The Supreme Court of Canada has ruled that individual members of an Aboriginal group can’t use blockades or other “self-help” remedies when claiming a government breached its duty to consult, and in fact doing so amounted to “an abuse of process.”

In Behn v. Moulton Contracting Ltd., the SCC dismissed an appeal from individual band members of the Fort Nelson First Nation and endorsed the position taken by two lower B.C. courts.

Among the issues addressed by the SCC was whether it amounts to an abuse of process for Aboriginal individuals — in this case all with the last name Behn — to challenge the validity of government issued authorizations as a defence to a legal claim when they failed to take legal action to challenge the government’s authorization.

Writing for the court, Justice Louis LeBel noted:

In my opinion, the Behns’ acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued.

In the case, members of the Aboriginal community had set up a camp blockade in October 2006 to interfere with a logging operation within Treaty 8 territory. The blockade meant the logging company, Moulton Contracting, couldn’t get access to or cut the timber within the traditional territory of the Fort Nelson First Nation where the company was authorized to do so.

The Crown had granted licences to the logging company to harvest timber in two areas of the Fort Nelson territory.

The company brought a tort action against the members of the band (the Behns), who argued the licences were void because they had been issued in breach of the constitutional duty to consult and because violated their treaty rights.

For its part, the logging company filed a motion to strike those defences. The lower courts held that the individual members of the Aboriginal community did not have standing to assert collective rights in their defence — only the community could do so. The lower courts also concluded a challenge to the validity of the licences amounted to an abuse of process, as the members of the community had failed to challenge the validity of the licences when they were issued.

The abuse of process is a key factor in this case, says Thomas Isaac, who heads the national aboriginal law group at McCarthy Tétrault LLP in Vancouver.

“They shouldn’t have been attacking the private third party [Moulton],” says Isaac. “What the court said was if they had a problem with this, they should have gone after the Crown approval, per se. That’s not a surprise but we haven’t had a court to date expressing it that way. It adds further credence to the view the law is becoming reasonably clear in this area.”

Isaac says the decision is contrary to the perception that provincial governments try to convey that the law is uncertain in this area.

“It is another decision in which the court has said ‘we are unwilling to point the finger at private third parties in terms of remedies.’ Unless the private third party has dirty hands in this, you see the court really being reluctant to applying remedies against private third parties,” he says. “If First Nations have a problem with the permits they should be attacking the permits, not the permit holder.”

The decision states: “To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.”

It’s one bullet point buried deep in the Ontario budget but it could have big implications for the class action bar.

On page 290 of last week’s budget, under a section regarding consultations with the Ontario Securities Commission, it’s noted the government “plans to propose further changes to update the Securities Act.” That may include, “if needed, following current court cases that the government is monitoring closely, suspending the operation of the secondary market civil liability limitation period while leave to proceed is being sought.”

“My assumption is that it’s speaking to the Timminco case,” says Jeremy Devereux, a partner with Norton Rose Canada LLP, referring to Sharma v. Timminco Ltd., which denied a class action based on limitation period.

Devereux notes there are also three major cases going before the five-judge panel of the Court of Appeal.

“The government wants the public to know it’s an issue they’re aware of and state their position, which seems to be that if it turns out the limitation period does expire in three years, even though leave is being sought, it seems this government’s is saying they are going to change that.”

The cases include Silver v. Imax, Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celesetica Inc., and Green v. Canadian Imperial Bank of Commerce.

“It looks like they’re waiting to see what happens with the cases currently before the Court of Appeal,” he says. “If the Court of Appeal finds a way of saying that the limitation period does expire in three years — provided you’re actually seeking leave to appeal from the court — even if it hasn’t been granted yet, I presume the government would say there is no longer a problem, we won’t do anything.

“But if the Court of Appeal says no, the limitation period does expire within three years, if you have not obtained leave, the government will intervene and amend the legislation to make it clear the limitation period stops running while leave is being sought.”

If a plaintiff intended to commence a securities class action, once they served the materials for leave under the Securities Act, then it would have the effect of stopping the limitation period from running.

Devereux notes that Justice Katherine van Rensburg in Imax and Justice Paul Perell in Celestica both found a way to allow the cases to continue even though leave had not been granted within the three year period.

Last July, in Green v. CIBC, Justice George Strathy took a different position and refused to certify based on expiration of the limitation period. In his view of the law, he wasn’t able to allow the case to continue. However, he noted in his decision that if it had not been “time-barred” he “. . .would have granted leave to pursue the statutory cause of action, and would have certified this action as a class proceeding for that purpose.”

Other items noted in the budget regarding the OSC indicate there is interest in updating the Securities Act including:

• expanding the insider-trading and self-dealing provisions, including in relation to their application to investment funds
• updating disclosure requirements for the exchange traded funds to provide plain-language, concise and comparable disclosure to investors that is more consistent with requirements that apply to mutual funds
• updating early-warning reporting and related requirements for take-over bids to provide more transparency to regulators and the public.

If you’re a lawyer or judge who has Aboriginal law experience and looking for new challenges, this may be the job for  you.

After five years on the job, Daniel Ish, chief adjudicator of the Indian Residential Schools Adjudications Secretariat, is stepping down and a search has begun for his replacement.

A request for proposals was issued April 29 seeking individuals interested in applying for the chief adjudicator job that oversees the Independent Assessment Process, which makes decisions on individual claims of abuse related to the Indian residential schools system.

The chief adjudicator directs the work of the Indian Residential Schools Adjudications Secretariat, the administrative body that manages the IAP hearing process.

The chief adjudicator position became vacant earlier this year when Ish, announced he would step down once a replacement is found.

“We are very fortunate to have had someone as dedicated as Daniel to guide the IAP through its first five years,” says University of Toronto law dean Mayo Moran, chairwoman of the oversight committee that monitors the implementation of the IAP. “I have been struck by his deep commitment to protecting the integrity of the IAP so that former students receive a fair hearing in a safe and caring environment.”

There are over 100 adjudicators who hear the individual claims for abuse arising out of the Indian residential schools and the chief adjudicator oversees the independent assessment process. The total number of applications the secretariat received was 37,716, and it has resolved over half of them, with 17,303 (full stats available here) awaiting resolution.

Moran says the job requires “a complex mix of legal and adjudicative experience and good judgment.”

Occasionally the chief adjudicator also writes some decisions on review cases.

“There are also political and diplomatic skills required,” says Moran. “We were incredibly lucky — Dan Ish is absolutely wonderful and we’re all feeling a bit bereft that we’re losing him because it was wonderful to have someone with such a great mix of human skills and professional qualities during this really important first six years.”

The selection of a new chief adjudicator will be managed by the IAP oversight committee, which includes representatives of former Aboriginal students and their counsel, churches, and the federal government.

A selection committee will review applications, conduct interviews, and make a recommendation. The committee’s selection must be approved by the Supervising Courts of the Indian Residential Schools Settlement Agreement.

Applicants for the position must have a law degree with at least 15 years at the bar, experience as a member of the judiciary or in the adjudication of claims, and have significant knowledge of Canadian Aboriginal people and their history, culture and current issues. The mandatory and rated requirements for the position are outlined on MERX. The deadline is May 24.

The new chief adjudicator is expected to be in place by early this summer.

Update 3:45 pm: Clarify number of cases before and resolved by the secretariat.

Starbucks has named Gowling LaFleur Henderson LLP as the recipient of its International Excellence in Diversity Award for 2012 — the first Canadian firm to receive the award.

(l to r) Gowlings’ CEO Scott Jolliffe, Gowlings’ partner Susan Rosen, Michele Jenkins, director, managing corporate counsel of Starbucks Coffee Canada, Gowlings’ COO Sharon Mitchell and Gowlings’ managing partner Stephen Pike.

Presented by the coffee company’s law and corporate affairs department, the distinction recognizes Gowlings for its efforts to enhance diversity and promote inclusion — both within the firm and across the legal profession.

“In all categories, Gowlings consistently demonstrated a deep commitment to diversity,” said Lucy Lee Helm, Starbucks’ executive vice president, general counsel, and secretary in a statement. “In 2012, the firm’s percentage of women attorneys and partners was best in class among our international law firms. Their efforts are deeply impressive and demonstrate true leadership in enhancing diversity and creating critical opportunities for diverse legal professionals.”

Some of the categories Starbucks measured included:

• The number of diverse professionals from Gowlings who have worked on legal matters for Starbucks;
• The number of diverse professionals granted partnership status at Gowlings in recent years;
• The firm’s overall support for diversity initiatives and programs, both internally and externally;
• The existence of an organizational structure that reflects a strong commitment to diversity, including flexible work options and formal mentorship programs.

Gowlings represents Starbucks in numerous areas in all of its offices across Canada and in Moscow. Susan Rosen, the firm’s client team leader for Starbucks says the coffee giant requires Gowlings to engage a diverse roster of lawyers to work on its files.

“Starbucks recognizes that it takes a diverse team to effectively serve a diverse clientele, and they’re committed to upholding a culture where diversity is valued and respected. This extends not only to their own organization but to all of their external service providers worldwide, including law firms,” says Rosen.

Starbucks has conducted an annual diversity survey of its legal service providers around the world since 2009.

The results give Starbucks the ability to compare the diversity efforts of law firms. Previous award recipients include Morrison & Foerster LLP, Baker & McKenzie, and Littler Mendelson PC.

Sharon Mitchell, Gowlings’ chief operating officer says clients regularly ask about diversity within the firm’s ranks.

“Sometimes it’s in the context of an RFP; other times it’s just part of a client’s overall evaluation of our firm. We’re always happy to provide this information because we understand how critical diversity is to an organization’s success, and we feel the exact same way.”

Diversity is increasingly becoming a factor for companies when engaging external counsel, although Canadian firms well behind their American counterparts on this issue.

“Yes, we’re definitely seeing this more often. Increasingly, general counsel — especially in the U.S. — are asking us to provide some background into the diversity of our teams. Ultimately, they want law firms to reflect the diversity in their own organizations, and Gowlings is well positioned to do this,” says Mitchell.

Over the years, Gowlings has supported a range of diversity and social responsibility initiatives. It is a founding member of the Law Firm Diversity and Inclusion Network, and one of the original signatories to the Law Society of Upper Canada’s Justicia Project, aimed at retaining more women in legal private practice. The firm has since spearheaded the Justicia Project on behalf of the Law Society of Alberta and the Law Society of British Columbia.

The Canadian Corporate Counsel Association and the Rotman School of Management are teaming up to launch a certification program for Canadian in-house counsel that will in many ways mirrors an executive MBA.

CCCA chairman Grant Borbridge wants the CIC.C to become the ‘gold standard’ for hiring in-house counsel.

At it’s annual Spring Conference held in Toronto this week the CCCA announced the Certified In-House Counsel Canada program — referred to as a “business leadership program for in-house counsel.”

The CCCA has worked with the Rotman for the last year to develop the program, which is geared to new to mid-level in-house lawyers who ultimately want to become general counsel or a member of the executive team of a company. It is also being positioned as a program for those who are the only legal officers in their companies and want to grow their management/leadership skills and in-house lawyers who are specialists in large legal departments who want broader skills.

While in-house lawyers will be given first consideration, lawyers currently employed in law firms can also apply to the program, but all graduates must have three years of in-house experience to qualify for the designation.

“When we first started looking at this two years ago, we realized that while law school and continuing education programs do a fantastic job of teaching lawyers substantive law, what it doesn’t do is prepare you to be an in-house counsel,” said Grant Borbridge, chairman of the CCCA.

Often lawyers who go in-house have been working as associates directed by law firm partners and suddenly they find themselves in environments completely different from the law firm ecosystem.

“They may be surrounded suddenly by accountants, engineers, and finance people and law school doesn’t teach someone to be a business person and it doesn’t provide the necessary leadership skills,” he told Legal Feeds. “This is intended to fill that gap in learning.”

The CIC.C program is modeled after Rotman’s Institute of Corporate Director program. Borbridge said senior general counsel who are members of the CCCA’s Leader’s Forum reviewed the outline of the program and compared it to taking an executive MBA.

Successful completion of all three phases of the program will give graduates the designation of CIC.C.

Phase 1 of the curriculum:

• Module 1: Understanding and navigating the organizational dynamics (in-person component)
• Module 2: Practical/business application (online component)
• Module 3: Developing as a manager (in-person component)

Phase 2: (Prerequisite is three years in-house counsel experience)

• Module 4: The effective general counsel: from manager to leader (in-person component)

Phase 3: the CIC.C assessment, expected to be an oral exam based on case studies.

Participants can split the program and cost over two calendar/fiscal years and it is expected to take between 12 months and two years to complete.

The first module will take place in Toronto at Rotman at the University of Toronto Feb. 28 to Mar. 2, 2014 and the cost is $9,100. Applicants must complete an application form available on the CCCA's web site and have two references and a written expression of interest.

A pilot project will roll out this fall with senior-level general counsel who will take the program at a discounted rate to review it with the idea they will then recommended it to their staff.

It is expected the program will partner with additional Canadian universities across the country, with Calgary the first on the list as it is home to the second largest group of in-house counsel in the country.

While some in-house counsel have or are pursuing MBAs, Borbridge, who has an MBA, said the advantage of the CIC.C program is that it is more specifically targeted to the job of in-house counsel, can be done while working and costs less than an MBA.

He hopes one day the certification becomes so recognized in the in-house bar that it becomes the “gold standard” for hiring.

“It would make me smile if one day I see a job posting for an in-house counsel that says the CIC.C. designation is an asset,” says Borbridge.

Canadian in-house counsel feel they provide the most value to their organizations when managing or reducing risk but often feel they are weighed down by the daily grind, according to this year’s In-House Counsel Barometer Survey.

Jodi Shanoff, Fred Headon, Air Canada, and spoke on the panel about the Barometer Survey. (Photo: Jennifer Brown)

When it comes to how in-house counsel feels they provide value the majority of respondents (72 per cent) cited risk management, followed by helping achieve strategic and operating objectives (45 per cent) and providing strategic advice (43 per cent) as the key form of value their legal department provides their organization.

Created in conjunction with Vision Critical, the Canadian Corporate Counsel Association and Davies Ward Phillips & Vineberg LLP’s 2013 In-House Counsel Barometer Survey polled 236 members of the CCCA. The annual survey looks at current attitudes and options of Canadian in-house counsel.

“There’s also an aspect of mitigating costs and controlling costs for the employer as well,” said Jodi Shanoff of Vision Critical, who presented the research from report as part of a panel discussion at the CCCA’s 25th anniversary Spring Conference in Toronto today.

About one third of those surveyed believe their department has grown over the past year and the same number feel their staff will increase over the next three years. That is a distinct shift from views presented in 2008-09 when in-house were more pessimistic about future growth. The positive outlook is partially due to necessity, with half of the respondents reporting their legal department is not adequately staffed.

When it came to questions around alternative fee arrangements there was “muted enthusiasm” from those surveyed, and an admission that these models are not readily understood by in-house counsel across Canada. It seems in-house like the idea but don’t always understand them, said Allan Fineblit, CEO of the Law Society of Manitoba who spoke on the panel about the survey.

“There are a variety of models out there but we’ve traditionally as lawyers looked at hourly rates as the basis for billing — and criticism abounds — but there are models where retainer agreements build in a bonus systems where the firm gets to share in the success of the case. The feeling from those who employ them is that they are an opportunity for the firm to get some skin in the game and motivate the firm to be efficient,” said Fineblit.

And while the in-house bar has led the idea of focusing on value, the next challenge is looking internally, said Fred Headon, assistant general counsel with Air Canada who spoke on the panel.

“Clients feel they should be able to engage with us in the same way they engage with everyone else in their lives and that means they don’t necessarily want a five-page memo. That is going to be a challenge not only for law firms but us too,” he said.

“I see it within Air Canada where people’s interaction with their lawyers mirrors other interactions with others in their lives and that often involves a message of 140 characters. It’s going to be important that clients feel they are being properly served.”

The survey found there is no expectation in-house will be working with fewer primary law firms but one third said there would be more insourcing.

When it came to the adoption of legal project management techniques it seems project management has not taken hold. Just 23 per cent of legal departments use project management and only five per cent have hired a project manager or trained someone to be a legal project manager.

“It’s not at all widespread yet,” said Shanoff. “Of those who had experience the value is evident. It seems to be finding traction in larger companies but despite what we understand to be a fairly wide push in-house the uptake is still fairly limited.”

New topics introduced to the survey this year included alternative dispute resolution, however use of ADR methods is low across the board — 43 per cent said they had received no training in this area.

“In-house counsel in Canada who have used ADR have generally reported a positive experience but is quite limited and not getting much traction yet,” said Shanoff.

While a large majority of in-house counsel say they would recommend the in-house career path (93 per cent), however when asked about satisfaction with the position, there was a drop off to 53 per cent who said they are satisfied with their position as in-house counsel.

So what’s bringing in-house down?

• Daily operation work leaves little time for providing strategic value, according to 42 per cent of those who answered.
• 36 per cent say there are insufficient opportunities for promotion.
• 32 per cent say internal business units do not seek timely advice from the legal department.
• 40 per cent say securing approval for additional resources is a challenge.

A woman charged with impaired driving has been granted a new trial after the judge “usurped the role of the Crown.”

Amanda Lahouri was tried before Ontario Court Justice Bruno Cavion on number of drunk driving charges from June 2010.

The provincial court trial was a blended proceeding, with the Crown leading its evidence to establish the commission of the alleged offences, and with the Lahouri seeking to establish an alleged violation of her constitutional rights so as to potentially exclude the results of the analysis of her breath samples under ss. 8 and 24(2) of the Charter of Rights and Freedoms.

At the conclusion of the trial, Lahouri was acquitted of the impaired driving charge, but convicted of an “over-80” charge.

Referred to in the Superior Court judgment a “straight-forward case,” the trial involved questioning of four witnesses including police officers.

On June 12, 2010, Lahouri was found in her parked car by a tow truck driver in the early morning hours on the shoulder of a highway north of Toronto. When the tow truck driver’s efforts to get Lahouri’s attentions failed, he called 911. A police officer who arrived at the scene testified to the various indications of impairment he observed and arrested Lahouri at the roadside and demanded samples of her breath for analysis. A qualified breath technician later took two breath samples from her. A certificate from police established she had blood-alcohol concentrations of 180 and 160 mg of alcohol per 100 ml of blood at 2:06 a.m. and 2:30 a.m. on that day.

The trial judge questioned one of the police officers regarding what he did, saw, and heard, intervening “. . . frequently with questions of clarification.” On one occasion, he told the officer to “talk in English.” The judge examined the officer this way for what amounted to 17 pages of transcript.

Lahouri appealed her conviction on two grounds — first arguing the trial judge intervened to such an extent in the examination of witnesses that the appearance of fairness in the trial was compromised. Secondly, she argued the trial judge failed to provide legally adequate reasons for judgment in dismissing her Charter motion and in convicting her on the over-80 charge, by failing to reconcile the conflicting testimony of two police officers who testified as to her indicia of impairment.

In his review of the summary conviction on April 9, in R. v. Lahouri, Superior Court Justice Kenneth L. Campbell wrote:

“Based upon a full review of the transcript of the examination-in-chief of Cst. Humphries, it must be said that it was the trial judge, not the Crown, who conducted this examination. . . . Indeed, virtually every significant piece of evidence provided by the testimony of Cst. Humphries was elicited by the trial judge. There is no gainsaying the reality that the trial judge usurped the role of Crown counsel in the examination of Cst. Humphries.”

At various points during the course of the trial, defence counsel for Lahouri raised objections with the trial judge as to how he was unfairly intervening in the proceedings to the overall detriment of the appellant

In addition, Campbell wrote: “In short, the nature and frequency of the interventions of the trial judge compromised the necessary appearance of fairness in these trial proceedings, such that the conviction of the accused cannot stand. There must be a new trial.”

By usurping the role of the Crown, the “appearance of fairness” was compromised from two perspectives — that of the accused and of the Crown.

Lahouri’s conviction was set aside, and a new trial was ordered on that charge.

Despite the departure recently of 13 lawyers from its mining group in Canada, Dentons’ head in Canada says he doesn’t expect to see more lawyers looking to leave.

The new sign in Dentons’ Toronto office. (Photo: Dentons)

“We don’t anticipate further departures, but we developed as part of our strategic review and analysis of the opportunity the possibility of these kinds of changes,” says Chris Pinnington, Dentons’ Canada CEO. “Notwithstanding the departure of our colleagues in Toronto, we continue to have a very robust mining practice across our offices in Canada and marrying it with the depth of expertise in other regions we do continue to offer our clients a compelling proposition and afford potential recruits an interesting opportunity in building the new Dentons.”

Formed by the combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP, and international law firm SNR Denton, Dentons officially launched today. The firm now consists of 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the U.K.

Joe Andrew, global chairman with Dentons, tells Legal Feeds it’s not unusual for large combinations to losing lawyers, citing Hogan Lovells which lost hundreds of lawyers, DLA Piper, and Norton Rose, whereas Dentons is looking at a net gain.

“We have lost a couple of lawyers in Toronto and two in New York and a couple in Paris, but unlike all the other big combinations we have a net gain across the globe from our announcement date to the launch date,” says Andrew, noting there was a high percentage vote at FMC in favour of the combination.

“We think our lawyers understand the strategy of the firm, they’ve bought into the strategy of the firm and those who have had the opportunity to walk out the door anytime they want to aren’t doing so,” he adds

The Canadian office is also being approached by potential lateral recruits who even a few months ago would not have seen a difference between the former FMC and its competitors.

“I’ve been heavily involved in recruiting activities over the past few months and we have a new and very compelling proposition for partners who feel in the world of globalization and dynamic shifts in the legal market what we are doing offers an opportunity to get in at the beginning of a new global law firm,” says Pinnington.

While mergers can also result in some lawyers losing clients due to issues of conflicts or referral business, he doesn’t see it being a problem for Canadian lawyers of the firm.

“To date we have not seen any erosion of those sources of work or any other client erosion attributable to the combination. On the contrary, we have seen some incredible new matter and new client opportunities that would have been out of reach,” says Pinnington.

The first weekend after the merger was announced, Pinnington says the firm heard from the former general counsel of a client in the U.K. which FMC had been pursuing who was now at a different company. He indicated his company was looking to set up operations in Canada.

“They had noticed the news about the firm joining with Dentons, which led to an introduction and engagement to develop a relationship,” says Pinnington, saying it was a client in the infrastructure sector that was “on the horizon but just out of reach.

“It was a prospect we in Canada had a desire to engage with and the result is we have a new and very satisfied happy client.”

Andrews says general counsel of large companies are becoming the “foreign relations office” of large corporations and looking for broader representation. He points to research from the Acritas’ U.S. Law Firm Brand Index Report, a survey of purchasers of legal services, which shows general counsel of companies small to large are drawn to firms with global reach even if they don’t have global needs.

“It changes the brand of the firm and is perceived to be more contemporary and responsive to the needs because there are very few businesses in Canada and other countries that don’t have aspirations to sell in countries other than the ones they are in today,” he says.

Pinnington says he has been contacted by clients from the three legacy firms wanting to discuss ‘but for opportunities’ that previously would have been out of our reach either because of geographic footprint or sector or industry practice.

When it comes to the value proposition, Andrew says in many cases global firms can offer lower costs than national firms due to having a broader roster of talent.

“With the broader base and more people who know narrow technical areas you’re more likely to get what you want and quicker, which will be less expensive.”

The Ontario Court of Appeal says the province can “take up” land for mining and forestry without conducting separate consultation with the federal government.

On March 18, in Keewatin v. Ontario (Natural Resources) the Ontario Court of Appeal confirmed that in exercising its rights and powers as beneficial owner, Ontario is not subject to federal consent when taking up Crown land for resource projects.

However, it is obliged to ensure its actions on behalf of the Crown are consistent with the promises made by the Crown to First Nations, which is to ensure the duty to consult and s. 35 rights.

“I think it’s a good decision in the sense that it provides greater certainty to everyone, essentially — to resource developers, government and First Nations. I think it’s positive in that sense,” says Terri-Lee Oleniuk, a lawyer with Osler Hoskin & Harcourt LLP in Calgary.

Oleniuk called the judgment “persuasive and well reasonsed” and likely to broadly apply in other jurisdictions in cases involving interpretation of the Constitution and treaties. It is only binding in Ontario.

At the Ontario Court of Appeal, opponents from companies such as Goldcorp appeared as well as other First Nations from different treaty areas.

“Of interest to us were the Treaty 6 First Nations intervening and making submissions to the nature resources transfer agreements and how it might apply out here,” says Oleniuk.

At issue in Keewatin was whether Ontario had the right to take up the Keewatin lands and thereby limit treaty harvesting rights without first getting federal government approval.

In 2005, the Grassy Narrows First Nation commenced an action to set aside approvals Ontario had granted to Abitibi-Consolidated Inc. to carry out forestry operations in the Keewatin lands governed by Treaty 3. For various reasons, the trial judge found Ontario did not have the right to take up the Keewatin lands within the boundaries of Treaty 3 without receiving authorization from the federal government.

In its decision, the Ontario Court of Appeal noted the trial judge “made many errors” stating the original interpretation did not take into consideration that a two-step process involving consultation by both the province and the federal government is unnecessary, as the treaty right is protected.

. . . the trial judge’s interpretation produces a process that is unnecessary, complicated, awkward and likely unworkable. The two-step process is unnecessary to protect the Aboriginal Treaty harvesting right because when the Crown, through Ontario, takes up land, it must respect the Treaty right. When Ontario stepped into Canada’s shoes by virtue of the process of constitutional evolution, the legal standard that binds the Crown did not change and the Treaty right is fully protected. To require both levels of government to be engaged in a two-step process is, on its face, complicated and awkward. It is difficult to see how the process of consultation, which is required when the Treaty harvesting right is affected by taking up, would be improved by involving both levels of government.

The court also noted, “leaving meaningful constitutional space for the exercise of provincial jurisdiction . . . without federal control . . . fosters direct dialogue between the province and Treaty 3 First Nations. Such dialogue is key to achieving the goal of reconciliation.”

Canada’s top court has awarded the owner of a truck stop near Ottawa damages first handed down by the Ontario Municipal Board, reversing a decision of the Ontario Court of Appeal.

In Antrim Truck Centre Ltd v. Ontario (Transportation), in a unanimous decision delivered March 7, the Supreme Court of Canada reversed the Ontario Court of Appeal decision that denied the owner $393,000 in damages.

“The question of injurious affection damages in the face of works being carried out is a big issue so it’s nice to have the SCC come down and really give us further guidance on how we should be looking at these cases and how you balance the public interest versus a private interest,” says Melissa Winch, a lawyer with Cassels Brock & Blackwell LLP.

From 1978 to 2004, the Antrim Truck Stop operated on Hwy. 17 near Ottawa in the hamlet of Antrim. In 2004, the Ministry of Transportation opened a new section of Hwy. 417 and access to Antrim’s land was severely restricted, effectively putting owner Jack Cameron and his truck stop out of business at that location.

Antrim made a claim to the Ontario Municipal Board for injurious affection under the Expropriations Act. In Ontario, the Expropriations Act allows claims for “injurious affection” where a property owner suffers certain losses resulting from the construction of public works carried out under statutory authority. Where no land is taken, injurious affection means reduction in the market value of land and personal and business damages resulting from the construction, but not the use, of the works by the statutory authority.

The OMB found the new highway was enough of an interference for Cameron to be awarded injurious affection damages in the amount of $58,000 for business loss and $335,000 for loss in market value of the land. Cameron had originally sought $8.2 million.

The Divisional Court upheld the OMB’s decision, however the MTO appealed to the Court of Appeal, which found the OMB failed to consider two aspects in the reasonableness analysis: there must be “substantial interference” and it must be “unreasonable.”

The Court of Appeal also indicated the OMB failed to recognize the importance of the new highway in the public’s interest.

But the SCC allowed Antrim’s appeal and restored the decision of the OMB, saying the “reasonableness” of interference must be determined considering the competing interests of the parties but that the severity of the harm and utility of the public works project should not be equally weighed.

If that was the case, says Winch, a public project would almost always override “significant harm,” defeating the purpose of the Expropriations Act to compensate for injurious affection.

In the decision Justice Thomas Cromwell wrote:

The answer, as I see it, is that the reasonableness of the interference must be determined by balancing the competing interests, as it is in all other cases of private nuisance. The balance is appropriately struck by answering the question whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. Here, the interference with the appellant’s land caused by the construction of the new highway inflicted significant and permanent loss on the appellant; in the circumstances of this case, it was not unreasonable for the Board to conclude that an individual should not be expected to bear such a loss for the greater public good without compensation.

“It’s helpful to have the SCC say, ‘you have to look at how much is the burden on the private interest and is it quite a heavy burden they shouldn’t have to bear.’” says Winch. “I think in this case they struck the appropriate balance.”