COURT OF APPEAL FOR ONTARIO

CITATION: Kelly v. Canada (Attorney General), 2014 ONCA 92

DATE: 20140203

DOCKET: C56838

Hoy A.C.J.O., Cronk and Epstein JJ.A.

BETWEEN

Grand Chief Diane Kelly, on her Own Behalf and on Behalf of all Beneficiaries of Treaty 3, Chief Eric Fisher, Wabaseemoong Independent Nations; Chief Kemberly Sandy-Kasprick, Northwest Angle #33 First Nation; Chief Simon Fobister, Grassy Narrows First Nation; Chief Pamela Pitchenese, Eagle Lake First Nation; Chief Charles McPherson, Couchiching First Nation

Plaintiffs (Appellants)

and

The Attorney General of Canada

Defendant (Respondent)

Robert J.M. Janes, for the appellants Grand Chief Kelly et al.

Owen Young and Paul Evraire, Q.C. for the respondent the Attorney General of Canada

Heard: January 14-15, 2014

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated February 26, 2013.

ENDORSEMENT

[1] The appellants, Grand Chief Diane Kelly and other Treaty 3 Chiefs, seek to bring a representative action alleging, among other things, that the Crown has breached its obligation in Treaty 3 “to maintain schools for instruction” in the 28 reserves within the area covered by Treaty 3 (the “Schools Provision”).

[2] The motion judge concluded that, as fashioned, the appellants’ action was non-justiciable. He granted the Crown’s motion under Rule 21.01 of the Rules of Civil Procedure, struck out the appellants’ statement of claim and dismissed the action, with leave to the appellants to commence a justiciable action for the alleged breach of Treaty 3.

[3] Decisions within each of the Treaty 3 reserve communities are made by a local governing body, typically a band council. The motion judge also concluded that if the appellants’ breach of treaty claim were justiciable, the appellants could bring a representative action on behalf of the “beneficiaries of Treaty 3” provided that (1) they are authorized to do so by band council resolutions of all 28 reserve bands, or (2) they join as party defendants those bands that do not authorize the representative action.

[4] On appeal, the appellants argue that their action is justiciable and the motion judge erred in striking their statement of claim and dismissing the action. They also argue that the motion judge improperly required them to obtain authorization from the bands, or join them as party defendants, in order to bring their representative action.

Justiciable Action

[5] At the outset of its oral argument, the Crown conceded that key parts of the appellants’ claim – including their claim for a declaration as to the meaning of the Schools Provision of Treaty 3 – are justiciable and the appeal should therefore be allowed. It submits that this court should substitute an order striking the appellants’ statement of claim, but granting the appellants leave to amend their pleading to make it justiciable in its entirety. The Crown was unwilling to indicate precisely what changes to the pleading would be required for this purpose. More importantly, it was also unwilling to identify those parts of the existing claim that it says plead non-justiciable matters.

[6] The appellants argue that given the Crown’s concession, the appeal should be allowed and the motion judge’s order striking their statement of claim and dismissing their action should be set aside, without prejudice to the Crown’s right to challenge particular parts of the pleading on the ground of alleged non-justiciability or to attack the pleading on any other basis. The appellants argue that the Crown’s position before the motion judge was that their claim was non-justiciable, in its entirety. If justiciability of particular parts of their statement of claim are properly addressed by a Rule 21.01 motion (which they do not concede) how, they ask, can they revise a pleading without an understanding of the Crown’s precise objections?

[7] We agree with the appellants. The Crown’s position has shifted significantly. Contrary to its position before the motion judge as renewed in its factum before this court, the Crown now acknowledges that those parts of the appellants’ pleading alleging the existence of an enforceable treaty right generally raise justiciable issues. The Crown asserts, however, that other parts of the appellants’ pleading, which concern the alleged breach or breaches of the asserted treaty right, as well as the remedies claimed, are non-justiciable.

[8] This is a fundamentally different challenge from that faced by the appellants before the motion judge. Moreover, as we have said, on this appeal hearing the Crown declined to specifically identify those parts of the appellants’ pleading that allegedly run afoul of the requirement of justiciability. While the Crown, of course, is free to reconsider its position on the appellants’ proposed action, as currently framed, the altered basis for the Crown’s opposition to the appellants’ action as now advanced by the Crown results in evident unfairness to the appellants. The appellants are entitled to know the case they have to meet on a pleadings challenge to their action.

[9] Accordingly, the motion judge’s order striking the appellants’ statement of claim and dismissing the appellants’ action is set aside, without prejudice to the Crown’s right to challenge particular parts of the statement of claim on such grounds, including justiciability, as the Crown may be advised.

[10] For the assistance of the motion judge and the parties, we record in summary fashion those parts of the statement of claim that the Crown conceded during oral argument are justiciable.

[11] First, the Crown concedes that the appellants’ claim at para. 1.a. of their pleading for the following foundational declaration is justiciable:

a. a declaration that Treaty 3 (as defined below) imposes on Her Majesty the Queen in right of Canada (“Canada”) a duty to provide education services to the beneficiaries of Treaty 3 on their reserves (the “Treaty 3 Education Right”) that are commensurate with those made available to the Canadian population generally;

[12] Second, the Crown also concedes that a claim that Treaty 3 has been breached is a justiciable issue. However, as we understand the Crown’s argument, it contests the appellants’ claim that the Crown breached the Schools Provision by failing to provide sufficient funding (see for example, paras. 32 and 38.a. of the appellants’ pleading), and their request for declaratory relief concerning the Crown’s alleged failure to provide adequate financial resources. The disputed claim for declaratory relief is set out at para. 1.b. of the appellants’ pleading:

b. a declaration that Canada has breached the Treaty 3 Education Right by failing to provide adequate financial resources to maintain and provide the level of educational services required pursuant to Treaty 3 ( emphasis added).

The Crown concedes that para. 1.b. of the pleading would raise justiciable issues so long as the reference to failing “to provide adequate financial resources” is deleted.

[13] Third, the Crown takes no issue with the appellants’ request for a declaration that the Crown is obliged to remedy its alleged treaty breach. However, we understand it to object to their assertion that the Crown should be required to do so by “providing adequate resources” to meet its treaty obligations. We do not understand the Crown to otherwise assert that the relief claimed is not justiciable.

[14] As we have said, the Crown also appears to object to parts of what it says are the appellants’ descriptions of the alleged breaches of Treaty 3. For example, we understand it objects to the allegation, set out at para. 31 of the appellants’ pleading, that in the period from 1873 to at least the mid-1970s, Canada approached the provision of education in a manner that was directed at advancing “an agenda of Christianization and assimilation” without ensuring that a high quality education was delivered to the beneficiaries of Treaty 3. As well, it objects to the allegation at para. 38 that:

Since the 1970s Canada has continued to breach the Treaty 3 Education Right in that it has failed to: a. provide sufficient funding to deliver education services to the Treaty 3 beneficiaries in or near their reserves that is reflective of the special circumstances of the Anishinaabeb ….

[15] That said, we understand, by way of example, that the Crown would not object to a claim that the Crown provided education directed at advancing “an agenda of Christianization” if the foundational declaration sought – as to what the Treaty 3 Schools Provision requires – means that the Crown was obliged to provide a secular system of education.

[16] In our view, if such objections are properly the subject of a Rule 21.01 motion based on justiciability, it would seem that they could be satisfied by amendments to the pleading. The action and the statement of claim are complex. The statement of claim would benefit from amendment.[^1]

Authorization to Bring a Representative Proceeding

[17] In this case, the motion judge is also the case management judge. While the motion judge’s order provides that the appellants’ motion for authorization to bring a representative action and to appoint a representative plaintiff was dismissed, the motion judge’s reasons make clear that if the action were justiciable, authorization would be granted, subject to fulfillment of the conditions set out above.

[18] While the Crown has not yet filed its statement of defence, it put the motion judge and the appellants on notice that, in its view, the 28 bands, and not the larger collective of “the beneficiaries of Treaty 3” that the appellants seek to represent, are the parties entitled to assert any breach of the Schools Provision of Treaty 3.

[19] On this appeal, on the basis that the motion judge effectively conditionally approved their motion for authorization of a representative action, the appellants were initially content to simply join the 28 bands as parties. However, in his reply submissions, counsel for the appellants reconsidered his position, on the basis that it was no longer clear to him that the Crown will assert that the 28 bands are the correct parties.

[20] From the submissions made by Crown counsel, we are satisfied that whether the 28 bands or the larger collective that the appellants seek to represent are the correct parties in this extremely complex litigation remains a live issue. The motion judge’s solution is a practical one. We see no basis to interfere with the conditions that he imposed.

[21] Accordingly, the appellants are granted leave to continue this proceeding as a representative action on behalf of themselves and all persons who are beneficiaries of Treaty 3, and Grand Chief Warren White (who, as discussed below, replaces Grand Chief Diane Kelly) is appointed as the representative plaintiff in the action, provided that (1) they are authorized to do so by band council resolutions of all 28 reserve bands, or (2) they join as party defendants those bands that do not authorize the representative action.

Amendment to Replace Co-Plaintiffs

[22] Before the motion judge, the appellants also sought an amendment to their statement of claim to substitute Grand Chief Warren White for Grand Chief Diane Kelly, and replace two other co-plaintiffs. The Crown did not object; the amendment was not approved because the statement of claim was struck. The requested amendment is granted.

Costs

[23] The appellants are entitled to their costs of the appeal on a partial indemnity scale in the amount of $40,000, inclusive of disbursements and HST. The issue of costs of the motion below shall be returned to the motion judge for determination on such further submissions from the parties as they may be advised and the motion judge may direct.

“Alexandra Hoy A.C.J.O.”

“E.A. Cronk J.A. ”

“Gloria Epstein J.A. ”

[^1]: The appellants helpfully clarified that they only focus on historical facts, such as those in para. 31 with which the Crown takes issue, with a view to establishing a causal link: they argue that the beneficiaries of Treaty 3’s current disadvantaged situation is due to the Crown’s past educational policies, and their Treaty education rights, properly interpreted, entitle them to special educational strategies and services to rectify their situation and create substantive educational equality. It was not clear to us that this concept is captured in the foundational declaration sought that the Crown has a duty to provide educational services “commensurate with those made available to the Canadian public generally”, as currently pleaded at para. 1.a. of the appellants’ statement of claim. Counsel for the appellants also clarified that the appellants’ equitable damages claim does not relate to historical conduct. Damages are sought to compensate individual plaintiffs whose ability to earn income has allegedly been adversely affected because of a breach of the Schools Provision in the Treaty. The primary relief sought is a declaration that the Crown is currently breaching the Treaty, and a mandatory order, of some type, that the Crown take steps to remedy the breach in consultation with the appellants, under the supervision of the courts.