Case Watch for October 2016


Case Watch

The following decisions came across our desk over the past month:

Jurisdiction of superior courts over transboundary Aboriginal rights

Uashaunnuat (Innus of Uashat and Mani-utenam) c Iron Ore Company of Canada, 2016 QCCS 5133 (in French only): The Superior Court of Quebec dismissed an application from the defendants to strike portions of the plaintiffs’ claims. The Innu plaintiffs are suing the defendants, a mining company and a railway company, for $900M in damages for alleged harms to their section 35 rights within their traditional territory, the Nitassinan, which covers a large portion of the Quebec-Labrador peninsula. The defendants argued that to the extent the plaintiffs’ claims relate to land outside Quebec’s borders, those claims are outside the jurisdictional competence of the Quebec Superior Court, as per the Quebec Civil Code. The claims are premised on asserted Aboriginal rights and title, as well as treaty rights. In determining this application, the Court noted the need to consider the Aboriginal perspective when addressing section 35 rights, the sui generis nature of these rights, and the fact that recognition of these rights is ancillary to the primary focus of this litigation, which is on damages. The Court also rejected forum non conveniens and Crown immunity arguments. It noted in the latter case that the section 35 rights of the Innu are existing rights, not rights created by the courts, and should therefore not differ as between Quebec and Labrador.

Freedom of expression in context to injunction application for blockade

Siksika Nation v Crowchief, 2016 ABQB 596: The Alberta Court of Queen’s Bench granted the Siksika Nation an interlocutory injunction against a group of its members to prevent them from interfering with its contractor’s efforts to rebuild homes in an on reserve development. The respondent stated that his purpose for initiating the blockade was to draw attention to alleged issues of oversight, accountability and transparency with respect to the applicant’s use of financial resources on this project, among other things. The respondent invoked his Charter right to freedom of expression in defence of the protest and blockade. The Court found that the applicant was able to meet the test for an interlocutory injunction. The Court also held that the Charter did not apply in the circumstances, since the injunction was aimed at ensuring the applicant and its contractor could fulfill the terms of a private agreement, and the applicant was not seeking to prevent the respondents from pursuing legal avenues to express their dissent. The Court further concluded that the injunction would be a justifiable infringement of the respondents’ Charter rights even if the Charter had applied.

Annuity claims and the unique context of each Numbered Treaty –

Horseman v Canada, 2016 FCA 238: The Federal Court of Appeal dismissed an appeal from a Federal Court decision that declined to certify a proposed class proceeding for treaty annuities owed under each of the Numbered Treaties. The Federal Court had concluded that there was insufficient commonality between the circumstances of each treaty’s annuity clause for the purposes of a class action. The Court of Appeal upheld the decision and substantially agreed with the Federal Court’s analysis. It held that treaty interpretation requires an intensive inquiry into the mutual intent of the parties and the purposes for which they entered treaty. Due to the unique historical, cultural, and economic context surrounding each treaty, class proceedings would likely not have issues of commonality unless they were limited to a particular Numbered Treaty.

Admission of extrinsic evidence re: duty to consult on judicial review –

Sipekne’katik v Nova Scotia (Minister of Environment), 2016 NSSC 260: The Supreme Court of Nova Scotia allowed the admission of affidavit evidence beyond the record in a statutory appeal from ministerial approvals under Nova Scotia’s Environment Act. The approvals were for the development of an underground natural gas storage facility. Sipekne’katik claim Aboriginal and treaty rights to hunt and fish in the area where the project will be developed. The Court held that evidence beyond the record would only be admissible in exceptional circumstances, such as breaches of natural justice and procedural fairness. All parties relied on the Crown’s duty to consult falling within the broad heading of a “breach of procedural fairness” in order to argue that their respective affidavits were admissible. The Court noted that affidavit evidence would not be admissible merely because the honour of the Crown was raised as an issue. They must relate to the scope and content of the duty to consult and whether that duty has been fulfilled. Under this test the Court accepted all the affidavits, subject to the striking of some argumentative portions.

Injunction granted against logging blockade –

D.N.T. Contracting Ltd v Abraham, 2016 BCSC 1917: The Supreme Court of British Columbia granted a logging company’s application for an injunction prohibiting members of the Takla Lake First Nation (TLFN) from blocking, physically impeding, or delaying access to harvesting sites under a timber licence. Members of the TLFN stated that their burial sites and traditional territory were within the cut block boundaries of the licence. They also stated that TLFN receives a larger number of consultation referrals than they can manage due to their small size and financial management issues from previous administrators. TLFN indicated it was willing to negotiate with the applicant and allow the logging if accommodation could be reached. The Court held that the blockade constituted irreparable harm as further delays would threaten the economic standing of the company’s operations and harm it significantly. The Court held that TLFN should have brought its issues forward during the consultation process before the licences were approved, rather than threatening the administration of justice by blocking access to the harvesting sites long after the time for consultation had passed.

Appraisal of lease rates for on reserve recreational properties –

Schnurr v Canada, 2016 FC 1079: The Federal Court resolved three common issues in a class action lawsuit filed by a group of on reserve cottagers. The plaintiffs are disputing a rental increase proposal of up to 700% for each year of a five-year rental term. The primary issue was the appropriate methodology for determining the fair market rental value of the leased properties. The Court determined that the appropriate method was to consider comparable lease rates on comparable property. The Court sided with the plaintiffs’ real estate appraiser because of his greater knowledge of the subject property, and familiarity with the Saskatchewan market and the recreational lands in the province. It did not accept the argument that provincial park rates should be excluded from the calculation due to policy constraints on those rates.

Public interest standing on judicial review of Chief Coroner’s decision –

Blackjack v Yukon (Chief Coroner), 2016 YKSC 53: The Yukon Supreme Court dismissed an application to strike the Little Salmon Carmarks First Nation (LSCFN) from an application for judicial review on the basis that it had no standing. Theresa Blackjack and LSCFN jointly filed a petition for judicial review of the Chief Coroner’s decision to close an investigation into the death of Theresa’s daughter, Cynthia Blackjack, without ordering an inquest. The Chief Coroner asserted that LSCFN had no standing in relation to the subject matter of the petition. The Court concluded that LSCFN had public interest standing to proceed with the petition because LSCFN raised a serious justiciable issue, had a real stake or genuine interest in that issue, and the proposed suit was a reasonable and effective way to bring the issue before the courts.

Limitations period for negligence claim based on sexual assault:

Fox v Narine, 2016 ONSC 6499: The Ontario Superior Court of Justice dismissed an application to strike a statement of claim alleging that a shelter was negligently operated when the late plaintiff was sexually assaulted there. The plaintiff was subsequently murdered. The Court held that there was a sufficiently proximate relationship between the late plaintiff and the shelter where she was staying at the time of her assault. There was also no reason to override or limit the scope of the duty of care. The statutory provision that would allow this action to proceed was created to improve the protection that the law offers to victims of sexual violence. While a limitation period under the Trustee Act, 2002 would ordinarily have barred the claim from being brought more than two years after the plaintiff was killed, there is no limitation period under the Limitations Act, 2002 where an action is based on sexual assault. The more general statute must yield to the more specific one, which was the limitations legislation in this case.

Canada not estopped from estoppel argument in Treaty 8 tax litigation –

Tuccaro v Canada, 2016 FCA 259: The Federal Court of Appeal dismissed an appeal from an interlocutory order of the Tax Court of Canada. Mr. Tuccaro unsuccessfully sought to strike portions of Canada’s reply where it was asserted that he was estopped from asserting a treaty right to tax exemption under Treaty 8. Mr. Tuccaro argued that this issue was definitively addressed in a past Federal Court of Appeal decision in this litigation with respect to an appeal from another motion to strike, and Canada was therefore estopped from raising its estoppel argument. Both the Tax Court and the Federal Court of Appeal disagreed. The Court of Appeal did not find it plain and obvious that Canada would be estopped from raising its estoppel argument, especially considering the discretion that a trial judge maintains over whether it accepts such an argument. The Court of Appeal also suggested that Mr. Tuccaro’s argument could have grave consequences if it were accepted. It could force litigants to raise grounds that they know have no chance of meeting the stringent test for motions to strike in order to avoid potential issue estoppel arguments on those unpleaded grounds.

Duty to reference Gladue factors in reasons for sentence –

R v Wheatley, 2016 BCCA 397: The British Columbia Court of Appeal allowed an appeal from a sentence of 18 months imprisonment for breach of a residency requirement in a long-term supervision order. The sentencing judge made no mention at all of Mr. Wheatley’s Aboriginal background or his traumatic upbringing, although this was established during the sentencing hearing and the subject of submissions. The judge was clearly aware of the law, having been the sentencing judge for one of the sentences on appeal in the Supreme Court’s Ipeelee decision. However, the importance of Mr. Wheatley’s Aboriginal background and the traumas he suffered growing up appear to have been “lost in the shuffle” when it came to the imposition of a sentence. The Court of Appeal held that “[t]oday, reference to an Aboriginal offender’s circumstances should be seen as mandatory”. The sentencing judge erred in failing to particularly consider Mr. Wheatley’s Aboriginal circumstances and Gladue factors, resulting in an unfit sentence.

Gladue factors applied in determining whether s 24(1) of Charter supported curative discharge –

R v Daybutch, 2016 ONCJ 595: The Ontario Court of Justice ordered a curative discharge for Ms. Daybutch with respect to her convictions for impaired driving offences, finding it to be both appropriate for the defendant and in the public interest. Earlier in these proceedings the Court had concluded that Ontario was in violation of the s 15 equality rights of Indigenous people in Ontario by failing to request the proclamation into force of a curative discharge option for impaired driving offences. This decision on sentence adopted a remedial approach under s 24(1) of the Charter. The Court had before it a Gladue report on Ms. Daybutch that indicated how her offences related to the systemic and background factors she faced as an Aboriginal woman. The Court took the view that the use of a curative discharge where warranted for Aboriginal offenders would permit sentencing judges to act in a Charter-compliant manner in accordance with the Supreme Court’s directions in Gladue and Ipeelee.


This Case Watch blog post has been brought to you by the Native Law Centre in partnership with Pro Bono Students Canada – University of Saskatchewan

Case Watch for August 2016


Case Watch

The following decisions came across our desk over the past month:

Crown’s duty to consult in multi-stage permitting process

Listuguj Mi’gmaq First Nation v New Brunswick, 2016 NBQB 138: The New Brunswick Court of Queen’s Bench dismissed an application for judicial review to quash three provincial approvals granted to Chaleur Terminals Inc for the construction of a rail terminal and transfer system in Belledune, New Brunswick. The applicants argued that these approvals were issued without any meaningful consultation or accommodation of the Aboriginal and treaty rights and title of three Mi’gmaq communities along the Gaspé peninsula of Quebec. The Court rejected this application on the basis that the Crown had met the low level of consultation that it had pre-determined to be adequate for this project in 2014. The Crown first conducted its own assessment of the appropriate level of consultation in July 2014 and issued a certificate for the project to proceed at that time. The applicants never challenged those 2014 decisions and were now out of time to do so. The application was allowed to proceed with respect to three approvals from 2015 that involved excavation, the clearing of the site, and the installation of oil tanks. However, there was no new information brought to the province’s attention that would justify deeper consultation on the 2015 approvals and the province met the low level of consultation mandated by its 2014 determination.

Use of actuarial risk assessment tools for Aboriginal offenders

Canada v Ewert, 2016 FCA 203: The Federal Court of Appeal allowed the Crown’s appeal from a Federal Court decision that concluded that the use of certain actuarial tools for assessing recidivism and psychopathy was unreliable with respect to Aboriginal inmates, and thereby unjustifiably infringed upon their section 7 rights and breached the statutory obligations of the Correctional Service of Canada. The Federal Court had held that Mr. Ewert was not required “to establish definitively” that the assessment tools were biased, but the Court of Appeal disagreed. It allowed the appeal on the basis that Mr. Ewert was required to prove on a balance of probabilities that the actuarial tools generate or were likely to generate false results for Aboriginal inmates, and failed to do so.

Gladue factors in sentencing –

R v Okimaw, 2016 ABCA 246: The Alberta Court of Appeal allowed the sentence appeal of an Aboriginal offender on the grounds that, among other things, the sentencing judge failed to give weight to specific Gladue factors. The Court of Appeal used this decision as an opportunity to provide a “practical framework” for the consideration of Gladue factors. It was not enough for the sentencing judge to merely acknowledge “the existence of systemic factors”; the judge had a duty to consider how unique systemic and background factors played a role in bringing the particular Aboriginal offender before the courts. The Court of Appeal found that this necessary context was effectively absent from, or at least given insufficient weight in the decision under review. The Court of Appeal also clarified that it is not incumbent on a Gladue report writer to explain the impact of Gladue factors on moral blameworthiness. It is the sentencing judge that has the duty to carry out an “individualized assessment” of Gladue factors and this duty cannot be delegated. In this case, the Court of Appeal found that the impact of Mr. Okimaw’s Gladue factors were “largely self-explanatory”.

R v Alec, 2016 BCCA 347: The British Columbia Court of Appeal dismissed the sentence appeal of an Aboriginal offender who was sentenced without the aid of a Gladue report. A report was allowed as fresh evidence on appeal. However, the Court of Appeal held that a “formal” Gladue report was not necessary for sentencing Aboriginal offenders. The Court held that the sentencing judge was clearly aware of Mr. Alec’s Aboriginal circumstances and his “disconnection” from his First Nation, and it was open to the sentencing judge to assume that Mr. Alec would not participate in the preparation of a report given his previous reluctance to do so.

R v Sateana, 2016 NUCJ 20: The Nunavut Court of Justice considered Gladue factors in sentencing an Aboriginal man for manslaughter. The Court stated that the systemic factors that influence criminality in Nunavut are well known and well documented, including the inter-generational impact of residential schools, over-crowded and sub-standard housing, poverty, high rates of domestic violence and sexual abuse, and high rates of alcohol and substance abuse. However, the Court held that a Gladue analysis is something “which this court is called upon to give effect to on a regular basis, but which it is unable to implement in any meaningful way”. While Mr. Sateana had appeared before the Court many times before the events leading to his manslaughter conviction, the Court “would have been unable to craft sentences which addressed his deep seated issues and alcohol addiction because the territory has no treatment or rehabilitation facilities and few counselling and mental health services.” Mr. Sateana was sentenced to 13 years incarceration.

Gladue factors in relation to solitary confinement –

Hamm v Canada (Attorney General), 2016 ABQB 440: The Alberta Court of Queen’s Bench allowed an application for habeas corpus from three self-represented inmates placed in solitary confinement, two of whom were Aboriginal. The Court ordered the release of these three inmates from segregation as the institution had failed to provide them with the high level of procedural fairness they were owed before being placed into solitary confinement. Among other concerns, the Court held that “given the potential rehabilitation benefits and other benefits of access to [A]boriginal spiritual and cultural programs, each [A]boriginal inmate should have had a Gladue type assessment of what placements would be appropriate.” The Court also concluded that it was “unreasonable for a correctional institution to deny transparency in relation to its decisions concerning whether, and how, and where, [A]boriginal offenders should be further deprived of liberty”.

Gladue factors & pledges of on-reserve property in bail hearing –

R v Hope, 2016 ONCA 648: The Ontario Court of Appeal granted an Aboriginal man release from custody pending a new trial on charges that include second degree murder. The Court of Appeal took note of the various contexts in which it has previously applied Gladue principles, including bail hearings, and stated that Gladue principles informed certain aspects of its analysis in this case. Ultimately, the Court concluded that detention pending appeal was not necessary in the public interest in this case. The Court also dismissed the Crown’s concerns with the fact that the individuals offering sureties and pledges against the equity in their homes on Mr. Hope’s behalf were of Aboriginal descent and lived on reserve. Section 89 of the Indian Act protects property on reserve from being subject to a charge by anyone other than an “Indian” or a band. The Court of Appeal held that this should not interfere with an Aboriginal person’s ability to secure release from detention, and what mattered was that these individuals expressed a willingness to pledge the “not insignificant” equity in their properties, not whether the Crown could execute against those properties.

Extinguishment of Aboriginal rights –

Québec (Procureure générale) c Lachapelle, 2016 QCCS 3961 (in French only): The Quebec Superior Court granted an application to evict two individuals from a hunting camp in the Eastmain River basin in northern Quebec. One of the respondents was a member of the Algonquins of Barriere Lake and asserted that the hunting camp was incidental to an Aboriginal right to hunt. However, the respondent failed to provide any evidence in support of a site-specific hunting right in the area in question. The Court noted that the camp was located approximately 1200km away from the respondent’s reserve and fell within Cree territory recognized under the James Bay and Northern Quebec Agreement (JBNQA). The Court also held that even if the respondent had proven a site-specific right in the area where the camp is located, the Court could not recognize it in light of the extinguishment clause in the JBNQA. The respondent declined the opportunity to challenge the JBQNA’s constitutionality. The Court did note, however, that the JBQNA’s constitutionality is at issue in another proceeding before the Superior Court.

Exceptions to the tax exemption under section 87 of the Indian Act –

Bell v Canada, 2016 TCC 175: The Tax Court of Canada dismissed an appeal from tax assessments based on the tax exemption for personal property situated on reserve (section 87 of the Indian Act). The appeal concerned whether the exemption could be applied to annual bonuses received by a status “Indian”, Ms. Bell, from a company she owned and operated with her non-status spouse. Ms. Bell worked out of an office located on reserve. Ms. Bell received regular bi-weekly pay from the company as well as the balance of the company’s annual income as year end bonuses. The Minister allowed her to rely on the tax exemption for her regular pay but not for her year end bonuses. The Tax Court upheld the Minister’s decision on the basis that there was no substantive connection between the bonuses and the reserve land where Ms. Bell was working. The Tax Court also found that the bonuses exceeded reasonable remuneration and were therefore abusive of the tax exemption.

Crowns added as parties in private law action involving Aboriginal rights –

Saik’uz First Nation v Rio Tinto Alcan Inc, 2016 BCSC 1474: The BC Supreme Court allowed an application to add both the federal and provincial Crowns as defendants to a tort action against Rio Tinto Alcan in relation to impacts on the Nechako River and its fishery resources. The action is premised in part on asserted Aboriginal rights and title. The Court noted that the plaintiffs acknowledged that the consequences of this “major and complex case”, which would define the intersection between Aboriginal rights and tort law, may be huge. This may warrant inclusion of the Crown on its own. Further, the plaintiffs had already formally invited the Crown to participate through the Notice of Constitutional Challenge they issued in order to challenge the applicability of certain statutes. Under British Columbia’s Water Act, the province also asserts ownership over the water under dispute in this action, thereby warranting its involvement. Finally, the Court held that even where a formal declaration of Aboriginal title is not sought in the pleadings, the federal and provincial Crowns are still necessary parties to the determination of issues relating to Aboriginal title.

Injunction against First Nation’s interference with use of road –

Revolution Infrastructure Inc v Lytton First Nation, 2016 BCSC 1562: The BC Supreme Court allowed an application from Revolution Infrastructure for an interlocutory injunction restraining the Lytton First Nation from prohibiting or interfering with its use of an access road and ranch on which it operates a composting facility. Lytton First Nation asserts Aboriginal rights and title to the valley in which the facility and road are located and asserts a right to control access on this basis, as well as the basis that the road crosses its reserve lands. Lytton has enacted a band bylaw requiring Revolution to obtain a permit to use the road. The Court held that there are several serious questions to be tried in this case, including the nature of Aboriginal title and whether the band bylaw was validly enacted. The Court also held that interference with Revolution’s access to the road would result in irreparable harm. Finally, the Court held that the balance of convenience favoured Revolution as Lytton’s actions had disrupted the status quo of its use of the road without interference since 2009, the road had been used by the public for a significant period before then, and a facilitation process was in place that could potentially address the issues between the parties.

No jurisdiction for provincial tribunal with respect to on-reserve clinic –

Cahoose v Ulkatcho Indian Band, 2016 BCHRT 114: The BC Human Rights Tribunal dismissed a complaint against the Ulkatcho Indian Band and others on the basis that it lacked jurisdiction over the matter. The complainant had been employed in the band’s healthcare clinic on reserve. The tribunal held that there was no dispute over the proper approach for determining the limits of its jurisdiction. Instead, the key issue was which entity the so-called “functional test” needed to be applied to. The complainant argued that the First Nations Health Authority administered the clinic. However, the tribunal found no evidence of the Authority acting as a service provider. Instead, it concluded that the band was the employer of the clinic’s staff and the entity providing medical services on the reserve. Finally, the tribunal concluded that the band’s operations were seen to be federal when the functional test was applied.

Jurisdiction of self-governing First Nation tribunal –

Kwanlin Dün First Nation v Kwanlin Dün First Nation Judicial Council, 2016 YKSC 35: The Yukon Supreme Court dismissed an appeal from the Kwanlin Dün First Nation (KDFN) against two decisions of its Judicial Council that set aside its termination of two tenancy agreements. KDFN argued that the Judicial Council had no jurisdiction to decide matters relating to landlord and tenancy issues since KDFN has not enacted any laws on this subject matter and provincial legislation therefore applies. The Court found this dispute raised a question of true jurisdiction that must be reviewed on a standard of correctness. It held that the Judicial Council, by virtue of KDFN’s Constitution and its Judicial Council Act, had the power to review administrative decisions by the KDFN, including those it makes in a landlord and tenant context, to ensure its Constitution and laws are complied with. The Court went on to conclude that the Judicial Council had not exceeded its jurisdiction by ruling on matters of procedural fairness and KDFN’s constitutional values in context to the tenancy disputes at issue. The Judicial Council did not rule on specific landlord-tenant issues.

Indian Residential Schools Settlement Agreement –

Fontaine v Canada (Attorney General), 2016 MBQB 159: The Manitoba Court of Queen’s Bench allowed a Request for Directions with respect to a claim that an individual was wrongfully denied compensation under the IRSSA for sexual abuse at a residential school. The adjudicator accepted that a nun grabbed the claimant’s genitals while he was at residential school, but was not satisfied that the act had a “sexual purpose”. This decision was upheld on review and re-review. The Court found that it had the jurisdiction to review the re-review adjudicator’s decision on a standard of reasonableness. It went on to conclude that the first adjudicator’s interpretation of the IRSSA as requiring a “sexual purpose” for sexual touching to be compensable was fundamentally inconsistent with the plain language of the IRSSA and with the criminal law jurisprudence that the adjudicator purported to apply. It was therefore unreasonable for the re-review adjudicator to uphold this decision. The Court sent the claim back to be reconsidered in accordance with its reasons.

Fontaine v Canada (Attorney General), 2016 ONSC 5359: The Ontario Superior Court of Justice addressed the results of an investigation into the legal services provided by Douglas J. Keshen and his former law firm with respect to claims under the Indian Residential Schools Settlement Agreement (IRSSA). The report resulting from the investigation was “largely a vindication for Mr. Keshen”. However, there were two exceptions to this: 1) Mr. Keshen was found to have facilitated third party loans on the basis of a promise to repay the loans from IRSSA awards, which is prohibited under the IRSSA; and 2) Mr. Keshen’s practice of reporting to clients orally rather than in writing did not fully meet the Law Society of Upper Canada’s guidelines for lawyers acting on IRSSA files. No costs were ordered for either party and Mr. Keshen was not ordered to pay the costs of the investigation.