Case information

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Torts – Tort of misfeasance in public office – Minister of Indian and Northern Affairs Canada – Aboriginal band bringing action in misfeasance in public office against Minister – Trial judge holding that band failed to establish elements of tort – Appeal dismissed – Whether Court of Appeal erred in concluding that elements of tort not made out – Whether Court of Appeal failed to pay sufficient regard to importance of access to courts for judicial determination of legality of Minister’s actions given that band highly vulnerable and dependent upon Minister

In 2002, the Pikangikum First Nation (PFN) commenced an action claiming that the Minister of Indian and Northern Affairs at the time, Robert Nault, committed the tort of misfeasance in public office. Specifically, it alleged that Mr. Nault acted unlawfully and misused his power by allegedly imposing third-party management of the PFN’s affairs, by attempting to deny PFN access to the courts by insisting that PFN suspend judicial review proceedings initiated by the band in relation to prior decisions made by the Department of Indian and Northern Affairs Canada (“the Department”), by insisting on the issuance of media statements favourable to the Department and by cancelling or delaying vital health and safety projects in order to advance illegal or wrongful objectives. The action stemmed from a disagreement between PFN, the Minister and the Department with respect to the need for the imposition of co-management or third-party management of PFN’s affairs.

The PFN had and continues to have significant infrastructure needs. A series of capital projects had been identified for the PFN as part of a larger government initiative to build infrastructure on reserves. In 2000, PFN suffered several important setbacks, in part due to financial difficulties. Following those setbacks, Department officials informed PFN of its intent to begin the process of imposing a third-party charged with managing PFN’s affairs. PFN filed an application for judicial review of that decision.

Despite tensions created by the filing of that application, discussions continued between PFN and the Minister in view of reaching an agreement which would see the appointment of a co-manager, rather than a third-party manager, to oversee PFN’s financial affairs. However, the situation deteriorated. PFN refused to accept co-management while Department officials insisted upon it before signing any further financing agreement with PFN. A second application for judicial review was launched by PFN upon being informed, once again, that the Department would take steps to appoint a third-party manager until an agreement could be reached regarding the appointment of a co-manager. Shortly thereafter, the Department signed an agreement with a firm hired to act as third-party manager for PFN. From July to September 2001, the Minister continued to propose that the parties agree to co-management. However, the Minister also identified three conditions that needed to be met in order for him to be agreeable to such an agreement: (i) that an audit of PFN’s affairs be conducted and submitted to the Department, (ii) that PFN suspend the legal proceedings initiated by it against the Department and (iii) that a joint press release be drafted on the issue of co-management.

During the same timeframe, the Department was receiving bids for three infrastructure projects. For some time, the Minister did not release any of the funds necessary to allow those projects to go ahead. Finally, in late February 2002, the Minister approved funding for one infrastructure project. The funding for other infrastructure projects remained stalled.