Canada: Court Of Appeal Summaries (July 28 To August 1)

Last Updated: August 7 2014
Article by Lea Nebel

Hi everyone. Here are this week's Court of Appeal summaries. This week's topics include s. 29 and 89(1) of the Indian Act, abuse of process, and interlocutory versus final orders.

Of special note is the first case, Tyendinaga Mohawak Council v Brant, where our very own Blaneys' lawyers Roger Horst and Rafal Szymanski successfully represented the Mohawks of the Bay of Quinte.

Have a safe and relaxing long weekend!

Tyendinaga Mohawk Council v Brant, 2014 ONCA 565

[ Sharpe, LaForme and Tulloch JJ.A.]


A. Morrison and S. Raman, for the appellant

Roger Horst and Rafal Szymanski, for the respondents

L. Marchildon and L. Garvin, for the Attorney General of Canada, on behalf of the Indian Land Registrar

J. Hunter, for the Attorney General of Ontario, on behalf of the Sherriff of the County of Hastings

Keywords: Aboriginal Law, Indian Act, Real Property, Reserves, Transfer and Possession, Family Law

NOTE: The Court uses the term "Indian" instead of "Aboriginal" throughout to remain consistent with the language specifically used in the Indian Act, and the same applies to references to a "band" as opposed to "First Nation".


This appeal involves the interpretation and application of two conflicting provisions of the Indian Act, RSC 1985, c I-5, ss. 29 and 89(1). Section 29 provides that reserve lands are not subject to seizure under legal process. Section 89(1) provides that real and personal property of an Indian or a band on reserve land can only be seized by an Indian or a band.

To satisfy the debt from a previous judgment against Andrew Clifford Miracle (the "Appellant") to the Mohawks of the Bay of Quinte First Nation ("MBQ"), the MBQ took out a writ of seizure and sale on properties to which Appellant held Certificates of Possession. The writs were validated and MBQ requested the Sheriff to sell the Appellant's Certificates of Possession. The Sheriff declined, taking the position that s. 29 of the Indian Act prohibited the sale because the Appellant's properties consisted of "reserve lands" and therefore were not subject to seizure. MBQ then brought a motion seeking mandatory order to enforce the Appellant's transfer of Certificates of Possession to MBQ. The motion judge ordered the Appellant to complete the transfer.


The Appellant submits that the motion judge erred in deciding this matter, namely:

(1) In finding that the Superior Court of Justice had jurisdiction to order him to execute the transfers of the Certificates of Possession to MBQ.

(2) In concluding that Certificates of Possession are real or personal property of an Indian situated on a reserve pursuant to s. 89(1) of the Indian Act, and therefore subject to seizure by the Band to satisfy a debt.


Appeal dismissed.


(1) The motion judge had the jurisdiction to hear and decide the enforcement motion brought by MBQ and he correctly interpreted and applied the provisions of the Indian Act. Neither of the cases relied on by the Appellant (Derrickson v Derrickson, [1986] 1 SCR 285 and Syrette v Syrette 2012 ONCA 693) oust jurisdiction from the Superior Court to transfer Certificates of Possession pursuant to the Indian Act or equitable principles such as a mandatory order.

The courts in Derrickson and Syrette refused to divide possession of Indian reserve land between family members because the applicable provincial statutes were inoperative to the extent they purported to apply to Indian reserve land, which falls within the exclusive jurisdiction of federal legislation. In this appeal, the issue is not one of federal and provincial division of powers. The Court held that the Ontario Superior Court has inherent jurisdiction to hear and decide all cases that come before it, regardless of whether the law applicable is provincial or federal such as the Indian Act, as long as an exception has not been specifically carved out by Parliament.

(2) The motion judge correctly found that the right of possession of reserve land, which is evidenced by a Certificate of Possession, is either real or personal property of an Indian, and therefore subject to seizure and execution in favour of MBQ under s. 89 of the Indian Act.

The scheme and purpose of the Indian Act, when read as a whole together with the intention of Parliament, make it clear that s. 29 prohibits the Crown's underlying title to reserve land from seizure while s. 89(1) protects the property interests of an Indian or band from seizure, or other enforcement, by a non-Indian; the two sections work in concert.

In summary, the historical evolution of the Indian Act and interpretation of its statutory context led the Court to its decision that the remedy of mandatory order is available under s. 89 to enforce judgments between bands and band members.


Phillion v Ontario (Attorney General), 2014 ONCA 567

[Goudge, Feldman and MacFarland JJ.A.]


W.V. Sasso and D. Robins, for the appellant

C. K. Boggs and J. T. Akbarali, for the respondents, John Andrew McCombie, Stephen Nadori and The Ottawa Police Services Board

R. Carr and H. C. Mackay, for the respondent, Attorney General for Ontario

Keywords: Negligence, Abuse of Process, Stay of Proceedings, Administration of Justice, Crown and Police Liability, Evidence, Disclosure


In 1972, the appellant, Romeo Joseph Phillion ("Phillion"), confessed to murder. Shortly thereafter he retracted his confession but was convicted. He maintained his innocence for 31 years of incarceration. Due to changes in the law on Crown disclosure requirements, in 1998 he received previously undisclosed and potentially exculpatory evidence.

In 2003, Phillion filed an application with the Minister of Justice for a review of his conviction and was released on bail. The Minister ordered a reference on the matter which is titled R v Phillion, 2009 ONCA 202 (the "Reference"). The Reference concluded that based on the fresh evidence, the conviction was quashed and a new trial was ordered. The Crown decided not to proceed with a new trial because of the passage of time and withdrew the charge.

This appeal relates to Phillion's 2012 action seeking damages for alleged negligence and wrongdoing of the Crown. The motion judge dismissed the action based on an abuse of process, and said that if it was not an abuse of process it should be stayed under s. 106 of the Courts of Justice Act. Both decisions were based on the position that Phillion was attempting to re-litigate the same issues already determined in the Reference and that the evidence heard for the Reference would be virtually the same.


(1) Did the motion judge err in finding that the action was an abuse of process?

(2) Did the motion judge err in finding that the action should be stayed under s. 106 of the Courts of Justice Act?


Appeal allowed.


(1) The motion judged erred in two respects in finding that abuse of process should be applied to this case. First, she did not properly analyze the "nature and purpose" of the Reference in comparison with the issues raised in the civil claim. Specifically, she took an "overly broad" view of the findings of fact that she believed were made by the Court in the Reference.

In holding that the Reference made findings of fact, the motion judge failed to consider that a new trial was ordered and all issues would have been left to a jury to decide. The Court held that the nature of the Reference in this case was not intended to "bind a future hearing if a new trial was ordered".

In the Reference, Phillion only had to prove that his conviction should be set aside. He did not need to prove the motive or intent of the police or the Crown's failure to disclose. The Reference's purpose and the questions it addressed were entirely different from the civil action, making it unfair to bar him from bringing the action on the basis of the Reference's findings. An order dismissing an action as an abuse of process should only be made in clear cases and where allowing the action to proceed would bring the administration of justice into disrepute.

(2) The motion judge erred in granting the stay of proceedings on a number of grounds. First, the motion judge incorrectly found that the passage of time since the original murder trial indicated a stay was appropriate. The respondents were responsible for the passage of time, given they possessed information that led to the Reference, the setting aside and the withdrawal of the charge. Phillion should not be punished for this.

Second, the motion judge should not have taken Phillion's contrary positions in the Reference and the civil action into account. For example, once the Court of Appeal rejected Phillion's position on the issue of the passage of time in the Reference, he was entitled to change his position going forward.

Third, the motion judge placed too much emphasis on the prejudice to the respondent in having to defend against Phillion's accusation of collusion. The Court of Appeal agreed that this was a factor to be weighed, but that it should not have tipped the balance in favour of a stay. Contrary to the motion judge, the Court of Appeal found it would further bring the administration of justice into disrepute to grant the stay.


Bell (Re), 2014 ONCA 568

[Laskin, MacFarland and Lauwers JJ.A.]


A. Aragao, for the appellant

S. N. Zeitz, for the respondent

Keywords: Rules of Civil Procedure, Notice, Bankruptcy and Insolvency Act, Notice, Trustee


Dr. Bell signed a proposal under the Bankruptcy and Insolvency Act (the "Act"), sent to his creditors by his trustee msi Spergel (the "Respondent"). Your Legal Business Partner (the "Appellant") filed an affidavit and two proofs of claim in support. Amounts claimed were relating to loans supposedly made to Dr. Bell by the Appellant. The Respondent sent two Notices of Disallowance addressed to the Appellant, which were in fact delivered to the law firm referred to in the Proof of Claim, on April 17, 2012. The Appellant filed its Notice of Appeal on May 18, 2012, and the Respondent's counsel took the position that the Notice of Appeal was out of time and filed one day late.

The Respondent argues that service was effected on April 17, 2012, while the Appellant argues that it was not served until April 18, 2012. The Registrar in Bankruptcy, relying on the Ontario Rules of Civil Procedure deeming provision, held that service of the Notice of Disallowance, if effective, was not effective until April 20, 2012. On appeal to the Superior Court, it was held that the Registrar erred in relying on the Rules of Civil Procedure.


When was service of the Notice of Disallowance on the creditor effected, for the purpose of determining the 30 day appeal period?


Appeal allowed, order from the Superior Court set aside and order of the Registrar in Bankruptcy restored.


Notice was delivered to the law firm designated by the Appellant in its Proof of Claim, however, it was addressed to the Appellant. Further, a receptionist at the law firm acknowledged receipt, but there was no acceptance of service by the firm. As such, the deeming provisions provide the effective date to be the fifth day after the document is mailed. The five day period ended April 20th and the Notice of Appeal, filed on May 18th, was within the 30-day period under s.135(4) of the Act.


Henderson v Henderson, 2014 ONCA 571 [Endorsement]

[Juriansz J.A.]


S. Zucker and N. Tourgis, for the applicant

W. Fanjoy, for the respondent

Keywords: Civil Procedure, Family Law, Interlocutory Orders, Orders Made on Condition


In this family law proceeding, the husband applied for an extension of time to perfect his appeal and the wife applied for security for costs and for various other conditions to be imposed on the husband. The root of the matter is the husband's motion in the Superior Court for a direction to vary the final support order between the parties. In response, the wife filed a motion to quash the husband's motion. Both motions were placed on the long motions list.

When both motions were finally heard, the motion judge made an order that stipulated a number of conditions that the husband had to satisfy before his long motion could proceed. In addition, the motion judge imposed a "wrap-up" term that stipulated that if the husband failed to comply with the terms of the order within a specified period, his long motion would be "permanently stayed with prejudice." The deadline passed, and the husband failed to comply with the terms of the order.

The husband applied for an extension of time in order to perfect his appeal from this order. At the outset, counsel for the wife took the position that the order under appeal was interlocutory in nature. The Court provided that, as a preliminary matter, it did not have jurisdiction to decide that question, but that the question could nonetheless inform the Court's decision with respect to an extension of time. If time was not extended, then the appeal would be dismissed and the wife's motion would become moot.


(1) Is the motion judge's order interlocutory or final in nature?

(2) If the order is interlocutory in nature, should the motion for extension be refused?


Motion refused and appeal dismissed.


The Court considered whether orders made on condition were interlocutory or final in nature. While the motion judge's order was on its face temporary, the time limit imposed a condition by which the order could become final. The applicant argued that, since the appeal was made after the deadline for the order had passed, that the order was final and no longer interlocutory in nature. The Court rejected this argument, citing Sharpe J.A.'s reasoning in Inforica Inc v CGI Information Systems and Management Consultants Inc, 2009 ONCA 642, as standing for the principle that orders with final conditions remain interlocutory in nature. Sharpe J.A. said:

I recognize that failure to satisfy an order for security for costs may lead to a dismissal of the claim, but the sanction for non-compliance with an order cannot alter the nature of the order itself. Many procedural or interlocutory orders – for particulars, for production of documents, for the payment of costs ordered in interlocutory proceedings – may carry the ultimate sanction of dismissal of the non-complying party's claim. But if the claim is dismissed, the dismissal flows from the party's failure to comply with the interlocutory or procedural order, not from the order itself, and does not alter the interlocutory or procedural nature of the order that led to the dismissal: see Laurentian Plaza Corp v Martin (1992) 7 OR (3d) 111 (CA).

Based on the above, the Court found the motion judge's order to be interlocutory in nature. It was interlocutory because its "overall intention and effect" was to "impose terms to shepherd the proceeding along to the final hearing and disposition of the long motion". As a result, the application for an extension was refused, as an appeal of an interlocutory order filed in the Court of Appeal is meritless. Finally, the wife's application was now moot, as the Court ordered the Registrar to dismiss the husband's appeal for failure to adhere to the time limits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Lea Nebel
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