Docket: A-490-14
Citation:
2015 FCA 197
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
BOIVIN J.A.
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BETWEEN:
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Appellant
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and
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THE LOUIS BULL
BAND, CHIEF SIMON THREEFINGERS, JONATHAN BULL, JOSEPH DESCHAMPS, CLYDE
ROASTING, RUSSELL THREEFINGERS, HARVEY ROASTING, ELAINE ROASTING, TELLY RAINE
and IRVIN BULL, the Chief and Councillors of the Louis Bull Band suing in
their representative capacity on behalf of all the members of the Louis Bull
Band
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
September 16, 2015).
BOIVIN J.A.
[1]
This is an appeal from a decision of a Federal
Court Judge (the Judge) dated October 6, 2014 (Docket T-2439-97).
[2]
In his Order, the Judge exercised his discretion
and partially granted a motion for summary judgment brought by the Crown seeking
the dismissal of the Louis Bull Band’s (the Band) claims. Relying in large part
on the Gainer Report, the Judge decided that some causes of action were
excluded by the limitation period while others lacked the proven material facts
to grant summary judgment and were best left to the trial judge.
[3]
The Crown appeals the portion of the Judge’s
decision where he found that the underlying material facts did not demonstrate
that the Band knew or should have known the issues pertaining to the mineral
title, HBC Lands and Lake Land claims. It therefore submits that the Judge
erred in law or made palpable and overriding errors of fact in overlooking
evidence.
[4]
The Crown also contends that the Judge erred in
placing the onus on the Crown to demonstrate that no concealment has occurred
with regard to disclosure. It further alleges that the Judge erred in law by
failing to consider the declaratory relief claims with respect to the Crown
holding mineral rights in trust for the benefit of the Band and with respect to
the loss of Lake Lands by accretion.
[5]
In the absence of an error on an extricable
point of law, the Judge’s decision is reviewable under the standard of palpable
and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.
235) which is a highly differential standard.
[6]
We are all of the view that the Judge reviewed
the facts and correctly applied the law and principles related to summary
judgments. The evidence, when read in context, supports the Judge’s
conclusions.
[7]
We also do not read from the Judge’s reasons
that he reversed the onus with respect to the issue of concealment. The Judge
was entitled to rely on the Gainer Report to assess the evidence and conclude
the way he did. We have not been persuaded that our Court should intervene.
[8]
However, there are two (2) grounds raised by the
appellant in its Notice of Motion for Summary Judgment which are absent from
the Judge’s reasons.
[9]
The first relates to the claim that seeks a
declaration that the mineral rights in the Lake Lands are held in trust for the
Band; the second relates to the claim that seeks damages for conversion of the
Lake Lands or loss of title by accretion.
[10]
Since the motion was only granted in part, the
failure by the Judge to address these two (2) claims leaves it unclear as to
whether or not he allowed them to proceed to trial. On the basis of the record
before us, we are in a position to decide the outcome of the motion on these
two unaddressed claims.
[11]
First, with respect to the claim seeking a
declaration that the mineral rights in the Lake Lands are held in trust for the
Band, we remain unconvinced by the Band’s terse assertion that the Crown should
consent to the declaration. The summary judgment motion will be granted with
respect to this claim.
[12]
Second, upon consideration of the record, we are
of the view that the context surrounding the claim in connection with the
conversion of the Lake Lands or loss of title by accretion is not conclusive. Specifically,
the ambiguity of the Gainer Report on this issue makes it such that different
inferences are reasonable (Gainer Report, Appeal Book, Vol. V, Tab J-9 at
pp.1149- 1151). In other words, the record does not allow us to resolve the
dispute at issue. The summary judgment motion will accordingly be dismissed
with regards to this claim.
[13]
For these reasons, the appeal will be granted in
part. In light of the divided success, each party will bear its own costs.
“Richard Boivin”
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