This overview is prepared by staff at the Court of Appeal for Ontario to help the public understand the court’s decision. The overview does not form part of the court’s reasons and should not be relied upon in legal proceedings.
Overview: Restoule v. Canada (Attorney General) & Ontario (Attorney General)
2021 ONCA 779 (C66455 & C68595)
In 1850, the Chiefs of Anishinaabe bands inhabiting the northern shores of Lake Huron and Lake Superior signed two Treaties with the Crown, providing for the surrender of a large portion of northern Ontario. The Treaties, known as the Robinson-Huron Treaty and the Robinson-Superior Treaty, require the Crown to make an annual payment, referred to as an annuity, to the Anishinaabe, the Treaty beneficiaries.
The Treaties provide for increases of the amount of the annuity from time to time, if there are sufficient revenues from the Treaty territories to enable the Crown to do so without incurring loss, “provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order”. A significant issue on appeal is the interpretation of the terms of the Treaties providing for these increases.
When the Treaties were signed in 1850, the Robinson-Huron Treaty beneficiaries received an annuity of approximately $1.70 per person, and the Robinson-Superior Treaty beneficiaries received an annuity of about $1.60 per person. In 1875, the annuities under both Treaties were increased to $4 per person. This was the only increase in the annuities, which have remained at $4 per person for the last 146 years.
In 2001 and 2014, beneficiaries of the Treaties sued Canada and Ontario, alleging breaches of the Treaties’ annuity provisions. The two claims were joined and, at the parties’ request, the proceedings were divided into three stages. Stage One focused on the interpretation of the Treaties; Stage Two considered the Crown’s defences; and Stage Three, which is scheduled to commence in the spring of 2022, will determine damages and the allocation of liability between Canada and Ontario.
In Stage One, the trial judge ruled that the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant. To carry out that obligation, the Crown must engage in a consultative process and pay an increased annuity amount, if there are sufficient Crown resource-based revenues from the territories to allow payment without incurring loss.
In Stage Two, the trial judge ruled that the Crown defences, based on provincial limitations legislation and the principle of Crown immunity, were not applicable to this case.
Ontario appealed the trial judge’s Stage One and Stage Two decisions. Canada did not appeal. Recognizing the significance of the case, the Court of Appeal, which usually sits in panels of three, appointed a five-judge panel and heard arguments over eleven days.
The court’s reasons are divided into four sections. The first section, written by all five judges, provides the factual background to the case and summarizes the court’s conclusions on the issues arising in the appeals. That background and summary is at paragraphs 1 to 97 (pages 1 to 45). The other three sections, written by different panel members, provide the rationale and analysis for the judges’ conclusions on each issue.
In its decision, the court unanimously rejected most of the arguments raised by Ontario. The following is a summary of the most significant findings:
- The court unanimously concluded that the doctrine of the honour of the Crown is applicable in this case. The honour of the Crown is an important principle of Aboriginal law and requires the Crown to act honourably in its dealings with Indigenous peoples. The majority of the court determined that, in this case, the honour of the Crown requires the Crown to increase the annuities as part of its duty to implement the Treaties diligently.
- The majority of the court (Justices Lauwers, Hourigan and Pardu) held that the trial judge did not err in her interpretation of the Treaties and made no errors in considering the evidence that would justify the court’s interference with this interpretation.
- The minority (Chief Justice Strathy and Justice Brown) disagreed with the trial judge’s interpretation of the Treaties, but agreed that the Crown had failed to implement the Treaties’ promises and that the court could compel it to do so.
- The court unanimously determined that Ontario’s limitations statute does not cover treaty claims and Crown immunity does not apply to this case. Therefore, the Anishinaabe’s claims can proceed.
- The court unanimously concluded that the trial judge’s approach to potential remedies should be adjusted to ensure that payments are distributed in a way that is consistent with the augmentation promise in the Treaties.
In the end result, the Court of Appeal unanimously rejected the majority of the arguments raised by Ontario on its appeal of the Stage One decision and all of Ontario’s arguments regarding Stage Two.