Re-litigating cases

Can a First Nation challenge treaty boundaries that were settled in 1889? Plus pandemic work cuts and the latest legal news.

Hearsay

Yesterday marked the end of an era. A US judge granted an interim injunction, ordering Donald Trump to stop playing the song “Hold On, I’m Coming” at his rallies.

That’s good news for family members of Isaac Hayes Jr. (who co-wrote the song). They don’t want the song connected with Trump’s campaign.

But it’s a darn shame for Trump watchers. The song brings out some of Trump’s most impressive dance moves. You can still watch the moves, but they don’t hit quite the same with the music muted.

Happy Donald Trump GIF by Team Trump

— Dylan Gibbs

TODAY'S DOCKET

  • Opening up past judgments to Indigenous participation

  • Delivery drivers skipping to court

  • The war on judicial vacancies

  • Pandemic work reductions

  • Getting fired by clients

  • Avoiding sex ed

Divider formed from the Hearsay logo and a horizontal bar

DECISION SPOTLIGHT 🔦

Re-litigating 135-year-old judgments

Woman blowing dust off an old book

Atikameksheng Anishnawbek v. Canada, 2024 ONSC 4012

Atikameksheng Anishnawbek First Nation wants to settle the boundaries of its reserve. A judge already settled those boundaries in 1889, but the First Nation says he got it wrong. Fortunately for the First Nation, the prior decision isn’t a barrier — at least according to Justice Morgan of the Superior Court of Justice.

A bit of context: Ontario sued Canada and some timber operators to sort out the scope of Treaty 6 back in 1889. Ontario argued that Canada gave out timber licenses using the wrong boundaries, which forced the Court to rule on the size of the First Nation’s reserve.

  • The First Nation’s members gave evidence at the trial. And the judge even accepted their evidence. But the First Nation didn’t participate as a party.

  • Now the First Nation wants a proper say.

The Court’s reasons: Justice Morgan considered the First Nation’s claim a collateral attack and an abuse of process.

The [First Nation’s] current boundary claim is impossible to characterize as anything other than a revisiting of a previous court’s finding. In this respect it is, again in the most literal sense, an abuse of process by re-litigation.

But that didn’t end the discussion. Courts have discretion to allow re-litigation. And the First Nation’s lack of participation in the original trial swayed Justice Morgan. He said the First Nation didn’t have a proper chance to protect its interests even though its members gave evidence.

Justice Morgan summed up his concerns with an analogy: It sure wouldn’t be fair if two neighbours altered your property boundary in a fight between themselves and there was nothing you could do about it.

Hypothetically, the two neighbours straddling either side of my house might litigate a property boundary dispute with each other, with one claiming a portion of the east side of my backyard and the other claiming a portion of the west side in a configuration resembling overlapping circles. Either party might call me as a witness, and I would express my view on the witness stand. But if I were not a party to the case, and so could not cross-examine the neighbours’ witnesses or retain counsel to make submissions in my own legal interest, have I had a fair hearing – or, indeed, any hearing at all? And if following this kind of trial between my two neighbours the court shrinks my property boundary in an in rem judgment, did I get a fair result? The answer, self-evidently, is No.

For Justice Morgan, re-litigating the reserve boundary furthers the administration of justice irrespective of the outcome.

  • If the boundary stays the same, the First Nation’s participation at least lends legitimacy to the result.

  • And if the boundary changes, the new trial serves a truth-seeking function.

Either way, letting the First Nation participate advances reconciliation.

[A]llowing the [First Nation] a voice in determining its own reserve land will be a step in the national imperative of seeing that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy…”

[I]n litigating the [First Nation’s] reserve lands, the [First Nation] and Canada must be situated in a way that reflects the Supreme Court’s vision of “Indigenous governing bodies and the Government of Canada work[ing] together to remedy the harms of the past and create[ing] a solid foundation for a renewed nation‑to‑nation relationship.

Big picture: Like the SCC’s flexible approach to declaratory relief for Indigenous claimants, this case joins a growing list of decisions that soften the strict application of legal doctrines in the name of reconciliation.

Divider formed from the Hearsay logo and a horizontal bar

HEARSAY ROUNDUP

Canadiana

😷 Hotel employees won a class action over COVID-related schedule changes. BC’s Supreme Court ruled that a hotel constructively dismissed its hourly employees when it cut their shifts in response to the pandemic. Most employees’ contracts said “assignment of hours will be subject to business demand” — but the Court said that didn’t permit an indefinite work stoppage.

[C]easing providing hours to [the workers] for an indefinite, lengthy period of time is a fundamental breach of the contract [even though] assignment of hours is subject to business needs.

  • Most of the employees’ contracts also attempt to limit damages — giving them just the minimum notice period required by statute — so it’ll be tough to get too excited.

🧑‍⚖️ Justice Minister Arif Virani announced more judicial appointments in BC and Ontario, which just about brought the vacancy count below Justice Henry Brown’s target. Justice Brown told the government to aim for 46 vacancies or less. There were 47 open spots as of September 1.

🍕 Manitoba’s Skip the Dishes class action is headed to trial. The Manitoba Court of Appeal rejected Skip’s attempt to force the case to arbitration earlier this year, and the Supreme Court of Canada recently denied leave to appeal.

🧑‍🏫 No sex ed without approval. Alberta didn’t launch opt-in sexual education for this school year, but you can expect it soon. The province is tabling legislation in the fall that will require parents to enrol their children in any lesson that covers sexual education.

🧐 McGill obstructed the union of law professors, according to Quebec’s labour tribunal. The University sent emails to faculty members that — based on the timing — attempted to influence union members.

Wondering what files you need to turn over after getting fired by a client? Here’s a great thread:

Beyond the border

🧑‍💻 Canada’s new digital services tax really bothers the US. Our southern neighbour kicked off a trade dispute under USMCA with a request for settlement discussions. If it doesn’t settle in 75 days, the dispute could head to a resolution panel.

🚗 Volkswagen’s notorious emissions scandal is back in court. Former head exec Martin Winterkorn started his criminal trial yesterday, facing allegations of fraud, market manipulation, and perjury.

Divider formed from the Hearsay logo and a horizontal bar

FROM THE READERS

I was overwhelmed by the number of detailed responses to last week’s question about podcasting. I plan to respond to everyone who wrote in, but it’ll take some time. In the meantime, thanks for participating!

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

If someone sent you this email, subscribe here.

Want to advertise in Hearsay? Get in touch here.

SHARE HEARSAY

Don’t keep us a secret. Get your friends to sign up and you’ll be rewarded. You can find your custom referral link in the email version of Hearsay.

Referral rewards include coffee, sticker pack, t-shirt, book, crewneck, and a $500 prepaid credit card

Reply

or to participate.