Anderson et al. v. Manitoba et al., (2015) 326 Man.R.(2d) 1 (CA)

JudgeSteel, J.A.
CourtCourt of Appeal (Manitoba)
Case DateJune 04, 2015
JurisdictionManitoba
Citations(2015), 326 Man.R.(2d) 1 (CA);2015 MBCA 123

Anderson v. Man. (2015), 326 Man.R.(2d) 1 (CA);

      664 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MR.025

Clifford J. Anderson, Kurvis Anderson, Bertha Travers, Priscilla Anderson, Lillian Traverse, Mathew Traverse, Melloney Francois, Mary Stagg, Norman Stagg, Dauphin River Fisheries Company Ltd. (plaintiffs/appellants) v. The Government of Manitoba, The Attorney General for Canada and The Manitoba Association of Native Firefighters Inc. (defendants/respondents) and Dauphin River First Nation, Lake St. Martin First Nation, Little Saskatchewan First Nation and Pinaymootang First Nation (third parties)

(AI 15-30-08332; 2015 MBCA 123)

Indexed As: Anderson et al. v. Manitoba et al.

Manitoba Court of Appeal

Steel, J.A.

December 31, 2015.

Summary:

In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg. Some of this land included reserves belonging to Pinaymootang First Nation, Little Saskatchewan First Nation, Lake St. Martin First Nation, and Dauphin River First Nation. The plaintiffs were all members of one of the four First Nations. The plaintiffs asked the court to certify a class action against the Government of Manitoba (Manitoba), the Attorney General for Canada (Canada) and the Manitoba Association of Native Firefighters Inc. (MANFF). The action alleged that the flood in the area of the four First Nation reserves was caused by Manitoba while exercising its water control functions during the spring and summer of 2011, and that all three defendants failed to adequately provide evacuation and post-flood care to the plaintiffs. The plaintiffs claimed compensation for all personal losses which the flooding and evacuation had caused them.

The Manitoba Court of Queen's Bench, in a decision reported at 312 Man.R.(2d) 259, dismissed the application. The plaintiffs applied for leave to appeal.

The Manitoba Court of Appeal, per Steel, J.A., dismissed the plaintiffs' motion for leave to appeal with respect to Canada and MANFF. With respect to Manitoba, the court granted leave to the plaintiffs on the following questions of law: (1) did the certification judge apply the correct legal test to the question of common issue with respect to nuisance; and (2) if he did so err, did that impact his decision on the question of preferability?

Crown - Topic 1564

Torts by and against Crown - Negligence by Crown - Flooding - In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg, including reserves belonging to four First Nations - The plaintiffs were all members of one of the four First Nations - The plaintiffs asked the court to certify a class action against the Government of Manitoba, the Attorney General for Canada, and the Manitoba Association of Native Firefighters Inc. - The action alleged, inter alia, that all three defendants failed to adequately provide evacuation to the plaintiffs - A certification judge dismissed the application - The certification judge held, inter alia, that there was no reasonable cause of action against Canada in negligence, as there was no legal duty on Canada to provide emergency disaster flood relief - The judge essentially considered Canada to be a volunteer - The Manitoba Court of Appeal, per Steel, J.A., denied leave to appeal on this issue - See paragraphs 41 to 44.

Equity - Topic 3602

Fiduciary or confidential relationships - General principles - Elements of a fiduciary relationship - In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg - Some of this land included reserves belonging to four First Nations - The plaintiffs were all members of one of the four First Nations - The plaintiffs asked the court to certify a class action against the Government of Manitoba, the Attorney General for Canada and the Manitoba Association of Native Firefighters Inc. - The certification judge dismissed the application - The judge held, inter alia, that a cause of action for breach of fiduciary duty had not been disclosed in the consolidated statement of claim - The plaintiffs appealed - The Manitoba Court of Appeal, per Steel, J.A., stated, inter alia, that "Nowhere in the pleadings do the plaintiffs allege that Canada undertook to act in their best interests, nor do the pleadings allege that Canada had forsaken the interests of all others in favour of the plaintiffs' legal or substantial practical interests. Furthermore, and more to the point, the plaintiffs did not allege that Canada had any kind of discretionary power over them-that is, there is no allegation that Canada had any kind of exclusive control over their care, or where they lived, after evacuation. ... The plaintiffs have not established an arguable case that the certification judge erred in denying the claim for breach of fiduciary duty on the basis of an undertaking by Canada to care for the displaced reserve members." - See paragraphs 67 to 71.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Equity - Topic 3602 ].

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg - Some of this land included reserves belonging to four First Nations - The plaintiffs were all members of one of the four First Nations - The plaintiffs asked the court to certify a class action against the Government of Manitoba, the Attorney General for Canada and the Manitoba Association of Native Firefighters Inc. - The certification judge dismissed the application - The judge held, inter alia, that a cause of action for breach of fiduciary duty had not been disclosed in the consolidated statement of claim - The plaintiffs appealed - They argued, inter alia, that Canada's fiduciary duty arose in relation to the specific or cognizable Aboriginal interest in the reserve lands - They submitted that once the reserve lands were interfered with by Manitoba's actions such that the members of the reserve could not exercise their treaty rights to use and enjoy the land, the fiduciary duty which Canada owed to them to protect and preserve the reserve lands transformed into a fiduciary duty to care for them off reserve and provide for their accommodation and general care - The Manitoba Court of Appeal, per Steel, J.A., rejected the argument - The court stated that "All that has been alleged is that Canada stepped in to assist the reserve members who had been evacuated and, in that manner, took control of the post-evacuation care. Yet, Canada taking control of the situation does not equate with Canada taking discretionary control over the Indian land interest. Thus, it does not appear that the plaintiffs have established an arguable case that the certification judge erred in denying the claim for breach of fiduciary duty on the basis that Canada assumed discretionary control over the specific Aboriginal interest in the lands." - See paragraphs 55 to 66.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See Equity - Topic 3602 and second Equity - Topic 3607 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Class actions in Manitoba were governed by the Class Proceedings Act (CPA) - Section 4 set out the criteria for certification of a class proceeding - Section 7 of the CPA set out certain factors which, on their own, should not frustrate a certification application - The Manitoba Court of Appeal, per Steel, J.A., stated that "The certification of an action is an interlocutory, procedural step and does not predict the success of the final action; nevertheless, there must be some evidentiary basis upon which a judge can assess the criteria outlined in section 4 of the CPA." - See paragraphs 28 to 30.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg, including reserves belonging to four First Nations - The plaintiffs were all members of one of the four First Nations - The plaintiffs asked the court to certify a class action against the Government of Manitoba, the Attorney General for Canada and the Manitoba Association of Native Firefighters Inc. (MANFF) - The certification judge was not prepared to say that it was plain and obvious that there was no cause of action disclosed in the consolidated statement of claim against MANFF in negligence - However, the claims against MANFF were too individualistic to make a class proceeding a preferable proceeding - The plaintiffs applied for leave to appeal - The Manitoba Court of Appeal, per Steel, J.A., denied leave to appeal the decision regarding MANFF - Not only had the plaintiffs not raised a question of law, they also had not raised an arguable case of substance by contending that the certification judge incorrectly assessed the materiality of the importance of the different experiences of the plaintiffs - See paragraphs 32 to 39.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg, including reserves belonging to four First Nations - The plaintiffs were all members of one of the four First Nations - The plaintiffs asked the court to certify a class action against the Government of Manitoba (Manitoba), the Attorney General for Canada and the Manitoba Association of Native Firefighters Inc. - The action alleged that the flood in the area of the four First Nation reserves was caused by Manitoba while exercising its water control functions during the spring and summer of 2011, and that all three defendants failed to adequately provide evacuation and post-flood care to the plaintiffs - The plaintiffs claimed compensation for all personal losses which the flooding and evacuation had caused them - A certification judge dismissed the application - The plaintiffs sought leave to appeal, arguing, inter alia, that the certification judge erred in law in determining that there was no common issue respecting nuisance - The Manitoba Court of Appeal, per Steel, J.A., granted leave to appeal on the following questions of law: (1) did the certification judge apply the correct legal test to the question of common issue with respect to nuisance; and (2) if he did so err, did that impact his decision on the question of preferability - The court concluded that "there is an arguable case of substance that the certification judge erred in law when making his determination that there was no common issue with respect to causation. All of the plaintiffs' pleadings are predicated on the argument that the flooding was not a natural disaster, but rather that the flooding was artificial and caused by Manitoba. While each of the plaintiffs may have suffered a different degree and nature of damage, the decision as to whether the flooding on the reserve lands was a natural disaster or caused by the actions of Manitoba is a decision that must be accompanied by significant expert evidence. Furthermore, it may be that the certification judge's alleged error on this issue could have affected his determination on preferability. Finally, it is arguable that the certification judge erred in law with respect to his consideration of whether a class action in this case would meet the access to justice goals of such actions." - See paragraphs 71 to 109 and 111.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Evidence and proof - [See first Practice - Topic 209.3 ].

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The plaintiffs sought leave to appeal a decision of a certification judge refusing to certify a class action - The Manitoba Court of Appeal, per Steel, J.A., stated that "A leave application is not the place for this Court to consider alternate proposals. I am focussed only on whether there is an arguable case of importance that the certification judge erred on a question of law." - See paragraph 22.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The Manitoba Court of Appeal, per Steel, J.A., discussed the test for granting leave to appeal a certification decision - The court stated that "In Manitoba, leave is required to appeal an order certifying or refusing to certify a class proceeding." - The test had three parts, namely, "1) Whether the appeal raises a question of law; 2) Does the case warrant the attention of the full court, being a case of importance not just in the present case, but also in future cases; and 3) There must be an arguable case of substance." - The court stated that "... when considering whether there is an arguable case of substance in Manitoba, regard should be had to the fact that, if leave is denied in a situation where certification has been denied, the possibility of a class action is at an end, while the opposite is not true in a situation where certification has been granted." - See paragraphs 23 to 27.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - In 2011, a devastating flood occurred in parts of Manitoba, including the land around the waterway between Lake Manitoba into Lake Winnipeg - Some of this land included reserves belonging to four First Nations - The plaintiffs were all members of one of the four First Nations - The plaintiffs asked the court to certify a class action against the Government of Manitoba, the Attorney General for Canada and the Manitoba Association of Native Firefighters Inc. - The certification judge dismissed the application - The judge held, inter alia, that a cause of action for breach of fiduciary duty had not been disclosed in the consolidated statement of claim - The plaintiffs appealed - The Manitoba Court of Appeal, per Steel, J.A., found that the plaintiffs had attempted to recast one of their arguments regarding Canada's fiduciary duty - The court referred to Arenson v. Toronto (City), 2013 ONSC 5837, which stated that an appellate court would be reluctant to allow a recasting of the claim as part of a certification appeal, unless required by the interests of justice - Therefore, the court declined to consider this argument at this stage - See paragraphs 46 to 50.

Practice - Topic 8825.4

Appeals - General principles - Duty of appeal court from decision of motions judge on class action certification motion - [See third Practice - Topic 209.9 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Crown - Topic 1564 ].

Torts - Topic 8741

Duty of care - Particular relationships - Claims against rescuers or volunteers - General - [See Crown - Topic 1564 ].

Cases Noticed:

Meeking v. Cash Store Inc. et al. (2014), 306 Man.R.(2d) 261; 604 W.A.C. 261; 2014 MBCA 69, refd to. [para. 24].

Pelchat v. Manitoba Public Insurance Corp. et al., [2006] Man.R.(2d) Uned. 60; 2006 MBCA 90, refd to. [para. 24].

Soldier v. Canada (Attorney General) (2007), 225 Man.R.(2d) 101; 419 W.A.C. 101; 2007 MBCA 153, refd to. [para. 24].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 37].

Grant v. Canada (Attorney General), [2005] O.T.C. 771 (Sup. Ct.), dist. [para. 43].

Harder v. Manitoba Public Insurance Corp. et al. (2012), 284 Man.R.(2d) 254; 555 W.A.C. 284; 2012 MBCA 101, refd to. [para. 49].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 49].

Bernard v. Canada (Attorney General) et al., [2014] 1 S.C.R. 227; 453 N.R. 334; 2014 SCC 13, refd to. [para. 49].

R. v. Beaulieu (C.J.) (2015), 323 Man.R.(2d) 109; 657 W.A.C. 109; 2015 MBCA 90, refd to. [para. 49].

Arenson v. Toronto (City), [2013] O.A.C. Uned. 642; 2013 ONSC 5837 (Div. Ct.), refd to. [para. 50].

Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 53].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, consd. [para. 55].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, consd. [para. 55].

Grassy Narrows First Nation v. Ontario (Natural Resources) - see Keewatin et al. v. Ontario (Minister of Natural Resources) et al.

Keewatin et al. v. Ontario (Minister of Natural Resources) et al., [2014] 2 S.C.R. 447; 460 N.R. 67; 320 O.A.C. 102; 2014 SCC 48, consd. [para. 55].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 67].

Brown et al. v. Canada (Attorney General) (2014), 329 O.A.C. 140; 2014 ONSC 6967, refd to. (Div. Ct.), dist. [para. 67].

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 2012 ONCA 443, leave to appeal denied (2013), 452 N.R. 393 (S.C.C.), refd to. [para. 78].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 83].

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 2013 NSCA 143, refd to. [para. 90].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 92].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), leave to appeal denied (2005), 344 N.R. 192 (S.C.C.), refd to. [para. 94].

AIC Limited v. Fischer - see Fischer et al. v. IG Investment Management Ltd. et al.

Fischer et al. v. IG Investment Management Ltd. et al., [2013] 3 S.C.R. 949; 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 106].

Counsel:

M.J. Peerless and J.A. Troniak, for the appellants;

W.G. McFetridge and J.R. Koch, for the respondent, The Government of Manitoba;

C.D. Clark, for the respondent, The Attorney General of Canada;

A.W. Marshall and I.B. Scarth, for the respondent, The Manitoba Association of Native Firefighters Inc.;

M.T. Gerstein, on a watching brief for the third party, Pinaymootang First Nation.

This motion for leave to appeal was heard on June 4, 2015, by Steel, J.A., of the Manitoba Court of Appeal, who delivered the following decision on December 31, 2015.

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7 practice notes
  • Weremy v The Government of Manitoba,
    • Canada
    • Court of Appeal (Manitoba)
    • April 8, 2021
    ...to warrant the attention of the full court; and 3) whether there is an arguable case of substance (see Anderson et al v Manitoba et al, 2015 MBCA 123 at paras 23-27; see also Pisclevich et al v Government of Manitoba, 2018 MBCA 127 at para 11). If the issues raised on the proposed appeal, c......
  • Pisclevich et al v Government of Manitoba, 2018 MBCA 127
    • Canada
    • Court of Appeal (Manitoba)
    • November 29, 2018
    ...have also been the subject of a certification motion in Anderson v . Manitoba, 2014 MBQB 255 , [2014] M.J. No. 356 (QL), Dewar J.; 2015 MBCA 123, Steel J.A. (application for leave to appeal decision of certification judge refusing to certify a class action); 2017 MBCAof the negligence an......
  • Broadband Communications North Inc v I-Netlink Incorporated, 2018 MBCA 116
    • Canada
    • Court of Appeal (Manitoba)
    • November 1, 2018
    ...Corp et al, 2012 MBCA 101 at para 12, quoting Bates v Welcher, 2001 MBCA 33 at para 32; see also Anderson et al v Manitoba et al, 2015 MBCA 123 at para 49). This matter has been before the courts multiple times over the course of several years. The interests of justice would not be served b......
  • Anderson v. Manitoba, 2017 MBCA 14, Manitoba Court Of Appeal (Hamilton, Mainella And Pfuetzner JJ.A), 25 January 2017
    • Canada
    • Mondaq Canada
    • March 28, 2017
    ...to be decided. There would not be much saving in time or expense. In December 2015, the Manitoba Court of Appeal granted leave to appeal (2015 MBCA 123) on the following Did the certification judge apply the correct legal test to the question of common issue with respect to nuisance? If he ......
  • Request a trial to view additional results
6 cases
  • Weremy v The Government of Manitoba,
    • Canada
    • Court of Appeal (Manitoba)
    • April 8, 2021
    ...to warrant the attention of the full court; and 3) whether there is an arguable case of substance (see Anderson et al v Manitoba et al, 2015 MBCA 123 at paras 23-27; see also Pisclevich et al v Government of Manitoba, 2018 MBCA 127 at para 11). If the issues raised on the proposed appeal, c......
  • Pisclevich et al v Government of Manitoba, 2018 MBCA 127
    • Canada
    • Court of Appeal (Manitoba)
    • November 29, 2018
    ...have also been the subject of a certification motion in Anderson v . Manitoba, 2014 MBQB 255 , [2014] M.J. No. 356 (QL), Dewar J.; 2015 MBCA 123, Steel J.A. (application for leave to appeal decision of certification judge refusing to certify a class action); 2017 MBCAof the negligence an......
  • Broadband Communications North Inc v I-Netlink Incorporated, 2018 MBCA 116
    • Canada
    • Court of Appeal (Manitoba)
    • November 1, 2018
    ...Corp et al, 2012 MBCA 101 at para 12, quoting Bates v Welcher, 2001 MBCA 33 at para 32; see also Anderson et al v Manitoba et al, 2015 MBCA 123 at para 49). This matter has been before the courts multiple times over the course of several years. The interests of justice would not be served b......
  • Michel et al. v. Canada (Attorney General) et al., (2016) 485 Sask.R. 162 (CA)
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • September 23, 2015
    ...Indian Band's legal, quasi-property interest from invasion or destruction by third parties or the Crown itself. [ Anderson v Manitoba , 2015 MBCA 123, [2016] 5 WWR 103; emphasis in original] Rather, the fiduciary duty arises where "the degree or control exerted by the government over t......
  • Request a trial to view additional results
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