Mark Crow

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.

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.