Etienne Esquega

The Trustees of the Ginoogaming First Nation Timber Claim Settlement Trust sought the court's opinion, advice, and direction regarding the interpretation of Article 12.5 of the Trust Agreement.

Specifically, they asked whether per capita payments should be made to individuals who would have been entitled to band membership on the voting day (December 15, 2001) but for discriminatory provisions of the Indian Act, and if so, whether the 20-year time limit for claiming payment applied.

The court, applying principles of trust and contractual interpretation, found that the plain meaning of the Trust Agreement limited payments to those whose names appeared on the Band List on the specified voting day.

It concluded that subsequent amendments to the Indian Act, which rectified historical discrimination, did not retroactively confer membership rights for the purpose of this specific trust distribution.

Consequently, the payments were not extended to individuals who became members after December 15, 2001.

The second question regarding the time limit was not addressed.

The defendants brought a motion in Small Claims Court to set aside a noting in default after failing to file a defence within the time prescribed by Rule 9.01 of the Rules of the Small Claims Court.

The court considered the test under Rule 11.06, requiring a reasonable explanation for the default, a meritorious defence, and that the motion be brought as soon as reasonably possible.

The evidence established that the default arose from miscommunication and inadvertence, that the defendants moved promptly once the error was discovered, and that they advanced a defence capable of succeeding if supported by evidence.

Emphasizing the principle in Rule 1.03 that proceedings should be determined on their merits where possible, the court exercised its discretion to set aside the default.

The defendants were permitted to file a defence within ten days, with limited disbursement costs awarded to the plaintiff.

The self-represented plaintiff brought a motion seeking leave to appeal an interlocutory order of the Superior Court of Justice, along with several additional forms of relief including declarations regarding prior procedural rulings, removal of opposing counsel, and dismissal of cost orders.

The court held that several requested remedies were outside its jurisdiction or unsupported in fact or law.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found the plaintiff failed to demonstrate either a conflicting authority or a serious doubt about the correctness of the underlying order.

The authorities cited by the moving party were largely irrelevant to the narrow test governing leave to appeal interlocutory orders.

Leave to appeal was refused and the motion dismissed with costs.

The applicant filed a human rights application alleging discrimination and harassment in employment.

The Tribunal issued a Notice of Intent to Dismiss because the applicant had also commenced a civil action against the respondent for wrongful dismissal, breach of contract, and misrepresentation, which included allegations of human rights violations and sought related damages.

The Tribunal found that the application and the civil claim were based on the same facts and sought similar remedies.

Consequently, the application was dismissed as barred by section 34(11) of the Human Rights Code, which prevents duplicate proceedings.