Law Times

Page 13 Law Times • December 9, 2013 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. FEDERAL COURT OF APPEAL Aboriginal Peoples BANDS Proceedings not related to any public duty that might be incumbent on Crown This was appeal from judge's decision summarily dismissing appellants' claim on basis that limitation period expired pursuant to Public Officers' Protection Act (Sask.) ("POPA"). In 1874, Crown entered into treaty with certain Aboriginal peoples. Pursuant to treaty, reserve was set apart for benefit of appellant band. In 1901, Indian agent developed scheme of colonization. Under scheme best farming sections of reserve were surveyed into lots in order to settle ex-pupils from various Indian schools who were not members of band. For purpose of achieving scheme of colonization, band membership of pupils settling on reserve had to be transferred to band. Consent of band was required but there was opposition. In 1911, Indian agent devised scheme by which band would enter into agreement with Crown. Pursuant to scheme of colonization and agreement entered into in 1911, numerous pupils were settled into reserve. Overall size of reserve remained unchanged and reduced reserve land base available to original band members and descendants. Large increase in band membership led to conclusion in 1945 that investigation into band membership was indicated. In 1948, certain original members of band called for investigation into band membership. In 1955, Ministerial committee provided report on subject of band membership. Indian Act (Can.) ("IA"), was substantially revised in 1951, which introduced new system of registration for Indians governed by Act. New system allowed for protests and there were number of band membership protests. In 1956, judge found that all residents of reserve whose membership in band had been protested were entitled to be registered as Indian members of band. In 1982, Government of Canada adopted specific claims policy, which expanded scope of federal government's policy on matter of claims for mismanagement of Indian land, money or assets. Within context of specific claims policy, band started to work toward establishing treaty entitlement based on Crown's failure to provide volume of land consistent with terms of treaty. Band filed claim in 1992, which was held in abeyance pending outcome of claim process provided for under specific claims policy. In 2004, Minister found that judge's 1956 decision applied to issues raised by claim and matter was res judicata. Litigation started in 1991 was reactivated in 2010. Judge found that essential facts underlying claim were widely known to community and band members by 1956 at latest. Judge found that claim involved exercise by Crown of public power or duty and protection provided in POPA extended to Crown. Judge refused to extend time limitation provided under POPA. Judge also found that limitation periods in Limitation of Actions Act (Sask.) ("LAA"), applied. Appeal dismissed. It appeared that as result of 1911 agreement Crown assumed discretionary power over management of land situated on reserve. Fundamental issue in lawsuit was whether 1911 agreement constituted exploitative bargain reached in breach of Crown's fiduciary duty with respect to management of reserve land. Such issue did not raise public law duty on part of Crown. Duty These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. was sui generis obligation incumbent on Crown that was in nature of private law duty. Judge erred in finding that Crown was acting pursuant to public duty. Proceedings were not related to any public duty that might be incumbent on Crown with respect to band membership under IA. POPA did not apply and judge erred in finding it applied. LAA applied to claim. There was no concealment of material fact by Crown. Claim was barred statutory limitation period. Peepeekisis Band v. Canada (Minister of Indian Affairs and Northern Development) (Aug. 12, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J.A., and D.G. Near J.A., File No. A-417-12) Decision at 222 A.C.W.S. (3d) 914 was affirmed. 232 A.C.W.S. (3d) 1. ONTARIO CIVIL DECISIONS Bankruptcy and Insolvency DISCHARGE Bankrupt did not make complete disclosure to former trustee and trustee Bankruptcy was principally result of failure of bankrupt's corporation. Bankrupt did not show size of assets relative to liabilities arose from circumstances for which bankrupt could not justly be held responsible. Bankrupt transferred home to wife several months prior to bankruptcy for no consideration. Bankrupt withdrew $125,000 from R.R.S.P.s without advising former trustee of action. Bankrupt received loan from father which was placed in account of numbered company of which daughter was stated to be sole shareholder. Bankrupt had complete control over money loaned by father. Bankrupt had substantial unpaid taxes owing to CRA and incurred post-bankruptcy liability to CRA. Bankrupt twice changed residence without informing trustee. There was no evidence bankrupt sought employment since date of bankruptcy. Bankrupt sought absolute discharge from bankruptcy. Circumstance contemplated by s. 173(1)(a) and (j) of Bankruptcy and Insolvency Act (Can.), were established and possibility of absolute discharge was excluded. Bankrupt did not make complete disclosure to former trustee and trustee. Bankrupt was entitled to conditional discharge on terms set out. Wagner, Re (Aug. 30, 2013, Ont. S.C.J., Wilton-Siegel J., File No. Estate No. 31-1440148) 232 A.C.W.S. (3d) 35. Civil Procedure COSTS Conduct of defendants in dealings with plaintiffs was shabby and high-handed Defendants sought costs. Action was certified as class proceeding. Plaintiff class consisted of 171 AO pilots and defendant class consisted of 1,617 AC pilots. Plaintiffs alleged that members of defendant class committed torts of conspiracy, intentional interference with economic interests and negligent misrepresentation. They alleged that defendant class owed fiduciary duty to members of plaintiff class, which was breached. Defendants were successful in resisting action. Defendants sought costs of $1.5 million. Application dismissed. This was not test case and it did not involve matter of public interest. Procedural nature of action was unique and action engaged some novel points of law. However, it could not be said that action raised novel point of law for purposes of invoking application of s. 31(1) of Class Proceedings Act, 1992 (Ont.). Award that defendants bear own costs was fair and reasonable in circumstances of case. Defendants were successful and made offers to settle, but their conduct in dealings with plaintiffs was shabby and high-handed. Defendants did not deserve costs award in their favour. Fair and reasonable disposition was for defendants to bear own costs. Berry v. Pulley (Sep. 3, 2013, Ont. S.C.J., Pepall J., File No. 97-CV-135179 CP) Additional reasons to 218 A.C.W.S. (3d) 993. 232 A.C.W.S. (3d) 46. SUMMARY JUDGMENT Parties' conduct constituted waiver of time is of the essence Motion by plaintiffs for partial summary judgment for order of specific performance of agreement of purchase and sale for commercial property. Plaintiffs closed grocery store/restaurant business they were operating after entering agreement of purchase and sale for commercial property owned by defendants, which consisted of gas bar, convenience store and three buildings with commercial tenants. Purchase price agreed on was $4.015 million and plaintiffs paid $200,000 deposit. Closing was to be June 1, 2012, but parties subsequently entered five formal amending agreements, with fifth one extending closing date to July 15, 2012, and adding condition for obtaining approval from one tenant that it would not exercise right of first refusal to purchase portion of property. Transaction did not close on July 15th, but parties proceeded as though transaction was still valid. By July 13th, plaintiffs learned defendants were being accused by one tenant of breaching lease and had to negotiate with tenant and reach resolution with defendants. Parties took steps to close before August long weekend, but defendants ultimately refused to close on August 14th on basis August 3rd was firm closing date and they were unwill- REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ENCHANCE YOUR LISTING TODAY! 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