Category Archives: Torts

The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

Case Commented On: Brown v Canada (Attorney General), 2017 ONSC 251 (CanLII)

PDF Version: The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

Introduction

From 1965- 1984 governments across Canada removed tens of thousands of Indian children from their families on reserve and placed them with non-Indian adoptive families or in foster homes and group homes. As a result, many of these children lost touch with both their families and their First Nations identities, with devastating consequences including emotional scarring, substance abuse, and heightened rates of suicide and incarceration. This dark period in Canada’s history is commonly known as the “Sixties Scoop”.

Brown v Attorney General (Canada) 2017 ONSC 251 (CanLII) (Brown) is a decision regarding a class action lawsuit by nearly 16,000 individuals in Ontario who were negatively affected by the Ontario Government’s child welfare policies during the Sixties Scoop. Specifically, the claimants focus on the period between 1965 when Ontario extended its child welfare services to reserves and 1984, when Ontario amended its child welfare legislation to recognize that “aboriginality” should be a factor considered in child protection and placement (at para 14).

The Court held that Canada breached its common-law duty of care by failing to take reasonable steps to prevent removed children from losing their indigenous heritage (at para 85), but declined to find that the Crown breached any fiduciary duty.

This post will aim to provide the following:

Background information on the period commonly referred to as the “Sixties Scoop”;
A brief look at the procedural history of Brown, as well as an analysis of the decision; and
Thoughts on how this ruling, and its implications on tort law and Aboriginal rights, may fit into the federal government’s promises to Canada’s indigenous peoples, and how it may affect Sixties Scoop claimants across the country, including Alberta.

Continue reading →

Canadian Mining Operators Abroad – Corruption as a ‘Real Risk’ Factor in Forum Non Conveniens Applications

By: Rudiger Tscherning

PDF Version: Canadian Mining Operators Abroad – Corruption as a ‘Real Risk’ Factor in Forum Non Conveniens Applications

Case Comment On: Garcia v Tahoe Resources Inc., 2017 BCCA 39 (CanLII)

In Garcia v Tahoe Resources Inc., 2017 BCCA 39 (CanLII) the Court of Appeal of British Columbia reversed an order which had granted Tahoe Resources Inc. (Tahoe) a stay of proceedings on grounds of forum non conveniens. The claim brought against Tahoe concerned the shooting of local protesters by security guards at Tahoe’s Guatemalan mining operation. The Court of Appeal held that the possibility of corruption in the Guatemalan legal system raised a real risk that the claimants would not obtain a fair trial, and therefore concluded that British Columbia was the “more appropriate forum”.

The decision raises a number of important issues, particularly for the Canadian energy and natural resources sector. The decision has the potential to undermine the attractiveness of Canadian jurisdictions as preferred venues for the registration of mining companies that engage in international activities. Tahoe’s registered office is in Vancouver which gave rise to jurisdiction simpliciter. The decision is also noteworthy from a private international law perspective. Firstly, the effect of the judgment is that serious doubt has been cast over the reliability of the legal system of an entire country, thereby raising issues of comity upon which the functioning of private international law depends. Secondly, the case marks the acceptance of the English test of ‘real risk’ of judicial unfairness as a factor in Canadian forum non conveniens analysis. Lastly, the BCCA focused on the close alignment between international resources companies and their host state governments and considered that the context of extensive local opposition to a mining project was a factor that pointed to British Columbia as the more appropriate forum. Continue reading →

Of Busted Butterflies and the Duty of Good Faith – A Saskatchewan Right of First Refusal Case

By: Nigel Bankes

PDF Version: Of Busted Butterflies and the Duty of Good Faith – A Saskatchewan Right of First Refusal Case

Case commented on: Northrock Resources v ExxonMobil Canada Energy, 2016 SKQB 188

What is the legal position if N has a right of first refusal (ROFR) in the event that E agrees to sell its interest, unless E’s sale is to an affiliate; E transfers the interest to its wholly owned affiliate, NSCo and C then buys the shares of NSCo. Does the second transaction or the two transactions taken together (known in tax parlance – for reasons that, as with much of tax law, entirely escape me – as a “busted butterfly” trigger N’s ROFR entitlement (perhaps on the basis that E should not be able to do indirectly what it cannot do directly)? Justice Currie of the Saskatchewan Court of Queen’s Bench answered in the negative and as a result dismissed Northrock’s (N’s) claims which sounded in both contract and in tort (inducing breach of contract and conspiracy). Continue reading →

Pritchard v Van Nes: Imposing Liability on Perpetrator Zero of Defamatory Facebook Posts Gone Viral

By: Emily Laidlaw

PDF Version: Pritchard v Van Nes: Imposing Liability on Perpetrator Zero of Defamatory Facebook Posts Gone Viral

Case Commented On: Pritchard v Van Nes, 2016 BCSC 686

Justice Saunders of the British Columbia Supreme Court recently decided Pritchard v Van Nes, 2016 BCSC 686 (Pritchard) concerning the liability of individuals not only for their Facebook posts, but how their “friends” react to these posts, whether through comments, sharing or otherwise distributing the post. This case asks: if you start the fight, are you liable for the pile-on? The analysis of the Court could have significant repercussions concerning the uneasy balance between the right to reputation and freedom of expression, arguably tipping the balance in favour of reputation in stark departure from recent Supreme Court of Canada cases on defamation (see Crookes v Newton, 2011 SCC 47, Grant v Torstar Corp., 2009 SCC 61, WIC Radio Ltd. v Simpson, 2008 SCC 40). Continue reading →

Occupier’s Liability Arises at the Garage Party

By: Shaun Fluker

PDF Version: Occupier’s Liability Arises at the Garage Party

Case Commented On: Motta v Clark, 2016 ABQB 211

This recent judgment written by Mr. Justice R.J. Hall caught my attention because the facts are a scenario with which I am familiar and I suspect other readers are as well: The impromptu garage party hosted by a neighbour. While some of us actually park vehicles in our garage, others turn their garage into a very comfortable social venue fully equipped with a state-of-the-art sound system, stocked beer and wine fridge, humidor, gas heating, and possibly even lounge chairs. In these households, the garage takes on the persona of a “man-cave”, where neighbours and friends get together for small talk in the surroundings of golf clubs, hockey nets, skis, bikes, tires, wrenches, air compressors, camping gear, dogs and a table saw. On the odd festive occasion, the garage becomes a sort of time vortex where you step in during the early evening and the next thing you remember is walking out the next morning. Motta v Clark tells the story of such a garage party gone wrong, and provides a word of caution for those who host such parties. It also reads like a tragedy of sorts, with the downfall of a friendship being played out in cross-examination before Justice Hall at the Court of Queen’s Bench.