2016 QCCA 1428, 2016 QCCA 1428

Mohawk Council of Kanesatake c. Quebec (Attorney General) 2016 QCCA 1428 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025759-150 (500-17-089666-153) MINUTES OF THE HEARING DATE: September 2, 2016 CORAM: THE HONOURABLE yves-marie morissette , J.A. guy gagnon , J.A. marie-josée hogue , J.A. APPELLANT COUNSEL MOHAWK COUNCIL OF KANESATAKE Mtre NICHOLAS DODD Mtre CHARLOTTE CHICOINE-WILSON (Dionne Schulze s.e.n.c.) RESPONDENTS COUNSEL ATTORNEY GENERAL OF QUEBEC Mtre DANIEL BENGHOZI Mtre FLORENCE LAVIGNE LE BUIS (Direction générale des aff. jur. et légis.) ATTORNEY GENERAL OF CANADA Mtre MIREILLE-ANNE RAINVILLE Mtre MARIE-ÈVE ROBILLARD ( Department of Justice)

On appeal from a judgment rendered on November 4, 2015 by the Honourable Justice Kirkland Casgrain of the Superior Court, District of Montreal. DESCRIPTION: Inadmissibility - Limitation period for damage claims - Tripartite Agreement on the funding of the Kanesatake police force Clerk: Mihary Andrianaivo Courtroom: Pierre-Basile-Mignault HEARING 9:30 Commencement of the hearing. Continuation of the August 31, 2016's hearing. The parties were excused from appearing in Court this morning BY THE COURT: Judgment – See page 3. End of the hearing.

Mihary Andrianaivo Clerk BY THE COURT JUDGMENT [ 1 ] The Mohawk Council of Kanesatake has appealed a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Kirkland Casgrain), rendered on November 4, 2015, and which granted the motions to dismiss filed by both the Attorney General of Quebec (AGQ) and the Attorney General of Canada (AGC) under para. 165(4) of the old Code of Civil Procedure .

The judge thereby dismissed the Council’s action in damages on the ground that it was prescribed. [ 2 ] The Council maintains that the government of Canada, as well as the government of Quebec, committed a fault in 2005 when they unilaterally decided to suspend payment of the funding agreed upon in a TriPartite Agreement for the provision of the policing services in the community of Kanesatake. This funding was suspended because the Mohawk police force was not able to fulfill its obligations, which consisted primarily in patrolling the Kanesatake Mohawk Territory to maintain peace, order and public security.

This suspension led to the Council’s decision to terminate its police officers’ employment. [ 3 ] The Council initiated legal proceedings against the AGC and the AGQ by January 2006 in which it claimed « the sum of $582,400.00 and all subsequent damages in an amount to be perfected at trial » as well as various declaratory reliefs. However, it never inscribed its case for proof and hearing and as a result the claim was deemed to have been discontinued. [ 4 ] In October 2008, two police officers amongst those who have been terminated filed a claim against the Council. One alleged that

his employment contract was for a fixed term and consequently requested his salary to be paid until its expiry date while the other alleged that he did not receive sufficient notice and therefore claimed a reasonable notice period as compensation. [ 5 ] The Council contested these two claims but the Court, on July 12, 2012, granted the actions and ordered the Council to pay sums of $43,991.68 to one and $30,000.00 to the other. [ 6 ] On July 24, 2015, the Council filed new proceedings against the AGC and the AGQ containing alternative conclusions but essentially claiming the amount awarded by the Court to the police officers, the legal fees it incurred to defend these claims as well as damages for the pain and suffering, stress and feelings of powerlessness and victimization resulting from this judgment.

Those are the proceedings that were dismissed by Mr. Justice Casgrain. [ 7 ] The Council maintains that the action is not prescribed since the damages claimed are different from those he was aware of and was in a position to claim in 2005. For the Council, it is the judgment rendered in 2012 that constitutes the starting point of the limitation period and not the date on which the funding was suspended or was payable.

Up until this judgment, the Council says, it did not know if anything would ever be payable to these two police officers and it therefore was not in a position to claim anything. [ 8 ] This judgment having been rendered on July 26, 2012 and the Motion to Institute proceedings having been filed on July 24, 2015, the Council maintains that its claim was instituted within the limitation period applicable to this case, which is 3 years. [ 9 ] Although the judgment appealed from is laconic, which is deplorable since it does dismiss summarily a claim for damages, the Court is of the view that it is nevertheless well-founded. [ 10 ] It is a well established principle that prescription begins to run when the creditor can exercise his right of action, which is usually the case when, to the creditor’s knowledge, a fault is committed and causes damage. [ 11 ] In contractual matters, this moment generally occurs when the debt is payable but remains unpaid. [ 12 ] Here, the fault alleged against the AGC and the AGQ, which is contractual, is the omission to provide the funding agreed upon in the Tripartite Agreement. [ 13 ] The decision to suspend the funding was communicated to the Council on October 12, 2005 and it was implemented as of November 1 st , 2005.

The last instalment, as per the Tripartite Agreement, was to be made in February 2006. [ 14 ] In the Court’s view, the prescription applicable to the claim filed in 2015 started running no later than February 2006, i.e . when the last instalment was payable. It could have started earlier but the facts brought to the Court’s attention do not allow it to draw a firm conclusion in this regard. [ 15 ] The Council could have exercised its rights and claimed the damages caused by the suspension of the funding in 2006.

It knew by then that funding was owed and remained unpaid given the governments’ decision to suspend it.

The issue here is not whether it did claim these very same damages in its initial proceedings but rather whether it could have claimed them. [ 16 ] The evidence shows that the Council knew very well that additional money could be payable to its former employees given the termination of their employment. [ 17 ] On October 21, 2005, in a letter sent to AGC and AGQ, it wrote: It is important to draw your attention on the important liability that your Deputy Ministers have forced on Council and the two level of Government.

By taking this unilateral decision to cut funding as of November 1 st , the Council will be in breach of its agreements or contracts with suppliers or employees. [ 18 ] On November 14, 2005, in an other letter again sent to AGC and AGQ, it added: Needless to say that with the sudden withholding of funds the MCK is in default and worse, is causing great prejudice to employees that have fulfill their contracts diligently.

The [Council] payroll clerk has estimated the last salary disbursement to be $37,485.35. [ 19 ] It was not necessary for the Council to know exactly how much must be paid before it could exercise its right of action against AGC and AGQ. The law provides various mechanisms, such as amendments, suspension and others, to cope with circumstances such as those it was facing. [ 20 ] It is noteworthy that in the proceedings filed in 2006, the Council refers specifically, under the heading DAMAGES, to these liabilities: 44.

The Defendants’ unreasonable and abusive actions have exposed Plaintiff to liabilities it would not otherwise have to address, including as regards contracts and agreements with suppliers and employees who were retained as part of the ongoing implementation of the TPA. [ 21 ] It is also interesting to point out that in the proceedings filed in 2015, the Council claims interests starting as of October 21, 2005, which suggests that it does consider the amounts claimed to be owed from that time. [ 22 ] Although the Council suggests that its action is of the nature of a recursory action, the Court disagrees. As Mr.

Justice Baudouin (as he then was) once pointed out [1] : On a souvent tendance à qualifier d’”action récursoire” l’ensemble des recours qu’une partie, condamnée par un jugement, peut avoir contre d’autres personnes. Il me paraît que c’est là une extension indue de ce terme, extension qui porte à confusion. […]

Ce qui caractérise donc l’action récursoire véritable c’est, me semble-t-il, l’existence d’un même lien d’obligation assumée par deux ou plusieurs débiteurs à l’endroit d’un même créancier. [ 23 ] The claims for legal fees and for moral damages must also fail. The proceedings do not allege facts that would allow the Court to award them. Furthermore, as acknowledged by the Council at the hearing, those claims are linked to the “main” claim. Once the “main” claim is dismissed, they no longer have any foundation. FOR THESE REASONS , the Court: [ 24 ] DISMISSES the appeal, with legal costs. YVES-MARIE MORISSETTE, J.A. GUY GAGNON, J.A. MARIE-JOSEE HOGUE, J.A.