Case information

Aboriginal law — Reconciliation — Honour of Crown — Civil procedure — Settlement agreement — Safeguard order — University and Crown corporation redeveloping site of former hospital — Group of Mohawk women concerned about potential for discovery of unmarked graves of Indigenous children on site — Agreement between parties regarding archaeological work to be undertaken — Application judge issuing safeguard order to ensure university and Crown corporation abide by terms of agreement — Court of Appeal reversing first judge’s order — Whether Court of Appeal erred in law in deciding Aboriginal rights case on narrow and technical issue of civil procedure rather than on merits or substance — Whether Court of Appeal erred in law by narrowly focusing on parties’ rights under settlement agreement, and not on underlying dispute — Whether Court of Appeal erred in law by failing to consider context and unique body of case law applying to disputes between First Nations rights holders and Crown — Whether Court of Appeal erred by finding safeguard order unenforceable for being overly general and too vague.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Following the relocation of the operations of the Royal Victoria Hospital in Montréal in 2015, McGill University, in collaboration with the Société Québécoise des Infrastructures (“SQI”), undertook major work to repurpose the site of the former hospital. The applicants suspected that the site in question may contain the unmarked graves or burial sites of Indigenous children. In 2022, the applicants sued McGill and SQI. In 2023, the parties signed a settlement agreement that created a panel of archaeologists to assess, identify and advise the parties on techniques that would be used to identify any unmarked graves or burial sites on the site, and to recommend specialists to carry out the work and analyze the data. Following a disagreement between the parties, the applicants brought an application to obtain a safeguard order in Quebec Superior Court.

The Superior Court granted the safeguard order, in part; McGill and SQI were ordered to abide by the terms of the agreement, and to be guided by the recommendations of the panel of archaeologists. The Court of Appeal allowed SQI’s and McGill’s appeals, and overturned the first judge’s order.