Manitoba Metis
Federation’s case has
been in court since 1981
DEANA DRIVER REGINA
The Manitoba Metis Federation is seeking leave to the
Supreme Court of Canada to
appeal a recent appeal court ruling that Canada did not breach
the fiduciary obligation it owed to
the Metis of Manitoba in distributing land in the 1800s.
The Metis Federation’s case
has been in court since 1981. The
Crown brought a motion to dismiss the case in 1987 and they
succeeded in the Manitoba Court
of Appeal, but the Supreme Court
of Canada unanimously reversed
the appeal court, allowing the
case to proceed.
Under s. 31 of the Manitoba
Act 1870, a grant of 1.4 million
acres was made in the new prov-
ince “towards the extinguishment
of the Indian Title for the benefit
of the families of the half-breed
residents,” to be selected and div-
ided among their children by the
Lieutenant Governor according to
regulations. Section 32 of the Act
was intended to assure the settlers
recognition of their existing prop-
erty rights. The Metis Federation
argued that grants under s. 31
should have been made promptly,
grouped according to family; all
children should have received
grants upon attaining majority
and their land should have been
protected from speculators. The
Metis Federation also said there
was great delay under s. 32 and
Canada failed to implement the
section in a “liberal manner.”
Finally, they claimed that Mani-
toba passed unconstitutional
legislation which exacerbated the
breach of fiduciary duty.
Going to court will be the last
resort under proposed new family-law
legislation in B.C.
The province is in the process of
fine tuning reforms to the Family
Relations Act for the first time in more
than 30 years and public input is
being sought.
The new proposals will promote a
broader range of non-court dispute
resolution options and adopt a con-
flict prevention approach to family
law disputes.
The aim is to help the partici-
pants “resolve disputes co-opera-
tively where appropriate, with
courts being a valued, but last
resort,” B.C. Attorney General
Michael de Jong said.
Individuals and groups have until
Oct. 8 to post their final comments
on the new proposals and the minis-
try promises that all feedback will be
considered in finalizing the new Act.
NS courts not safe
CONTENTS
NEWS
AN AWARD for a Charter breach
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SHORTENED TRADE-MARK
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A COURT scheduling software
developer has sued Ontario’s
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Pensions & Benefits
PENSIONERS LOBBY for greater
involvement in plan governance.. 15
A METIS group has lost its
fiduciary duty appeal ....................2
HOW TO manage pension benefits
on employment termination ....... 16
PROVINCIAL LABOUR standards
oust a collective agreement, says
the Supreme Court of Canada...... 3
PENSION INVESTMENT reform
leaves share limit intact ............. 17
guished, that is the basis of fiduciary obligation.” The Metis Federation will argue that this was an
unconstitutional breach of fiduciary obligation and therefore it’s not
barred by limitation.
The Metis Federation will also
argue that the Court of Appeal
imposed an undue onus of proof
on the Metis. “They required us to
prove deliberate ineptitude. Put-
ting it that way is a mistake in law.”
The Court of Appeal’s judgment
is important for Metis in Manitoba
and elsewhere in Canada, said Ber-
ger. “Though they said in this case
there wasn’t a fiduciary duty, they
did say there is a fiduciary relation-
ship between the Crown and the
Metis and I don’t think that has
been said quite so plainly before.
That is of significance in all the
western provinces and Ontario.”
Paul Anderson, counsel for the
Attorney General of Canada, told
The Lawyers Weekly the appeal
court ruling was both what he had
hoped for and expected. Regarding
the application of limitations, “the
court has done that already in the
aboriginal context in Wewaykum
and in Ermineskin and Polchies.
The idea that fiduciary claims in
Aboriginal title can be barred is
not new and this is an application
of that principle.”
Heather Leonoff, counsel for
the Attorney General of Manitoba,
told The Lawyers Weekly the chal-
lenge against Manitoba was based
on statutes passed in the 1880s.
“The Court of Appeal chose to deal
with the matter solely on the basis
that the case was moot, meaning
that the statutes had been repealed
for decades. There was no legal
reason to deal with the constitu-
tionality of these statutes once they
are no longer on the books.” ;
BUSINESS & CAREERS
NEW DEAN transforms passion for
English into passion for law.......... 4
TEAM BUILDING: Law firms learn
benefits of teamwork................. 22
judge also found that there was no
fiduciary duty or obligation under
s. 32, and that the Crown had not
erred in its implementation of the
section. Manitoba’s legislative
initiatives, he held, were not
unconstitutional.
The Metis Federation’s appeal
was dismissed at the Manitoba
Court of Appel. In his reasons for
judgment, Chief Justice Richard
Scott said the appellants’ claim for
a declaration that the Crown
breached its fiduciary duty under
ss. 31 and 32 of the Act “is barred by
the combined operation of the lim-
itation period/laches/mootness…”
Chief Justice Scott went on to
state that “given the uniqueness
and importance of the issues raised
in this appeal, it is desirable to con-
sider whether the Crown owed a
fiduciary obligation to the Metis
and, if so, whether the appellants
succeeded in proving a breach of
the asserted fiduciary duty.” He
said a fiduciary relationship does
arise between the Crown and
aboriginals, and the Metis are
aboriginal but since the trial judge
did not err when he concluded that
the appellants failed to prove any
breach of duty, “it is unnecessary to
decide whether in the particular
circumstances the Crown did in
fact owe a fiduciary obligation to
the appellants.”
Tom Berger, counsel for the
Manitoba Metis Federation, told
The Lawyers Weekly his clients will
try to persuade the Supreme Court
of Canada that the “unique and
important issues” in the case
include the way in which the Court
of Appeal incorrectly interpreted s.
31. “Our position is when Parlia-
ment declares it is extinguishing
the Metis interest, the court has to
accept that and…read the statute
and not go behind it and read its
own intent of what the statute said.
If [the Metis interest] was extin-
Manitoba Metis Federation Inc. v. Canada
(Attorney General) et al, [2010] M.J. No. 219.
Corrections
OPINION
ASSOCIATE COMPENSATION
meets the merit system............. 23
The story in the July 16 edition, “Special advocates predict no more
security certificates”, should not have included a criticism of government
counsel acting in the Hassan Almrei security certificate case in Federal
Court. In fact, presiding Justice Richard Mosley praised the “diligence,
thoughtfulness, courtesy and good humour” of all counsel who took part
in the proceedings. The Lawyers Weekly regrets the error.
Chalk up another win for the Nova
Scotia Crown Attorneys’ Association.
In the wake of an official complaint
about courtroom safety, made under
the Occupational Health and Safety
Act, the Justice Department and the
Public Prosecution Service have been
ordered to take action. Specifically,
they must prepare violence preven-
tion plans and risk assessments for
four courts in Halifax. As well, the
justice department has to examine
the layout of its courtrooms with a
safety lens, and the prosecution ser-
vice must develop a workplace vio-
lence prevention statement and a
mandatory training program for staff.
Both groups have until Aug. 6 to
comply — a deadline that is unlikely
to be met, the justice department
has been quoted as saying.
This first round of safety enhance-
ments may not be the last. Rick
Woodburn, a senior Crown prosecutor
in Halifax and president of the Crown
Attorneys’ Association, earlier told The
Lawyers Weekly that Halifax was a
test case for the rest of the province.
KAREN SELICK............................ 5
ADAM DODEK............................. 5
MANY LAWYERS delaying
retirement these days................ 23
Tax law professor
creates Tax Wiki
FOCUS
FEELING DOWN? Start with a
mission statement ..................... 25
Intellectual Property
WHY THE new copyright bill
disturbs the rights balance
between creators and users ........ 9
TIPS ON pumping up your referral
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The story in the July 16 edition, “Special advocates predict no more
security certificates” misquoted a comment by Toronto lawyer Paul
Copeland about government counsel acting in the Hassan Almrei secu-
rity certificate case. The Lawyers Weekly regrets the error.
A CONNECTICUT Yankee in
Montreal: Mark Twain’s copyright
adventures ................................. 10
COPYRIGHT AND the great
socialist degradation .................. 11
DEPARTMENTS
A UNIVERSITY must pay a
researcher a portion of the revenue
from his invention....................... 11
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
CONTROVERSY SURROUNDS
the modernization of the Trade-
marks Act............................... 12
Announcements. . . . . . . . . . . 25
Careers . . . . . . . . . . . . . . . . . 23
Classified Ads . . . . . . . . . . . . 21
Lawddities. . . . . . . . . . . . . . . 13
Legal Briefs. . . . . . . . . . . . . . .2
Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 18
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ESTABLISHED 1887
A law professor has launched an
experimental Wiki he hopes will pro-
vide an unofficial but publicly benefi-
cial forum on the current views of the
Canada Revenue Agency (CRA) and
income-tax law.
Ben Alarie came up with the idea
for taxwiki.ca after finding it “odd”
that the federal Auditor General rec-
ommended that the CRA flag obso-
lete interpretation bulletins rather
than update them.
“It is equally odd that the CRA’s
[response was] to consider eliminat-
ing” them entirely, he stated on the
faculty blog of the University of
Toronto law school.
Alarie said the bulletins are “an
important source of tax information
for taxpayers and their advisers.”
