The Restoule case deals with the annuities promise made in the Robinson-Huron and Robinson-Superior Treaties in Ontario. The annuities promise in these Treaties included a promise to increase the value of the annuities if there was sufficient revenue generated from the land.
The case was first heard by the Ontario Superior Court, then on appeal to the Ontario Court of Appeal, and then on appeal and cross-appeal to the Supreme Court of Canada (the “SCC”). At the SCC, there were many legal issues being appealed and cross-appealed.
These issues included:
- the degree to which the appeal courts should defer to the trial judge’s interpretation of the Treaty;
- whether the trial judge had correctly/reasonably interpreted the Treaty;
- whether the trial judge placed the right amount of weight on the Indigenous perspective;
- whether the trial judge placed the right amount of weight on the non-textual evidence of the meaning of the Treaty promise;
- whether the Crown had a fiduciary duty with respect to the annuities;
- whether the Crown’s breach of its Treaty obligation could be remedied with damages and compensation; and
- whether any potential damages or compensation were barred by statutes of limitations.
During oral argument, the Justices seemed particularly interested in whether the Treaty obligation could be remedied with damages and/or compensation (or merely a declaration that the obligation had been breached) and whether the trial judge’s interpretation was reasonable/correct and the degree that they ought to defer to it.
Neither the Appellant’s, Respondents, or the Justices focused on whether the Crown had a fiduciary duty or on whether damages and/or compensation was barred by statutes of limitations.
TLE Law’s submissions focused on two points. First, that the Crown’s discretion in how a Treaty promise is implemented does not mean that a breach cannot be remedied with compensation. Second, that the evidence of the meaning of Treaty promises outside of the Treaty text must be weighted fairly and equally and cannot be ignored in favour of the text.
Ideally, the Court will rule: 1) in favour of the enforcement of Treaty promises through non-declaratory relief such as damages and compensation; and 2) in favour of giving the Indigenous perspective and non-textual evidence of Treaty promises the weight that it deserves. These are important issues that have will impact all Treaty litigation going forward.
TLE Law will provide a further update on this case once the SCC has made its decision.