Waquan v Canada (Attorney General), 2016 ABQB 280

Court of Queen’s Bench of Alberta Citation: Waquan v Canada (Attorney General), 2016 ABQB 280 Date: 20160516 Docket: 1501 01939 Registry: Calgary Between: Archie Waquan, Norbert Poitras and Amanda Poitras on Their Own Behalf and on Behalf of the Members of the Mikisew Cree First Nation Plaintiffs - and - The Attorney General of Canada, Former Deputy Minister of Aboriginal Affairs and Northern Development Michael Wernick, Her Majesty the Queen In Right of Alberta, Neil Reddekopp, Shaun Mellen, Ron Stevenson, Sheila Read, Robert Janes, Robert Freedman, N.

Kate Kempton, Cook Roberts LLP, Olthuis, Kleer, Townshend LLP, Miller Thomson LLP, John Doe I, John Doe II, Jane Doe I , and Jane Doe II Defendants _______________________________________________________ Reasons for Judgment on Reconsideration of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Background [ 1 ] On March 31, 2016 I issued Reasons for Judgment in Waquan v Canada (Attorney General) , 2016 ABQB 191 . On April

21, 2016, counsel for the Plaintiffs Archie Waquan, Norbert Poitras and Amanda Poitras referred me to paragraphs 35 – 40 of the decision of the Federal Court in Chief Eugene Horseman and the Horse Lake First Nation v. Her Majesty the Queen , 2015 FC 1149 , and requested that I reconsider my decision in Waquan prior to the entry of judgment in that matter. The decision in Horseman had been issued after I had reserved judgment in Waquan , but before my Reasons were issued.

On April 27, 2016 I asked counsel for the Plaintiffs and for the Defendant Attorney General to provide me with written submissions in respect of the request for a reconsideration. Analysis [ 2 ] Rule 9.13 of the Alberta Rules of Court (“ARC”) provides: At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 3 ] As has been noted in Evans v. Sports Corp. , 2011 ABQB 478 , Paniccia Estate v Toal , 2012 ABQB 11 and Lewis Estates Communities Inc. v Brownlee LLP , 2013 ABQB 731 , ARC 9.13 represents an expansion of judicial discretion from that contained in the predecessor Rule 339, which allowed the Court to make corrections in respect of clerical mistakes or errors arising from any “accident, slip or omission”. Nevertheless, the discretion under ARC 9.13 is not boundless. In Evans , ARC 9.13 was applied to correct the

interpretation of a contractual term that all parties agreed was in error. In Paniccia Estate , the Rule was applied to correct what the trial judge later concluded was an incorrect statement of the law that would have led to an untenable result. In Lewis Estates , Russell Brown J. held, at para.33: It makes sense to apply R. 9.13 to correct the sorts of errors identified in Evans and Paniccia Estate . Doing so not only averts an injustice but saves litigants the costs and delay of bringing an otherwise unnecessary appeal.

R. 9.13 is not, however, a vehicle for seeking reconsideration of a judgment call such as the treatment of evidence or the finding of facts. An unsuccessful litigant’s remedy in such a case lies only in an appeal. And, because judgments need not and often will not specifically address every argument put before the Court, where a Court is invited to reconsider under R. 9.13 a matter that it has specifically addressed in its original judgment, the putative error ought be plain and manifest. Otherwise, R. 9.13 would quickly become a vehicle for litigants seeking second kicks at the can.

This concern also explains why the test for the admission of fresh evidence on appeals is so high; the trial is designed to determine the facts. [ 4 ] The principles of fairness, justice and efficiency set out in ARC 1.2 weigh in favour of an

interpretation of ARC 9.13 that allows the Court to correct a plan and manifest error, but does not allow another “kick at the can”. [ 5 ] The Plaintiffs’ request for a reconsideration is denied for two reasons. First, Horseman is a decision of the trial division of the Federal Court of Canada. It is not binding on this Court. The existence of a contrary, non-binding decision is insufficient to show the sort of plain and manifest error that ARC 9.13 is intended to allow the Court to correct.

To the extent that trial courts come to contrary decisions, it is the task of appellate courts to resolve the discrepancies. [ 6 ] That said, non-binding decisions of other Courts on the same issue and on similar facts may be persuasive. So too with decisions of other judges of this Court.

I hasten to add however, that it has never been the practice for reconsideration to occur simply because a non-binding, contrary decision, is rendered. [ 7 ] Here, the second reason for denying the request for a reconsideration is that it is not apparent to me that the Federal Court Trial Division in Horseman has, as the Plaintiffs contend, “come to the exact opposite conclusion” to the decision in Waquan . In Horseman , the plaintiffs applied to certify an action as a class proceeding.

As in Soldier v Canada , 2009 MBCA 12 , the issue was whether the annuity payments to which the plaintiffs were entitled under treaty must be adjusted to reflect changes in purchasing power. Zinn J., after considering, inter alia , Soldier and the decision of the Supreme Court of Canada in Behn v Moulton Contracting Ltd. , 2013 SCC 26 , concluded that it is not plain and obvious that the right to an annuity payment is a collective, rather than an individual, right such that the claim could not succeed as a class action.

Nevertheless, Zinn J. declined to certify the class proceeding because (at para.71) there were no common issues of fact, because (at para.82) the claim would be better advanced as a representative action and because (at para.90) the proposed representative plaintiffs were not appropriate in the proposed class proceeding. [ 8 ] In short, the circumstances in Horseman were, as Zinn J. acknowledged at para.39, very similar to those in Soldier , which was considered by this Court at length in Waquan .

Also, the right under treaty to an annuity payment is different from the right to take land “in severalty”, is distinguishable. I agree with counsel for the Defendant Attorney General that the decision in Horseman offers no new analysis to the circumstances in the case at bar. [ 9 ] The Plaintiffs’ request for a reconsideration of the decision in Waquan is denied. [ 10 ] Costs in favour of the Defendants who made a written submission will be awarded against the Plaintiffs on this reconsideration application in the sum of $1,500.00 to each Defendant who made a written submission.

Heard by way of written submissions dated May 6 th and 10 th , 2016. Dated at the City of Calgary, Alberta this 16 th day of May, 2016.

Neil Wittmann C.J.C.Q.B.A. Appearances / (Written submissions): J.R.W. Rath for the Plaintiffs D.P. Mallon, Q.C . for the Mikisew Cree First Nation M. Kindrachuk, Q.C./ C. Ashcroft for the Defendants Attorney General of Canada and Former Deputy Minister of Aboriginal Affairs and Northern Development Michael Wernick J.J.L. Hunter, Q.C. for the Defendants Robert Janes, Robert Freedman, Cook Roberts LLP and Miller Thomson LLP J.B.C. Champion, Q.C . for the Defendants N. Kate Kempton and Olthius, Kleer, Townshend LLP