Moulton Contracting Ltd. v. British Columbia et al., (2011) 309 B.C.A.C. 15 (CA)

• Judge: Saunders, Chiasson and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 06, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 309 B.C.A.C. 15 (CA);2011 BCCA 311

Moulton Contracting Ltd. v. B.C. (2011), 309 B.C.A.C. 15 (CA);

    523 W.A.C. 15

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. JL.018

Moulton Contracting Ltd. (respondent/plaintiff) v. Sally Behn, Susan Behn, Richard Behn, Greg Behn, Rupert Behn, Lovey Behn, Mary Behn and George Behn (appellants/defendants) and Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant/third party) and Chief Liz Logan, on behalf of herself and all other members of the Fort Nelson First Nation and the said Fort Nelson First Nation (respondents/defendants)

(CA038107; 2011 BCCA 311)

Indexed As: Moulton Contracting Ltd. v. British Columbia et al.

British Columbia Court of Appeal

Saunders, Chiasson and Frankel, JJ.A.

July 6, 2011.

Summary:

The plaintiff held a provincial permit to conduct logging operations on aboriginal (Fort Nelson First Nation) land. That land included Behn family territory. The plaintiff sued the Behns and other members of the Fort Nelson First Nation for damages for allegedly blockading access to the logging lands. The Behns filed a statement of defence challenging the validity of the plaintiff's permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect. The plaintiff moved to strike paragraphs of the statement of defence.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 506, allowed the motion. He concluded that: (1) individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted therein were collective rights of the Aboriginal community; (2) the challenge to the instruments was an impermissible collateral attack on those instruments and should have been pursued through administrative law means; and (3) the constitutional arguments of federal exclusivity could not succeed in the circumstances pleaded and so could not fatally undercut the instruments. The Behns applied for directions as to whether they needed leave to appeal the decision.

The British Columbia Court of Appeal, per Frankel, J.A., ruled that leave was not needed where the order at first instance was a final order. See 296 B.C.A.C. 103; 503 W.A.C. 103. The Behns appealed. At the commencement of the hearing two applications were made to adduce fresh evidence, one by the plaintiff and the other by the Crown. The Behns opposed the applications, and alternatively sought to introduce fresh evidence of their own.

The British Columbia Court of Appeal dismissed the applications to adduce fresh evidence. The court dismissed the appeal. The court agreed with the motions judge on the first two issues. The court declined to address the constitutional issue (interjurisdictional immunity) where the vital facts necessary to decide the issue were missing.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The plaintiff held a provincial permit to conduct logging operations on aboriginal (Fort Nelson First Nation) land - That land included Behn family territory - The plaintiff sued the Behns and other members of the First Nation for damages for allegedly blockading access to the logging lands - The Behns filed a statement of defence challenging the validity of the plaintiff's permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect - The plaintiff moved to strike paragraphs of the statement of defence - Hinkson, J., allowed the motion - He concluded, inter alia, that, individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted therein were collective rights of the Aboriginal community - The British Columbia Court of Appeal agreed - Absent a challenge by the Fort Nelson First Nation, the instruments in issue could not be attacked by individual members of the First Nation on the basis of inadequate consultation or on any other basis engaging constitutional or treaty rights - See paragraphs 25 to 42.

Indians, Inuit and Métis - Topic 503

Rights - General - Individuality v. collectivity - [See Indians, Inuit and Métis - Topic 3 ].

Practice - Topic 2203

Pleadings - Striking out pleadings - Setting aside order striking out pleadings - The plaintiff held a provincial permit to conduct logging operations on aboriginal (Fort Nelson First Nation) land - That land included Behn family territory - The plaintiff sued the Behns and other members of the First Nation for damages for allegedly blockading access to the logging lands - The Behns filed a statement of defence challenging the validity of the plaintiff's permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect - The plaintiff moved to strike paragraphs of the statement of defence - Hinkson, J., allowed the motion - He concluded that: (1) individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted therein were collective rights of the Aboriginal community; (2) the challenge to the instruments was an impermissible collateral attack on those instruments and should have been pursued through administrative law means; and (3) the constitutional arguments of federal exclusivity could not succeed in the circumstances pleaded and so could not fatally undercut the instruments - The Behns appealed - The British Columbia Court of Appeal noted that the order was made at a pleadings stage before the evidence was fully developed - Because the order came so early in the litigation, only if the pleadings were doomed to fail could they be struck under rule 19(24) - The question was whether it was "plain and obvious" that the pleading had to fail (Hunt v. Carey Canada Inc. (1990 SCC)) - The trial judge recognized this high standard in his reasons - Likewise a pleading should not be lightly struck for lack of standing - The question was whether the judge erred in his application of this high standard - The issue for the Court of Appeal was whether the judge was correct that the paragraphs he ordered struck, even if proved, could not provide an answer to the plaintiff's claim - See paragraphs 23 and 24.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 2203 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The plaintiff held a provincial permit to conduct logging operations on aboriginal (Fort Nelson First Nation) land - That land included Behn family territory - The plaintiff sued the Behns and other members of the First Nation for damages for allegedly blockading access to the logging lands - The Behns filed a statement of defence challenging the validity of the plaintiff's permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect - The plaintiff moved to strike paragraphs of the statement of defence - Hinkson, J., allowed the motion on the basis of, inter alia, abuse of process; the challenge to the instruments was an impermissible collateral attack on those instruments and should have been pursued through administrative law means - The British Columbia Court of Appeal agreed - See paragraphs 43 to 61.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The plaintiff held a provincial permit to conduct logging operations on aboriginal (Fort Nelson First Nation) land - That land included Behn family territory - The plaintiff sued the Behns and other members of the First Nation for damages for allegedly blockading access to the logging lands - The Behns filed a statement of defence challenging the validity of the plaintiff's permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect - The plaintiff moved to strike paragraphs of the statement of defence - Hinkson, J., allowed the motion - He concluded that: (1) individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted therein were collective rights of the Aboriginal community; (2) the challenge to the instruments was an impermissible collateral attack on those instruments and should have been pursued through administrative law means; and (3) the constitutional arguments of federal exclusivity could not succeed in the circumstances pleaded and so could not fatally undercut the instruments - The Behns appealed - The plaintiff applied to adduce fresh evidence - The British Columbia Court of Appeal dismissed the application - The plaintiff claimed that its fresh evidence demonstrated that the Behn family members held five traplines, not just the one described in the statement of defence, and that George Behn was not the headman of either the Rupert or the Richard Behn Family Collective as alleged in the statement of defence - It agreed that the substance of the fresh evidence existed at the time of the hearing before the judge, but maintained that the evidence was unknown to it - It contended that the evidence was relevant to the motion to strike the Behns' pleadings under rule 19(24)(b) to (d) as it further demonstrated that the Behns' pleadings were scandalous, embarrassing or an abuse of process - The court held that the proposed fresh evidence did not meet the admission criteria - Setting aside the issue of its earlier availability, the fresh evidence did not appear to go to the heart of the three legal issues before the court - Only if the court concluded that these issues should be resolved in the Behns' favour did the trial court need to enquire into the substance of the matters addressed in the fresh evidence, being the nature of the Behns' holdings and the relationship of family members to each other - That enquiry would be a factual one that could not, and should not, be undertaken at this stage - The fresh evidence did not meet the second or fourth test for its admission at this late stage (relevant in the sense that it bore upon a decisive or potentially decisive trial issue; and, if believed, could reasonably have been expected to have affected the result) - See paragraphs 16 to 20.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The plaintiff held a provincial permit to conduct logging operations on aboriginal (Fort Nelson First Nation) land - That land included Behn family territory - The plaintiff sued the Behns and other members of the First Nation for damages for allegedly blockading access to the logging lands - The Behns filed a statement of defence challenging the validity of the plaintiff's permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect - The plaintiff moved to strike paragraphs of the statement of defence - Hinkson, J., allowed the motion - He concluded that: (1) individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted therein were collective rights of the Aboriginal community; (2) the challenge to the instruments was an impermissible collateral attack on those instruments and should have been pursued through administrative law means; and (3) the constitutional arguments of federal exclusivity could not succeed in the circumstances pleaded and so could not fatally undercut the instruments - The Behns appealed - The third party Crown applied to adduce fresh evidence - The British Columbia Court of Appeal dismissed the application - The proposed fresh evidence did not satisfy the second or fourth test for admission - It related to other land and mineral issues between the Fort Nelson First Nation and the Crown, and even if accepted was not capable of determining the issues before the court - See paragraph 21.

Cases Noticed:

Topgro Greenhouses Ltd. et al. v. Houweling (2004), 193 B.C.A.C. 94; 316 W.A.C. 94; 2004 BCCA 39, refd to. [para. 19].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 19].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 23].

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. 30].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al. (2005), 342 N.R. 82; 2005 SCC 69, refd to. [para. 30].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al. (2010), 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 33].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 35].

R. v. Gray (D.J.) - see R. v. Sappier (D.M.) et al.

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 36].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 36].

Queackar-Komoyue Nation v. British Columbia - see Komoyue Heritage Society et al. v. British Columbia (Attorney General) et al.

Komoyue Heritage Society et al. v. British Columbia (Attorney General) et al., [2006] B.C.T.C. 1517; 2006 BCSC 1517, agreed with [para. 37].

Oregon Jack Creek Indian Band Chief v. Canadian National Railway Co. (1989), 34 B.C.L.R.(2d) 344 (C.A.), affd. [1989] 2 S.C.R. 1069; 102 N.R. 76; 63 D.L.R.(4th) 607, refd to. [para. 37].

Sawridge Indian Band et al. v. Canada (2001), 283 N.R. 112; 2001 FCA 399, refd to. [para. 37].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1; [1999] 4 C.N.L.R. 301, refd to. [para. 37].

R. v. Chevrier, [1989] 1 C.N.L.R. 128; 6 W.C.B.(2d) 43 (Ont. Dist. Ct.), refd to. [para. 37].

R. v. Trotchie (A.A.) (2002), 225 Sask.R. 187; 2002 SKPC 99, refd to. [para. 37].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 37].

Canadian National Railway Co. v. Brant et al., [2009] O.T.C. Uned. F18; 96 O.R.(3d) 734; [2009] 4 C.N.L.R. 47 (Sup. Ct.), refd to. [para. 38].

Berscheid v. Ensign et al. (1999), 12 B.C.T.C. 341 (S.C.), refd to. [para. 44].

Cosens Bay Property Owners Society et al. v. Canada (Minister of Environment, Lands and Parks) et al., [1993] B.C.T.C. Uned. 623 (S.C.), refd to. [para. 44].

Malahat Indian Band v. British Columbia (Minister of Environment, Lands and Parks), [1998] B.C.T.C. Uned. G94 (S.C.), refd to. [para. 44].

TeleZone Inc. v. Canada (Attorney General) (2004), 245 O.A.C. 91; 2008 ONCA 892, refd to. [para. 44].

Keewatin et al. v. Ontario (Minister of Natural Resources) et al. (2003), 174 O.A.C. 332; 66 O.R.(3d) 370 (Div. Ct.), refd to. [para. 44].

Williams et al. v. College Pension Board of Trustees et al., [2005] B.C.T.C. 788; 2005 BCSC 788, revd. (2007), 236 B.C.A.C. 287; 390 W.A.C. 287; 2007 BCCA 19, refd to. [para. 44].

Frontenac Ventures Corp. v. Ardoch Algonquin First Nation et al. (2008), 239 O.A.C. 257; 2008 ONCA 534, refd to. [para. 44].

Relentless Energy Corp. v. Davis et al., [2004] B.C.T.C. Uned. 665; 2004 BCSC 1492, refd to. [para. 44].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (2001), 149 O.A.C. 213; 55 O.R.(3d) 541 (C.A.), affd. [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 47].

Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R.(2d) 173; 538 A.P.R. 173 (C.A.), refd to. [para. 47].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161; 133 D.L.R.(4th) 658, refd to. [para. 50].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (1999), 9 B.C.T.C. 213; 1999 CanLII 5674 (S.C.), leave to appeal refused (1999), 128 B.C.A.C. 120; 208 W.A.C. 120; 1999 BCCA 442, affd. (1999), 131 B.C.A.C. 13; 214 W.A.C. 13; 1999 BCCA 550, refd to. [para. 50].

Canada (Attorney General) v. MacArthur - see McArthur v. Canada (Attorney General).

McArthur v. Canada (Attorney General) (2010), 410 N.R. 55; 273 O.A.C. 55; 2010 SCC 63, refd to. [para. 51].

Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada et al. (2010), 410 N.R. 94; 2010 SCC 66, refd to. [para. 51].

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 51].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 52].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 52].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 52].

Cimaco International Sales Inc. v. British Columbia (Attorney General) et al. (2010), 290 B.C.A.C. 89; 491 W.A.C. 89; 2010 BCCA 342, refd to. [para. 54].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 63].

British Columbia (Attorney General) v. Lafarge Canada Inc. - see Burrardview Neighbourhood Association v. Vancouver (City) et al.

Burrardview Neighbourhood Association v. Vancouver (City) et al., [2007] 2 S.C.R. 86; 362 N.R. 208; 241 B.C.A.C. 1; 399 W.A.C. 1; 2007 SCC 23, refd to. [para. 63].

R. v. Morris (I.) et al., [2006] 2 S.C.R. 915; 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [para. 63].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 65].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 65].

R. v. Alphonse (W.) (1993), 29 B.C.A.C. 161; 48 W.A.C. 161; 80 B.C.L.R.(2d) 17 (C.A.), refd to. [para. 65].

R. v. Meshake (H.) (2007), 223 O.A.C. 194; 2007 ONCA 337, refd to. [para. 65].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 1999 BCCA 470, refd to. [para. 65].

Saanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R.(2d) 79 (C.A.), refd to. [para. 65].

Stoney Creek Indian Band v. Alcan Aluminum Ltd. - see Stoney Creek Indian Band v. British Columbia et al.

Stoney Creek Indian Band v. British Columbia et al. (1999), 129 B.C.A.C. 106; 210 W.A.C. 106; 1999 BCCA 527, refd to. [para. 67].

Authors and Works Noticed:

Newman, Dwight G., The Duty to Consult: New Relationships with Aboriginal Peoples (2009), generally [para. 33].

Counsel:

R. Janes and K. Brooks, for the appellants;

C. Willms and K. Grist, for the respondent, Moulton Contracting Ltd.;

K. Phillips and J. Oliphant, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia;

A. Rana, for respondents, Chief Liz Logan and Fort Nelson First Nation.

This appeal was heard at Vancouver, B.C., on November 17-19, 2010, by Saunders, Chiasson and Frankel, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following decision for the court on July 6, 2011.