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Good evening.

Please find below our summaries of the civil decisions of the Ontario Court of Appeal for the week of November 1, 2021. There were four substantive civil decisions this week, one of which was 300 pages long.

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Congratulations to our own Lou Brzezinski and Alex Fernet Brochu for their success in Pantziris v. 1529439 Ontario Limited. In that case, the Court dismissed an appeal by the bankrupt against the motion judge’s decision to set aside the transfers under value of the estate’s two main assets by the bankrupt to his wife and mother.

In Restoule v. Canada (Attorney General), the Court released a substantial 300-page decision centered on issues pertaining to the Crown’s obligation to pay a perpetual annuity to the Anishinaabe based on land Treaties entered into in 1850.

In Bowman v. Ontario, the Court granted and dismissed motions for leave to intervene by the Canadian Civil Liberties Association and Income Security Advocacy Centre, respectively.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Pantziris v. 1529439 Ontario Limited , 2021 ONCA 784

Keywords: Bankruptcy and Insolvency, Transactions Under Value, Fraudulent Conveyances, Preferences, Civil Procedure, Limitation Periods, Costs, Limitations Act, 2002 S.O. 2002 c. 24, Sch. B, s. 12, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 96(1), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Personal Property Security Act, R.S.O. 1990, c. P.10

Restoule v. Canada (Attorney General) , 2021 ONCA 779

Keywords: Aboriginal Law, Crown Liability, Sui Generis Fiduciary Duty, Treaties, Interpretation, Honour of the Crown, Crown Immunity, Justiciability, Civil Procedure, Standard of Review, Limitation Periods, Costs, Royal Proclamation of 1763, Constitution Act, 1982, Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109, Limitations Act, R.S.O. 1990, c. L.15, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, Guerin v. The Queen, [1984] 2 S.C.R. 335, Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, Southwind v. Canada, 2021 SCC 28, Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, Attorney General of Belize & Ors v. Belize Telecom Ltd & Anor, [2009] UKPC 10, [2009] 2 All E.R. 1127, First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Walker v. Ritchie, 2006 SCC 45, Frazer v. Haukioja, 2010 ONCA 249, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Whitfield v. Whitfield, 2016 ONCA 720, Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199 (J.C.P.C.), R. v. Marshall, [1993] S.C.R. 456, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227, Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Mitchell v. M.N.R., 2001 SCC 33, Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286, Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, West Moberly First Nations v. British Columbia, 2020 BCCA 138, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Roncarelli v. Duplessis, [1959] S.C.R. 121, Tanudjaja, v. Canada (Attorney General), 2014 ONCA 852, 123 O.R. (3d) 161, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, R. v. Van der Peet, [1996] 2 S.C.R., Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Caron v. Alberta, 2015 SCC 56, R. v. Sioui, [1990] 1 S.C.R. 1025, R. v. Desautel, 2021 SCC 17, R. v. Badger, [1996] 1 S.C.R. 771, Chilton v. Co-Operators (1997), 143 D.L.R. (4th) 647, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, R. v. Sundown, [1999] 1 S.C.R. 393, Quebec (Attorney General) v. Moses, 2010 SCC 17, Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14, Fontaine v. Canada (Attorney General), 2017 SCC 47, MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, Housen v. Nikolaisen, 2002 SCC 33, R. v. Morris, 2006 SCC 59, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168, Wewaykum Indian Band v. Canada, 2002 SCC 79, Tito v. Waddell (No. 2), [1977] 3 All E.R. 129, Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, TELUS Communications Inc. v. Wellman, 2019 SCC 19, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, R. v. McColman, 2021 ONCA 382, Solar Power Network Inc. v. ClearFlow Energy Finance Corp., 2018 ONCA 727, Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, Pawis v. Canada, [1980] 2 F.C. 18, Fletcher v. Ontario, 2016 ONSC 5874

Forest Hills Homes (Cornell Rouge) Limited v. Hon , 2021 ONCA 774

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Third Party Claims, Res Judicata

Bowman v. Ontario , 2021 ONCA 795

Keywords: Poverty Law, Crown Liability, Civil Procedure, Interveners, Class Proceedings, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749

Short Civil Decisions

Dimakis v. Vitucci , 2021 ONCA 778

Keywords: Costs

Yekrangian v. Boys , 2021 ONCA 777

Keywords: Costs, Yekrangian v. Boys, 2021 ONCA 629


CIVIL DECISIONS

Pantziris v. 1529439 Ontario Limited, 2021 ONCA 784

[Doherty, Miller and Sossin JJ.A.]

Counsel:

S. Bellissimo, K. Bezprozvannykh and F. Bennett, for the appellants
Lou Brzezinski and Alex Fernet Brochu, for the respondents

Keywords: Bankruptcy and Insolvency, Transactions Under Value, Fraudulent Conveyances, Preferences, Civil Procedure, Limitation Periods, Costs, Limitations Act, 2002 S.O. 2002 c. 24, Sch. B, s. 12, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 96(1), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Personal Property Security Act, R.S.O. 1990, c. P.10

facts:

In the decision under appeal, the motion judge found in favor of the respondent, the Trustee in bankruptcy (the “Trustee”) on all issues.

In October 2013, the court made a bankruptcy order against Mr. P. (the “bankrupt”) and appointed the Trustee. The Trustee brought a summary judgment motion seeking to set aside the transfer of the estate’s two main assets by the bankrupt to related parties:

1. the transfer by the bankrupt of the bankrupt’s 50% interest in his residence to his wife for $2; and

2. the transfer of the bankrupt’s shares in the appellant, 1529439 Ontario Limited, a related corporation wholly owned by the bankrupt’s mother, (“the shares”) to the appellant, ASPE Consulting Services Ltd. (“ASPE”), a related corporation also controlled by the bankrupt’s mother.

The appellants brought a cross-motion for dismissal of the Trustee’s claims on the grounds that:

1. the proceedings constituted a misuse of the bankruptcy process and an attempt by the main creditor, Cobalt Capital Textile Investments L.P. (“Cobalt Capital”), to obtain double recovery from the bankrupt; and

2. the claims were time-barred under the Limitations Act, 2002, S.O. 2002 c. 24, Sch. B.

issues:

(1) Did the motion judge err in vesting the bankrupt’s 50% interest in the residence in the Trustee?

(2) Did the motion judge err in setting aside the share transfer to ASPE and ordering that the Trustee be made the registered owner of the shares?

(3) Did the motion judge err in finding the limitation period had not expired?

(4) Did the motion judge err in finding there was no abuse in process by Cobalt Capital?

(5) Did the motion judge err in granting the Trustee costs on a partial indemnity basis?

holding:

Appeal dismissed.

reasoning:

(1) No

The motion judge’s findings of fact were fully justified based on the evidence, and there was no basis upon which to interfere. After a thorough review of the evidence, the motion judge concluded the bankrupt’s transfer of his 50% interest in the residence was both an “undervalue” transfer within the meaning of s. 96(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) and a fraudulent conveyance under s. 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 (“FCA”).

(2) No.

The motion judge’s findings of fact are fully supported by the evidence, and there is no basis upon which to interfere. The motion judge was satisfied that the transfer of the shares was made with intent to prefer ASPE, a non-arms length creditor, and with intent to defeat the interest of other creditors. In addition to concluding the share transfer constituted an improper preference, the motion judge also found that ASPE had no enforceable security interest in the shares. The appellants have demonstrated neither an error by the motion judge in her interpretation of the Personal Property Security Act, R.S.O. 1990, c. P.10, nor a material misapprehension of the evidence relevant to whether ASPE had an enforceable security interest in the shares.

(3) No.

The motion judge properly rejected the appellants’ submissions based on the Limitations Act, 2002, after analyzing the limitation period argument at length. For the purposes of the claims made, the Trustee could not be “the person with the claim” under s. 5(1) until the Trustee had been appointed by the court. The limitation period in respect of the claims advanced here could not begin to run until the appointment of the Trustee in October 2013. Section 12 did not have any effect on the Trustee’s right to bring forward the claims.

(4) No.

The appellants’ theory as to the Trustee’s motivation was speculation and was properly not relied on by the motion judge. The Trustee was appointed on consent. There was no evidence before the motion judge that the Trustee was acting on anyone’s instructions.

(5) No.

The Trustee sought leave to appeal the costs order of the motion judge. The Trustee argued that costs should have been awarded on a substantial indemnity basis. Further, the Trustee argued that even if partial indemnity costs were appropriate, the motion judge wrongly deducted certain pre-litigation costs from the award and erred in substantially reducing the quantum claimed on a partial indemnity basis.

The court granted leave to appeal the costs order, but ultimately dismissed the appeal, noting that the Court defers to costs decisions made by judges of the Superior Court. Specifically, the Court saw no reason to interfere with the motion judge’s treatment of the pre-litigation costs, or her assessment of the quantum of costs.


Restoule v. Canada (Attorney General), 2021 ONCA 779

[Strathy C.J.O., Lauwers, Hourigan, Pardu and Brown JJ.A.]

Counsel:

L. La Horey, C. Perruzza, S. Valair, M.Crow, I. Kanjee, R. Ogden, J. Mc Randall and K. Gray, for the appellants the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Attorney General of Ontario as representing Her Majesty the Queen in Right of Ontario (C66455 & C68595)

C. B. Parker, Q.C., D. Nahwegahbow, D. G. Corbiere, C. E.J. Albinati, D. G. McCoy and A. Kirby, for the respondents M. R., P. C., D. P., P. R., D. S. and R. D. on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron Treaty of 1850 (C66455 & C68595)

H. I. Schachter and K. E. Lewis, for the respondents the Red Rock First Nation, the Whitesand First Nation, the Chief and Council of 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 (C66455 & C68595)

G. Evans and S. Warwick, for the respondent the Attorney General of Canada (C66455 & C68595)

B. Gover and S. Bass, for the intervener the Biigtigong Nishnaabeg First Nation (C66455 & C68595)

A. S.R. Williamson and S. Wuttke, for the intervener the Assembly of First Nations (C66455 & C68595)

T. Slade and C. Giordano, for the intervener the Blood Tribe (C66455)

S. Robertson, for the intervener the Indigenous Bar Association of Canada (C66455)

H. Bruce, for the intervener the Union of British Columbia Indian Chiefs (C66455)

Keywords: Aboriginal Law, Crown Liability, Sui Generis Fiduciary Duty, Treaties, Interpretation, Honour of the Crown, Crown Immunity, Justiciability, Civil Procedure, Standard of Review, Limitation Periods, Costs, Royal Proclamation of 1763, Constitution Act, 1982, Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109, Limitations Act, R.S.O. 1990, c. L.15, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, Guerin v. The Queen, [1984] 2 S.C.R. 335, Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, Southwind v. Canada, 2021 SCC 28, Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, Attorney General of Belize & Ors v. Belize Telecom Ltd & Anor, [2009] UKPC 10, [2009] 2 All E.R. 1127, First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Walker v. Ritchie, 2006 SCC 45, Frazer v. Haukioja, 2010 ONCA 249, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Whitfield v. Whitfield, 2016 ONCA 720, Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199 (J.C.P.C.), R. v. Marshall, [1993] S.C.R. 456, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227, Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Mitchell v. M.N.R., 2001 SCC 33, Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286, Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, West Moberly First Nations v. British Columbia, 2020 BCCA 138, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Roncarelli v. Duplessis, [1959] S.C.R. 121, Tanudjaja, v. Canada (Attorney General), 2014 ONCA 852, 123 O.R. (3d) 161, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, R. v. Van der Peet, [1996] 2 S.C.R., Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Caron v. Alberta, 2015 SCC 56, R. v. Sioui, [1990] 1 S.C.R. 1025, R. v. Desautel, 2021 SCC 17, R. v. Badger, [1996] 1 S.C.R. 771, Chilton v. Co-Operators (1997), 143 D.L.R. (4th) 647, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, R. v. Sundown, [1999] 1 S.C.R. 393, Quebec (Attorney General) v. Moses, 2010 SCC 17, Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14, Fontaine v. Canada (Attorney General), 2017 SCC 47, MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, Housen v. Nikolaisen, 2002 SCC 33, R. v. Morris, 2006 SCC 59, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168, Wewaykum Indian Band v. Canada, 2002 SCC 79, Tito v. Waddell (No. 2), [1977] 3 All E.R. 129, Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, TELUS Communications Inc. v. Wellman, 2019 SCC 19, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, R. v. McColman, 2021 ONCA 382, Solar Power Network Inc. v. ClearFlow Energy Finance Corp., 2018 ONCA 727, Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, Pawis v. Canada, [1980] 2 F.C. 18, Fletcher v. Ontario, 2016 ONSC 5874

facts:

In 1850, the Anishinaabe entered into two Treaties with the Crown providing for the cession of a vast territory in northern Ontario. As part of the Treaties, the Crown agreed to pay a perpetual annuity to the Anishinaabe. This appeal centred on the nature of that obligation.

The plaintiffs, who are beneficiaries of the Treaties, instituted two actions against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the Treaties’ annuity provisions. The actions, which are being tried together, were divided into three stages: Stage One involved the interpretation of the Treaties and Stage Two considered the Crown’s defences of Crown immunity and limitations. The appeal before the court was from the partial judgments resulting from the Stage One and Stage Two decisions.

In her decision on Stage One, the trial judge held the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant. To carry out that obligation, the trial judge found that the Crown must: (i) engage in a consultative process to determine the amount of net Crown resource-based revenues from the territories; and (ii) pay an increased annuity amount, reflecting a “fair share”, if there are sufficient Crown resource-based revenues to allow payment without incurring loss. The trial judge further determined that the principle of the honour of the Crown and the doctrine of fiduciary duty impose on the Crown the obligation to diligently implement the purpose of the Treaties’ promise.

In her decision on Stage Two, the trial judge held that Crown immunity and provincial limitations legislation did not operate to bar the claims.

Ontario appealed from those decisions. Ontario argued that the trial judge erred in her interpretation of the Treaties and in rejecting its defences of Crown immunity and limitations. The appeals raised several issues. The Court issued joint reasons and three sets of individual reasons, which are summarized in brief below. The decision is 300 pages long.

issues:

Reasons of Lauwers and Pardu JJ.A.

(1) Did the trial judge err in her interpretation of the augmentation clause in the treaties?

(2) Did the trial judge err in finding that the doctrine of the honour of the Crown obliges the Crown to increase the annuities as part of its duty to diligently implement the treaties?

(3) Did the trial judge err in finding there was no implied term for the indexation of the annuities?

(4) Did the trial judge err in her approach to remedies?

(5) Did the trial judge err in her costs award for the Stage One proceeding?

Reasons of Strathy C.J.O. and Brown J.A. (dissenting in part)

(1) Does the standard of review set out in Marshall apply when reviewing the trial judge’s interpretation of the Robinson Treaties?

(2) When applying that standard, did the trial judge commit reversible error in her interpretation of the Robinson Treaties?

(3) How does the honour of the Crown inform the Crown’s obligation to implement the Treaties?

Reasons of Hourigan J.A.

(1) Is the appropriate standard of review when considering an appeal about the interpretation of a historical Aboriginal treaty palpable and overriding error or correctness?

(2) Did the trial judge err in finding that Canada and Ontario owe the Huron and Superior Plaintiffs a fiduciary duty regarding the implementation of the augmentation clauses in the Robinson Treaties?

(3) Can Ontario assert a defence of Crown immunity with respect to the Huron and Superior Plaintiffs’ breach of fiduciary duty claims?

(4) Are the claims for breach of Treaty prescribed by the former Limitations Act (the “1990 Limitations Act”)?

holding:

Appeal from Stage Two proceeding dismissed.

Appeal from Stage One proceeding allowed in part.

reasoning:

Reasons of Lauwers and Pardu JJ.A.

Lauwers and Pardu JJ.A. concurred with the reasons of Hourigan J.A. on the issues of fiduciary duty, Crown immunity and limitation defences. On the issue of the standard of review for treaty interpretation, Lauwers J.A. concurred with Strathy C.J.O. and Brown J.A., and Pardu J.A. concurred with Hourigan J.A.

(1) No.

The governing principles of treaty interpretation of historical treaties are common intention, text, context and purpose. The Court applied its analysis to the Robinson-Huron treaty. Reconciliation of Aboriginal and non-Aboriginal Canadians was the objective of the legal approach to treaty rights and the “overarching purpose” of treaty making and, perforce, treaty promises. Applying the governing principles, the Court agreed that the trial judge’s interpretation of the augmentation clause was grammatically and contextually correct. The trial judge had found that the augmentation clause did make a distinction between “the collective annuity paid to the Chiefs and their Tribes and a distributive amount that is paid to individuals from the collective amount and is limited to £1 or such further sum as Her Majesty may be graciously pleased to order.

The trial judge did not err in her findings of the common intentions of the Treaty Parties. The Court carefully evaluated the proximate evidence to discern what it revealed about Crown intention when the Treaties were signed. Temporal proximity is not required for post-treaty evidence to be admissible, but evidence from shortly after treaty formation is more likely to reveal the parties’ interests and intentions. Post-treaty evidence and evidence of the parties’ subsequent conduct can play a role in treaty interpretation but must be treated with “extreme caution.” The trial judge did not err in her treatment of the evidence concerning Crown intentions upon entering the Robinson Treaties or in determining the common intentions of the party. The documents proximate to Treaty formation on which Ontario relied were consistent with the trial judge’s interpretation of the augmentation clause. The post-Treaty evidence was incapable of establishing a contrary Crown intention. The trial judge did not make a palpable and overriding error in her treatment of this evidence.

The trial judge did not err in her determinations on the existence and the extent of Crown discretion in the augmentation clause. Ontario argued that the trial judge erred in finding that the Crown’s discretion under the augmentation clause was not unfettered and invoked the doctrine of justiciability, in part, to reinforce the claim. The doctrine of justiciability imposes limits on judicial review of executive action. It is based on the sense that there are public policy issues that are beyond the jurisdiction of the courts. The Court found the doctrine of justiciability had no application to the case because: (1) the court was not reviewing executive action in the abstract; (2) the justiciability argument did not turn on the language of the augmentation clause but on the trial judge’s adoption of the expression “fair share”; (3) there was a sense in which Ontario is making an argument based on the possibly catastrophic impact of a large judgment on the fiscal state of the Province, thereby reducing its capacity to deal effectively with its other responsibilities. Justiciability was not a viable basis on which to find that the augmentation clause gave the Crown unfettered discretion over whether and when to increase the annuities.

(2) No.

The Court held that the trial judge correctly found that the honour of the Crown obliged the Crown to increase the Treaties’ annuities as part of its duty to diligently implement the Treaties. Consequently, the Court did not accept Ontario’s argument that the honour of the Crown can be reduced to a series of procedural requirements.

The Court further held that the honour of the Crown can give rise to fiduciary duties in circumstances where such duties are necessary and appropriate. However, fiduciary duty had no work to do in this case that could not be done by honour of the Crown alone.

(3) No.

The Court held that the trial judge correctly rejected Ontario’s proposal to supplant the augmentation clause by implying a judicially created indexing term into the Treaties. An indexing term could produce widely different results. Further, the Treaty beneficiaries were not left with “an empty shell of a treaty promise” in the absence of the proposed term.

(4) Yes.

The Court found that the counsel of caution should have prevailed in defining net Crown Resource-Based revenues.

The Court also agreed with Ontario that the trial judge’s interpretation of the Treaties fell short on the issue of “fair share”. The trial judge’s interpretation of the Treaties as giving the Anishinaabe a “fair share” of the value of the territory went beyond a generous construction of the Treaties.

(5)

Leave to appeal from the costs award in favour of the Superior Plaintiffs was refused. Leave to appeal for the costs award in favour of the Huron Plaintiffs was granted.

Reasons of Strathy C.J.O. and Brown J.A. (dissenting in part)

Strathy C.J.O. and Brown J.A. concurred with the reasons of Lauwers and Pardu JJ.A. on the issues of costs and indexing. They also agreed with the reasons of Hourigan J.A. on the issues of fiduciary duty, Crown immunity and limitation defences.

(1) Yes.

The court held that Caron confirmed that, notwithstanding Sattva’s modification of the standard of review for contract interpretation, the Marshall standard of review remains in place, including the principle that legal inferences or conclusions regarding the meaning of a historical treaty provision drawn by a trial judge from historical facts are not entitled to deference on appellate review.

Further, the court held that two policy considerations also supported the application of the Marshall standard: First, the Huron and Superior Plaintiffs’ efforts to functionally analogize treaty interpretation with contract interpretation ignored the distinctive nature of Aboriginal treaties under Canadian law. Second, treaties are solemn agreements that are intended to last indefinitely.

(2) Yes.

In departing from the reasons of their colleagues, Strathy C.J.O. and Brown J.A. concluded that the trial judge erred in finding the Robinson-Huron and Robinson-Superior Treaty annuities were a “collective entitlement” containing within them a separate “distributive amount” payable to individuals. That is, the trial judge erred when she expressly found that the collective entitlement was greater than the sum of the individual amounts that were to be distributed to members of the Robinson-Huron and Robinson-Superior Treaty First Nations.

(3)

Strathy C.J.O. and Brown J.A. held that, at a minimum, the Treaty promises, together with the honour of the Crown and principles of reconciliation, required the Crown to turn its mind from time to time to consider an increase in the amount of the annuity in excess of £1. The Crown had plainly failed to do so for 150 years since the one and only increase in 1875.

Accordingly, they held the Crown’s refusal to exercise its discretion to augment the annuities, even while recognizing that their purchasing power had been gutted by persistent inflation, was a clear failure to diligently implement the Robinson Treaties’ promise.

Reasons of Hourigan J.A.

Hourigan J.A. concurred with the reasons of Lauwers and Pardu JJ.A. on the issues of costs, indexing, the honour of the Crown, Crown discretion and remedies. He also agreed with their conclusion on the trial judge’s interpretation of the Robinson Treaties, however, like Pardu J.A., he did so on the basis that her interpretation was free from palpable and overriding error and contained no extricable legal errors.

(1)

Hourigan J.A. held that only a standard of review of palpable and overriding error provided the appropriate level of deference to trial courts when the role of historical context and the nature of the interpretive process were considered.

(2)

The trial judge found that the Crown owed an ad hoc fiduciary duty, but not a sui generis fiduciary duty, to the Treaty beneficiaries in the implementation of the augmentation clauses.

Hourigan J.A. held the trial judge erred in law in finding the existence of an ad hoc fiduciary duty in the circumstances. First, he found the trial judge significantly expanded the scope of the ad hoc fiduciary duty between the release of her reasons and the settling of the judgments. Second, he found the trial judge made a legal error by concluding that the Crown agreed to act solely in the best interests of the Treaty beneficiaries when upholding the Treaty augmentation clauses. This was not legally possible because it would put the Crown, which is also responsible for Canadian society as a whole, in an inevitable conflict of interest.

Hourigan J.A. did not interfere with the trial judge’s finding regarding the sui generis fiduciary duty as he saw no error in her analysis, and held the ruling was consistent with binding precedent.

(3)

Given his conclusion that there was no fiduciary duty owed in the circumstances of this case, Hourigan J.A. found it unnecessary to decide whether Crown immunity was available. Accordingly, he declined to do so.

(4)

Hourigan J.A. held the Crown’s submissions regarding the 1990 Limitations Act were without merit. He found there was nothing in the 1990 Limitations Act that explicitly referenced treaty claims. Had the legislature intended to target treaty claims, it would have been a straightforward task to do so, either through an explicit reference or the inclusion of a basket clause that caught all other causes of action not explicitly mentioned in the statute.

Further, Hourigan J.A. rejected the thrust of the Crown’s submission that treaties are synonymous with contracts. He found that while treaties and contracts may share certain common features, the weight of the authority from the Supreme Court was that they are very different legal instruments.


Forest Hills Homes (Cornell Rouge) Limited v. Hon , 2021 ONCA 774

[Doherty, Miller and Sossin JJ.A.]

Counsel:

P. D. Kim, for the appellants

S. Greaves, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Third Party Claims, Res Judicata

facts:

The respondent developer, Forest Hill Homes (Cornell Rouge), sold a yet-to-be-built home to the appellant, K.H. The transaction was not scheduled to close until many months later. The value of the property dropped significantly prior to the closing and the appellant advised the respondent she was out of the country and could not close the transaction for personal reasons. The respondent offered to extend the closing date. The appellant did not respond or close. The respondent then sued the appellant and moved for summary judgment.

At the time of the summary judgment motion, the appellant had added a counterclaim and issued a third-party claim. One of the claims advanced was that an agent, R. L., who was the respondent’s agent on the transaction, had falsely told the appellant she was the appellant’s agent.

The motion judge granted summary judgment in favour of the respondent on the claim and the counterclaim. There was no motion for summary judgment on the third-party claim, although the pleadings in that claim were part of the record filed on the summary judgment motion.

issues:

(1) Did the motion judge make a clear and palpable error in finding R.L. did not represent to the appellant that she was the appellant’s agent on the transaction?

(2) Did the motion judge err by granting summary judgment on the claim and counterclaim because the third-party proceedings remained outstanding?

(3) Did the motion judge err by making wrong findings of fact and law applicable to issues relevant to the third-party proceedings?

holding:

Appeal dismissed.

reasoning:

(1) No.

The trial judge concluded the appellant knew R. L. acted for the respondent. There was no error in the trial judge’s factual finding. The appellant’s evidence was that R.L. acted for the respondent. The evidence provided ample grounds for the trial judge’s factual finding and there was no misrepresentation as to R.L.’s status.

(2) No.

The issues raised on the summary judgment motion could be expeditiously and justly determined while leaving the third party claim to adjudication at a later point.

(3) No.

The Court did not agree that the motion judge would unfairly subject the appellant to res judicata claims in the third party proceeding. To avoid the possibility of prejudice to the appellant, the Court made clear that nothing said by the motion judge should be taken as a finding of fact or law, binding on the court that ultimately hears the third-party claims.


Bowman v. Ontario , 2021 ONCA 795

[Strathy C.J.O. (Motion Judge)]

Counsel:

S. J. Moreau and K. Duff, for the appellants

C. Thompson, C. Blom, R. Amarnath and A. Mortimer, for the respondent

J. L. Hunter, J. O’Dell and J. Palef, for the proposed intervener, Canadian Civil Liberties Association (M52851)

A. Bakshi and N. F. Qureshi, for the proposed intervener, Income Security Advocacy Centre (M52778)

Keywords:Poverty Law, Crown Liability, Civil Procedure, Interveners, Class Proceedings, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749

facts:

This is a class action on behalf of low-income individuals against the Province of Ontario. One of the issues is whether there is a contract between the class members and the Province with respect to the Basic Income Pilot Project (the “Project”).

The Court heard motions for leave to intervene by the Canadian Civil Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC).

issues:

(1) Should leave to intervene be granted in respect of CCLA?

(2) Should leave to intervene be granted in respect of ISAC?

holding:

Motion granted in respect of CCLA.

Motion dismissed in respect of ISAC.

reasoning:

(1) Yes.

The Court was satisfied the proposed intervention of CCLA met the requirements set out in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., and that the CCLA would make a useful contribution to the resolution of the appeal without causing injustice to the parties.

(2) No.

Although the appeal in which ISAC sought leave to intervene involved issues of public interest that fell squarely within ISAC’s wheelhouse, the Court found that ISAC was to closely involved in the underlying issues to be granted intervener status.

Specifically, the Court found that ISAC had been directly involved in the underlying process that formed the factual matrix of one of the issues in dispute on appeal. Accordingly, the Court held that the involvement of ISAC in that factual matrix could become a matter of evidence should the matter proceed to trial.

The Court concluded that ISAC was “simply too close to the underlying factual issues” to be permitted to take on the role of intervener.


SHORT CIVIL DECISIONS

Dimakis v. Vitucci , 2021 ONCA 778

[Doherty, Miller and Sossin JJ.A.]

Counsel:

C. Lloyd, for the plaintiffs (appellants)

M. R. Kestenberg, for the defendants (respondents) K. C. and Lancaster, Brooks & Welch, LLP

M. J. Valente, for the defendants (respondents) C. V. and W. V.

Keywords: Costs

Yekrangian v. Boys , 2021 ONCA 777

[Fairburn A.C.J.O., Miller and Zarnett JJ.A.]

Counsel:

M. L. Solmon and R. Joshi, for the appellants

J. Barr and A. M. Dear, for the respondents

Keywords: Costs, Yekrangian v. Boys, 2021 ONCA 629

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.