Ottawa, Ontario, December 8, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
DELVIN STEWART POTSKIN, KEVIN ALBERT LAWRENCE POTSKIN and ROCHELLE MARIE POTSKIN
(Respondents)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
(Applicant)
REASONS FOR ORDER AND ORDER
[1] This is a motion for summary judgment brought by the defendant in the action, Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (the “applicant”), pursuant to rule 213(2) of the Federal Courts Rules, SOR/98-106.
RELEVANT FACTS
[2] Delvin Stewart Potskin, Kevin Albert Lawrence Potskin and Rochelle Marie Potskin (the “respondents” and plaintiffs in the main action) were born on February 7, 1979, March 27, 1980, and April 14, 1981 respectively. At the time of the plaintiffs’ births, their mother Harriet Eliza May Morin (nee Potskin) (“Ms. Potskin”) was unmarried. All of them were members of the Sawridge Band.
[3] The father of all three respondents was Neil Morin, a member of the Enoch Band. On November 27, 1981, Hariet Potskin married Neil Morin. As a consequence of her marriage, Ms. Potskin ceased to be a member of the Sawridge Band and became a member of the Enoch Band. In accordance with section 16(3) of the Indian Act, R.S.C. 1970, c. I-6 (the “Act”), Mrs. Potskin received the difference in value between her per capita share in the capital and revenue accounts of the Sawridge Band and her per capita share in the capital and revenue accounts of the Enoch Band.
[4] On March 29, 1983, the Registrar received correspondence from counsel from the Sawridge Band requesting that the respondents be transferred to the Enoch Band list. The basis for the transfer was Statutory Declarations signed by both Harriet Potskin and Neil Morin on April 15, 1982, which declared Neil Morin to be the natural father of the respondents. As a result, on April 27, 1983, the Registrar advised by letter to the Lesser Slave Lake Indian Regional Council, of which the Sawridge Band is a member, that the respondents would be transferred to the Enoch Band list. No protest was ever filed concerning their transfer.
[5] During the examination for discovery, Ms. Potskin stated that she received numerous representations from the Chief of the Sawridge Band, Walter Twinn, and from the counsel for the Sawridge Band, Dave Fennell, that her children’s per capita share of the capital and revenue accounts of the Sawridge Band would be held in trust by the Department of Indian Affairs and Northern Development (the “Department”) until they reached the age of majority. While Ms. Potskin also alleges for the first time in her affidavit that she received the same advice from the Department, she cannot recall who gave her that advice; she is clear, however, that she received that advice repeatedly from both Mr. Twinn and Mr. Fennell.
[6] Nevertheless, in 1993 and 1994, the Department advised Ms. Potskin that her children were not entitled to receive a per capita share of the capital and revenue accounts of the Sawridge Band.
[7] The last of the respondents turned 18 on April 14, 1999 and the action was commenced on July 10, 2001.
ISSUES
[8] Essentially, the issue to be decided in this application is whether the test for summary judgment has been met. More specifically, the Court must consider the following questions raised by the applicant;
a) Whether the applicant owes the plaintiffs a fiduciary duty or a duty under treaty;
b) Whether the Department failed to apply the relevant statutory provisions in determining whether the respondents were entitled to a per capita share of the capital and revenue accounts of the Sawridge Band; and
c) Whether the respondents’ claim is barred by the applicable limitations period.
RELEVANT STATUTORY PROVISIONS
[9] Indian Act, R.S.C. 1970, c. I-6
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15. (1) Subject to subsection (2), an Indian who becomes enfranchised or who otherwise ceases to be a member of a band is entitled to receive from Her Majesty (a) one per capita share of the capital and revenue moneys held by Her Majesty on behalf of the band, and (b) an amount equal to the amount that in the opinion of the Minister he would have received during the next succeeding twenty years under any treaty then in existence between the band and Her Majesty if he had continued to be a member of the band.
[…]
(3) Where by virtue of this section money are payable to a person who is under the age of twenty-one, the Minister may (a) pay the moneys to the parent, guardian or other person having the custody of that person or to the public trustee, public administrator or other like official for the province in which that person resides, or (b) cause payment of the money to be withheld until that person reaches the age of twenty-one.
16. (1) Section 15 does not apply to a person who ceases to be a member of one band by reason of his becoming a member of another band, but, subject to subsection (3), there shall be transferred to the credit of the latter band the amount to which that person would, but for this section, have been entitled under section 15.
[…]
(3) Where a woman who is a member of one band becomes a member of another band by reason of marriage, and the per capita share of the capital and revenue moneys held by Her Majesty on behalf of the first-mentioned band is greater than the per capita share of such moneys so held for the second-mentioned band, there shall be transferred to the credit of the second-mentioned band an amount equal to the per capita share held for that band, and the remainder of the money to which the woman would, but for this section, have been entitled under section 15 shall be paid to her in such manner and at such times as the Minister may determine.
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15. (1) Sous réserve du paragraphe (2), un Indien qui devient émancipé ou qui, d’autre manière, cesse d’être membre d’une bande a droit de recevoir de Sa Majesté a) une part per capita des fond de capital et de revenu détenus par Sa Majesté au nom de la bande, et b) un montant égal à la somme que, de l’avis du Ministre, il aurait reçue durant les vingt années suivantes aux termes de tout traité alors en vigueur entre la bande et Sa Majesté s’il était demeuré membre de la bande.
[…]
(3) Lorsqu’en vertu du présent article, des deniers sont payables à une personne de moins de vingt et un ans, le Ministre peut a) payer les deniers au père, ou à la mère, au tuteur ou à l’autre personne ayant la garde de cette personne, ou au curateur public ou administrateur public ou autre semblable fonctionnaire de la province ou réside ladite personne, ou b) faire suspendre le paiement des deniers jusqu’à ce que la personne ait atteint l’âge de vingt et un an.
16. (1) L’article 15 ne s’applique pas à une personne qui cesse d’appartenir à une bande du fait qu’elle devient membre d’une autre bande, mais, sous réserve du paragraphe (3), le montant auquel cette personne aurait eu droit en vertu de l’article 15, sans le présent article, doit être transféré au crédit de la bande en dernier lieu mentionné.
[…]
(3) Lorsqu’une femme qui fait partie d’une bande devient membre d’une autre bande du fait de son mariage et que la part per capita des fonds de capital et de revenu détenus par Sa Majesté au nom de la bande en premier lieu mentionné, est plus élevée que la part per capita des fonds ainsi détenus pour la bande en deuxième lieu mentionnée, il doit être transféré au crédit de la bande en deuxième lieu mentionné un montant égal à la part per capita détenue pour cette bande, et le solde des deniers auxquels cette femme aurait eu droit aux termes de l’article 15, sans le présent article, doit lui être versé de la manière et aux époques que le Ministre détermine. |
TEST FOR SUMMARY JUDGMENT
[10] The test to establish whether all the elements are met for a summary judgment to be granted was elaborated in Granville Shipping co. v. Pegasus Line Ltd., [1996] 2 F.C. 853 (T.D.) at paragraph 8. The seven general principles are as follows:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al);2
2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The))3 but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie.4 It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework (Blyth5 and Feoso);6
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso7 and Collie);8
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);9
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman10 and Sears);11
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde12 and Sears).13 The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes).14
[Footnotes omitted]
[11] Rule 215 of the Federal Courts Rules provides:
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215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.
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215. La réponse à une requête en jugement sommaire ne peut être fondée uniquement sur les allégations ou les dénégations contenues dans les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les faits précis démontrant l’existence d’une véritable question litigieuse. |
[12] Additionally, in Paszkowski v. Canada (Attorney General), [2006] F.C.J. No. 248, 2006 FC 198 at paragraph 38, Justice Richard Mosley held:
Parties responding to a summary judgment motion do not have to prove all the facts of their case, rather the evidentiary burden is to put forward evidence that shows there is a genuine issue for trial. The burden rests with the party putting forward the motion but all parties must put their best foot forward: MacNeil Estate v. Canada (Department of Indian and Northern Affairs), (2004), 316 N.R. 349, 2004 FCA 50.
[13] For the reasons that follow, I consider that the test for summary judgment has not been met and that this case should proceed to trial.
ANALYSIS
a) Did the applicant owe the plaintiffs a fiduciary duty or a duty under treaty?
[14] Regarding the fiduciary duty of the applicant Her Majesty the Queen, the applicant acknowledges the existence of a sui generis fiduciary relationship with Aboriginal people which can, in certain contexts, give rise to specific fiduciary duties. That being said, in this particular case, the applicant maintains that the Crown, through its official the Registrar, has no fiduciary duty regarding the rights of the respondents, nor was there any evidence presented in support of their assertion of a duty arising out of a treaty. Any duty to pay moneys to the respondents would arise solely as a result of a statutory provision in the Act.
[15] The respondents for their part suggest, and I agree, that the Registrar is often seen as the gate-keeper of the Indian Act. The Registrar determines when a person is entitled to be registered as an Indian or a member of a particular band, which is a prerequisite for access to Indian moneys. Also, as per section 61 of the Act, Indian moneys must be expended only for the use and benefit of the Indians or bands for whom the moneys are held, and the responsibility for determining whether any such expenditures are for the use and benefit of the band rests with the Governor in Council.
[16] In my view, the scope of the fiduciary duty of the Indian bands, particularly in this case, is not as narrow as identified by Crown counsel. As such, this particular issue remains a serious one to be resolved at trial.
b) Did the Department fail to apply the relevant statutory provision in determining whether the respondents were entitled to a per capita share of the capital and revenue accounts of the Sawridge Band?
[17] The respondents rely upon section 15 of the Act as authority for the allegation that they were entitled, upon reaching the age of majority, to receive a per capita share of the capital and revenue moneys held by the Sawridge Band.
[18] When Ms. Potskin married Mr. Morin, she had to be transferred from the Sawridge Band to the Enoch Band, pursuant to the regulations in place. Both bands, the Sawridge Band and the Enoch Band, decided to ask Ms. Potskin and Mr. Morin to declare whether the children identified as Delvin Stewart Potskin, Kevin Albert Lawrence Potskin and Rochelle Marie Potskin were their children. Ms. Potskin decided to allow the two bands to revise the status of the three children whom the bands decided to transfer from the Sawridge Band to the Enoch Band.
[19] It is not clear on what basis this transfer was done, nor is it clear to what degree the family was involved in the process and was aware of the consequences of the Bands’ decision. It appears as well that the children’s particular interests were not independently represented at the time.
[20] The Court was provided with an affidavit from Ms. Potskin, as well as the transcript of an examination on discovery, where she alleges that she consented to the transfer of the children only after receiving assurance that her children’s interests would be protected, and that they would not give up any per capita share of the Sawridge Band and would have access to their shares when they reached their majority.
[21] There is also evidence submitted regarding Ms. Potskin’s sister, Judy Potskin, who found herself in a similar situation with regards to the transfer of her children on proof of legitimization, and who was informed in 1984 by the Registrar that in such an instance, an appropriate portion of per capita share of the Sawridge Band would become transferable to the band to which the children would now belong. The respondent thus submits that the Registrar’s position in early 1984 makes it more likely than not that Ms. Potskin would have received the same information from the Department.
[22] The applicant’s position on this issue is that section 16 applies to the facts of this case and as such, there is no right whatsoever on which the respondents can base their statement of claim, as section 16 exempts from the operation of section 15 those persons who cease to be a member of a band by becoming a member of another band. In those cases, pursuant to section 16(1), a per capita share is transferred from the capital and revenue accounts of the former band to the capital and revenue accounts of the new band. The only exception found in section 16 is the one that was applied to Ms. Potskin upon transferring band as a result of marriage.
[23] After reviewing the written submissions of both parties, I am not satisfied that the application of sections 15 and 16 of the Act to the respondents’ rights is as clear as suggested by the applicant. In my view, the particular application of sections 15 and 16 of the Act regarding the residual rights of the children and the parents after the transfer from one band to another remains a serious issue to be determined at trial.
c) Is the respondents’ claim barred by the applicable limitations period?
[24] Regarding the limitation period, the position of the applicant is that the respondents’ claim is statute-barred, as per section 3 of the Alberta Limitations Act, R.S.A. 2000, c. L-12, an act incorporated by federal legislation as the applicable limitation period. Section 3 reads as follows:
3(1) Subject to section 11, if a claimant does not seek a remedial order within
(a) 2 years after the date on which the claimant first know, or in the circumstances ought to have known,
(i) that the injury for which the claimant seeks remedial order had occurred,
(ii) that the injury was attributable to conduct of the defendant, and
(iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding,
or
(b) 10 years after the claim arose,
whichever period expires first, the defendant, upon pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.
[25] The application of section 3 is subject to the exception for persons under a disability found at section 5 of the Limitations Act, which suspends the operation periods for the duration of the disability, which in the case of children ends when they reach the age of majority.
[26] The applicant thus maintains that the respondents are barred from bringing their claim against the Crown since the youngest ‘child’ reached 20 years of age before the suit was initiated and as such, the two-year limitation period had run out.
[27] The respondents for their part rely on section 15(3) of the Act and maintain that the fiduciary duty of Her Majesty the Queen can last until the individual for whom Her Majesty the Queen kept some money in trust reaches the age of 21, and thus the claim is not statute-barred.
[28] Since the resolution of this particular issue rests on the determination as to whether a fiduciary duty exists, this particular issue remains one to be resolved at trial.
Conclusion
[29] Assessing written submissions provided by both parties in this case was not an easy task, as many elements remain to be clarified before the file is ready to be heard on its merit. As such, it is my belief that there are many issues that deserve to be determined at trial, so that it would be obviously premature to decide, at this stage, whether the plaintiffs’ claim against Her Majesty the Queen has merit.
[30] It is also premature to decide, at this stage, whether the plaintiff’s claim is statute-barred by the narrow interpretation of sections 15 and 16 of the Act, as there are many contradictions in the evidence and the documents provided regarding the time limitation period.
[31] Finally, there is jurisprudence to the effect that the scope of the fiduciary duty of the applicant Her Majesty the Queen may warrant a broader interpretation than the one that was provided by counsel for the applicant. In my view, this question should be examined in greater details by the hearing judge.
[32] We have before us a situation where three children – as a result of the application of different sections of the Act, the passage of time, the marriage of their parents, and a decision by those parents to recognize them as their children when they were very young – have suffered a real financial prejudice. Even though many years have passed since those critical decisions were made on their behalf, I find that there is no reason, at this stage, to grant this application for summary judgment.
[33] This application for summary judgment is therefore dismissed with costs.
ORDER
THIS COURT ORDERS
- This application for summary judgment is dismissed;
- With costs in favour of the plaintiffs (respondents).
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1261-01
STYLE OF CAUSE:
DELVIN STEWART POTSKIN, KEVIN ALBERT LAWRENCE POTSKIN and ROCHELLE MARIE POTSKIN
Plaintiffs
(Respondents)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Defendant
(Applicant)
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: OCTOBER 5, 2006
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
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Mr. Terence P. Glancy
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FOR THE PLAINTIFFS |
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Mr. Kevin Kimmis
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SOLICITORS OF RECORD:
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Ackroyd Piasta Roth & Day LLP Edmonton, Alberta
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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