Brendan Miller

The appellants, members of the Blood Tribe, appealed a Federal Court of Appeal decision holding that their treaty land entitlement (TLE) claim under Treaty No. 7 was statute-barred under Alberta's six-year limitation period.

The Blood Tribe argued that no actionable cause of action for breach of treaty rights existed until s. 35(1) of the Constitution Act, 1982 came into force.

The Supreme Court held that s. 35(1) did not create a cause of action for breach of treaty rights — treaty rights flow from the treaty itself and were enforceable at common law from the date of execution.

Accordingly, the TLE claim was statute-barred.

However, the Court exercised its discretion to grant declaratory relief, finding that the Crown's dishonourable breach of Treaty No. 7 warranted a declaration to promote reconciliation, identify the Crown's misconduct, and assist in restoring the nation-to-nation relationship.

The Defendant, Canada, moved for an adjournment of Phase III of a complex treaty land entitlement action, scheduled for May 3, 2021.

Canada argued unexpected difficulties and delays in trial preparation, largely due to lack of complete documentary production by the Plaintiffs and COVID-19-related closures affecting access to government repositories and expert witness retention.

Despite opposition from the Plaintiffs, the Federal Court granted the adjournment.

The Court found that forcing Canada to trial without necessary documents to quantify damages and counter expert evidence would be unfair and prejudicial.

Phase III was adjourned to dates after November 30, 2021, with each party to bear its own costs.

In Phase III of a treaty land entitlement action, Canada moved to adjourn the trial and to compel answers to discovery questions.

The Blood Tribe brought a cross-motion to dismiss Canada's motions or strike the supporting affidavit of Lynda Sturney, arguing that Canada's objections during her cross-examination defeated its purpose.

The Court ruled that most of Canada's objections based on litigation privilege were proper and that mere reference to privileged matters in an affidavit does not constitute implied waiver.

The Court ordered the affiant to produce one written communication and answer one question about COVID-19 restriction timing, but otherwise dismissed the Blood Tribe's cross-motion with costs.

The defendant moved to compel the plaintiffs to answer written examination questions concerning the historical financial, agricultural, and natural resource development on the Blood Reserve since 1882.

The plaintiffs had objected on grounds of relevance and proportionality.

The Federal Court found the requested information relevant to the damages assessment for breach of treaty land entitlement and proportional to the substantial claim.

The motion to compel was granted.

The applicant imported oil country tubular goods and was assessed anti-dumping duties by the CBSA under the Special Import Measures Act (SIMA).

To appeal the assessment, SIMA required the applicant to first pay the outstanding duties.

The applicant challenged the constitutionality of these appeal payment provisions, arguing they violated section 96 of the Constitution Act, 1867 by barring access to courts due to undue hardship, section 12 of the Charter by imposing cruel and unusual treatment, and section 1(a) of the Canadian Bill of Rights.

The Federal Court dismissed the application, finding the provisions did not violate section 96 as the applicant failed to prove undue hardship, did not constitute cruel and unusual treatment under the Charter, and did not infringe the Bill of Rights, as the provisions were valid federal legislation.

Two accused were convicted at trial of second degree murder in the death of a child and the provincial appellate court substituted first degree murder convictions under the unlawful confinement provision.

The Court confirmed that an appeal as of right after a substituted guilty verdict is limited to legal questions tied to that substituted verdict, while challenges to the affirmed lesser convictions require leave.

It also confirmed the provincial appellate court had jurisdiction over the Crown appeals from acquittals on first degree murder and upheld the substituted first degree murder verdicts.

The Court held that unlawful confinement was established in the parent-child context and that confinement and murder formed part of the same transaction.

The Court considered whether a person charged under Alberta securities legislation carrying a maximum sentence of imprisonment of five years less a day, plus potential substantial fines, was entitled to a jury trial under s. 11(f) of the Charter.

The lower courts held that this penalty structure did not trigger the constitutional jury right.

The Court agreed substantially with the majority below and held that the appellant was not entitled to a trial by jury.

The appeal was dismissed.