COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Spookw v. Gitxsan Treaty Society,

2017 BCCA 16

Date: 20170112

Docket: CA41986

Between:

Spookw also known
as Geri McDougall on behalf of herself and other Gitxsan
Chiefs and Members, Baskyalaxha also known as William Blackwater Sr.,
Suu Dii also known as Yvonne Lattie, Luutkudziiwuus also known as
Charlie Wright, Xsimwitsinn also known as Lester Moore, Moolxhan also
known as Noola and as Norman Moore, Gitanmaax Indian Band, Glen Vowell
Indian Band, Gitwangak Indian Band, Kispiox Indian Band, and
Gitksan Local Services Society

Appellants

(Plaintiffs)

And

Gitxsan Treaty
Society, Her Majesty the Queen in Right of the Province
of British Columbia, and the Attorney General of Canada

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Savage

On appeal from:  An
order of the Supreme Court of British Columbia,
dated June 18, 2014 (
Spookw v. Gitxsan Treaty Society
, 2014 BCSC 1100,
Smithers Registry S15150).

Counsel for the Appellants:

M.L. Macaulay &
  B. Joseph

Counsel for the Respondent Gitxsan Treaty  Society:

S.D. Hansen & A.
  Schalles

Counsel for the Respondent Attorney General of Canada:

N. Wright & A.P.
  Singh

Counsel for the Respondent Her Majesty the Queen in Right
  of the Province of British Columbia:

K. Phillips & R.
  Wilson

Place and Date of Hearing:

Vancouver,
  British Columbia

September
  12 and 13, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 12, 2017

Written Reasons by:

The Honourable Mr. Justice
  Harris

Concurred in by:

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice
  Savage

Summary:

The appellants, certain
Gitxsan Chiefs, Indian Bands and the Gitksan Local Services Society, petitioned
to the Supreme Court for the winding-up of the Gitxsan Treaty Society under the
Society Act, R.S.B.C. 1996, c. 433. The chambers judge dismissed their
petition on the basis that the petitioners, who were not members, lacked
standing as proper persons. He also dismissed their claims against Canada and
British Columbia for breach of fiduciary duty and the honour of the Crown.
Held: Appeal dismissed. The chambers judge properly considered the procedural
history and circumstances of the appellants, and did nor err in exercising his
discretion to deny them standing. The claims relating to fiduciary obligations and
the honour of the Crown were properly dismissed as they are contrary to the
principles of First Nation self-government and the statutory scheme established
by the First Nations Summit, British Columbia, and Canada for tripartite and independent
treaty negotiations.

Reasons
for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]

This is an appeal from an order of Mr. Justice McEwan in which he
dismissed the appellants claims against the Gitxsan Treaty Society (GTS) and
against Canada and British Columbia.

[2]

The appellants claim against the GTS is to wind it up or seek
oppression remedies against it. The GTS is a society incorporated under the
Society
Act
, R.S.B.C. 1996, c. 433.

[3]

The appellants are certain Gitxsan Hereditary Chiefs, Indian Bands, and
the Gitksan Local Services Society. They filed their original writ and
statement of claim in December 2008. For introductory purposes, it is
sufficient to observe the thrust of their claim against the GTS. The action
arises in the context of treaty negotiations between the Gitxsan First Nation,
Canada and British Columbia. The GTS receives funding for and negotiates with
the Crown(s) on behalf of the Gitxsan people. The appellants contend that the
GTS does not have a proper mandate from the Gitxsan people, is not representative
of them, has not acted in their best interests, has restricted consultation and
opportunities for participation or involvement in treaty negotiations, all
while assuming debt in excess of $21 million for which the Gitxsan people
as a whole may ultimately be liable.

[4]

The appellants are not members of the GTS. Their standing to seek
remedies depended on being proper persons to do so under the applicable
legislation. The chambers judge concluded, on an application for summary
judgment brought by the GTS, that they were not proper persons and declined to grant
them standing to pursue their claims. At the core of his reasoning is his
conclusion that the Hereditary Chiefs had the opportunity to become members of the
GTS and advance their concerns from within it, but did not do so, instead
choosing to pursue their interests from the outside. One issue that divides the
parties is whether he went further and found that, even if they had standing,
their claim for relief was bound to fail.

[5]

The appellants claim against Canada and British Columbia sounds in
breach of fiduciary duty and the honour of the Crown. They contend those duties
were breached when the Crown(s) continued to negotiate with the GTS after
receiving notice from the appellants that the GTS did not have the necessary
mandate to negotiate on behalf of the Gitxsan people. More particularly, the
Crown continued to fund the GTS by loans for which the Gitxsan people may be
liable, negotiated about the termination of Indian Bands, band membership, and
band lands (the Gitxsan Alternative Governance Model, or GAGM) without the
consent and participation of the bands, and improperly funded a forestry
agreement. These issues also form part of the foundation of the claim against
the GTS.

[6]

Both Canada and British Columbia applied to have the claims dismissed,
both as disclosing no reasonable cause of action and by way of summary
judgment. The judge granted the order. As I read his reasons, he considered
that the issues raised by the appellants engaged matters reflecting internal
disputes within the Gitxsan people, most particularly with respect to the
mandate and representativeness of the GTS. In the context of a treaty process,
no fiduciary duty, as alleged, could arise because the British Columbia Treaty
Commission (BCTC) is statutorily mandated to assess the mandate of the entity
representing the First Nation in arms-length, government-to-government
negotiations in which the Crown(s) represents non‑Aboriginal interests.
Furthermore, imposing an obligation on either Crown to intervene in an internal
dispute would conflict with the principle of First Nations self-governance
enshrined in the BC Treaty Process. There is some disagreement between the
parties about whether the judge decided these issues and, if so, whether he
dismissed the action on the basis that it was plain and obvious that it was
bound to fail or whether he granted summary judgment on the basis of applying
the law to uncontested facts.

[7]

The appellants allege the following errors in judgment:

In finding that the Appellants are not proper persons for
the purpose of standing to advance their claim on the basis of the following
errors:

i.

in finding the Appellants could and should have become GTS members,

ii.

in failing to consider the purposes of GTS as a society in determining
what is just in the circumstances,

iii.

in finding that the Appellants interest was only a contingent interest in
the outcome of negotiations, and

iv.

in finding that the claim for winding up was bound to fail.

The Chambers Judge erred in failing to make a decision on the
Appellants claims against the Crown for breach of fiduciary duty or honour of
the Crown.

i.

In the alternative, if the Chambers Judge did make a decision then he
erred by failing to provide sufficient reasons for judgment,

ii.

He erred in law in finding that the Respondents met the test for striking
a claim.

[8]

This appeal arises in the context of an action with a lengthy procedural
history. Before turning more specifically to the errors alleged, I will provide
some background that defines the context in which the issues arise and bears on
the resolution of the issues on appeal. I will first outline the treaty
process. Second, I will provide some description of the parties. Third, I will
canvass the procedural history of this litigation insofar as it is relevant to
the issues on appeal.

Background

The BC Treaty Process

[9]

The BC Treaty Process provides a framework for negotiating treaties
between First Nations, Canada and British Columbia. It is the product of an
agreement, the British Columbia Treaty Agreement (BCTA), between Canada, British
Columbia and the First Nations Summit. The BCTA was based on recommendations
made in 1991 by a tripartite task force, with terms of reference endorsed by
Canada, British Columbia and the First Nations Summit. Certain of those
recommendations are relevant to the current case. First, a BCTC be established
by agreement among the First Nations, Canada, and British Columbia to
facilitate the process of negotiations. Second, the organization of First
Nations for the negotiations is a decision to be made by each First Nation.
Third, non‑Aboriginal interests be represented at the negotiating table
by the Crown(s). Fourth, the respective negotiating teams be sufficiently
funded to meet the requirements of the negotiations. And fifth, the BCTC be
responsible for allocating funds to the First Nations.

[10]

The BCTA led to the passage of provincial (the
Treaty Commission Act
,
R.S.B.C. 1996, c. 461 [
TCA
]) and federal legislation (the
British
Columbia Treaty Commission Act,
S.C. 1995, c. 45 [
BCTCA
]). They
set out the statutory framework for the BC Treaty Process, including creating
the BCTC as an independent, arms-length entity that is not an agent of any of the
Crowns or the First Nations Summit (
BCTCA
s.

4(3),
TCA
s.

4)
and acts as facilitator for negotiations in the BC Treaty Process (
BCTCA
s.

5(1),
TCA
s. 5(1)). The BCTC is responsible for assessing a First
Nations readiness to negotiate in the BC Treaty Process, for ensuring ongoing
negotiation mandates, and for allocating funds.

[11]

The BC Treaty Process contemplates a six-stage negotiation as follows:

1

Filing a Statement of Intent to Negotiate a Treaty

2

Preparing for Negotiations and Assessing Readiness

3

Negotiating a Framework Agreement

4

Negotiating an Agreement in Principle

5

Negotiating a Final Treaty

6

Implementing the Treaty

[12]

Canada supported its summary judgment application with undisputed evidence
describing the BC Treaty Process. This evidence confirms that the BCTC is
responsible for assessing each partys negotiating mandate and allocating
negotiation support loan funding. Further, the Statement of Intent informs the
BCTC how the First Nation is mandated by its constituency to enter negotiations.
The Statement of Intent can be returned by the BCTC if the First Nation body no
longer has a mandate from its constituents. The BCTCs policies and procedures
required each party to confirm its negotiating mandate at each stage in the
process.

[13]

Funding for negotiations by First Nations is governed by funding agreements.
First Nations must have a legal entity to receive funding. The legal entity which
enters negotiation support loan agreements for the Gitxsan First Nation is the
GTS. The BCTC allocates the level of loan funding under the
BCTCA
and
the
TCA
and in accordance with funding criteria jointly established by
the First Nations Summit, Canada and British Columbia. Once BCTC allocates the
level of loan funding for each year, it instructs Canada to enter into the
negotiation support loan agreement. Canada is contractually required to enter
into a negotiation support loan agreement on receiving those instructions.

[14]

The Gitxsan First Nation filed a Statement of Intent with the BCTC and
entered the BC Treaty Process on July 15, 1994. Negotiations are at stage 4,
namely the negotiation of an agreement in principle. Hence, no binding
agreements have been reached at the negotiating table and any treaty would
require ratification, on a basis not yet determined, by the Gitxsan.
Confirmation of a mandate is also required to progress to the next stage of
negotiating a treaty. Negotiations have been supported by loan funding to the
GTS. Funds have been allocated by the BCTC in an amount currently in excess of
$21 million.

The Appellants and Their Place in Gitxsan Society.

[15]

The appellants comprise five Hereditary Chiefs, four Indian Bands and
the Gitksan Local Services Society. In the words of the appellants factum:

The plaintiffs (the Appellants) are Gitxsan Hereditary Chiefs
and members of Gitxsan Houses and Indian Bands. In these proceedings each Chief
acts in his or her personal capacity as Hereditary Chief and also represent his
or her House. The Appellant Spookw (Geraldine McDougall) represents herself, as
well as other Gitxsan Chiefs, matriarchs and members of other Gitxsan Houses who
have signed a declaration opposing the conduct of treaty negotiations by GTS.

The Appellant Indian Bands,
Gitanmaax, Glen Vowell, Gitwangak,and Kispiox, act in their capacity as elected
governments and also represent their Band members. The Gitxsan Indian Bands
have councils elected under the
Indian Act,
R.S.C. 1985 c.1‑5 and
hold 25 reserves totaling 6000 hectares and have over 5,000 Band members. The
plaintiff Gitxsan Local Services Society (known as the Gitxsan Government
Commission or GGC) is a non‑profit society, which delivers programs and
services to members of five Gitxsan Bands.

[16]

It appears that there is broad agreement between the parties about the
structure of Gitxsan society and traditional governance, although, as I
understand it, one point of contention within the Gitxsan First Nation lying
behind the current dispute is the role and protection of the interests of those
Gitxsan who are not members of Houses and the interests of Indian Bands.
Nonetheless, I believe the following description, drawn substantially from the
appellants factum, is uncontentious, at least for the purpose of the issues in
this appeal.

[17]

Gitxsan governance and social structure consists of Houses (Wilps),
Clans (Pdeeks) and communities. Gitxsan governance includes both a hereditary
system and elected Band governments. There are four Clans and between 60 to 65
Houses. Each House has a Head Chief and Wing Chiefs. Each House has its own
history and territory. Each Head Chief is a trustee responsible for
protecting their House members interests and managing the Houses traditional
lands and resources. Each House is autonomous. Under Gitxsan law, the Head
Chief has authority to speak for the House territories, but no Chief can speak
to another Houses interests. Wing Chiefs are entitled to speak on behalf of
the House but only in accordance with the direction of the Head Chief.

[18]

There are six Gitxsan bands each with a band government elected under
the
Indian Act,
R.S.C. 1985, c. I‑5. Further, every person
born of a Gitxsan woman is automatically a member of his or her mothers House
or Clan. Some, but not all, Gitxsan Band members are also House members.
Roughly 20% to 30% of the appellant Gitxsan Bands members are not Gitxsan
House members, because they do not have Gitxsan mothers. House membership is
not required for a person to be considered Gitxsan. Persons may be recognized
as Gitxsan if they are the father of a Gitxsan person, off-spring of a male
Gitxsan or a registered status Indian with a Gitxsan Indian Band. Gitxsan
Indian bands do not distinguish between members based on whether they belong to
a Gitxsan House. All band members have equal rights whether they belong to a
House or not.

The Gitxsan Treaty Society

[19]

As noted, the existence of an entity such as the GTS is required if a
First Nation is to enter into treaty negotiations. Under the BCTA, a First
Nation is defined as:

an Aboriginal governing body,
however organized and established by Aboriginal people within their traditional
territory in British Columbia, which has been mandated by its constituents to
enter into treaty negotiations on their behalf with Canada and British Columbia.

[20]

The BCTCs Policies and Procedures provide:

The organization and establishment
of a governing body for treaty negotiations is a decision to be made by the Aboriginal
people it represents, namely the constituents of the First Nation.

[21]

For current purposes, and in terms of the definition of a First Nation,
the governing body of the Gitxsan is the Hereditary Chiefs, the Simgiigyet, structured
as we have seen along matrilineal lines in autonomous Wilps.

[22]

The GTS was incorporated by the Hereditary Chiefs, as required by the Treaty
Process. The details of its incorporation will be canvassed later, but the GTS
and the First Nation are distinct. The Simgiigyet, as the traditional leaders
of the Nation, hold and exercise the Nations Aboriginal rights, including
title, on behalf of their Wilp, not the GTS. The Gitxsan Nation, as represented
by the Simgiigyet, is the party, the principal, in treaty negotiations with the
Crown. The GTS undertakes administrative tasks, at the request of the First
Nation, but the Gitxsan Nation retains ultimate control over the treaty
process, including not having the GTS act on its behalf. The GTS cannot ratify
a treaty. Ratification, and the basis for it, is a matter ultimately for the
Gitxsan people.

[23]

From a review of the pleadings, arguments and various judgments dealing
with different issues within this litigation, it appears that a number of
issues underlie division within the community, inform the issues on appeal, and
partially explain why the GTS has become a lightning rod for criticism. By way
of example, the appellant Hereditary Chiefs express concern that the Aboriginal
title they hold is being bargained without recognition of their veto over any
agreements to which they do not consent. The stated approach in negotiations
that the Simgiigyet operates by consensus is inconsistent, the appellants
contend, with traditional governance. Indeed, some of the appellants, we were
told, object to any participation in treaty negotiations. Moreover, the model
of membership in the GTS (which currently permits one representative of each House
to be a member) denies recognition to Indian Bands, fails to recognize the
interests of Gitxsan persons who are not House members, and is unduly
restrictive. By relying on indirect membership, the GTS is insufficiently
representative, undemocratic, and does not exemplify a principle of universal suffrage.

[24]

These structural problems, which go to how the GTS is constituted
within the Gitxsan Nation, is compounded, in the view of the appellants, by the
way in which the GTS has acted and some of the agreements it is said to have
reached. Of particular concern to the appellants is the Gitxsan Alternative
Governance Model tabled by the GTS in negotiations. They contend this proposal
would adversely affect Aboriginal and other rights and obligations of Gitxsan Hereditary
Chiefs and House members, registered Gitxsan band members, band council and
land holders on Indian reserve land. The appellants gave notice in 2008 to the
Crown(s) and the BCTC of their concerns, attempting to stop negotiations until the
GAGM was addressed in the community and their concerns met.

Procedural History

[25]

This action, as originally constituted, named the BCTC in addition to
the GTS, Canada and British Columbia. The appellants alleged that the BCTC owed
a duty of care in negligence to them to oversee the negotiation process, to
ensure the readiness of the Gitxsan people to negotiate in the treaty process,
to ensure on an ongoing basis that the negotiators have a mandate, and to
allocate funds accordingly. They contended the BCTC breached its duty of care
by failing to meet the standard of care required by a reasonable and prudent
facilitator of the treaty process, including failing to ensure that the GTS has
a valid mandate, is representative and accountable to the Gitxsan people, and
in failing to exercise due care and diligence in lending funds to the GTS.

[26]

For reasons indexed at 2011 BCSC 1001, Mr. Justice Kelleher
dismissed the action, concluding that it was plain and obvious that no duty of
care as alleged arose in the circumstances. He concluded that the BCTC could
not have a duty to involve itself in the internal governance affairs of a First
Nation to protect a minority within it. He found that recognizing a duty of
care would conflict with the fundamental principle of self-governance for First
Nations. In reaching this conclusion, he endorsed the view of Mr. Justice
Cullen, as he then was, in
Tsimshian Tribal Council v. British Columbia
Treaty Commission
, 2005 BCSC 860, where he said at para. 59:

The question of for what and how
the Tsimshian community should be negotiating is an internal question to be
decided collectively by its membership. It cannot be decided by the BCTC or by
the court. The requirement of securing and advancing a mandate is an open one
conducive to debate, persuasion, and resolution through ongoing processes. It
is through that essentially political process that the interests and views of
those aggregating around the TTC can be furthered.

[27]

Mr. Justice Kellehers decision was not appealed. Although the
claim sounded in negligence, the judgment reflected a theme that emerges in the
judgment under review, namely that the courts should be cautious (at a minimum)
about interfering in the internal affairs of, or political conflicts within, First
Nations, especially where they relate to self-government for the purpose of
engaging in the Treaty Process. I make no comment on whether the appellants
have any other recourse against the BCTC in the discharge of its duties to
ensure a First Nations mandate in treaty negotiations. The record discloses
that the BCTC has been informed of the appellants concerns, but has not taken
the position that the GTS has lost its original mandate to engage in the Treaty
Process.

[28]

The second issue that arose was an application pursuant to s. 85 of
the
Society Act
for approval of a list of 37 new members so that the GTS
could convene an extraordinary general meeting to decide on the constitution of
its board of directors. The reasons approving the s. 85 petition are
indexed at 2013 BCSC 974. As the chambers judge commented, those reasons are
pertinent to some of the issues in this proceeding.

[29]

The s. 85 issue arose because of a defect in the then existing GTS
bylaws relating to the appointment of directors. The bylaws stipulated that the
four clans (Pdeek) had the authority to appoint the GTS directors. The
Society
Act
mandates that the GTS
members
have the authority to appoint
directors. The structure that had been adopted was an effort to integrate models
of Gitxsan governance with the requirements of governance of a society under
the
Society Act
.

[30]

The s. 85 issue came to light in the context of the GTS initial application
to strike the appellants claim. As a result, the application was adjourned
pending a resolution of the defect. As noted by the judge in the decision under
appeal:

[7]        Among the features of the resolution of the
s. 85 issue was a canvass of the whole Gitxsan community to create a
representative body of voting members to convene an extraordinary general
meeting to appoint a board of directors. The proposal this court approved was
that voting members would include all the Hereditary Chiefs of Gitxsan Houses
who submitted a membership application. Among the reasons for this Order was a
concern that, as previously structured, the Hereditary Chiefs (which includes
some of the plaintiffs), could not readily become members. This significantly
undermined the GTSs position that in this proceeding the plaintiffs lacked
standing because they were not members of the GTS. It seemed that an
intelligible and more inclusive opportunity to apply for membership might
result in a situation where the debates that drive these proceedings could take
place
within
the GTS.

[8]        None of the Hereditary
Chiefs among the plaintiffs took up this invitation. The members ultimately
entitled to vote at the extraordinary meeting included some 37 of the approximately
62 Hereditary Chiefs.

[31]

More detail is provided in the s. 85 reasons:

Gitxsan Treaty Society,
2013 BCSC 972.
After describing some initial suggestions about how to overcome the defect, the
judge described the process actually followed:

[30]      The process the GTS adopted was more extensive,
given the courts direction to develop a model that would open participation to
the broader community. I have set out the context at para. 5 of these
reasons. The segment of the interested community represented by the
Spookw
plaintiffs have sought the dissolution of the society from outside, that is
without standing as members. A rather brief investigation into how they might
become members showed that it was rather difficult, and that in any event,
membership under the current by-laws did not carry with it the necessary
prerogative of a voice in the directors. It appears, in other words, that the
only way to influence the governance of the GTS was from the outside.

[31]      In order to address
these issues, the GTS put forward a plan in four phases:

Step one:         Meeting of the
Gitxsan Simgiigyet (Hereditary Chiefs) to update and consult with the
Simgiigyet about the proposal for resolving the defect in the GTSs bylaws in a
manner that adhered to both Ayookim Gitxsan and the March 27 Decision;

Step Two:        Meeting of the
Simgiigyet and the broader Gitxsan Nation to appoint new members to the GTS.
The GTSs proposed membership structure asked each Wilp (House) to appoint one
member, if that Wilp wanted to participate in GTS governance;

Step Three:     GTS returns to
court, seeking approval of new membership list that it obtained as a result of
the previous two steps; and

Step Four:       GTS calls an
extraordinary general meeting of new members to revise GTS bylaws.

[32]      The BCTC was consulted and attended the meetings. A
meeting of the Gitxsan Simgiigyet (Hereditary Chiefs) was held on June 26,
2012. Skanuu (Ardythe Wilson), one of the chairs of the meeting, summarized
the discussion as follows:

Many of the Simgiigyet understood
references to a community based solution in the June Materials to be a
reference to
Indian Act
bands. The Simgiigyet firmly rejected any
process for the GTS that was based on
Indian Act
governance. Instead,
the Simgiigyet emphasized that they are the leaders of the Gitxsan Nation and
are meant to control the GTS. They insisted that the Gitxsans Wilp (House)
system must be respected, and must not be placed by
Indian Act
communities. During the meeting, GTS representatives clarified that any
reference to community-based in the GTSs proposal was a reference to the
Gitxsan Huwilp (Houses), and not Indian Bands, and the Simgiigyet accepted that
clarification;

Many of the Simgiigyet questioned
why it was necessary to prove the Gitxsans hereditary system again, because the
Gitxsan already had succeeded in doing so before the Supreme Court of Canada in
the
Delgamuukw
case;

A large majority of the Simgiigyet
agreed that if the GTS was broken, they had a responsibility to fix it.
However, that fix must respect Ayookim Gitxsan (Gitxsan law). This point was
stressed repeatedly at the meeting; and

The Simgiigyet did not want to
accept foreign structures, like the provincial society, and expressed
frustration that their own systems and laws were not being respected by the
Crown. The Simgiigyet understood that they had no option but to use the
provincial structure in order to be eligible for treaty funding, because of the
Crowns position on that issue, but accepted the use of a provincial entity
under a sense of duress, or because they felt they had no other choice.

[33]      Ms. Wilson declared at the end of the meeting
that a consensus had emerged approving the four step process.

[34]      A further meeting was held July 17 - 19, 2012.
Efforts were made to distribute materials giving notice of the meeting
throughout the Gitxsan Nation. These included:

(a)        the GTS posted the July
Materials in public areas around the Gitxsans territory, like Band offices and
bulletin boards in the various Band communities. one was posted at the bulletin
boards at the Kispiox Band Office and Glen Vowel Band Office, and also at the
Royal Bank in Hagwilget;

(b)        the GTS ensured the July
Materials remained the top post on its website, beginning July 6 until the
meeting concluded on July 19;

(c)        the GTS posted the June
Materials on a Facebook page used regularly by opponents of the GTS on July 6;
and

(d)        the GTS issued a news
release about the July Meeting on July 10, clearly stating the meetings
purpose was to admit new members to the GTS and re‑affirm the GTSs
continuing mandate to support the Simgiigyet and the Gitxsan people in their
efforts to advocate for Gitxsan Aboriginal rights in treaty negotiations...
The news release also clearly stated that the meeting was open to all
Gitxsan.

[35]      Ms. Wilson again co-chaired the meeting. She
deposes that 66 Simgiigyet and 50 others attended; as well as the GTS
directors and staff.

[36]      Each Wilp was told it could submit a membership
application to the GTS if it wanted to appoint a GTS member. Each Wilp was left
to decide internally whether it would do so. At the end of the meeting 37 names
were put forward from Huwilp that were supportive. Some 18 Simgiigyet indicated
that they did not wish to put forward a name from their Wilp.

[37]      The GTS submits that
this process demonstrates a substantial effort to involve all Gitxsan Huwilp,
and gave everyone an opportunity to participate. They have now presented the 37
named individuals they propose should form the reconstituted membership of the
GTS in order to make the necessary revisions to the GTS by-laws.

[32]

The court approved the proposed structure. Before doing so, the judge
had to decide whether he should grant the current appellants standing in that
petition. The judge took note of the position of the appellant Hereditary
Chiefs, who were respondents to the s. 85 petition, noting that none of
them had taken up the opportunity to influence the GTS from within by becoming
members. He acknowledged their submission (at para. 48) that:

... should only members have
standing, an organization can immunize itself by limiting membership. GTS has
deliberately kept its membership small in the past and, according to their
proposal developed during the January 2012 Gimlitxwit meeting, they will have a
maximum membership of approximately 65 members despite claiming to speak for
all Gitxsan people. Some of the
Spookw
Plaintiffs, the Bands and those
they represent, are completely excluded from membership. The other
Spookw
Plaintiffs,
the Hereditary Chiefs, are unable to join in membership because they cannot
agree with the membership structure adopted by GTS that unfairly restricts
membership,... If the Respondents are not found to have standing, it would
allow GTS to continue to restrict its membership so as to immunize itself from
challenges on grounds of lack of standing. At the very least, the issue of
standing cannot be decided as a preliminary matter, and can only be determined
after hearing all of the evidence on the petition.

[33]

In dealing with standing the judge observed that ordinarily, granting
standing to non‑parties is premised on there being no other way for a
matter of importance to be brought before the court. It is not, he said, normally
an alternative means by which people who have chosen not to take standing in a
more conventional way (e.g., by participating in membership) can come before
the courts. Second, he concluded that the GTS was not akin to a government. It
was an agency of the Gitxsan Nation with only power to make recommendations that
the community must ratify in order to be binding. The third is that the submission
he noted in para. 48 was premature. The proposal was only to create a
slate of members who would then go on to appoint directors to do whatever the
society chooses to do respecting membership. In refusing to participate, the
respondents had given up an opportunity to persuade the other initiating
members of their point of view.

[34]

The appellants made various submissions before the chambers judge in the
s. 85 proceeding, including alleging violations of Gitxsan law by the GTS
and its proponents, as well as irregularities in the meetings that were held to
consult the community about the new GTS structure: see paras. 57‑64.
The chambers judge noted the issue before him was narrow:

[68]      My task on this petition is not to pronounce on the
merits of the larger controversies between the factions who support the treaty
process and those who do not. It is to address the defect in an entity of some
long standing that has to date, in the Treaty process, been accepted by the
BCTC as an agency of the Gitxsan Hereditary Chiefs. As the BCTC

has
indicated, the GTS operates while it has the confidence of the Gitxsan Nation
and could cease to be the negotiating agent for the Gitxsan if the Nation so
decided.

[69]      The BCTC explained that
its role in the meetings leading to the proposed restructuring process, in
2012, related to the mandate issue; it specifically wanted the GTS to seek
confirmation from the Gitxsan Hereditary Chiefs and the broader Gitxsan
community respecting their collective wishes regarding the GTS administration
of treaty matters on behalf of the Gitxsan Nation. Nothing before me suggests
that issue was settled in a way that presently compromises the standing of the
GTS, although the question of mandate is not presently before the court.

Reasons for Judgment

[35]

Given that the appellants were not members of the GTS, the relief
they sought depended on them being found to be proper persons to seek its
winding-up. This issue was governed by provisions of
the
Society Act
and the
Company Act
,
R.S.B.C. 1996, c. 62
, in place at the time this action
commenced in December 2008. There have been amendments since. At times relevant
to these proceedings, s. 71 of the
Society Act
incorporated
portions of the
Company Act
, which had, for other purposes, been
repealed. Section 71 of the
Society Act
read as follows:

Despite
the repeal of the
Company Act,
R.S.B.C. 1996, c. 62, Part 9 of
that Act continues to apply to a society and an extraprovincial society as
though Part 9 of that Act had not been repealed.

Part 9 of the
Company Act
includes s. 271(1):

A company, on the application of
the company, member, director, creditor, a trustee for debentureholders, a
receiver manager, or the minster may be wound up by court order.

Section 271(4) reads:

For the purposes of this section, a member includes

(a)        a beneficial owner of a share in the company, and

(b)        any other person who,
in the discretion of the court, is a
proper person
to make an application.

Section 272 allows a court hearing a winding up application
brought by a member to make an order for winding up or under s. 200, the
oppression provision, if [the court] is of the opinion that the applicant is
entitled to relief either by winding up the company or under s. 200.

[36]

Much of the judgment is given over to a comprehensive summary of the
arguments advanced by the parties on the issue of standing. In brief, the GTS
argued that a grant of standing to non-members is available only on narrow
grounds, typically where the non-member has a direct stake or financial
interest in the affairs of a society, but owing to unforeseeable circumstances
is not actually a member. The GTS acknowledged that the power to grant standing
is discretionary, not disputing the proposition from
First Edmonton Place
Ltd. v. 315888 Alberta Ltd.
(1988), 60 Alta. L.R. (2d) 122 (Q.B.), that the
court has a broad power to do justice and equity in the circumstances of a
particular case, where a person, who otherwise would not be a complainant,
ought to be permitted to bring an action under [the Alberta
Business
Corporations Act
] to right a wrong done.

[37]

The GTS stressed that the Hereditary Chiefs chose not to become members despite
the opportunity to do so, and the Indian Bands are statutory entities with no
relationship to the GTS. Although the appellants are or might be affected by
the activities of the GTS and are persons whose interests are among those
sought to be advanced by it in negotiations, the appellants are not
stakeholders in the GTS and have no direct interest in its assets or
liabilities (including any loan debts). Granting standing would undermine the
position of those who have actually participated in the GTS, effectively
hijacking it.

[38]

The appellants grounded their submission on an argument that any
agreement negotiated by the GTS would have permanent effects on the Gitxsan
peoples rights. They claimed a direct interest in the assets and liabilities
of the GTS. They contended that they had been excluded from involvement in
treaty negotiations and their rights have been compromised without their
knowledge, involvement or agreement. They contended that they have a direct
interest in the treaty negotiations because it is their rights and interests
that are the subject of negotiations. The GAGM would have profound effects on
Gitxsan band members and their interests, including the abolition of the Indian
Bands. This, they submit, is sufficient for granting standing to the appellant
Bands. They argued that the GTS has no mandate and is unrepresentative. It is
only just that they have standing to advance their claims. The appellants
submit, moreover, that they are constituents of a First Nation as defined in
the First Nation Negotiating Support Agreement and may thus be said to have a
role in mandating the GTS to enter treaty negotiations on their behalf.

[39]

The chambers judge acknowledged how the appellants may be affected by
the conduct of the GTS, but noted that any agreement would have to be put to a
vote of the Gitxsan people before it could be adopted (at para. 123).
Moreover, he found that the appellants do not have a direct pecuniary
interest in the GTS. Their interest is, at this point, only a contingent
interest in the negotiations (at para. 125). The chambers judge noted the
grounds for granting standing on indirect, non-pecuniary interests are
circumscribed, and considered the Hereditary Chiefs to have forsworn the
opportunity to work inside the GTS for the changes they would like to see (at paras. 126‑128).
Finally, the chambers judge considered this to be a political dispute within
the Gitxsan First Nation. The principle of self-government inherent in the
Treaty Process should not be undermined or compromised through interference by the
Crowns or the courts. In conclusion, the chambers judge noted:

[136]    The plaintiffs submissions that the Gitxsan people
are effectively members of a community that directs the GTS and are, therefore,
proper persons, would negate the purpose for which the GTS was incorporated,
that is, to provide a legal entity which can negotiate with the Crown(s) in the
Treaty process, and a mechanism for the receipt and accounting of Treaty
negotiation funding. There are means to wind up the GTS if the community and
its leaders decisively choose to use them.

[137]    As matters now stand,
however, the plaintiffs advance propositions that amount to dissenting
political views they ask the court to endorse and impose, in circumstances
where they have been unable (or unwilling) to carry the burden of persuasion of
their point of view within the community as a whole.

Did the Judge Err in his Conclusion on Standing?

[40]

The parties agree that the appellants standing to seek winding-up
remedies is dependent on them being found to be proper persons under the then-in-effect
s. 271(4) of the
Company Act
which states:

For the purpose of this section, a member includes

(a) a beneficial owner of a share in the company, and

any other person who, in the
discretion of the court, is a proper person to make an application.

[41]

Equally, it is common ground that conferring standing on this basis
involves an exercise of discretion, albeit one that must be exercised
judicially. Moreover, the fundamental proposition articulated in the
First
Edmonton
case is sound. The section confers a power on the court to grant
standing where in the circumstances of a particular case justice and equity
require it. But the exercise of that power must take into account the general
principles of law governing companies and societies, such as the indoor
management rule which exemplifies the reluctance of courts to become involved
in internal issues or to permit outsiders of the legal entity whose interests
may be affected by its conduct to acquire rights conferred on those who are
shareholders or members. It seems clear that the power to recognize someone as
a proper person is one to be exercised in limited circumstances. In effect, a
grant of standing confers upon a person the rights they would have had if they
were a shareholder or a member, because justice and equity require it.
Evidently, this is an unusual, if not extraordinary, remedy.

[42]

Here, the appellants attack the exercise of a discretionary power. In my
view, to do so successfully they would need to demonstrate that the judge erred
in principle or came to a decision that is so clearly wrong as to amount to an
injustice or that the judge had erred in giving no or insufficient weight to
relevant considerations: see
Penner v. Niagara (Regional Police Services
Board),
2013 SCC 19 at para. 27.

[43]

It appears to me from a reading of the chambers judges reasons that a
number of observations guided his exercise of discretion to deny the appellants
standing: (1) the appellant Hereditary Chiefs have forsworn the
opportunity to work inside the GTS for the changes they would like to see (at
para. 128); (2) the appellants interest is an interest in
negotiable aspects of the treaty process [that] is, at this point, a
contingent interest (at para. 125); and (3) turning over resolution
of a political dispute within the Gitxsan Community to Canada, British
Columbia, or the courts would undermine the fundamental premises of
self-government of First Nations (at paras. 128, 130). As to the
Bands and the Gitksan Local Services Society, the chambers judge considered
them to be organizational manifestations of the relationship between the
government(s) and the Gitxsan people (at para. 127).

[44]

The appellants argue that the chambers judge erred in finding the
appellant Hereditary Chiefs could and should have become GTS members, in failing
to give sufficient weight to the purposes underlying the GTS, and in finding
the appellants interests to be contingent.

[45]

Finally, the parties disagree as to whether the chambers judge dismissed
the winding-up petition on the threshold issue of standing, or on the basis of
the merits.

The Appellant Hereditary Chiefs Could and Should
Have Become Members of the GTS

[46]

It is evident that a primary consideration in denying standing was that
the Hereditary Chiefs had failed to take the opportunity to become members of
the GTS during the s. 85 restructuring process. Instead, they have persisted
in pursuing relief from the outside as if they were members.

[47]

Most fundamentally, the judge recognized the opportunity that the
Hereditary Chiefs had been given, as a result of the s. 85 petition
proceedings, an opportunity to become, or to nominate, a member of the GTS
representing their respective House. The judge concluded that the Hereditary
Chiefs had available to them a means of direct engagement with the GTS, but
that they had forsworn the opportunity to work inside the [GTS] for the
changes they would like to see (at para. 128). In these circumstances,
accepting the invitation to grant standing would involve the court in
interfering in internal political disagreement within the Gitxsan nation,
contrary to the principles embedded in the Treaty Process which call for
recognition of the principle of self-government.

[48]

The appellants say that the judge erred in finding that they could and
should have become members of the GTS.

[49]

The parties disagree about what the appellant Hereditary Chiefs could
and should have done. On one hand, the GTS says, and the chambers judge agreed,
it was open to the Hereditary Chiefs to submit an application to become, or to
nominate someone to become, a member of the GTS as part of the s. 85
process (the
could
). Indeed, the chambers judge viewed the whole
purpose of the s. 85 proceedings as directed towards making the GTS more
inclusive and representative:
Gitxsan Treaty Society,
2012 BCSC 452 at para. 43.
The chambers judge viewed the s. 85 proceedings as an invitation for the
appellant Chiefs to join if they wanted to voice their concerns about the GTS
(the
should
).

[50]

The appellant Chiefs do not deny it was open to them to submit an
application. As I understand their argument though, they submit that they
could not approve the scheme by putting their names forward for membership
because it violated Gitxsan law, tradition and practice. Indeed, they submit
that they declined to apply for membership on grounds of this abuse of Gitxsan
law.

[51]

In approaching this question, it is important to note the careful
considerations that courts must bring to bear in cases dealing with the
interaction between indigenous legal traditions and those of non‑Aboriginal
sources, such as the
Company Act
and
Society Act,
and related
case law.

[52]

Although primarily expressed in the context of claims of Aboriginal
title and other property rights (e.g., fishing rights), the Supreme Court of
Canada has encouraged courts to be sensitive to Aboriginal perspectives, and to
take them into account alongside the perspective of the common law: see
generally
R. v. Sparrow,
[1990] 1 S.C.R. 1075 at 1112;
Delgamuukw
v. British Columbia,
[1997] 3 S.C.R. 1010 at paras. 148‑149;
R. v. Marshall;
R. v. Bernard,
[2005] 2 S.C.R. 220 at para. 48;
R. v. Van der Peet,
[1996] 2 S.C.R. 507 at para. 42;
Tsilhqotin Nation v. British
Columbia,
2014 SCC 44 at paras. 34‑35.

[53]

With this in mind, I understand the appellant Hereditary Chiefs
objections to the GTS membership structure. I also understand why they
considered that they could not submit an application to join the GTS.

[54]

Nonetheless, I am persuaded that the chambers judge was alive to these
considerations. There was clearly a dispute, at least among certain Chiefs, about
whether Gitxsan law precluded one from becoming a member of the GTS, as
presently structured. The chambers judges extensive reasons in the proceedings
related to these disputes reflect his concern about the representativeness and
transparency of the GTS, including the notion of community involvement in and
engagement with Gitxsan traditions. With this concern in mind, he rejected the
first restructuring proposal in the s. 85 proceedings, directing more
extensive, community-wide consultations and participation. The appellants did
not appeal the chambers judges subsequent order approving the appointment of
the 37 resulting members as members for the purposes of the extraordinary
general meeting.

[55]

Oral submissions before this Court suggested that, since the approval of
the s. 85 petition, additional Houses have submitted applications for, and
appointed representatives as, GTS members. On the record before us it remains
open to the appellant Hereditary Chiefs to become members. If the appellant
Hereditary Chiefs were members, they would have had, and may still have,
standing to bring a winding-up petition under the
Society Act
and
Company
Act
provisions noted earlier.

[56]

This is what the chambers judge had in mind when he observed the
appellant Hereditary Chiefs were, improperly, making their arguments from the
outside
.
I see no error in the chambers judges observation that there are means to
wind up the GTS if the community and its leaders decisively choose to use them
(at para. 136). The current petition proceeding, as brought by the current
appellants, is not one of those means.

[57]

As the chambers judge correctly observed, as a general rule, proper
person standing is granted where there is no other reasonable alternative to
bring a question before the court. That is not the case here. I agree that the
Hereditary Chiefs forswore their opportunity to become members and to influence
the affairs of the GTS from within. The chambers judge, in considering what would
be just in the circumstances, considered the history of the proceedings and the
fact that other Houses have nominated members to join the GTS after the
extensive consultation process. His finding that the appellant Hereditary
Chiefs have forsworn their opportunity to become members was supported on the
record. His consideration of this in exercising his discretion to deny standing
was not an error.

[58]

The appellants also say the judge erred in failing to consider the
purpose of the GTS in determining what is just in the circumstances. But the
judge did pay attention not only to the purposes of the society, but also to
the context in which these issues had arisen, namely, a treaty process designed
to achieve reconciliation between a First Nation and the broader community.
Both in the reasons for judgment concerning the s. 85 petition and in the
reasons leading to the order under appeal, the judge carefully analysed the
role of the GTS as an instrument of the Gitxsan Nation in its negotiation with
the Crown(s). He paid attention to its purpose as an entity capable of
receiving negotiation funding, as well as its role as an instrumentality in the
process of negotiation. He examined what the GTS could do, and what it could
not do, such as bind the Gitxsan nation without ratification. He took account
of the current stage of negotiations. He recognized the degree to which the GTS
could advance or affect the interests of the appellants. He explicitly referred
to the fact that he had examined whether issues of standing should be more
liberally construed in a context dealing with Aboriginal law. In my view, the
appellants have not demonstrated that the judge erred by misunderstanding the
role of the GTS, or by failing to consider the purpose of the GTS. Nor have
they demonstrated any error in the way in which he took into account the
purposes of the GTS in deciding the issue of standing.

Contingent Interests

[59]

The appellants contend that the conclusion that they had only a
contingent interest in the outcome of negotiations was an error. I am not
persuaded that it was.

[60]

The judge recognized that the appellants interests could be affected by
the activities of the GTS, but he concluded that the GTS had not done anything
irrevocable or lasting, nor could it bind the Gitxsan people. He recognized the
appellants interest in treaty negotiations, describing that interest as
contingent because any proposed treaty, the terms of which had not been
negotiated in any event, would require ratification by the Gitxsan nation. He
was not prepared to find that the appellants concerns about debt financing or
the way that monies had been spent established a direct pecuniary interest in
the GTSs affairs. As I read his reasons, he did not conclude that a direct
pecuniary interest was a prerequisite for standing as a proper person. Instead,
he found that the appellants did not have a direct pecuniary interest. This
finding was open to him on the  record, and it militated against exercising his
discretion to allow standing.

[61]

It is apparent that the judge accurately comprehended the role of the
GTS in treaty negotiations, in which the principal is the Gitxsan Nation. The
GTS is merely an agent. Negotiations are at stage 4, negotiating an
agreement in principle. But no such agreement has yet been negotiated, and
indeed, a confirmation of the mandate is required before advancing to the next
stage. The judge understood the subject matter of those negotiations, including
discussion of matters such as Aboriginal title and the future of the Bands. He
recognized that any treaty would require ratification by the Gitxsan nation, in
a manner yet to be determined, and that the GTS could not bind the Gitxsan nation.
In my view, the judges reference to the appellants having a contingent
interest in the outcome of the negotiations was simply a convenient shorthand
characterization of the manner in which ongoing negotiations
might
affect the appellants interests. I see nothing inaccurate in that
characterization. Further, while the appellants have urged upon this Court to
consider the sizeable debt to the Crown the GTS has incurred for treaty
negotiations, I do not find this persuasive, and the chambers judge did not err
in how he considered it. The debtor is the GTS, and the extent to which this
debt becomes a liability for the individual appellants, members of their
respective Houses, or the nation as a whole, would depend on the presently unknown,
or contingent, outcome of the negotiations. I see nothing here that suggests
the judge in anyway misapprehended the facts or misapplied any relevant
principle in allowing this to inform his exercise of discretion to deny
standing.

[62]

Insofar as the Bands are concerned, the judge concluded that they were
organizational manifestations of the relationship between the government(s)
and the Gitxsan people, but they were not parties to the
government-to-government negotiations represented in the treaty process (at para. 127).
This conclusion, as I read the judgment, is informed by an appreciation of the
principles underlying the treaty process, a recognition that the manner in
which a First Nation organizes itself to engage in that process is a matter of
internal government, and also an awareness of his earlier ruling in the s. 85
petition which approved the membership structure of the GTS.

[63]

I do not think the judge made any reversible error in denying the Bands and
the Gitksan Local Services Society standing. The constitution of the GTS based
on membership rooted in one potential member for each house, as approved and
directed by the Head Chief, not only reflects important elements of traditional
governance in the Gitxsan nation, but was also endorsed by the courts order
resulting from the s. 85 petition. That order approved the GTSs
membership structure, which did not contemplate membership for the Indian
Bands. No party appealed that judgment. These considerations informed the
judges exercise of discretion in not granting standing to the Bands. He
correctly considered that to grant them standing would be inconsistent with the
final outcome of the s. 85 petition insofar as the issues engaged in the
current application are an attack on the structure and composition of the GTS,
rather than merely its conduct.

[64]

In my view, underlying the approach taken by the judge in handling this
litigation is the recognition that the way in which the Gitxsan nation
organizes itself to engage in treaty negotiation is a matter of internal
self-government. What role, if any, the Bands and the Gitksan Local Services
Society play in that process is to be decided by the community itself. Granting
standing to these organizations as proper persons would be inconsistent with
this approach. The judges analysis of the Bands as being organizational
manifestations of the relationship between government and the Gitxsan people is
accurate, reflects the fact that the Bands do not form part of the traditional
government of the Gitxsan nation, and in my view, was properly taken into
account in denying them standing.

[65]

Finally, the appellants contend that the judge erred in concluding that
the claim for winding up was bound to fail. This issue raises a question
pertaining to the scope of the reasons for judgment. The judge catalogued
arguments advanced by the parties premised on the proposition that the
appellants had standing (at paras. 72‑95). The GTS contended that
the claim, even so, was bound to fail because none of the circumstances that
would justify a winding up of a society could be said to exist on the pleaded
allegations, even if they were assumed to be true.

[66]

On my review of the reasons for judgment, it is far from clear whether
the judge went beyond concluding that the claim was bound to fail because the
appellants did not have standing to raise it. It is not apparent that the judge
went further and adopted the view that the claim was bound to fail on its
merits (e.g., there was a loss of substratum, etc.). Since I would uphold the
judges order on the basis that the appellants were correctly held not to be
proper persons, I think it unnecessary to resolve this question. I would say no
more about it.

[67]

It is apparent that the guidance in the case law relating to the
circumstances when a court should exercise its discretion to grant standing to
someone as a proper person is relatively sparse. Given the unique
circumstances of this case, I do not think this is the appropriate case to
attempt to lay down any general principles about such matters as what kind of
interest might entitle someone to standing, how direct or immediate must that
interest be, to what extent should the interest be analogous to a shareholders
or members interest, or how should the difference between a company and a
society be reflected in any test. In my view, this appeal can be disposed of
without laying down any general rules, but on the basis of the considerations
and circumstances I discussed above, and considered by the judge in his
exercise of discretion.

[68]

As such, I conclude the chambers judge did not err in his exercise of
discretion to deny the appellants standing in the winding-up claim against the
GTS. I would not accede to this ground of appeal.

Fiduciary Duty

[69]

The appellants query whether the judge made a decision on the claim
against the Crown(s) sounding in breach of fiduciary duty and the honour of the
Crown. If he did, they contend that his reasons were insufficient and, in any
event, rested on an error in finding that the test for striking a claim had
been met.

[70]

In my view, it is clear that the judge did decide the question and,
indeed, the order reflects that fact. The judge set out the submissions of the
parties at length. He concluded that the declaration sought by the appellants
of a duty owed to them failed to address the design of the treaty process which
is meant to place the governments in arms-length relationships with the
Gitxsan intermediated by the BCTC (at para. 131). This conclusion was
based on two propositions. First, no fiduciary obligation could arise in the
circumstances because of the role of the BCTC in the treaty process, which role
is endorsed by the statutory framework setting it up. Second, the
responsibility to intervene in political disputes within the Gitxsan community
cannot be turned over to the Crown or the courts because to do so would
undermine the premise of self-government. The chambers judge put it this way:

[116]    There may be contexts in which such dealings would
be grounds for a breach of fiduciary duty against the Crown, but it is
difficult to see how that is possible within the treaty process, which puts the
Crown(s) at arms length with the BCTC as the intermediary. In
this
proceeding, in
Spookw v. Gitxsan Treaty Society
, 2011 BCSC 1001,
Kelleher J. ruled that the BCTC has a duty to respect Gitxsan self-governance
and ought not to be seen to have a duty to respond to factional disputes within
the Gitxsan nation.

[118]    In the circumstances in which this matter first came
before the court it was difficult to tell whether it was arguable that GTS, had
in fact, retained its mandate. The BCTC appears, however, to have been
satisfied that the GTS has maintained a mandate throughout its tenure as the
negotiating agent for the Gitxsan people in the treaty process.

[119]    The structural problems
with the composition of the GTS that came to light in the course of this
litigation was resolved when this Court ultimately approved a resolution that
came from the community itself. The Court was satisfied that a broad canvass of
the community had been undertaken and that a resolution that offered the
Hereditary Chiefs of each House an opportunity to participate in a meeting to
elect directors and give further direction to the GTS properly balanced respect
for the traditional form of Gitxsan governance and community-wide engagement.

[71]

In my view, the judge was aware of, and acceded to, Canadas submissions
to the effect that the essence of the litigation is a dispute within the
Gitxsan community, in which the Crown has no role. The Treaty Process,
established by parallel provincial and federal legislation, created an arms-length
entity to assess a First Nation entitys negotiating mandate and to allocate
negotiation support funding. Accordingly, no fiduciary obligation can arise on
the part of Canada with respect to that matter. The claim is premature as the
harms alleged are contingent rather than imminent because there is still no
agreement in principle. Similarly, as I will discuss later, the honour of the
Crown cannot be relied on to require the Crown to intervene in an internal
dispute. Such intervention would be in conflict with the principle of
self-government. The Crowns role and conduct are limited by their respective
statutory obligations under the relevant legislation.

[72]

More importantly, I think it important to note the unique dynamics
engaged in treaty negotiations between the Crown(s) and indigenous peoples. The
interests being negotiated are unique, and indeed, at least in part,
sui
generis.
In this sense and given the principles informing the process, it
is not inaccurate to describe the process as nation to nation negotiations. This
dynamic recognizes the imperative of reconciliation of Aboriginal rights and
title and the assertion of sovereignty in relation to which the Crown(s) certainly
bear a duty of honour.

[73]

It is in this context that the Crown(s) and the First Nations Summit
came together to develop the BCTA framework. In the resulting framework, the
Crown(s) are placed at arms length from the First Nation, by way of the BCTC.
Funding, for example, is placed beyond the control of the Crown(s). The BCTC
manages funding requests and needs, and directs the Crown to provide the
funding. Both the Crowns and the BCTC have an obligation to respect Gitxsan
self-governance. It would be inconsistent with that obligation to require the
Crown to respond to, or decide, factional disputes within the Gitxsan nation.

[74]

In my view, the judge did not err in concluding that it was plain and
obvious the claim was bound to fail. It is no barrier to such a conclusion that
a case involves complex fiduciary duty claims or Aboriginal claims: see e.g.,
Canada
(Attorney General) v. Lameman,
2008 SCC 14;
Nunavut Tunngavik
Incorporated v. Canada (Attorney General),
2014 NUCA 2;
Peter
Ballantyne Cree Nation v. Canada (Attorney General),
2014 SKQB 327, revd
in part on other grounds 2016 SKCA 124; see generally,
Alberta v. Elder
Advocates of Alberta Society,
2011 SCC 24; and
Hryniak v. Mauldin,
2014
SCC 7.

[75]

It is important to note that while relationships between First Nations
and the Crown may, generally, be fiduciary in nature, not all dealings between
parties in a fiduciary relationship are governed by fiduciary obligations:
Manitoba
Metis Federation Inc. v. Canada (Attorney General),
2013 SCC 14 at para. 48,
[
MMF
]. In
MMF,
the Supreme Court of Canada outlined how a
fiduciary obligation can arise in the Aboriginal context:

[49]      In the Aboriginal context, a fiduciary duty may
arise as a result of the Crown [assuming] discretionary control over specific
Aboriginal interests:
Haida Nation v. British Columbia (Minister of
Forests),
2004 SCC 73 (CanLII), [2004] 3 S.C.R. 511, at para. 18. The
focus is on the particular interest that is the subject matter of the dispute:
Wewaykum
Indian Band v. Canada
, 2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245, at para. 83.
The content of the Crowns fiduciary duty towards Aboriginal peoples varies with
the nature and importance of the interest sought to be protected:
Wewaykum
,
at para. 86.

[50]      A fiduciary duty may also arise from an
undertaking, if the following conditions are met:

(1) an undertaking by the alleged
fiduciary to act in the best interests of the alleged beneficiary or
beneficiaries; (2) a defined person or class of persons vulnerable to a
fiduciarys control (the beneficiary or beneficiaries); and (3) a legal or
substantial practical interest of the beneficiary or beneficiaries that stands
to be adversely affected by the alleged fiduciarys exercise of discretion or
control.

(
Alberta v.
Elder Advocates of Alberta Society
,
2011 SCC 24, [2011] 2 S.C.R. 261
,

at para. 36).

[76]

Canada does not have unilateral or direct administrative control over
the positions that are put forward on behalf of the Gitxsan community at the
treaty table. To give Canada, or British Columbia, such control would
compromise the integrity of that negotiation process. Canada, British Columbia
and the Gitxsan Nation are separate and equal parties when negotiating a treaty.
British Columbia and Canada represent distinct non‑Aboriginal constituencies
and interests in these negotiations. The Gitxsan Nation decides for itself
which positions to put forward, if any, at the treaty table on behalf of its constituents.

[77]

On occasion, the Crown is in an arms-length or quasi-adversarial relationship
with a First Nation. While treaty negotiations are not adversarial, I agree
with the Crown respondents that the distinct interests and constituents
represented by the parties to the negotiations imply that no fiduciary
obligation arises here. I find support for this in
Gladstone v. Canada
(Attorney General),
2005 SCC 21 at para. 27.

As noted earlier,
the statutory scheme makes it clear that neither Crown respondents exercise any
discretion over assessing the GTSs negotiating mandate, allocating negotiation
support funding, or the positions advanced at the treaty table. The statutory
scheme assigns these responsibilities to the BCTC, which is an independent, arms-length
entity.

[78]

As Canada argues, relying on
MMF
, fiduciary obligations may be
imposed on those who have expressly or implicitly undertaken them (at para. 50).
The undertaking of a fiduciary obligation may be by statute, agreement or
unilateral undertaking:
Guerin v. The Queen,
[1984] 2 S.C.R. 335
at 385.

[79]

In my view, the Crown respondents have not undertaken to act in the
appellants best interests in the course of treaty negotiations. They have not
undertaken to assess the GTSs mandate or funding. There are no such
undertakings because to find they exist would be inconsistent with the nature
of treaty negotiations, as envisioned by the statutory scheme described earlier

[80]

The concept of arms-length treaty negotiations  and the fact that
Canada represents all Canadians in the negotiations  precludes Canada from
putting the appellants best interests above all others in the negotiations.
This applies similarly to British Columbia.

[81]

In my view, the chambers judge correctly dismissed the claims against
the Crown respondents for breach of fiduciary obligations. The chambers judge
did not err in considering the law of fiduciaries relating to the Crown and
First Nations, as developed in Supreme Court jurisprudence. His conclusion that
no such obligations exist in the case at bar is correct, and I would not
disturb it.

Honour of the Crown

[82]

The duty of the honour of the Crown arises from the Crowns assertion
of sovereignty over an Aboriginal people and
de facto
control of land
and resources that were formerly in the control of that people:
MMF
at para. 66,
citing
Haida Nation v. British Columbia (Minister of Forests),
2004 SCC
73, at para. 32. The ultimate purpose of the honour of the Crown is the
reconciliation of pre‑existing Aboriginal societies with the assertion of
Crown sovereignty:
MMF
at paras. 66‑67. The honour of the
Crown governs treaty-making, imposing requirements on the respondent Crown(s), such
as honourable negotiation and the avoidance of the appearance of sharp dealing:
MMF
at para. 73. However, the honour of the Crown is not a
free-standing cause of action; rather, it controls
how
obligations that
attract it must be fulfilled:
MMF
at para. 73.

[83]

The appellants argue that the Crown respondents have breached this
honour in a number of ways, primarily by continuing to fund and negotiate with
the GTS after receiving notice that the GTS does not represent the views of the
appellants. The tabling of the GAGM and the adoption of a short-term forestry
agreement are also identified as breaches of this obligation.

[84]

In my view, the chambers judge correctly observed that

breach of the duty of honour of the Crown is
not a recognized cause of action. Equally, the alleged breaches of the honour
of the Crown are inconsistent with the obligations undertaken by the Crown(s)
within statutory framework governing the Treaty Process. Taken jointly, these
conclusions are sufficient to uphold the judges order.

[85]

Evidently, there are serious disputes among the Gitxsan people as to how
the treaty negotiation process should proceed, if at all. The GTS is an agent
of the Gitxsan people. Through their Hereditary Chiefs, members of the Houses can
have a voice in how or whether the GTS is to conduct negotiations with the
Crown(s). It is not for the Crown(s) as a matter of a fiduciary duty or honour
to interfere with that internal, political debate.

[86]

Courts, in the context of the Treaty Process, as a general proposition, should
respect how an indigenous community resolves internal issues and organizes
itself to participate in the process. Similarly, the honour of the Crown is not
a paternalistic concept. It does not arise from a paternalistic desire to
protect the Aboriginal peoples (
MMF
at para. 66). The Treaty
Process contemplates that the Crown(s) will respect the self-governance of
indigenous communities, which includes how it resolves what, essentially, is
political disagreement.

[87]

The chambers judge was correct to note that the honour of the Crown does
not require either British Columbia or
Canada
to assess GTSs mandate in
the BC Treaty Process. The statutory scheme provides that the
BCTC
is
the party responsible for assessing the GTSs mandate and for allocating negotiation
support funding, not Canada. This way, the Crown(s) cannot manipulate
negotiation funding, or pick and choose which organization has a valid
mandate, when negotiating with the First Nation. Again, within the tripartite,
arms-length negotiation process, Canada cannot be said to have acted dishonourably
by complying with the statutory scheme, itself the product of extensive
dialogue between the First Nations Summit and the Crown(s).

[88]

The appellants indicate that they have informed the BCTC that the GTS is
no longer acting on their behalf. It appears that the BCTC is satisfied that
the GTS still has a valid mandate. The appellants have not, in the present
action, advanced any claims against the BCTC, aside from the action in
negligence which was dismissed. I would say no more respecting the appellants
claims, if any, against the BCTC, as the order dismissing that claim was not
appealed and is not before us.

[89]

In my view, the chambers judge correctly dismissed the appellants claim
of breach of the duty of the honour of the Crown in the way he did. This claim
discloses no reasonable cause of action or genuine issue to be tried. It is not
a recognized cause of action, is inconsistent with the principles of First
Nations self-governance, and is contrary to the statutory scheme that emerged
from agreement among the principals to the BCTA.

Conclusion

[90]

The chambers judge did not err in exercising his discretion to refuse
standing to the appellants. That is sufficient to dispose of the appeal as to
the petition against the GTS.

[91]

The chambers judge properly dismissed the claims against Canada and
British Columbia for breach of fiduciary duty and honour of the Crown.

[92]

Accordingly, I would dismiss the appeal.

The
Honourable Mr. Justice Harris

I
agree:

The Honourable Mr. Justice Goepel

I
agree:

The
Honourable Mr. Justice Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

A.A.A.M. v. Director of Adoption,

2017 BCCA 27

Date: 20170113

Docket: CA44032

Between:

A.A.A.M.

Appellant

(Claimant)

And

Director of
Adoption

Respondent

(Respondent)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson

Application to vary an
order of the British Columbia Court of Appeal, dated November 25, 2016

Oral Reasons for Judgment

Counsel for the Appellant A.A.A.M.:

J.E. Shragge

Counsel for the Respondent Director of Adoption:

M.E. Mouat, Q.C. (via
  teleconference)

Place and Date of Hearing:

Vancouver, British
  Columbia

January 11, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2017

Summary:

The appellant, Mr. M,
applied under s. 9(6) of the Court of Appeal Act to vary an order of the
chambers judge in which she held that his applications for an examination for
discovery of the Director or her representative and for a list of documents
from the Director are limited appeal orders. She denied leave to appeal the
dismissal of those applications. The chambers judge also denied his application
for leave to appeal an order dismissing his application for an interim increase
in parenting time. Held: application allowed in part. The chambers judge erred
in holding that the jurisdictional basis for the discovery orders was Rule 9 of
the Supreme Court Family Rules as opposed to Rule 10-3(7)(d). Orders made under
Rule 10-3(7)(d) are not limited appeal orders such that Mr. M is entitled
to appeal dismissal of those applications as of right. However, the chambers
judge made no error in dismissing his application for an interim increase in
parenting time.

[1]

BAUMAN, C.J.B.C.:
Mr. M applies to vary the chambers order of
Justice Fenlon made 25 November 2016, finding that two portions of his appeal
required leave and denying him leave to appeal from all limited appeal orders.
The orders concern pre-trial procedures in connection with a trial to determine
certain matters under s. 45 of the
Family Law Act
, S.B.C. 2011,
c. 25

(
FLA
). One aspect of Mr. Ms appeal goes as of
right and is scheduled to be heard on 27 February 2017. He seeks to have this
division vary Justice Fenlons order and grant him leave to appeal on the
remaining issues.

I.

Background

[2]

This case concerns the guardianship of Mr. Ms daughter, who I will
refer to as O, who is now seven years old. Mr. M is a citizen of Saudi
Arabia who is living in Canada on a now-expired student visa. O was born on 8
December 2009. Os birth mother denied Mr. Ms paternity and indicated on
the birth registration form that the father was unknown. She then signed the
necessary forms to facilitate Os placement for adoption by the Director
pursuant to the
Adoption Act
, R.S.B.C. 1996, c. 5. The Director
thereby became Os guardian.

[3]

In January 2010, DNA testing established Mr. Ms parentage. On 7
May 2010, the Director advised Mr. M that O would be placed for
prospective adoption with a couple in Alberta  the Ps  who were already
guardians of Os half-sister. Mr. M opposed the placement. On 13 September
2010, the Director gave care and custody of O to the Ps and she has lived with
them since that time.

[4]

Mr. M filed a notice of family claim seeking custody and
guardianship of O pursuant to the now-repealed
Family Relations Act
,
R.S.B.C. 1996, c. 128 (the
FRA
) on 25 February 2011. During a
hiatus in the trial of that action the
FRA
was replaced by the
FLA
and the
Adoption Act
was amended to harmonize with the
FLA
. When
the trial resumed the parties agreed that the case should be decided under the
new provisions. At that point, Mr. M sought only to be recognized as a
guardian under the
FLA
.

[5]

The first trial resulted in an order of Justice H. Holmes dated 1
October 2014 dismissing Mr. Ms application for guardianship but granting
2.5 hours of supervised contact every six weeks and Skype visits once every
three weeks (2014 BCSC 1847). On 19 May 2015, this Court allowed Mr. Ms
appeal and declared him to be Os co-guardian (reasons indexed at 2015 BCCA
220) subject to the condition that either the Director and Mr. M reach an
agreement, or an order is pronounced by the Supreme Court of British Columbia,
allocating and defining Mr. Ms rights and those of the Director in a
manner consistent with Os best interests. If the parties failed to reach an
agreement within 30 days of the Court of Appeals order then the matter would
be remitted to the Supreme Court for an order under s. 45 of the
FLA
(
orders
respecting parenting agreements
). The court upheld the access order with
liberty to Mr. M to seek an increase in contact with O.

[6]

The parties could not come to an agreement on the appropriate parenting
arrangements. The Director applied for directions under s. 45 of the
FLA
on 8 October 2015. Mr. M cross-applied for a report prepared pursuant to
s. 211 of the
FLA
and an interim increase in parenting time. At the
hearing of the applications, in chambers, Justice Butler ordered the s. 211
report and a trial of the issue of Os parenting arrangements pursuant to Rule
10-3(7)(d) of the
Supreme Court Family Rules
, (SCFR). Subsequently,
Justice Choi was appointed trial management judge and oversaw a number of
judicial management conferences. The trial was scheduled for nine days to
commence 21 November 2016. It has since been adjourned pending Mr. Ms
present appeal.

[7]

Mr. Robert Colby delivered his s. 211 report on 26 April 2016.
The report did not include an evaluation of Os home life because his
instructions from both counsel were not to evaluate the Ps as parents.

[8]

Mr. M has also filed a judicial review application challenging the
Directors authority to place O in Alberta for adoption. On 12 May 2016,
Justice Young declared Os placement with the Ps to have been
ultra vires
the Directors authority under the
Adoption Act
. She prohibited the
Director from consenting to Os adoption by the Ps so long as they were not
residents of British Columbia. However, she also prohibited the Director from
removing O from the P residence until further order of the court. The Director
has appealed the judicial review decision. The Ps are presently seeking to
adopt O in Alberta adoption proceedings under the
Child, Youth and Family
Enhancement Act
, R.S.A. 2000, c. C-12. Mr. M has filed an
objection to the adoption application.

Application Leading to the
Present Appeal

[9]

The trial management conference concerning the s. 45 trial was set
down for 12 October 2016. On that date, Mr. M applied for the following
relief:

a)

interim
unsupervised parenting time with O to be comprised of four hours once every two
weeks near Os community, telephone calls every night with O and a weekend
every other month with O in Vancouver (the Interim Order);

b)

subpoenas
compelling the Ps to attend as witnesses at trial;

c)

a further four
hour examination for discovery of the Director or her representative (the
Discovery Order); and

d)

a supplemental
list of documents from the Director that includes all documents created or
obtained by the Ministry of Children and Family Development since 13 March 2014
and any documents to which the Director intends to refer at trial (the
Documents Order).

[10]

Mr. M relied on both Rule 9 and Rule 10-3(7)(d) of the SCFR as the
legal basis for the Discovery and Documents Orders.

[11]

Mr. M said the Discovery and Documents Orders were indispensable to
the adjudication of the central issue of what parenting arrangements are in Os
best interests. The trial management judge rejected that submission in favour
of the Directors characterization of the issue at trial  namely, to allocate
and define which, if any, of the parental responsibilities are to be granted to
Mr. M. In other words, Mr. Ms abilities and plans to exercise
parental responsibilities are at issue, not those of the Director. The trial
management judge agreed with the Director that her guardianship rights had
already been confirmed in the previous Court of Appeal decision. On the
contrary, Mr. Ms guardianship is conditional upon him reaching an
agreement with the Director or an order of the Supreme Court. She reasoned that
further examinations for discovery of the Director and eliciting specific
evidence from the P family would be irrelevant to the question of Mr. Ms
parental capacity. Accordingly, she declined to certify the subpoenas or order
further examinations for discovery.

[12]

Turning to the Discovery Order, the trial management judge was satisfied
by the Directors evidence that there had been no change in the relevant
material contained in the volumes of documents and evidence that emerged in
connection with the previous trial. She refused to order discovery.

[13]

The trial management judge also refused to expand Mr. Ms in-person
parenting time, but granted a modest increase in the frequency of his Skype
visits. She noted that it was premature to increase parenting time,
particularly on an unsupervised basis, in light of the very limited evidence
before her regarding Mr. Ms parenting capabilities.

II.

Decision under appeal

[14]

In chambers, the principal issue before Justice Fenlon was whether an
appellant requires leave to appeal a Supreme Court judges refusal to order
discovery in the usual way in a chambers proceeding that has been referred to
the trial list. If she determined that it required leave then Mr. M sought
to have her grant him leave. Mr. M argued that the trial management judge
erred in law in narrowly characterizing the issue for trial, which he says
presumed that the current parenting arrangements are in Os best interests
contrary to s. 40(4) of the
FLA
. He also said the trial management
judge was clearly wrong to refuse the subpoena order, and the Documents and
Discovery Orders. He conceded that his appeal with respect to his application
for an interim increase in parenting time

was a limited appeal order,
but said that the subpoena order came with an appeal as of right. It was
unclear whether the Discovery and Documents Orders required leave.

[15]

Justice Fenlon denied leave to appeal the dismissal of Mr. Ms
application for an interim increase in parenting time, the Discovery Order and
the Documents Order. She agreed that the denial of the subpoena order is
appealable as of right. Currently, that hearing is scheduled to proceed on 27
February 2016. Mr. M seeks to have this division vary the chambers judges
decision such that the relief in subparagraphs 9(a), 9(c) and 9(d), above, will
also be considered in his appeal of the order declining certification of the
subpoenas. I note that Justice Fenlons decision is currently being
transcribed. Mr. M submits that she rested her decision on a finding that
the substance of the Discovery and Documents Orders was relief of a nature that
ordinarily would fall within the ambit of Rule 2.1(b)(iii) of the
Court of
Appeal Rules
.

III.

Issues

[16]

In this application to vary the chambers judges order, the following
points are in issue:

a)

Is the order
refusing to grant the Discovery and Documents Orders a limited appeal order?

b)

Should this
Court grant leave to appeal the refusal of the Interim Order?

[17]

If this Court determines that the Discovery and Documents Orders are
limited appeal orders then Mr. M accepts the chambers judges refusal to
grant leave. If, however, this Court finds that the chambers judge erred then
the appeal goes as of right and will be heard together with Mr. Ms appeal
of the dismissal of his application for certification of the subpoenas.

IV.

Submissions

[18]

Mr. M acknowledges that an application to vary an order of a single
justice is not a renewal of the original application but says that the justice
in this case was wrong in law or principle. With respect to the Discovery and
Documents Orders, he submits that the chambers judge erred in concluding that
the jurisdictional basis for the relief sought was under Part 9 of the SCFR as
opposed to Rule 10-3(7)(d). The latter rule is not listed in Rule 2.1 of the
Court
of Appeal Rules
such that the orders are appealable as of right.

[19]

With respect to the order refusing his application for an interim
increase in parenting time, Mr. M acknowledges that this Court only
interferes with interim custody orders in exceptional circumstances, but says this
case meets that threshold. He says the existing visitation arrangements are woefully
inadequate and have exacerbated Os estrangement from him. He further submits
that it would be unjust for him to wait until the end of the s. 45 trial
to obtain a modest increase in parenting time.

[20]

Before the chambers judge, the Director submitted that leave to appeal
the Discovery and Documents Orders was required. She said a chambers matter
that is referred to the trial list is a scheduling decision and does not make
an application into a trial
de novo
. Part 9 of the SCFR deals with
discovery procedures, and that rule is specifically listed under Rule
2.1(b)(iii) of the
Court of Appeal Rules
.

[21]

The Directors position on the merits of the leave application was that
the additional information sought by Mr. M is irrelevant to the upcoming
s. 45 trial. The Director argued that the central issue to be decided by
the trial judge is not what parenting arrangements are in Os best interests,
but rather what parenting responsibilities are to be granted to Mr. M. She
said the focus of the Alberta adoption application will be on the Ps. That
court will make the ultimate determination of what is in the best interests of
O. In the s. 45 trial, the focus is on Mr. M. Regardless of which
s. 45 responsibilities Mr. M does or does not have, the Alberta court
hearing the adoption application will make the final determination of which
plan is in the best interests of O.

[22]

With respect to the increase in Mr. Ms access, the Director noted Mr. Colbys
concern that Mr. M presents a flight risk and his conclusion that at this
time, this Assessor cannot present a positive evaluation of Mr. [M]s
ability to engage in parenting time with [O]. She argues that there is no
evidence that a change in the current parenting time prior to the hearing is in
Os best interests.

[23]

The Director further submitted that the factors governing leave to
appeal (as set out in
Goldman, Sachs & Co. v. Sessions
, 2000 BCCA
326 at para. 10) are not met. The appeal is not of significance to the
practice and the relief sought is not significant to the issue the judge will
decide at trial. The appeal would further unduly hinder and delay determination
of Mr. Ms guardianship responsibilities. Further, the Director said the
appeal is without merit for the reasons outlined above concerning the central
focus of the s. 45 trial being on Mr. M.

V.

Analysis

[24]

The standard of review of a decision of a single
justice in chambers is a high one. In
British Columbia v. Phillip Morris
International Inc.
, 2016 BCCA 363 at para. 19, the court said as
follows:

The standard of review that applies on this application
is uncontroversial. In
Langston v. Teamsters Local 155
, 2010 BCCA
481 it was succinctly summarized as follows:

[29]      The standard of review of a decision of a chambers
judge is a high one. A review application is not a rehearing of the application
before the chambers judge.
Absent a demonstrated error of law, error of
principle or misconception of the facts, a division of this Court may not
interfere with or vary a discretionary decision of a chambers judge:

Frew
v. Roberts
, [1990] B.C.J. No. 2175 (C.A.),
Haldorson v.
Coquitlam (City)
, 2000 BCCA 672 at para. 7,
Mullins v.
Levy
, 2010 BCCA 294 at para. 4. [Emphasis added.]

[25]

Turning to the first issue of whether leave to appeal the Discovery and
Documents Orders was required, I find that Mr. M has demonstrated that the
chambers judge erred in principle. The starting point is Rule 2.1 of the
Court
of Appeal Rules
, the relevant parts of which read as follows:

The following orders are prescribed as limited appeal orders
for the purposes of section 7 of the Act

(b) an order granting or refusing
relief for which provision is made under any of the following Parts or rules of
the Supreme Court Family Rules:

(iii) Part 9 [Procedures for
Obtaining Information and Documents], other than Rule 9-6(6) [application for
order on admissions];

[26]

Section 7 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77
requires that an appellant obtain leave to appeal from a justice in order to
appeal the prescribed limited appeal orders.

[27]

The language of granting or refusing relief for which provision is made
underPart 9 refers to the generally applicable rules governing procedures for
obtaining information and documents. Generally, parties in a family trial are
entitled as of right to document discovery (Rule 9-1) and to examine for
discovery the opposing party (Rule 9-2). This is clear from the language of
those rules which specifies that parties
must
prepare a list of
documents and
must
make themselves available for examination for discovery.

[28]

In the present case, the origin of the upcoming s. 45 trial is this
Courts decision declaring Mr. M to be a co-guardian and, absent
agreement, directing the Supreme Court to determine the parenting arrangements
that are in the best interests of O. It is that order that ultimately led to
Justice Butler ordering a trial of the s. 45 issues pursuant to the Supreme
Courts authority under Rule 10-3(7)(d). That rule reads, in relevant part, as
follows:

(7)Without limiting subrule (4), on
the hearing of a chambers proceeding, the court may

(d) order a trial of the chambers proceeding, either
generally or on an issue,
and order a pleading to be filed and, in that
event, give directions for the conduct of the trial and of pre-trial
proceedings and for the disposition of the chambers proceeding
. [Emphasis
added.]

[29]

When Justice Choi subsequently considered Mr. Ms application at
the trial management conference I conclude she was exercising the courts
powers under Rule 10-3(7)(d) to give directions for the conductof pre-trial
proceedings. This rule accords jurisdiction to order discovery as a pre-trial
proceeding where a chambers matter has been referred to the trial list; it does
not simply incorporate Rule 9-2 by reference. That Justice Choi was exercising
her jurisdiction under Rule 10-3(7)(d) is true regardless of whether she
treated the orders as having been made under Rule 9. A court must be correct in
identifying the jurisdictional basis for its orders.

[30]

Accordingly, the jurisdictional basis for the order appealed from is
Rule 10-3(7)(d). This puts it outside the scope of Rule 2.1 of the
Court of
Appeal Rules
such that Mr. M is entitled, without leave being required,
to appeal the trial management judges dismissal of his application for the
Discovery and Documents Orders. I pause to note that I make no comment on the
merits of his appeal on these issues.

[31]

The Director relies on this Courts decision in
Tri-City Capital
Corp. v. 0942317 B.C. Ltd.
, 2016 BCCA 407. At paras. 22 and 23 of
Tri-City
Capital Corp.
, Justice D. Smith discusses Rule 2.1 of our Rules:

[22]      The purpose of enacting R. 2.1 was to bring
certainty and clarity to those orders that will require leave to appeal. That
clarity and certainty requires orders to correctly state the rule or
jurisdictional basis for the order. An order should refer to more than the mode
of proceeding as that authority. The order nisi of foreclosure in this instance
was not made pursuant to R. 9-7; it was granted pursuant to the legislative
provisions of R. 21-7. To the extent that the Order refers to R. 9-7 as the
authority under which the Order was made, it was, in my respectful view, in
error.

[23]      Rule 2.1 prescribes a
list of orders as limited appeal orders that require leave to appeal. For good
reason, the Legislature has specifically prescribed orders arising from a
certain mode of hearing, such as Part 5 (relating to case management),
Part 7 (relating to procedures for ascertaining facts) and R. 12-2
(orders made during a trial management conference). When an order is made in a
listed mode of hearing, it will always require leave to appeal. The opposite
however is not always the case. If an order is made in a mode of hearing that
is not listed in R. 2.1 (in this case, a summary trial), but is still made
under the authority of a listed category (in this case, R. 21-7) it cannot
follow that such an order automatically proceeds by right. To conclude
otherwise would be to allow the mode of hearing to override the jurisdictional
basis of the order, defeating the Legislatures intention to have matters
decided under R. 21-7 classified as limited appeal orders.

[32]

In my view, this extract rather supports the view that the Discovery and
Document Orders were
not
intended to be limited appeal orders. If Rule
10-3(7)(d) said for example:

and in that event give
directions for the conduct of the trial and of pre-trial proceedings
under
Part 9

then
Tri-City
Capital Corp.
would apply as the jurisdictional basis for the Document and
Discovery Orders would indeed be Part 9 of the Rules. The orders would
therefore be limited appeal orders under Rule 2.1 as
Tri-City Capital Corp.
holds. But that is not what Rule 10-3(7)(d) of the
SCFR
says. The
jurisdictional basis for the order in that Rule is not Part 9 of the
SCFR
,
it is rather a jurisdictional basis contained wholly within Rule 10-3(7)(d).
This distinction is reflected in Rule 10-3(7) itself. For example, Rule
10-3(7)(c) provides that on the hearing of a chambers proceeding the court may:

obtain the assistance of one or
more experts, in which case Rule 13-5 applies

The sub-rule here specifically incorporates Rule 13-5, which
is a jurisdictional basis expressly included in Rule 2.1(b)(vi). The omission
of such an express reference in Rule 10-3(7)(d) means that the Documents and
Discovery Orders fall outside of Rule 2.1 of the
Court of Appeal Rules
.

[33]

Turning to the second issue, I find that the chambers judge did not err,
as Mr. M alleges, in refusing to grant leave to appeal the dismissal of Mr. Ms
application for an interim increase in parenting time. As Mr. M
acknowledges, this Court will only interfere with interim orders of this nature
in exceptional circumstances. He says he has met that threshold because of the
woefully inadequate nature of the existing visitation arrangements and that
it would be unjust to require him to wait until the conclusion of the s. 45
trial to obtain an increase in parenting time.

[34]

Mr. Ms submissions do not address the valid concern raised by the
trial management judge that she lacked sufficient information concerning Mr. Ms
circumstances to determine whether an increase in parenting time was justified.
The trial management judge properly emphasized that Mr. M was seeking
unsupervised
parenting time with O. This makes his own parenting capabilities the key issue
for the court in determining whether an increase is in Os best interests. I
would decline to intervene with the chambers judges conclusion that leave
should not be granted on the order dismissing Mr. Ms application for an
interim increase in parenting time.

[35]

In the result, I would allow the application on whether the Discovery
and Documents Orders are limited appeal orders. The order will be varied to
reflect my holding that these are not limited appeal orders. I would dismiss
the application to vary the order concerning the interim increase in parenting
time.

[36]

FRANKEL J.A.
: I agree.

[37]

DICKSON J.A.
: I agree.

[38]

BAUMAN C.J.B.C.
: The application to vary is allowed in the manner
and to the extent indicated in my reasons.

The Honourable Chief Justice Bauman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

L.V.R. v. Mountain Institution (Warden),

2017 BCCA 20

Date: 20170113

Docket: CA42371

Between:

L.V.R.

Appellant

(Petitioner)

And

Warden of Mountain
Institution

Respondent

(Respondent)

Restriction on publication:
Ban on Publication

pursuant to s. 486 of
the
Criminal Code

of
any information which may identify the victims.

Before:

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Savage

Supplementary Reasons
to
L.V.R. v. Mountain Institution (Warden)
,
2016 BCCA 467, Vancouver Docket CA42371.

Appellant Appearing in Person

Counsel for the Respondent:

L. Bantourakis

A. Brown

Place and Date of Hearing:

Vancouver, British
  Columbia

November 18, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

November
  23, 2016

Written Submissions Received:

December 6 and 19,
  2016

Date of Supplementary Judgment:

January 13, 2017

Supplementary Reasons of the Court

Summary:

Supplementary reasons as to
costs.

Supplementary Reasons for
Judgment of the Court:

[1]

The general rule is that the successful party is entitled to costs.
Section 23 of the
Court of Appeal Act
provides:

Costs

23
Unless the court
or a justice otherwise orders, the party who is successful on an appeal is
entitled to costs of the appeal including the costs of all applications made in
the appeal.

[2]

In my view, there are no reasons to depart from the general rule in this
case: see
Mapara v. Ferndale Institution (Warden)
, 2013 BCCA 120;
Vukelich
v. Mission Institution,
2005 BCCA 75.  The successful respondent is
entitled to costs.

The
Honourable Madam Justice Stromberg-Stein

The
Honourable Mr. Justice Goepel

The Honourable Mr.
Justice Savage