Canada Case Law

The Nuchatlaht v. British Columbia

Court

British Columbia Court of Appeal

The trial judge erred by applying a site-specific and overly rigid approach to sufficiency of occupation, misapprehending and undervaluing material evidence of interior use (notably culturally modified trees and consistent post-1846 exploitation), and by drawing an arbitrary 100‑metre elevation boundary; on the correct application of Tsilhqot'in and related authorities the evidentiary record establishes sufficient occupation and exclusive control of the pleaded Claim Area at the time of Crown sovereignty, and a declaration of Aboriginal title to the pleaded area is warranted.

Source excerpt

• Aboriginal title
• Sufficient occupation
• Culturally modified trees
• Boundary delimitation
• Standard of review
• Remedial declaration

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Brandon v. Canada

Court

Federal Court of Appeal

The appeal is dismissed because the appellant was a member of the class and the Family Class under the Saskatchewan court approval of the IRSSA; his pleaded claim falls within the express, comprehensive release in that approval order and therefore disclosed no reasonable cause of action; paragraph 21 does not exempt his claim and minors are bound by the order; the Federal Court did not err in striking the statement of claim without leave to amend.

Source excerpt

• Release/settlement interpretation
• Scope of class release
• Striking pleadings for disclosing no reasonable cause of action
• Second-generation residential schools claims
• Standard of review

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Wesley v. British Columbia

Court

Supreme Court of British Columbia

The Court certified the action as a class proceeding because the pleadings, read generously and assuming pleaded facts true, disclose viable causes of action for negligence, breach of fiduciary duty, misfeasance in public office against Canada and the Province in respect of post-immunity periods and as to the Indigenous Subclass, battery/medical negligence and breach of fiduciary duty against Dr. MacKenzie as properly pleaded, there is some evidence of an identifiable class and Indigenous subclass of two or more, and the claims raise common issues the determination of which will materially ad…

Source excerpt

• Certification
• Negligence
• Breach of fiduciary duty
• Misfeasance in public office
• Unjust enrichment
• Vicarious liability

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Cowichan Tribes v. Canada (Attorney General)

Court

Supreme Court of British Columbia

Abuse of process was not established because plaintiffs did not take inconsistent positions in the litigation; delay is a relevant factor in assessing joinder under Rule 6-2(7) and in abuse of process analysis; the contested categories of regulatory communications and AOAs are sufficiently relevant to Montrose's notice and reasons for delay to warrant limited document production under Rule 22-1(4)(c); accordingly Montrose and BC are ordered to produce specified documents within a time limit and the plaintiffs given a fixed period to respond, with further case management to follow.

Source excerpt

• Joinder
• Abuse of process
• Document production under rule 22-1(4)(c)
• Delay and notice
• Regulatory communications
• Archaeological assessments

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Verville v. Canada (Attorney General)

Court

Supreme Court of British Columbia

Because the IRSSA expressly defines both the survivor and their descendants as Class Members and contains a comprehensive release approved by courts, both plaintiffs are bound by the IRSSA; therefore, on the face of the pleadings it is plain and obvious the claim against Canada is barred by the IRSSA and discloses no reasonable cause of action, and must be struck without leave to amend.

Source excerpt

• Indian residential school settlement agreement (irssa)
• Release and binding effect on class members
• Intergenerational harm
• Striking pleadings (no reasonable cause)
• Notice to class members
• Finality of settlements

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Metlakatla First Nation v. Prince Rupert Port Authority

Court

Supreme Court of British Columbia

The Court held that, except for the mandamus-style order seeking an order that PRPA engage in consultations (Part 2, para. 5), Metlakatla's Amended Claim pleads reasonable private law causes of action (breach of fiduciary duty, breach of duty to consult, negligent misrepresentation, unjust enrichment) and is not a plain and obvious collateral attack on the Crown Approval; accordingly PRPA's application to strike is dismissed except that Part 2, para. 5 is struck as falling within the exclusive jurisdiction of the Federal Court under s.18 of the Federal Courts Act.

Source excerpt

• Duty to consult
• Fiduciary duty
• Negligent misrepresentation
• Unjust enrichment
• Judicial review jurisdiction
• Federal courts act s.18

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Lummi Nation v. Canada (Attorney General)

Court

Federal Court

The Federal Court dismissed Lummi Nation’s judicial review, holding Canada owed a duty to consult but met it through a reasonable, meaningful process before Cabinet approved the project.

• Duty to consult and accommodate
• Section 35 interpretation
• Desautel implications
• Transboundary indigenous rights
• Adequacy of consultation process
• Duty-to-consult

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Fraser-Fort George (Regional District) v. Chingee

Court

British Columbia Court of Appeal

The Court of Appeal dismissed appeals from summary judgment refusal, holding the respondent’s s. 35 treaty-rights defence raised triable issues not foreclosed by prior litigation.

• Treaty rights (s.35)
• Vertical stare decisis
• Issue estoppel
• Abuse of process
• Collateral attack
• Severalty land grants

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Shamattawa First Nation v. Canada (Attorney General)

Court

Federal Court

The Federal Court granted summary judgment on a certified Stage I common issue about safe drinking water on reserve, finding Canada owed fiduciary, negligence and Charter-related duties.

• Fiduciary duty
• Ad hoc fiduciary duty
• Common law duty of care
• Charter ss.7,15,2(a)
• Section 32(1) charter application
• Long‑term drinking water advisories

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B.M. v. Canada (Attorney General)

Court

Court of Appeal for Ontario

Case management endorsement setting timelines for intervention motions and scheduling a two-day appeal in a proposed class proceeding involving Indigenous children and child welfare.

• Certification
• Intervention
• Over-representation of indigenous children
• Child welfare funding
• Access to services
• Case-management

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