Docket: T-1068-92
Citation:
2012 FC 915
Ottawa, Ontario, July
19, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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THE PEEPEEKISIS BAND as
represented by CHIEF ENOCH POITRAS, DWIGHT PINAY, ARTHUR DESNOMIE, ALLAN
BIRD,
JAMES POITRAS, PERRY McLEOD,
CLARENCE McNABB and
LAWRENCE DEITER, CHIEF AND COUNCILLORS
OF THE PEEPEEKISIS BAND No. 81
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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
INTRODUCTION
[1]
This is a motion by the Defendant under subsection 213(1) of the Federal
Courts Rules SOR/98-106 (Rules) for summary judgment on the grounds that
the Plaintiffs’ claim is fundamentally flawed and is time barred. The Defendant
also asks the Court to strike the Plaintiffs’ statement of claim under paragraph
221(1)(f) of the Rules as an abuse of process.
BACKGROUND
[2]
The Peepeekesis band (Band) is a band within the meaning of the Indian
Act RSC 1985 c I-5 (Indian Act) and within the meaning of Treaty 4.
The individual Plaintiffs are members of the Band and its Chief and Councilors.
Statement
of Claim
[3]
On 29 April 1992, the Plaintiffs filed a statement of claim in which
they allege the Defendant had diminished their reserve lands between 1897 and
1944. They allege that the Defendant subdivided their reserve without obtaining
their informed consent and that the subdivided land was transferred to members
who were unlawfully admitted to the Band (New Members). They say that contrary
to section 140 of the Indian Act, the New Members were added to the Band
by the Defendant without a majority vote of the Band or its council. In the
alternative, if the New Members were admitted by a majority vote, the
Plaintiffs say this vote was obtained by bribery, undue influence or other
unconscionable conduct which amounted to constructive fraud.
[4]
By unlawfully admitting the New Members, the Plaintiffs say that the
Defendant depleted the assets which had been held by original Band members
(Original Members) prior to the addition of the New Members. Under section 140
of the Indian Act, when a new member is added to a band, the new band is
entitled to a per-capita share of the capital held by the new member’s previous
band (Per-Capita Shares). The Band says it did not receive the Per-Capita
Shares of New Members when they were added to the Band as New Members.
[5]
The Plaintiffs also say that the Defendant breached its fiduciary duty
to the Band by alienating the Band’s lands to the New Members, adding the New
Members without the Band’s informed consent, and by bribing, unduly influencing,
and defrauding the Original Members. The Defendant also breached its fiduciary
duty by failing to properly administer the Band’s assets and by failing to
transfer the Per-Capita Shares to which the Band was entitled under section 140
of the Indian Act. The Defendant further breached its fiduciary duty by
failing to provide the Original Members with independent legal advice with
respect to the addition of the New Members to the Band. Finally, the Plaintiffs
say that the Defendant also breached its fiduciary duty to the Plaintiffs when
it depleted their assets by adding the New Members.
Procedural
History
[6]
On 8 December 1998, Justice John Richard ordered that this case be
exempted from section 380 of the Rules. This allowed the Plaintiffs to pursue
their claims through the Specific Claims Process (SCP) – a dispute resolution
process established by the Minister of Indian Affairs and Northern Development
(Minister). Justice Richard’s order was set to expire on 20 September 1999. The
Court extended this order several times until it finally expired on 30
September 2009 and was not extended again.
[7]
On 28 May 2004, the Indian Claims Commission – a body established by the
Minister under the SCP – recommended the claim be accepted for negotiation. The
Minister rejected this recommendation because he believed res judicata applied
to the issues raised in the Plaintiffs’ claim.
[8]
The Chief Justice of the Federal Court issued a Notice of Status Review
on 20 November 2009, after the Defendant indicated that the Plaintiffs had not
said they wanted to pursue their claim under the SCP. In their submissions in
response to the Notice of Status Review, the Plaintiffs requested that a case
management judge be appointed. The Defendant did not object to this request
and, on 28 January 2010, Prothonotary Tabib ordered the case to continue as a
specially managed proceeding. The Court assigned Prothonotary Tabib as the case
management judge on 26 February 2010.
[9]
The Plaintiffs filed an amended statement of claim on 21 July 2010
(Amended Statement of Claim) and the Defendant filed an amended statement of
defence (Amended Statement of Defence) on 2 September 2010.
[10]
The Defendant filed its motion for summary judgment on 18 November 2011
and the Plaintiffs filed their responding motion record on 30 December 2011.
Amended
Statement of Claim
[11]
In the Amended Statement of Claim, the Plaintiffs added allegations that
the Indian Agent responsible for their reserve in 1896 allotted parcels of land
to New Members who he brought to the reserve without following the requirements
of the Indian Act. Between 1897 and 1944, the Defendant implemented a
scheme by which former pupils of the Qu’Appelle Indian School and other
industrial schools were settled on the Peepeekesis Reserve without the Band’s
informed consent (Colonization Scheme). Under the Colonization Scheme, the
Peepeekesis Reserve was surveyed and subdivided, and the pupils were settled on
some of the subdivided land. The pupils were also added as New Members to the
Band. The Plaintiffs allege that the Colonization Scheme was not created for
the Band’s benefit.
[12]
The Plaintiffs further allege that, in 1910, some members of the Band
opposed the addition of further New Members. The Indian Agent at that time
sought to obtain an agreement with the Band by which fifty New Members could be
added. In 1911, the Indian Agent reported that an agreement to this effect had
been approved by the Band (1911 Agreement). The Plaintiffs claim that the 1911
Agreement was not properly approved by the Band.
[13]
The Plaintiffs further allege that, in 1956, Judge McFadden of the
District Court of Saskatchewan (Judge McFadden) heard protests referred to him
by the Registrar of Indians under subsection 9(4) of the Indian Act SC
1951 c 29. The Plaintiffs say that Judge McFadden was provided with a copy of
the 1911 Agreement but was not given any background information. Judge McFadden
found that the Defendant had treated the 1911 Agreement as having been approved
by a majority vote by the Band in order to give the Defendant the right to add
New Members to the Band.
[14]
In addition to the losses suffered by the Original Members, which the
Plaintiffs asserted in the Original Statement of Claim, the New Members also
suffered loss from the Colonization Scheme because the New Members were
deprived of their Per-Capita Shares from their original bands.
[15]
The Plaintiffs seek a declaration that the Colonization Scheme was
invalid, that the Defendant breached its fiduciary obligation by failing to act
in the Plaintiffs’ best interest and by adding the New Members to the Band.
They also seek damages for the wrongful alienation of their lands and the Defendant’s
breach of its fiduciary obligation. The Plaintiffs seek further damages for the
Defendant’s breach of their treaty rights and for the implementation of the
Colonization Scheme in breach of the Indian Act.
Amended
Statement of Defence
[16]
The Defendant says that no land was ever alienated from the Band, so that
no breach of any duty could have occurred. The New Members were added with the Band’s
consent. In 1956, Judge McFadden found that the New Members were added
lawfully, so that any challenge to the lawfulness of adding New Members is now res
judicata. The 1911 Agreement was not improperly induced and was approved by
a majority of the Band members.
[17]
The Defendant also says that the causes of action alleged in the Amended
Statement of Claim accrued to the Plaintiffs more than 10 years before they
commenced their action. Hence, the action is barred by the Limitation of
Actions Act RSS 1978 c L-15 (LAA) and the Crown Liability and
Proceedings Act RSC 1985 c C-50.
ISSUES
[18]
The Defendant raises the following issues in this motion:
a.
Whether the Plaintiffs’ claim is fundamentally flawed;
b.
Whether the Plaintiffs’ action is an abuse of process;
c.
Whether the Plaintiffs’ action is time-barred;
d.
Whether summary dismissal is appropriate.
STATUTORY
PROVISIONS
[19]
The following provision of the Federal Courts Act RSC 1985 c F-7
(Federal Courts Act) is applicable in this proceeding:
39. (1)
Except as expressly provided by any other Act, the laws relating to
prescription and the limitation of actions in force in a province between
subject and subject apply to any proceedings in the Federal Court of Appeal
or the Federal Court in respect of any cause of action arising in that
province.
[…]
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39. (1) Sauf disposition contraire d’une autre loi, les règles de
droit en matière de prescription qui, dans une province, régissent les
rapports entre particuliers s’appliquent à toute instance devant la Cour
d’appel fédérale ou la Cour fédérale dont le fait générateur est survenu dans
cette province.
[…]
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[20]
The following provisions of the Federal Courts Rules, 1998 are
applicable in this proceeding:
213. (1) A
party may bring a motion for summary judgment or summary trial on all or some
of the issues raised in the pleadings at any time after the defendant has
filed a defence but before the time and place for trial have been fixed
[…]
221. (1) On
motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to mend, on the
ground that it
(a) discloses no reasonable cause of action or
defence, as the case may be,
[…]
(f) is otherwise an abuse of the process of the
Court,
and may order the action be
dismissed or judgment entered accordingly.
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213. (1) Une partie peut présenter une requête en jugement
sommaire ou en procès sommaire à l’égard de toutes ou d’une partie des
questions que soulèvent les actes de procédure. Le cas échéant, elle la
présente après le dépôt de la défense du défendeur et avant que les heure,
date et lieu de l’instruction soient fixés.
[…]
221. (1)
À tout moment, la Cour peut, sur requête, ordonner la radiation de tout
ou partie
d’un acte de procédure, avec ou sans autorisation de le modifier, au motif,
selon le cas :
a)
qu’il ne révèle aucune cause d’action ou de défense valable;
[…]
f)
qu’il constitue autrement un abus de procédure.
Elle peut
aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en
conséquence.
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[21]
The following provisions of the Indian Act SC 1951 c 29 (Indian
Act 1951) are also applicable in this proceeding:
5. An Indian Register
shall be maintained in the Department, which shall consist of Band Lists and
General Lists and in which shall be recorded the name of every person who is
entitled to be registered as an Indian.
6. The Name of every
person who is a member of a band and is entitled to be registered shall be
entered in the Band List for that band, and the name of every person who is
not a member of a band and is entitled to be registered shall be entered in a
General List.
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 the provisions of this Act, is entitled
or not entitled, as the case may be, to have his name included in that lists.
(2) The Indian Register shall
indicate the date on which each name was added thereto or deleted therefrom.
8. Upon the coming into
force of this Act, the band lists then in existence in the Department shall
constitute the Indian Register, and the applicable lists shall be posted in a
conspicuous place in the superintendent’s office that serves the band or
persons to whom the list relates and in all other places where band notices
are ordinarily displayed.
9. (1) within six
months after a list has been posted in accordance with section eight or
within three months after the name of a person has been added to or deleted
from a Band List or a General List pursuant to section seven
(a) in the case of a Band
List, the council of the band, any ten electors of the band, or any three
electors if there are less than ten electors in the band,
[…]
may by notice in writing to
the Registrar, containing a brief statement of the grounds therefor, protest
the inclusion, omission, addition, or deletion, as the case may be, of the
name of that person.
(2) Where a protest is made to
the Registrar under this section he shall cause an investigation to be made
into the matter and shall render a decision, and subject to a reference under
subsection three, the decision of the Registrar is final and conclusive.
(3) Within three months from
the date of a decision of the Registrar under this section
(a) the council of the band
affected by the Registrar’s decision, or
(b) the person by or in
respect of whom the protest was made,
may, by notice in writing,
request the Registrar to refer the decision to a judge for review, and
thereupon the Registrar shall refer the decision, together with all material
considered by the Registrar in making his decision, to the judge of the
county or district court of the county or district in which the band is
situated or in which the person in respect of whom the protest was made
resides, or such other county or district as the Minister may designate […].
(4) the judge of the county,
district, or Superior Court, as the case may be, shall inquire into the
correctness of the Registrar’s decision, and for such purposes may exercise
all the powers of a commissioner under Part I of the Inquiries Act; the
judge shall decide whether the person in respect of whom the protest was made
is, in accordance with the provisions of this Act, entitled or not entitled,
as the case may be, to have his name included in the Indian Register, and the
decision of the judge is final and conclusive.
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5. Est maintenu au ministère un registre des Indiens lequel consiste
dans des listes de band et des listes générales et où doit être consigne le
nom du chaque personne ayant droit d’être inscrite comme Indien.
6. Le nom de chaque personne qui est membre d’une bande et a droit
d’être inscrit doit être consigné sur la liste de bande pour la band en
question, et le nom de chaque personne que n’est pas membre d’une bande et a
droit d’être inscrite doit apparaître sur une liste générale.
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 que,
d’après les dispositions de la présente loi, a ou n’a pas droit, selon le
cas, à l’inclusion de son nom dans cette liste.
(2) Le
registre des Indiens doit indiquer la date où chaque nom y été ajoute ou en
été retranche.
8. Dès l’entrée en vigueur de la présente loi, les listes de bande
alors dressées au ministère doivent constituer le registre des Indiens et les
listes applicables doivent être affichées à un endroit bien en vue dans le
bureau du surintendant que dessert la bande ou les personnes visées par la
liste et dans tous les autres endroits où les avis concernant la bande sont
ordinairement affiches.
9. (1) Dans las six mois de l’affichage d’une liste conformément à
l’article huit ou dans les trois mois de l’addition du nom d’une personne à
liste du bande ou à une liste générale, ou de son retranchement d’une telle
liste, en vertu de l’article sept.
(a) dans le
cas d’une liste de band, le conseil de la bande dix électeurs de la bande ou
trois électeurs, s’il y en a moins de dix,
[…]
peuvent, par
avis écrit au registraire, renfermant un bref exposé des motifs invoqués à
cette fin, protester contre l’inclusion, l’omission, l’addition, ou le
retranchement, selon le cas, du nom de cette personne.
(2)
Lorsqu’une protestation est adressée au registraire, en vertu de présent
article, il doit faire tenir enquête sur la question et rendre une décision
qui, sous réserve d’en renvoi prévu au paragraphe trois, est définitive et
péremptoire.
(3) Dans les
trois mois de la date d’une décision du registraire aux termes de présent
article,
(a) le
conseil de la bande que vise la décision du registraire, ou
(b) la
personne qui a fait la protestation ou a l’égard de qui elle a eu lieu,
peut,
moyennent un avis écrit, demander au registraire de soumettre la décision a
un juge, pour revision, et dès lors le registraire doit déférer la décision,
avec tous les éléments que le registraire a examinés en rendent sa décision,
au juge de la cour de comté ou district du comté ou district ou la band est
située ou dans lequel réside la personne a l’égard de que la protestation a
été faite, ou du tel autre comté ou district que le Ministre peut désigner,
[…].
(4) Le juge
de la cour de comté, de la cour de district ou de la cour supérieure, selon
le cas, doit enquêter sur la justesse de la décision du registraire et, à ces
fins, peut exercer tous les pouvoirs d’un commissaire en vertu de la Partie I
de la Loi des enquêtes. Le juge doit décider si la personne qui a fait
l’objet de la protestation a ou n’a pas droit, selon le cas, d’après les
dispositions de la présente loi, à l’inscription de son nom au registre des
Indiens, et la décision du juge est définitive et péremptoire.
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[22]
The following provisions of the Public Officers Protection Act
RSS 1978 c P-40 (POPA) are at issue in this proceeding:
2 (1) No action,
prosecution or other proceedings shall lie or be instituted against any person
for an act done in pursuance or execution or intended execution of a statute,
or of a public duty or authority, or in respect of an alleged neglect or
default in the execution of a statute, public duty or authority, unless it is
commenced:
(a) within twelve months next
after the act, neglect or default complained of or, in case of continuance of
injury or damage, within twelve months after it ceases; or
(b) within such further time as
the court or a judge may allow.
(2) If, in the opinion of the
court, the plaintiff has not given the defendant a sufficient opportunity of
tendering amends before the commencement of the proceeding, the court may award
to the defendant costs to be taxed as between solicitor and client.
[23]
The following provisions of the LAA are at issue in this
proceeding:
3
(1) The following actions shall be commenced within and not after the times
respectively hereinafter mentioned:
…
(e)
actions for:
(i) trespass or
injury to real property or chattels, whether direct or indirect, and whether
arising from an unlawful act or from negligence; or
(ii) the taking
away, conversion or detention of chattels;
within six years
after the cause of action arose;
(f) actions for:
(i) the recovery of
money, except in respect of a debt charged upon land, whether recoverable as a
debt or damages or otherwise, and whether on a recognizance, bond, covenant or
other specialty or on a simple contract, express or implied; or
(ii) an account or
for not accounting;
within six years
after the cause of action arose;
(g) actions grounded
on fraudulent misrepresentation, within six years from the discovery of the
fraud;
(h) actions grounded
on accident, mistake or other equitable ground of relief not hereinbefore
specifically dealt with, within six years from the discovery of the cause of
action;
…
(j) any other action
not in this Act or any other Act specifically provided for, within six years
after the cause of action arose
[…]
12 (1) No
proceedings shall be taken to recover:
(a)
any rent charge; or
(b)
any sum of money:
(i)
secured by any mortgage; or
(ii) otherwise charged
upon or payable out of any and or rent charge; or
(c)
any legacy, whether it is or is not charged upon land; or
(d) the personal
estate or any share of the personal estate of any person dying intestate and
possessed by his personal representative;
but within ten years
next after a present right to recover the same accrued to some person capable
of giving a discharge therefor or a release thereof, unless prior to the expiry
of said ten years:
(e) some part of the
rent charge, sum of money, legacy or estate or share or some interest thereon
has been paid by a person bound or entitled to make a payment thereof or his
agent in that behalf to a person entitled to receive the same or his agent; or
(f) some
acknowledgment in writing of the right to such rent charge, sum of money,
legacy, estate or share, signed by any person so bound or entitled, or his
agent in that behalf, has been given to a person entitled to receive the same
or his agent;
and in such case no action shall be
brought but within ten years after such payment or acknowledgment, or the last
of such payments or acknowledgments, if more than one, was made or given.
ARGUMENTS
The
Defendant
[24]
Summary dismissal is appropriate in this case because the Plaintiffs’ claim
lacks a genuine issue for trial, is an abuse of process, and is time-barred.
Granting summary judgment in this case will save the Court the time and costs
associated with adjudicating a claim which has no prospect of success. On a
motion for summary judgment, the moving party must show there is no genuine
issue requiring trial. However, the judge hearing the motion may make
inferences of fact based on evidence. See Canada (Attorney General) v
Lameman 2008 SCC 14 at paragraph 10. The Court should also ensure that the
pleadings are not an attempt to circumvent the law by improper framing.
[25]
The Defendant says a number of Band members, led by Ernest Goforth
(Goforth Group), asked the Crown to appoint a Royal Commission to examine the
Band’s membership in 1948. In 1952 the Goforth Group protested the addition of
25 New Members to the Band and, in 1954, the Defendant appointed Leo Trelenberg
to investigate these protests (Trelenberg Inquiry). Mr. Trelenberg reported his
findings to the Registrar of Indians, who found that 23 of the 25 challenged
New Members, were entitled to be members of the Band. Ernest Goforth challenged
this decision and, in 1956, Judge McFadden found all 25 challenged New Members
were entitled to be registered and that the 1911 Agreement was valid.
The
Claim is Fundamentally Flawed
[26]
The Plaintiffs’ claim is fundamentally flawed because the Band’s assets
are held collectively; the Original Members and their descendants have no
severable interest in the reserve lands. The rights to hold and occupy reserve
lands are held by the community as it exists from time to time, so no
individual member has a severable right to reserve lands. See Beattie v Canada, [2000] FCJ No 1920 at paragraphs 20 and 24. Whatever actions were taken
by the Defendant, no lands were alienated from the Band and no land was
irrevocably given to any member. When the New Members joined the Band they
became entitled to participate in the collective rights held by the Band.
Entitlement to reserve land flows from band membership, not descent, so only
current members have a right to the Band’s land. The legal framework which
establishes the Band’s collective right to its lands precludes the Plaintiffs’
claim, so there is no genuine issue for trial.
Abuse
of Process
[27]
The Plaintiffs’ claim is also an abuse of process because the basis of
the claim has already been determined by a court of competent jurisdiction. The
Plaintiffs base their claim on the unlawful addition of New Members to the Band
between 1896 and 1944. Judge McFadden found in 1956 that 25 New Members
admitted between 1896 and 1919 were lawfully registered as band members under
the Indian Act. Judge McFadden considered the same facts and evidence
which the Plaintiffs rely on in this claim. If the Court were to find the New Members
were unlawfully added, this would directly contradict Judge McFadden’s
decision.
Claim
is Time-Barred
[28]
Further, the Plaintiffs’ claim is time-barred under the POPA or the LAA
because the facts which underlie the claim have been well-known for at least
forty years. In Lameman, above, the Supreme Court of Canada held at
paragraph 13 that:
This
Court emphasized in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245,
2002 SCC 79, that the rules on limitation periods apply to Aboriginal claims.
The policy behind limitation periods is to strike a balance between protecting
the defendant's entitlement, after a time, to organize his affairs without
fearing a suit, and treating the plaintiff fairly with regard to his
circumstances. This policy applies as much to Aboriginal claims as to other
claims, as stated at para. 121 of Wewaykum:
Witnesses are no longer
available, historical documents are lost and difficult to contextualize, and
expectations of fair practices change. Evolving standards of conduct and new
standards of liability eventually make it unfair to judge actions of the past
by the standards of today.
Public
Officers’ Protection Act
[29]
Under section 39 of the Federal Courts Act, limitation periods
established by provincial law apply to proceedings before the Federal Court.
The POPA sets a limitation of twelve months from the date of an act or omission
for an action against a public officer, unless a court or judge extends the
time for filing.
[30]
Des Champs [Deschamps] v Conseil des écoles séparées catholiques de
langue française de Prescott-Russell, [1999] 3 S.C.R. 281 (QL) at
paragraph 50 sets out the following test for a limitation period under the
POPA:
(1)
Is the defendant a public authority within the class of entities or individuals
for whom the limitation protection was intended? While most public authorities
will satisfy the requirements, Schnurr, supra, illustrates problems that
may arise.
(2)
What was the public authority doing, and pursuant to what duty or power was it
doing it? This information will generally appear from the pleadings. […]
(3)
Is the power or duty relied on as part of the plaintiff’s cause of action
properly classified as entailing “a public aspect or connotation” or on the
other hand, is it more readily classifiable as “private executive or private
administrative ... or ... subordinate in nature” (per Estey J. in Berardinelli,
at p. 283)?
(4)
Is the activity of the defendant public authority that is the subject matter
of the complaint “inherently of a public nature” or is it more of “an internal
or operational nature having a predominantly private aspect” (per Estey J. in Berardinelli,
at p. 284 (emphasis deleted))?
(5)
Looking at it from the plaintiff’s perspective, does the plaintiff’s claim or
alleged right “correlate” to the exercise by the defendant public authority of
a public power or duty or does it relate to the breach of a public duty or does
it complain about an activity of a public character, thus classified?
[31]
The Defendant was acting in the course of its public duties under the 1951
Indian Act when it subdivided the Band’s lands and added New Members.
The limitation period under the POPA expired before the claim was filed in
1992, so it is time barred.
[32]
Although paragraph 2(1)(b) of the POPA permits a court or judge
to extend a limitation period, the Plaintiffs do not meet the threshold
necessary for this relief. To be granted an extension under this section, the Plaintiffs
must show:
a.
A prima facie case;
b.
A reasonable explanation for the delay in filing their claim;
c.
There will be no prejudice to the Defendant.
[33]
The Plaintiffs meet none of these criteria. There is no genuine issue
for trial, so there can by no prima facie case. The Plaintiffs have also
not explained the delay in filing their claim. Further, the Defendant will be
prejudiced by the delay because relevant documents have been lost and potential
witnesses have died.
Limitations
of Actions Act
[34]
As of 1958, the LAA barred the Plaintiffs’ claim. At that time, the
material facts on which it is based had been discovered, or were discoverable
with reasonable diligence, for more than 10 years. As of 1948, the Plaintiffs
clearly understood all the material facts of their claim. The documentary
evidence establishes that the facts underlying the Plaintiffs’ claims were
widely known. The longest time period available under the LAA is 10 years and
the last document establishing the Plaintiffs’ claim, a letter from Mr. Goforth
asserting a treaty right and complaining about Judge McFadden’s decision, was
produced in 1957.
The
Constitution does not Shield the Claim
[35]
When the limitation period applicable to the Plaintiffs’ claim expired
in 1958, this extinguished their claim. The Constitution Act, 1982
cannot be used to invalidate earlier actions by government officials. See Papaschase
Indian Band No. 136 v Canada (Attorney General) 2004 ABQB 655 at paragraph
50.
[36]
Although in rem declarations to strike down unconstitutional
legislation may be exempt from limitations legislation (see Air Canada v British Colombia (Attorney General), [1986] 2 S.C.R. 539 at page 543), the Plaintiffs
have only asked for in personam relief. They cannot be exempt from the
applicable limitations legislation.
[37]
Ravndahl v Saskatchewan 2009 SCC 7 establishes that limitation
periods apply to claims for personal remedies flowing from section 35 of the Constitution
Act, 1982. Even if the Plaintiffs’ rights were protected under section 35,
their action for personal remedies is still time-barred.
The Plaintiffs
[38]
The Plaintiffs argue that there is no basis for the Defendant’s summary
judgment motion and it should be dismissed.
Reasonable
Cause of Action
[39]
The Plaintiffs say the Defendant has misconstrued the nature of their
claim. Their claim is founded on the wrongful development by the Defendant of the
Colonization Scheme by which individuals who had no right to be on the Band’s reserve
gained access to it. This scheme included manipulation of the Band’s membership
without the Band’s informed consent. By establishing the Colonization Scheme
and manipulating Band membership, the Defendant breached its fiduciary duty and
treaty obligations. The Defendant has not argued that the claims for breach of
fiduciary duty and treaty obligations are flawed, so they should not be
dismissed.
[40]
Although the Defendant has said that no lands were removed from the Band,
the Plaintiffs say the Original Members were denied the use and benefit of
reserve land. The evidence shows that Original Members were forced on to the
unsurveyed portion of the reserve and the File Hills Colony was treated as a
separate reserve. In any case, whether the reserve lands were alienated from
the Plaintiffs is a question of mixed fact and law which should not be
determined on a motion to strike.
No
Abuse of Process
[41]
The Plaintiffs also argue that Judge McFadden did not decide whether the
Defendant had breached its fiduciary duty, treaty obligations, or the
requirements of the Indian Act. He was only empowered to decide if the decision
of the Registrar to admit the New Members was correct. Further, the Band was
not a party to the proceeding before Judge McFadden.
[42]
In addition, the process before Judge McFadden was flawed because the
Defendant did not provide counsel to the Original Members who challenged the admission
of New Members. The Defendant also withheld important documents during this
process. Judge McFadden’s decision only says that he was not prepared to set
aside the Registrar’s decision to admit a member if that member appeared on the
Band membership list before 1951.
[43]
The Defendant, in effect, has argued that Judge McFadden’s decision
means that the Plaintiffs’ claim is res judicata, but the Plaintiffs say
the issues before Judge McFadden and this Court are different. This claim is
about a breach of fiduciary duty or breach of treaty obligations, which were
not issues before Judge McFadden. Re the Indian Act Re Joseph Poitras, [1956]
SJ No. 33 (SKQB) and In the The Indian Act In re Wilson, [1954]
AJ No. 52 (ADC) suggest that a judge hearing a membership reference under
subsection 9(4) of the Indian Act would not decide alleged breaches of
treaty or fiduciary obligations. In Canada (Minister of Indian Affairs and
Northern Development) v Ranville, [1982] 2 S.C.R. 518, the Supreme
Court of Canada held that a judge hearing a reference under subsection 9(4) of
the Indian Act is acting in an appellate capacity.
[44]
Even if the issues the Plaintiffs raise are res judicata, the
Court should exercise its residual discretion to hear this case. Danyluk v
Ainsworth Technologies Inc 2001 SCC 44 establishes a number of factors
which the Court can examine to determine if it should hear a case even though
the issues raised are res judicata. In this case, the Danyluk
factors suggest the Court should hear the Plaintiffs’ case.
[45]
Further, even if the issues the Plaintiffs raise involve re-litigation
of issues previously decided, this case is not an abuse of process. Morel v
Canada 2008 FCA 53 sets out at paragraphs 33 to 40 a number of
circumstances where re-litigation will not be an abuse of process. In the
present case, the Defendant heavily controlled the proceedings before Judge
McFadden. The Defendant also controlled the information that was before Judge
McFadden, and several documents were never placed before him. In these
circumstances, re-litigation will enhance the integrity of the judicial system,
so the Plaintiffs’ claim is not an abuse of process.
Summary Dismissal is not Appropriate
[46]
In Lameman, above, the Supreme Court of Canada said the bar for
summary judgment is high. On a motion for summary judgment, the responding
party need only “put forward evidence showing there is a genuine issue for
trial.” See MacNeil Estate v Canada (Indian and Northern Affairs Department)
2004 FCA 50 at paragraph 25. The Court hearing the motion should only grant
summary dismissal if it is satisfied there is no genuine issue for trial.
Public
Officers’ Protection Act
[47]
The limitation period established in paragraph 2(1)(a) of the
POPA does not apply to the Plaintiffs’ claim. The injury the Plaintiffs
suffered from the Defendant’s implementation of the Colonization Scheme is
continuing because the Original Members are still being deprived of the use and
benefit of the reserve lands. Treaty 4 establishes that the Peepeekesis reserve
was set aside for the Original Members. The Colonization Scheme transferred
ownership to the New Members without compensating the Band.
[48]
Treaty 4 also says that “Her Majesty retains the right to deal with such
settlers as She shall deem just, so as not to diminish the extent of the land
allotted to the Indians.” This shows that the Defendant is obligated to
preserve the land base held by the Band by not permitting others to reside on
the Peepeekesis reserve. However, the Colonization Scheme permitted the New
Members to reside on the reserve, which breached the Defendant’s obligation by
transferring the use and benefit of the Peepeekesis reserve to the New Members
and their descendants.
[49]
The POPA limitation periods are also not applicable in this case because
the establishment of the Colonization Scheme was a private act. In A.K. v Canada (Attorney General) 2003 SKQB 46, the Saskatchewan Court of Queen’s Bench found
acts of an internal or operational character with respect to Indian residential
schools were not subject to the 12-month limitation period under the POPA (see
paragraph 19). The Colonization Scheme is analogous to the internal operation
of residential schools, so the POPA limitation period does not apply in this
case. Even if the Colonization Scheme was authorized by the Indian Act,
its implementation was not a public act to which the POPA applies.
[50]
In the alternative, the Plaintiffs say the Court should extend the time
for filing a claim under paragraph 2(1)(b) of the POPA because it is
just to do so. The Defendant has engaged in equitable fraud by treating the
Band unconscionably and has fraudulently concealed the Plaintiffs’ claim. Guerin
v Canada, [1984] 2 S.C.R. 335 establishes that an aboriginal interest
in lands is inalienable except by surrender to the Defendant. The Colonization
Scheme required such surrender, but this never occurred.
[51]
The Defendant has not acted in a manner which accords with the integrity
of the Crown. The Defendant concealed key documents from Judge McFadden and did
not raise important issues before him. Further, the Defendant controlled the
McFadden and Trelenberg Inquiries and did not provide funds to the Band to
retain counsel in those proceedings. The Defendant acknowledged liability for
the loss of the Original Members’ interest when it engaged in negotiations
related to compensation for this loss. Transcripts of the McFadden and
Trelenberg Inquiries could not be located until after the Plaintiffs began this
action, which also demonstrates how the Defendant controlled these inquiries.
The Court should exercise its discretion under paragraph 2(1)(b) of the
POPA to extend the time for the Plaintiffs to bring their claim. Otherwise the
operation of the POPA limitation period will work injustice on the Plaintiffs.
Limitation
of Actions Act
[52]
Like the POPA, the LAA does not bar this action because the Colonization
Scheme is a continuing breach of Treaty 4. Roberts v Portage la Prairie,
[1971] S.C.R. 481 establishes that a statutory limitation period does not apply
where damage is ongoing.
[53]
The Plaintiffs argue in the alternative that they brought their action
within the applicable limitation period. When examining whether an action is
time-barred, the Court must analyze three questions. First, the Court must
determine the applicable limitation statute. This action was not extinguished
before the Original Statement of Claim was issued because the facts which
underlie the cause of action were not discoverable until after the LAA came
into force. The LAA is the applicable limitations statute because it was in
force when the Original Statement of Claim was issued.
[54]
Second, the Court must determine the applicable limitation period. The
ten-year limitation period under paragraph 12(1)(a) of the LAA applies
in this case. Under the Colonization Scheme, some of the New Members occupied
farm land before their membership was challenged. The Plaintiffs claim damages
for wrongful alienation of their land. These damages are like damages for
occupational rent because the land was occupied by the New Members under the
Colonization Scheme.
[55]
Third, the Court must determine when the Plaintiffs’ cause of action
arose. Although the actions of the Defendant which the Plaintiffs challenge
occurred between 1897 and 1944, the cause of action in this case did not arise
until much later. The Plaintiffs could not have been aware of their cause of
action until they became aware of various facts through research which they
conducted after filing their initial claim. Only after they obtained the
transcripts of the Trelenberg and McFadden Inquiries could they have known
their claim had a reasonable prospect of success. The limitation period did not
begin to run until after the Original Statement of Claim was issued.
[56]
Although the Plaintiffs have said that Ernest Goforth made the same
arguments before Judge McFadden in the 1940s, Mr. Goforth did not act as a
representative for the Band. He was only challenging membership, and not
breaches of treaty or breaches of fiduciary duty. Further, Mr. Goforth’s ideas
and knowledge are not the Band’s ideas and knowledge. Others in the Band opposed
his actions to challenge their membership and he had little capacity to
discover the facts necessary to obtain appropriate advice and conclude that his
case had a reasonable prospect of success.
ANALYSIS
[57]
I think it is immediately apparent from the complex historical
background to this dispute, the conflicting characterization of issues, and the
allegations of unconscionable conduct by the Crown (many years ago, but which
still has an impact upon members of the Band) that the Court cannot deal with
the merits of the claims in a summary way.
Rule 221 – Motion to Strike
[58]
The Defendant asks the Court to strike the Statement of Claim on the
grounds that:
a.
The claim discloses no reasonable cause of action. It is fundamentally
flawed and formulated on a proposition that directly contradicts
well-established legal principles; and
b.
The claim is an abuse of process, since lawful entitlement to Band
Membership was conclusively determined by a court of competent jurisdiction in
1956 and limitation periods apply.
[59]
The motion is based upon paragraphs 221(1)(a) and 221(1)(f)
of the Rules.
Rule 221(1)(a) – No Reasonable Cause of Action
[60]
The general principles applicable to this kind of motion to strike are
not in dispute in this case. The basic test is whether it is plain and obvious
that the claim discloses no reasonable cause of action. See Hunt v Carey
Canada Inc., [1990] 2 S.C.R. 959. It is also clear that, in ruling on a motion
to strike, the Court is narrowly limited to assessing the threshold issue of
whether a genuine issue exists as to material facts requiring a trial, and that
all allegations of fact unless patently ridiculous or incapable of proof, must
be accepted as proved. See Edell v Canada (Revenue Agency) 2010 FCA 26.
It is for the defendant seeking summary dismissal to show the lack of a genuine
issue (see Edell, above) and the onus of proof is a heavy one. See Apotex
Inc. v Syntex Pharmaceuticals International Ltd. 2005 FC 1310.
[61]
In my view, the Defendant has not discharged the applicable burden of
proof in this case. The Defendant adopts an interpretation of the claim that is
at odds with the Plaintiffs’ interpretation. Essentially, the Plaintiffs say
that the Defendant and its agents wrongfully developed a scheme under which
individuals other than those for whom the Band reserve was established under
Treaty 4 gained access to the benefits of the reserve. The impact of the
Colonization Scheme was never explained to the Original Members. The
manipulation of membership was key to the Colonization Scheme, and was undertaken
without the informed and willing consent of the Band or, if consent was
obtained, this consent was obtained by undue influence, inducement, or in
unconscionable circumstances, and that these actions constituted a breach of
the Defendant’s fiduciary duty and treaty obligations.
[62]
It seems to me that the full implications of the Colonization Scheme,
how it was implemented, and its on-going impact upon Band Members cannot be
decided simply upon the basis that “Reserve lands are a collective asset,” as
the Defendant suggests. This is because the Plaintiffs also raise breach of
fiduciary duty, breach of treaty obligations, and breach of the Indian Act
as a result of the Colonization Scheme. These are issues which are not
necessarily connected to whether or not reserve lands are a collective asset.
The determination of these issues involves complex issues of fact and law and I
cannot say on the record before me that it is plain and obvious that there is
no genuine issue for trial.
Rule
221(1)(f) – Abuse of Process
[63]
While re-litigating the same issues can be an abuse of process, it is my
view that the Plaintiffs are not attempting to re-litigate what Judge McFadden
decided in 1956. Although membership issues are no doubt relevant to the Claim,
the present status, scope, and application of Judge McFadden’s decision to the
facts and issues raised in the Claim are very much open to dispute, so that it
cannot be said there is an abuse of process or no issue for trial on this
basis.
Rule 221
– Limitation Periods
[64]
The Defendant also argues that the “Plaintiffs lacked a genuine issue
for trial because the limitation period for advancing this claim has long since
passed.” I will deal with this matter in considering summary dismissal.
Rule 215
– Summary Dismissal
[65]
The Defendant asks that, under Rule 215, the Claim should be summarily
dismissed because the limitation period for advancing the Claim has long
passed. In my view, this is the decisive issue in this motion.
[66]
Once again, the general legal principles applicable to this aspect of
the motion do not appear to be in dispute.
Principles of Summary Judgment
[67]
The Defendant says the Plaintiffs’ claim should be summarily dismissed
because it was brought after a relevant limitation period expired. The
Defendant relies on the now repealed POPA and LAA for the limitation periods
which bar the Plaintiffs’ claim.
[68]
Prior to considering whether the Plaintiffs’ action is statute barred it
is necessary to first consider the principles regarding summary dismissal of an
action. In Granville Shipping Co. v Pegasus Lines Ltd., 1996 FCJ No.
481, at paragraph 8, Justice Danièle Tremblay-Lamer summarized the relevant
principles as follows:
1. the purpose of the provisions is to
allow the Court to summarily dispense with cases which ought not proceed to
trial because there is no genuine issue to be tried […];
2. there is no determinative test […]
but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza
Ltd. v. Gillespie. It is not whether a party cannot possibly succeed at
trial, it is whether the case is so doubtful that it does not deserve
consideration by the trier of fact at a future trial;
3. each case should be interpreted in
reference to its own contextual framework […] ;
4. provincial practice rules (especially
Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg.
194]) can aid in interpretation […];
5. this Court may determine questions of
fact and law on the motion for summary judgment if this can be done on the
material before the Court (this is broader than Rule 20 of the Ontario Rules of
Civil Procedure) […];
6. on the whole of the evidence, summary
judgment cannot be granted if the necessary facts cannot be found or if it
would be unjust to do so […];
7. in the case of a serious issue with
respect to credibility, the case should go to trial because the parties should
be cross-examined before the trial judge […]. The mere existence of apparent
conflict in the evidence does not preclude summary judgment; the court should
take a "hard look" at the merits and decide if there are issues of
credibility to be resolved […].
[references omitted]
[69]
These principles were recently canvassed by the Supreme Court of Canada
in Lameman, above, which made it clear that the “bar on a summary
judgment is high.”
[70]
Further, the Federal Court of Appeal in MacNeil Estate, above, at
paragraph 25 made it clear that the party responding to an application for
summary judgment need only “put forward evidence showing there is a genuine
issue for trial.” The Federal Court of Appeal also considered how evidence on a
summary judgment motion should be weighed, finding that the affidavit evidence
need only raise an issue for trial and that questions of credibility of the
witness are an issue which should be considered at trial (see paragraph 32). MacNeil
Estate also makes it clear that the Court should not readily summarily
dismiss an action; rather, it must be clear to the motions judge that it is
proper to deprive the Plaintiffs of their right to a trial. See paragraph 38
and Aguonie v Galion Solid Waste Material Inc., [1998] OJ No 459
(OCA).
[71]
In the present case, the Court must be satisfied that there is no
genuine issue to be tried with regard to whether the Plaintiffs’ claim is
statute barred by a limitation period.
[72]
It seems to me that the Defendant has established that this claim is
time-barred by POPA and the LAA.
Applicable Dates
[73]
To properly consider the application of the limitation periods to this
claim, it is necessary to identify when the Plaintiffs should be taken to have
known about the claim.
[74]
As noted above, on a motion for summary judgment the Court must accept
as proven all facts plead in support of a claim. The Plaintiffs, in the Amended
Statement of Claim, say that the Original Members’ interest in the reserve
lands was diminished by the addition of New Members between 1897 and 1944 or
1945. It seems to me then, that during this period the Original Members would
have been aware that the New Members were being added to the reserve. As an
example, the affidavit of Freda Koochicum says that “My husband’s grandfather
and grandmother, Charlie and Minnie Koochicum, were two original members who
were forced to leave their home in the portion of the reserve that was surveyed
and subdivided.”
[75]
In 1956, Judge McFadden issued his decision on the membership challenge,
in which he had this to say about the 1911 Agreement:
While I have been unable to find
any specific provision of the Indian Act of that date authorizing an
agreement of that kind, the agreement appears to have been considered, or
rather, I assume it was considered, by the Department as a general vote of the
majority of the members of the Band delegating to the Superintendent General
the right to name, choose or designate the particular school graduates whom he
might wish to place or join the [Peepeekesis] Band. I regret that the
Department did not arrange to have counsel appear before me on this Review to
speak particularly as to that 1911 agreement and generally as to other matters
that arose during the hearing.
[76]
Judge McFadden’s decision following what appears to have been a
well-published dispute about membership makes it clear that the Defendant
relied on the 1911 Agreement to show the Band’s consent to the addition of the
New Members after 1911. The Plaintiffs have challenged the 1911 Agreement in
their Amended Statement of Claim, saying that it was obtained without the
Original Members consent, or that their consent was obtained through fraud. It
seems obvious that the Original Members would have known they were not consulted
or would have known what steps were taken to coerce them into making the 1911
Agreement. After the release in 1956 of Judge McFadden’s decision in the full
context of the dispute, a publicly available document, the Band members would
know that the Defendant was relying on the 1911 Agreement for their consent to
the addition of the New Members. At the very latest, it is my view that the
essential elements of the Plaintiffs’ claims were reasonably discoverable by
1956 at the latest. The evidence shows that the facts underlying the
Plaintiffs’ claim were widely known in the Plaintiffs’ community and amongst
Band members, so that the Plaintiffs clearly understood, or should have
understood, that they had a claim by 1956 at the latest.
Application of Limitation Periods
[77]
I do not think there can be any dispute that limitation periods apply to
Aboriginal claims. See Lameman, above at paragraph 13.
POPA
[78]
Section 39 of the Federal Courts Act provides as follows:
Except as expressly
provided by any other Act, the laws relating to prescription and the
limitation of actions in force in a province between subject and subject
apply to any proceedings in the Federal Court of Appeal or the Federal Court
in respect of any cause of action arising in that province.
|
Sauf disposition
contraire d’une autre loi, les règles de droit en matière de prescription
qui, dans une province, régissent les rapports entre particuliers
s’appliquent à toute instance devant la Cour d’appel fédérale ou la Cour
fédérale dont le fait générateur est survenu dans cette province.
|
[79]
POPA was enacted in 1923 and remained in force until 2005. In my view,
POPA applies to the Plaintiffs’ action.
[80]
Section 2 of POPA provides:
No action,
prosecution or other proceedings shall lie or be instituted against any person
for an act done in pursuance or execution or intended execution of a statute,
or of a public duty or authority, or in respect of an alleged neglect or
default in the execution of a statute, public duty or authority, unless it is
commenced:
(a) within twelve
months next after the act, neglect or default complained of or, in case of
continuance of injury or damage, within twelve months after it ceases; or
(b) within such
further time as the court or a judge may allow
[81]
As the Defendant points out, the criteria set forth in Des Champs,
above, inform the analysis of POPA:
1.
Is the defendant a public authority within the class of entities
or individuals for whom the limitation protection was intended?
2.
What was the public authority doing, and pursuant to what duty or
power was it doing it? This information will generally appear from the
pleadings.
3.
Is power or duty relied on as part of the plaintiff's cause of
action properly classified as entailing “a public aspect or connotation?”
4.
Is the activity of the defendant public authority that is the
subject matter of the complaint “inherently of a public nature?”
5.
Looking at it from the Plaintiffs’ perspective, does the plaintiffs’
claim or alleged right “correlate” to the exercise by the defendant public
authority of a public power or duty?
In my view, the Plaintiffs’ claim in
the present case involves an exercise by the Defendant of a public power or
duty.
[82]
The protection of POPA is available to the Federal Crown. There is
nothing in the wording of section 2 which excludes the Federal Crown from
claiming the protection of the statute. POPA protects “any person for an act
done in pursuance or execution […] of a statute or of a public duty or
authority,” which is clearly broad enough to include the Federal Crown.
[83]
The Plaintiffs plead that the Defendant breached its fiduciary
obligation and the Indian Act in that the reserve was alienated through
illegal subdivision in breach of sections 15 and 16 of the Indian Act.
Further, the reserve was alienated as a result of individuals being wrongfully
admitted to the band in breach of section 140 as cited in the An Act further
to amend the Indian Act, SC 1895, c. 35, section 8, amending the Indian
Act.
[84]
In my view, the Plaintiffs’ claim is rooted the wrongful addition of the
New Members to the Band List. At the relevant time, section 5 of the Indian
Act established that
An Indian Register shall be
maintained in the Department, which shall consist of Band Lists and General
Lists and in which shall be recorded the name of every person who is entitled
to be registered as an Indian.
|
Est maintenu
au ministère un registre des Indiens lequel consiste dans des listes de band
et des listes générales et où doit être consigne le nom du chaque personne
ayant droit d’être inscrite comme Indien.
|
[85]
Whether the addition of the New Members to the Band List was carried out
in a manner which breached the Defendant’s fiduciary or treaty obligations, or
its obligations under the Indian Act, the Defendant was carrying out its
public duty to manage and administer the reserve and to maintain and update the
Band List for the Band. As Deschamps, above, establishes,
The reference to the “intended
execution of any statutory or other public duty or authority” (emphasis
added) limits the protection to public duties and powers and confirms
inferentially that a public authority may well have other duties and powers
that are essentially of a private nature. In drawing the line between the
public aspects and private aspects, the general principle is that the wording of
s. 7 is to be read narrowly and against the party seeking its special
protection. This produces an inevitable line drawing exercise that requires the
court to examine the nature of the statutory power or duty imposed on the
defendant public authority as well as the character of the particular conduct
about which the plaintiff complains. [emphasis in original]
[86]
In my view, when they created and administered the File Hills Colony, Canada’s employees were acting pursuant to the Indian Act or their public duties.
The File Hills Colony was created with the idea of extending training received
at the industrial and residential schools and improving conditions on the
reserve.
[87]
I agree with the Defendant that Canada’s power or duty to manage and
administer the reserve is properly classified as entailing “a public aspect or
connotation” as opposed to being a private enterprise. The activities in
question are not ones that could be performed by private individuals. Looking
at it from the Plaintiffs’ perspective, the claim directly relates to Canada’s alleged breach of a public duty. The activity arose directly out of Canada’s statutory mandate to manage and administer the reserve, the Band List, and reserve
assets.
[88]
This means, in my view, that the Plaintiffs’ action is barred by POPA,
unless they can bring themselves within the exception contained in paragraph
2(1)(b) of POPA.
[89]
In order to bring themselves within the paragraph 2(1)(b) exception, the
onus is on the Plaintiffs to prove:
1.
There is a prima facie case;
2.
A reasonable explanation for the delay; and
3.
The Defendant will not be prejudiced if the claim is allowed to
continue.
[90]
The Defendant says that the Plaintiffs have no genuine issue for trial
and consequently they have no prima facie case.
[91]
The Defendant also says that the Plaintiffs have proffered no reasonable
explanation for the delay in bringing their action and that the Defendant is
prejudiced by the passage of time, the loss of relevant documents and the death
of potential witnesses. Over 100 years have passed since the first of the
impugned events occurred. Documents, such as the petition leading to the second
vote consenting to the 1911 Agreement cannot be located. All of the witnesses
are deceased.
[92]
Besides saying that the acts in question were not done in furtherance of
a statute, public duty or authority, the Plaintiffs further argue that:
a.
The statutory limitation in paragraph 2(1)(a) of POPA does not
apply to this action as the injury or damage to the Plaintiffs continues to
this day. The action is based upon the development and implementation of the
Colonization Scheme under which the Original Members of the Band were deprived
of the use and benefit of the reserve set apart for them and, in the case of
those brought to the reserve, the deprivation of their right to the use and
enjoyment of the original reserve and the cultural and other benefits of
membership in their original bands;
b.
In the alternative, the time for bringing the claim should be extended
to the date of issuance of the Statement of Claim pursuant to paragraph 2(1)(b)
of POPA; and
c.
The time for bringing the claim should be extended as the Defendant has
engaged in conduct that amounts to equitable fraud in that it has acted in an
unconscionable manner in its treatment of the Band tantamount to fraudulent
concealment of the existence of the Plaintiffs’ cause of action.
Continuing Breach
[93]
If the Plaintiffs’ arguments for continuing breach were accepted in this
case, there would, in my view, be no limit on when they could bring their claim
and the notion of limitation of actions would be rendered meaningless.
[94]
I think the Supreme Court of Canada has dealt with the kind of argument
raised by the Plaintiffs for continuing breach in Wewaykum Indian Band v
Canada, [2002] 4 S.C.R. 245 at paragraphs 134 to 137:
The appellants
contend that every day they are kept out of possession of the other band’s
reserve is a fresh breach, and a fresh cause of action. As a result, their
respective claims are not yet statute barred (and could never be). For
instance, the [page309] Campbell River Band claims in its factum, at par. 111,
that
[t]he
fact that Campbell River has been legally entitled to Quinsam since 1938, at
the latest, gives it a presently enforceable right. Two additional consequences
flow from this: (1) the Crown's fiduciary duty to safeguard Campbell River's
right to its reserve against alienation has also subsisted since the
legislation was passed; and (2) Cape Mudge has committed a continuous trespass
since it first took possession of Quinsam. Both of these wrongs were committed
anew each day and caused fresh damages each day.
The Cape Mudge Band’s factum, at para. 98,
makes analogous arguments.
Acceptance of such a position would, of course,
defeat the legislative purpose of limitation periods. For a fiduciary, in
particular, there would be no repose. In my view such a conclusion is not
compatible with the intent of the legislation. Section 3(4), as stated, refers
to “[a]ny other action not specifically provided for” and requires that the
action be brought within six years “after the date on which the right to do so
arose”. It was open to both bands to commence action no later than 1943 when
the Department of Indian Affairs finally amended the relevant Schedule of
Reserves. There was no repetition of an allegedly injurious act after that
date. The damage (if any) had been done. There is nothing in the circumstances
of this case to relieve the appellants of the general obligation imposed on all
litigants either to sue in a timely way or to forever hold their peace.
Similarly, the “ultimate limitation” in s. 8(1)
runs “from the date on which the right to [initiate proceedings] arose”. All of
the necessary ingredients of the causes of action pleaded in these proceedings
could have been asserted more than 30 years prior to the date on which the
actions were eventually commenced. The trial judge found that no new or fresh
cause of action had arisen at any time within the 30-year period. None of the
legislated exceptions being [page310] applicable, the 30-year “ultimate limit”
applies by reason of its incorporation by reference into federal law.
This conclusion accords with the result on this
point reached in Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3
(C.A.), per Isaac C.J., at para. 63; Costigan v. Ruzicka (1984), 13
D.L.R. (4th) 368 (Alta. C.A.), at pp. 373-74; Lower Kootenay Indian Band v. Canada (1991), 42 F.T.R. 241; Fairford Band v. Canada (Attorney General), [1999] 2 F.C.
48 (T.D.), at paras. 295-99.
[95]
Similar issues were also canvassed in McCallum v Canada (Attorney General), 2010 SKQB 42, [2010] SJ No 112, at paragraphs 28 – 49. I
will refer to this case in more detail when examining the LAA.
Private not Public Act
[96]
As previously discussed, I do not think that the evidence supports the
Plaintiffs contention that the alleged acts of the Crown were of an inherently
private nature and were not public acts. These acts were not of an “internal or
operational character” as referred to at paragraph 18 of AK v Canada (Attorney General), [2003] SJ No 49. We are talking here about public servants
(particularly Mr. Graham) acting in their official capacity to bring new
members onto the Plaintiffs’ reserve and having to engage in official and legal
ways to achieve the re-settlement of the New Members. In my view, these actions
are neither distinct nor separate from the public servants’ public mandate. See
AK at paragraph 19 and Deschamps at paragraph 56.
Equitable Fraud
[97]
I do not think the Plaintiffs have established a case for equitable
fraud and unconscionability so that the time for bringing the Claim should be
extended pursuant to paragraph 2(1)(b) of POPA.
[98]
To begin with, I think the Ontario Court of Appeal’s decision in Authorson
(Litigation Administrator of) v Canada (Attorney General) 2007 ONCA 501 at
paragraph 137 provides relevant guidance as to the onus to prove equitable
fraud in the context of a fiduciary relationship:
In
general, those who assert a proposition have the burden of establishing it and,
in the context of the discoverability principle, the plaintiff bears the burden
of demonstrating that the cause of action was not discoverable: Mikisew Cree Band v. Canada, [2002] A.J. No. 596 (C.A.) at
para. 83. We are not aware of any authority for the proposition that the onus
is reversed where the discoverability issue arises within the framework of a
fiduciary relationship. To say that the standard of diligence required of a “defrauded”
person may be attenuated in situations where that person is entitled to rely
upon the other party - as Southey J. did in Public Trustee
v. Mortimer - is not the same thing. While it may make sense to be
attuned to the level of proof that a plaintiff needs to put forward, depending
on the circumstances, to meet the burden of discoverability, reversing the onus
of proof is not justified. On an issue like discoverability (what did the
plaintiff know about the claim, and when, and what steps did the plaintiff take
to pursue it) it would be at best difficult for the party who is the target of
the reverse onus to establish these factors, and at worst unlikely that the
party could do so. The fact that a fiduciary has an obligation to keep the
beneficiary of the relationship informed does not bear on this issue.
[99]
I agree with the Defendant that equitable fraud in the present context
means the concealment of information that a cause of action exists. The kind of
fraudulent concealment required was addressed by the Supreme Court of Canada in
Guerin v Canada, [1984] 2 S.C.R. 335 at page 390:
It is well established that where there has been a
fraudulent concealment of the existence of a cause of action, the limitation
period will not start to run until the plaintiff discovers the fraud, or until
the time when, with reasonable diligence, he ought to have discovered it. The
fraudulent concealment necessary to toll or suspend the operation of the
statute need not amount to deceit or common law fraud. Equitable fraud, defined
in Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563, as
“conduct which, having regard to some special relationship between the two
parties concerned, is an unconscionable thing for the one to do toward the
other,” is sufficient. I agree with the trial judge that the conduct of the
Indian Affairs Branch toward the Band amounted to equitable fraud. Although the
Branch officials did not act dishonestly or for improper motives in concealing
the terms of the lease from the Band, in my view their conduct was nevertheless
unconscionable having regard to the fiduciary relationship between the Branch
and the Band. The limitations did not therefore start to run until March 1970.
The Action was thus timely when filed on December 22, 1975.
[100] The
concept of equitable fraud in the context of limitation periods was discussed
by the Federal Court of Appeal in Semiahmoo Indian Band v Canada, [1998] 1 FC 3, at paragraph 72:
With
respect, I do not accept the appellants’ argument that each time the respondent
was less than frank in response to an inquiry by the Band, the respondent
committed a new equitable fraud, thereby giving rise to a fresh cause of
action. The issue of equitable fraud cannot be considered separately from the
issue of the proper application of limitation periods. In my view, to construe
each interaction between the Crown and the Band as a separate fraud by the
Crown is to create a disjointed reality. It is an attempt to give effect to the
concept of a continuing breach of fiduciary duty through the back door, in
order to skirt the issue of limitation periods altogether. Rather, the issue of
the just application of limitation periods in the circumstances of the case at
bar must be considered frontally. Thus, the question is, having regard to the
special relationship between the Crown and the Band, and the conduct of the
Crown, when should the Band have been in a position to bring a cause of action?
It is an objective test most appropriately applied in the context of subsection
6(3) of the B.C. Limitation Act.
[101] Also
of importance for the present case is the warning of the Ontario Court of
Appeal in Authorson, above, at paragraph 134:
In our view none of this
amounts to concealment of the sort that would give rise to the operation of the
equitable fraud exception in the circumstances. Public policy can only be set
effectively if government officials are free to consider all lawful options in
the course of wide-ranging and unrestricted discussion. Courts should not infer
impropriety on the part of government simply from the ebb and flow of
legitimate policy discussions amongst public servants.
[102] Examining
the evidence of equitable fraud and concealment put forward by the Plaintiffs
in this case, I find a significant number of allegations that are just not
supported by a convincing factual basis. As the Defendant contends, there is
also substantial documentary evidence showing that the facts underlying the
Plaintiffs’ claim were widely known in the Plaintiffs’ community and amongst
Band Members, so that the Plaintiffs clearly understood, or reasonably should
have understood, that they had a claim as early as 1944, and certainly by 1956.
There is no reasonable explanation, in my view, for the delay.
[103] I
also accept that the Defendant will be prejudiced by the passage of time. The
testimony of the deceased Original Members is highly relevant to the claims the
Plaintiffs have advanced, particularly those relating to their consent to the
1911 Agreement. Although their evidence could be introduced by other means, the
Defendant cannot test their evidence. On the whole, I am not satisfied I should
exercise my discretion to extend the time for filing under paragraph 2(1)(b)
of POPA.
[104] At
the very latest, the Plaintiffs claim was discoverable in 1956, as discussed
above. Giving the Plaintiffs the benefit of the longest limitation period
available under POPA, on the basis of the facts before the Court their action
was time barred in 1958 at the latest.
Limitations of Actions Act
[105] Much
the same can be said for the LAA as for POPA. The Plaintiffs say that relying
upon the Semiahmoo Indian Band, above, decision and the Defendant’s
conduct, the Plaintiffs could not have been aware of their cause of action
until becoming aware of various facts identified during the research they
conducted after they submitted their initial claim, and likely not until the
transcripts of the Trelenberg and McFadden Inquiries became available. They say
it was only at that point that it could be said the Plaintiffs would view the
Band’s claim as having “a reasonable prospect of success.”
[106] I
just do not think that the evidence supports this position. As discussed above,
the Plaintiffs’ claim and the full significance of that claim were
discoverable by 1956 at the latest.
[107] Paragraphs
3(1)(e), (f), (g), (h), (j) and 12 of the
LAA are all potentially applicable to the Plaintiffs’ claim depending on how it
is framed. The longest time limit provided by these sections is 10 years. A
cause of action arises for purposes of limitation when the material facts on
which it is based have been discovered or ought to have been discovered by the
plaintiff by the exercise of reasonable diligence. In my view, the evidence
shows that the Plaintiffs clearly understood, or should, with reasonable
diligence, have clearly understood the material facts supporting their case in
1948, or 1956 at the latest.
[108] Plaintiffs
are expected to act diligently and not “sleep on their rights.” See M(K) v
M(H), [1992] 3 S.C.R. 6 (QL) at paragraph 24. The latest the Plaintiffs
could have filed their claim was in 1966, assuming the 10 year limitation
period under subsection 12(1) of the LAA is applicable in this case. The 10
year limitation period in section 12 is the longest available under the LAA, so
even if a different section of the LAA applies in this case, the Plaintiff’s
claim will still be time- barred.
Conclusions
[109] My
conclusions are that, although the Defendant has not made a case for striking
the claim pursuant to section 221, the Defendant has made a case for summary
dismissal under section 215 in that, as regards the claim being time-barred
under the POPA and/or LAA, there is no genuine issue for trial. The Plaintiffs
have not shown that I should exercise my discretion under section 2(1)(b)
of POPA to extend the time for filing a claim and I decline to do so.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
Amended Statement of Defense shall be amended to include subsection 2(1) of the
Public Officers’ Protection Act and paragraph 3(1)(j) of the Limitation
of Actions Act as a defence to the claim;
2.
The
claim is summarily dismissed on the basis of limitations in that the limitation
period for advancing the claim has long since passed pursuant to the Public
Officers’ Protection Act, and/or the Limitation of Actions Act;
3.
The
Defendant shall have costs of this motion and the action.
“James
Russell”