Macneil v. Canada, 2004 FCA 50

Date: 20040203

Docket: A-541-02

Citation: 2004 FCA 50

CORAM:        STONE J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                          MINNIE NORMA MACNEIL and ROBERT GARY MILLER

as representative of the heirs of the late Minnie Norma MacNeil

                                                                                                                                                     Appellants

                                                                                 and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the

INDIAN AND NORTHERN AFFAIRS DEPARTMENT, CHARLOTTE MILDRED

MARTIN, RANDOLF LAWRENCE MARTIN, ANNETTE DIANNE MARTIN and

JOYCE PATRICIA MARTIN

Respondents

                                          Heard at Toronto, Ontario on December 15, 2003.

                                    Judgment delivered at Ottawa, Ontario, February 3, 2004.

REASONS FOR JUDGMENT BY:                                                                                     SEXTON J.A.

                                                                                                                                            SHARLOW J.A.

CONCURRING IN PART BY:                                                                                               STONE J.A.

Date: 20040203

Docket: A-541-02

Citation: 2004 FCA 50

CORAM:        STONE J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                          MINNIE NORMA MACNEIL and ROBERT GARY MILLER

as representative of the heirs of the late Minnie Norma MacNeil

                                                                                                                                                     Appellants

                                                                                 and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the

INDIAN AND NORTHERN AFFAIRS DEPARTMENT, CHARLOTTE MILDRED MARTIN, RANDOLF LAWRENCE MARTIN, ANNETTE DIANNE MARTIN and JOYCE PATRICIA MARTIN

                                                                                                                                               Respondents

                                                        REASONS FOR JUDGMENT

SEXTON J.A.

Introduction

[1]                 The issue in this case is whether the Motions Judge committed a reviewable error by dismissing the appellants' claim against the Crown on a summary judgment motion on the grounds that the appellants were barred by a limitation period from pursuing their claim.

[2]                 The essence of the appellants' claim against the Crown related to its treatment of a piece of reserve land bequeathed under the Will of a deceased member of the Six Nations Reserve. In particular, the appellants claim that the Department of Indian and Northern Affairs negligently issued an unrestricted Certificate of Possession for this piece of land to a person who merely had a life interest in the land under the Will, with the effect that the appellant Minnie Norma MacNeil's residuary interest in that land was eliminated. It is not up to this Court to decide the merits of the appellants' claim against the Crown; rather, the issue is whether the Motions Judge erred in granting summary judgment on the grounds that Minnie Norma MacNeil was barred by a limitation period from pursuing her claim against the Crown because she knew or ought to have known about the issuance of the Certificate of Possession at least 20 years before commencing her claim.

Facts

[3]                 On January 6, 1952, David General, the grandfather of the appellant Minnie Norma MacNeil (formerly Minnie Miller), died with a Will. David General was a member of the Six Nations of the Grand River.

[4]                 The relevant clause of David General's Will for the purposes of this appeal provided as follows:

Charlotte (Martin) is also to have a life lease on the homestead and premises situated on Lot 18, Concession 3, containing 25 acres just so long as she remains as she is now. In the event that she returns to her husband she is to vacate the property in Lot 18 and same is to be sold and the proceeds to be divided equal between Minnie Miller, Charlotte Martin, Morgan General and Theodore General. In the event that Charlotte dies without returning to her husband, the same division above mentioned is to apply to this parcel.

[5]                 On May 1, 1952, the Deputy Minister of the Department of Citizenship and Immigration Indian Affairs Branch approved the Will of David General and appointed Charlotte Martin, David General's daughter, as administrator of the estate.

[6]                 There is evidence that after the death of David General, the Indian Affairs Branch of the Department of Citizenship and Immigration expressed concern regarding how to interpret the clause of the Will that is at issue in this case. In a letter dated July 7, 1952, the Acting Superintendent, Reserves and Trusts, considered treating the clause as providing a conditional gift of the land to Charlotte Martin, provided that she did not return to her husband, as opposed to merely a life interest. The relevant portion of the letter provided:

We do not consider that this bequest should be treated as a life estate but rather a conditional gift. However, if any of the heirs believe that this opinion may not be correct, we will submit it to our Legal Advisers for an opinion...

Upon receipt of an agreement of the heirs, or a letter from you that the heirs are unable to come to any agreement, we will endeavour to advise you how to conclude the administration of the Annie and David General estates.

[7]                 In a Memorandum to the Superintendent of the Six Nations Indian Agency, dated October 4, 1967, the Administrator of Estates, J.F. Cullinan seemed to indicate that a Certificate of Possession would be issued to Charlotte Martin subject to the terms of the will:

The subject estate file has again come under review and we note that the only outstanding problem in this estate is the distribution of the land assets in the north half of Lot 18, Concession 3, Tuscarora.

The terms of the Will in this case have been carefully checked and as it now appears certain that Charlotte Martin will not return to her husband we are preparing to transfer this estate asset and then a Certificate of Possession will be issued in her name subject to the conditions as laid down in the Will. Accordingly, we are today requesting such a transfer and as soon as the necessary evidence of title is available in the name of the transferee you will be advised of this fact.

We trust we shall be able to advise you concerning the conclusion of the administration of this estate at an early date. [emphasis added]

[8]                 On April 5, 1968, the Department of Indian and Northern Affairs issued a Certificate of Possession to Charlotte Martin. However, contrary to the October 1967 Memorandum, the Certificate of Possession issued to Charlotte Martin was not subject to any conditions and it did not in any way indicate that she only had a life interest in the land at issue.

[9]                 The appellants' evidence is that Minnie Norma MacNeil first became aware that her interests were adversely affected by the issuance of the Certificate of Possession in favour of Charlotte Martin when she consulted a lawyer in 1990. Minnie Norma MacNeil's lawyer sent a letter to the Department of Indian and Inuit Affairs on April 23, 1990. On July 18, 1990, in response to this letter, the Chief of Estates Operation of Band Governance and Indian Estates Directorate, Indian and Inuit Affairs indicated that Charlotte Martin had received unrestricted title to the land at issue 17 years previously. This letter stated:

Your letter to the Brantford office of Indian Affairs dated April 23, 1990, has been referred to my attention.

You will note from the enclosed abstract pages that Lots 18-13-2 and 8-13-3 have been purchased by third parties for valuable consideration. Although Lot 18-13-1 remains in the name of Charlotte Mildred Martin, she received title to this lot over 17 years ago.

Owing to the passage of time and the interests of other parties involved, the transfer to Mrs. Martin cannot now be changed to reflect a life interest only.

[10]            On June 5, 1991, the appellant, Minnie Norma MacNeil, issued a Statement of Claim against the Crown. The essence of the appellant's claim against the Crown was that David General's Will merely granted Charlotte Martin a life estate in the subject lands, and that Minnie Norma MacNeil had a residuary interest in those lands. As a result, the Crown was negligent in issuing an unrestricted Certificate of Possession to the life interest beneficiary, Charlotte Martin, which had the effect of negating the residuary interest that Minnie Norma MacNeil was granted under the Will.

[11]            On March 4, 1999, the appellant, Minnie Norma MacNeil died, and on June 24, 1999, Charlotte Martin died.

[12]            After the death of Minnie Norma MacNeil, the action against the Crown was continued by one of her sons, Robert Garry Miller. He is acting on behalf of all of the heirs of Minnie Norma MacNeil. The Statement of Claim was amended on May 5, 2000 to reflect this change. The Statement of Claim was also amended to add Charlotte Martin, and various members of her family who hold Certificates of Possession for the land at issue, as defendants in the action. The Statement of Claim was further amended on September 6, 2001.

[13]            On March 27, 2002, the Crown filed a Notice of Motion for summary judgment on the grounds that the appellant, Minnie Norma MacNeil, did not commence her claim against the Crown within the time required by subsection 45(1) of the Limitations Act, R.S.O. 1990, c. L. 15 (the "Limitations Act"). The Crown issued the Certificate of Possession to Charlotte Martin in 1968 and the appellant did not commence her claim until 1991, well after the 6 year limitation period provided for in subsection 45(1).

[14]            The appellants defended against this motion for summary judgment by arguing that the Crown had never advised Minnie Norma MacNeil that it was considering expunging her interests in the land at issue. They supported their arguments with affidavit evidence. The appellant, Robert Gary Miller, Minnie Norma MacNeil's son, gave evidence that his mother always believed she was entitled to her interest in the land at issue following Charlotte Martin's death and that she had no knowledge that her interest in the homestead property was adversely affected by the issuance of a Certificate of Possession until 1990. As a result, the limitation period did not begin to run until 1990. Alternatively, the limitation period did not begin to run until Minnie Norma MacNeil's interest under the Will vested upon the death of Charlotte Martin.

[15]            The only evidence put forward by the Crown on the summary judgment motion which might indicate that Minnie Norma MacNeil was aware of the issuance of the Certificate of Possession to Charlotte Martin was a Memo to File dated August 16, 1968, apparently written by an employee at the Department of Indian and Northern Affairs. This memo provided as follows:

I was visited on August 16 by people who introduced themselves as Mrs. Geddes, Mrs. Norma McNeale (sic) and Mr. and Mrs. Ken Miller. Mrs. Geddes is apparently the daughter of David General and Norma McNeale (sic) is the granddaughter. Ken Miller is the great-grandson. Mrs. Geddes was asking about Norma McNeale's right to 25 acres in Lot 18, Concession 3 and seemed quite surprised when I informed her that a Certificate of Possession had been issued to Charlotte Mildred Martin. The matter hinges on the interpretation of a Will regarding a clause dealing with a life estate. The upshot of the conference was that I advised her to come back and see Mr. Hill when he returned from holidays (in my presence) so that we could go over all of the details.

[16]            The appellants argue that this Memorandum only states that information was given to Mrs. Geddes regarding the Certificate of Possession. It does not state that information was given to Minnie Norma MacNeil and was brought home to her. Furthermore, this memo does not indicate that the Crown informed anyone, including Minnie Norma MacNeil, that the Certificate of Possession was not issued subject to the terms of the Will and therefore would have the effect of extinguishing the residual beneficiaries' interests in the lands.

Decision Below

[17]            The Motions Judge found that when a defendant demonstrates that a limitation period has prima facie expired, the plaintiff has the burden of showing that he or she did not know and could not with reasonable diligence have known that he or she had a right of action such that the limitation period has not expired. The Motions Judge found that the appellants failed to discharge the burden on them, stating: "Here, the plaintiff has failed to give any evidence to show that Minnie Norma MacNeil did not know and could not reasonably have discovered that Charlotte Martin had dealt with the property in a very public manner and one which was incompatible with her claim some 20 years before the action was brought." The Motions Judge stated that the little evidence that was available, the admissibility of which he was not persuaded, indicated that as early as 1968 Ms. MacNeil had been told of the issuance of the Certificate of Possession.

[18]            In addition, the Motions Judge rejected the appellants argument that the limitation period did not start to run against them until the death of Charlotte Martin and the "vesting" of the plaintiffs' rights to the property.

Relevant Statutory Provisions

Federal Court Rules, 1998 (SOR/98-106)

Limitations Act

Arguments

[19]            The appellants argued that the Motions Judge erred in failing to find that there was a genuine issue for trial with respect to the applicable limitation period in this case. According to the appellants, the appropriate limitation period is not set out in subsection 45(1) of the Limitations Act, but rather is set out in subsections 5(11) and 6(1). According to these latter provisions, Minnie Norma MacNeil's cause of action against the Crown did not arise and the limitation period did not commence until she was entitled under the Will to her remainder interest in the land at issue, which was upon the death of Charlotte Martin, the life interest holder, in 1999.

[20]            The appellants also argued that even if the appropriate limitation period is six years after the cause of action arose as set out in subsection 45(1) of the Limitations Act, according to the "discoverability principle", the cause of action does not arise until the plaintiff knows or ought to have known about the material facts giving rise to the cause of action. In this case, whether or not Minnie Norma MacNeil knew or ought to have known about the material facts giving rise to her cause of action more than six years before she filed the Statement of Claim presents a genuine issue for trial. According to the appellants, contrary to the finding of the Motions Judge that they did not submit "any" evidence on this point, they submitted affidavit evidence that Minnie Norma MacNeil only learned in 1990 that her interest in the estate had been adversely affected by the issuance of a Certificate of Possession to Charlotte Martin. As a result, the Motions Judge erred in finding there were sufficient facts to hold that Minnie Norma MacNeil ought to have known prior to 1990 that the Certificate of Possession was not issued subject to the terms of the will. Since she commenced the action in 1991, the limitation period has not expired.

[21]            Furthermore, the appellants argued that on a motion for summary judgment, the onus is on the moving party to establish that there is no genuine issue for trial. As a result, the Motions Judge erred in finding that the onus was on the appellants.

[22]            The respondent argued that under subsection 45(1) of the Limitations Act, the appellants were required to bring their claim within six years of the cause of action arising. Since the Certificate of Possession was issued in 1968, prima facie, the limitation period has expired. The appellants therefore had the onus of filing affidavit or other evidence establishing that there is a genuine issue for trial with respect to whether or not the appellants' cause of action was reasonably discoverable at the time the certificate of possession was issued. The Motions Judge did not err in holding that they had failed to satisfy this onus.

[23]            The respondent also argued that the Motions Judge did not err in finding that subsections 5(11) and 6(1) of the Limitations Act do not apply. The appellants' claim against the Crown is based on an allegation of an improper action by Crown servants in 1968, and as a result, the limitation period should run from the date of the cause of action not at the time of Charlotte Martin's death. Furthermore, once the Certificate of Possession was issued to Charlotte Martin, Minnie Norma MacNeil no longer had a "future interest" in the land in question and as a result subsections 5(11) and 6(1) also do not apply for this reason. In any case, the respondent argued that according to section 47 of the Indian Act, R.S.C. 1952, c. 149 (the "Indian Act"), the Minister's decision to issue a certificate of possession can only be challenged within two months from the date the decision was made.

Issues

1.         What was the appellants' onus on the summary judgment motion with respect to the issue of whether Minnie Norma MacNeil knew or ought to have known the material facts giving rise to the cause of action such that she was precluded by subsection 45(1) of the Limitations Act from making her claim?

2.          Did the Motions Judge make a reviewable error by holding that the appellants failed to fulfill this onus?

3.          Did the Motions Judge make a reviewable error by deciding that the limitation period in subsections 5(11) and 6(1) of the Limitations Act did not apply?

Analysis

1.         What was the appellants' onus on the summary judgment motion with respect to the issue of whether Minnie Norma MacNeil knew or ought to have known the material facts giving rise to the cause of action such that she was precluded by subsection 45(1) of the Limitations Act from making her claim?

[24]            It is not entirely clear from the decision of the Motions Judge whether he was of the opinion that the appellants' burden of proof on the summary judgment motion was to establish that Minnie Norma MacNeil did not know and could not have known with reasonable diligence that she had a right of action when the Certificate of Possession was issued or whether he was simply stating that this was the burden that the appellants would have at trial. If the Motions Judge was of the opinion that this was the appellants' burden of proof on the motion for summary judgment then this was an error of law.

[25]            If a defendant argues at trial that a limitation period has prima facie expired, the plaintiff has the onus to prove that the limitation period has not expired because the plaintiff was not aware of the material facts giving rise to the cause of action within the required period of time before the Statement of Claim was filed. See Findlay v. Holmes, [1998] O.J. No. 2796 (Ont. C.A.). However, parties responding to a motion for summary judgment do not have the same onus as they would if they were plaintiffs at trial. Parties responding to a motion for summary judgment do not have the burden of proving all of the facts in their case; rather, according to rule 215 of the Federal Court Rules, 1998 responding parties have only an evidentiary burden to put forward evidence showing that there is a genuine issue for trial:

215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.

As a result, on the summary judgment motion, the appellants had to put forward evidence showing that there was a genuine issue as to whether or not Minnie Norma MacNeil knew or ought to have known that she had a right of action against the Crown prior to the six year period leading up to the filing of the Statement of Claim.

[26]            While it is not clear whether or not the Motions Judge correctly understood the appellants' onus, in any case, this would not likely have changed his decision because he found that the appellants failed to put forward "any" evidence that Minnie Norma MacNeil did not know and could not reasonably have known of the cause of action prior to filing her Statement of Claim.

2.         Did the Motions Judge make a reviewable error by holding that the appellants had failed to present any evidence on the issue of discoverability?

[27]            The Motions Judge in this case acted under rule 216(3) of the Federal Court Rules, 1998. He stated: "In my view, the wording of rule 216(3) is specific in instructing the Court to make findings of facts where it is able to do so on the material and in a fair and just manner." He proceeded to find that the appellants had not presented any evidence on the issue of discoverability:

Here, the plaintiff has failed to give any evidence to show that Minnie Norma MacNeil did not know and could not reasonably have discovered that Charlotte Martin had dealt with the property in a very public manner and one which was incompatible with her claim some 20 years before the action was brought. The burden has not been discharged. Furthermore, such evidence as there is, and there is very little indeed, and I have by no means been persuaded of its admissibility, indicates that as early as 1968 Ms. MacNeil had been told of the issuance of the Certificate of Possession to Charlotte Martin and had warned the latter not to act in a way incompatible with her interests. At the very least, that would indicate to me that she was put on inquiry. That is enough, in my view, to dispose of the issue of discoverability on which, as I say, the plaintiff bears the burden.

[28]            Under rule 216(3), a motions judge is given the discretion to grant summary judgment in favour of a party even if there is a genuine issue for trial if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law. According to Reza v. Canada, [1994] 2 S.C.R. 394, the standard of review to be applied to the discretionary decision of a motions judge is whether the judge gave sufficient weight to all relevant considerations. This test was also followed by this Court in Apotex Inc. v. Merck & Co., [2003] 1 F.C. 242 (F.C.A.).

[29]            The Motions Judge erred by finding that the appellants "failed to give any evidence" to show that Minnie Norma MacNeil did not know or could not reasonably have known about the cause of action at the time of the issuance of the certificate of possession. In making this finding, the Motions Judge clearly ignored the affidavit evidence of Minnie Norma MacNeil's son, Robert Gary Miller on this issue, which was a highly relevant consideration. In his affidavit, Mr. Miller indicated his belief that his mother "always thought she was entitled to her interest in the homestead property following Charlotte Martin's death." As well, during the cross-examination of Mr. Miller on his affidavit, he indicated his belief that prior to 1990, Minnie Norma MacNeil never received a copy of the Certificate of Possession nor was she told that one had been issued. Further, he stated in his affidavit that his mother "had no sophistication in Indian estate matters. Even if she was made aware of the existence of a Certificate of Possession, she would not have understood that this negated any residual interest she had in the homestead property following Charlotte Martin's death." He also indicated his belief that the first time his mother would have had knowledge that her interest in the homestead property was adversely affected by the issuance of a Certificate of Possession would have been in 1990.

[30]            Even if the relevant standard for reviewing the Motions Judge's finding in this case was that of palpable and overriding error, this threshold is met.

[31]            The only evidence that the Motions Judge seemed to find on this issue of discoverability was the 1968 Memorandum indicating that there had been a meeting with a representative of the Crown and certain beneficiaries under David General's Will, including Minnie Norma MacNeil, and that at this meeting the Crown representative told Mrs. Geddes, the daughter of David General, that a Certificate of Possession had been issued. However, the appellants have put forward evidence suggesting that even if Minnie Norma MacNeil was aware that a Certificate of Possession had been issued to Charlotte Martin, she would not have understood the legal significance of this. Furthermore, there is no evidence that the Crown representative explained to any of the beneficiaries, including Minnie Norma MacNeil, the contents of the Certificate of Possession. As a result, even if Minnie Norma MacNeil was aware that a Certificate of Possession had been issued, in order for her to have been aware of the material facts giving rise to the cause of action, she would have had to know that the Certificate of Possession had been issued in a way that was not consistent with the terms of the Will. A Certificate of Possession issued to Charlotte Martin in accordance with the terms of the Will may not have precluded Minnie Norma MacNeil from acquiring her interest in the homestead property upon the death of Charlotte Martin. See Cécile Pronovost v. Minister of Indian and Northern Development et al, [1985] 1 F.C. 517 (F.C.A.) at p. 522.

[32]            In my view, the Motions Judge's statement that the appellants presented no evidence on this issue was clearly wrong. On a summary judgment motion, evidence is presented by affidavit. The affidavit evidence in this case clearly raises a genuine issue for trial. Furthermore, the decision of whether or not to accept the evidence of Robert Miller on this point will come down to credibility, and, as a result, a trial judge who will hear Robert Miller give oral evidence is best suited to decide this issue. The case law is clear that where there is an issue of credibility involved, the case should not be decided on summary judgment under rule 216(3) but rather should go to trial because the parties should be cross-examined before the trial judge. See Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (F.C.T.D.) ("Granville Shipping"), which was approved by this Court in ITV Technologies Inc. v. WIC Television Ltd., 2001 F.C.A. 11, (2001) 11 C.P.R. (4^th) 174 ("ITV").

[33]            The Motions Judge's findings that the appellants failed to give any evidence that Minnie Norma MacNeil did not know or could not reasonably have discovered that "Charlotte Martin had dealt with the property in a very public manner and one which was incompatible with her [Minnie Norma MacNeil's] claim some 20 years before the action was brought" also rests on the drawing of inferences. It was suggested in oral argument, that Charlotte Martin's children constructed houses on the land at issue prior to 1990. As a result of the construction of these houses, the Motions Judge seemed to draw the inference first that Minnie Norma MacNeil must have seen these houses and second that she must necessarily have known that the construction of these houses was contrary to her remainder interest under the Will. In Wetzel v. Canada, [2000] F.C.J. No. 155, the Motions Judge declined to draw an inference on a motion for summary judgment. He stated:

I only say that the inference is possible, I do not say that it is necessary because I do not think that on a motion for summary judgment I should decide a contested issue of fact one way or the other on a matter which should only be settled by the drawing of inferences. [emphasis added]

Similarly, in Apotex Inc. v. Merck & Co., [2003] 1 F.C. 242 (F.C.A.) ("Apotex"), this Court also held that under rule 216(3), motions judges can only make findings of fact or law provided the relevant evidence is available on the record and does not involve a "serious" question of fact or law which turns on the drawing of inferences. In my opinion, the Motions Judge's finding in this case rests on the drawing of inferences, and as a result, for this additional reason the Motions Judge erred by granting summary judgment.

[34]            I note that when the Motions Judge reached the conclusion that he was able to make findings of fact he said that Ontario case law on the issue of summary judgment should not be followed in this Court. As a result, he declined to consider two Ontario Court of Appeal decisions holding that on motions for summary judgment where there is an issue of "discoverability" under the Limitations Act, a motions judge should not make findings of fact. However, in Granville Shipping, supra, which was accepted by this Court in ITV, supra, the Court specifically held that when dealing with summary judgment cases, "provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation" even while recognizing that the Ontario Rules are not as broad as the Federal Court Rules. In Granville Shipping, supra, the Court also followed the principle from Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 ("Pizza Pizza"), a decision of the Ontario Court General Division, that the test for granting summary judgment is where a case is so doubtful that it does not deserve consideration by the trier of fact.

[35]            The decision of the Motions Judge regarding the relevance of Ontario case law demonstrates some of the confusion that exists about the appropriate meaning of rule 216 and the role of the court on a motion for summary judgment. The Motions Judge found that rule 216(3) entitled him to make findings of fact in the circumstances of this case. However, relying in part on the Ontario decision of Pizza Pizza, supra, this Court has held that where there are issues of credibility, the case should go to trial. See Apotex, supra and Feoso Oil Ltd. v. "Sarla" (The), [1995] 3 F.C. 68 at para. 19. In Feoso Oil, supra, Stone J.A. quoted from the Ontario case Pizza Pizza, supra, regarding the issue of credibility. Stone J.A. stated at para. 13:

In Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.) Henry J. after reviewing several earlier decisions of Ontario courts, had this to say at pages 237-238:

In my opinion, there is a lower threshold that is contemplated by the new Rule 20 and the case law developing. It is that the court, in taking a hard look at the merits, must decide whether the case merits reference to a judge at trial. It will, no doubt, have to go to trial if there are real issues of credibility, the resolution of which is essential to determination of the facts...

As already discussed, since credibility is clearly at issue in this case, summary judgment should not have been granted.

[36]            Rule 216 presents problems both for the judge hearing the application and for the parties. Once a judge declines under rule 216(1) to grant summary judgment because there is a genuine issue for trial, the same judge may well then be asked to grant summary judgment under rule 216(3). If he grants judgment, he thus deprives the party who has already established that there was a genuine issue for trial, of a trial. This puts the judge in a difficult position. While the responding party would be arguing that they had already complied with rule 215 by showing specific facts that established a genuine issue for trial, the applicant would be arguing that the judge, on the whole of the evidence, should be able to grant summary judgment. It would be very difficult for a judge to know whether he really has sufficient evidence to make such a decision, keeping in mind that the respondent was not obliged to file all of their evidence.

[37]            Rule 216(3) has the potential to result in a fundamental unfairness by denying parties their right to a trial where there are genuine issues for the trier of fact. It is not fair that issues which have been determined to be genuine requiring a trial should be resolved on a motion because of the fundamental differences between motions and trials. To begin with, a motions judge will likely not have all of the evidence that would be available at trial. Indeed, rule 215 only requires that the party responding to the motion for summary judgment put his best foot forward by setting out facts "showing that there is a genuine issue for trial." Nowhere in the Rules is a responding party required to bring forward sufficient evidence so that genuine issues for trial may be resolved on a motion for summary judgment. As a result, once the Motions Judge decides that there is a genuine issue for trial, the discretion given to him to nevertheless grant summary judgment by deciding the questions of fact could result in unfairness.

[38]            The form of evidence available during motions and at trials is also significantly different. At a trial, the parties are provided with the opportunity to tell their story to the court both by giving oral evidence themselves and by offering the oral evidence of other witnesses. As a result of this viva voce evidence, the trial judge is in the best position to properly assess credibility and to sift through and weigh the evidence. On a motion for summary judgment, the judge is presented with affidavit evidence and does not have the opportunity to see and hear the evidence of witnesses. Without viva voce evidence, a motions judge faced with a genuine issue for trial cannot properly assess credibility or sift through and weigh the evidence. In my opinion, the following statement by the Ontario Court of Appeal in Aguonie et al. v. Galion Solid Waste Material Inc. et al., (1998) 38 O.R. (3d) 161, when it was interpreting the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dealing with summary judgment sheds light on the problems associated with rule 216(3):

An issue of fact must relate to a material fact. As Morden A.C.J.O. pointed out in Ungerman, supra, at p. 550: "[i]f a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a 'genuine issue for trial.' In ruling on a motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence, and drawing factual inference are all functions reserved for the trier of fact. [emphasis added]

...

As I read these observations, it must be clear to the motions judge, where the motion is brought by the defendant, as in this appeal, that it is proper to deprive the plaintiffs of their right to a trial. Summary judgment, valuable as it is for striking through sham claims and defences which stand in the way to a direct approach to the truth of a case was not intended to, nor can it, deprive a litigant of his or her right to a trial unless there is a clear demonstration that no genuine issue exists, material to the claim or defence, which is within the traditional province of a trial judge to resolve.

Because of these fundamental differences between motions and trials, in my opinion, genuine issues for trial raised by the affidavit evidence should not be decided on motions for summary judgment.

[39]            All of this is not to say that summary judgment does not have a role to play in resolving subsidiary issues which can result in a shorter trial and in some cases, where there is no genuine issue for trial found, obviating the need for a trial at all. In Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A), Morden A.C.J.O. stated:

A litigant's "day in court", in the sense of a trial, may have traditionally been regarded as the essence of procedural justice and its deprivation the mark of procedural injustice. There can, however, be proceedings in which, because they do not involve any genuine issue which requires a trial, the holding of a trial is unnecessary and, accordingly, represents a failure of procedural justice. In such proceedings, the successful party has been both unnecessarily delayed in the obtaining of substantive justice and been obliged to incur added expense.

However, in my opinion, the fact that rule 216(3) gives a motions judge the discretion to decide questions which have already been labelled genuine issues for trial on a "summary" motion may result in unfairness as well as uncertainty as to precisely what the scope of the power of the Motions Judge is intended to be. In my opinion, once there is a genuine issue for trial, the parties should have a right to have those issues resolved at trial.

3.          Did the Motions Judge err by deciding that there was not a genuine issue for trial with respect to whether subsections 5(11) and 6(1) of the Limitations Act apply instead of subsection 45(1)?

[40]            The Motions Judge simply rejected the appellants' argument that subsections 5(11) and 6(1) of the Limitations Act applied instead of subsection 45(1) without analyzing these arguments. Before a motions judge determines that there is no genuine issue for trial, there should at least be some analysis of the arguments. I note that in this case the appellants were not simply asking for damages against the Crown but they were also asking for certain declarations relating to Minnie Norma MacNeil's interest under the Will. While I decline to decide which is the applicable limitation period in this case, I think that the Motions Judge erred by simply rejecting the appellant's arguments without apparently considering whether they raised a genuine issue for trial. If the appellants arguments are correct and sections 5 and 6 of the Limitations Act do apply to this case, the previous issue of discoverability becomes academic because the limitation period would not have started to run until 1999 when Charlotte Martin died.

[41]            Finally, in this appeal, in addition to arguing that the applicable limitation period under subsection 45(1) of the Limitations Act has already expired, the respondent also argued that under section 47 of the Indian Act, the limitation period to appeal a decision of the Minister made pursuant to section 42, 43 or 46 of the Indian Act is two months from the time of the decision, and that this had also expired. Section 47 of the Indian Act provided:

A decision of the Minister made in the exercise of the jurisdiction or authority conferred upon him by section forty-two, forty-three or forty-six may, within two months from the date thereof, be appealed by a person affected thereby to the Exchequer Court of Canada, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to the appeal.

Since this argument was not raised at the summary judgment motion, I do not think that it is appropriate to decide this issue.

[42]            In any case, because on the evidence before the Court, Mrs. MacNeil may not have been informed that a Certificate of Possession had been issued to Charlotte Martin in a manner that was not consistent with the terms of the Will, she may not have known that she was "affected" by it within the meaning of section 47 of the Indian Act. This issue would have to await a full trial before being determined.

Conclusion

[43]            The appeal should be allowed with costs.

[44]            Since the Motions Judge erred by granting summary judgment and dismissing the appellants' claim against the Crown, it is unnecessary to consider the respondent's cross appeal that this Court should also dismiss the claim against the other defendants named in the appellants' Statement of Claim.

                                                                             "J. EDGAR SEXTON"         

                                                                                                              J.A.

"I agree

   K. Sharlow J.A."

STONE J.A.

[45]            I am in entire agreement with the reasons for judgment of Sexton J.A. with respect to the issues raised for decision and agree with the disposition he proposes.

[46]            I would prefer not to express a final view on the operation of rule 216(3) which is canvassed by my colleague in paragraphs 36 through 40, as the present case does not require me to do so. I wish merely to note that the subsection in its present format was adopted at the time of the general revision of the Court's rules in 1998, and is a variation of former rule 432.3(4) which, in turn, appears to have been patterned on rule 20.03(4) of the Manitoba Court of Queen's Bench Rules. Rule 216(3) permits a judge on a motion for summary judgment, after finding that a "genuine issue" exists, to conduct a trial on the affidavit evidence with a view to determining the issues in the action if it is possible to do so. The jurisprudence of this Court suggests, however, that this is not always possible to do, particularly where there are conflicts in the evidence, where the case turns on the drawing of inferences or where an issue of credibility is at stake: Feoso Oil Ltd. v. "Sarla" (The), [1995] 3 F.C. 69 (C.A.); Dek-Block Products Ltd. v. Patio Drummond Ltée, 2002 FCA 188; Apotex Inc. v. Merck & Co. , [2003] 1 F.C. 242 (C.A.). In such situations, a full trial was required in order to resolve the factual issues.

[47]            It would be best that I say nothing more on the point but leave it for another occasion when the point is squarely raised and fully argued.

                                                                                           "A.J. STONE"            

                                                                                                              J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              A-541-02

STYLE OF CAUSE:              MINNIE NORMA MAC NEIL ET AL

Appellant

and

HER MAJESTY THE QUEEN

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        DECEMBER 15, 2003

REASONS FOR JUDGMENT:       SEXTON J.A

CONCURRED IN BY:                       SHARLOW J.A.

CONCURRING IN PART BY:         STONE J.A.                                                        

DATED:                                                 FEBRUARY 3, 2004

APPEARANCES:                                 Mr. Gerard Tillman                               FOR THE APPELLANT

Ms. Jennifer Roy

                                                               Mr. Gary Penner                                    FOR THE RESPONDENT

SOLICITORS OF RECORD:           Gerard Tillman    

London, Ont.    

                                                                 FOR THE APPELLANT         

                                                                Ms. Jennifer Roy

                                                                Toronto, Ont.

                                                                Morris Rosenberg

Deputy Attorney General of Canada                                                                                               

FOR THE RESPONDENT