Peepeekisis Band v. Canada

Peepeekisis Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2012-07-19
Neutral citation
2012 FC 915
File numbers
T-1068-92
Decision Content
Federal Court
Cour fédérale
Date: 20120719
Docket: T-1068-92
Citation: 2012 FC 915
Ottawa, Ontario, July 19, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Defendant
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.
[…]
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.
[…]
[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.
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.
[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.
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.
[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 SCR 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 SCR 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 SCR 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 SCR 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] SCR 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 neces