Law Times

Page 14 July 8, 2013 Law Times • caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. SUPREME COURT OF CANADA Aboriginal Peoples NATURAL RESOURCES Raising breach of duty to consult and of treaty rights was abuse of process Crown granted plaintiff company timber sale licences and road permit to log certain land. Defendants, members of family and members of Fort Nelson First Nation (FNFN), were licensed to trap in area within territory of FNFN. Land covered by licences was within defendants' trapping territory. Defendants impeded company's access to logging areas. Company brought action against defendants, Crown and FNFN. Defendants maintained they erected lawful camp on family territory pursuant to treaty rights, claiming that licences and road permit granted in breach of Crown's duty to consult. Company successfully applied to strike out certain paragraphs of statement of defence on grounds that individual members of FNFN did not have standing to advance legal positions because rights asserted were collective rights of aboriginal community and that challenge to instruments constituted impermissible collateral attack. Defendants' appeal dismissed. Crown has duty to consult aboriginal peoples in context of treaty rights. Duty to consult exists to protect collective rights of Aboriginal peoples and owed to aboriginal group that holds s. 35 Constitution Act, 1982 rights, which are collective in nature. Aboriginal group can authorize individual or organization to represent it for purpose of asserting s. 35 rights but FNFN did not authorize defendants to represent it for purpose of contesting legality of impugned instruments. Defendants not entitled to assert breach of duty to consult on their own as duty owed to aboriginal community. Raising breach of duty to consult and of treaty rights as defence in circumstances was abuse of process. Neither defendants nor FNFN made any attempt to legally challenge instruments when granted. By blocking access to logging sites, defendants put company in position of having to go to court or to forgo harvesting timber pursuant to licences it received after incurring substantial start-up costs. To allow defendants to raise defence based on treaty rights and on breach of duty to consult at this stage would amount to repudiation of duty of mutual good faith and constitute abuse of process. Moulton Contracting Ltd. v. British Columbia (May. 9, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34404) Decision at 203 A.C.W.S. (3d) 684 was affirmed. 226 A.C.W.S. (3d) 612. ONTARIO CIVIL CASES Aboriginal Peoples TREATIES Finding that two-step authorization process had to be followed was wrong in both law and fact This was appeal of trial judge's decision that defendant Ontario did not have right to take up land and limit harvesting rights without first obtaining Canada's approval. In 1873, Canada and Ojibway entered into treaty 3 in respect of large tract of land. By entering into treaty 3 Ojibway surrendered interest in land in exchange for reserves, payments and other benefits. Treaty 3 contained harvesting clause by virtue of which Ojibway retained right to pursue hunting and fish- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-387-5164. ing throughout surrendered tracts except on tracts that were required or taken up for settlement, mining, lumbering or other purposes by government of Canada. Since 1912, almost all of treaty 3 territory had been within borders of Ontario. Plaintiffs were members of Grassy Narrows First Nation. In 1997, Ontario issued sustainable forest licence that enabled defendant A.C., large pulp and paper manufacturer, to carry out clearcut forestry operations on certain land that fell within portion of treaty 3 territory. Plaintiffs applied for judicial review to set aside licences, permits, management plans and work schedules Ontario granted to A.C.. Divisional Court quashed application for judicial review but permitted plaintiffs to bring action raising same issues. Trial judge determined that Ontario did not have authority within part of land subject to treaty 3 to exercise right to take up tracts of land for forestry such as to limit rights of plaintiffs to hunt or fish as provided for in treaty 3. Trial judge determined that Ontario did not have authority pursuant to division of powers to justifiably infringe rights of plaintiffs to hunt and fish as provided for in treaty 3. Appeal allowed. Trial judge's finding that commissioners who negotiated treaty 3 qualified Ontario's constitutional rights and responsibilities by agreement to requirement that Canada interpose itself and approve taking up of land was fundamentally at odds with established constitutional framework and could not be sustained. Ojibway's treaty partner was Crown not Canada. Canada was not party to treaty. Treaty promises were made by Crown and not by particular level of government. Commissioners who negotiated treaty had no authority to depart from constitution's allocation of powers and responsibilities and had no power to deprive Ontario of ben- eficial ownership that devolved to province when boarders were expanded. Taking up clause also had to be interpreted in light of process of constitutional evolution. What changed with constitutional evolution was level of government on whose advice Crown acted. Trial judge erred in failing to apply governing constitutional principles in interpreting taking up clause. Trial judge's interpretation could be not be reconciled with text of harvesting clause. Text of clause did not contemplate two-step approval involving two levels of government for taking up tracts of land for settlement, mining, lumbering or other purposes. Trial judge's interpretation produced process that was unnecessary, complicated and likely unworkable. Two-step process was unnecessary to protect aboriginal treaty harvesting right because when Crown, through Ontario, took up land it must respect treaty right. Trial judge erred in law in interpreting taking up clause. Trial judge's finding that two-step authorization process had to be followed was wrong in both law and fact. Trial judge erred in finding that Canada's s. 91(24) of Constitution Act, 1982, jurisdiction over Indians gave Canada residual and continuing role in respect of Ontario's use of taking up provision. Ontario was not subject to federal supervision in carrying out its obligations. Keewatin v. Ontario (Minister of Natural Resources) (Mar. 18, 2013, Ont. C.A., Robert J. Sharpe J.A., E.E. Gillese J.A., and R.G. Juriansz J.A., File No. CA C54314, C54326, C54348) Decision at 206 A.C.W.S. (3d) 246 was reversed. 226 A.C.W.S. (3d) 617. for summary judgment. Bank advanced loan to defendant borrower that was guaranteed by defendant. Loan was evidenced by demand promissory note, which specifically indicated it was payable on demand. Guarantee was payable on demand. Bank admitted that borrower was current with respect to payments due and owing on loan. However, bank maintained that non-financial default of borrowers was sufficient to allow it to make demand for entire loan. Judgment for plaintiff. Borrower executed demand promissory note and demand collateral mortgage. Defendant executed personal demand guarantee. Security given by borrower by defendant prevailed over any conflict in wording of facility letter. Bank was entitled to make demand in accordance with those documents and they did not restrict bank from making demand prior to conclusion of five-year term of loan. Trial was not needed. Financial statements produced were clear. Trial was not needed to determine credibility of defendant. Demand made by bank was supported by loan and security documents that stipulated very clearly that they were payable on demand. Validity of documents was confirmed. Non-financial breaches of facility letter were concerning, real and created understandable breakdown of business relationship. Bank was granted summary judgment for full amount owing and for possession on collateral mortgage. Bank of China (Canada) v. Ocean Sands Developments Ltd. (Mar. 7, 2013, Ont. S.C.J., C.A. Gilmore J., File No. CV-12-108282-00) 226 A.C.W.S. (3d) 746. Debtor and Creditor EXECUTION Without service judgment was nullity Respondent brought trademark infringement action in United States. Respondent brought ac- DEMAND LOAN Demand made by bank supported by loan and security documents Plaintiff bank brought motion Continued from page 8 Clement Syed Karen Elizabeth Symes Raphael Joseph Szajnfarber Evan Jacob Szczucinski Kenneth Jo-Hung Szeto Katherine Alexandra Szilagyi Michael Andrew Szubelak Anahita Tajadod Aaron Andrew James Tallon Sebastian Leandro Talluri Sumit Kumar Tangri Andrea Joy Tannenbaum Przemyslaw Tarach Cassandra Martins Goncalves Tarrataca Bradley Robert Tartick Jeremy David Tatum David Peter Taylor Anton Igorevich Tchajkov Said Ahmad Teebi Andrea Vicky Tenk Alexandra Teodorescu Peter Daniel Tessaro Menelik Getachew Tessema Kristina Petra Tesser Anuja Pankaj Thakar Amelio Fransiscus The Eve Anne Theriault Pierre-André Thériault Cassandra Natasha Dianne Theune Sumeet-Singh Thind Shalini Mariam Thomas Neil Peter Tichkowsky Anastassia Tikhomirova Stephanie Robyn Timerman Yi-Mei Ting Benjamin David Tinholt Brittany Ann Tipton Deana Erin Toner Akash Mayank Toprani Andre Tran Linh Thi Ngoc Tran Jeanne Paule Agathe Tremblay Claire Patricia Truesdale Linda Hua Tu James Richard Tudhope Ceyda Turan Alexander Neville Bales Turner Alexandra Simone Tzannidakis John Eric Uhlmann Mara Nevena Nancy Urosevic Jahangir Jafferali Valiani Perrin Vittorio Thomas Doran Valli Mary Anne Vallianatos Joseph Adam Van Asseldonk Leigh David Van Gorder James John van Manen Chloe Audrey Nelly van Wirdum Natalia Vandervoort Lena Vartanian Steven Vasilevski Inayat Hussein Vellani John-Paul Ventrella Laura Michelle Verdin Ryan Edward Verhoog Mara Verna Andrew Nicholas Arthur Vey Aaron Louis Vieira Dharshini Kugan Vigneshwaran Emily Genna Villeneuve Karina Rachel Vilner Ariane Noelle Virginie Vincent Elliot Alexander Vine Aly Virani Neetu Virk Calvin Kalle Virtanen Anica Visic Zofia Vorontsova Aaron James Wachna Tyler James Wagg Alexander Chun U Wai Marie Kathleen Alexandra Waite Daniel Allen Wakeling Peter Eric Waldkirch Paul Ricardo Waldron Daniel Walker Ryan James Walker Jennifer Leigh Wall Catherine Alyssa Walsh Nicole Susan Walton Hou Wang Dilenthi Shenuka Warakaulle Eva Massai Warden Tessa Elise Warmelink Jeffrey Warnock Nadia Shahir Warsi Rory Elliot Wasserman Hayley Patricia Watts Adam Wawrzkiewicz Adam Terrance Webb William James Webber Marjorie Claire Webster John Paul Weidner Laura Angela Weingarden Aaron Daniel Weinroth Jacob Coby Weinstock Samuel Isaac Weinstock Adam Noah Weissman Lionel Ananda Weliwitigoda Kevin Fredrick Wentzel Julia Theresa Anne Werneburg Emma Rose White Jonathan Bradford White Katherine June White Kevin Joseph Whittam Michael Thomas Wiens Bradley Patrick Courtney Wiffen www.lawtimesnews.com Courtney Lynn Wile Katelyn Christine Wiley Alexander Baldanza Wilkinson Corey Dwight Willard Paul James Willetts David Ronald Williams Meagan Anne Williams Peter Andrew Willis Armine Willis-O'Connor Mark Willis-O'Connor Jay Michael Willmot D'Arcy Douglas Wilson Michael Andrew Wilson Daniel Nicolas Wirz Samuel Thomas Witherspoon Caia-Alexandra Wojnarowicz Matthew Lee Wolch Aaron David Wolochatiuk Bruce Cholei Wong Evelyn Wong Jesmond Ted Wong Wai Lam Wong Andrew Carswell Wood Virginia Louise Wood Allison Marie Worone Donghua Wu Jason Scott Wynne Ye Xia Kaity Chan Yang Zhengxiao Yang Matthew Francis Yap David Ming Chung Yi Sangkil Yi Ka Wun Yip Andrew Michael Yolles Constance Keunhee Yoo Cory Alexander Young Stephanie Jane Young Victoria Jessica Roberts Young Hua Zhou Yu Leanna Jo-Ning Yue Cara Michelle Frank Zacks Robert Anthony Zakaib Tatjana Elena Zalar Dina Zalkind Sahil Zaman John Joseph Zed Krista Danielle Zeman Mary Ellen Zettel Sunny Cheng Xi Zhai Mingquan Zhang Xin Zhang Qingru Zhou Stefania Maria Zilinskas Steven Peter Gaetan Zuccarelli Peter Joseph Zywot Source: Law Society of Upper Canada

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