Docket: CACV2476 Kim Sinclair v. the Estate of John James Sinclair, Deceased, 2014 SKCA 53

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 53 Date: 2014-05-02 Between: Docket: CACV2476 Kim Sinclair and the Estate of John James Sinclair, Deceased Appellants - and - Bernice Anne Hlady Respondent Coram: Richards C.J.S., Ottenbreit and Herauf JJ.A. Counsel: Bonnie Missens for the appellant John Hillson for the respondent Appeal: From: Q.B.G. No. 294 of 2013, J.C. of Saskatoon Heard: March 24, 2014 Disposition: Appeal dismissed Written Reasons: May 2, 2014 By: The Honourable Chief Justice Richards

In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Richards C.J.S. I. introduction [ 1 ] This appeal concerns a Queen’s Bench order requiring the appellant, Kim Sinclair, to deliver certain land and premises to the respondent, Bernice Hlady. The order also directs the Sheriff to place the lands and premises in Ms. Hlady’s possession. The land in question is registered in the Indian Lands Registry. [ 2 ] Ms. Sinclair submits the order should be set aside. She argues that (

a) Ms. Hlady has not proven her interest in the land, (

b) the will of Ms. Hlady’s late common-law husband gives her, Ms. Sinclair, rights to possess and occupy the land which prevail over Ms. Hlady’s interests, (

c) the Chambers judge had no authority to make an order respecting possession of the land, and (

d) the Minister of Indian Affairs and Northern Development should have been made a party to these proceedings. [ 3 ] As explained below, Ms. Sinclair’s appeal must be dismissed. II. background [ 4 ] The land at issue is on the Last Mountain Lake Indian Reserve No. 80A, a reserve set apart for the use of the Day Star, Gordon, Muskowekwan, Muscowpetung, Pasqua, Piapot and Poorman Indian bands. It is a subset of a larger tract which, as part of an economic development initiative, was surrendered by the bands to the Crown pursuant to s. 38 of the Indian Act , R.S.C. 1985, c.

I-5. [ 5 ] The surrendered tract was then leased by the Crown to Kinookimaw Beach Association, a corporation apparently owned by the seven bands. The lease was for a term running from 1973 to 2023 (subsequently extended to 2056). It gave Kinookimaw Beach Association the right to sublease each of the lots comprising the tract. [ 6 ] Ms. Hlady lived in a common-law relationship with James Sinclair from 1990 until close to his death in 2012. [ 7 ] In June of 2010, Ms. Hlady and Mr. Sinclair (as joint tenants), subleased the land in issue – Lots 41, 42 and 43 – from Kinookimaw Beach Association.

The term of their lease ran to 2056. The property was known civically as 106 Dogwood Drive, Regina Beach. They built a house on the land and lived there together until the fall of 2012. [ 8 ] In September or October of 2012, Ms. Sinclair and several other family members moved into Mr. Sinclair and Ms. Hlady’s house and stayed. The affidavit evidence on the point is contradictory and not entirely clear but it appears Ms. Hlady was effectively obliged, perhaps by Mr. Sinclair himself, to leave the house at or about that time. [ 9 ] Mr. Sinclair executed a new will on November 8, 2012. It appointed Ms.

Sinclair and her sister Wendy Sinclair as executors and trustees and left all of his property to his surviving children and his ex-wife, Agnes Sinclair. Mr. Sinclair died on November 9, 2012. [ 10 ] Following her father’s death, Ms. Sinclair refused to vacate the home and claimed Ms. Hlady had no legal right to it. Ms. Hlady was advised that her clothes, furniture and personal effects had been placed in storage. III. legal proceedings [ 11 ] Ms. Hlady commenced proceedings in the Court of Queen’s Bench on March 1, 2013.

She sought a declaration that she was the sole surviving joint tenant of the land and premises in question and an order directing Ms. Sinclair to vacate them forthwith. [ 12 ] Ms. Sinclair argued before Mills J. that the Court of Queen’s Bench had no authority to make the orders requested by Ms. Hlady because provincial law could not confer a right of possession in relation to reserve land. Mills J. concluded Ms. Sinclair was “using her position as executrix now and her family relationship previously to improperly and unlawfully obtain possession of [Mr. Sinclair’s] and [Ms.

Hlady’s] property.” On May 13, 2013, he made an order declaring Ms. Hlady to be the sole surviving joint tenant of Lot 43. (He did not deal with Lots 41 and 42 because, at that point, Ms. Hlady had not been able to locate lease documents for them.) In light of the jurisdictional concerns raised by Ms. Sinclair, Mills J. did not issue an order requiring Ms. Sinclair to vacate the land. Ms. Sinclair did not appeal Mills J.’s order. [ 13 ] Because of the position taken by Ms. Sinclair in the Court of Queen’s Bench, Ms. Hlady proceeded to the Federal Court and asked for an order directing Ms.

Sinclair to vacate the land and premises and requiring the Sheriff to assist in this regard. Ms. Sinclair then did an about-face. She argued that the Federal Court had no authority to grant the relief requested and that such issues should be determined by the Saskatchewan courts. Manson J. ruled he had no jurisdiction to deal with Ms. Hlady’s application and that the proper venue for the proceedings was the Court of Queen’s Bench in Saskatchewan. He called Ms. Sinclair’s tactics “duplicitous” and said those tactics had frustrated what appeared to be well-founded attempts by Ms. Hlady to obtain relief.

He awarded costs against Ms. Sinclair even though she had been successful in his court. Manson J.’s decision was not appealed. [ 14 ] Ms. Hlady returned to the Court of Queen’s Bench and renewed her application for an order requiring Ms. Sinclair to vacate the

land and premises. Allbright J. made such an order on August 28, 2013. It required Ms. Sinclair to vacate Lot 43 forthwith and directedthe Sheriff to assist in the enforcement of the order. He did not deal with Lots 41 and 42 because they had not been covered by Mills J.’sdecision. Allbright J.’s order was not appealed by Ms. Sinclair. [15] Ms. Hlady then filed material with respect to Lots 41 and 42 and renewed her application in the Court of Queen’s Bench. OnSeptember 25, 2013, Dovell J. granted an order obliging Ms.

Sinclair to vacate Lots 41, 42 and 43 and requiring the Sheriff to “place thesaid lands and premises in the possession of the Plaintiff Bernice Anne Hlady”. This is the order from which Ms. Sinclair now appeals. IV. analysis [16] As noted at the outset, Ms. Sinclair advances several arguments as to why the decision of Dovell J. should be set aside. I will dealbriefly with each of them. [17] First, Ms. Sinclair says Ms. Hlady has not proven her interest in the lands. I do not accept this argument. Ms. Hlady filed IndianLands Registry System abstract reports for Lots 41, 42 and 43.

Each abstract notes a lease expiring June 29, 2056 between KinookimawBeach Association, as grantor, and Ms. Hlady and Mr. Sinclair as joint tenants. There is no reason to believe those records are notentirely accurate and Ms. Sinclair herself does not suggest that they reflect anything other than the true state of affairs. At least forpurposes of these proceedings, the abstract reports are sufficient proof of Ms. Hlady’s interest in the land. I point out, as well, thatMs. Sinclair did not appeal the order of Mills J. concerning Ms. Hlady’s interest as surviving joint tenant in Lot 43.

It was not clear how,given that the order now under appeal deals only with the issue of possession, Ms. Sinclair believes she can revisit the question of Ms.Hlady’s root interest in the land. [18] Second, Ms. Sinclair contends that, by virtue of Mr. Sinclair’s will, she has an interest in the land and premises which supersedesany interest which Ms. Hlady might enjoy. I do not accept this argument either. It is trite law that, on the death of a joint tenant,property vests in the surviving tenant. In light of this reality, Mr. Sinclair’s will is irrelevant.

There was no leasehold property in hisestate to convey to Ms. Sinclair. [19] Third, Ms. Sinclair submits the Sheriff has no authority to enforce rights of possession on reserve lands. Indeed, as I understand hersubmissions, she takes the extraordinary position that there is no legal mechanism of any kind by which a person in Ms. Hlady’s positioncan enforce rights of possession in relation to land of the sort in issue here. [20] The legal issues surrounding dedicated reserve land are somewhat complicated.

For example, the Court of Appeal for BritishColumbia has held that provincial legislation cannot apply so as to regulate the use of such land. See: Surrey (District) v. Peace ArchEnterprises Ltd. (1970), (BC CA), 74 W.W.R. 380. But, on the other hand, the Court of Appeal for Alberta has takenthe opposite view. See: Re Stony Plain Indian Reserve No. 135 (1981), 1981 ABCA 316 , 130 D.L.R. (3d) 636. See also: Dunstan v. Dunstan, 2002 BCSC 335, 100 B.C.L.R. (3d) 156. None of this broader field of case law was referred to the Court byMs. Sinclair. [21] Given the history of Ms.

Sinclair’s approach to this litigation, including her failure to appeal the decisions of Mills J. and AllbrightJ. and the findings made in the application to the Federal Court, I am extremely reluctant to conduct my own round of research (or to askcounsel for supplementary submissions) for the purpose of fleshing out and resolving the various issues which Ms. Sinclair’s submissionmight raise or implicate. As a result, I will deal only with her argument as it was presented. Ms.

Hlady has been out of her home forsomething in the range of 19 months and she is entitled to have this matter resolved. [22] Before turning to the specifics of Ms. Sinclair’s submission, it is important to note that, subject to relatively narrow exceptions,lands reserved for Indians are not enclaves beyond the reach of provincial law. See: Hogg, Constitutional Law of Canada, looseleaf,5th ed. Supp., vol. 1 (Toronto: Carswell, 2007) at 28-10 et seq. This is the general legal context in which Ms. Sinclair’s position must beassessed. [23] What then does Ms. Sinclair argue?

She cites the Supreme Court of Canada’s decision in Derrickson v. Derrickson, (SCC), [1986] 1 S.C.R. 285, and only that decision, for the proposition that Dovell J.’s order cannot stand. However, Derrickson v.Derrickson dealt with a substantially different situation than the one in issue here. [24] The Derricksons were husband and wife, both members of an Indian band in British Columbia. Ms. Derrickson petitioned fordivorce and applied under the Family Relations Act, R.S.B.C. 1979, c. 121, for a one-half interest in properties held by Mr.

Derricksonunder certificates of possession granted pursuant to s. 20 of the Indian Act. (Under s. 20, lands on a reserve are allotted to individualmembers of a band with the approval of the Minister. By virtue of s. 24 of the Act, a band member may transfer his or her interest to theband or to another band member, but only with the approval of the Minister.) In deciding against Ms. Derrickson’s position, theSupreme Court ruled that provincial statutes dealing with rights of ownership and possession cannot apply to lands on an Indian reserve. [25] As noted, Ms.

Hlady’s situation is distinguishable from the one considered in Derrickson v. Derrickson. First, the land in questionin this appeal was surrendered to the Crown pursuant to s. 38 of the Indian Act. As a result, while it remains reserve land, it isnonetheless “designated land”. This is significant because s. 89 of the Act, and particularly s. 89(1.1), indicates that (unlike reserve landmore generally) designated land is subject to distress, seizure and execution: 89.

(1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge,mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

(1.1) Notwithstanding subsection (1), a leasehold interest in designated lands is subject to charge, pledge, mortgage, attachment, levy,seizure, distress and execution. [26] The other way in which this case differs from Derrickson v. Derrickson is that, here, Ms. Hlady does not purport to claim any

interest in land pursuant to a provincial statute. Rather, her interest in the lands and premises arises directly from the nature of joint tenancy in common law. And, of course, her particular joint tenancy was recorded in the Indian Lands Registry itself. In other words, unlike the situation in Derrickson v. Derrickson , Ms.

Sinclair has not established any concern about provincial legislative authority trenching on the exclusive jurisdiction enjoyed by Parliament in relation to Indian lands. [ 27 ] Accordingly, I am not prepared to overturn Dovell J.’s order on the basis of what the Supreme Court held in Derrickson v. Derrickson or to find, as Ms. Sinclair submits, that there is no legal remedy for Ms. Hlady’s problem.

That said, and while I do not by any means intend to suggest this will necessarily be the case, there might possibly be lines of argument, not advanced here, which this Court will have to consider in some future appeal concerning interests, or the enforcement of interests, in designated lands. My intent here is to do no more than decide Ms. Sinclair’s appeal on the basis of the particular argument and the particular case law presented on her behalf. [ 28 ] Fourth , Ms. Sinclair contends the Minister of Indian Affairs and Northern Development should have been made a party to these proceedings.

I understand her argument in this regard to flow from ss. 53 and following of the Indian Act which speak to the Minister’s responsibilities in relation to surrendered and designated lands. However, Ms. Sinclair has not established or satisfactorily explained how any of those provisions would operate so as to require the Minister to be a party to these proceedings. This is a dispute between Ms. Hlady, on the one hand, and Ms. Sinclair and the Sinclair Estate on the other. It concerns land leased to Ms. Hlady and to Mr. Sinclair, not by the Crown, but by Kinookimaw Beach Association.

On the basis of the arguments presented by Ms. Sinclair, I am not persuaded that the Minister should have been a party to Ms. Hlady’s application. V. CONCLUSION [ 29 ] I conclude that Ms. Sinclair’s appeal must be dismissed. Ms. Hlady is entitled to costs on Column 2. DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of May, A.D. 2014. “Richards C.J.S.” Richards C.J.S. I concur “Ottenbreit J.A.” Ottenbreit J.A. I concur “Herauf J.A.” Herauf J.A.