Ross River Dena Council v. Canada (Attorney General), 2015 YKCA 16

• Judge: Bennett, Garson and Savage, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: September 16, 2015
• Jurisdiction: Yukon
• Citations: 2015 YKCA 16;(2015), 378 B.C.A.C. 95 (YukCA)

Ross River Dena Council v. Can. (A.G.) (2015), 378 B.C.A.C. 95 (YukCA);

    650 W.A.C. 95

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. NO.010

Ross River Dena Council (appellant/plaintiff) v. Attorney General of Canada (respondent/defendant)

(15-YU760; 2015 YKCA 16)

Indexed As: Ross River Dena Council v. Canada (Attorney General)

Yukon Court of Appeal

Bennett, Garson and Savage, JJ.A.

September 16, 2015.

Summary:

This litigation included two actions commenced by the plaintiff band against the Attorney General of Canada. The first action was, in essence, a land claim. The second action sought declarations and damages arising out of the alleged failure of the Crown to negotiate with due diligence and in good faith to settle the plaintiff's claims over lands comprising approximately 23% of Yukon (of which the lands claimed in the first action formed a part). The two actions were case managed together, with the intent that they be tried at the same time. The case management judge granted a consent order directing that the following question be tried during the days that had been set aside for the trial of the actions: "Were the terms and conditions referred to in the Rupert's Land and North-western Territory Order of June 23, 1870 concerning 'the claims of the Indian tribes to compensation for lands required for purposes of settlement' intended to have legal force and effect and give rise to obligations capable of being enforced by this Court?"

The Yukon Supreme Court, in a decision reported at [2012] Yukon Cases Uned. (SC) 4, agreed with Canada that the relevant provision in the 1870 Order could not create an obligation to negotiate treaties and that Canada retained the discretion to decide if, when, and how to negotiate, as a matter of Crown prerogative. The plaintiff appealed.

The Yukon Court of Appeal, in a decision reported at 2012 YKCA 10, expressed concern with the procedure taken by the Supreme Court, by severing the question from other issues in the litigation, and sought further submissions before pronouncing judgment on the appeal.

The Yukon Court of Appeal, in a decision reported at (2013), 337 B.C.A.C. 299; 576 W.A.C. 299, allowed the appeal, with each party to bear its own costs, and remitted the litigation to the Yukon Supreme Court. "The question that the court purported to answer was not appropriately severed from other issues in the litigation. In the result, neither the answer provided by the court nor its analysis in reaching that answer should be considered binding in its further proceedings." The matter was set for trial. The plaintiff decided that it did not want the second action to be heard with the first action. The trial proceeded on the basis that only the first action would be tried, with the second action held in abeyance. After all of the evidence and submissions had been heard, Canada asked the trial judge to "suspend" the decision until the second action had been tried. The trial judge concluded that he should do so and ruled accordingly. The effect of the order was to adjourn the trial, join the second action and hear it in conjunction with the first action before a decision was rendered. The plaintiff filed a notice of appeal of the decision to suspend the action. The relief sought in the notice of appeal included (a) that the order below be set aside and (b), (c) and (d) all of the substantive relief sought in the cause of action. Canada applied to quash the appeal except as to ground (a).

The Yukon Court of Appeal allowed the application. The plaintiff had asked the court to read the record before the trial judge and make findings of fact and legal determinations without a decision from the trial court. The court had no jurisdiction to do so. An appellate court heard appeals based on orders. Through grounds (b), (c) and (d), the plaintiff sought a decision on matters that were presently before the trial judge. They were not matters necessary or incidental to the only appeal properly brought before the court.

Courts - Topic 2101

Jurisdiction - Appellate jurisdiction - General - See paragraphs 13 to 21.

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - See paragraphs 13 to 21.

Cases Noticed:

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 13].

British Columbia Ferry Corp. v. British Columbia Ferry & Marine Workers' Union (1979), 100 D.L.R.(3d) 705 (B.C.C.A.), refd to. [para. 15].

Counsel:

S.L. Walsh (via teleconference), for the appellant;

S.M. Duncan and G. Chabot (via teleconference), for the respondent.

This application was heard at Vancouver, B.C., on September 16, 2015, by Bennett, Garson and Savage, JJ.A., of the Yukon Court of Appeal. On the same date, Bennett, J.A., delivered the following oral reasons for judgment for the court.