APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37323

James Chadwick Rankin, carrying on business as Rankin’s Garage & Sales v. J.J. by his Litigation Guardian, J.A.J., J.A.J., A.J.

(Ont.)

Torts — Negligence — Duty of Care — Motor vehicles

Two teenage boys, under the influence of alcohol and marijuana, trespassed on the property of a commercial garage and stole an unlocked car in which the keys had been left in the ashtray. The boy driving the car crashed it, leaving the other boy with a catastrophic brain injury. Through his litigation guardian and parents, the injured boy sued the owner of the garage, the driver, and the driver’s mother (for having supplied some of the alcohol and for having failed to supervise the boys) for negligence, claiming that they all owed the injured boy a duty of care.

The trial judge found that the garage owner owed the injured boy a duty of care, and instructed the jury accordingly. The jury returned a verdict finding all parties negligent, and the injured boy himself contributorily negligent. It apportioned liability as follows: garage owner 37%; driver’s mother 30%; driver 23%; and injured boy 10%. The Court of Appeal dismissed the garage owner’s appeal, finding that the trial judge did not err in finding a duty of care and did not err in her instructions to the jury; nor was the jury’s verdict unreasonable.

37202

Haaretz.com, Haaretz Daily Newspaper Ltd., Haaretz Group, Haaretz.Co.II, Shlomi Barzel and David Marouani v. Mitchell Goldhar

(Ont.)

Private international law – Choice of forum – Forum non conveniens

The applicant Haaretz, Israel’s oldest daily newspaper, published an article criticizing the management style and business practices of the respondent Mitchell Goldhar. Mr. Goldhar is a Canadian businessman who owns Maccabi Tel Aviv Football Club, a soccer team based in Tel Aviv. The article was available in print and on the newspaper’s Hebrew and English-language websites. Mr. Goldhar commenced a defamation action in Ontario against the newspaper, its former sports editor and the author of the article alleged to be defamatory. Haaretz moved to stay the action, arguing that Ontario courts lack jurisdiction simpliciter or, alternatively, that Israel is a clearly more appropriate forum. The motion to stay was dismissed and the Court of Appeal dismissed the appeal.

37207

Her Majesty the Queen v. Justine Awashish

(Que.)

Criminal law – Appeals – Interlocutory judgment

Justine Awashish was charged with operating a vehicle with a blood alcohol level over the legal limit. Ms. Awashish filed a motion for disclosure accompanied by a McNeil motion. She sought an order requiring the Crown to tell her whether the information whose disclosure she was requesting existed and, if so, to tell her the identity of the persons holding that information. The Court of Québec allowed Ms. Awashish’s application. The Crown filed a motion for certiorari, which was allowed by the Superior Court. The Court of Appeal allowed the appeal.

37233

Jeffrey G. Ewert v. Her Majesty the Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution and the Warden of Mission Institution)

(FC)

Charter — Criminal law — Parole — Rights of prisoners

The Correctional Service of Canada (“CSC”) employs certain psychological tests, referred to as assessment tools or actuarial tests, to assess the risk of criminal recidivism and to assess psychopathy in inmates. The applicant, Mr. Jeffrey Ewert, commenced an action in the Federal Court in which he alleged that the assessment tools are unreliable when administered to Aboriginal inmates such as himself and that, in the result, their use violated rights protected by ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. At trial, he sought injunctive and declaratory relief. A judge of the Federal Court found that the use of the assessment tools in respect of Aboriginal inmates was contrary to subsections 4(g) and 24(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, and violated s. 7 of the Charter in a manner that could not be justified. The Federal Court found it unnecessary to consider the application of s. 15 of the Charter. The Federal Court of Appeal allowed the CSC’s appeal. It held that the Federal Court judge erred in law in finding both a breach of the Act and a violation of s. 7 of the Charter.

37284

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, USW Local 8782, USW Local 1005 v. U.S. Steel Canada Inc., Unites States Steel Corporation, Her Majesty the Queen in Right of Ontario and the Superintendent of Financial Services (Ontario), Representative Counsel to the Non-USW Active and Retired Employees of U.S. Steel Canada Inc.

(Ont.)

Bankruptcy and insolvency – Jurisdiction

U.S. Steel Canada Inc. is in CCAA protection. Its American parent is United States Steel Corporation. After U.S. Steel Canada obtained a CCAA protection order in the Superior Court of Justice, the supervising judge made a claims process order, establishing a procedure for filing, reviewing and resolving creditors’ claims against U.S. Steel Canada. One of the claims involved approximately $2.2 billion of debt against U.S. Steel Canada by its American parent company. The applicant Union and a number of other stakeholders advanced various objections to these claims.

The CCAA judge had to decide which objections should be dealt with within the CCAAprocess, outside it, or not at all. One such objection before the judge was based on the doctrine of equitable subordination, developed in American insolvency law and now codified in the U.S. Bankruptcy Code. The Union sought, among other things, an order subordinating U.S. Steel claims in whole or in part to its claims, based on the conduct of U.S. Steel in relation to the Canadian plants, pensioners, pension plan members and beneficiaries. The Court of Appeal dismissed the appeal.

37360

Canadian Broadcasting Corporation v. Her Majesty the Queen

(Alta.)

Criminal law – Criminal contempt – Publication bans

n March 2016, a 14 year-old girl was murdered, and CBC reported on the crime immediately, using the girl’s name and her picture. Several days later, the accused appeared in court, and pursuant to s. 486.4(2.2) of the Criminal Code, the judge issued a mandatory publication ban directing that any information that could identify the victim not be published in any document or broadcast or transmitted in anyway. CBC refused to remove the content it had posted prior to the ban. As a result, the Crown moved for an order citing CBC for criminal contempt and for an interim injunction requiring it to remove the content from its website pending the outcome of the contempt proceedings. The chambers judge refused to issue the injunction. Applying RJR MacDonald, he found that the Crown had not established a strong prima facie case of criminal contempt. A majority of the Court of Appeal allowed the appeal and ordered the injunction.

37272

Valard Constructions Ltd. v. Bird Construction Company

(Alta.)

Trusts and Trustees — Construction law — Labour and material payment bond

Bird Construction Company, a general contractor on an oilsands project, hired a subcontractor. The subcontractor hired Valard Constructions Ltd. Neither Bird Construction Company nor the subcontractor notified Valard Constructions Ltd. that the subcontractor had obtained a labour and materials payment bond. The bond named Bird Construction Company as the Obligee. The subcontractor failed to pay Valard’s invoices. Valard did not notify Bird Construction Company of its payment dispute with the subcontractor until after a deadline for filing a claim set out in the bond had passed. When advised of the non-payment, Bird Construction Company informed Valard Constructions Ltd. about the bond. Valard Constructions Ltd. submitted a claim to the surety but the surety refused to pay the claim because the deadline for making a claim had passed. Valard Constructions Ltd. commenced an action against the surety, added Bird Construction Company as a defendant, and then pursued the action only against Bird Construction Company. Bird Construction Company applied for summary dismissal. The Court of Queen’s Bench of Alberta dismissed the claim and the Court of Appeal dismissed the appeal.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37305

Clifford Roger Montgomery v. Her Majesty the Queen

(B.C.)

Criminal law – Search and seizure – Judicial prior authorisation

97 kilograms of cocaine was discovered at the border, inside a machine being imported from Argentina to Kelowna. Warrants were authorised to intercept the communications of the consignee of the shipment and all persons in the vicinity of the machine. A controlled delivery was made under police surveillance. Mr. Montgomery and two co-accused picked up the machine, transported it to a remote location, and dismantled it. Mr. Montgomery’s communications were intercepted. His residence was searched. His Blackberry was seized incident to his arrest. Data on the phone was retrieved without a warrant 16 months after arrest. The application for authorisation to intercept private communications did not disclose that cocaine had been found inside a shipment of machine spare parts being imported from Argentina to Kelowna or that, in a controlled shipment of that cocaine, Mr. Montgomery had been observed conducting what appeared to be counter-surveillance. Mr. Montgomery was not named in the authorisation. The consignee testified at trial that a friend, Mr. Diaz, asked for help arranging the importation of the machine. He described Mr. Diaz’s conduct and communications. The Supreme Court of British Columbia convicted Mr. Montgomery of possession of cocaine for the purpose of trafficking, conspiracy to import cocaine and conspiracy to traffic cocaine. The Court of Appeal for British Columbia dismissed the appeal.

37352

Cardin Salomon v. Wawanesa Mutual Insurance Company

(Que.)

Insurance

In February 2008, a residence owned by the applicant was heavily damaged by arson. The applicant then filed a claim for the losses incurred with his insurer, the respondent. During the respondent’s investigation into the claim, it found out that the applicant had failed to tell it, at the time he took out the insurance, that he had been involved in a theft at the Casino de Montréal and that he had since been barred from that casino. The respondent added that, if it had known this, it would have refused to issue the insurance contract in question, with the result that it considered the contract null ab initio. Despite its refusal to act on the applicant’s claim, the respondent paid the creditor holding a hypothec on the applicant’s property, with an assignment of claim so it would be subrogated in the creditor’s rights. In February 2011, a few weeks after selling the land on which the building that burned down three years earlier had been located, the applicant brought an action against the respondent claiming: (i) $131,349.54 for the loss of the building, which excluded the amounts already paid to the hypothecary creditor; (ii) $34,037.46 for his movable property; (iii) an indemnity of $25,550 for living expenses; (iv) the amount he spent on materials ($259.37) and labour ($1,550) to barricade the building following the fire; (v) the $117 fee for cancelling the act of assignment of a hypothecary claim on the immovable; (vi) $500 for the heating oil left in the tank of the building that burned down; (vii) $135,000 for the loss incurred on the sale of the land; and finally, (viii) $17,919.93 for the cost of demolishing the building that burned down. The applicant also claimed moral ($25,000) and punitive ($50,000) damages and reimbursement of the extrajudicial fees he had had to pay his lawyer. In response to the action, the respondent no longer asserted the nullity ab initio of the insurance contract, since that argument was unfounded in light of information since provided by the applicant. Rather, the respondent argued that the applicant was involved in the arson in question by virtue of his intentional fault. The respondent also argued that the damages claimed were unfounded, and it made a cross demand claiming the $162,650 paid to the applicant’s hypothecary creditor. The Quebec Superior Court allowed in part the action to recover the insurance indemnity. The Quebec Court of Appeal dismissed the Applicant’s appeal.

37333

Syndicat des cols blancs de Gatineau inc. v. City of Gatineau

(Que.)

Administrative law – Judicial review – Labour relations

In February 2009, the City of Gatineau (hereinafter the respondent or the City) advertised a finance clerk position for which an ability to speak English was one of the requirements. The City’s union of white collar workers then filed a grievance alleging that the requirement was contrary to the collective agreement and to ss. 45 and 46 of the Charter of the French language (hereinafter the CLF). On May 15, 2013, the arbitrator hearing the grievance concluded that the English requirement infringed s. 46 of the CLF, and he ordered the City to advertise the finance clerk position again without that requirement. The City contested the arbitrator’s arbitration award by means of judicial review. The Quebec Superior Court dismissed the motion for judicial review and the Court of Appeal allowed the appeal.

37336

Peter Obazee v. Minister of Justice Canada

(Que.)

Extradition – Criminal law

The applicant is subject to a ministerial order for his surrender to the United States of America for prosecution on fraud charges stemming from fraudulent telemarketing activities that robbed some 42 American citizens of $107,851.

In the Quebec Court of Appeal, the applicant challenged the surrender order made by the Minister of Justice Canada (“Minister”) on the ground that it was unreasonable, in part because of the Minister’s refusal to disclose certain documents, including the American legislation supporting the request made by the United States for the applicant’s extradition.

The Court of Appeal dismissed his application for judicial review, finding that this was not a situation in which it was necessary for the documents requested by the applicant to be disclosed and that, in the circumstances of this case, the refusal to provide the American legislation did not seem so unreasonable as to vitiate the decision made.

37357

Daniel Lavallée v. Her Majesty the Queen

(Que.)

Criminal law – Fraud – Sentencing

Daniel Lavallée pleaded guilty to seven counts of fraud. The victims, some of whom were seniors, had given him amounts ranging from $5,000 to $127,000. Mr. Lavallée was sentenced to 33 months of imprisonment. The Court of Appeal allowed the appeal. As part of the sentence, the Court of Appeal ordered Mr. Lavallée to repay the stolen money to his victims.

37282

Volodymyr Hrabovskyy v. Her Majesty the Queen

(FC)

Appeals – Appeals to Supreme Court of Canada

In September 2016, a judge of the Federal Court of Appeal dismissed Mr. Hrabovskyy’s motion to extend time to file a notice of appeal. The judge found that the proposed notice did not comply with the Federal Court Rules, because it did not contain a complete and concise statement of the grounds to be argued. Rather, it was prolix, and contained lengthy argument and evidentiary references. Mr. Hrabovskyy then filed a motion in the Federal Court of Appeal seeking leave to appeal to this Court. The motion was dismissed. Mr. Hrabovskyy now seeks leave to appeal that decision.

37283

Volodymyr Hrabovskyy v. Her Majesty the Queen

(FC) (Civil) (By Leave)

Appeals – Appeals to Supreme Court of Canada

In September 2016, a judge of the Federal Court of Appeal ordered the applicant, Mr. Hrabovskyy, to file an appeal book that complied with R. 344(1) of the Federal Courts Rules, SOR/98-106. Mr. Hrabovskyy then sought leave from the Federal Court of Appeal to appeal that decision to this Court. The motion was dismissed. Mr. Hrabovskyy now seeks leave to appeal that last decision in this Court.

37338

Wayne Berthin v. Helen Berthin, Roy Lyn Sherrod, Patsy Spikes Sherrod, Bank of Nova Scotia

(B.C.)

Family law – Division of property – Sale of matrimonial home ordered

In family law proceedings (the “trial decision”) between Mr. Berthin, applicant, and the respondent Ms. Berthin, a judge ordered the sale of their matrimonial home. The property was ultimately sold to the Sherrod respondents, but when Mr. Berthin refused to sign the property transfer documents, Ms. Berthin obtained from a Master of the Supreme Court of British Columbia a vesting order putting the property in the Sherrods’ names. Mr. Berthin’s appeal from the vesting order was dismissed. The Court of Appeal subsequently overturned the trial decision which prompted Mr. Berthin to bring an application in the Supreme Court of British Columbia to have the vesting order set aside. The chambers judge refused to grant the application. Mr. Berthin appealed both the appeal and the application decisions refusing to overturn the vesting order, but was not successful.

37355

Jocelyn Dupuis v. Her Majesty the Queen

(Que.)

Canadian Charter of Rights and Freedoms – Criminal law

Jocelyn Dupuis held the position of executive director of FTQ‑Construction when a police investigation revealed that the vouchers (receipts) he produced in support of his expense accounts and submitted to his employer for reimbursement were forgeries. On the first day of his trial, Mr. Dupuis moved for a stay of proceedings on the basis that 38 months and 24 days had passed since he was charged. The motion was dismissed. He was convicted of fraud over $5,000, forgery and uttering forged documents. He was sentenced to imprisonment for 12 months. The Court of Appeal affirmed the dismissal of the motion for a stay of proceedings; it also dismissed the appeals from the conviction and the prison sentence.

37306

Kevin A. McLean v. Law Society of British Columbia, Alison Kirby, John Nalleweg, Larry Dirk, Kieron Grady, Erin Milz, Mark Bussanich, Deborah Armour, Howie Caldwell and Phil Riddell

(B.C.)

Charter — Law of professions — Barristers and solicitors

The applicant, Mr. McLean, alleges conspiracy by the respondents in respect to disciplinary proceedings under the British Columbia Law Society Rules. Prior to trial, the respondents applied under the B.C. Supreme Court Civil Rules, B.C. Reg. 168/2009, for summary judgment dismissing the action against all individual respondents except one, and for an order striking portions of the notice of civil claim. Mr. McLean sought declarations of invalidity of Rule 4-33 of the Law Society Rules and an order made under that Rule, an injunction and certain declarations. The judge largely dismissed the respondents’ application. On Mr. McLean’s application, he enjoined the Law Society from entering or attempting to enter his residence and declared that he was not required to produce his personal cell phone under the Rule 4-43 order. The Court of Appeal allowed the respondents’ appeal.

37269

Board of Regents of Victoria University v. GE Canada Real Estate Equity, GE Canada Real Estate Equity Holding Company

- and between -

Board of Regents of Victoria University v. Revenue Properties Company Limited

(Ont.)

Arbitration – Appeals – Issue estoppel – Contracts

The applicant owns land located on Bloor Street West, Toronto, which is the subject of two separate 100 year ground leases currently held by the respondent tenants. The rent under each lease was fixed for an initial thirty year period, after which the leases provided a mechanism for rental resets every twenty years. If the parties could not agree on the rent payable, the rental rate for the next twenty years would be the greater of the current rate or six percent of “the fair market value of the demised lands” as determined by arbitration. Disputes arose over whether the value of the demised lands should take into account a potential use of the lands (a freehold residential condominium project) which was impossible due to the existence of the leases. For the first rental reset in 1990, an appeal from the arbitration decision determined that the lands should be valued as if vacant but subject to a lease, thereby precluding a condominium development. For the 2010 reset, the majority of an arbitral panel valued the lands based on development of a mixed-use commercial-retail and freehold condominium project. On appeal to the Ontario Superior Court of Justice, the court set aside the arbitration awards and remitted the matters to the same panel for redetermination. The Court of Appeal for Ontario dismissed the applicant’s appeal on the merits and the tenants’ appeals of the remedy.

37261

Knelsen Sand and Gravel Ltd. v. Charles Houle, Ernie Houle

(Alta.)

Contracts – Commercial contracts – Breach – Innocent misrepresentation

The respondents (“Houles”) discovered a parcel of land in Alberta that they believed contained valuable deposits of gravel. They pursued development of the gravel deposits with a company that had obtained an exploration permit for the property. It engaged Silvatech Resource Solutions to assess the deposit, and Silvatech estimated there might be 444,850 tons of gravel in the land. The surface material lease was then transferred to the Houles for an agreed price. They contacted Knelson Sand and Gravel Ltd. about the gravel deposit. The Houles provided Knelson with the Silvatech data, and Knelson concluded the lands would yield 457,000 tonnes of gravel. In 2010, a formal contract was prepared by counsel and signed by the parties for the price of $800,000 payable by a deposit of $75,497.36, followed by an initial payment of $324,502.64, and a final payment the following year of $400,000. At the Houles’ request, a clause was included in the contract in which Knelsen acknowledged that it was purchasing the property “as is” and that there was no representation affecting the property except as expressed in the contract. Knelsen paid the deposit and the initial payment and the Houles assigned the lease to Knelsen. When Knelsen began excavations a few months later, it very quickly became apparent that there was far less gravel in the lands than expected. Knelson was able to extract only 74,000 tonnes of gravel. Knelson failed to make the final contract payment of $400,000, and the Houles sued. Knelson counterclaimed, alleging breach of contract and negligent and innocent misrepresentation. The Court of Queen’s Bench of Alberta dismissed the Respondents’ action and granted the Applicant’s counterclaim. The Court of Appeal allowed the Respondents’ appeal.

37289

Sodexo Canada Limited v. Hotel Employees & Restaurant Employees International Union, Local 779

(N.L.)

Administrative law – Boards and Tribunals – Jurisdiction

The applicant provides accommodation and catering services in a camp in Labrador to contractor personnel and trades persons engaged in the construction of iron ore mining and milling facilities for Tata Steel Inc. Effective December 18, 2013, it became a unionized employer pursuant to a certification order. The respondent took the position that the applicant is bound by a collective agreement negotiated by the Construction Labour Relations Association, a body recognized under the Labour Relations Act, RSNL 1990, c. L-1, as the bargaining representative for all employers certified by the Labour Relations Board in the commercial and institutional sector of the construction industry in the province. The applicant did not agree that it was bound to that collective agreement. The matter proceeded to arbitration. An arbitrator concluded that the applicant is bound to the collective agreement. The applicant applied for judicial review. The Supreme Court of Newfoundland & Labrador allowed the application for judicial review and the Court of Appeal allowed the appeal.

37345

Donald John Trump, Sr, Talon International Inc., Val Levitan, Alex Shnaider v. Sarbjit Singh

- and between -

Donald John Trump, Sr, Talon International Inc., Val Levitan, Alex Shnaider v. Se Na Lee

(Ont.)

Contracts — Misrepresentation

In the mid-2000s, the respondents, Mr. Sarbjit Singh and Ms. Se Na Lee, each bought a unit in the Trump International Hotel to be built in Toronto’s financial district. Mr. Singh and Ms. Lee were residents of the Greater Toronto Area but did not intend to occupy the hotel units themselves. Instead, they bought the units as investments, expecting that they would profit by participating in the hotel’s “Reservation Program”. Under the Reservation Program, owners could place their units in a common pool of rooms to be rented out at luxury rates by the hotel’s operator. Mr. Singh and Ms. Lee’s expectation was that high occupancy and rental rates at the Trump International Hotel would provide good returns, even after deducting monthly expenses such as property tax, mortgage payments and housekeeping. In time, both came to realize that they were wrong. In separate but similar actions, Mr. Singh and Ms. Lee sued for rescission and damages, claiming they were misled by marketing materials that projected considerable profit margins for purchasers who participated in the Reservation Program. They brought motions for partial summary judgment against the applicants. (Talon was the developer. Shnaider was a Director and Chairman of Talon. Levitan was a Director and the Chief Executive Officer and President of Talon. Pursuant to a licence agreement, Talon used the Trump name and trademarks for the building.) The motions judge dismissed the Mr. Singh and Ms. Lee’s motions and, in addition, dismissed their claims against Trump, Levitan and Shnaider in their entirety. Mr. Singh and Ms. Lee’s appeal from that decision was allowed in part.

37179

Ontario Refrigeration and Air Conditioning Contractors Association v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787 and Norm Jesin

(Ont.)

Charter of Rights – Labour relations – Arbitration

After a series of rolling strikes interfered with residential construction in the greater Toronto area (the “GTA”) in the late 1990’s, the Ontario legislature enacted a package of amendments to the Labour Relations Act, 1995. The amendments limited the ability of those operating in the residential sector of the construction industry in the GTA to conduct strikes or lockouts. They also offer the parties to a collective bargaining dispute, in that sector and geographical area, the right to have their dispute determined by an interest arbitrator appointed by the Minister of Labour.

The Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787 (the “Union”) represents all air conditioning, refrigeration and maintenance mechanics employed in the residential construction sector in Ontario. The Applicant, Ontario Refrigeration and Air Conditioning Contractors Association (“ORAC”) has since 2005 been the accredited bargaining agent for all employers in the residential sector of the construction industry in Ontario in contractual relations with the Union. ORAC and the Union have a long-standing bargaining relationship. They have successfully negotiated several province-wide collective agreements, the most recent one expired on April 30, 2013. The parties engaged in collective bargaining but failed to reach a new agreement as they were unable to agree on changes to the wage and benefits packages for employees. The Union gave notice, pursuant to s. 150.4 of the Labour Relations Act, 1995 that it required the matters in dispute between them to be decided by arbitration. ORAC and the Union disagreed about the scope of the arbitrator’s jurisdiction. ORAC took the position that the arbitrator’s jurisdiction was restricted to the geographic areas in and around Toronto as referred to in s. 150.1(1). The Union’s position was that the arbitrator had the power to make a province-wide award.

In his award dated March 31, 2014, the arbitrator determined that he had the power to make a renewal agreement that would apply province-wide. On the merits, he concluded that the renewal agreement would consist of the prior collective agreement, as amended by the terms that the parties had agreed on, and the Union’s proposed wage increases. On judicial review before the Divisional Court, it was concluded that the arbitrator’s jurisdiction was limited to the GTA. The arbitrator’s award in respect of the non-GTA was quashed. On appeal to the Court of Appeal, the Union’s appeal was allowed and the arbitrator’s award restored.

37277

Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, elected Chief and Councillors of the Ermeineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation v. Her Majesty the Queen in Right of Canada, Minister of Indian Affairs and Northern Development and Minister of Finance

- and -

Attorney General of Alberta

(FC)

Constitutional law — Aboriginal law — Treaty rights

In 1946, the applicant First Nation surrendered their mineral interests in their reserve to the Crown, which permitted the Crown to grant leases to oil and gas companies, who then paid royalties to the Crown in trust for the First Nation. In 1973, Canada developed a national strategy to deal with the effects of rapidly rising international oil prices, including the implementation of an export tax (and later, an export charge) on oil export sales. The tax or charge was levied on any exported oil produced on the reserve between 1973 and 1985. In 1992, the First Nation brought an action in Federal Court asserting a number of claims against Canada arising out of these facts, alleging that the regulated price regime constituted, among other things, a breach of the Crown’s trust and fiduciary duties, as well as infringements of treaty rights and obligations. The federal Crown brought a motion for summary judgment, seeking the dismissal of the claim as being time-barred by a six-year statutory limitation period.

The Federal Court granted the Crown’s motion for summary judgment against the First Nation, on the basis that their claim raised no triable issue in light of the application of statutory limitation periods. A majority of the Federal Court of Appeal dismissed the First Nation’s appeal, finding no error in the Federal Court’s reasoning and decision. In the Court of Appeal’s view, the motions judge properly applied the existing jurisprudence which confirms that limitation periods are applicable to all Aboriginal claims, including those based on infringements of treaty rights.

37280

Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band, Samson Indian Band and Nation v. Her Majesty the Queen in Right of Canada, Minister of Indian Affairs and Northern Development and Minister of Finance

- and -

Attorney General of Alberta

(FC)

Constitutional law — Aboriginal law — Treaty rights

In 1946, the applicant First Nation surrendered their mineral interests in their reserve to the Crown, which permitted the Crown to grant leases to oil and gas companies, who then paid royalties to the Crown in trust for the First Nation. In 1973, Canada developed a national strategy to deal with the effects of rapidly rising international oil prices, including the implementation of an export tax (and later, an export charge) on oil export sales. The tax or charge was levied on any exported oil produced on the reserve between 1973 and 1985. In 1989, the First Nation brought an action in Federal Court asserting a number of claims against Canada arising out of these facts, alleging that the regulated price regime constituted, among other things, a breach of the Crown’s trust and fiduciary duties, as well as infringements of treaty rights and obligations. The federal Crown brought a motion for summary judgment, seeking the dismissal of the claim as being time-barred by a six-year statutory limitation period.

The Federal Court granted the Crown’s motion for summary judgment against the First Nation, on the basis that their claim raised no triable issue in light of the application of statutory limitation periods. A majority of the Federal Court of Appeal dismissed the First Nation’s appeal, finding no error in the Federal Court’s reasoning and decision. In the Court of Appeal’s view, the motions judge properly applied the existing jurisprudence which confirms that limitation periods are applicable to all Aboriginal claims, including those based on infringements of treaty rights. In partial dissent, one judge of the Court of Appeal would have allowed the First Nation’s appeal to the extent of permitting its claim that Canada improperly collected a tax to continue, in relation to amounts collected in the six years prior to the First Nation filing its statement of claim.