Court File and Parties
COURT FILE NO.: 26026
DATE: 2013-10-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Susan Belleau, Plaintiff/Responding Party
- AND -
Garden River First Nation Chief and Council, Defendant/Moving Party,
- AND –
Pamela Ann Perreault, Tanya Lynn Morin and Walter James Perreault, Defendants
BEFORE: E.J. Koke J.
COUNSEL:
M. Bennett, Counsel, for the Plaintiff/Responding Party,
J. Tremblay-Hall, Counsel, for the Defendant/Moving Party, Garden River First Nation Chief and Council
HEARD: October 24, 2013
ENDORSEMENT
Defendant’s Motion for Leave to Appeal the Rule 21 Motion
[1] The defendant Garden River First Nation Chief and Council (the “Band”) moved for dismissal of the plaintiff’s claims against it, pursuant to Rule 21 of the Rules of Civil Procedure.
[2] The Band had defended the claims on the basis of an expired limitation period, and it argued that the plaintiff’s claim disclosed no reasonable cause of action.
[3] The motion was dismissed and the band requests leave to appeal. The main issue which the band wishes to raise and resolve on the proposed appeal is:
“whether provincial limitation statutes apply as a bar to the plaintiff’s claim against the defendant First Nation for breach of fiduciary duty, even where on-reserve property related issues form part of the plaintiff’s claim” [1]
[4] For the reasons which follow this motion for leave is dismissed.
[5] Rule 62.02 (4) sets out the grounds on which leave to appeal an interlocutory order may be granted. The rule provides that leave may be granted if :
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
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.
[6] During argument I was referred to a number of leading cases which dealt with the issue of when provincial limitation periods applied to issues involving First Nations, both with respect to property and fiduciary issues. I agree that the law in this area contains a degree of ambiguity, and I agree as well that the issue raised in this proposed appeal is of general importance and that it is desirable that some certainty be brought to this area of Canadian jurisprudence.
[7] I note that the motions judge also agreed that this area of the law lacks clarity. With respect to the issue of whether provincial limitations acts generally apply to property claims arising on reserves he stated in paragraph 20 of his judgment that “While the parties accept that provincial statues of limitations do not apply to such claims, I believe that this legal proposition remains unsettled.”
[8] With respect to the issue of whether a Band owes its members a fiduciary duty , the motions judge stated at paragraph 28 of his judgment that “…while the suggestion that a band owes its members a fiduciary duty appears attractive, I have not heard extensive argument on this point. Without either argument or binding authority, I do not accept these legal issues as being settled.”
[9] A review of the decision of the motions judge indicates that his refusal to grant the Rule 21 motion did not result from a refusal on his part to undertake the difficult task of attempting to reconcile the existing jurisprudence with the facts of this case; rather it resulted from his conclusion that at this stage of the proceedings there did not exist a sufficient factual or evidentiary foundation on which to defeat the claim on the basis of an expired limitation period. At paragraph 28 of his decision the motions judge states:
- I am also not willing to strike this claim on the basis that a Limitations Act defence must apply to this case regardless of what evidence is to be heard. It seems that “core Indianness” has much to do with cultural identity. Said identity would seem to be affected by an individual’s relationship with their band. Accordingly, I am not willing to make a finding that the Ontario Limitations Act necessarily applies to this case since I am not willing to find, absent evidence suggesting otherwise, that the member/band relationship does not constitute part of an individual’s “core Indianness”. Given the previously-quoted passage in Morris, s. 88 of the Indian Act may demand that provincial limitation statutes are inapplicable to cases arising from member/band relationships. Such a determination demands a factual foundation that goes well beyond the scope of Rule 21.
[10] In my view, it is not desirable that leave to appeal be granted. The issues raised in this case are important issues and any jurisprudence arising therefrom should be based on a comprehensive and fully tested factual foundation. The motion is therefore dismissed.
[11] There is a companion motion by the Band to extend the time to file the Notice Seeking Leave to Appeal herein. In view of my decision to dismiss the main motion, it is not necessary for me to make a decision with respect to this motion. I will take the liberty however of stating that if it was necessary for me to decide this motion I would have granted the extension. The materials were filed 3 days late. Rule 62.02 provides that the notice seeking an appeal must be served a mere 7 days from the date of the order, and I am satisfied that the senior members of the Band Council were not available to provide instructions to counsel during this short time period.
[12] I accept the submissions of counsel for the responding party that he would not have objected to the late filing of the motion materials if he would have been provided with reasons as to why the extension was necessary in a timely manner.
E.J. Koke J.
Date: October 25, 2013
[1] Notice of Motion for Leave. P.2, clause 2 at Tab 1, p.2, Moving Party’s Supplementary Motion Record