Chippewas of Mnjikaning First Nation v. Ontario et al.,

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Blair and Juriansz, JJ.A.
• Neutral Citation: 2010 ONCA 47
• Date: 22 January 2010
• Court: Court of Appeal (Ontario)

Chippewas v. Ont. (2010), 265 O.A.C. 247 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.063

The Chippewas of Mnjikaning First Nation (plaintiff/appellant) v. Her Majesty the Queen in Right of Ontario, as represented by the Minister Responsible for Native Affairs, the Minister of Consumer and Commercial Relations, the Chair of the Management Board of Cabinet, and the Attorney General of Ontario, and the Ontario Lottery and Gaming Corporation, the Chiefs of Ontario, and Ontario First Nations Limited Partnership (defendants/respondents)

(C49485; 2010 ONCA 47)

Indexed As: Chippewas of Mnjikaning First Nation v. Ontario et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Blair and Juriansz, JJ.A.

January 22, 2010.

Summary:

Casino Rama was the only commercial casino located on a First Nation reserve in Ontario. It was established as a pilot project to benefit all Ontario First Nations economically, the intention being that one First Nation would be selected as the host site but that the revenues would be shared among all First Nations in the province. The Chippewas of Mnjikaning First Nation (MFN), the casino's host, sued the Province of Ontario. MFN claimed that the Site Selection Process in which it was chosen as the host site gave rise to a binding contract with the Government of Ontario that it would receive 35% of the net profits in perpetuity, as set out in its proposal submitted to the Selection Panel in November 1994. The other Ontario First Nations opposed MFN's claim, arguing that the Site Selection Process was simply a site selection process and that revenue sharing as between all of Ontario's First Nations, including the host's share, was to be negotiated in a separate round of negotiations following site selection that would embrace a broader and more representative group of First Nation interests.

The Ontario Superior Court (Gans, J.), in a decision reported [2008] O.T.C. Uned. T63, dismissed the MFN's action. The trial judge found essentially that the Site Selection Process did not result in a binding agreement between MFN and Ontario entitling MFN to a 35% share of net revenues from Casino Rama. In that regard, he found that a reasonable person, viewing the evidence objectively, would not have concluded that a binding agreement on revenue sharing was to, or did, result from the Site Selection Process. In addition, he found that MFN's representatives never subjectively believed they had such a contract. He also rejected MFN's fiduciary duty argument. MFN appealed, attacking the trial judge's fact findings, arguing that he created a perception of bias and that he intervened in the conduct of the trial in such a way that the trial process itself was irreparably tainted with unfairness. MFN also asserted numerous legal errors, including those relating to the law of fiduciary obligations and the application of contractual and tender law jurisprudence, the trial judge's alleged failure to consider and appreciate the cultural background and unique Aboriginal perspective of MFN's witnesses, and the insufficiency of his reasons.

The Ontario Court of Appeal dismissed the appeal, holding that there was no merit to any of the grounds advanced on appeal.

Contracts - Topic 1262

Formation of contract - Tender calls - What constitute - After a Site Selection Process, the Chippewas of Mnjikaning First Nation (MFN) was selected as the host site for the only commercial casino on a First Nation reserve in Ontario (i.e., Casino Rama) - The casino was established as a pilot project with the intention that one First Nation would be selected as the host site but the revenues would be shared among all First Nations in the province - MFN sued the Province of Ontario, claiming that the Site Selection Process gave rise to a binding contract with Ontario that it would receive 35% of the net profits in perpetuity, as set out in its proposal submitted to the Selection Panel - The other Ontario First Nations opposed MFN's claim - The trial judge dismissed the MFN's action, holding that the Site Selection Process did not result in a binding agreement between MFN and Ontario entitling MFN to a 35% share of net revenues from Casino Rama - The trial judge held that the Site Selection Process did not fall within the legal paradigm of a tender contract nor did the process give rise to a formal request for proposal (RFP) - MFN appealed - The Ontario Court of Appeal dismissed the appeal, agreeing with the trial judge that the site selection process did not constitute a binding tender or RFP process and there was no binding contract - See paragraphs 177 to 194.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - After a Site Selection Process, the Chippewas of Mnjikaning First Nation (MFN) was selected as the host site for the only commercial casino on a First Nation reserve in Ontario (i.e., Casino Rama) - The casino was established as a pilot project with the intention that one First Nation would be selected as the host site but the revenues would be shared among all First Nations in the province - MFN sued the Province of Ontario, claiming that the Site Selection Process gave rise to a binding contract with Ontario that it would receive 35% of the net profits in perpetuity, as set out in its proposal submitted to the Selection Panel - The other Ontario First Nations opposed MFN's claim - The trial judge dismissed the MFN's action - MFN appealed, claiming that the trial judge erred by failing to give sufficient reasons to explain his findings and conclusions - The Ontario Court of Appeal dismissed the appeal, holding that this argument was without merit - The trial judge's reasons were careful, thorough and analytical - MFN would have been able to understand why its action was dismissed - The reasons provided ample clarity and transparency to facilitate meaningful appellate review - See paragraphs 72 to 74.

Courts - Topic 691

Courts - Disqualification - Bias - Reasonable apprehension of bias - After a Site Selection Process, the Chippewas of Mnjikaning First Nation (MFN) was selected as the host site for the only commercial casino on a First Nation reserve in Ontario (i.e., Casino Rama) - Revenues were to be shared among all Ontario First Nations - MFN sued Ontario claiming that the Site Selection Process gave rise to a binding contract that it would receive 35% of the net profits in perpetuity - The other Ontario First Nations disagreed - The trial judge dismissed the MFN's action, holding that no binding contract arose - MFN appealed, arguing that the trial judge's conduct of the trial created a reasonable apprehension of bias - MFN claimed that the trial judge intervened in the trial on an extraordinary number of occasions and that the cumulative effect of those interventions created the impression that he was receptive to the province's case and dismissive of MFN's - The Ontario Court of Appeal rejected MFN's argument and dismissed the appeal - The interventions were to a large extent properly directed at managing the trial and controlling the process - When looking at the trial as a whole the interventions did not create an apprehension of bias - The court noted, inter alia, that experienced trial counsel did not object that the trial judge was being too interventionist at trial - Further, the trial judge's interventions during the closing arguments did not create an apprehension of bias - See paragraphs 225 to 264.

Crown - Topic 1001

Contracts with Crown - General principles - General (incl. what constitutes) - [See Contracts - Topic 1262 ].

Crown - Topic 1014

Contracts with Crown - General principles - Request for proposal (RFP) - [See Contracts - Topic 1262 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - After a Site Selection Process, the Chippewas of Mnjikaning First Nation (MFN) was selected as the host site for the only commercial casino on a First Nation reserve in Ontario (i.e., Casino Rama) - Revenues were to be shared among all Ontario First Nations - MFN sued Ontario claiming that the Site Selection Process gave rise to a binding contract that it would receive 35% of the net profits in perpetuity - The other Ontario First Nations disagreed - The trial judge dismissed the MFN's action, holding that no binding contract arose - MFN appealed, arguing that the trial judge erred in failing to consider the underlying fiduciary relationship of the Province to the First Nations as a separate, substantive ground for relief - That duty was said to have arisen from the sui generis duties owed by the Crown to Aboriginals in any dealings for the use of reserve land - The Ontario Court of Appeal rejected MFN's argument and dismissed the appeal - Here the fiduciary argument based on the Guerin approach failed because this case did not involve the surrender of lands vis-à-vis the Crown in right of Ontario - In any event, there were no Crown misrepresentations to form the backdrop against which the Crown's discharge of its duties was to be measured - The court noted that while there was some question as to whether the provincial Crown owed a fiduciary duty to aboriginal people, fiduciary duties could arise from the particular conduct of the provincial Crown in specific situations - However, this was not such a case - See paragraphs 195 to 211.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - [See Equity - Topic 3611 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Ontario Court of Appeal stated that there was some authority to suggest it was the federal Crown, as opposed to the Crown in the right of a province, that owed the sui generis fiduciary duty to Aboriginals based on the special historical relationship that existed between the federal Crown and Aboriginal people and the constitutional capacity to look after the best interests of Aboriginal people - The court stated further, that "whether or not the Crown in right of a province may owe a sui generis fiduciary duty to Aboriginals, we do not say that it may never owe a fiduciary duty to Aboriginals. Fiduciary duties may arise from the particular conduct of the provincial Crown in specific situations ..." - See paragraphs 204 to 206.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - After a Site Selection Process, the Chippewas of Mnjikaning First Nation (MFN) was selected as the host site for the only commercial casino on a First Nation reserve in Ontario (i.e., Casino Rama) - Revenues were to be shared among all Ontario First Nations - MFN sued Ontario claiming that the Site Selection Process gave rise to a binding contract that it would receive 35% of the net profits in perpetuity - The other Ontario First Nations disagreed - The trial judge dismissed the MFN's action, holding that no binding contract arose - MFN appealed, asserting that the fiduciary duty owed to MFN set the legal standard by which the Province's words and actions during the negotiations were to be assessed and that the trial judge's failure to recognize this undermined his fact-finding exercise - Further, MFN contended that the honour of the Crown was at stake in all dealings with Aboriginal peoples, and that notion "is not mere incantation, but rather a core precept that finds its application in concrete practices" - Accordingly, MFN asserted that: a) ambiguities in the words or conduct of Crown representatives were to be interpreted broadly, in a manner consistent with interests and understanding of the First Nation parties, and not in a narrow technical manner that favoured the Crown's interests; and that b) the Crown was bound to observe both oral and written terms that the First Nation understand were embodied in an arrangement concerning the use of reserve lands - The Ontario Court of Appeal rejected MFN's arguments and dismissed the appeal - See paragraphs 212 to 220.

Indians, Inuit and Métis - Topic 1403

Contracts - General - Interpretation - [See Practice - Topic 8800 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - After a Site Selection Process, the Chippewas of Mnjikaning First Nation (MFN) was selected as the host site for the only commercial casino on a First Nation reserve in Ontario (i.e., Casino Rama) - Revenues were to be shared among all Ontario First Nations - MFN sued Ontario et al., claiming that the Site Selection Process gave rise to a binding contract that it would receive 35% of the net profits in perpetuity - The other Ontario First Nations disagreed - The trial judge dismissed the MFN's action - MFN appealed, claiming that the trial judge made palpable and overriding factual errors in almost every finding he made - The Ontario Court of Appeal dismissed the appeal - The record amply confirmed the trial judge's findings of fact and credibility - MFN was seeking to have the appeal court retry the case - Deference to a trial judge's findings of fact was particularly important in lengthy and factually complex cases - Here, none of the documentary evidence relied upon by MFN reflected the existence of an agreement with Ontario on revenue sharing - The words relied upon by MFN in the documents were ambiguous and capable of being interpreted in multiple ways - It did not follow that in this Aboriginal versus Aboriginal litigation that those ambiguities had to be resolved in favour of MFN - Moreover, the testimony of the MFN witnesses (which the trial judge did not accept) was refuted by other evidence - It was therefore open to the trial judge to make the findings that he did - See paragraphs 79 to 176.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See Courts - Topic 583 ].

Cases Noticed:

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 61].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 74].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 74].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 74].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 75].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201; 44 B.L.R.(3d) 165 (C.A.), leave to appeal refused (2005), 339 N.R. 200; 207 O.A.C. 400 (S.C.C.), refd to. [para. 75].

Canadian National Railways v. Canadian Pacific Ltd. - see Canadian Pacific Ltd., Re.

Canadian Pacific Ltd., Re (1979), 95 D.L.R.(3d) 242 (B.C.C.A.), affd. [1979] 2 S.C.R. 668; 30 N.R. 541, refd to. [para. 162].

Montreal Trust Co. of Canada v. Birmingham Lodge Ltd. et al. (1995), 82 O.A.C. 25; 24 O.R.(3d) 97 (C.A.), refd to. [para. 162].

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40, refd to. [para. 179].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 179].

Mellco Developments Ltd. et al. v. Portgage la Prairie (City) et al. (2002), 166 Man.R.(2d) 285; 278 W.A.C. 285; 222 D.L.R.(4th) 67; 2002 MBCA 125, leave to appeal refused (2003), 313 N.R. 194; 180 Man.R.(2d) 321; 310 W.A.C. 321 (S.C.C.), refd to. [para. 187].

Olivieri v. Sherman et al. (2007), 225 O.A.C. 227; 86 O.R.(3d) 778 (C.A.), refd to. [para. 192].

UBS Securities Canada Inc. v. Sands Brothers Canada Ltd. (2009), 248 O.A.C. 146; 95 O.R.(3d) 93 (C.A.), refd to. [para. 193].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, dist. [para. 201].

Ontario (Attorney General) v. Bear Island Foundation et al. (1999), 126 O.A.C. 385 (C.A.), refd to. [para. 205].

Quebec (Attorney General) v. National Energy Board - see Québec (Procureur général) v. Office national de l'énergie.

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 205].

St. Catherine's Milling & Lumber Co. v. Ontario (Attorney General) (1888), 6 L.T. 197; C.R. [10] A.C. 13 (Ont. P.C.), refd to. [para. 205].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 209].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 212].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 212].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 212].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 229].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), leave to appeal refused [1986] 1 S.C.R. xiii; 67 N.R. 159; 15 O.A.C. 240, refd to. [para. 230].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 240 C.C.C.(3d) 141 (C.A.), refd to. [para. 230].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 68 O.R.(3d) 481 (C.A.), refd to. [para. 232].

R. v. Snow (D.A.) (2004), 191 O.A.C. 212; 73 O.R.(3d) 40 (C.A.), refd to. [para. 234].

R. v. Torbiak and Campbell (1974), 18 C.C.C.(2d) 229 (Ont. C.A.), refd to. [para. 237].

Kelly v. Palazzo et al. (2008), 233 O.A.C. 160; 89 O.R.(3d) 111 (C.A.), refd to. [para. 243].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169; 166 C.C.C.(3d) 14 (C.A.), refd to. [para. 243].

Confectionately Yours Inc. et al., Re (2002), 164 O.A.C. 84; 219 D.L.R.(4th) 72 (C.A.), refd to. [para. 243].

R. v. Brown (D.) (2003), 170 O.A.C. 131; 64 O.R.(3d) 161 (C.A.), refd to. [para. 260].

R. v. Stewart (1991), 43 O.A.C. 109; 62 C.C.C.(3d) 289 (C.A.), refd to. [para. 260].

Authors and Works Noticed:

Ontario, Advocates' Society, Principles of Civility for Advocates, online: http://www.advocates.ca, principle 73 [para. 235].

Sandori, Paul, and Pigott, William M., Bidding and Tendering, What is the Law? (2nd Ed. 2000), p. 239 [para. 186].

Counsel:

M. Philip Tunley, Gavin MacKenzie, Brendan Van Niejenhuis, Katherine Hensel and Andrea Gonsalves, for the appellant;

Sheila R. Block, David Outerbridge, Lisa Talbot and Jana Stettner, for the respondents, the Chiefs of Ontario and Ontario First Nations Limited Partnership;

Dennis Brown, Q.C., Malliha Wilson, Edmund Huang and William MacLarkey, for the respondent, Her Majesty the Queen in Right of Ontario.

This appeal was heard on September 8-9, 2009, by O'Connor, A.C.J.O., Blair and Juriansz, JJ.A., of the Ontario Court of Appeal. O'Connor, A.C.J.O., and Blair, J.A., filed the following reasons for judgment of the court on January 22, 2010.