Callihoo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., 2007 ABCA 59

• Judge: Hunt, Costigan and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 08, 2007
• Citations: 2007 ABCA 59;(2007), 404 A.R. 46 (CA)

Callihoo v. Can. (2007), 404 A.R. 46 (CA);

      394 W.A.C. 46

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. MR.031

Dennis Callihoo and Rosalind Callihoo, acting on their own behalf and on behalf of all members of the Michel First Nation, and on behalf of all members of the former Michel Indian Band No. 472 and the descendants of members of the former Michel Indian Band No. 472 (appellants/plaintiffs) v. Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development (respondent/defendant) and Her Majesty the Queen in Right of Alberta (not a party to the appeal/defendant)

(0603-0062-AC; 2007 ABCA 59)

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

Alberta Court of Appeal

Hunt, Costigan and Watson, JJ.A.

February 8, 2007.

Summary:

In 2001, the plaintiffs sued the federal and Alberta Crowns, claiming various rights as representatives and descendants of the former Michel Indian Band No. 472. All members of the Band were enfranchised in 1958. The plaintiffs claimed for wrongful taking of land, breaches of fiduciary and fiduciary-like duties, accounting, breach of Treaty rights and breach of constitutional rights which included breach of ss. 15 and 35 of the Constitution Act, 1982. The claims covered both pre-1958 and post 1958 circumstances. Canada and Alberta moved for a summary judgment to dismiss the action.

The Alberta Court of Queen's Bench, in a decision reported at 402 A.R. 1, allowed the motion except in respect of the plaintiffs' claims against Canada pursuant to ss. 15 and 35 of the Constitution Act, 1982. The plaintiffs appealed.

The Alberta Court of Appeal allowed the appeal.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - Canada moved for a summary judgment to dismiss an action resulting from the 1958 enfranchisement of the members of an Indian Band - Canada filed an affidavit by Kohan, assigned litigation project manager for this action - Kohan stated that he had personal knowledge of matters deposed to except where otherwise stated - He asserted that he coordinated the records research and collection activities for Canada as conveyed by employees and contractors assigned to research relevant departmental files - Materials enclosed with the Kohan affidavit included reports and correspondence relating to the 1958 enfranchisement and materials relating to disposal of land - Finally, Kohan asserted his belief based on the review of the material that there was no merit to the plaintiffs' claims and that he was not aware of any facts that would substantiate the action - The Alberta Court of Appeal ruled that the Kohan affidavit did not comply with the requirements of Rules 159(2), 305(2) and 305(3) of the Rules of Court and could not serve as a basis for granting summary judgment - Kohan did not swear that he had knowledge of the facts - Rather, his assertions were based entirely on information and belief.

Cases Noticed:

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 1; 2004 ABQB 655, refd to. [para. 9].

Counsel:

S. Sidhu and M.E. Annich, for the respondents;

K.E. Buss, for the appellants.

This appeal was heard on February 8, 2007, by Hunt, Costigan and Watson, JJ.A., of the Alberta Court of Appeal. The decision of the Court of Appeal was delivered from the Bench by Costigan, J.A., on February 8, 2007, with written release on February 20, 2007.