Paul Evraire

On a Rule 21.01 appeal, the court held that the moving party's representative treaty claim was not entirely non-justiciable.

After the respondent conceded on appeal that core claims, including a declaration about the meaning of the Treaty 3 schools provision, were justiciable, the court found it unfair to maintain an order striking the entire pleading without identifying the allegedly non-justiciable portions.

The order striking the statement of claim and dismissing the action was set aside without prejudice to a more targeted future challenge.

The court upheld the motion judge's conditions for proceeding representatively, requiring authorization from all 28 bands or joinder of non-authorizing bands, granted the requested plaintiff substitution amendment, and awarded appeal costs.

The plaintiffs brought a motion to certify a class action against the Federal Crown regarding the 'Sixties Scoop', alleging breach of fiduciary duty and negligence for funding provincial child welfare services that placed on-reserve aboriginal children in non-aboriginal homes without protecting their cultural identity.

The Federal Crown brought a cross-motion to strike the pleadings under Rule 21.

The court dismissed the motion to strike, finding it was not plain and obvious that the claims would fail, given the evolving nature of aboriginal law.

The court granted the certification motion, revising the class definition and common issues to focus specifically on the impact of the 1965 Canada-Ontario Welfare Services Agreement.

The plaintiffs, representing the beneficiaries of Treaty 3, brought a proposed representation action against the Crown alleging breaches of the treaty's education provisions and breach of fiduciary duty.

The plaintiffs moved for authorization to proceed as a representation action under Rule 12.08.

The Crown moved under Rule 21 to dismiss the action as non-justiciable and for failing to disclose a reasonable cause of action.

The court granted the Crown's motion and dismissed the plaintiffs' motions, finding that the breach of fiduciary duty claim was untenable, the necessary parties (the 28 Indian bands) were not before the court, and the breach of treaty claim as pleaded was a non-justiciable political dispute about education policy and funding.