Digests

Stoney Band v. Canada

A-64-04

2005 FCA 15, Rothstein J.A.

14/1/05

22 pp.

Appeal from F.C. order ((2004), 245 F.T.R. 288) allowing appeal from Prothonotary's decision dismissing action for delay and ordering that it continue as specially managed proceeding--Respondent (Stoney Band) plaintiff in action commenced in 1988 against Crown--When notice of status review issued April 22, 2003, no action taken to move action forward since 1991--Following written submissions filed by both parties, Prothonotary dismissing action--F.C. Judge exercising discretion de novo, concluding plaintiff's fault action did not move forward--Although Judge also concluded that in status review, fact defendant may have been lax, not fulfilled all procedural obligations, irrelevant, he nevertheless allowed appeal on basis Crown's conduct inconsistent with honour of Crown (principle affecting Crown-Aboriginal relationship)--That decision appealed--Honour of Crown, deriving from Crown's assertion of sovereignty in face of prior Aboriginal occupation, giving rise to different duties in different circumstances, including fiduciary duty--To date, principle not applied to ordinary litigation conduct of Crown--Difficult to identify fiduciary duty owed by Crown to adversary in conduct of litigation--Fiduciary duty re: surrender, disposition of reserve land not connoting trust relationship in conduct of litigation--Even where fiduciary relationship conceded, fiduciary entitled to rely on all defences available in course of litigation--Not inconsistent with honour of Crown for it to invoke procedural defences--Enforcement of equitable duties, remedies against Crown by Indian bands subject to usual equitable defences, including laches, acquiescence and statutory limitation periods--Honour of Crown not limiting discretion of Court on status review--Holding that in Aboriginal litigation against Crown, rules different and any discretion must be in best interests of Aboriginal plaintiff would fetter discretionary power of Court--Honour of Crown principle places obligations on Crown, not Court--Honour of Crown not relevant on status review--Test on status review set out in Baroud v. Canada (1998), 160 F.T.R. 91 (F.C.T.D.)--Court concerned with: (1) reasons why case not moved forward faster, whether reasons justify delay; (2) steps proposed to make matter move forward--Court exercising discretion de novo--Lengthy delay of 15 years requiring detailed explanation for delay in pursuing action--No such detail provided here--Band not demonstrating intention to proceed with action in serious matter--As for Crown's actions, Baroud providing that laxity in fulfilling procedural obligations by defendant largely irrelevant in status review--Although conduct that deceives, misleads, induces plaintiff not to proceed promptly always relevant, no evidence of such conduct in case at bar--Mere inaction, silence not amounting to inducement--Appeal allowed, action dismissed.