Tacan v. Canada

Tacan v. Canada
Court (s) Database
Federal Court Decisions
Date
2005-03-17
Neutral citation
2005 FC 385
File numbers
T-1756-01
Notes
Digest
Decision Content
Date: 20050317
Docket: T-1756-01
Citation: 2005 FC 385
Ottawa, Ontario, March 17, 2005
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
ALFRED TACAN, SOLOMON HALL,
and STAN McKAY
Plaintiffs
and
HER MAJESTY THE QUEEN, in Right of Canada
Defendant
REASONS FOR ORDER AND ORDER
[1] Alfred Tacan, Solomon Hall and Stan McKay are members of the Sioux Valley First Nations and are "Indians" as defined by the Indian Act, R.S.C. 1985, c. I-5. Each of them enlisted in the Canadian Armed Forces to serve in either World War II (Messrs. Tacan and McKay) or the Korean War (Mr. Hall). They allege that aboriginal veterans were not accorded the same advantages as other veterans and that they are victims of systemic discrimination. They filed a statement of claim in the Federal Court on October 4, 2001 and the matter has been under case management since May, 2003. The defendant says that the claims are unfounded and are statute barred. I have concluded that the defendant's position prevails.
THE PLAINTIFFS
[2] Mr. Tacan enlisted in the army during World War II. He served overseas, was discharged in 1946 and returned to the Sioux Valley Reserve in Manitoba. After his return, he obtained approximately $2,100 from the Canadian government to farm on the reserve. He initially encountered some difficulty in obtaining this funding. Mr. Tacan stopped farming in 1967 or 1968 and thereafter drove a school bus for about 15 years.
[3] Mr. Hall enlisted in 1951 and served in the Korean War. After his honourable discharge in 1954, he returned to the Sioux Valley Reserve. Like Mr. Tacan, Mr. Hall was able, as an aboriginal war veteran, to receive a government grant of approximately $2,300 for inputs to a farm on the reserve. Between 1976 and 1979, the Department of Indian Affairs (DIA) paid for Mr. Hall's attendance at university. He finished three credits shy of the requirements for a Bachelor of Arts degree.
[4] Mr. McKay enlisted in March, 1942, and was honourably discharged in July, 1942, because of his inability to meet the requisite physical standards during basic training. He did not go overseas. Upon his return to the Sioux Valley Reserve, Mr. McKay approached the Indian Agent, William Young, regarding financial assistance for the purchase of farm machinery. Mr. McKay failed to qualify for the veterans' benefit because he did not meet the eligibility requirements - he had not served overseas in the war, had not been in the military for at least a year and was not, at that time, receiving a disability pension. With Mr. Young's assistance, Mr. McKay was able to get a job on a farm on the reserve. Around 1978, with the help of his father, he was able to establish his own farm comprising approximately 500 acres of reserve land.
THE VETERANS' LAND ACT
[5] At the end of World War II, the federal government instituted a program under which agricultural land was made available to veterans for settlement. The goal was to assist veterans in the acquisition of farm land and farm houses. In general terms, a Director appointed under the Veterans' Land Act, R.S.C. 1970, c. V-4, as am., was authorized to acquire land, building materials, livestock, and equipment using government funds. The Director would, in turn, sell a farming package (not exceeding $6,000 in cost) to each eligible veteran for 2/3 of the package's actual value. The sale price would be paid by the veteran to the Director over a maximum of 30 years at an interest rate of 3.5%. If the veteran defaulted on the contract, the Director could rescind the contract, take possession and dispose of the land and chattels to another veteran, or, with ministerial consent, to any other person.
[6] The regime did not address the circumstances of settlement on provincial Crown lands, upon Indian lands, or upon land within national parks or otherwise vested in the federal Crown. Because Crown land could not be used as security for loans, it was determined that those who settled on such lands would get a grant of $2,320 applicable to farming, fishing, forestry or trapping. Similarly, because of the common ownership of reserve lands and the complex surrender procedure required to remove parcels of land from the reserve, the VLA, which provided for grants of full and exclusive ownership of farm land, could not be applied to lands in existing Indian reserves. Hence, amendments to the VLA were required.
[7] Section 35A was added in 1945 and authorized the Director to grant up to $2,320 to an Indian veteran for on-reserve farming. First Nation veteran farmers would acquire limited occupational rights to parcels of reserve land. At the time, the Indian Affairs Branch (IAB) of the Department of Mines and Resources administered Indian matters and was charged with control and management of these Indian veterans' benefits. Effectively, this handed responsibility for the administration of the VLA on reserve lands to the local Indian Agent. The Indian Agent was responsible for providing details of VLA benefits, looking into a veteran's qualifications, and managing the $2,320 grant. Indian veterans could use their grant for the purchase of building materials and other costs of construction, the clearing of land, livestock and machinery, and forestry and commercial fishing equipment. Indian Agents did not receive the money. Once a purchase was considered to be justified within the terms of the VLA, the Indian Agent made the purchase on behalf of the veteran. For each purchase, the Agent filled out a form indicating the amount spent. Both the person selling the item and the Indian veteran receiving the goods had to sign this form, and both signatures had to be witnessed. Invoices and vouchers were forwarded to the IAB and payment was sent directly to the person or business selling the goods.
[8] Subsequent amendments to the VLA provided new benefits to veterans. For example, in 1954, Part II was added and permitted financial and technical assistance to veterans constructing their own homes. In the same year, Part III was added to give additional loans to those veterans who had already received grants under the prior VLA system. The provisions and benefits of the VLA were made available to veterans of the Korean War by virtue of section 6 of the Veterans Benefits Act, 1954, S.C. 1953-54, c. 65. The Veterans' Land Regulations, SOR/65-215 required that all applications (of any sort) for Indian veterans be directed to the Department of Indian Affairs (DIA).
THE PLEADINGS
[9] The pleadings, for purposes of this motion, are briefly summarized here. Without detracting from the detail contained in the 107 paragraphs comprising the statement of claim, the crux of the plaintiffs' allegations is, in my view, encapsulated at paragraph 7 of the document which states:
The plaintiffs assert they and their dependents have been wrongfully deprived of Veterans benefits they were legally and morally entitled to as a result of their service in World War II, and the Korean war, which benefits were received by their non-Indian fellow soldiers. These benefits include loss of valuable free land grants, land purchase loans and grants, home purchase and improvement loans, professional and other training assistance and various other Veterans' benefits. The Plaintiffs assert that the value of the lost benefits of which they were deprived is potentially in the hundreds of thousands of dollars or more, and the withholding of these benefits has cause (sic) some of the Veterans a life as civilians marked by poverty and humiliation. The denials of these benefits were contrary to international and domestic law prohibiting discrimination, and resulted from negligent administration and negligent misrepresentations by Department of Indian Affairs officials, or from deliberate misrepresentations of the entitlements by Indian Affairs officials, or from deliberate misrepresentations of the entitlements of Indian Veterans by D.V.A. and the Department of Indian Affairs officials, and from a deliberate or negligent misapplication of the laws, which on their face entitled the Plaintiffs to equal benefits. The Plaintiffs now seek equal recognition for equal service.
[10] In their statement of claim, the plaintiffs allege that the off-reserve purchase grant and loan was the "economically superior choice" over the reserve grant scheme. None of the plaintiffs accessed the off-reserve benefits because they claim that the DIA and its officials neglected to advise them - and deliberately avoided advising them - of the option to apply for the off-reserve grant and loan. The plaintiffs say that this advice was based on an official policy, distributed to all DIA Indian Agents, that the $2,320 option was all that Indian veterans should receive. This, they allege, constituted a breach of fiduciary duty as well as negligent and fraudulent misrepresentation on the part of officials of the Canadian government and, as a result, the government is vicariously liable. There is, additionally, reference to an accounting.
[11] The defendant's primary defence, and the one that is relevant to this motion, is that all or some of the plaintiffs' claims should be dismissed because they are statute barred either by the applicable limitations provisions or by the operation of section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. If the claims are not statute-barred, the defendant asserts that the claims cannot survive the equitable defences of laches and acquiescence.
THE CONTEXT OF THE MOTIONS
[12] By order dated May 26, 2004, the case management judged ordered, among other things, that the limitations issues as raised in the statement of defence "shall be determined separately, pursuant to Federal Court Rule 107". The order establishes time requirements for the filing of materials and further provides that the motions are to be "done orally and not by written submissions". By order dated October 8, 2004, the case management judge ordered that: the plaintiffs' motion for an order determining whether the limitations defences, as raised by the defendant in the statement of defence, constitute a defence to the plaintiffs' claim, costs and other relief; and, the defendant's motions for orders striking out portions of the affidavits filed by the plaintiffs, permitting an amendment to paragraphs 67 and 70 of the amended statement of defence and granting summary judgment dismissing all claims of the plaintiffs, costs and other relief, be set down for hearing on February 14, 2005 for a duration of two days. The orders contemplate that the evidence will be by way of affidavit only (subject to cross examination) . Indeed, this was the procedure proposed by the parties.
[13] The plaintiffs later sought a further order requesting that various paragraphs of the affidavit of David MacDonald sworn September 20, 2004, as well as specific exhibits thereto, be struck, but withdrew that request prior to the hearing.
[14] At the hearing, the defendant withdrew the request to strike portions of each of the plaintiffs' affidavits and also "set aside" various other requests to a later time, if necessary. Left on the table were the defendant's requests for orders:
(1) to strike all but paragraphs 1, 2 and 27 of the affidavit of Samuel Corrigan;
(2) to amend paragraph 67 of the amended statement of defence to specifically plead
the limitations period contained in subsection 21(1) of The Public Officers Act,
C.C.S.M. c. P230;
(3) for summary judgment dismissing all claims of the plaintiffs and giving judgment for the defendant on the grounds that all of their claims are statute barred or otherwise unfounded;
(4) in the alternative, to strike from the statement of claim those claims that are statute barred or otherwise unfounded.
[15] Neither party, in the written submissions, referred to the most recent jurisprudence of the Federal Court of Appeal regarding the granting of summary judgment. See: MacNeil Estate v. Canada (Department of Indian and Northern Affairs), [2004] 3 F.C.R. 3 (F.C.A.)(MacNeil); Trojan Technologies, Inc. v. Suntec Environmental Inc. (2004), 320 N.R. 322 (F.C.A.) (Trojan). Consequently, at the outset of the hearing, I provided counsel with the citations for these authorities and requested that they specifically include reference to them in their oral submissions. That was done.
[16] The oral argument was somewhat convoluted in that the plaintiffs' objective, from the outset, was to obtain a determination with respect to the defendant's limitations defences. The defendant approached the matter primarily as an application for summary judgment in favour of Her Majesty. In responding to the defendant's motion, the plaintiffs argued against summary judgment while at the same time seeking a ruling as to whether their claims are statute barred and acknowledging that if that were so, the defendant could obtain summary judgment.
[17] In an effort to alleviate confusion, I questioned the plaintiffs' counsel with respect to the plaintiffs' expectations regarding the "limitations issue". Counsel informed me that it is the plaintiffs' wish that the substantive issue of the applicability of the limitations issue be "heard and decided and determined totally by you and not go to trial".
[18] Also of significance is the fact that the defendant, in her statement of defence, denies the existence of a fiduciary duty. In the written submissions for the motion, there is no such denial. Again, for clarification, I questioned the defendant's counsel in this regard. Counsel confirmed that my understanding of the defendant's position in her statement of defence was correct but advised me that, for purposes of the motion, Her Majesty's position is that there was no breach of fiduciary duty. While counsel did not specifically concede the existence of a fiduciary duty, I regard the defendant's position as tantamount to a concession (for purposes of the motion) that the defendant owed a fiduciary duty to the plaintiffs and I will proceed on that basis. This approach eliminates the necessity of addressing the various arguments of the plaintiffs regarding the existence of a fiduciary duty.
RECONCILIATION OF THE MOTIONS
[19] The plaintiffs' motion is pursuant to Rule 107 as delineated in the case management judge's order. The defendant's motion is under Rule 213. Those rules provide:
Federal Court Rules, 1988,
SOR/98-106
107. (1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately.
(2) In an order under subsection (1), the Court may give directions regarding the procedures to be followed, including those applicable to examinations for discovery and the discovery of documents.
[...]
213. (1) A plaintiff may, after the defendant has filed a defence, or earlier with leave of the Court, and at any time before the time and place for trial are fixed, bring a motion for summary judgment on all or part of the claim set out in the statement of claim.
(2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.
Règles de la cour fédérale (1998),
DORS/98-106
107. (1) La Cour peut, à tout moment, ordonner l'instruction d'une question soulevée ou ordonner que les questions en litige dans une instance soient jugées séparément.
(2) La Cour peut assortir l'ordonnance visée au paragraphe (1) de directives concernant les procédures à suivre, notamment pour la tenue d'un interrogatoire préalable et la communication de documents.
[...]
213. (1) Le demandeur peut, après le dépôt de la défense du défendeur - ou avant si la Cour l'autorise - et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire sur tout ou partie de la réclamation contenue dans la déclaration.
(2) Le défendeur peut, après avoir signifié et déposé sa défense et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.
[20] I think it is open to me to assume without deciding - subject to my finding later in these reasons in relation to one specific plaintiff - that a genuine issue exists with respect to the plaintiffs' claims. However, recourse may be had (regarding the defendant's motion) to Rule 216(3), to determine whether, notwithstanding the existence of a genuine issue, I may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if I am able, on the whole of the evidence, to find the facts necessary to decide the questions of fact and law. Here, the question to be determined is the limitations issue, irrespective of the fact that the claims may raise a genuine issue.
[21] At this point, regard should be had to MacNeil, supra. In MacNeil, the defendant applied for summary judgment on the ground that the plaintiffs were barred by a limitations period from pursuing their claim. The Federal Court of Appeal noted, in relation to a limitations period, the distinctions between the burden of proof at trial and the burden of proof on a motion for summary judgment. Specifically, the Court stated that if a defendant argues at trial that a limitations period has prima facie expired, the plaintiff has the onus to prove, 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, that the limitations period has not expired. However, the onus for parties responding to a motion for summary judgment is not the same as that for 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, responding parties have only an evidentiary burden to put forward evidence showing that there is a genuine issue for trial.
[22] The Court also reiterated its conclusions from earlier jurisprudence that it is not appropriate to conduct a trial on affidavit evidence with a view to determining issues 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.
[23] In relation to the differences in the evidence adduced at trial and on a motion, it seems to me that this matter can be distinguished from MacNeil in that all parties seek a determination as to whether the plaintiffs' claims are statute-barred and none of them want to proceed to a full-fledged trial to obtain it. Both sides agreed that the issue would be decided on the basis of affidavit evidence (subject to cross examination) and both ask that I arrive at a determination, if at all possible, on the basis of the evidence before me. In these circumstances and given the Rule 107 order of the case management judge, in my view it is incumbent on the parties, here, to place all of their evidence regarding the limitations issue before me. In short, shy of not having the benefit of seeing and hearing the witnesses, there should not be, to the extent that it is available, relevant and material evidence missing from the record. The parties agreed to a "trial" on the basis of affidavit evidence. That said, I will endeavour, in my analysis, to pay homage to both Rule 107 and the reasoning in MacNeil.
PRELIMINARY OBSERVATION
[24] Before dealing specifically with the issue that is before me, it important to articulate what this matter is not about. This action is not about aboriginal veterans in general. It is not about the inequities or insensitive treatment that aboriginal veterans may or may not have been subjected to following the First and Second World Wars and the Korean War. The statement of claim relates to three named plaintiffs and the defendant, Her Majesty the Queen. Hence, this case and this motion concern only the named plaintiffs. It is not an action brought on behalf of the general aboriginal veterans population.
THE APPLICABLE LIMITATIONS LAW
[25] Leaving aside for the time being the defendant's motion to amend the amended statement of defence to specifically plead The Public Officers Act, supra, it is common ground that the relevant legislation is The Limitation of Actions Act, C.C.S.M. c. L150 (the Act) for the Province of Manitoba. This is so because section 39 of the Federal Courts Act, R.S.C. 1985, c. F-7 incorporates by reference the limitations legislation in place in the province where the cause of action arose. The Court applies provincial limitation laws not as provincial law, but as federal law: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 (Wewaykum). Section 32 of the Crown Liability and Proceedings Act, supra, is to the same effect and provides that provincial limitation laws apply to an action against the Crown when the cause of action arises in a province.
[26] The Manitoba legislation constitutes a complete code of limitations: Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. (1999), 130 Man. R. (2d) 283 (C.A.); Rarie v. Maxwell (1998), 131 Man. R. (2d) 184 (C.A.); Abbott v. Canada 2005 FC 163.
[27] The plaintiffs seek damages based on allegations of breach of fiduciary duty, fraudulent misrepresentation and negligent misrepresentation. They also seek an accounting. Section 2 of the Act sets out the applicable limitations. The pertinent provisions of that section read:
The Limitation of Action Act,
C.C.S.M. c. L150
2(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned:
[...]
(e) actions for malicious prosecution, seduction, false imprisonment, trespass to the person, assault, battery, wounding or other injuries to the person, whether caused by misfeasance or nonfeasance, and whether the action be founded on a tort or on a breach of contract or on any breach of duty, within two years after the cause of action arose;
[...]
(i) actions for the recovery of money (except in respect of a debt charged upon land), whether recoverable as a debt or damages or otherwise, and whether a recognizance, bond, covenant, or other specialty, or on a simple contract, express or implied, and actions for an account or not accounting, within six years after the cause of action arose;
(j) actions grounded on fraudulent misrepresentation, within six years from the discovery of the fraud;
(k) 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;
[...]
(n) any other action for which provision is not specifically made in this Act, within six years after the cause of action arose.
Loi sur la prescription,
C.P.L.M. c. L150
2(1) Les actions suivantes se prescrivent par les délais respectifs indiqués ci-dessous :
[...]
e) une action pour poursuite abusive, séduction, séquestration, atteinte à la personne, voies de fait, coups ou pour d'autres blessures, que ceux-ci résultent de l'accomplissement ou du défaut d'accomplissement d'un acte, et que l'action soit fondée sur une base délictuelle ou contractuelle ou sur le défaut d'accomplissement d'une obligation, se prescrit par deux ans, à compter de la naissance de la cause d'action;
[...]
i) une action en recouvrement d'une somme d'argent (sauf celle relative à une créance grevant un bien-fonds), que cette somme d'argent soit recouvrable à titre de dette, de dommages-intérêts ou à un autre titre, ou que cette somme découle d'un engagement, d'un cautionnement, d'un contrat ou d'un contrat scellé ou d'une convention verbale, expresse ou tacite, se prescrit par six ans, à compter de la naissance de la cause d'action; il en est de même d'une action en reddition de compte ou pour non-reddition de compte;
j) une action fondée sur une déclaration volontairement fausse se prescrit par six ans, à compter de la découverte de la fraude;
k) une action fondée sur un accident, une erreur ou un autre motif de recours reconnu en Équité, sauf les motifs mentionnés aux alinéas ci-dessus, se prescrit par six ans, à compter de la découverte de la cause d'action;
[...]
n) une autre action qui ne fait pas explicitement l'objet d'une disposition de la présente loi, se prescrit par six ans, à compter de la naissance de la cause d'action.
[28] The plaintiffs submit that the operative paragraphs are 2(1)(i) with respect to an accounting, 2(1)(j) with respect to fraudulent misrepresentation, 2(1)(k) with respect to fiduciary duty and 2(1)(n) with respect to negligent misrepresentation. Apart from reliance on The Public Officers Act,supra, the defendant does not dispute the plaintiffs' choices and I am content to accept them.
[29] Breach of fiduciary duty and fraudulent misrepresentation have their own discoverability provision - actions must be commenced within 6 years from discovery. With respect to negligent misrepresentation and an account, the action must be brought within 6 years after the cause of action arose unless recourse can be had to Part II of the Act. The relevant provisions of Part II, which is entitled "Extension of Limitation Period", are subsections 14(1) and 14(3), which provide as follows:
The Limitation of Action Act,
C.C.S.M. C. L150
14(1) Notwithstanding any provision of this Act or of any other Act of the Legislature limiting the time for beginning an action, the court, on application, may grant leave to the applicant to begin or continue an action if it is satisfied on evidence adduced by or on behalf of the applicant that not more than 12 months have elapsed between
(a) the date on which the applicant first knew, or, in all the circumstances of the case, ought to have known, of all material facts of a decisive character upon which the action is based; and
(b) the date on which the application was made to the court for leave.
[...]
14(3) Nothing in this section excludes or otherwise affects
(a) any defence that in any action to which this section applies may be available by virtue of
(i) any provision of an Act of the Legislature other than one limiting the time for beginning an action, or
(ii) a rule of law or equity; or
(b) the operation of any Act of the Legislature or rule of law or equity that, apart from this section, would enable such an action to be brought after the end of a limitation period fixed in this Act or any other Act of the Legislature in respect of the cause of action on which that action is founded.
Loi sur la prescription,
C.P.L.M. C. L150
14(1) Par dérogation à toute disposition de la présente loi ou d'une autre loi de la Législature ayant pour effet d'établir une prescription, le tribunal peut, sur demande, autoriser le requérant à intenter ou continuer une action, lorsque le tribunal conclut, sur la foi de la preuve fournie par le requérant ou en son nom, qu'une période maximale de 12 mois s'est écoulée entre les dates suivantes :
a) la date à laquelle le requérant a eu connaissance pour la première fois, ou celle à laquelle il aurait dû avoir connaissance, compte tenu des circonstances, de tous les faits pertinents sur lesquels s'appuie l'action;
b) la date de la présentation de la demande de prolongation au tribunal.
[...]
14(3) Le présent article n'a pas pour effet d'empêcher ou de viser de quelque façon :
a) soit une défense pouvant être invoquée dans une action prévue par le présent article, et dont le défendeur peut se prévaloir en vertu de l'une ou l'autre des dispositions suivantes :
(i) une disposition d'une loi de la Législature, autre qu'une disposition qui établit une prescription quant au délai d'introduction d'une action,
(ii) une règle de droit ou d'équité;
b) soit l'application d'une loi de la Législature ou l'application d'une règle de droit ou d'équité qui, sans tenir compte du présent article, permettrait qu'une telle action soit intentée au-delà d'un délai de prescription établi par la présente loi ou par une autre loi de la Législature relativement à la cause d'action sur laquelle est fondée cette action.
[30] Succinctly stated, there is no specific limitation on claims for breach of fiduciary duty or fraudulent misrepresentation. For all other causes of action, there is a 30 year ultimate limitation period. The 6 year limitation may be postponed for causes of action that do not have their own discoverability provision, if certain conditions are met, but no action (other than those with a built in discoverability provision) can be sustained more than 30 years after the cause of action arose.
[31] The rationale behind limitation periods has been discussed in a number of decisions. See: M(K) v. M(H), [1992] 3 S.C.R. 6; Wewaykum, supra. In Novak v. Bond, [1999] 1 S.C.R. 808, Madam Justice McLachlin, as she then was, discussed, at paragraph 67, the characteristics of most limitations statutes:
...They are intended to: (1) define a time at which potential defendants may be free of ancient obligations, (2) prevent the bringing of claims where the evidence may have been lost to the passage of time, (3) provide an incentive for plaintiffs to bring suits in a timely fashion, and (4) account for the plaintiff's own circumstances assessed through a subjective/objective lens, when assessing whether a claim should be barred by the passage of time. To the extent they are reflected in the particular words and structure of the statute in question, the best interpretation of a limitations statute seeks to give effect to each of these characteristics.
[32] Before embarking upon an analysis regarding the impact of the limitation provisions, it is necessary to examine the evidence regarding each of the plaintiffs.
STAN MCKAY
[33] The evidence offered by Mr. McKay in relation to the motions is contained in his affidavit sworn July 7, 2004. Paraphrased, the affidavit states that Mr. McKay was 83 years old in July, 2004. He was born and lived on Old River Reserve. He had a grade 8 education and spent much of his youth working on the school farm looking after the horses, cattle and pigs. He was married, divorced, had two children from that marriage and 12 children from his relationship with his now-deceased common-law spouse.
[34] He enlisted in the Canadian Armed Forces in March, 1942, sustained an ear injury during basic training, was hospitalized for several days and was discharged, without seeing active duty, in July, 1942. After returning to the reserve, he saw other veterans receive farm machinery and implements and he approached William Young, the Indian Agent, who informed him that he was not eligible for benefits. Mr. Young provided him with no other information nor was he given any forms to complete.
[35] Mr. McKay worked on Mr. Young's farm and on his father's farm. He had (after his father's death) 500 acres on the reserve that he farmed until 1978 or 1979. In hindsight, he wishes that he could have farmed off the reserve. He states that he now understands that he could have done so but, at the time, Mr. Young told him that he could not. Mr. Young, who handled everything (the Chief and council had no power) never advised him that he could own land off reserve or apply for a loan. When Mr. McKay signed forms, they were not explained to him and he found many of them difficult to understand. He simply signed where Mr. Young told him to sign relying on Young to ensure that they were the right forms. He did not trust Young. He does not think he received all of the benefits to which he was entitled and was not told of those for which he could apply. He does receive pension benefits related to partial hearing loss in his left ear. At paragraph 12 of his affidavit he deposes:
It was only recently, through discussions with others, that I realized that I may not have received that to which I was entitled, however, I never considered hiring a lawyer for a long time. It was those recent discussions which prompted me to file this law suit. Prior to that, I did not even know how to start such an action. It never occurred to me to sue the Government.
[36] The defendant refers to and relies upon Mr. McKay's videotaped evidence (March 17, 2004) and his examination for discovery (January 27, 2004). Mr. McKay testified that he was told by Mr. Young that he would not be eligible to obtain a grant to purchase farm machinery because he did not go overseas, did not serve for at least a year, and was not receiving a disability pension. He stated that he had never talked to anyone about the possibility of applying for the $6,000 off-reserve grant and that he had not considered farming off reserve because he already had enough land to manage on the reserve. He also stated that he "ran into" a lawyer in Yorkton, Saskatchewan sometime in the 1970's and talked to that lawyer about veterans' benefits.
[37] Mr. McKay said that the Indian Agent never discouraged him from getting advice elsewhere with regard to getting more veterans' benefits. He testified that he does not feel that he was the victim of any discrimination and that he is merely concerned about the others who were. The following excerpts from the discovery transcript are illustrative:
204 Q And did you ever consider farming off of Reserve?
A No, I had enough on the Reserve there.
234 Q So Sioux Valley is certainly your home?
A Yes. That's my home
Q So do you really think you would have liked to have lived off of Reserve?
A Now?
Q At any time?
A No, I don't think so.
262 Q I just wanted to make sure I understood, Mr. McKay, after we talked about these benefits that you have been getting. Was there any benefit that you think you should have got that you didn't get from either Veterans Affairs or Indian Affairs?
A No, I don't think so.
280 Q Alright. So you - did you feel that you were missing the boat on some benefits, that you should be getting more?
A No, I don't feel that at all.
536 Q In what respect, Mr. McKay - How do - where do you feel you were left out?
A Well we - not speaking for myself but for other veterans, you know. They don't get help. Some of them don't get help even today, not a thing.
Q Mm hmm.
A Some of them passed away without getting anything. Yeah.
Q But as far as you, personally, are concerned?
A About others.
Q Yeah?
A Yeah.
Q Not yourself?
A No.
Q So is that because you do not feel that you were the victim of any discrimination? Is that what you're telling me?
A Yes, I guess so.
[38] The defendant also tendered various documents pertaining to Mr. McKay's discharge from the army indicating the cause of his ear condition and the reasons for his discharge.
ALFRED TACAN
[39] The evidence offered by Mr. Tacan in relation to the motions is contained in his affidavit sworn July 29, 2004. Summarized, his evidence is that he was born May 5, 1919, on Sioux Valley Reserve (formerly known as Oak River Reserve) and has lived there throughout his life. He and his wife have 15 children. He quit school when he was 17 after obtaining a grade 4 education from a Catholic Residential School and spending much of his school time working on the school farm looking after the horses, cattle and pigs. He is a World War II veteran. He enlisted in March, 1942, saw active duty in England and Italy, and was discharged in February, 1946. He "could read somewhat" when he enlisted and received further schooling during basic training in North Bay, Ontario.
[40] Mr. Tacan spent several days in Winnipeg awaiting his formal discharge. He had a choice to remain in or get out of the army. He chose to be discharged and intended to return to the reserve because he had grown up there, his family was there, and it was his community. Upon discharge, an officer asked him if he wanted to stay on the reserve or go outside the reserve. The officer told him if he left the reserve, he would lose his status. Mr. Tacan deposes that, looking back, if he could have farmed outside the reserve without losing his status, it may have been something that he would have done. However, he was not provided with much information regarding the benefits available for First Nations veterans. After he indicated his intention to return to the reserve, all further discussions related to that choice and his desire to farm.
[41] When he returned to the reserve, the Indian Agent, William Young, told Mr. Tacan that he was not entitled to any benefits. He was not given any information or provided with any forms to complete. Mr. Young encouraged him to stay on the reserve and told him if he left, he would lose his status. Young did not tell him that he could own land off reserve. About four years ago (2000), at a meeting in Winnipeg, Mr. Tacan spoke with a First Nations veteran who had farmed off reserve after his discharge, had applied for and received the $6,000 loan, had lost his status and as a result was unable to return to the reserve.
[42] Because Mr. Tacan was not happy with Mr. Young's approach, in 1946, he and Joseph Sandy went to Winnipeg to get help from Indian Affairs or Veterans Affairs. After waiting for one day to speak with someone at Indian Affairs, they were told that the person was on holidays. They proceeded to the Fort Osborne Barracks and spoke with a colonel or major who telephoned Indian Affairs and spoke with the individual whom they had tried to see. Upon their return to the reserve, they found Mr. Young much more attentive and co-operative.
[43] Mr. Tacan does not recall being advised of available benefits or receiving any brochures or letters. Mr. Young told him that, before he could receive benefits, he would have to farm land. Young would get angry if matters regarding veterans were discussed. Mr. Tacan received band approval to obtain reserve parcels of land for farming and applied for benefits in July, 1949. He did not apply for, or receive, re-establishment credits or other training allowances, nor was he advised of them. He obtained equipment to farm 120 acres, but had no input or choice regarding the equipment, which Mr. Young chose and he had to accept. He was not told how the equipment was to be purchased or if he had anything left of the grant.
[44] During his dealings with Mr. Young, Mr. Tacan had several difficulties. Young handled everything and was the boss - there was no Chief or council with power. When Mr. Tacan signed forms, Mr. Young did not explain them, he just said where to sign. Mr. Tacan signed even though he found many of the forms difficult to understand. He relied on Mr. Young to make sure they were the right forms. Mr. Tacan did not trust Mr. Young and does not feel he received all of the benefits for which he could apply. At paragraph 26 of his affidavit, Mr. Tacan deposes:
It was only recently, through discussions with others, that I realized that I may not have received that to which I was entitled, however, I never considered hiring a lawyer for a long time. I had discussions with John Sioux, but no one, until very recently, told me that I should sue the Government. It was those recent discussions which prompted me to file this law suit. Prior to that, I did not even know how to start such an action. It never occurred to me to sue the Government.
[45] Exhibited to his affidavit are copies of his discharge certificate, correspondence from the assistant district superintendent (VLA) dated July 25, 1946, a copy of the petition of band members regarding his acquisition of reserve land and his VLA application dated July 26, 1949.
[46] The defendant relied upon various documents in relation to Mr. Tacan as well as the transcript of his examination for discovery conducted on January 27, 2004. On discovery, Mr. Tacan acknowledged that, at the time of his discharge, he was advised of the options of farming on or off the