Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (1997) 141 F.T.R. 109 (TD)

• Judge: Teitelbaum, J.
• Court: Federal Court (Canada)
• Case Date: October 21, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 141 F.T.R. 109 (TD)

Buffalo v. Can. (1997), 141 F.T.R. 109 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. DE.094

Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the Samson Indian Band and Nation (applicants/plaintiffs) v. Her Majesty the Queen in Right of Canada, and the Minister of Indian Affairs and Northern Development, and the Minister of Finance (respondents/defendants)

(T-2022-89)

Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn, the elected Chief and Councillors of the Ermineskin Indian Band and Nation Suing on their own behalf and on behalf of the members of the Ermineskin Indian Band and Nation (plaintiffs) v. Her Majesty the Queen in Right of Canada and Minister of Indian Affairs and Northern Development and Minister of Finance (defendants)

(T-1254-92)

Indexed As: Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Federal Court of Canada

Trial Division

Teitelbaum, J.

December 8, 1997.

Summary:

Three Indian Bands commenced actions against the Crown for breach of trust and fiduciary duty arising from the Crown's obligations respecting oil and gas resources from Indian reserves and the associated royalties and other monies of the Bands. Two of the plaintiffs applied to have the designated trial judge recuse himself on the basis of a reasonable apprehension of bias.

The Federal Court of Canada, Trial Division, dismissed the application.

Editor's Note: For related decisions see 184 N.R. 139 (appeal from 86 F.T.R. 1); 208 N.R. 306 (appeal from 97 F.T.R. 119 and 110 F.T.R. 134); 220 N.R. 41; 221 N.R. 100 (appeal from 110 F.T.R. 96 and 119 F.T.R. 161); 57 F.T.R. 151; 99 F.T.R. 226; 110 F.T.R. 1 and 135 F.T.R. 187.

Courts - Topic 569.1

Judges - Powers - Assignment of judges - Section 15(2) of the Federal Court Act provided that arrangements for trials were to be made by the Associate Chief Justice (ACJ) - If the ACJ was, inter alia, unable or unwilling to act, the senior judge would exercise his powers and duties (s. 6(3)) - The plaintiff Indian Bands took issue with certain comments made by the ACJ, filed a complaint with the Canadian Judicial Council and requested that he no longer assign the trial judge for their case - A committee of three senior judges recommended a trial judge - The ACJ accepted the recommendation - The plaintiffs claimed that the procedure for the trial judge's assignment was contrary to the Act and raised a reasonable apprehension of bias - The Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 41 to 50.

Courts - Topic 679

Judges - Disqualification - Recusal motion - Procedure - Three Indian Bands sued the Crown for breach of trust and fiduciary duty - Two of the plaintiffs applied to have the designated trial judge recuse himself, claiming a reasonable apprehension of bias - The plaintiffs claimed, inter alia, that the fact that the trial judge was deciding the apprehension of bias issue raised a reasonable apprehension of bias - The Federal Court of Canada, Trial Division, rejected the argument that after hearing the application, his presiding over the cases would raise a reasonable apprehension of bias - The court held that the judge against whom the disqualification application is made should hear the application - The court also rejected the argument that hearing the formal application for recusal in open court raised a reasonable apprehension of bias - See paragraphs 70 to 77.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - Three Indian Bands sued the Crown for breach of trust and fiduciary duty - Two of the plaintiffs applied to have the designated trial judge recuse himself - They claimed views expressed by the trial judge in two prior decisions dealing with, inter alia, the Indian Act and trust and fiduciary obligations gave rise to a reasonable apprehension of bias - Both of the prior decisions were on appeal - The Federal Court of Canada, Trial Division, rejected the argument and dismissed the application - The court stated that "a judge, in deciding issues put before him or her in another case and which issues may be similar or the same as the issues he or she is to try will not be recused on the basis of a reasonable apprehension of bias for having previously decided the issues" - See paragraphs 51 to 63.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - Three Indian Bands sued the Crown for breach of trust and fiduciary duty - Two of the plaintiffs applied to have the designated trial judge recuse himself - They claimed that the trial judge's relationship with certain members of government and politicians raised a reasonable apprehension of bias - The Federal Court of Canada, Trial Division, rejected the argument - The court dismissed the application - See paragraphs 64 to 69.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 569.1 and Courts - Topic 679 ].

Courts - Topic 692

Judges - Disqualification - Bias - Arising out of expressed opinions on legal issues - [See first Courts - Topic 691 ].

Cases Noticed:

Wewayakum Indian Band v. Canada and Wewayakai (1995), 99 F.T.R. 1 (T.D.), refd to. [para. 4].

Canadian Pacific Ltd. v. Matsqui Indian Band et al. (1996), 111 F.T.R. 161 (T.D.), refd to. [para. 11].

Committee for Justice and Liberty Foundation et al. v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 19].

Metropolitan Properties Co. (F.G.C.) v. Lannon, [1968] 3 All E.R. 304 (C.A.), refd to. [para. 21].

Energy Probe v. Atomic Energy Control Board and Ontario Hydro (1984), 56 N.R. 135; 15 D.L.R.(4th) 48 (F.C.A.), affing. (1984), 8 D.L.R.(4th) 735 (F.C.T.D.), refd to. [para. 22].

G.W.L. Properties Ltd. et al. v. Grace (W.R.) & Co. of Canada Ltd. et al. (1992), 21 B.C.A.C. 167; 37 W.A.C. 167; 74 B.C.L.R.(2d) 283 (C.A.), refd to. [para. 23].

Middelkamp v. Fraser Valley Real Estate Board (1993), 83 B.C.L.R.(2d) 257 (C.A.), refd to. [para. 25].

Blanchard v. Canadian Paperworkers Union, Local 263 et al. (1991), 113 N.B.R.(2d) 344; 285 A.P.R. 344 (C.A.), refd to. [para. 25].

Mattson v. ALC Airlift Canada Inc. (1993), 18 C.P.C.(3d) 310 (B.C.S.C.), refd to. [para. 26].

R. v. R.D.S. (1997), 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241 (S.C.C.), refd to. [para. 27].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) (1992), 98 D.L.R.(4th) 762 (Ont. Div. Ct.), refd to. [para. 60].

Canadian National Railway Co. v. Canadian Human Rights Commission (1985), 64 N.R. 312 (F.C.A.), refd to. [para. 61].

Middelkamp v. Fraser Valley Real Estate Board, [1993] B.C.J. No. 2965 (T.D.), refd to. [para. 76].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 6(3) [para. 46]; sect. 15 [para. 44].

Authors and Works Noticed:

Friedland, Martin L., A Place Apart: Judicial Independence and Accountability in Canada, p. 233 [para. 68].

Counsel:

James O'Reilly, Ed Molstad, Q.C., Marco Poretti and Priscilla Kennedy, for the plaintiff, Victor Buffalo;

Marvin Storrow, Q.C., Joni Paulus and Maria Morellato, for the plaintiff, J. Ermineskin;

Alan MacLeod, Q.C., Clark Hunter, Tom Valentine, Mary Comeau and Wendy Johston, for the defendants.

Solicitors of Record:

O'Reilly & Associates, Montreal, Quebec, and Parlee & McLaws, Edmonton, Alberta, for the plaintiff, Victor Buffalo;

Blake, Cassel & Graydon, Vancouver, British Columbia, for the plaintiff, J. Ermineskin;

George Thomson, Deputy Attorney General for Canada, Ottawa, Ontario, for the defendants.

This application was heard at Calgary, Alberta, on October 21, 1997, before Teitelbaum, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on December 8, 1997.