Catherine J. Boies Parker

Ontario appealed from the Court of Appeal's decision concerning the Robinson Treaties of 1850, which contained an Augmentation Clause providing for periodic increases to annual payments to the Anishinaabe of Lake Huron and Lake Superior contingent on economic conditions.

The annuities had been frozen at $4 per person since 1875.

The Supreme Court of Canada held that treaty interpretation is reviewable on a correctness standard, and adopted the fourth interpretation of the Augmentation Clause: the annuity is a single payment to the 'Chiefs and their Tribes', with mandatory increases to $4 per person where economic conditions permit, and discretionary increases beyond $4.

The Crown's discretion is not unfettered; it must be exercised diligently, honourably, liberally, and justly, consistently with the honour of the Crown.

No specific fiduciary duties arose in respect of the Augmentation Clause, but the duty of diligent implementation did.

The breach of treaty claims were not statute-barred.

The appeals were allowed in part, cross-appeals dismissed, and a declaration issued directing the Crown to engage in time-bound negotiations with the Superior plaintiffs regarding compensation for past breaches.

The plaintiffs brought a motion on consent for a partial judgment to give effect to a settlement agreement regarding past annuities payable under the Robinson Huron Treaty of 1850.

The settlement resolves claims that the Crown failed to fulfill its promise to augment the annuity over time.

Under the agreement, the federal and provincial Crowns will pay $10 billion to the plaintiffs.

The court approved the settlement agreement and granted the partial judgment.

Ontario brought a motion to adjourn the Stage Three trial of a complex treaty rights claim sine die, pending the Supreme Court of Canada's decision on the appeal of Stage One and Stage Two.

The plaintiffs, interveners, and Canada opposed the motion.

The court applied the test for an adjournment, balancing the interests of the parties and the administration of justice.

The court found that the risk of proceeding was manageable, while the prejudice to the plaintiffs and the administration of justice caused by further delay would be significant.

The motion to adjourn was dismissed.

The applicant, LifeLabs LP, brought a motion seeking additional disclosure from the Information and Privacy Commissioner of Ontario to complete the record for its application for judicial review.

The underlying application challenged a joint decision by the Ontario and British Columbia privacy commissioners rejecting LifeLabs' claims of privilege over documents related to a cyber-attack.

LifeLabs sought internal policies, correspondence between the commissioners, and documents generated during the decision-making process, alleging procedural unfairness.

The Divisional Court dismissed the motion, holding that the requested documents were protected by deliberative secrecy (adjudicative privilege) and that LifeLabs had not established a sufficient foundation of procedural unfairness to displace the privilege.

The Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.

Following Stage Two of a complex treaty rights trial, the plaintiffs sought costs against Ontario.

Ontario disputed the quantum and the partial indemnity rate, arguing the plaintiffs expended an unreasonable amount of time compared to the defendants.

The court found the plaintiffs' time expenditure was reasonable given the complexity of the issues, including Crown immunity and limitations, and the risks involved.

The court awarded costs to the plaintiffs on a partial indemnity basis at a rate of 65%, taking into account an offer to settle made by the Superior plaintiffs and the unique nature of the Anishinaabek-Crown treaty relationship.

The moving party, the National Centre for Truth and Reconciliation, sought a stay pending appeal of orders permitting the destruction of the SADRE database, which contains records from the Indian Residential Schools Settlement Agreement.

The moving party also sought procedural directions, including expediting the appeal and guidance on a sealing order.

The Court of Appeal dismissed the motion for a stay, finding it unnecessary as the database was preserved until December 2020 and the appeal could be expedited.

The court granted the procedural relief, expediting the appeal, allowing an extended factum, and providing directions on the scope of the sealing order.

The plaintiffs, beneficiaries of the Robinson Huron and Robinson Superior Treaties, brought a motion for partial summary judgment in Stage Two of their action against the federal and provincial Crowns.

They sought declarations that their claims for breach of the treaties' annuity augmentation promises were not barred by Ontario's limitations legislation or the doctrine of Crown immunity.

The Superior Court of Justice granted partial summary judgment on these issues, finding that treaties are not contracts or specialties subject to the Limitations Act, 1990, and that equitable claims for breach of fiduciary duty could historically be pursued by petition of right, thus falling outside Crown immunity under the Proceedings Against the Crown Act.

The court declined to grant summary judgment on the issues of joint and several liability and whether Canada should act as paymaster, deferring those matters to the Stage Three trial.

This endorsement settles the form of an order following a Request for Direction (RFD) brought by the Chief Adjudicator of the Independent Assessment Process (IAP) concerning the disposition of "Non-Claim Records" from the Indian Residential Schools Settlement Agreement (IRSSA).

The court had previously dismissed the Chief Adjudicator's RFD but directed Canada to bring a proposal for archiving copies of Non-Claim Records with the National Centre for Truth and Reconciliation (NCTR).

The parties disagreed on the wording of the resulting order.

The court resolved these disagreements, largely upholding the Chief Adjudicator's draft order regarding the treatment of privileged documents, the default regime for record retention, and the sealing of certain court exhibits, while rejecting proposed elaborations by the NCTR and Assembly of First Nations.

The Chief Adjudicator of the Independent Assessment Process (IAP) brought a Request for Directions proposing to archive 'Non-Claim Records' with the National Centre for Truth and Reconciliation (NCTR).

Canada opposed, arguing the records were government property subject to federal archiving statutes and that the court lacked jurisdiction.

The court held it had supervisory jurisdiction under the Indian Residential Schools Settlement Agreement and class proceedings legislation to determine the disposition of the records.

However, the court dismissed the Chief Adjudicator's specific proposal, instead directing Canada to develop and submit its own proposal for archiving copies of the Non-Claim Records with the NCTR, subject to specific principles regarding privacy, privilege, and historical preservation.

The Province of British Columbia referred the constitutionality of proposed amendments to the Environmental Management Act to the British Columbia Court of Appeal.

The proposed amendments would have introduced a hazardous substance permit system regulating the presence of heavy oil in the province, directly impacting the Trans Mountain pipeline expansion.

The BCCA held that the proposed amendments fell outside provincial legislative authority because their pith and substance — placing conditions on, and if necessary prohibiting, carriage of heavy oil through an interprovincial undertaking — related to Parliament's jurisdiction over federal undertakings under s. 92(10) of the Constitution Act, 1867.

The Supreme Court of Canada unanimously dismissed the appeal, adopting the reasons of the Court of Appeal for British Columbia.

Ontario brought a motion to reopen Stage One of the trial to admit newly discovered evidence, specifically the Fort William Jesuit Mission Diary and a September 30, 1850 entry, along with expert opinion evidence.

The court dismissed the motion, finding that the evidence would not probably have changed the result of the trial and could have been discovered with reasonable diligence.

The court also ruled that the expert opinion evidence was inadmissible on the motion as it was not necessary and its prejudicial effect outweighed its probative value.

The Anishinaabe beneficiaries of the Robinson Huron and Robinson Superior Treaties of 1850 brought actions seeking declarations regarding the interpretation of the annuity augmentation clause in the Treaties.

The Treaties provided for a perpetual annuity that the Crown promised to increase if the ceded territory produced an amount enabling the Crown to do so without incurring loss, provided the amount paid to each individual did not exceed £1 ($4) per year, or such further sum as Her Majesty may be graciously pleased to order.

The Court held that the Crown has a mandatory obligation to increase the collective annuities when economic circumstances warrant, and that the $4 cap applies only to individual distributions, not the collective entitlement.

The Court also found that the Crown owes an ad hoc fiduciary duty to the beneficiaries to engage in the process of determining whether the economic circumstances warrant an increase.

The Chief Adjudicator of the Indian Residential Schools Independent Assessment Process brought a Request for Direction regarding the notice program for the disposition of highly confidential records.

The court previously ordered the destruction of these records subject to a 15-year retention period during which claimants could choose to archive them at the National Centre for Truth and Reconciliation.

The main issue was whether the court had jurisdiction to order Canada to fund the participation of the Assembly of First Nations, Inuit Representatives, and the NCTR in the notice program.

The court found it had jurisdiction under the Class Proceedings Act and its inherent supervisory powers, and ordered Canada to provide funding, albeit at reduced amounts reflecting the organizations' limited roles.

The applicants, female soccer players participating in the FIFA Women's World Cup Canada 2015, filed a human rights application alleging sex discrimination regarding the requirement to play on artificial turf.

They subsequently sought to amend their application to include allegations of reprisal and requested an interim remedy ordering the respondents to cease and desist from threatening reprisals.

The Tribunal granted the request to amend the application, finding no prejudice to the respondents.

However, the Tribunal denied the request for an interim remedy, concluding that a cease and desist order was unnecessary because section 8 of the Human Rights Code already provides clear protection against reprisal.

The appellant transit authorities refused to post the respondents' political advertisements on the sides of their buses, citing policies that permitted commercial but not political advertising.

The respondents challenged the policies under s. 2(b) of the Charter.

The Supreme Court of Canada held that the transit authorities are government entities subject to the Charter.

The Court found that the sides of buses are public places where expressive activity is protected, and the policies infringed the respondents' freedom of expression.

The infringement was not justified under s. 1 of the Charter because the blanket ban on political advertising did not minimally impair the right.

The policies were declared of no force or effect under s. 52(1) of the Constitution Act, 1982.

The government of British Columbia enacted the Health and Social Services Delivery Improvement Act in response to a health care crisis.

Part 2 of the Act introduced changes to transfers, contracting out, layoffs, and bumping rights, invalidating provisions of existing collective agreements and precluding future collective bargaining on these issues.

The appellants challenged the legislation under ss. 2(d) and 15 of the Charter.

The Supreme Court of Canada held that s. 2(d) protects a procedural right to collective bargaining, overruling previous jurisprudence.

The Court found that ss. 6(2), 6(4), and 9 of the Act substantially interfered with this right and were not justified under s. 1 because they were not minimally impairing.

The Court dismissed the s. 15 equality claim, finding the distinctions were based on employment sector rather than personal characteristics.

The Surrey School Board passed a resolution declining to approve three books depicting same-sex parented families as supplementary learning resources for Kindergarten and Grade One classrooms.

The appellants challenged the resolution.

The Supreme Court of Canada held that the Board's decision was unreasonable because it failed to act in accordance with the secular mandate of the School Act.

The Board allowed the religious views of some parents to trump the need for equal respect and tolerance for all family models, and failed to apply the appropriate criteria for approving supplementary learning resources.

The appeal was allowed and the matter remanded to the Board.

The respondent patient sued the appellant doctor for medical malpractice after he allegedly misdiagnosed her breast cancer.

The action was commenced outside the standard two-year limitation period.

The Supreme Court of Canada considered whether the running of time was postponed under s. 6(4)(b) of the Limitation Act.

The Court held that the provision requires a subjective/objective approach, postponing the limitation period until a reasonable person would conclude that the plaintiff could reasonably bring an action in light of their own serious, significant, and compelling circumstances.

The appeal was dismissed, allowing the action to proceed.