McDiarmid Lumber Ltd. v. God's Lake First Nation et al., (2006) 212 Man.R.(2d) 7 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 15, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 212 Man.R.(2d) 7 (SCC);2006 SCC 58

McDiarmid Lumber v. God's Lake Nation (2006), 212 Man.R.(2d) 7 (SCC);

      389 W.A.C. 7

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] Man.R.(2d) TBEd. DE.027

God's Lake First Nation a.k.a. God's Lake Band (appellant) v. McDiarmid Lumber Ltd. (respondent) and Attorney General of Canada, Assembly of First Nations and Manitoba Keewatinook Ininew Okimowin (intervenors)

(30890; 2006 SCC 58; 2006 CSC 58)

Indexed As: McDiarmid Lumber Ltd. v. God's Lake First Nation et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

December 15, 2006.

Summary:

A judgment creditor caused a notice of garnishment to be issued respecting a First Nation/Indian Band's bank account at a trust company located off the reserve. The Band moved to set aside the notice of garnishment. A Master held that most of the funds in the bank account were exempt from garnishment under s. 90(1)(b) of the Indian Act. The judgment creditor appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 186 Man.R.(2d) 31, dismissed the appeal. The judgment creditor appealed.

The Manitoba Court of Appeal allowed the appeal, set aside the order below and dismissed the Band's application for an order setting aside the notice of garnishment. The Band appealed.

The Supreme Court of Canada, Binnie, Fish and Abella, JJ., dissenting, dismissed the appeal.

Creditors and Debtors - Topic 4405

Garnishment by creditor - Exemptions - Indian property - A judgment creditor caused a notice of garnishment to be issued respecting a First Nation/Indian Band's bank account at a trust company located off the reserve - Most of these funds were obtained by the Band from the federal government under a comprehensive funding arrangement (CFA) - The Band moved to set aside the notice of garnishment - The Supreme Court of Canada held that the funds in the bank account were not "situated on a reserve" and, therefore, were not exempt from garnishment pursuant to s. 89 of the Indian Act - The expression "situated on a reserve" was to be given its plain meaning and subjected to the common law and statutory situs rules - See paragraphs 11 to 21.

Creditors and Debtors - Topic 4405

Garnishment by creditor - Exemptions - Indian property - A judgment creditor caused a notice of garnishment to be issued respecting a First Nation/Indian Band's bank account at a trust company located off the reserve - Most of these funds were obtained by the Band from the federal government under a comprehensive funding arrangement (CFA) - The Band moved to set aside the notice of garnishment, arguing that the funds were exempt from garnishment under s. 90(1)(b) of the Indian Act (i.e., "personal property ... given to Indians or a band under a treaty or agreement between a band and Her Majesty") - The Supreme Court of Canada held, inter alia, that textual, historical and policy considerations all supported the conclusion of the court in Mitchell et al. v. Peguis Indian Band et al. (S.C.C.) that the word "agreement" in s. 90(1)(b) should not be construed broadly as extending to any agreement between the government and Indians that conferred benefits, or any agreement between the government and Indians that conferred "public sector services" benefits - Rather, it should be understood in the sense of an arrangement that fleshed out treaty obligations of the Crown - See paragraphs 22 to 59.

Creditors and Debtors - Topic 4405

Garnishment by creditor - Exemptions - Indian property - A judgment creditor caused a notice of garnishment to be issued respecting a First Nation/Indian Band's bank account at a trust company located off the reserve - Most of these funds were obtained by the Band from the federal government under a comprehensive funding arrangement (CFA) - The Band moved to set aside the notice of garnishment, arguing that the funds were exempt from garnishment under s. 90(1)(b) of the Indian Act (i.e., "personal property ... given to Indians or a band under a treaty or agreement between a band and Her Majesty") - The Supreme Court of Canada stated that funds given pursuant to treaty obligations were protected under s. 90(1)(b) - The nature and extent of those obligations should be determined according to the interpretive principles that the court had set out in the past, and with due regard to the particular historical context of the relationship between the Crown and the band in each case - The record did not permit the court to make a determination about the precise relationship between the funds in question and the treaty obligations of the Crown - As it was the burden of the Band to demonstrate this connection, the court could not find that s. 90(1)(b) operated in this case to protect the funds - See paragraphs 22 to 76.

Creditors and Debtors - Topic 4405

Garnishment by creditor - Exemptions - Indian property - A judgment creditor caused a notice of garnishment to be issued respecting a First Nation/Indian Band's bank account at a trust company located off the reserve - Most of these funds were obtained by the Band from the federal government under a comprehensive funding arrangement (CFA) - The Band moved to set aside the notice of garnishment, arguing that the funds were exempt from garnishment under either ss. 89 (situated on a reserve) or 90(1)(b) of the Indian Act - The Supreme Court of Canada stated, inter alia, that these sections established specific exceptions to the general rule that the provincial credit regime would apply to Indian property - The wording of the provisions made it clear that Parliament did not seek to exempt Indian property in a broad sense - The fact that the effect of the provisions was to suspend the rights of both creditors and debtors provided further support for a narrow interpretation of the exceptions - In the absence of express language, it was not the place of courts to read the Indian Act exceptions in such a way that would transform them into significant forms of interference with the applicable provincial regime and rights thereunder - Particularly in the case of a credit regime, courts had a responsibility to ensure a degree of certainty and predictability in the law and to approach the task of statutory interpretation with restraint - See paragraphs 38 to 41.

Indians, Inuit and Métis - Topic 5

General - Interpretation of legislation - [See fourth Creditors and Debtors - Topic 4405 ].

Indians, Inuit and Métis - Topic 822

Personal or legal rights - Property exempt from alienation - Personal property - What constitutes - [See second and third Creditors and Debtors - Topic 4405 ].

Indians, Inuit and Métis - Topic 823

Personal or legal rights - Property exempt from alienation - Situated on a reserve - Meaning of - [See first and fourth Creditors and Debtors - Topic 4405 ].

Statutes - Topic 2612

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Noscitur a sociis (from associated words) - The Supreme Court of Canada discussed the statutory interpretation principle known as associated meaning or noscitur a sociis - See paragraphs 30 to 35.

Cases Noticed:

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; 71 D.L.R.(4th) 193, refd to. [paras. 7, 95].

Union of New Brunswick Indians and Tomah v. New Brunswick (Minister of Finance) et al., [1998] 1 S.C.R. 1161; 227 N.R. 92; 200 N.B.R.(2d) 201; 512 A.P.R. 201; 161 D.L.R.(4th) 193, refd to. [para. 8].

Williams v. Minister of National Revenue, [1992] 1 S.C.R. 877; 136 N.R. 161, dist. [para. 12].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1, refd to. [para. 19].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; [1991] 2 W.W.R. 385; 62 C.C.C.(3d) 193; 1 C.R.R.(2d) 1; 2 C.R.(4th) 1, refd to. [para. 26].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 26].

Friedmann Equity Developments Inc. v. Final Note Ltd. et al., [2000] 1 S.C.R. 842; 255 N.R. 80; 134 O.A.C. 280; 188 D.L.R.(4th) 269; 2000 SCC 34, refd to. [para. 26].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 30].

Marche et al. v. Halifax Insurance Co., [2005] 1 S.C.R. 47; 330 N.R. 115; 230 N.S.R.(2d) 333; 729 A.P.R. 333; [2005] I.L.R. 4383; [2005] R.R.A. 1; 18 C.C.L.I.(4th) 1; 248 D.L.R.(4th) 577; 2005 CarswellNS 77; 2005 SCC 6, refd to. [para. 30].

R. v. Goulis (1981), 33 O.R.(2d) 55 (C.A.), refd to. [para. 31].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 33].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47; 66 C.C.C.(3d) 517, refd to. [para. 34].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 96].

Sturgeon Lake Indian Band v. Tomporowski Architectural Group Ltd. (1991), 95 Sask.R. 302 (Q.B.), refd to. [para. 108].

Royal Bank of Canada v. White Bear Indian Band et al., [1991] 1 C.N.L.R. 174; 88 Sask.R. 289 (Q.B.), refd to. [para. 108].

Young v. Wolf Lake Indian Band et al. (1999), 164 F.T.R. 123 (T.D.), refd to. [para. 108].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 116].

Greyeyes v. R., [1978] 2 F.C. 385 (T.D.), refd to. [para. 117].

Ontario (Attorney General) v. Bear Island Foundation et al., [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396, affing. (1989), 32 O.A.C. 67; 58 D.L.R.(4th) 117 (C.A.), affing. (1984), 48 O.R.(2d) 353; 15 D.L.R.(4th) 321 (H.C.), refd to. [para. 122].

R. v. White and Bob (1964), 50 D.L.R.(2d) 613 (B.C.C.A.), affd. [1965] S.C.R. vi; 52 D.L.R.(2d) 481, refd to. [para. 125].

Peace Hills Trust Co. v. Mocassin et al. (2005), 281 F.T.R. 201; 2005 FC 1364, refd to. [para. 129].

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. 136].

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

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 89, sect. 90(1) [para. 5].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 2, 4th Sess., 21st Parliament (March 16, 1951), p. 1352 [para. 55].

Canada, Hansard, House of Commons Debates, vol. 3, 3rd Sess., 18th Parliament (May 30, 1938), pp. 3349, 3350 [para. 52].

Canada, Hansard, House of Commons Debates, vol. 135, No. 176, 1st Sess., 36th Parliament (February 8, 1999), p. 11602 [para. 83].

Canada, Indian Affairs and Northern Development, Gathering Strength - Canada's Aboriginal Action Plan, Developing a New Fiscal Relationship (1997), Part III, p. 20 [para. 103].

Canada, Indian Affairs and Northern Development, Gathering Strength - Canada's Aboriginal Action Plan: A Progress Report (2000), pp. 3 [para. 144]; 18, 19 [para. 130].

Canada, Indian and Northern Affairs, Treaties and Historical Research Centre, The Historical Development of the Indian Act (1978), p. 132 [para. 53].

Canada, Royal Commission of Aboriginal Peoples Report, Restructuring the Relationship (1996), vol. 2, pp. 800 [para. 102]; 812 [para. 105]; 906 to 911 [para. 107]; 906 to 931 [para. 42]; 911 [para. 90]; 931 [para. 107].

Canada, Royal Commission of Aboriginal Peoples Report, Gathering Strength (1996), vol. 3, p. 1 [para. 102].

Canada, Special Joint Committee of the Senate and the House of Commons on the Indian Act, Minutes of Proceedings and Evidence, Fourth Report, Issue No. 5 (June 22, 1948), p. 187 [paras. 53, 54].

Morris, Alexander, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on which they were based and other Information related thereto (1880 Ed.) (2000 Reprint), pp. 143, 144 [para. 97].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 158 [para. 36]; 173 [para. 30]; 175 [para. 34]; 260 to 262 [para. 34].

Counsel:

George J. Orle, Q.C., and Daryl A. Chicoine, for the appellant;

James A. Mercury and Betty A. Johnstone, for the respondent;

Graham R. Garton, Q.C., and John S. Tyhurst, for the intervenor the Attorney General of Canada;

Jack R. London, Q.C., and Bryan P. Schwartz, for the intervenor The Assembly of First Nations;

Michael Jerch and Louis Harper, for the intervenor Manitoba Keewatinook Ininew Okimowin.

Solicitors of Record:

Orle Davidson Giesbrecht Bargen, Winnipeg, Manitoba, for the appellant;

Aikins, MacAulay & Thorvaldson, Winnipeg, Manitoba, for the respondent;

Deputy Attorney General of Canada, Ottawa, Ontario, for the intervenor the Attorney General of Canada;

Pitblado, Winnipeg, Manitoba, for the intervenor the Assembly of First Nations;

P. Michael Jerch Law Office, Winnipeg, Manitoba, for the intervenor Manitoba Keewatinook Ininew Okimowin.

This appeal was heard on April 20, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered on December 15, 2006, in both official languages, including the following opinions:

McLachlin, C.J.C., (Bastarache, LeBel, Deschamps, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 76;

Binnie, J. (Fish and Abella, JJ., concurring), dissenting - see paragraphs 77 to 150.