Munro et al v Canada (Attorney General) Date:, 2016 MBCA 31

Citation: Munro et al v Canada (Attorney General) Date: 20160308 et al, 2016 MBCA 31 Docket: AI15-30-08483 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ASSEMBLY OF MANITOBA CHIEFS ) C. R. Huband and ) J. A. Myers (Applicant) Respondent ) for the Appellants ) - and - ) L. K. Tesar ) for the Respondent CUTHBERT MUNRO, NATALIE MARIE ) The Attorney General HARPER and VINCENT NORMAN ) of Canada WOOD ) ) K. B.

Young (Applicants) Appellants ) on a watching brief for the ) Assembly of Manitoba - and - ) Chiefs ) THE ATTORNEY GENERAL OF ) Appeal heard and CANADA et al ) Decision pronounced: ) March 8, 2016 (Defendants) Respondents ) CAMERON JA (for the Court): [ 1 ] The applicants appeal the order of the chambers judge denying them leave to intervene in an appeal taken by the Assembly of Manitoba Chiefs (AMC) from a decision dismissing an application to set aside a deemed abandonment of its appeal. After hearing the parties, we dismissed the appeal with brief reasons to follow.

These are those reasons. [ 2 ] Briefly, the AMC filed a request for direction (RFD) on behalf of former students who were removed from their reserves and sent to residences in Teulon (the residences) in order to attend school. The RFD sought to have the residences declared an Indian Residential School (IRS) pursuant to

article 12 of the “Indian Residential Schools Settlement Agreement” (8 May 2006), online: <www.residentialschoolsettlement.ca/IRS%20Settlement%20Agreement-%20ENGLISH.pdf> (IRSSA). The supervising judge confirmed that the AMC was acting as a representative for potential claimants and noted that Canada did not oppose the AMC acting as a representative in the proceeding. [ 3 ] The applicants are former students who were removed from their reserves in order to attend school in Teulon and lived at the residences.

Previous to the application to intervene, they were content to have the AMC represent their interest in the RFD. Indeed, one of the applicants filed an affidavit in support of the RFD. [ 4 ] The supervising judge found that the residences did not constitute an IRS under the terms of the IRSSA. AMC filed an appeal of that decision, but failed to take steps to perfect the appeal. The registrar of this Court sent notice that it would be deemed abandoned pursuant to Manitoba, Court of Appeal Rules , 555/88 R, r 35.

An application to set aside the deemed abandonment was brought before the Chief Justice, who denied it ( 2015 MBCA 78 , 319 ManR (2d) 302 ). His decision has been appealed, but has not yet been set down for hearing. [ 5 ] As earlier stated, this appeal concerns the order of the chambers judge dismissing the applicants’ application for leave

to intervene in the appeal dismissing the application to set aside the deemed abandonment. [6] The decision made by the chambers judge was discretionary. As this Court has stated, although in respect of adecision of a lower court, a discretionary decision may only be interfered with if the judge misdirects himself or if his decision is soclearly wrong that it amounts to an injustice See Towers Ltd v Quinton’s Cleaners Ltd et al, 2009 MBCA 81, 245 ManR (2d) 70. In ourview, that same standard applies to a review of a discretionary decision of a chambers judge of any court.

See Bowden et al v McRae,2008 MBCA 120; Haldorson et al v Coquitlam (City), 2000 BCCA 672, 149 BCAC 197; West-Man Culvert & Metal Co v ProvincialMunicipal Assessor (Man) (1992), (MB CA), 81 ManR (2d) 112 (CA). [7] While the chambers judge may have misspoke when he referred to the AMC request under

article 12 as a class actionrather than a representative action, that is understandable given that the style of cause in the documents filed identified the matter as aclass action and it originated from the IRS class action settlement. In our view, this misstatement was not material to the substance of thechambers judge’s decision. [8] The applicants assert that they were not advised that the AMC had missed the deadline for appeal and that theyalways had the intention to appeal.

While the question of whether it is the intention of the AMC as the representative of the applicants atthe time or that of the potential claimants which is relevant, both can be argued by the AMC if the evidentiary basis is present. As well,the AMC can adequately argue the intent of those it represents. [9] The applicants also assert that the unique argument they would make is that the judge who dismissed the applicationto set aside the deemed abandonment of the appeal did not consider all of the necessary criteria before doing so.

Specifically, they statethat he did not weigh the interests of justice in reaching his conclusion. They also argue that they will raise the argument that thesupervising judge erred in law in his

interpretation of

article 12 of the IRSSA. [10] The chambers judge considered the law concerning the criteria to be met before leave to intervene is granted. Afterconsidering the arguments proposed by the applicants regarding the decision not to set aside the deemed abandonment, the chambersjudge was not satisfied that the applicants could meet the standard required for intervention. We agree with the chambers judge that theAMC can fully advance the positions of the applicants as articulated in their written and oral submissions before us.

We see no materialmisapprehension or error in law with the decision of the chambers judge and it is not so clearly wrong that it amounts to an injustice. [11] Therefore, the appeal is dismissed without costs. JA JA JA