COURT FILE NO.: DC-05-000013
DATE: 2005-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA and HER JAJESTY THE QUEEN IN RIGHT OF ONTARIO
Charlotte Bell and Gary Penner, for the Attorney General of Canada Michael R. Stephenson and Michael Burke, for the Defendant Her Majesty the Queen in Right of Ontario
Canada Appellant/Defendant
Ontario 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
Harley Schacter, for the Plaintiffs
Charlotte Bell and Gary Penner, for the Attorney General of Canada
Respondents/Plaintiffs
HEARD: 2005-11-16
DECISION ON MOTION
REGIONAL SENIOR JUSTICE J. F. McCARTNEY
[1] This is a Motion brought by the Attorney General of Canada under Rule 62 for a leave to appeal the decision of Smith J. of April 19, 2005.
[2] At the outset the moving party applied for and was granted leave for filing his Notice of Leave to Appeal herein, to May 11, 2005.
[3] The decision of Smith J. refused to strike parts of the Statement of Claim of the Plaintiff on the basis that there was no reasonable cause of action, or that the Defendant cannot be responsible to the Plaintiff for the claim as framed.
[4] Rule 62.02(4) reads as follows:
“Grounds on which leave may be granted. Leave to appeal shall not be granted unless….
[5] The grounds for appeal in this matter are found in paragraph b above.
[6] The factual situation is fully set out in the reasons of Smith J. referred to above. In summary, the Plaintiffs allege that the….of 1850 should be interpreted to mean that the Plaintiffs are entitled to increased annuities derived from a share of the revenues produced from the lands as surrendered under the Treaty. Further, the Plaintiffs allege that the Crown is obligated to manage its surrendered lands to the benefit of the Plaintiffs, and the claim against both Canada and Ontario for monies owing both past and into the future.
[7] Dealing with the issue of the correctness of the decision, I think what has happened here is that the moving party including that the order referred to above was not correct, concentrated on two paragraphs of the decision rather than to follow the whole of the justice’s reasoning through the decision.
[8] There is no question that the justice understood the test under Rule 21, which he dealt with extensively in paragraphs 20 to 35 of his reasons. Further, what he was saying in his analysis in paragraphs 94 to 117 was that the bare allegation in the Statement of Claim that the Robinson Superior Treaty should be interpreted to remove the cap on the payments of the annuities does not necessarily give rise to the conclusion that the motion, or any part of it, must be successful. The reason for this, as is explained by him, is that the argument on which this proposition is predicated ie. that post 1867 enhanced payments are the responsibility of Ontario, have been the subject of previous argument and judicial decision, and is not at all clear, particularly if one takes into account these judicial and quasi-judicial decisions, that the Attorney General of Canada’s argument is sound (see discussions – paragraphs 94 to 101 relating to Section 109 of the Constitution Act and paragraphs 102 to 117 relating to Section 111 of the Constitution Act).
[9] For these reasons, therefore, Justice Smith refused the motion, and for the reasons I have enunciated I can see no reason to doubt the correctness of this decision.
[10] The other part of Section 62.02(b), which must be considered, is whether the matter is of such importance as to warrant giving a leave to appeal. The issue here relates to the interpretation of a Treaty which of course could effect the signatories to the Treaty, but which is clearly not a matter of such general importance to the law as to qualify for leave under this section.
[11] The main reason for this decision, however, is found in paragraphs 135 to 146. The message in these paragraphs is that, generally speaking, complex constitutional issues should not be decided at the pleading stage since so much will turn on the resolution of factual issues, the interpretation of historical documents, and the like.
[12] For all of the above reasons the Motion for Leave to Appeal is denied.
[13] The parties may speak to me within the next 30 days concerning costs, if it is necessary, by arranging a conference call with the Trial Coordinator in Thunder Bay.
Regional Senior Justice J. F. McCartney
Released: 2005-11-23
/pc
COURT FILE NO.: DC-05-000013
DATE: 2005-11-24
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 Appellant/Defendant
Ontario 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 OT EHW WHITESAND FIRST NATION BAND OF INDIANS
Respondents/Plaintiffs
REASONS FOR DECISION ON MOTION
REGIONAL SENIOR JUSTICE J. F. McCARTNEY
Released: 2005-11-24