Wasauksing First Nation v. Wasausink Lands, (2004) 184 O.A.C. 84 (CA)

• Judge: Laskin, Cronk and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 04, 2004
• Jurisdiction: Ontario
• Citations: (2004), 184 O.A.C. 84 (CA)

Wasauksing First Nation v. Wasausink Lands (2004), 184 O.A.C. 84 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MR.027

Council of the Wasauksing First Nation a.k.a. Council of Ojibways of Parry Island Band, and John Beaucage and Terry Pegahmagabow, on their own behalf and on behalf of the registered members of the Wasauksing First Nation a.k.a. Ojibways of Parry Island Band (applicants/appellants) v. Wasausink Lands Inc., Joyce Tabobondung, Wilfred King, Dora Tabobondung, Leslie Tabobondung, and Florence Tabobondung (respondents/respondents)

(C37772)

Indexed As: Wasauksing First Nation et al. v. Wasausink Lands Inc. et al.

Ontario Court of Appeal

Laskin, Cronk and Armstrong, JJ.A.

March 4, 2004.

Summary:

A dispute arose as to who controlled a non-profit company incorporated under the Corporations Act (Ont.) to run a cottage land leasing operation for a First Nation. The dispute opposed, as applicants, the present day First Nation's Chief and Band Council and representatives acting for themselves and on behalf of the First Nation's registered members and, as respondents, the company's board of directors and members according to the company's letters patent and bylaws. The dispute arose after the Band Council elected in 1993 reorganized the company as a separate entity free of the de facto control exercised by the First Nation's Chief and Band Council since 1971. The applicants sought: (1) a declaration that all members of the First Nation were members of the company and that the duly elected chief and Band Council were the directors of the company; (2) an order rectifying the company's registers of members and directors as necessary; and (3) an order declaring that the First Nation's custom and practice of the Band Council governing and managing its affairs on behalf of its members was constitutionally exempt from the application of the Corporations Act.

The Ontario Superior Court, in a decision reported [2002] O.T.C. 50, dismissed the application. The applicants appealed. They added a prayer for a constructive trust.

The Ontario Court of Appeal dismissed the appeal.

Company Law - Topic 1755

Books and returns - Books - Rectification - In 1971, a non profit company was set up under the Corporations Act (Ont.) to run a cottage land leasing operation for a First Nation - The company's letters patent and bylaws provided that the company would have a limited membership and directorship to ensure its status as a non-taxable non profit corporation under the Act - Between 1971 and 1994, de facto control of the company was exercised by the First Nation's Chief and Band Council - In 1994, the company was reorganized to run as a separate entity, free of the de facto control exercised by the First Nation's Chief and Band Council - The present day Chief and Band Council and representatives acting for themselves and on behalf of the First Nation's members sought rectification of the company's members' and directors' registers on the basis that it had been "understood" that all of the First Nation's members would be members of the company and that the persons elected as the First Nation's chief and as councillors would be the directors of the company - The trial judge dismissed the application because the applicants failed to establish the factual underpinning for their claim - The Ontario Court of Appeal affirmed the decision - See paragraphs 34 to 73.

Company Law - Topic 1755

Books and returns - Books - Rectification - The Ontario Court of Appeal discussed the scope of the rectification remedy contemplated by s. 309(1) of the Corporations Act (Ont.) and the pre-conditions (including the burden of proof) that had to be met in order to obtain the remedy - See paragraphs 74 to 99.

Indians, Inuit and Métis - Topic 5

General - Interpretation of legislation - A First Nation's Chief, Band Council and representatives acting for themselves and on behalf of the members applied under s. 309(1) of the Corporations Act for rectification of the members' and directors' registers of a non profit company that had been set up to run a cottage land leasing operation for the First Nation - The applicants wanted the books to reflect that it had been "understood" that all of the First Nation's members would be members of the company and that the persons elected as the First Nation's chief and as councillors would be the directors of the company - On the other hand, the company's letters patent and bylaws provided for a limited membership and directorship to ensure the company's status as non-taxable and not-for-profit - The applicants argued that an expansive interpretation of s. 309(1) was required here because its invocation was sought in an aboriginal context - The Ontario Court of Appeal rejected this argument and affirmed the dismissal of the application - The court stated that it did not understand the interpretive principle formulated in Nowegijick (S.C.C.) to mandate the expansive interpretation of laws of general application where such a reading was not warranted - See paragraphs 91 to 96.

Indians, Inuit and Métis - Topic 6015

Aboriginal rights - Claim for - A non-profit company was set up under the Corporations Act (Ont.) to run a cottage land leasing operation for a First Nation - The company's letters patent and bylaws provided for a limited membership and directorship to ensure the company's status as non-taxable and not-for-profit - The First Nation sought a constitutional exemption from the requirements of the Act - The First Nation asked the court to recognize that its members had an aboriginal right under s. 35(1) of the Constitution Act to control and manage the assets of the community according to the traditional practice and custom of "open, inclusive, representative and consensus-based decision-making" - To give effect to this traditional practice or custom, the First Nation wanted the court to ignore the corporate structure and organization of the company, and instead permit the Band Council to manage the company - The Ontario Court of Appeal found no merit in this submission - See paragraphs 106 to 109.

Cases Noticed:

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 53].

McAlpine (Robert) Ltd. v. Byrne Glass Enterprises Ltd. et al. (2001), 141 O.A.C. 167 (C.A.), refd to. [para. 53].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 53].

Joscelyne v. Nissen, [1970] 2 Q.B. 86 (C.A.), refd to. [para. 77].

Peter Pan Drive-In Ltd. v. Flambro Realty Ltd. (1978), 22 O.R.(2d) 291 (H.C.), affd. (1980), 26 O.R.(2d) 746 (C.A.), leave to appeal refused [1980] 1 S.C.R. xi; 32 N.R. 538 (S.C.C.), refd to. [para. 77].

Austin (John) & Sons Ltd. v. Smith (1982), 35 O.R.(2d) 272 (C.A.), refd to. [para. 77].

Dynamex Canada Inc. v. Miller et al. (1998), 161 Nfld. & P.E.I.R. 97; 497 A.P.R. 97 (Nfld. C.A.), refd to. [para. 77].

Public Service Alliance of Canada v. NAV Canada (2002), 158 O.A.C. 276; 59 O.R.(3d) 284 (C.A.), refd to. [para. 77].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201, refd to. [para. 78].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 82].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 82].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; [1979] 3 W.W.R. 676; 96 D.L.R.(3d) 14, refd to. [para. 82].

Nowegijick v. Minister of National Revenue, [1983] 1 S.C.R. 29; 46 N.R. 41; 83 D.T.C. 5041; 144 D.L.R.(3d) 193, consd. [para. 92].

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. 92].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 92].

Adoption of Katie E7-1807, Re (1961), 32 D.L.R.(2d) 686 (N.W.T.C.), refd to. [para. 95].

Casimel et al. v. Insurance Corp. of British Columbia (1993), 30 B.C.A.C. 279; 49 W.A.C. 279; 82 B.C.L.R.(2d) 387 (C.A.), refd to. [para. 95].

Lakeside Colony of Hutterian Brethren et al. v. Hofer et al., [1992] 3 S.C.R. 165; 142 N.R. 241; 81 Man.R.(2d) 1; 30 W.A.C. 1, refd to. [para. 95].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241; 146 D.L.R.(4th) 214, consd. [para. 100].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 107].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289, consd. [para. 107].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 107].

Statutes Noticed:

Corporations Act, R.S.O. 1990, c. C-38, sect. 309(1), sect. 309(2), sect. 309(5) [para. 30].

Authors and Works Noticed:

Martin, J.E., Modern Equity (16th Ed. 2001), pp. 866, 867 [para. 76].

Snell, Principles of Equity (30th Ed. 2000), pp. 693 [para. 76]; 696 [para. 80].

Waddmams, S.M., The Law of Contracts (4th Ed. 1999), pp. 239, 240 [para. 80].

Counsel:

Yehuda Levinson, Eugene Meehan and David Stone, for the applicants/appellants;

Charles Campbell and Renée Lang, for the respondents/respondents.

This appeal was heard on April 2 and 3, 2003, by Laskin, Cronk and Armstrong, JJ.A., of the Ontario Court of Appeal.

The Court of Appeal released the following decision on March 4, 2004.