The Manitoba Métis Case and the Honour of the Crown

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Case commented on: Manitoba Métis Federation Inc v Canada (Attorney General), 2013 SCC 14

In its historic decision on the constitutional rights of the Manitoba Métis, the majority of the Supreme Court of Canada, in a decision rendered by the Chief Justice and Justice Karakatsanis (Rothstein and Moldaver JJ dissenting), concluded that section 31 of the Manitoba Act, 1870 (reprinted in RSC 1985, App. II, No. 11) expresses a constitutional obligation to the Métis people of Manitoba to provide Métis children with allotments of land. The majority held that the obligation did not impose a fiduciary or trust duty on the Crown but that it did engage “the honour of the Crown.” The majority held that the Crown failed to live up to the terms of that engagement and that the Métis were accordingly entitled to a declaration to that effect. The claim for declaratory relief in relation to the honour of the Crown was not barred by the law of limitations or the equitable doctrine of laches.

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What has Meads v Meads wrought?

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Cases commented on: R v Duncan, 2013 ONCJ 160 (CanLII); R v Tyskerud, 2013 BCPC 27 (CanLII); Cassa v The Queen, 2013 TCC 43 (CanLII); R v Martin, 2012 NSPC 115 (CanLII); R v Lavin, 2013 ONCJ 6 (QL); Scotia Mortgage Corporation v Gutierrez, 2012 ABQB 683 (CanLII); Stancer (Re), 2012 BCSC 1533 (CanLII); Grattan (Re), 2012 NBQB 332, [2012] NBJ No 353 (QL).

I.          Introduction

Associate Chief Justice John D. Rooke’s decision in Meads v Meads, 2012 ABQB 571 (CanLII) — one of CanLII’s Top Ten Cases of 2012 — established a category of vexatious litigants that he called “Organized Pseudolegal Commercial Argument” (OPCA) litigants. OPCA litigants “employ a collection of techniques and arguments promoted and sold by ‘gurus’ … to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals” (Meads at para 1). Although those techniques and arguments are varied, the essence of the OPCA litigants’ position is that they deny the authority of the state and the courts. Both of us have commented on the Meads case previously on ABlawg: see “The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case” and “The Top Ten Canadian Legal Ethics Stories – 2012”. What we want to look at in this post is the use that has been made of Meads in the intervening six months. We will also consider the extent to which OPCA and similar litigants may influence judges to embrace styles of judgment that are disrespectful of the parties appearing before them. The post will touch on the ethical problems created when judges embrace “literary flourishes” and “dry wit” in their decisions (Katie Daubs, “Legal Decision with literary flourish and dry wit making the round…” Toronto Star, March 29, 2013).

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Summary judgement on an oil and gas lease termination case

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Decision commented on: P Burns Resources Limited v Locke, Stock and Barrel Company Limited, 2013 ABQB 129.

In this appeal from an unreported decision of Master Laycock, Justice Bensler granted partial summary judgement on an application for a declaration that a petroleum and natural gas lease had expired during its secondary term for want of production or working operations. The evidentiary basis for this conclusion consisted primarily of production records filed with the Energy Resources Conservation Board (or its predecessors). On the appeal before Justice Bensler in the Court of Queen’s Bench the lessee supplemented the record with evidence of one of its employees and one of its consultants.

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A Farmee that Spuds in the Test Well has the Right to a Default Notice

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Case commented on: EOG Resources Canada v Unconventional Gas Resources Canada Operating Inc, 2013 ABQB 105 (MC)

This decision interprets the default clause (Article 13) of the Canadian Association of Petroleum Landmen’s (CAPL) Farmout and Royalty Procedure. It confirms that there is no automatic termination of the farmee’s right to earn provided that the farmee has spudded in the earning well; the farmee is entitled to proper notice of default and the opportunity to rectify that default.

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Introducing Conditional Immediate Indefeasibility: Section 170(1) of the Land Titles Act

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Legislation commented on: Land Titles Act, RSA 2000, c. L-4, s 170(1), as amended by the Land Titles Amendment Act, 2008, SA 2008, c 22, s 9.

The amendments to the Land Titles Act that were introduced by the Land Titles Amendment Act, 2008 included one substantive amendment and that was an amendment to section 170, a provision about indefeasibility of title. Little attention has been paid to this amendment; although it is now four years old, the changes it effected, and the amendment’s potential consequences for real estate practice, appear to have been overlooked. On its face, the substantive amendment says that the registered title of a bona fide purchaser or mortgagee is only indefeasible if that party used all reasonable efforts to confirm that the person from whom they took their interest was not an identity thief. It appears to implement a theory of conditional immediate indefeasibility, which would be a significant change to basic principles of our Torrens-style land titles system — if it is effective. However, because the 2008 amending statute changed section 170 in isolation and left intact all of the other provisions in the Land Titles Act that confer immediate indefeasibility on purchasers and mortgagees, it is not clear that the amendment will do what it purports to do.

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