May 15, 2017

Case Brief: Behn v. Moulton Contracting Ltd., 2013 SCC 26

Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII)

Facts: This appeal concerns issues of standing and abuse of process. The Crown granted to the respondent harvest timber licenses. Neither the Aboriginal appellants, a group of individual members who did not represent the affected Aboriginal community, nor the Aboriginal community itself, attempted to legally challenge the Crown’s grant of these licenses to the respondent. This group of individual members (i.e. the Aboriginal appellants) responded by blockading access to the logging sites. The respondents sued the Aboriginal appellants in tort. Aboriginal appellants argued in defence the licenses were issued in violation of the duty to consult and treaty rights.

Issue: Whether this group of individual members who do not represent the Aboriginal community can raise breach of duty to consult and treaty rights in defence to a tort action, a question of standing, and whether the doctrine of abuse of process applies.

Holding: Appeal dismissed.

Reasoning: Lebel J. (for the Court): The Aboriginal appellants do not have standing to raise breach of duty to consult and treaty rights. These rights are collective in nature and require the authorization of the collective if they are to be asserted by individuals or organizations. In this case, the Aboriginal appellants had no such authorization. More so, raising these defences at this time amounts to an abuse of process. The grant of these licenses should have been contested when the Crown issued them to the respondent, which was an opportunity available to the Aboriginal appellants and the community. The court declines to decide the Aboriginal appellants standing to assert a breach of treaty rights to hunt and trap because the abuse of process issue is determinative.

Rule:

Standing: The duty to consult exists to protect the collective rights of Aboriginal peoples, and it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature, an important requirement being that good faith is shown by both the Crown and the Aboriginal people in question.

Abuse of Process: The doctrine of abuse of process is characterized by its flexibility, and it is unencumbered by specific requirements, and it exists to ensure that the administration of justice is not brought into disrepute.

Application:

Standing: The duty to consult is owed to the Aboriginal group that holds the s. 35 rights but an Aboriginal group can authorize an individual or organization to represent it for the purpose of asserting its s. 35 rights. In this case, the Aboriginal appellants were not authorized meaning they had no standing to assert a breach of the duty to consult. The court will not recognize an implicit authorization nor will it assume such authorization exists by simple association of the Aboriginal appellants to the community. Such authorization must exist in evidence and in the pleadings.

Abuse of Process: The doctrine of abuse of process applies. The Aboriginal appellants should have legally challenged the granting of the harvest timber licenses when they were issued because the Crown had the power to suspend the licenses at that time. The subsequent blockade forced the respondents to forego harvesting timber and incur substantial cost. To allow these defences at this time would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations. The Aboriginal appellants cannot raise a breach of the duty to consult and treaty rights as a defence.

Dissenting Opinion(s) Reasoning: None.