which deference is to be
accorded. These are reviewable on the standard of the palpable and overriding
error: Canada v. John Doe, 2016 FCA 191 at paras. 29, 31; Condon v.
Canada, 2015 FCA 159 at para. 7, 474 N.R. 300; Hospira Healthcare
Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paras. 69,
72, 78-79, 83.
[5]
On the common question issue, the Appellants
argued that there is an extricable error of law. They say that if the Federal
Court had applied the proper principles, it could not have reached the
conclusion that it did in respect of the first proposed common issue described in
paragraph 2 above.
[6]
I have not been persuaded that the Federal Court
made any error of law, extricable or otherwise, on this issue. It properly
identified all the principles and the applicable authorities, in particular all
the Supreme Court of Canada teachings the Appellants put to it, including the Vivendi
case mentioned in the amended Notice of Appeal.
[7]
The Federal Court rightly notes, in my view,
that what the Appellants seek goes beyond the nuanced approach confirmed in Vivendi
(and developed earlier in Rumley v. British Columbia, 2001 SCC 69, [2001]
3 S.C.R. 184). The Federal Court further notes that in Vivendi the
Supreme Court focused on the effects of the answer(s) to the common question
for each member of the class. It is evident that the Federal Court knew that
the answers discussed in Vivendi could be different for different
subgroups as Vivendi so clearly stated this. In any event, the concept
of subgroups is expressly set out in Rule 334.16 and the Federal Court is
presumed to be familiar with its own rules of procedure. Thus, I am not
prepared to infer that the Federal Court misconstrued the law merely because on
the facts before it, it came to a different conclusion from Vivendi. I
agree with the Respondent that the factual matrix in Vivendi is clearly
distinguishable. In that case, which involved a class proceeding instituted in
Quebec (which is a province known for its very broad provisions dealing with
class proceedings), only one contract (a pension plan) was in play. Here, the
Federal Court mentions that even if the question proposed by the Appellants is
one that could be common for the signatories of each of the individual Numbered
Treaties (which in my view could also involve subgroups), it does not mean that
it is a common question to all members involved in a class proceeding of the
scope proposed because it involves different “contracts”.
The Federal Court questions the commonality of the question itself. It was not
a reviewable error for the Federal Court to do so especially when one considers
that this case turns on whether there is an implied term in each of the
individual Numbered Treaties.
[8]
This is not only because of the two-step
approach that must be adopted when one construes a Treaty, but because the
proposed question necessarily involves, among other things, a highly factual determination
of the mutual intention of the parties, the purposes for which they each
entered into their individual Treaty and issues relating to the historical,
cultural and economic context surrounding each Treaty (R. v. Marshall,
[1999] 3 S.C.R. 456 at paras. 82-83, 177 D.L.R. (4th) 513). Overall, the
Federal Court found that the differences among the Treaties were such that the
broad common issue proposed in an attempt to connect them all would be
inappropriate for certification. I substantially agree with the analysis of the
Federal Court.
[9]
As noted by the Federal Court, these problems
would likely have been avoided if the scope of the class proceeding was limited
to a particular Numbered Treaty, as was done in earlier proceedings relating to
this matter in the Specific Claims Branch of the Department of Indian Affairs
and Northern Development. However, this is not the case before us. I conclude
that the Appellants have not established any palpable and overriding error that
would justify interfering with the Federal Court’s finding that the Appellants
have not met the mandatory requirement of Rule 334.16(1)(c).
[10]
On the issue of whether the individual representative
plaintiff met the requirements of Rule 334.16(1)(e), the Federal
Court set out in its reasons the relevant test to be applied. It was clearly
well aware that the threshold was low and included a specific reference to the
governing authority of Sullivan v. Golden Intercapital (GIC) Investments
Corp., 2014 ABQB 212 at paras. 54-57. The Federal Court found that the Respondent
established through cross-examination on affidavit that the proposed
representative plaintiff had no understanding of his role and responsibilities.
This finding is grounded in the evidence that was before the Federal Court. In
and of itself, it is sufficient to justify its conclusion even in the face of
the arguably overbroad characterization of the knowledge of the details of the
action that the Federal Court might seem to have required the representative
plaintiff to possess. Thus, I am not satisfied that the Federal Court made a
palpable and overriding error that would justify our intervention. I add that,
in any event, my conclusion that the Federal Court did not make a reviewable
error in concluding that the Appellants had not met the requirement of Rule 344.16(1)(c)
is sufficient to dispose of this appeal.
[11]
In the circumstances, there is no need for this
Court to discuss the comments the Federal Court made in obiter concerning
what would be the preferable procedure for this case within the meaning of Rule
334.16(1)(d).
[12]
In light of the foregoing and despite the very
able arguments of the Appellants’ counsel, I would dismiss this appeal.
“Johanne Gauthier”
“I agree
David Stratas J.A.”
“I agree
Mary J.L. Gleason J.A.”
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