2015 QCCA 2, 2015 QCCA 2

Unofficial English Translation Compagnie minière IOC inc. (Iron Ore Company of Canada) c. Uashaunnuat (Innus de Uashat et de Mani-Utenam) 2015 QCCA 2 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY No. 500-09-024768-145 (500-17-076401-135) DATE: JANUARY 6, 2015 PRESENT: THE HONOURABLE GENEVIÈVE MARCOTTE J.A. IRON ORE COMPANY OF CANADA QUÉBEC NORTH SHORE AND LABRADOR RAILWAY COMPANY INC. PETITIONERS - Defendants v.

THE UASHAUNNUAT (THE INNU OF UASHAT AND MANI-UTENAM) THE INNU OF MATIMEKUSH-LAC JOHN CHIEF GEORGES-ERNEST GRÉGOIRE CHIEF RÉAL MCKENZIE THE INNU TAKUAIKAN UASHAT MAK MANIUTENAM BAND THE INNU MATIMEKUSH-LAC JOHN NATION MIKE M c KENZIE, Deputy Chief of Mani-Utenam, and the other Council Members YVES ROCK, JONATHAN M c KENZIE, RONALD FONTAINE, MARIE-MARTHE FONTAINE, MARCELLE ST-ONGE, ÉVELYNE ST-ONGE, WILLIAM FONTAINE and ADÉLARD JOSEPH CAROLINE GABRIEL, MARIE-MARTHE M c KENZIE, MARIE-LINE AMBROISE, Council Members, and PACO VACHON ALBERT VOLLANT, RAOUL VOLLANT, GILBERT MICHEL, AGNÈS M c KENZIE, PHILIPPE M c KENZIE and AUGUSTE JEAN-PIERRE RESPONDENTS - Plaintiffs and ATTORNEY GENERAL OF QUÉBEC IMPLEADED PARTY JUDGMENT [ 1 ] The petitioners seek leave to appeal from the judgment rendered on September 19, 2014 by the Superior Court, District of Montréal (the Honourable Marc-André Blanchard), which dismissed their motion for dismissal filed under article 165(4) of the Code of Civil Procedure (C.C.P.) and articles 4.1 and 4.2 of the C.C.P.

CONTEXT [ 2 ] This motion follows from a proceeding brought by the respondents the Innu of Uashat, Mani-Uteman and Matimekush-Lac John against the petitioners, the Iron Ore Company of Canada and the Québec North Shore and Labrador Railway Company Inc. The respondents claimed damages of $900 000 000 for infringement of Aboriginal title, Aboriginal rights and treaty rights, and sought declaratory relief for the recognition of their Aboriginal title over the territory they occupy in the Québec-Labrador peninsula, where the petitioners conduct mining activities, and port and rail operations.

The respondents also sought an order for a permanent injunction to have those activities and operations cease. [3] In support of the application for dismissal, the petitioners argue that, before bringing their civil liability action against private parties, as in the case at hand, the respondents had to obtain recognition of their titles and rights protected under

section 35 of the Constitution Act, 1982 . According to them, the respondents should have named the Crown as a defendant, rather than simply as an impleaded party, as they did. The petitioners further contend that the Aboriginal rights claimed, though as yet neither recognized nor established, impose no obligation on third parties that could incur their civil liability. They claim moreover that the respondents' action constitutes an impediment to the process of reconciliation to be accomplished with the Crown and that it contravenes the principle of proportionality.

The trial judge did not accept their claims and denied the motion. [4] Contrary to what the petitioners argue, the judge did not conclude that an action seeking recognition of Aboriginal and treaty rights, and Aboriginal title can legally be brought against private parties.

In light of the allegations in the motion, which must be held to have been proven, the effect of his judgment was rather to acknowledge that the process of reconciliation between the respondents and the Crown can be achieved outside the framework of the court proceedings and that there was no reason to dismiss at a preliminary stage the action for damages on the basis of the petitioners' extra-contractual civil liability or pursuant to the strict regime of civil liability enacted by

article 976 of the Civil Code of Québec (C.C.Q.). [5] With regard to extra-contractual fault, the judge in fact stated that he could not assert with certainty that the respondents would be unable to discharge their burden of proving both the fault and the damage arising from it. The judge emphasized that the petitioners had not argued that the existence of the rights claimed depended on recognition by the government or the judiciary.

They contended, rather, that in the absence of such recognition, the extent, scope, substantive content and existence of the rights claimed remain unknown and the resultant obligations will vary accordingly, so that their civil liability could not be demonstrated. [6] The judge also examined the petitioners' authorities, including Tolko Industries Ltd. v. Okanagan Indian Band , [1] and pointed out that the

interpretation they proposed did not concord with the judgment, which recognized that there was a fair question to be tried rather than the absence of any legal foundation for the action. [7] As for the Crown's role as a party to the dispute, the judge concluded that the Attorney General of Québec was satisfied with the notice under

article 95 C.C.P. that had been served on him and deemed himself to be a full party to the dispute. That voids the argument raised by the petitioners regarding the Attorney General's being named an impleaded party rather than a defendant in the proceedings.

[8] In that respect, he referred to Thomas v. Rio Tinto Alcan Inc ., [2] which dismissed the Aboriginal action in particular because the Crown did not participate in the dispute.

He also pointed out that the assertion in that judgment concerning the advisability of consultation, accommodation or negotiation with the Crown was not tantamount to declaring that the action instituted clearly and manifestly lacked a legal foundation, as argued here by the petitioners. [9] Lastly, he rejected the argument of proportionality that was brought forth, by pointing out that it could even be perceived as advantageous to avoid an initial debate with the Crown, in the absence of the petitioners, as a second proceeding would likely invoke similar evidence to establish the petitioners' liability.

He added that, in his opinion, the proceeding did not entail abusive use of a public service.

CONTENTIONS OF THE PARTIES [10] While agreeing that leave to appeal is not generally granted for judgments dismissing a motion to dismiss, since they do not bind the trial judge and therefore do not involve irremediable consequences, the petitioners argued that the issues raised, which bear on the very nature of the legal relationships between the Aboriginal communities and the other members of society, are issues of new law that are manifestly of great importance for the public and must be decided immediately by the Court of Appeal. [11] They put forth that Thomas v .

Rio Tinto Alcan , [3] a similar case, was appealed in British Columbia. But that judgment, which was inscribed in appeal, allowed rather than dismissed the motion to dismiss presented against the motion for an injunction based on infringement of Aboriginal title and Aboriginal rights. [12] For their part, the respondents acknowledged that the issue is one of public law, and the question submitted, one of public interest.

They nonetheless contended that the question raised is not new and need not be decided immediately, all the more so as the petitioners did not allege irremediable consequences in order to justify the exceptional leave sought. APPLICABLE PRINCIPLES OF LAW, AND ANALYSIS [13] In Elitis Pharma inc. v. RX Job inc . , [4] the Court pointed out that, in a case of leave to appeal from an interlocutory judgment, a judge sitting alone must have already determined that the impugned judgment is consistent with one of the three situations set forth in

article 29 C.C.P., that is, that it in part decides the issues , that it orders the doing of anything which cannot be remedied by the final judgment or that it unnecessarily delays the trial of the suit , before exercising his or her judicial discretion provided for in

article 511 C.C.P. to grant or deny leave to appeal as the interests of justice demand. [14] More recently, in Cree Nation of Mistissini v. Baie-James (Municipalité de) , [5] my colleague Bich J.A., referring in fact to Elitis Pharma inc ., [6] reiterated the principle of the limited statutory jurisdiction of the Court of Appeal or any of its judges. [15] It is well established that a judgment dismissing a motion to dismiss does not fall under any of the three situations set out in

article 29 C.C.P., as it does not result in irremediable consequences or res judicata , and does not bind the trial judge. [16] The jurisprudence has nonetheless developed four exceptions making it possible to obtain leave to appeal from a judgment dismissing a motion to dismiss: (1) the case raises an issue of jurisdiction; (2) there is lis pendens ; (3) there is res judicata ; or (4) the case presents a new question of law, a question of public or substantive law that must be ruled on immediately. [17] The petitioners based their application for leave to appeal on the fourth exception. [18] The fourth exception, characterized as a [TRANSLATION] "narrow corridor", [7] is recognized only in

rare circumstances, as pointed out by my colleague Bich J.A. inPharma Biotech inc. v. Biogentis inc.[8] [19] The petitioners in the case at hand plead the interest of the need to obtain recognition of Aboriginal title prior to bringing anaction against a private party.

But that is not the only issue raised by the respondents' action, since they also cite the petitioners' extra-contractual civil liability and the neighbourhood disturbances the petitioners impose on them, a issue that could not be resolved at thedismissal stage. [20] In relation to the issue of the recognition of Aboriginal title, the petitioners, beyond demonstrating that the question before us isone of public law and the public interest, also had to convince me that the question is new, requiring an immediate decision.

In thatrespect, they had to demonstrate that continuation of the action would result in substantial or irremediable harm to them. My colleagueBich J.A. had the following to say on this in Québec (Procureure générale) v.

Incimal: [TRANSLATION] [9] Besides, even if the question were worthy of being submitted to the Court, the petitioner has not demonstrated why it should besubmitted immediately, were it to prevent substantial harm, for example, harm that would be irremediable: The petitioner has notestablished how allowing the respondent's suit to go forward would cause her harm of that extent, all the less so as the Superior Courtjudgment dismissing the motion for dismissal, as indicated earlier, does not have the effect of res judicata and does not prevent her fromurging her grounds fully, on the merits.

The essentially rhetorical argument that the proceeding was unnecessary does not suffice either,even less so when one considers that premature dismissal of the respondent's action would cause her serious harm. In support of hercontentions, the petitioner also invoked Gillet v. Arthur, (QC CA), [2005] R.J.Q. 42 (C.A.) but, as we can see inparticular from paragraphs 20 and 21 of that ruling, the question to be decided in that case struck [TRANSLATION] "directly at the veryheart of the jurisdiction of the institution of the Superior Court" (para. 21), hence the need to rule immediately.

There is nothing like thatin the case before us.[9] [Emphasis added.] [21] At the hearing, the petitioners insisted on the interest of obtaining an immediate ruling by this Court, to avoid paving the way fora proliferation of claims against private parties. [22] I note, however, that they did not invoke harm specific to themselves and that the risk they mention remains hypothetical. Withrespect to the costs of this proceeding, I, like my colleague Bich J.A. in Cree Nation of Mistissini v.

Baie-James (Municipalité de),[10]consider that costs constitute a risk inherent in all disputes and, as a general rule, fail to support the existence of irreparable harm.[11] [23] Even if we were to presume that the question raised in this case is new, a presumption contested by the respondents, I believethat the interests of justice do not argue here in favour of immediate appeal, all the less so as the petitioners have not invokedirremediable harm that would warrant having the Court of Appeal rule immediately on the questions in dispute, without benefit of afactual basis derived from a trial and judgment on the merits.[12] THEREFORE, I: [24] DISMISS the motion for leave to appeal, with costs.

GENEVIÈVE MARCOTTE J.A. Mtre. François Fontaine, Ad. E. Mtre. Andres Garin NORTON ROSE FULBRIGHT CANADA

Counsel for the petitioners Mtre. James O’Reilly, Ad. E. O’REILLY & ASSOCIÉS Counsel for the respondents the Uashaunnuat (the Innu of Uashat and Mani-Utenam) Mtre. Mark Phillips Mtre. Marie-Christine Gagnon BORDEN LADNER GERVAIS Counsel for the respondents the Innu Matimekush-Lac John Nation, the Innu of Matimekush-Lac John and Chief Réal McKenzie Mtre. Jean-François Bertrand JEAN-FRANÇOIS BERTRAND AVOCATS INC.

For the respondents Chief Georges-Ernest Grégoire, the Innu Takuaikan Uashat Mak Maniutenam Band, Mike McKenzie, Deputy Chief of Usahat Mani-Utenam, and the other Council Members Yves Rock, Jonathan McKenzie, Ronald Fontaine, Marie-Marthe Fontaine, Marcelle St-Onge, Évelyne St-Onge, William Fontaine and Adélard Joseph Caroline Gabriel, Marie-Marthe McKenzie, Marie-Line Ambroise, Council Members, and Paco Vachon Albert Vollant, Raoul Vollant, Gilbert Michel, Agnès McKenzie, Philippe McKenzie and Auguste Jean-Pierre Mtre. André Fauteux Mtre.

Stéphanie-Lisa Roberts BERNARD, ROY – Justice Québec Direction générale des affaires juridiques et législatives Counsel for the Attorney General of Québec Date of hearing: November 25, 2014