May 15, 2017

Case Brief: Kelly v. Canada (Attorney General), 2013 ONSC 1220

Kelly v. Canada (Attorney General), 2013 ONSC 1220 (CanLII)

Facts: Aboriginal plaintiffs’ issued proposed representative action to enforce an Aboriginal treaty right. Claim alleged breach of treaty and breach of fiduciary duty. Three motions advanced but only two are significant: (1) plaintiffs’ motion under R. 12.08 to bring action as a representation action for all treaty beneficiaries, and (2) Crown’s motion under R. 21 to dismiss action as untenable and non-justiciable.

Issue: Whether Aboriginal plaintiffs’ or Crown’s motions should be granted.

Holding: Crown’s motion granted without prejudice to plaintiffs’ re-commencing a properly fashioned action for the breach of treaty.

Reasoning: Perell J: The interpretation of a treaty and the determination of whether a treaty has been breached are justiciable issues. But, because a treaty involves communal treaty rights and because the Court’s decision will bind all the rights holders, it is necessary all the persons affected by the decision be before the court. The rights holders are necessary parties to the action because there is no opting-out as in class actions. If the rights holders are part of an unincorporated association then the rights holders can only sue if the court authorizes a representation action.


Representation Actions: The preferable way to adjudicate Aboriginal rights claims is in civil proceedings where all proper and necessary parties are before the court. This is because judicial rulings as to the existence and nature of Aboriginal rights bind the rights-holding Aboriginal collective. It is important to observe the conditions of a common law representation action parallel or replicate the conditions for certification of a class action under the Class Proceedings Act, 1992.
Justiciability: A justiciable issue is a question appropriate for judicial determination which must have a sufficient legal component and not draw the court into a purely political controversy involving the legislative as opposed to the adjudicative process.


Representation Actions: This was the paramount matter to be decided. Action was brought on behalf of individual treaty beneficiaries but the Crown disagreed these individuals were the proper rights holder. Where there is disagreement who is the rights holder, in order to have the proper parties before the court, the plaintiffs’ could have brought a representation action (1) with the authorization of all affected reserve bands or (2) joined as party defendants any band that does not authorize the representation action. Importantly, the necessity of a representation order depends on whether the holder of the right has the capacity to sue or be sued. If the holder has this capacity then a representation order is not necessary (e.g. Indian bands). Where the holder does not have this capacity, then a representation order is necessary. The fact this disagreement arose meant the action as constituted was procedurally unsound. The plaintiffs’ motion failed because the necessary parties were not before the court.
Justiciability: The issues as framed by the plaintiffs’ did not have a sufficient legal component to warrant the court’s intervention and were essentially matters of political debate best left to the executive branch of government. The plaintiffs’ claim for breach of fiduciary duty as drafted was untenable, which is a secondary issue. More primary, however, is that the claim for breach of treaty as drafted was non-justiciable because (i) the claim was political and not juridical, and (ii) the claim was inquisitorial and the Crown was not told the legal case it must defend against.

Appeal to ONCA: 2014 ONCA 92, Perell J.’s order striking appellant’s statement of
claim and dismissing appellant’s action set aside.