Dayna Anderson

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 Attorney General of Canada appealed from the Alberta Court of Appeal's ruling that the federal Impact Assessment Act and Physical Activities Regulations were entirely ultra vires Parliament.

The Supreme Court allowed the appeal in part, holding that the designated projects scheme is unconstitutional because it is not in pith and substance directed at regulating effects within federal jurisdiction — those effects do not drive the scheme's decision-making functions — and because the defined term 'effects within federal jurisdiction' does not align with federal legislative jurisdiction.

However, the secondary scheme in ss. 81 to 91 of the IAA, which governs projects on federal lands or outside Canada, was found to be clearly intra vires and severable.

The dissent would have upheld the entire legislation as validly directed at assessing and regulating adverse federal effects.

Two family trusts petitioned for equitable rescission of transactions that had resulted in unanticipated income tax liability after the Canada Revenue Agency changed its interpretation of s. 75(2) of the Income Tax Act following the Tax Court's decision in Sommerer.

The majority held that a limiting principle of equity and the principles of tax law stated in Fairmont Hotels and Jean Coutu bar taxpayers from resorting to equity to undo freely agreed upon transactions in order to avoid unanticipated adverse tax consequences arising from the ordinary operation of a tax statute.

The prohibition against retroactive tax planning applies broadly to all equitable remedies, including rescission, not only rectification.

Côté J. dissented, holding that rescission is available in strictly limited circumstances where there is a clear causative mistake of sufficient gravity, and that neither Fairmont Hotels nor Jean Coutu generally precludes equitable remedies in a tax context.