Court of Appeal for Ontario Introduces Case Summaries

Last week, I mentioned steps taken by the Supreme Court of Canada to make the law more accessible to the public. This includes case summaries provided by the Court, to provide an unofficial and streamlined overview of the case.

The Court of Appeal for Ontario has recently adopted a similar approach in Restoule v. Canada (Attorney General), 2021 ONCA 779 (CanLII), providing its own summary of the 300 page decision on its site.

Beyond the length of the decision, the case involves an are of significant public interest, involving the Robinson-Huron Treaty and the Robinson-Superior Treaty. The appeal involves the decisions of the first two of three stages from the complicating proceedings, which involve annuities from these treaties to members of Anishinaabe bands.

The decision itself is complex, written by all judges jointly for the background, and with three separate decisions by the panel members for the remainder. However, the decision itself was unanimous.

The summary provided by the court emphasizes the following:

  • 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.

While this summary does not form part of the court’s reasons, they invariably serve a similar purpose that headnotes have in the past. It’s not just the public that will use these summaries, and many law students and even lawyers will invariably use them extensively as well.

Just be sure to cite the correct paragraph from the actual decision if you’re relying on one of these cases in the future.

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