Assembly of Manitoba Chiefs et al v Canada Date:, 2016 MBCA 45

Citation: Assembly of Manitoba Chiefs et al v Canada Date: 20160503 (Attorney General) et al, 2016 MBCA 45 Docket: AI15-30-08452 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 , (Applicant) Appellant ) J. A. Myers and ) S. Green, Q.C. - and - ) for the Appellant ) LARRY PHILIP FONTAINE et al ) ) L. K.

Tesar (Plaintiffs) ) for the Respondents ) - and - ) ) Appeal heard and THE ATTORNEY GENERAL OF ) Decision pronounced: CANADA et al ) May 3, 2016 ) (Defendants) Respondents ) On appeal from Fontaine et al v Canada (Attorney General) et al , 2015 MBCA 78 , 319 ManR (2d) 302 CAMERON JA (for the Court): [ 1 ] This is an appeal by the applicant of the decision of the chambers judge dismissing its motion to set aside a deemed abandonment of its appeal of a decision made by the supervising judge and to extend time in which to perfect the appeal.

An application was made to tender fresh evidence in support of this appeal. At the hearing we reserved on the fresh evidence motion and heard full argument. At the conclusion of the hearing we allowed the appeal with reasons to follow.

These are those reasons. [ 2 ] The supervising judge held that the applicant, as representative of former residents (the claimants) of the Teulon Residence (the Residence) had been unable to show that the Residence constituted an Indian Residential School as defined by the “Indian Residential Schools Settlement Agreement” (8 May 2006), online: <www.residentialschoolsettlement.ca/IRS%20Settlement%20Agreement-%20ENGLISH.pdf> (the IRSSA). [ 3 ] The applicant filed a notice of appeal which was later deemed abandoned by the registrar pursuant to r 35 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R.

This rule was implemented by the Court to facilitate its efficient functioning and plays an important role in the proper administration of justice by ensuring that appeals do not lie dormant and that they proceed in a timely fashion. [ 4 ] The criteria required on an application to set aside a deemed abandonment and to extend the time in which to perfect an appeal are: 1) there must be a continuous intention to appeal; 2) there must be an arguable ground of appeal; and 3) it must be right and just in all of the circumstances that the time for continuing the appeal be extended.

See Zadworny v Manitoba (Attorney General) et al , 2011 MBCA 66 . [ 5 ] The chambers judge denied the motion on the basis that the applicant did not show a continuous intention to appeal and that there was no arguable ground of appeal. Regarding the issue of whether the grounds of appeal were arguable, the chambers

judge noted that the applicant acknowledged that the notice of appeal that was filed on the last day possible was nothing more than a“routine procedural safeguard” (at para 5). He noted that it did “not assist the applicant in satisfying the Court that it has any arguableground of appeal” (ibid). After reviewing the grounds stated in the notice, he said (at para 6): The argument presented to me on this criterion was that the judge got it wrong. Counsel for the applicant simply stated that the arguablegrounds 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. [6] In the factum filed in this appeal and in oral argument, the applicant more fully refined and explained its position. Some of the grounds that it now puts forward include assertions that the supervising judge erred in his

interpretation of the IRSSA byblending articles 12.01(2) and 12.01(3), that he erred in his determination of the level of involvement required to show that Canada wasjointly responsible for the operation of the Residence and that he erred in his analysis that led him to conclude that Canada did not act ina parental relation to the children residing at the Residence. The applicant also argues that the supervising judge erred in hisinterpretation of the IRSSA by failing to apply the rule of

interpretation which requires that a clause in an agreement must be interpretedso as not to be inconsistent with the intention and the purpose of the agreement. [7] In our view, these arguments, as now articulated and which were not before the chambers judge, raise fairly arguablegrounds with a reasonable chance of success. See Branum v Branum (1998), (MB CA), 129 ManR (2d) 142 (CA). They cannot be dismissed after a preliminary examination.

See Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 at paras 72-75,[2014] 2 SCR 633. [8] We note, however, that some of the grounds may be considered new and, while certainly not before the chambersjudge, may not have been raised before the supervising judge. Had these grounds been raised before the chambers judge, his decision onthe second criterion may well have been different. This, in addition to the third criterion, the interests of justice, leads us to conclude thatthis appeal should be allowed to proceed and a decision reached on the merits.

Having determined that leave will be granted, we will becircumspect and make no further comments regarding the substance of the arguments, nor whether they should be entertained by thepanel hearing the appeal. [9] Based on the above, we need not decide whether or not it was the intent of the claimants or the applicant that wasrelevant for the purposes of determining the first criterion, the continuous intention to appeal.

The motion for fresh evidence wentdirectly to this issue and therefore need not be determined. [10] Given the change of focus of the appeal, we direct that the applicant file a revised notice of appeal within 30 days of therelease of this decision. The timelines otherwise set out in the rules apply from this point on. [11] There will be no order of costs. JA JA JA