SCC Rules Roadblock an Abuse of Process Where Legal Remedies Not Exercised

by Bennett Jones LLP
Contact

Last week, the Supreme Court of Canada released its decision in Behn v. Moulton Contracting Ltd., 2013 SCC 26. The case sets out some important principles that may be relevant for those who engage in operations in areas where Aboriginal or First Nations concerns could give rise to a risk of roadblocks or other obstructive activities.

In Behn, the B.C. Ministry of Forests (MOF) granted authorizations – two timber licenses and a road permit – to Moulton Contracting Ltd. The MOF consulted with the Fort Nelson First Nation (FNFN) and individual FNFN members whose traplines were affected by the authorizations, including George Behn. The MOF sent Mr. Behn several letters providing him with notice of the authorizations as well as notice of the timing of Moulton’s operations. Mr. Behn subsequently wrote the MOF demanding that the authorizations be cancelled and seeking consultation. Moulton then began moving its equipment to the area, and Mr. Behn and his family erected a roadblock shortly thereafter.

Moulton commenced an action against the Behns, the chief of the FNFN, the FNFN, and the Crown claiming damages for interference with contractual relations. The Behns denied that their conduct was unlawful on the basis that the Crown had failed to fulfill its duty to consult and that the authorizations infringed their treaty rights. Moulton applied to strike the Behns’ Statement of Defence as it related to the Crown’s alleged failure to consult and the violation of the Behns’ treaty rights. The B.C. Supreme Court granted the application, holding that the Behns lacked standing to raise the defences pertaining to the duty to consult and treaty rights. The court stated that such rights were collective in nature and could only be asserted by individuals if authorized by the collective, and the FNFN had not authorized the Behns to do so. The B.C. Court of Appeal upheld the decision.

The Supreme Court of Canada dismissed the appeal. Lebel J. agreed with the courts below. He held that the duty to consult existed to protect the collective rights of Aboriginal peoples, and that the pleadings did not disclose that the FNFN had authorized the Behns to contest the authorizations. However, the Court declined to address the issue of whether treaty rights were collective rights, noting that these rights may have both collective and individual aspects. Ultimately, Lebel J. held that the determinative issue on the appeal was that it was an abuse of process for the Behns to raise a breach of the duty to consult and infringement of treaty rights in defence, when neither they nor the FNFN had made any attempt to challenge the authorizations at the time they were granted by the MOF. The Court stated that if it allowed the Behns to raise those defences after Moulton had no choice but to either go to court or forgo its operations and incur substantial costs, it would be condoning “self-help remedies” and would bring the administration of justice into disrepute.

Going forward, the Behn decision may influence the analysis that the court will undertake in considering whether to grant relief prohibiting roadblock activities. The first branch of the three prong test for an injunction as set out in RJR MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311 requires an assessment of the strength of the plaintiff's case. Behn may allow the court to factor in any other legal remedies available to the defendants prior to enacting the blockade when assessing the plaintiff's case in support of injunctive relief. That is, if other legal avenues were available to the defendants, then this would weigh in favour of the strength of the plaintiff's case in support of injunctive relief. In addition, if a blockade is enacted by individuals who raise a violation of the duty to consult in defence, this may also weigh in favour of the strength of the plaintiff's case in the absence of any evidence in the pleadings that the collective band authorized an allegation relating to a violation of the duty to consult.

If you have any questions about the Behn decision and how it may impact you or your business, please contact Bruce Mellett or Laura Gill.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!