Lameman v. Can. (A.G.) (2008), 429 A.R. 26 (SCC);
421 W.A.C. 26
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2008] A.R. TBEd. AP.001
Attorney General of Canada (appellant) v. Rose Lameman, Francis Saulteaux, Nora Alook, Samuel Waskewitch and Elsie Gladue, on their own behalf and on behalf of all descendants of the Papaschase Indian Band No. 136 (respondents) and Her Majesty The Queen in Right of Alberta (respondent) and Assembly of First Nations and Federation of Saskatchewan Indian Nations (intervenors)
(31871; 2008 SCC 14; 2008 CSC 14)
Indexed As: Lameman et al. v. Canada (Attorney General) et al.
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.
April 3, 2008.
Summary:
The plaintiffs, alleged descendants of the Papaschase Indian Band, brought an action asserting aboriginal rights respecting the allegedly wrongful surrender of the Papaschase Reserve in 1888. The plaintiffs applied to have the proceeding declared to be a representative action on behalf of all descendants. The defendant applied to strike all or part of the statement of claim as failing to disclose a cause of action and sought summary dismissal of the action under rule 159 on various grounds, including the expiration of limitation periods and the absence of any plaintiff with standing.
The Alberta Court of Queen’s Bench, in a judgment reported (2004), 365 A.R. 1, granted summary judgment dismissing most of the claims. Although some of the issues raised a genuine issue for trial (reserve size, disposition of the sale proceeds, withholding of food supplies), the remaining issues were summarily dismissed as lacking a sufficient evidentiary foundation to find a genuine issue for trial. In any event, the claims were barred by the expiration of various limitation periods, as well as the equitable defences of laches and acquiescence. Further, none of the plaintiffs established standing to pursue the claims. The plaintiffs appealed.
The Alberta Court of Appeal, in a judgment reported (2007), 404 A.R. 349; 394 W.A.C. 349, allowed the appeal in part. There were genuine issues for trial respecting whether there was valid consent to the surrender of the reserve, whether there remained descendants with standing to sue, whether any limitation period applied (discoverability principle). The court also held, Côté, J.A., dissenting on this point, that there were genuine issues for trial on the claims for malice, fraud and bad faith. In a subsequent memorandum of judgment at paragraphs 174 to 180, the court ruled on four disputed aspects of their formal judgment. The Attorney General appealed.
The Supreme Court of Canada allowed the appeal and restored the Queen’s Bench judge’s order dismissing the plaintiffs’ action, with the exception of the claims relating to the accounting of funds received from the sale of reserve lands, provided that the Attorney General still possessed such funds and that a plaintiff demonstrate standing. Assuming that the claims disclosed triable issues and standing could be established, all other claims were statute-barred. The causes of action were clearly discoverable by the 1970’s at the latest, meaning that the claims were commenced well outside the six year limitation period in s. 4(1) of the Limitation of Actions Act.
Indians, Inuit and Métis – Topic 802
Personal or legal rights – General – Limitation of actions – [See
Indians, Inuit and Métis – Topic 5465
].
Indians, Inuit and Métis – Topic 5465
Lands – Surrender of lands – Validity of – The Papaschase Indian Band was provided with a 40 square mile Reserve – It was a small Band comprised of Chief Papaschase, his extended family and various others – In 1886, the core members took scrip (cash) and withdrew from Treaty – The Band was decimated – Most remaining members merged with the Enoch Band – In 1888, remnants of the Papaschase Band (three males living on the Enoch Reserve) consented to the surrender of the now vacant Papaschase Reserve – The sale proceeds were held in trust for the benefit of the Papaschase members and members of the Enoch Band – Over 100 years later, descendants of the Papaschase Band challenged the validity of the surrender – The federal Crown applied for summary judgment to dismiss the claims – The trial judge granted summary judgment dismissing the claims – All but three issues (reserve size, disposition of sale proceeds and withholding of food) raised no genuine issue for trial – In any event, the claims were barred by subsequent limitations statutes and/or the equitable defences of laches and acquiescence – Further, none of the plaintiffs established standing to advance the claims – The Alberta Court of Appeal allowed the plaintiffs’ appeal – There were genuine issues for trial respecting consent to the surrender of the reserve, whether there remained descendants with standing to sue, the discoverability principle (limitation periods) and the claims for malice, fraud and bad faith – The Supreme Court of Canada restored the trial judge’s decision dismissing the plaintiffs’ action, with the exception of the claims relating to the accounting of funds received from the sale of reserve lands, provided that the Attorney General still possessed such funds and that a plaintiff demonstrate standing – Assuming that the claims disclosed triable issues and standing could be established, all other claims were statute-barred – The causes of action were clearly discoverable by the 1970’s at the latest, meaning that the claims were commenced well outside the six year limitation period in s. 4(1) of the Limitation of Actions Act.
Limitation of Actions – Topic 15
General principles – Discoverability rule – Application of – [See
Indians, Inuit and Métis – Topic 5465
].
Practice – Topic 5710
Judgments and orders – Summary judgments – Evidence – The Supreme Court of Canada stated that “in the Court of Appeal and here, the case for the plaintiffs was put forward, not only on the basis of evidence actually adduced on the summary judgment motion, but on suggestions of evidence that might be adduced, or amendments that might be made, if the matter were to go to trial. A summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. This applies to Aboriginal claims as much as to any others.” – See paragraph 19.
Practice – Topic 5719
Judgment and orders – Summary judgments – To dismiss action – [See
Indians, Inuit and Métis – Topic 5465
].
Cases Noticed:
Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 11].
1061590 Ontario Ltd. v. Ontario Jockey Club et al. (1995), 77 O.A.C. 196; 21 O.R.(3d) 547 (C.A.), refd to. [para. 11].
Tucson Properties Ltd. v. Sentry Resources Ltd. and Fournel (1982), 39 A.R. 241; 22 Alta. L.R.(2d) 44 (Q.B. Master), refd to. [para. 11].
Murphy Oil Co. et al. v. Predator Corp. et al. (2004), 365 A.R. 326; 2004 ABQB 688, affd. (2006), 384 A.R. 251; 367 W.A.C. 251; 55 Alta. L.R.(4th) 1; 2006 ABCA 69, refd to. [para. 11].
Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 2 O.T.C. 146; 28 O.R.(3d) 423 (Gen. Div.), refd to. [para. 11].
Goudie et al. v. Ottawa (City), [2003] 1 S.C.R. 141; 301 N.R. 201; 170 O.A.C. 201; 2003 SCC 14, refd to. [para. 11].
Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 13].
Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 16].
Counsel:
Mark R. Kindrachuk, Q.C., and Michele E. Annich, for the appellant;
Eugene Meehan, Q.C., Ronald S. Maurice and Marie-France Major, for the respondents, Lameman et al.;
Donald N. Kruk and Angela Edgington, written submissions only, for the respondent, Her Majesty The Queen in Right of Alberta;
Bryan P. Schwartz and Chief Wilton Littlefield, Q.C., for the intervenor, Assembly of First Nations;
Michelle J. Ouellette, Q.C., written submissions only, for the intervenor, Federation of Saskatchewan Indian Nations.
Solicitors of Record:
John H. Sims, Q.C., Deputy Attorney General of Canada, Saskatoon, Saskatchewan, for the appellant;
Lang Michener, Ottawa, Ontario, for the respondents, Lameman et al.;
Alberta Justice, Edmonton, Alberta, for the respondent, Her Majesty The Queen in Right of Alberta;
Pitblado, Winnipeg, Manitoba, for the intervenor, Assembly of First Nations;
McKercher McKercher & Whitmore, Saskatoon, Saskatchewan, for the intervenor, Federation of Saskatchewan Indian Nations.
This appeal was heard on February 22, 2008, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ., of the Supreme Court of Canada.
On April 3, 2008, the following judgment was delivered by the Court in both official languages.
