The Federal Court of Appeal dismissed an appeal by Canada relating to whether a class proceeding brought by representatives of the TK’emlups Te Secwepemc Indian Band (Kamloops) and the Sechelt Indian Band should be stayed. Canada alleged that the Federal Court lacked jurisdiction because third party claims against religious organizations, that it intended to file, were not within the Court’s jurisdiction.

The underlying class proceeding involves a claim for compensation from Canada for intentionally causing Indian day students attending Indian residential schools to lose their identity. The period under review ranges from 1920 to 1979. Canada intended to seek contribution and indemnity from religious organizations that ran the schools. The Federal Court judge allowed the plaintiff Bands to amend their statement of claim to make clear that no compensation was being sought from Canada with respect to any fault attributable to the religious organizations. In December 2013, Mr. Justice Harrington allowed an application by the religious organizations to strike out third party claims filed by Canada on the basis that there was no cause of action: 2013 FC 1213. This decision was summarized in our e-Newsletter of 26 February 2014.

Harrington J. had also denied a motion brought by Canada to stay this proceeding. He held that the intended third party claim against the religious organizations satisfied the three-part test in ITO-Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752 as falling within the jurisdiction of the Federal Court. Harrington J. referred to the Indian Act and the sui generis relationship between the Crown and Aboriginal peoples. He also drew an analogy with Canadian maritime law to find that the claims fell within federal common law.

The Federal Court of Appeal held that the subsequent order in December 2013 to strike out the third party claims made this appeal moot. However, the Court held that it was appropriate to determine the issue in case the order in 2013 FC 1213 was reversed on appeal. The issue on appeal is whether the second and third party of the ITO test are met. Noël J.A. commented:

It is important to understand from the onset that what is in issue in the main action is Canada’s residential schools policy and not abuses that may have occurred in the course of its implementation (compare Blackwater v. Plint, 2005 SCC 58). According to the statement of claim, the intent of this policy was to educate Indian day students in a manner which caused them to lose their language and culture. This is the alleged wrong with respect to which compensation is sought.

The responsibility of the Crown for the education of Indians under the Indian Act and federal common law relating to Aboriginal rights is at the core of the main action. The “heightened duty which is cast on the Crown in its dealing with Aboriginal peoples will be central to these proceedings”. The Indian Act will also be at the core of the proceeding, as section 114 makes Canada responsible for the education of Indian day students. The Court of Appeal distinguished cases like Stoney Band v. Canada, 2005 FCA 220 in which it was held that third party claims relating to unauthorized harvesting of timber, which were pure matters of trespass and conversion, had no connection with federal law.

The Court of Appeal therefore held that the proposed third party claims against the religious organizations are governed by federal law, and any recourse to British Columbia legislation to apportion fault would be incidental. Harrington J. came to the right conclusion, although it may have been unnecessary for him to draw an analogy with maritime law.

The appeal was dismissed with costs.


Scott Kerwin


Aboriginal Law