Digests

Tacan v. Canada

T-1756-01

2005 FC 385, Layden-Stevenson J.

17/3/05

53 pp.

Plaintiffs are Indians who served in World War II or Korean conflict--Alleging Aboriginal veterans not accorded advantages given other war veterans, and victims of systemic discrimination--At end of World War II, Director appointed under Veterans' Land Act authorized to acquire land, building materials, livestock and sell farming package to eligible veterans at 2/3 fair value--Veterans allowed 30 years to pay at 3.5% interest--Plan did not apply to federal, provincial, Indian lands--Those who settled on such lands given $2,320 grant--Act amended to authorize $2,320 grant to Indian veterans for on-reserve farming--Administration of VLA on reserve lands left to local Indian Agent who would make purchase on behalf of veteran if justifiable--Plaintiffs claiming wrongfully deprived of benefits worth "hundreds of thousands of dollars", withholding of which caused some veterans civilian lives marked by poverty, humiliation; denial of benefits contravened international, domestic laws against discrimination--Arguing Department of Indian Affairs (DIA) guilty of negligent misrepresentation, administration-- Alleging off-reserve purchase grant, loan "economically superior choice"--Asserting DIA deliberately avoided advising plaintiffs of option to apply for off-reserve grant, loan and this constituted breach of fiduciary duty--Crown's position: claims statute-barred by limitation provision of Crown Liability and Proceedings Act, s. 32 or cannot survive equitable defences of laches, acquiescence--Case manage-ment judge ordered limitations issues be determined separately (Federal Court Rules, 1998, r. 107)--Plaintiffs seeking determination as to limitation defences; Crown seeking summary judgment--Crown denying fiduciary duty in statement of defence but, for purposes of motion, conceding fiduciary duty but arguing duty not breached--Crown's motion under r. 213--Court assuming genuine issue exists-- Court could still grant summary judgment (on an issue or generally) if, on evidence, able to find facts needed to determine questions of fact, law--MacNeil Estate v. Canada (Department of Indian and Northern Affairs), [2004] 3 F.C.R. 3 (F.C.A.) distinguishable as here all parties seek determination whether claims statute-barred without full trial on issue--Action not about Aboriginal veterans in general-- Relevant legislation is Manitoba's The Limitation of Actions Act because Federal Courts Act, s. 39 incorporates by reference provincial limitations legislation which is applied as federal law: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245--To same effect: Crown Liability and Proceedings Act, s. 32--Manitoba statute complete code of limitations-- For breach of fiduciary duty, fraudulent misrepresentation: action must be launched within 6 years of discovery; as for negligent misrepresentation, and accounting, within 6 years after cause of action arose (unless, under Act, Part II extension granted where not over 12 months since applicant first knew, ought to have known, material facts on which action based)--Rationale for limitation periods: (1) define time when defendant free of ancient obligations; (2) prevent claims where evidence lost over time; (3) incentive to bring suit in timely fashion; (4) account for plaintiff's circumstances looked at through subjective/objective lens--Evidence regarding each plaintiff set forth at considerable length--Conflict of opinion as to who bears onus of establishing when limitation period starts to run--Crown suggesting causes of action herein perhaps discovered decades before action brought--Plaintiffs arguing causes of action continue to arise, Crown's fiduciary duty persists--Plaintiffs relying on Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (C.A.) for submission claim not out of time--Suggesting 1982 earliest time Aboriginal peoples would have known had chance of success in suing Crown for breach of fiduciary duty--Court accepting proposition, for purposes of instant motions, defendant bears burden of establishing when limitation period begins to run--But plaintiffs' submission as to continuing breach of fiduciary duty ad infinitum not accepted--Breach of duty herein not time specific--Court troubled by plaintiffs' deposition that "only recently" realized may not have received benefits to which entitled--Upon discovery, one plaintiff used phrase "just more recently" and when asked what that meant, answered "likely in the `60s"--Court concluding 1990 was latest possible time limitation periods would have begun to run--Instant case just like Abbott v. Canada, 2005 FC 163, in which plaintiffs knew legal action possible but elected to resort to political route in seeking redress--Plaintiffs well out of time to seek a s. 2 extension--Though claims statute-barred, plaintiffs suggesting Court having inherent jurisdiction to waive statutory limitation--While discretion to waive limitation deadlines confirmed in Orden Estate v. Grail (1996), 30 O.R. (3d) 643 (C.A.), affd [1998] 3 S.C.R. 437, in Nicholson v. Canada, [2000] 3 F.C. 225 (T.D.), Lemieux J. held limitation period could not be waived by Federal Court absent clear statutory authority--Parliament neither expressly nor impliedly conferring power on Federal Court to waive, extend limitation periods in Act--Plaintiffs further submitting application of limitation periods resulting in breach of Charter, ss. 7, 15(1)--Since limitations legislation varies from province to province, plaintiffs say location of reserve basis for differential treatment under law and that Aboriginal residence is a ground analogous to those listed in s. 15(1): Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203--Court not convinced applicable Manitoba limitation periods more stringent, punitive than those in Ontario--Even if they were, place of residence, generally, not basis for discrimination under Charter: Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6--Corbiere not standing for proposition location of reserve analogous ground--Indeed, S.C.C. in Corbiere warned against confusing reserve status with residence--Any differential treatment of Aboriginal people due to province of residence not emanating from negative stereotypes of Aboriginal people in particular jurisdiction and not demeaning their dignity--Nor were plaintiffs' Charter, s. 7 rights breached--They were attempting to assert economic rights and s. 7 has no application to such rights: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429--While money may impact upon one's liberty and security, merely incidental effect not contemplated by s. 7: Whitbread v. Walley (1988), 26 B.C.L.R. (2d) 203 (C.A.)-- Had there been a breach, Judge would have found statute's limitation provisions justified by Charter, s. 1--In interests of respecting federalism principle, reasonable to allow provinces to set own limitation periods--While arbitrariness inherent in any limitation period, legislature need not choose least intrusive measure if option selected is reasonable: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877--Plaintiffs also invoking Canadian Bill of Rights in arguing operation of limitation bar robs them of right to "due process of law"--Even if ability to sue for damages falls within "enjoyment of property", such right would have been deprived by due process of law--Due process herein not entailing hearing on merits of claims, only on whether statute-barred--Plaintiffs' Bill of Rights, s. 1(b) arguments same as arguments under Charter, s. 15(1) and no discrimination on any s. 1 ground as limitation periods apply regardless of race, religion, colour, sex--Place of residence not prohibited ground under s. 1--Crown's request to amend defence to plead limitations period in Public Officers Act, s. 24(1) not dealt with because moot--Otherwise, would have been granted--Also unnecessary to consider laches defence but, had action not been statute-barred, defence available-- Summary judgment motion granted with costs to Crown-- Indian Act, R.S.C., 1985, c. I-5--Veterans' Land Act, R.S.C. 1970, c. V-4--Veterans Benefit Act, 1954, S.C. 1953-54, c. 65--Veterans' Land Regulations, SOR/65-215--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 1 (as am. by S.C. 1990, c. 8, s. 21)--Federal Court Rules, 1998, SOR/98-106, rr. 107, 213--The Public Officers Act, C.C.S.M. c. P230, s. 21(1)--The Limitation of Actions Act, C.C.S.M. c. L150, ss. 2, 14, 20--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 39 (as am. by S.C. 1990, c. 8, s. 10; 2002, c. 8, s. 38)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 15(1)-- Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1)-- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 2--Limitations Act, R.S.O. 1980, c. L.15--Public Authorities Protection Act, R.S.O. 1990, c. P.38--Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 1(a), (b).