



COURT OF APPEAL FOR ONTARIO

CITATION:  Kelly v. Canada (Attorney General), 2014 ONCA 92

DATE:  20140203

DOCKET: C56838

Hoy A.C.J.O., Cronk and Epstein JJ.A.

BETWEEN

Grand Chief Diane Kelly, on her Own Behalf and on
    Behalf of all Beneficiaries of Treaty 3, Chief Eric Fisher, Wabaseemoong
    Independent Nations; Chief Kemberly Sandy-Kasprick, Northwest Angle #33 First
    Nation; Chief Simon Fobister, Grassy Narrows First Nation; Chief Pamela
    Pitchenese, Eagle Lake First Nation; Chief Charles McPherson, Couchiching First
    Nation

Plaintiffs (Appellants)

and

The Attorney General of Canada

Defendant (Respondent)

Robert J.M. Janes, for the appellants Grand Chief Kelly
et
    al.

Owen Young and Paul Evraire, Q.C. for the respondent the
    Attorney General of Canada

Heard:  January 14-15, 2014

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated February 26, 2013.

ENDORSEMENT

[1]

The appellants, Grand Chief Diane Kelly and other Treaty 3 Chiefs, seek
    to bring a representative action alleging, among other things, that the Crown has
    breached its obligation in Treaty 3 to maintain schools for instruction in
    the 28  reserves within the area covered by Treaty 3 (the Schools Provision).

[2]

The motion judge concluded that, as fashioned, the appellants action
    was non-justiciable. He granted the Crowns motion under Rule 21.01 of the
Rules
    of Civil Procedure
, struck out the appellants statement of claim and dismissed
    the action, with leave to the appellants to commence a justiciable action for
    the alleged breach of Treaty 3.

[3]

Decisions within each of the Treaty 3 reserve communities are made by a
    local governing body, typically a band council. The motion judge also concluded
    that if the appellants breach of treaty claim were justiciable, the appellants
    could bring a representative action on behalf of the beneficiaries of Treaty 3
    provided that (1) they are authorized to do so by band council resolutions of
    all 28 reserve bands, or (2) they join as party defendants those bands that do
    not authorize the representative action.

[4]

On appeal, the appellants argue that their action is justiciable and the
    motion judge erred in striking their statement of claim and dismissing the
    action. They also argue that the motion judge improperly required them to
    obtain authorization from the bands, or join them as party defendants, in order
    to bring their representative action.

Justiciable Action

[5]

At the outset of its oral argument, the Crown conceded that key parts of
    the appellants claim  including their claim for a declaration as to the
    meaning of the Schools Provision of Treaty 3  are justiciable and the appeal
    should therefore be allowed. It submits that this court should substitute an
    order striking the appellants statement of claim, but granting the appellants
    leave to amend their pleading to make it justiciable in its entirety. The Crown
    was unwilling to indicate precisely what changes to the pleading would be
    required for this purpose. More importantly, it was also unwilling to identify
    those parts of the existing claim that it says plead non-justiciable matters.

[6]

The appellants argue that given the Crowns concession, the appeal
    should be allowed and the motion judges order striking their statement of
    claim and dismissing their action should be set aside, without prejudice to the
    Crowns right to challenge particular parts of the pleading on the ground of alleged
    non-justiciability or to attack the pleading on any other basis. The appellants
    argue that the Crowns position before the motion judge was that their claim
    was non-justiciable, in its entirety. If justiciability of particular parts of their
    statement of claim are properly addressed by a Rule 21.01 motion (which they do
    not concede) how, they ask, can they revise a pleading without an understanding
    of the Crowns precise objections?

[7]

We agree with the appellants. The Crowns position has shifted
    significantly. Contrary to its position before the motion judge as renewed in
    its factum before this court, the Crown now acknowledges that those parts of
    the appellants pleading alleging the existence of an enforceable treaty right
    generally raise justiciable issues. The Crown asserts, however, that other parts
    of the appellants pleading, which concern the alleged breach or breaches of
    the asserted treaty right, as well as the remedies claimed, are
    non-justiciable.

[8]

This is a fundamentally different challenge from that faced by the
    appellants before the motion judge. Moreover, as we have said, on this appeal
    hearing the Crown declined to specifically identify those parts of the
    appellants pleading that allegedly run afoul of the requirement of
    justiciability. While the Crown, of course, is free to reconsider its position
    on the appellants proposed action, as currently framed, the altered basis for
    the Crowns opposition to the appellants action as now advanced by the Crown
    results in evident unfairness to the appellants. The appellants are entitled to
    know the case they have to meet on a pleadings challenge to their action.

[9]

Accordingly, the motion judges order striking the appellants
    statement of claim and dismissing the appellants action is set aside, without
    prejudice to the Crowns right to challenge particular parts of the statement
    of claim on such grounds, including justiciability, as the Crown may be
    advised.

[10]

For
    the assistance of the motion judge and the parties, we record in summary
    fashion those parts of the statement of claim that the Crown conceded during
    oral argument are justiciable.

[11]

First,
    the Crown concedes that the appellants claim at para. 1.a. of their pleading
    for the following foundational declaration is justiciable:

a.

a declaration that Treaty 3 (as
    defined below) imposes on Her Majesty the Queen in right of Canada (Canada) a
    duty to provide education services to the beneficiaries of Treaty 3 on their
    reserves (the Treaty 3 Education Right) that are commensurate with those made
    available to the Canadian population generally;

[12]

Second,
    the Crown also concedes that a claim that Treaty 3 has been breached is a
    justiciable issue.  However, as we understand the Crowns argument, it contests
    the appellants claim that the Crown breached the Schools Provision by failing
    to provide sufficient funding (see for example, paras. 32 and 38.a. of the
    appellants pleading), and their request for declaratory relief concerning the
    Crowns alleged failure to provide adequate financial resources. The disputed
    claim for declaratory relief is set out at para. 1.b. of the appellants
    pleading:

b.

a declaration that Canada has
    breached the Treaty 3 Education Right by failing to
provide adequate
    financial resources to maintain and
provide the level of educational
    services required pursuant to Treaty 3 ( emphasis added).

The Crown concedes that para. 1.b. of the pleading
    would raise justiciable issues so long as the reference to failing to provide
    adequate financial resources is deleted.

[13]

Third,
    the Crown takes no issue with the appellants request for a declaration that
    the Crown is obliged to remedy its alleged treaty breach.  However, we
    understand it to object to their assertion that the Crown should be required to
    do so by providing adequate resources to meet its treaty obligations. We do
    not understand the Crown to otherwise assert that the relief claimed is not
    justiciable.

[14]

As
    we have said, the Crown also appears to object to parts of what it says are the
    appellants descriptions of the alleged breaches of Treaty 3. For example, we
    understand it objects to the allegation, set out at para. 31 of the appellants
    pleading, that in the period from 1873 to at least the mid-1970s, Canada
    approached the provision of education in a manner that was directed at
    advancing an agenda of Christianization and assimilation without ensuring
    that a high quality education was delivered to the beneficiaries of Treaty 3.  As
    well, it objects to the allegation at para. 38 that:

Since the 1970s Canada has continued to breach the Treaty 3
    Education Right in that it has failed to: a. provide sufficient funding to
    deliver education services to the Treaty 3 beneficiaries in or near their
    reserves that is reflective of the special circumstances of the Anishinaabeb .

[15]

That
    said, we understand, by way of example, that the Crown would not object to a
    claim that the Crown provided education directed at advancing an agenda of
    Christianization if the foundational declaration sought  as to what the
    Treaty 3 Schools Provision requires  means that the Crown was obliged to
    provide a secular system of education.

[16]

In
    our view, if such objections are properly the subject of a Rule 21.01 motion
    based on justiciability, it would seem that they could be satisfied by
    amendments to the pleading. The action and the statement of claim are complex.
    The statement of claim would benefit from amendment.
[1]

Authorization to Bring a Representative
    Proceeding

[17]

In
    this case, the motion judge is also the case management judge. While the motion
    judges order provides that the appellants motion for authorization to bring a
    representative action and to appoint a representative plaintiff was dismissed,
    the motion judges reasons make clear that if the action were justiciable,
    authorization would be granted, subject to fulfillment of the conditions set
    out above.

[18]

While
    the Crown has not yet filed its statement of defence, it put the motion judge
    and the appellants on notice that, in its view, the 28 bands, and not the
    larger collective of the beneficiaries of Treaty 3 that the appellants seek
    to represent, are the parties entitled to assert any breach of the Schools Provision
    of Treaty 3.

[19]

On
    this appeal, on the basis that the motion judge effectively conditionally
    approved their motion for authorization of a representative action, the
    appellants were initially content to simply join the 28 bands as parties. 
    However, in his reply submissions, counsel for the appellants reconsidered his
    position, on the basis that it was no longer clear to him that the Crown will
    assert that the 28 bands are the correct parties.

[20]

From
    the submissions made by Crown counsel, we are satisfied that whether the 28
    bands or the larger collective that the appellants seek to represent are the
    correct parties in this extremely complex litigation remains a live issue. The
    motion judges solution is a practical one. We see no basis to interfere with
    the conditions that he imposed.

[21]

Accordingly,
    the appellants are granted leave to continue this proceeding as a
    representative action on behalf of themselves and all persons who are
    beneficiaries of Treaty 3, and Grand Chief Warren White (who, as discussed
    below, replaces Grand Chief Diane Kelly)  is appointed as the representative
    plaintiff in the action, provided that (1) they are authorized to do so by band
    council resolutions of all 28 reserve bands, or (2) they join as party
    defendants those bands that do not authorize the representative action.

Amendment to Replace Co-Plaintiffs

[22]

Before
    the motion judge, the appellants also sought an amendment to their statement of
    claim to substitute Grand Chief Warren White for Grand Chief Diane Kelly, and
    replace two other co-plaintiffs. The Crown did not object; the amendment was
    not approved because the statement of claim was struck.  The requested
    amendment is granted.

Costs

[23]

The
    appellants are entitled to their costs of the appeal on a partial indemnity
    scale in the amount of $40,000, inclusive of disbursements and HST. The issue
    of costs of the motion below shall be returned to the motion judge for
    determination on such further submissions from the parties as they may be
    advised and the motion judge may direct.

Alexandra
    Hoy A.C.J.O.

E.A.
    Cronk J.A. 

Gloria
    Epstein J.A. 





[1]
The appellants helpfully clarified that they only focus on historical facts,
    such as those in para. 31 with which the Crown takes issue, with a view to
    establishing a causal link: they argue that the beneficiaries of Treaty 3s
    current disadvantaged situation is due to the Crowns past educational
    policies, and their Treaty education rights, properly interpreted, entitle them
    to special educational strategies and services to rectify their situation and
    create substantive educational equality. It was not clear to us that this
    concept is captured in the foundational declaration sought that the Crown has a
    duty to provide educational services commensurate with those made available to
    the Canadian public generally, as currently pleaded at para. 1.a. of the
    appellants statement of claim.  Counsel for the appellants also clarified that
    the appellants equitable damages claim does not relate to historical conduct.
    Damages are sought to compensate individual plaintiffs whose ability to earn
    income has allegedly been adversely affected because of a breach of the Schools
    Provision in the Treaty. The primary relief sought is a declaration that the
    Crown is currently breaching the Treaty, and a mandatory order, of some type, that
    the Crown take steps to remedy the breach in consultation with the appellants,
    under the supervision of the courts.


