PRACTICE
Preliminary Determination of Question of Law
Motion to determine questions of law prior to trial— Plaintiff seeking declaration Canada owing her fiduciary duty as First Nations Woman, that duty breached by transfer of administration, management of commitments under Urban Native Non‑Profit Housing Program (UNNHP) from Canada to province of Manitoba—Plaintiff claiming Canada having duty to establish special measures in form of federally funded programs to improve social conditions of Aboriginal peoples in area of housing—According to agreed statement of facts, Canada Mortgage and Housing Corporation (CMHC) designed, delivered social housing programs under National Housing Act, s. 95, for provision of subsidies to reduce cost of rental housing for moderate to low‑income people—CMHC entering into project operating agreements with owners, operators of housing projects setting out terms, conditions for payment of subsidies under s. 95 programs—UNNHP’s. 95 program designed to benefit, help Aboriginals with respect to housing—In 1986, Canada also entered into global agreement with Government of Manitoba to share costs of s. 95 housing programs—CMHC, Manitoba Housing and Renewal Corporation (MHRC) entered into operating agreement for management, administration of s. 95 programs by MHRC— MHRC entered into various project operating agreements with Aiyawin eligible sponsor group, under UNNHP—Global agreement only affected projects managed, administered by MHRC—Later, CMHC entered into Social Housing Agreement (SHA) with MHRC—Under SHA, management, administration of existing CMHC social housing programs in Manitoba including UNNHP consolidated under MHRC— SHA’s stated purpose to enhance effectiveness, efficiency of programs—Plaintiff, tenant in housing unit owned by Aiyawin and low‑income Aboriginal woman, brought action against Canada because of SHA—Alleged transfer of management, administration of UNNHP to MHRC constituted breach of alleged fiduciary duty owed by Canada, contrary to plaintiff’s Canadian Charter of Rights and Freedoms, s. 15 right—Canada obtaining order Federal Court determine two questions of law before trial—(1) Whether Canada owing fiduciary duty, and if so, whether transfer of management, administration of UNNHP from CMHC to MHRC breaching aforementioned duty; (2) Whether plaintiff had required standing to assert claim to be beneficiary of fiduciary duty—Court limited to facts stated in agreed statement of facts —Agreed statement of facts providing chronology of development of CMHC, UNNHP, emergence of different federal‑provincial agreements, CMHC‑MHRC agreements— Also providing time line of various steps taken in action to date—Impossible to find any fiduciary duty owed by Crown on basis of agreed facts—Proof at trial of facts alleged would result in dismissal of action for failure to discharge burden of proof—More complete factual matrix required before Court able to decide whether to expand categories of fiduciary obligations—Although agreed facts showing no contract between plaintiff, federal government, possibility that agreement may have created fiduciary obligation cannot be fully rebutted—Agreed statement of facts not providing any background relating to funding agreements undertaken under UNNHP or National Housing Act—Wrong to deny existence of fiduciary obligation simply because agreement not made directly with each Aboriginal intended beneficiary if federal power intended to assume obligation to act for benefit of Aboriginal peoples through agreements with service providers can be proven—Cannot exclude possibility Government of Canada became fiduciary by agreement—While fiduciary duties only existing in relation to specific Indian interests, possibility of finding additional contexts in which fiduciary duty owed by Canada left open—Pre‑conditions for finding fiduciary duty: existence of cognizable Indian interest, discretionary control undertaken by Canada in relation to interest in manner invoking responsibility in nature of private law duty—Fact only Indian interests arising from disputes over land previously recognized as giving rise to fiduciary obligation not precluding that other Indian interests could be recognized by Court in present case—Uncertain whether private law duty should be found in present case—Well settled that on reference Supreme Court may decline to answer question where parties not providing sufficient information to allow Court to give complete or accurate answer—Federal Courts Rules, r. 220 providing for two‑stage procedure in which Court itself first determining appropriateness of questions to be asked before undertaking to give answer— Wording therein intended to avoid very problem in present case—Given policy considerations underlying Rules, fact motion for preliminary determination of first question of law not contested, Prothonotary not called on to determine appropriateness of questions, Court refusing to answer questions since to do so on inadequate facts may have far‑ reaching consequences for persons other than parties whereas refusal to answer causing inconvenience only to parties responsible for creation of present situation—Motion dismissed—National Housing Act, R.S.C., 1985, c. N‑11, s. 95 (as am. by R.S.C., 1985, c. 20 (2nd Supp.), s. 11; S.C. 1992, c. 32, s. 46; 1999, c. 27, s. 20)—Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 220—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.
Bruyere v. Canada (T‑423‑99, 2005 FC 1371, Hugessen J., order dated 12/10/05, 10 pp.)