ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
CHARLOTTE A. BELL, Q.C. GARY PENNER, SCOTT WARWICK, Solicitors for the Defendant/Moving Party, The Attorney General of Canada
MICHAEL R. STEPHENSON and MICHAEL E. BURKE, for the Solicitor for the Defendant/Respondent Her Majesty the Queen in the Right of Ontario
Canada Moving Party/Defendant
Ontario Respondent/Defendant
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THE CHIEF AND COUNCIL OF THE RED ROCK FIRST NATION, ON BEHALF OF THE RED ROCK FIRST NATION BAND OF INDIANS, and THE CHIEF AND COUNCIL OF THE WHITESAND FIRST NATION, ON BEHALF OF THE WHITESAND FIRST NATION BAND OF INDIANS
HARLEY SCHACTER, for the Plaintiffs
Respondents/Plaintiffs
HEARD: 2005-11-16
APPLICATION FOR LEAVE TO APPEAL
REGIONAL SENIOR JUSTICE J. F. McCARTNEY
1This is a Motion by the Defendant, the Attorney General of Canada (Canada), for Leave to Appeal the interlocutory order of Smith J. of April 19, 2005 to the Divisional Court by reason of Section 62.02 of the Rules of Practice.
2The original motion requested alternate forms of relief as follows:
Under Rule 21.01(1)(b) to strike out those portions of the Statement of Claim asserting Canada must pay post-confederation annuity payments to the Plaintiffs.
Under Rule 21.01(1)(a) for determination of whether Section 109 of the Constitution Act 1867 applies so that Ontario, not Canada, would be responsible for the said annuity payments.
3Canada’s position on this Leave Application is that the Motion’s Judge was wrong in not accepting the fact, as pleaded, that the parties had agreed to a rectified treaty (one which removed the cap on annuities) and that it then followed from its interpretation of Section 109 of the Constitution Act that the responsibility to pay any increased annuities under the treaty (Robinson Superior Treaty) fell on the Province of Ontario (Ontario). In any event, argues Canada, in not accepting the fact of the rectified treaty, the Court was then in the position whereby it should have allowed the motion on the basis that no reasonable cause of action had been disclosed.
4Justice Smith carefully analyzed all of the arguments in his lengthy decision being appealed from. While he correctly and carefully set out the test for striking pleadings under Rule 21(c) (see paragraph 20-26 of the decision), he was careful to point out that the case law is quite clear that this remedy should be avoided when a complex or difficult question of law is to be decided. Smith J. then went on to explain that merely because the Plaintiff had pleaded a “remedy”, and clearly he was speaking of the rectified treaty, this was not something he had to accept when considering Canada’s argument relating to Rule 21. He then went on to explain that while he agreed that facts pleaded in a Statement of Claim should be accepted for the purpose of assessing a motion under Rule 21, here there was no factual foundation set out to support the “rectified treaty” as pleaded. A review of the Statement of Claim supports this view, even though, as I understand it, a reply to demand for particulars had been served by the Plaintiffs prior to the motion being heard, but had not been filed at that time, and therefore the motion’s judge did not have the benefit of same.
5The parties opposite strongly oppose Canada’s argument for the following reasons:
Canada’s motion to strike was not based on a failure to plead facts, but rather, in regards to a rectified treaty, on its legal argument that it was Ontario, and not Canada, which was responsible for the payments claimed under the rectified treaty. Since the sufficiency of the pleadings was not before the motion’s judge, this cannot be the basis of an appeal. This argument has merit.
The real reason, however, why the motion was disallowed, is set out in paragraphs 135 to 147 of the reasons. In summary, it was Justice Smith’s opinion, that constitutional cases involving complicated issues of history, fact and law, should not be decided at the pleading stage, but only at the trial stage where the Court has the benefit of a complete factual record. On the basis of this reasoning, the learned judge refused to strike the pleadings as requested or make the requested determination of law and so dismissed Canada’s motion.
6Leave to Appeal from interlocutory orders is governed by Rule 62 of the Rules of Practice. The grounds on which leave may be granted are set out in Rule 62.02(4) as follows:
62.02(4)(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
62.02(4)(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
7The parties are in agreement that only (b) above – the correctness of the order and the importance of the matters – are the issues to be decided here.
8Regarding the issue of correctness it is clear to me that Smith J. in considering the competing claims realized that there were, in the end, two principles of law to be considered here – the necessity to plead sufficient facts in a Statement of Claim to support the allegations therein – and the danger of short circuiting a complex case at the pleadings stage – particularly in constitutional cases, and in particular cases involving interpretation of treaties. After weighing both sides of the argument very thoroughly, he came down on the side of caution and decided that the action should proceed as is. I have no reason to doubt the correctness of the order he made in that regard.
9Concerning the question of the importance of the matter, it may well be, as Ontario argues, that determining pre-confederation liabilities is a matter of importance such as is anticipated in the rule. However, it is not something that must be decided here since the test is conjunctive and I have already ruled on the correctness issue.
10Regarding costs, the only party to file a cost outline with me was Ontario. If the parties wish to argue costs, they may do so within the next 30 days by arranging a costs hearing with the Trial Coordinator in Thunder Bay.
REGIONAL SENIOR JUSTICE J. F. McCARTNEY
Released: 2005-12-22
/pc
COURT FILE NO.: DC-05-000013
DATE: 2005-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Canada Moving Party/Defendant
Ontario Respondent/Defendant
- and –
THE CHIEF AND COUNCIL OF THE RED ROCK FIRST NATION, ON BEHALF OF THE RED ROCK FIRST NATION BAND OF INDIANS, and THE CHIEF AND COUNCIL OF THE WHITESAND FIRST NATION, ON BEHALF OF THE WHITESAND FIRST NATION BAND OF INDIANS
Respondents/Plaintiffs
REASONS FOR DECISION
ON MOTION
FOR LEAVE TO APPEAL
REGIONAL SENIOR JUSTICE
J. R. McCARTNEY
Released: 2005-12-22