Plaintiffs commenced action against Canada for damages for flooding of reserve lands and loss of land and its use, as well as loss of hunting, fishing and harvesting rights. Flood was caused by building of dam for hydro. Canada, Ontario and Manitoba entered into cost sharing agreements for capital costs related to dam, latter of which added compensation to capital costs. Manitoba made its final payment under agreement in 1980. In response to action, Canada issued third party claim against Ontario and Manitoba. Motion by Manitoba to be removed as third party on basis it had met obligations and been released from further liability and time had run out to add it. Motion dismissed. Not clear Manitoba no longer had obligations under agreement and some compensation had already been treated as capital costs. Not clear any party’s obligations had been discharged and not all losses to band had been settled. As agreements were still in force, it was not clear limitation period had even begun to run yet. No evidence Canada ever acquiesced to Manitoba’s refusal to accept liability or made representations it had been fully discharged. There was genuine issue for trial with respect to Manitoba’s liability, and action was not clearly out of time or barred by estoppel or doctrine of laches.
Southwind v. R. (Mar. 27, 2014, F.C., James W. O’Reilly J., File No. T-2579-91) 240 A.C.W.S. (3d) 525.