Anderson et al. v. Manitoba et al., 2014 MBQB 255

• Judge: Dewar, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 31, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBQB 255;(2014), 312 Man.R.(2d) 259 (QB)

Anderson v. Man. (2014), 312 Man.R.(2d) 259 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JA.026

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

(CI 12-01-77146; 2014 MBQB 255)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Dewar, J.

December 31, 2014.

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, 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.

The Manitoba Court of Queen's Bench dismissed the application.

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 (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 - The Manitoba Court of Queen's Bench agreed with Manitoba that it had no overarching duty to provide post-flood care - As harsh as it might seem, absent appropriate legislation, governments were not obliged to provide catastrophe assistance to its citizens - The government in times of natural disaster was a volunteer, or rescuer - In Manitoba, the government had provided for disaster relief through the Emergencies Measures Act of Manitoba (EMA) - The consolidated statement of claim (CSC) did not reference the EMA - There was no bad faith alleged in the consolidated statement of claim and therefore s. 18(1) of the EMA provided protection to Manitoba respecting the CSC's allegations in negligence - Regarding Canada, the CSC also contained no provisions respecting any legislation which provided for catastrophe relief and there were insufficient facts pleaded which disclosed a reasonable cause of action in negligence for the evacuation claims - See paragraphs 165 to 182.

Equity - Topic 3601

Fiduciary or confidential relationships - General principles - 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, among others, for, inter alia, breach of fiduciary duty - The Manitoba Court of Queen's Bench held that a cause of action for breach of fiduciary duty had not been disclosed in the consolidated statement of claim - The practical effect of what the plaintiffs argued was that when a government committed a tort or breach of treaty, a fiduciary duty to make it right arose - That was not the law - When a government was negligent, it was liable, as a result of the breach of duty, to pay damages - So also when it committed a nuisance or breached a treaty - It was the illegal conduct which drove the legal obligation to compensate, not the existence of a separate fiduciary duty arising only after causation had occurred - Furthermore, fiduciary law should only be extended where no other remedy existed - Here, reasonable compensation would flow if and once liability was determined - An adequate remedy already existed - See paragraphs 81 to 86.

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 Governments of Manitoba and Canada for, inter alia, breach of fiduciary duty - The Manitoba Court of Queen's Bench held that a cause of action for breach of fiduciary duty had not been disclosed in the consolidated statement of claim - The plaintiffs alleged that they were vulnerable because their reserves were flooded - The court stated that "...  governments generally act on behalf of all citizens and to the extent that it makes decisions that affect people differently, a strict application of fiduciary principles cannot arise. In short, on most days, a government does not owe a duty of loyalty to only one segment of society. In this case, the plaintiffs allege that they were vulnerable because their reserves were flooded. As McLachlin, C.J., said in the Elder Advocates case [2011 S.C.C.], 'vulnerability alone is insufficient to ground a fiduciary obligation' ... (para. 57). There are no facts pleaded which support the notion that Manitoba undertook to act in the best interests of the plaintiffs to the exclusion of all other citizens, nor is it pleaded that the plaintiffs had to rely upon Manitoba alone, nor is any legal interest or substantial practical interest referred to in the Consolidated Statement of Claim." - Similarly, no fiduciary duty on Canada's part arose under the criteria as described in the Elder Advocates case - See paragraphs 87 to 89, 190 and 191.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Equity - Topic 3601 and Equity - Topic 3602 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Equity - Topic 3601 and Equity - Topic 3602 ].

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 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - 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 Canada, among others, for, inter alia, breach of fiduciary duty - The Manitoba Court of Queen's Bench dismissed the application - The court stated that "In short, a fiduciary duty does not arise in every interaction between Canada and aboriginal peoples. There needs to be a cognizable Indian interest and an undertaking by the Crown of discretionary control in relation thereto in a way that invokes responsibility in the nature of a private law duty. If the case at bar is a case which is said to arise from the presence of a historical fiduciary relationship between the Crown and aboriginals, is there a cognizable Indian interest, and the Crown's undertaking of discretionary control in relation thereto in a way that invokes responsibility 'in the nature of a private law duty'...? In my view it is plain and obvious that there is not. This is a case which deals with the efforts of Canada to provide a form of disaster relief. There is no special Indian interest in that respect. Every person in Canada, aboriginal or otherwise, would have the same interest in this subject. There is no dealing by Canada of a particular Indian interest over which Canada had exclusive and discretionary control. There is simply no foundation in the pleading which would ground a fiduciary duty based on a plaintiff's aboriginal status." - Alternatively, no fiduciary duty arose out of unrecognized relationships - The court held that simply because a government attempted to provide some disaster assistance, whether by providing funding, or by taking a more active role, did not make the government a fiduciary to the people requiring that assistance, nor did it create a fiduciary duty on the part of the government to achieve a particular level of assistance - See paragraphs 189 and 190.

Indians, Inuit and Métis - Topic 4415

Treaties and proclamations - Breach - Effect of - [See Equity - Topic 3601 and third Practice - Topic 209.3 ].

Indians, Inuit and Métis - Topic 4415.1

Treaties and proclamations - General - Breach - Standing - 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 Manitoba Court of Queen's Bench held, inter alia, that it was not plain and obvious that the plaintiffs had no standing to make a claim for breach of treaty - Accordingly the plaintiffs had disclosed a cause of action in breach of treaty within the meaning of s. 4(a) of the Class Proceedings Act - See paragraphs 78 to 80.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - 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 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 plaintiffs proposed a class description for each of the four First Nations respecting the flooding claims as follows: "...  all members of the First Nation i. whose property on Reserve, real or personal, was flooded in 2011; or, ii. who were evacuated, displaced or were unable to reside on Reserve because of the flooding on Reserve in 2011; or, iii. who were unable to work and thereby earn income because of the flooding on Reserve in 2011, including the estates of any persons who have died since March 1, 2011 who meet any of the criteria in (i-iii) preceding." - Manitoba objected that the reference to "real" in subparagraph (i) should be removed given the acknowledgement that the plaintiffs were not claiming for "damage to land, homes and improvements to same" - The Manitoba Court of Queen's Bench disagreed - The reference to "real" was not intended to advance a claim for damage to real property - Rather, it was a marker upon which a person might qualify to make a claim for damages excluding a claim for compensation for physical damage to real property - However, subparagraph (ii) was too broad and would include people with no rational connection to the common issues being proposed - The court held that the proposed class description should be amended to read: "who were evacuated or displaced from the Reserve because of flooding on Reserve in 2011" - The court also considered two objections relating to subparagraph (iii), namely: (1) that it was too broad in that it included people who did not reside on the reserve, sustained no property loss, and simply came onto the reserve to work; and (2) that in including the estates of persons who had died, it placed the Minister of Indian Affairs in a conflict of interest and raised problematic limitations issues - Despite these issues, the court left subparagraph (iii) as proposed - See paragraphs 93 to 104.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - 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 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 - The Manitoba Court of Queen's Bench held that, in determining whether the pleadings disclosed a cause of action under s. 4(a) of the Class Proceedings Act, the approach was similar to that taken in a motion to strike out a statement of claim which disclosed no cause of action - The court held that the pleadings were sufficient to ground the plaintiff's action against Manitoba in nuisance, negligence and breach of treaty, but not breach of fiduciary duty - The court held that punitive damages was not a common issue - See paragraphs 58 to 86 and 133 to 135.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - 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 - The first three proposed common issues were as follows, namely: 1. did the defendant Manitoba, by its actions cause flooding to occur on each of the four reserves; a. if the answer to common issue #1 was yes, where on each of the four reserves did flooding occur as a result of the defendant's conduct; b. to what extent did the actions or omissions of Canada and third parties (the four reserves) cause or contribute to the flooding of those lands; 2. did the defendant Manitoba substantially interfere with the use and enjoyment of land occupied by the plaintiffs; and 3. if the answer to issues 1 and/or 2 was "yes", was the flooding or interference unreasonable? - The Manitoba Court of Queen's Bench held that the claims failed to raise a common issue in nuisance, but there were common issues in negligence - See paragraphs 106 to 127.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - 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 common issue proposed for breach of treaty was as follows: "Did the Defendant, Government of Manitoba, interfere with the treaty rights of the members of the [four First Nations] classes by the flooding and flood control measures which were taken in 2011?" - The Manitoba Court of Queen's Bench held that there was a certifiable common issue regarding breach of treaty - There was an issue regarding whether an individual plaintiff had the right to claim on the basis of the breach of a treaty right, presumably on the basis that the flooding somehow constituted a breach of Canada's agreement to "lay aside and reserve for the sole and exclusive use of the Indians inhabiting" the tract of land that was flooded - There were authorities which indicated that provinces were bound by treaties between Canada and First Nations - In addition, there were authorities that suggested that individuals of First Nation bands might in some circumstances enforce a treaty - See paragraphs 128 to 131.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - 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 Manitoba Court of Queen's Bench held that a class proceeding respecting the flooding claim was not the preferable procedure (Class Proceedings Act (CPA), s. 4(d)) - Regarding ss. 4(a), (b) and (c) of the CPA, the court had found that the plaintiffs had disclosed causes of action in nuisance, negligence, and breach of treaty; there was an identifiable class of two or more persons; and there were five common issues - However, the common issues did not fully address all of the elements in a negligence or breach of treaty cause of action because they did not involve the issue of causation - They also did not address the extent of the damages which might be allowed to a particular claimant, if causation was proved - Further, they did not address any of the issues that might arise in the cause of action in nuisance - This was fatal - The tort of nuisance might well be the strongest of the causes of actions available to the plaintiffs, and to certify a class action on some of the elements of negligence and breach of treaty did not provide the necessary finality for a class action - The common issues the court had identified could well be resolved for most class members after one or two  individual cases had been heard - A court should not automatically consider that dismissal of a certification claim took away access to justice - See paragraphs 137 to 153.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - 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) - MANFF argued that since there was no contractual relationship with the plaintiffs, no duty of care could therefore arise to them in negligence - The Manitoba Court of Queen's Bench disagreed - The recipients' well-being would certainly be foreseeable to MANFF when it performed its contractual services for the governments - Otherwise, there would be no means of legally requiring MANFF to properly perform the services which it had undertaken to perform - The governments could not recover a judgment for damages because they sustained no damage - Only the people for whom the services were rendered (to whom the court held that the governments owed no duty) were the people who sustained any damage - There was an arguable cause of action against MANFF - The court 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 - See paragraphs 192 to 210.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Crown - Topic 1564 and fifth Practice - Topic 209.3 ].

Cases Noticed:

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. 44].

Cloud v. MTS Allstream Inc. (2013), 287 Man.R.(2d) 85; 2013 MBQB 16, refd to. [para. 48].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al., [2013] 3 S.C.R. 477; 450 N.R. 201; 2013 SCC 57, refd to. [para. 49].

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. 58].

Soldier v. Canada (Attorney General) (2009), 236 Man.R.(2d) 107; 448 W.A.C. 107; 2009 MBCA 12, refd to. [para. 59].

Smith v. Inco Ltd. (2011), 284 O.A.C. 13; 107 O.R.(3d) 321; 2011 ONCA 628, refd to. [para. 64].

R. v. Imperial Tobacco Canada Ltd. - see British Columbia v. Imperial Tobacco Canada Ltd. et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 70].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), refd to. [para. 70].

Robertson v. Manitoba Keewatinowi Okimakanak Inc. et al. (2011), 262 Man.R.(2d) 126; 507 W.A.C. 126; 2011 MBCA 4, appld. [para. 70].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [2001] 4 F.C. 455; 274 N.R. 304; 2001 FCA 67, refd to. [para. 77].

Joe v. Findlay (1981), 122 D.L.R.(3d) 377 (B.C.C.A.), refd to. [para. 77].

Custer v. Hudson's Bay Company Developments (1982), 141 D.L.R.(3d) 722 (Sask. C.A.), refd to. [para. 78].

Whitesand First Nation et al. v. Canada (Attorney General) et al., [2003] O.T.C. 900; 2003 CanLII 12214 (Sup. Ct.), refd to. [para. 78].

Behn v. Moulton Contracting Ltd. - see Moulton Contracting Ltd. v. British Columbia et al.

Moulton Contracting Ltd. v. British Columbia et al., [2013] 2 S.C.R. 227; 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 357 D.L.R.(4th) 236; 2013 SCC 26, refd to. [para. 79].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1 (Gen. Div.), refd to. [para. 94].

Morin v. Canada (Minister of Indian Affairs and Northern Development) et al. (2001), 213 F.T.R. 291; 2001 FCT 1430, refd to. [para. 102].

Lafrance Estate et al. v. Canada (Attorney General) et al., [2002] O.T.C. 25 (Sup. Ct.), refd to [para. 102].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 103].

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 369 D.L.R.(4th) 1; 2013 NSCA 143, refd to. [para. 117].

McLaren v. Stratford (City), 2005 CanLII 19801 (Ont. Sup. Ct.), refd to. [para. 126].

Keewatin et al. v. Ontario (Minister of Natural Resources) et al. (2014), 460 N.R. 67; 320 O.A.C. 102; 2014 SCC 48, refd to. [para. 130].

John Doe et al. v. Nunavut (Commissioner) et al., [2008] Nunavut Cases Uned. 13; 2008 NUCJ 13, refd to. [para. 147].

Brooks et al. v. Canadian Pacific Railway Ltd. et al. (2007), 298 Sask.R. 64; 2007 SKQB 247, refd to. [para. 158].

Grant v. Canada (Attorney General), [2005] O.T.C. 771; 77 O.R.(3d) 481; 258 D.L.R.(4th) 725 (Sup. Ct.), refd to. [para. 172].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 186].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 186].

Manitoba Metis 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. 187].

London Drugs v. Kuehne & Nagle International Ltd. et al. - see London Drugs Ltd. v. Brassart and Vanwinkel.

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, dist. [para. 193].

Counsel:

Russel M. Raikes, William Jenkins, Mike Saelhof and Dennis M. Troniak, for the plaintiffs;

W. Glenn McFetridge, Gordon E. Hannon and Jim R. Koch, for Manitoba;

Paul R. Anderson and Cary D. Clark, for Canada;

Brian J. Meronek, Q.C., Andrew W. Marshall and Ian B. Scarth, for the Manitoba Association of Native Firefighters Inc.;

Kaitlin E. Lewis, for Dauphin River First Nation and Little Saskatchewan First Nation;

Corey Shefman, for Lake St. Martin First Nation;

John B. Harvie, for Pinaymootang First Nation.

This application was heard by Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on December 31, 2014.