The Ontario Court of Appeal allowed an appeal from a lower court decision striking out an action brought on behalf of the beneficiaries of Treaty 3 to enforce the “maintain schools” clause in the treaty. The chambers judge held that the claims were non-justiciable. Upon appeal, Canada conceded during argument that parts of the claim were justiciable and the appeal should be allowed. The Court of Appeal set aside the order of the chambers judge, without prejudice to Canada’s ability to bring a motion challenging specific portions of the pleadings. The Court of Appeal affirmed the order of the chambers judge that this action can continue a representative action on the condition that the plaintiffs are authorized by all 28 reserve bands, or that they join as party defendants those bands that do not authorize the action.

There are 28 reserve communities within Treaty 3 (26 in Ontario, and 2 in Manitoba). One clause of Treaty 3 provided that Her Majesty agreed to “maintain schools for instruction” in the reserves. The plaintiffs in this action allege that this provision imposed a duty on Canada to provide educational services, and that Canada has breached this provision. They seek a wide array of declaratory relief against Canada, equitable damages of $100 million, and an order that Canada report to the Court on a monthly basis on the steps that it is taking to remedy the Treaty breach.

In February 2013, Mr. Justice Perell of the Ontario Superior Court of Justice allowed an application by Canada to strike the pleadings and dismiss the action: 2013 ONSC 1220. This decision was summarized in our e-Newsletter of 27 March 2013. The Court held that the issues raised in the action did not have a sufficient legal component, and essentially involved political questions about the allocation of funds for education that are best left to the executive branch of government. The Court also held that the action was not properly constituted as there was uncertainty as to who was the proper rights holder for Treaty 3, and whether the plaintiffs had been properly authorized to bring this action on behalf of the rights holder. The order dismissing the action was made without prejudice to the plaintiffs bringing a “properly constituted and justiciable action” for a breach of Treaty 3.

At the outset of oral argument during the appeal, Canada conceded that key parts of the appellants’ claim are justiciable and the appeal should therefore be allowed. In particular, Canada conceded that the following parts of the appellants’ claim are justiciable:

  • a declaration that Treaty 3 imposes on Canada a duty to provide education services to the beneficiaries of Treaty 3 on their reserves that are commensurate with those made available to the Canadian population generally;
  • a claim that Treaty 3 has been breached; and,
  • a claim that Canada is obliged to remedy its alleged treaty breach.

Due to this concession by Canada, the Court of Appeal set aside the order of Perell J. striking the statement of claim and dismissing the action, without prejudice to Canada’s right to apply to challenge particular parts of the statement of claim.

The Court of Appeal rejected the argument of Canada that the appellants’ statement of claim should be struck, with leave to file an amended pleading. The Crown’s position has “shifted significantly” as it now acknowledges that parts of the claim raise justiciable issues. Canada failed to specifically identify those parts of the pleading that it alleges are non-justiciable. Accepting Canada’s current position would result in unfairness to the appellants, who are entitled to know the case they have to meet. These issues would be properly addressed in a Rule 21.01 motion by Canada challenging particular parts of the statement of claim. The Court of Appeal noted that the statement of claim would benefit from amendment.

In the decision below, Perell J. held that if the action were justiciable, authorization to bring a representative action would be granted subject to the fulfillment of certain conditions. He held that the action as currently constituted is “procedurally unsound”, and directed that the plaintiff obtain the authorization of all of the 28 reserve bands (by band council resolutions) or, if that is not possible, bring a representation action but join as a party defendant any band that does not authorize the action. The Court of Appeal held:

From the submissions made by Crown counsel, we are satisfied that whether the 28 bands or the larger collective that the appellants seek to represent are the correct parties in this extremely complex litigation remains a live issue. The motion judge’s solution is a practical one. We see no basis to interfere with the conditions that he imposed.

The appellants were therefore granted leave to continue this proceeding as a representative action on behalf of themselves and all Treaty 3 beneficiaries provided that: (1) they are authorized to do so by band council resolutions of all 28 reserve bands or (2) they join as party defendants those bands that do not authorize the representative action. The Court of Appeal also ordered that Grand Chief Warren White replace Grand Chief Diane Kelly as the plaintiff, and replace two other co-plaintiffs.

The Court of Appeal ordered that the appellants were entitled to their costs of this appeal on a partial indemnity basis, and set the amount at $40,000. The issue of costs for the motion below will be returned to Mr. Justice Perell.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law