Fontaine et al v Canada (Attorney General) Date:, 2015 MBCA 78

Citation: Fontaine et al v Canada (Attorney General) Date: 20150821 et al, 2015 MBCA 78 Docket: AI14-30-08289 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ASSEMBLY OF MANITOBA CHIEFS ) ) ) S. Green and (Applicant) Appellant ) K. B. Young ) for the Appellant - and - ) ) LARRY PHILIP FONTAINE, in his ) L. K.

Tesar personal capacity and in his capacity as ) for the Respondents the Executor of the Estate of Agnes Mary ) Fontaine, deceased, MICHELLINE AMMAQ, ) PERCY ARCHIE, CHARLES BAXTER ) Chambers motion heard: SR., ELIJAH BAXTER, EVELYN ) August 13, 2015 BAXTER, DONALD BELCOURT, NORA ) BERNARD, JOHN BOSUM, JANET ) BREWSTER, RHONDA BUFFALO, ) Decision pronounced: ERNESTINE CAIBAIOSAI-GIDMARK, ) August 21, 2015 MICHAEL CARPAN, BRENDA CYR, ) DEANNA CYR, MALCOLM DAWSON, ) ANN DENE, BENNY DOCTOR, LUCY ) DOCTOR, JAMES FONTAINE, in his ) personal capacity and in his capacity as the ) Executor of the Estate of Agnes Mary ) Fontaine, deceased, VINCENT BRADLEY ) FONTAINE, DANA EVA MARIE ) FRANCEY, PEGGY GOOD, FRED KELLY, ) ROSEMARIE KUPTANA, ELIZABETH ) KUSIAK, THERESA LAROCQUE, JANE ) MCCULLUM, CORNELIUS MCCOMBER, ) VERONICA MARTEN, STANLEY ) THOMAS NEPETAYPO, FLORA ) NORTHWEST, NORMAN PAUCHEY, ) CAMBLE QUATELL, ALVIN BARNEY ) SAULTEAUX, CHRISTINE SEMPLE, ) DENNIS SMOKEYDAY, KENNETH ) SPARVIER, EDWARD TAPIATIC, ) HELEN WINDERMAN and ADRIAN ) YELLOWKNEE ) ) ) (Plaintiffs) ) ) - and - ) ) THE ATTORNEY GENERAL OF ) CANADA, THE PRESBYTERIAN ) CHURCH IN CANADA, THE GENERAL ) SYNOD OF THE ANGLICAN CHURCH ) OF CANADA, THE UNITED CHURCH ) OF CANADA, THE BOARD OF HOME ) MISSIONS OF THE UNITED CHURCH ) OF CANADA, THE WOMEN’

S) MISSIONARY SOCIETY OF THE )

PRESBYTERIAN CHURCH, THE ) BAPTIST CHURCH IN CANADA, BOARD ) OF HOME MISSIONS AND SOCIAL ) SERVICES OF THE PRESBYTERIAN ) CHURCH IN BAY, THE CANADA ) IMPACT NORTH MINISTRIES OF THE ) COMPANY FOR THE PROPAGATION ) OF THE GOSPEL IN NEW ENGLAND ) (also known as THE NEW ENGLAND ) COMPANY), THE DIOCESE OF ) SASKATCHEWAN, THE DIOCESE OF ) THE SYNOD OF CARIBOO, THE ) FOREIGN MISSION OF THE ) PRESBYTERIAN CHURCH IN CANADA, ) THE INCORPORATED SYNOD OF THE ) DIOCESE OF HURON, THE ) METHODIST CHURCH OF CANADA, ) THE MISSIONARY SOCIETY OF THE ) ANGLICAN CHURCH OF CANADA, ) THE MISSIONARY SOCIETY OF THE ) METHODIST CHURCH OF CANADA ) (also known as THE METHODIST ) MISSIONARY SOCIETY OF CANADA), ) THE INCORPORATED SYNOD OF THE ) DIOCESE OF ALGOMA, THE SYNOD ) OF THE ANGLICAN CHURCH OF THE ) DIOCESE OF QUEBEC, THE SYNOD ) OF THE DIOCESE OF ATHABASCA, ) THE SYNOD OF THE DIOCESE OF ) BRANDON, THE ANGLICAN SYNOD ) OF THE DIOCESE OF BRITISH ) COLUMBIA, THE SYNOD OF THE ) DIOCESE OF CALGARY, THE SYNOD ) OF THE DIOCESE OF KEEWATIN, THE ) SYNOD OF THE DIOCESE OF ) QU’APPELLE, THE SYNOD OF THE ) DIOCESE OF NEW WESTMINISTER, ) THE SYNOD OF THE DIOCESE OF ) YUKON, THE TRUSTEE BOARD OF ) THE PRESBYTERIAN CHURCH IN ) CANADA, THE BOARD OF HOME ) MISSIONS AND SOCIAL SERVICE OF ) THE PRESBYTERIAN CHURCH OF ) CANADA, THE WOMEN’S MISSIONARY ) SOCIETY OF THE UNITED CHURCH ) OF CANADA, SISTERS OF CHARITY, ) A BODY CORPORATE also known as ) SISTERS OF CHARITY OF ST.

VINCENT ) DE PAUL, HALIFAX, also known as ) SISTERS OF CHARITY HALIFAX, ) ROMAN CATHOLIC EPISCOPAL ) CORPORATION OF HALIFAX, LES ) SOEURS DE NOTRE DAME- ) AUXILIATRICE, LES SOEURS DE ) ST.

FRANCOIS D’ASSISE, INSITUT DES ) SOEURS DU BON CONSEIL, LES ) SOEURS DE SAINT-JOSEPH DE SAINT- ) HYANCITHE, LES SOEURS DE JESUS- ) MARIE, LES SOEURS DE L’ASSOMPTION ) DE LA SAINTE VIERGE, LES SOEURS ) DE L’ASSOMPTION DE LA SAINT ) VIERGE DE L’ALBERTA, LES SOEURS ) DE LA CHARITE DE ST.-HYACINTHE, ) LES OEUVRES OBLATES DE ) L’ONTARIO, LES RESIDENCES ) OBLATES DU QUEBEC, LA ) CORPORATION EPISCOPALE ) CATHOLIQUE ROMAINE DE LA BAIE ) JAMES (THE ROMAN CATHOLIC ) EPISCOPAL CORPORATION OF ) JAMES BAY), THE CATHOLIC )

DIOCESE OF MOOSONEE, SOEURS ) GRISES DE MONTREAL/GREY NUNS ) OF MONTREAL, SISTERS OF CHARITY ) (GREY NUNS) OF ALBERTA, LES ) SOEURS DE LA CHARITE DES T.N.O., ) HOTEL-DIEU DE NICOLET, THE GREY ) NUNS OF MANITOBA INC.-LES SOEURS ) GRISES DU MANITOBA INC., LA ) CORPORATION EPISCOPALE ) CATHOLIQUE ROMAINE DE LA BAIE ) D’HUDSON-THE ROMAN CATHOLIC ) EPISCOPAL CORPORATION OF ) HUDSON’S BAY, MISSIONARY ) OBLATES-GRANDIN PROVINCE, LES ) OBLATES DE MARIE IMMACULÉE DU ) MANITOBA, THE ARCHIEPISCOPAL ) CORPORATION OF REGINA, THE ) SISTERS OF THE PRESENTATION, ) THE SISTERS OF ST. JOSEPH OF ) SAULT ST. MARIE, SISTERS OF ) CHARITY OF OTTAWA, OBLATES OF ) MARY IMMACULATE-ST. PETER’

S) PROVINCE, THE SISTERS OF SAINT ) ANN, SISTERS OF INSTRUCTION OF ) THE CHILD JESUS, THE BENEDICTINE ) SISTERS OF MT.

ANGEL OREGON, LES ) PERES MONTFORTAINS, THE ROMAN ) CATHOLIC BISHOP OF KAMLOOPS ) CORPORATION SOLE, THE BISHOP OF ) VICTORIA, CORPORATION SOLE, THE ) ROMAN CATHOLIC BISHOP OF ) NELSON, CORORATION SOLE, ORDER ) OF THE OBLATES OF MARY ) IMMACULATE IN THE PROVINCE OF ) BRITISH COLUMBIA, THE SISTERS OF ) CHARITY OF PROVIDENCE OF ) WESTERN CANADA, LA CORPORATION ) EPISCOPALE CATHOLIQUE ROMAINE ) DE GROUARD, ROMAN CATHOLIC ) EPISCOPAL CORPORATION OF ) KEEWATIN, LA CORPORATION ) ARCHIÉPISCOPALE CATHOLIQUE ) ROMAINE DE ST. BONIFACE, LES ) MISSIONNAIRES OBLATES SISTERS DE ) ST.

BONIFACE-THE MISSIONARY ) OBLATES SISTERS OF ST. BONIFACE, ) ROMAN CATHOLIC ARCHIEPISCOPAL ) CORPORATION OF WINNIPEG, LA ) CORPORATION EPISCOPALE ) CATHOLIQUE ROMAINE DE PRINCE ) ALBERT, THE ROMAN CATHOLIC ) BISHOP OF THUNDER BAY, ) IMMACULATE HEART COMMUNITY OF ) LOS ANGELES CA, ARCHDIOCESE OF ) VANCOUVER-THE ROMAN CATHOLIC ) ARCHBISHOP OF VANCOUVER, ) ROMAN CATHOLIC DIOCESE OF ) WHITEHORSE, THE CATHOLIC ) EPISCOPALE CORPORATION OF ) MACKENZIE-FORT SMITH, THE ) ROMAN CATHOLIC EPISCOPAL ) CORPORATION OF PRINCE RUPERT, ) EPISCOPAL CORPORATION OF ) SASKATOON, OMI LACOMBE CANADA ) INC. and MT.

ANGEL ABBEY INC. ) ) ) (Defendants) Respondents ) On appeal from 2014 MBQB 209

CHARTIER CJM [ 1 ] The applicant moves to set aside a deemed abandonment of its appeal and to extend the time in which to perfect the appeal. The criteria that an applicant must meet on an application to set aside a deemed abandonment is precisely the same as that required for an extension of time within which to commence, continue or perfect an appeal. These criteria are:

a) there must be a continuous intention to appeal;

b) there must be an arguable ground of appeal; and

c) it must be right and just in all of the circumstances that the time for commencing or continuing the appeal be extended. See Zadworny v Manitoba (Attorney General) et al , 2011 MBCA 66 at para 5 . [ 2 ] In my view, there is no merit to this motion. [ 3 ] By its words and conduct, the applicant has not demonstrated a continuous intention to appeal. Indeed, two affidavits filed in support of the motion demonstrate this lack of continuous intention.

The applicant admits that a “further reason for the delay in proceeding with the appeal stemmed from the fact the Assembly of Manitoba Chiefs had not formed a definitive intention to proceed with its appeal” and that “[q]uestions arose as to whether the appeal would be proceeded with and because there was uncertainty certain documents were not filed as required” (see para 7 of the affidavit of Kenneth B. Young and para 8 of the affidavit of Vincent N. Wood). [ 4 ] This lack of intention is also demonstrated by the applicant’s conduct.

It waited five months before responding in any way to the registrar’s notice to deem the appeal abandoned. Moreover, there is no evidence that the applicant took any further substantive steps to perfect its appeal either by preparing its factum and appeal book or by attempting to seek agreement on timelines from the respondents. [ 5 ] Furthermore, the applicant has failed to demonstrate any basis of arguable grounds of appeal.

The respondents state that the notice of appeal, which was filed on the day the appeal period was set to expire, is nothing more than a routine procedural safeguard to protect the applicant’s right of appeal. A fair reading of it supports that statement. But more importantly, it does not assist the applicant in satisfying the Court that it has any arguable ground of appeal. It simply states that: The learned trial judge erred in law in deciding that the Teulon Residences are not an “Indian Residential School” as defined by said Settlement Agreement.

The learned trial judge made a palpable and overriding error in his assessment of the facts relating to the operation of the Teulon Residences and in doing so erred in law in his decision not to add the Teulon Residences to

Schedule “F” of said Settlement Agreement. [ 6 ] The argument presented to me on this criterion was that the judge got it wrong. Counsel for the applicant simply stated that the arguable grounds can be found under the “Position of the Applicant” heading of the judge’s decision. That is, of course, not enough. As a result, the applicant has failed to demonstrate, either by any material filed or by argument, the basis of any arguable ground. [ 7 ] In the end, the applicant has not met the criteria that it had a continuous intention to appeal or that it has any arguable ground of appeal. [ 8 ] The motion to set aside the deemed abandonment of its appeal is dismissed, with costs if sought. CJM