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Category Archives: Aboriginal

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Grassy Narrows First Nation v. Ontario (Natural Resources) – SCC affirms Ontario’s taking up of treaty lands for resource development purposes

Posted in Aboriginal, Mining

The following Mining Prospects blog post by Sam Adkins and Stephanie Axmann may be of interest to our readers:

Grassy Narrows First Nation v. Ontario (Natural Resources) – SCC affirms Ontario’s taking up of treaty lands for resource development purposes

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When is a Quistclose trust not a Quistclose trust? When you call it a “debt”

Posted in Aboriginal, Bankruptcy and Debt, Case Comments, Contracts

In Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598, the Ontario Court of Appeal granted the appeal of an interim receiver, Pricewaterhousecoopers Inc., from a Superior Court of Justice decision where grant funds that were advanced by the respondent, Ontario’s Minister of Training Colleges and Universities (the “Ministry”), to a First Nations limited partnership in northern Ontario, but not spent before the partnership sought to dissolve and appoint the interim receiver, were held to be subject to a “Quistclose trust” for the benefit of the Ministry.

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What will Justice Nadon’s appointment bring to the Supreme Court?

Posted in Aboriginal, Administrative, Charter of Rights, Class Actions, Competition, Intellectual Property, Tax

Background

Earlier this week, the Prime Minister surprised many Supreme Court-watchers by nominating the Honourable Marc Nadon to replace Justice Fish at the Supreme Court of Canada. Given this recent appointment, the Canadian Appeals Monitor has taken a look at Nadon J.’s jurisprudential legacy to date and identified key cases which illustrate his judicial leanings, especially as it applies to Canadian businesses and professions. The Canadian Appeals Monitor has also looked at some of the cases that Nadon has argued to get better insights into what kind of judge he is likely to be in the Supreme Court. 

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Coulda, Shoulda? The SCC Expands the Abuse of Process Doctrine in Behn v. Moulton Contracting Ltd.

Posted in Aboriginal, Case Comments, Procedure

In Behn v. Moulton Contracting Ltd., 2013 SCC 26, the Supreme Court of Canada (the “Court”) expanded the doctrine of abuse of process to preclude parties which employed self-help remedies from raising as a defence various arguments which could and should have been advanced by commencing formal legal proceedings instead of taking self-help steps. Unlike in cases of res judicata, where similar principles arise, it was of no concern to the Court that there was no pre-existing litigation or proceeding in which the various legal arguments could have been advanced originally. In other words, the party was estopped from … Continue Reading

High Water Mark Test for Establishing Aboriginal Title to be Reviewed by the SCC

Posted in Aboriginal, Case Previews

The Supreme Court of Canada is set to revisit the test for Aboriginal title when it hears an appeal from the British Columbia Court of Appeal’s decision in William v. British Columbia this November. This appeal will be of particular significance to parties engaged in resource development, as it stands to affect the strength of claims to Aboriginal title over traditional territory, as well as claims to the right to fish and hunt in a given area. The trial judgment and the Court of Appeal took a restrictive view of the test for establishing Aboriginal title where proof of such … Continue Reading

A Duty of Diligent Fulfillment? SCC Rules that Land Grants to Métis Children Breached Honour of Crown

Posted in Aboriginal, Case Comments

Canada breached the Honour of the Crown in the manner in which it distributed parcels of land to the children of the Métis people of Manitoba in the 1870s, according to a majority of the Supreme Court of Canada. The Court’s 6-2 decision in Manitoba Métis Federation Inc. v. Canada (Attorney General) has the potential to spur major negotiations between Canada and the Métis people over vast tracts of land in Manitoba, including what now comprises modern-day Winnipeg. The decision may also have more wide-ranging implications for federal and provincial governments in their dealings with Aboriginal peoples.

Background

Section 31 … Continue Reading

This Week at the SCC (14/12/2012)

Posted in Aboriginal, Communications, Conflict of Laws, Health, Intellectual Property, Labour and Employment, Media, Professions, Regulatory, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based ”value for signal” regime.  The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit

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This Week at the SCC (07/12/2012)

Posted in Aboriginal, Bankruptcy and Debt, Corporate Law, Environmental, Labour and Employment, Securities, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, the majority of the Court held that environmental protection orders issued under provincial legislation, which required an insolvent company to undertake remediation measures but which were not expressed in monetary terms, nonetheless amounted to “claims” under the Companies’ Creditors Arrangement Act (“CCAA“) that could be stayed and subject to a claims procedure order in the context of CCAA proceedings.  The Court observed that not all environmental protection orders will … Continue Reading

Hot Off the Press – World Class Actions: A Guide to Group and Representative Actions Around the Globe

Posted in Aboriginal, Class Actions, Communications, Construction and Real Estate, Energy, Financial Services, Franchise and Distribution, Health, Insurance, Media, Municipal, Procedure, Professions, Securities, Transportation

In the newly published World Class Actions: A Guide to Group and Representative Actions Around the Globe, McCarthy Tétrault litigators David Hamer and Shane D’Souza co-authored the “Multijurisdictional and Transnational Class Litigation: Lawsuits Heard ‘Round the World” chapter. The chapter offers guidance to international lawyers who represent clients involved in cross-border, multinational and international class actions.

World Class Actions is a practical guide for lawyers, clients, legal support professionals, academics, policymakers and judges on the procedures available for class, group and representative actions internationally. Each chapter is written by a local attorney familiar with the laws, best practices, legal … Continue Reading

Aboriginal Rights – Whose rights are they anyways?

Posted in Aboriginal, Case Previews

The Supreme Court of Canada recently granted leave to appeal from the judgment of the BC Court of Appeal in Sally Behn et al. v. Moulton Contracting Ltd. et al.. This appeal addresses a critical issue in aboriginal law – do aboriginal rights belong to individuals, or only to communities? Aboriginal communities and commercial interests alike will closely watch this appeal.

Background

The Behns are individual members of the Fort Nelson First Nation (the “First Nation”) who allegedly blocked a road required by Moulton Contracting Ltd (“Moulton”) to engage in logging activity. The Behns’ defence alleged that (i) Moulton … Continue Reading

When is it “Not Reasonable” to Deny the Cross-Examination of an Expert?

Posted in Aboriginal, Case Comments, Labour and Employment

Background

Cross-examining experts is the primary way in which competing expert opinions are tested in the adversarial process.

The Alberta Court of Appeal in its recent decision in Johnson v. Alberta (Appeals Commission for Alberta Workers’ Compensation) recently determined that a decision not to allow a cross-examination may not be reasonable, in particular where without a cross-examination it may be difficult to resolve a difference of opinion between competing experts in a “fair, justified and transparent manner.”

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FCA to Review Discretion to Decline Band Members Retroactive Tax Relief

Posted in Aboriginal, Administrative, Case Previews, Tax

On September 1, the Attorney General of Canada appealed the finding of the Federal Court in Abraham v. Canada, that the Minister of National Revenue had erred in denying members of the Sagkeeng Band tax relief on wages earned while working in a mill located on former reserve lands.

The Band members had contended that relief was due because of the surrounding circumstances surrounding the sale of the reserve land. In 1926, the Band received an offer to sell part of their Reserve land for the purposes of building a mill. The Band initially rejected the offer, saying that … Continue Reading