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Indigenous - Limitations. Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here, the court considers the application of Ontario 1990 Limitations Act (the old one) law to indigenous treaties:D. Limitations Issues
(1) Introduction
[198] Before this Court, Ontario renews its argument that the Huron and Superior plaintiffs’ claims for breach of treaty are statute-barred by a provincial limitation period. The current Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, provides that proceedings based on existing Aboriginal and treaty rights recognized and affirmed by s. 35 of the Constitution Act, 1982 and equitable claims by Aboriginal peoples against the Crown are governed by “the law that would have been in force with respect to limitation of actions if this Act had not been passed” (ss. 2(1)(e), 2(1)(f) and 2(2)). All parties agree that if any limitations legislation applies in this case, it is Ontario’s 1990 Limitations Act.
[199] The relevant provisions of the 1990 Limitations Act are as follows:45. (1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned,
(b) an action upon a bond, or other specialty, except upon a covenant contained in an indenture of mortgage made on or after the 1st day of July, 1894;
within twenty years after the cause of action arose,
(g) an action for trespass to goods or land, simple contract or debt grounded upon any lending or contract without specialty, debt for arrears of rent, detinue, replevin or upon the case other than for slander,
within six years after the cause of action arose, . . . .
46. Every action of account, or for not accounting, or for such accounts as concerns the trade of merchandise between merchant and merchant, their factors and servants, shall be commenced within six years after the cause of action arose, and no claim in respect of a matter that arose more than six years before the commencement of the action is enforceable by action by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of the action. [200] The trial judge rejected Ontario’s argument that the breach of treaty claims should be considered to be actions “upon a . . . specialty”, subject to a 20-year limitation period (s. 45(1)(b)), or, in the alternative, as actions “of account” (s. 46) or actions “for contract . . . without specialty” (s. 45(1)(g)), subject to a 6-year limitation period. She emphasized that Aboriginal treaties are not contracts, whether with or without specialty. Rather, treaties are sui generis agreements that form “part of the constitutional fabric of this country” (Stage Two reasons, at para. 151; see also paras. 149-50). She added that the claims could not be considered to be actions “of account” under s. 46, because they pursue equitable compensation rather than a common law accounting, which is the focus of s. 46 (para. 179).
[201] Writing on behalf of the Court of Appeal, Hourigan J.A. agreed with the trial judge that the breach of treaty claims are not statute-barred. Applying the modern approach to statutory interpretation, he reasoned that the strict textual analysis required when considering specialties is antithetical to the highly contextual nature of Aboriginal treaty analysis (paras. 656-57). In addition, actions of account under s. 46 of the 1990 Limitations Act were intended to be limited to merchants’ accounts (para. 661). Finally, unlike the 1990 legislation, the Limitations Act, 2002 specifically refers to Aboriginal claims, strongly suggesting that had the legislature intended to capture breach of treaty claims under the 1990 Limitations Act, it would have done so expressly (paras. 646 and 662).
[202] Before this Court, and for the first time in this litigation, Ontario asserts the breach of treaty claims are actions “on the case” within the meaning of s. 45(1)(g) of the 1990 Limitations Act, and are thus subject to a six-year limitation period (A.F., at para. 116). Ontario also disputes the Court of Appeal’s conclusion that actions “of account” are limited to common law claims relating to merchants’ accounts (para. 120). In response, the Huron and Superior plaintiffs urge this Court not to consider Ontario’s new argument regarding actions on the case, which was neither pleaded nor argued at any stage of the proceedings (Huron plaintiffs’ R.F., at para. 124; Superior plaintiffs’ R.F., at para. 103). In any event, they submit that this cause of action does not apply to the breach of treaty claims (Huron plaintiffs’ R.F., at paras. 124-30; Superior plaintiffs’ R.F., at paras. 91-94 and 105). They also agree with the Court of Appeal that s. 46 of the 1990 Limitations Act was intended to be limited to merchants’ accounts (Huron plaintiffs’ R.F., at para. 132; Superior plaintiffs’ R.F., at paras. 110-11). Canada does not rely on a limitations defence and takes no position on these issues (R.F., at para. 51).
[203] Ontario has also suggested that this Court need not address limitations issues if it grants only declaratory relief in relation to the breach of treaty claims (A.F., at para. 121). For its part, Canada notes that “limitations statutes cannot prevent courts from issuing a declaration on the constitutionality of Crown conduct” (R.F., at para. 54, citing Manitoba Metis). In oral argument before this Court, Ontario’s counsel added that he was not “strenuously” arguing that the plaintiffs’ claims are statute-barred by a limitation period (transcript, day 1, at p. 51). Even so, I will address Ontario’s limitations arguments in order to confirm the parties’ continuing rights and obligations under the Robinson Treaties. As I will explain, the plaintiffs’ breach of treaty claims are neither “actions on the case” nor “actions of account”. As a result, their claims are not statute-barred by the 1990 Limitations Act.
(2) The Breach of Treaty Claim Is Not an Action on the Case
[204] This Court has recently affirmed that parties will be permitted to raise new arguments on appeal only in exceptional circumstances, having regard to, among other things, “the state of the record, fairness to all parties, the importance of having the issue resolved by th[e] [c]ourt, its suitability for decision and the broader interests of the administration of justice” (R. v. J.F., 2022 SCC 17, at para. 41, citing Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 20).
[205] I have concluded that this is an appropriate case to consider Ontario’s argument that the plaintiffs’ claims are statute-barred under the 1990 Limitations Act as “actions on the case”. First, the determination of this issue is primarily an exercise of characterizing the nature of the plaintiffs’ claims and requires consideration of little, if any, evidence. Second, both the Huron and Superior plaintiffs have fully addressed this new submission in their factums on appeal, thereby reducing the potential for unfairness. Finally, a decision on this issue would clarify the ongoing rights of the beneficiaries under the Robinson Treaties and the Crown’s concomitant obligations — issues of clear importance given their constitutional dimension.
[206] The action “on the case” is a common law action that derived from the action of trespass (Perry, Farley & Onyschuk v. Outerbridge Management Ltd. (2001), 2001 CanLII 5678 (ON CA), 54 O.R. (3d) 131 (C.A.), at para. 22; A. K. Kiralfy, The Action on the Case (1951), at p. 3). It allowed plaintiffs to bring claims for personal wrongs and injuries that could not be brought in trespass, such as claims based on culpable omissions and unintended or consequential harm (Outerbridge, at paras. 22-23 and 25, citing W. Blackstone, Commentaries on the Laws of England (1897), Book 3, at p. 122, M. Bacon, A New Abridgment of the Law (7th ed. 1832), vol. I, at p. 86, and G. Mew, The Law of Limitations (1991), at p. 92). Actions on the case were generally limited to actions in the nature of tort, but in some cases have been extended to actions in the nature of contract as well (Ontario Law Reform Commission, Report on Limitation of Actions (1969), at p. 35; Halsbury’s Laws of England (3rd ed. 1952), vol. 1, at pp. 27-28).
[207] There are at least three reasons why a claim for breach of an Aboriginal treaty is not an action on the case.
[208] First, Ontario seeks to use the action on the case as a catch-all cause of action or basket clause capturing any claim not expressly mentioned in the limitations legislation, including breach of treaty. This attempt is misguided. Some provincial limitations statutes have included residual provisions or basket clauses (see, e.g., Limitation Act, R.S.B.C. 1996, c. 266, s. 3(5); Limitation of Actions Act, R.S.A. 1980, c. L-15, s. 4(1)(g); Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at paras. 127-31; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at paras. 12-14). However, this Court has already held that the 1990 Limitations Act “applies only to a closed list of enumerated causes of action” (M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at p. 69). As a result, actions on the case cannot be interpreted so broadly as to capture all personal actions not specifically enumerated in the 1990 Limitations Act (Outerbridge, at paras. 17 and 26). Accepting Ontario’s submission on this point would effectively require this Court to read into the legislation a basket clause where one was not provided by the legislature.
[209] Second, in the 2002 amendments to the Ontario limitations legislation, the Ontario legislature dealt expressly with Aboriginal and treaty rights, excluding them from the limitation periods established in the statute. Sections 2(1)(e) and 2(1)(f) of the Limitations Act, 2002 provide that the legislation applies to all claims except “proceedings based on the existing [A]boriginal and treaty rights . . . recognized and affirmed in section 35 of the Constitution Act, 1982” and “proceedings based on equitable claims by [A]boriginal peoples against the Crown”. I agree with the Court of Appeal that, in making these amendments, the legislature “understood that Aboriginal treaty claims are distinct” from other causes of action, and that “when the legislature intended to deal with Aboriginal treaty claims, it did so explicitly” (para. 646).
[210] Finally, a claim for breach of an Aboriginal treaty right is fundamentally different than an action on the case. Treaty claims are not actions in the nature of tort or contract, which seek to vindicate private rights, and which derive from the law of trespass. Rather, Aboriginal treaties are sui generis agreements representing the exchange of solemn promises between the Crown and Indigenous peoples (Simon, at pp. 404 and 410; Sioui, at p. 1038; Badger, at para. 41). The rights at stake are constitutional, engaging issues of public law rather than private law.
(3) The Breach of Treaty Claim Is Not an Action of Account
[211] I would also reject Ontario’s submission that the plaintiffs’ claims for equitable compensation amount to actions of account within the meaning of s. 46 of the 1990 Limitations Act.
[212] In rejecting Ontario’s argument on this point, the Court of Appeal, at para. 660, referred to the Ontario Law Reform Commission’s Report on Limitation of Actions, which explained that actions of account under s. 46 “probably are only those which would have been brought at common law and do not include equitable actions of account” (p. 18). Ontario provides a contrary viewpoint, citing Jeremy S. Williams, Limitation of Actions in Canada (2nd ed. 1980), at p. 45, who contends that an action of account can be brought incidentally to any claim “where there is a legal or equitable duty to account” (A.F., at para. 120 (emphasis added)).
[213] I accept that there is authority for the view that actions of account can include common law and equitable claims. Even so, the origin and scope of this action suggest it is ill-suited to the context of Crown-Indigenous treaties.
[214] The writ or action of account arose from the English feudal system in the 13th century. It was a way for land-owning lords who had rented out manors to bailiffs to compel them to account for the rents and profits derived from the property (E. O. Belsheim, “The Old Action of Account” (1932), 45 Harv. L. Rev. 466, at pp. 467-68). At that time, there was no clear division between equity and the common law, but the action was typically used at common law against a person who was required to render an account to another because of a fiduciary relationship (such as a guardian in socage, bailiff, or receiver) (National Trust Co. v. H & R Block Canada Inc., 2003 SCC 66, [2003] 3 S.C.R. 160, at para. 34, citing Black’s Law Dictionary (6th ed. 1990), at p. 19; Halsbury’s Laws of England, at p. 24; Belsheim, at p. 472).
[215] Although the relationship between the Crown and Indigenous peoples is fiduciary in nature, for the reasons I outline in the next section, no specific fiduciary obligation, whether ad hoc or sui generis, arises to potentially bring the plaintiffs’ claims within the scope of actions of account. In addition, the correct interpretation of the Augmentation Clause set out above reveals that the Crown is not required to account to the treaty beneficiaries for the proceeds of the ceded territories. Rather, increases to the annuities beyond $4 are discretionary. It also cannot be said that the Crown holds the ceded territories in trust for, or for the benefit of, the Anishinaabe treaty partners.
[216] Finally, I am not aware of any precedent treating Aboriginal or treaty rights as actions of account. The two cases Ontario cites are unlike the case at bar: they involve private law contracts of purchase and sale for land, and the administration of a constructive trust (Hanemaayer v. Freure (1999), 1999 CanLII 14942 (ON SC), 2 B.L.R. (3d) 269 (Ont. S.C.J.), at paras. 98-108; Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2010 BCCA 357, 320 D.L.R. (4th) 577, at para 50). Ontario has therefore provided no precedent or any compelling basis for this Court to extend s. 46 of the 1990 Limitations Act to the constitutional context of sui generis Aboriginal treaties.
(4) Conclusion
[217] I conclude that the Huron and Superior plaintiffs’ breach of treaty claims are neither actions on the case nor actions of account, and are therefore not statute-barred by the 1990 Limitations Act.
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