Summary Judgment and Limitation of Actions

Canada (Attorney General) v. Lameman, 2008 SCC 14, released yesterday, considered the application of limitation periods to aboriginal land claims.

 

While narrowly focused on the land claims issue the case has broader application for limitation defences in a summary judgment context.  The short lesson is that evidence to deal with the issue of discoverability must be put forward failing which an expired limitation period will be taken to bar a claim.

 

In 1877, the Papaschase Indians were allotted a reserve in what is now southeast Edmonton.  In 1886, Chief Papaschase and other members of his Band surrendered their treaty rights and rights connected with the Reserve in exchange for a cash payment.  Three men and their families, found to be the remaining members of the Band, entered into an agreement with the government in 1889 to surrender their interest in the Reserve with a view to its sale or lease, on the condition that the proceeds be held in trust and paid to Band members and their descendants.  In 2001, the plaintiffs, claiming to be descendants of Chief Papaschase and other Papaschase Band members, commenced an action against the Crown for breach of fiduciary duty, fraudulent and malicious behaviour, and treaty breach.  The Crown applied for summary dismissal of the claims.  The chambers judge granted the application.  He found that (1) most of the claims in the action failed to show a genuine issue for trial; (2) the plaintiffs did not have standing to bring the action; and (3) the claims were barred by the Alberta Limitation of Actions Act, with the exception of the claim for an accounting of any proceeds of sale of the Reserve the Crown might still have in its possession.  The Court of Appeal set aside the decision, holding that all or most of the issues raised were genuine, triable issues, including the standing and limitations issues.  The Supreme Court allowed the appeal and restored the decision of the chambers judge.

 

The Court held that a defendant who seeks summary dismissal must prove that there is "no genuine issue of material fact requiring trial".  In this case, there is no "genuine issue" for trial.  Assuming that the claims disclosed triable issues and that standing could be established, the claims, except the claim for an accounting, are barred by the Limitation of Actions Act.  The claim relating to the accounting of any proceeds received from the sale of the Reserve is a continuing claim and not caught by the Act.  The evidence filed by the government established that the causes of action now raised would have been clear in the 1970s to the plaintiffs, exercising due diligence.  The plaintiffs filed no material in response to this evidence.  The only available inference on the state of the evidence is that the causes of action became discoverable within the meaning of the Limitation of Actions Act in the 1970s and that the claims are now statute-barred.  Accordingly, the plaintiffs' action should be dismissed, with the exception of the claim for an accounting, provided that the Crown is still in possession of the funds received from the sale of the reserve lands and that a plaintiff demonstrate that he or she has standing to bring this claim.

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

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