[1]         The Defendant, His Majesty the King in Right of the Province of British Columbia (the “Province”), seeks summary dismissal of the Plaintiffs’ claims in trespass and breach of fiduciary duty on the grounds that they raise no genuine issue for trial. In addition, the Province asks that those portions of the claim seeking relief on behalf of Harry Parker be struck out and dismissed as the Plaintiffs lack standing. The relief is sought under Rule 9-6(5) and Rule 9-5(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules].

[2]         The Plaintiffs, Reynold John Bonneau and Mildred Rose Bonneau (collectively, the “Plaintiffs”), are both status Indians as that term is defined in the Indian Act, R.S.C. 1985, c. I-5 (the “Indian Act”). The underlying action centers on certain lands located within the Okanagan Indian Band (“OKIB”) Reserve No. 1 (the “Lands”).

[3]         The Lands were originally allocated to the late Harry Parker. Following Mr. Parker’s passing, various family members held possessory rights over the Lands. Eventually, the Plaintiffs came into possession of the Lands. Ms. Bonneau is Mr. Parker’s daughter; Mr. Bonneau is her husband. They are the current registered holders of the Lands.

[4]         The Plaintiffs claim that the Province is in trespass and has breached its fiduciary duties as a result of its unlawful taking and usage of the Lands over which they have a right of possession. In particular, the Plaintiffs say that a road (“Westside Road”) and a creek (“Whiteman’s Creek”) are in trespass over their Lands. They allege that the trespass has existed since 1964 when Westside Road was realigned and the watercourse of Whiteman’s Creek was altered. The Plaintiffs seek damages for the trespasses and breach of fiduciary duty owed to them and to Mr. Parker, as well as an order for possession that enjoins the Province and all other persons from using the realigned portion of Westside Road.

[5]         The Province submits that there is no legal basis for the Plaintiffs’ claims in trespass and breach of fiduciary duty in relation to Westside Road and Whiteman’s Creek because those areas are not included within the boundaries of the survey that defines the lands described in the Plaintiffs’ Certificate of Possession. With respect to the claims advanced in relation to Harry Parker, the Province argues that the Plaintiffs have not pleaded facts to establish that they have standing to bring claims on behalf of Harry Parker’s estate.

[6]         The Plaintiffs filed their Notice of Civil Claim (“NOCC”) in this matter on March 18, 2022. The Province filed its Response to Civil Claim on May 19, 2022.

[7]         The parties submitted a Joint Case Plan Proposal on August 29, 2022. Pursuant to the Joint Case Plan Proposal, summary trial or summary judgment applications were to be filed by May 5, 2023.

[8]         This Notice of Application was filed April 13, 2023, and the Application Response was filed on May 11, 2023. This hearing was conducted at the end of May, 2023, and took three days to complete.

[9]         A ten-day trial is scheduled to commence on December 11, 2023.

[10]      The primary relief sought by the Province is an order for summary judgment under Rule 9-6(2), which provides:

[11]      Rule 9-6(5) sets out the powers of the court in a summary judgment application:

[12]      The test under Rule 9-6 is whether it is clear on the relevant facts and law that there is no genuine issue for trial.

[13]      The threshold is very high. The onus is on the applicant to prove beyond a reasonable doubt that there is no triable issue or that the other party is “bound to lose”: Canada (Attorney General) v. Lameman, 2008 SCC 14 at para. 11; Sakwi Creek Hydro Limited Partnership v. Dickin, 2023 BCCA 188 at para. 25; and Beach Estate v. Beach, 2019 BCCA 277 at paras. 48 and 65.

[14]      The purpose of the summary judgment rule is to promptly and inexpensively determine matters to prevent meritless claims or defences from proceeding to trial: Balfour v. Tarasenko, 2016 BCCA 438 at para. 41.

[15]      In determining a Rule 9-6 application, the court must: (1) assume that the uncontested material facts as plead by the plaintiff are true; (2) refrain from weighing the facts; and (3) view inferences from the facts in a light most favourable to the plaintiff: Aubichon v. British Columbia (Attorney General), 2021 BCSC 1183 at para. 21 (“Aubichon BCSC”), aff’d Aubichon v. Grafton, 2022 BCCA 77 (“Aubichon BCCA”) at para.18.

[16]      Where the court finds that there is no genuine issue to be tried, it must pronounce judgment or dismiss the claim pursuant to Rule 9-6(5)(a): Aubichon BCSC at para. 21.

[17]      In Henderson v. Broadhurst, 2022 BCSC 2235, I noted the following with respect to the burden of proof and the court’s role in assessing the evidence on a Rule 9-6 application:

[18]      Notably, if the court hearing a Rule 9-6 application needs to weigh and assess the evidence, then the test of ‘plain and obvious’ or ‘beyond a reasonable doubt’ will not have been satisfied, and the Rule 9‑6 application should be dismissed: Aubichon BCCA at para. 30, citing Beach Estate at para. 67.

[19]      I have approached the evidence, in this case, using the guidance provided by the Court in Aubichon and Lameman.

[20]      The first issue raised in the Rule 9-6 application is whether there is a genuine issue for trial with respect to the Respondents’ possessory rights in the lands below Westside Road and Whiteman’s Creek (the “Disputed Lands”).

[21]      This application turns on whether the Plaintiffs hold possessory interests in the Disputed Lands. It is therefore useful to start with an explanation of how an individual can possess reserve lands.

[22]      Reserve lands can either be held by the Band in common for the benefit of all Band members or individually by an Indian[1].

[23]      The Indian Act provision that authorizes individual band members to possess reserve lands is s. 20(1), which states:

[24]      Thus, by virtue of s. 20(1), an Indian can be granted exclusive use and possession of a portion of reserve lands after: (1) an allotment is made by the Band Council; and (2) the allotment has been approved by the Minister of Indigenous Services (the “Minister”).

[25]      The Indigenous person in lawful possession of reserve lands is referred to as a (“Locatee”).

[26]      Section 20(2) of the Indian Act authorizes the Minister to issue a Certificate of Possession (“CP”) as evidence of a person’s right to lawful possession of the lands described therein, as follows:

[27]      Individually allotted reserve lands that are held by a Certificate of Possession are often referred to as (“CP Lands”).

[28]      Section 21 of the Indian Act requires the Department of Indigenous Services to keep a register detailing the particulars of Certificates of Possession and other transactions respecting lands in a reserve (the “Reserve Land Register”).

[29]      I turn now to the rather complex history of how the Lands came into the possession of the Plaintiffs. I have noted the disputes in the evidence on this issue, where necessary.

[30]      The Plaintiffs’ land is legally described as “Lot 39 Block 5 CLSR 68978” (“Lot 39”). The parties agree that the previous legal description for Lot 39 was “Lot 9 Block D Parcel 1 Sketch Attached” (“Lot 9” or “Mr. Parker’s Lands”). Westside Road abutted Lot 9 on the western side of the property, running in a northerly direction. Whiteman’s Creek ran along the southern boundary of the property.

[31]      On December 4, 1959, the Chief and Council of the OKIB passed a Band Council Resolution (“BCR”) that allotted Lot 9 to Harry Parker. On July 26, 1960, the Minister issued Notice of Entitlement No. 1137 (“NE 1137”) to Mr. Parker in relation to Lot 9. There is a dispute as to whether NE 1137 authorized only temporary occupation rights to Mr. Parker.

[32]      Prior to 1964, Mr. Parker had an irrigation ditch that flowed to his property from Whiteman’s Creek. In 1964, the Province relocated Westside Road, such that the realigned Westside Road (the “Realigned Road”) now cut through Mr. Parker’s Lands. The Plaintiffs allege that as a result of the Realigned Road, the irrigation ditch was destroyed and the original watercourse of Whiteman’s Creek was permanently altered (the “Altered Watercourse”), thus causing damage and loss for which Mr. Parker (and the subsequent Locatees) have never been compensated.

[33]      There is a dispute as to whether the Province obtained permission from the necessary parties with respect to the Province’s decision to relocate Westside Road.

[34]      A land transfer registered on February 24, 1970 indicates that Mr. Parker subsequently held Lot 9 under Notice of Entitlement 1352 (“NE 1352”).

[35]      In 1973, Mr. Parker granted “Lot 9 Block D Parcel 3 Sketch Attached” to Wallace Stephen Parker, following which Wallace Parker held Notice of Entitlement 6106. Harry Parker was given Notice of Entitlement 6126 (“NE 6126”) in relation to “Lot 9 Block D Parcel 1 Sketch Attached”. The Province relies heavily on NE 6126, arguing that it is the earliest relevant Notice of Entitlement produced by the parties, and it states that the land allotted to Mr. Parker in 1973 is “subject to the determination of the boundaries and area of this parcel by survey”.

[36]      In 1975, Dave Nielson undertook a survey of the Westside Road, ostensibly in contemplation of a possible land transaction with the Province. The survey depicted the location of Westside Road including the Relocated Westside Road. The survey was incorporated into CLSR Plan 62704, which was registered on January 10, 1977 with the Legal Surveys Division of the Federal Crown (the “Nielsen Survey”).

[37]      Mr. Parker passed away on February 21, 1980. His interest in NE 6126 was transferred to his spouse, Sarah Parker, on July 7, 1980. The Indian Lands Registry System (“ILRS”) Parcel Abstract Report states that Sarah Parker held the lands pursuant to “NETI”. According to the ILRS Manual, “NETI” is an acronym for “No Evidence of Title Issued”. The ILRS Manual explains that a NETI is issued in lieu of a Certification of Possession.

[38]      In 1983, the predecessors in title of Mr. Parker’s Lands had a survey completed of the property by Russell Shortt. Lot 9 became legally described as “Lot 39 Block 5 CLSR 68978”.

[39]      The CLSR Plan 68978 dated November 30, 1983 (the “Shortt Survey”) does not include the Relocated Westside Road or Whiteman’s Creek within the perimeters of Mr. Parker’s Lands. The Plaintiffs say this exclusion was in error, as no transaction for the Relocated Westside Road had been completed in association with the Nielson Survey.

[40]      By Transfer dated October 27, 1986, and registered March 7, 1989, Sarah Parker granted her children, Mildred Rose Bonneau and Wallace Stephen Parker, an interest as joint tenants in “Lot 39 Block 5 CLSR 68978”. The joint tenants were issued CP 48316. The Province argues that the Shortt Survey was incorporated into the CP for Lot 39 by reference.

[41]      Sarah Parker passed away on December 11, 2002. Consequently, Ms.  Bonneau and Wallace Stephen Parker became the surviving joint tenants of Lot 39. They were issued CP 143553.

[42]      In 2009, Ms. Bonneau and Wallace Stephen Parker added Mr. Bonneau as a joint tenant of Lot 39. The three joint tenants were issued CP 164422.

[43]      Wallace Stephen Parker passed away in 2014. The Lands were then transferred to both the Plaintiffs as surviving joint tenants under CP 403038904.

[44]      The Notice of Civil Claim alleges that the Province committed trespass, breach of fiduciary duty, breach of trust, and acted in bad faith.

[45]      To be successful in each of these claims, the Plaintiffs must first establish that they are lawfully in possession of the Disputed Lands.

[46]      The Province relies on the omission of Westside Road and Whiteman’s Creek from the Shortt Survey, to support its position that the Plaintiffs have no possessory rights over the Disputed Lands – therefore, there is no trespass. Further, the Province argues that because the Plaintiffs are not lawfully in possession of the Disputed Lands, there is also no “cognizable interest” over which the Crown could assume discretionary control to support the claim advanced for breach of fiduciary duty. Finally, if the Plaintiffs dispute the accuracy of the CP which is issued by the Minister, then this must be brought to the Minister and not the Court. The Province submits that under the Indian Act, Parliament conferred the power to review and correct errors in CPs exclusively to the Minister. As a result, any challenge to a decision of the Minister must be by way of an application for judicial review in the Federal Court of Canada.

[47]      Consequently, the Province submits that there is no triable issue with respect to the Plaintiffs’ claims in trespass and breach of fiduciary duty, and these claims should be dismissed under Rule 9-6(5).

[48]      The Plaintiffs do not deny that the survey which is referenced in the Certificate of Possession granting them possessory rights over the Disputed Lands does not include Westside Road or Whiteman’s Creek within the boundaries of the lands described. However, they submit that the Province has failed to meet its evidentiary burden of establishing that the Plaintiffs have no possessory rights to the Disputed Lands for the following reasons:

[49]      I turn now to considering whether there exists a genuine issue for trial in relation to the claims for trespass, breach of fiduciary duty, breach of trust, and bad faith.

[50]      The outcome of the Rule 9-6 application turns on the strength of the Plaintiffs’ claims that they have a possessory interest over the Disputed Lands. I conclude that the Plaintiffs are not bound to lose on this question. While the Province may ultimately succeed in establishing that the Plaintiffs are not in lawful possession of the Disputed Lands, it is far from a foregone conclusion. I say this for the following reasons.

[51]      First, it is uncontroverted that lawful possession of Reserve Lands under the Indian Act is a binary proposition. The lands can either be held by the Band in common for the benefit of all Band members or individually by an Indigenous person after a legal allotment has been made: Joe v. Findlay, 26 B.C.L.R. 376, 1981 CanLII 401 (C.A.) at para. 9.

[52]      In this case, there is evidence that the OKIB is not asserting any possessory rights over the Disputed Lands, and that it recognizes the Plaintiffs as the exclusive holders of these possessory rights.

[53]      In his letter dated May 23, 2023, Chief Byron Louis of the OKIB refers specifically to this litigation, and directs the Province to deal directly with the Plaintiffs. The letter, which is addressed to Mr. Regehr, legal counsel for the Province, states as follows:

[54]      The Province’s reliance on BC Supreme Court Action No. SO17068, Vancouver Registry (the “OKIB Action”), does not change my view regarding the potential significance of Chief Louis’s letter. On December 14, 2001, the Okanagan Indian Band, along with various Band Councillors and Band members (collectively the “OKIB Action Plaintiffs”) filed a Writ of Summons commencing the OKIB Action on their own behalf and on behalf of all other members of the OKIB. They claimed that since the late 1800s the Province has used, occupied, and taken some or all portions of Westside Road that are situated within the boundaries of Indian Reserve No. 1 without legal authority and without compensation to the OKIB. The OKIB Action Plaintiffs alleged that the Province’s conduct amounted to a trespass and breach of fiduciary duty. As a result, they sought various forms of relief, including a declaration that the lands underlying Westside Road are reserve lands for the exclusive use and benefit of the OKIB.

[55]      There is no indication that the OKIB Action is still being actively pursued by the OKIB or the other plaintiffs. Further, the Province has not provided any other documents from the OKIB Action that would clarify the legal connection of that lawsuit to the case at bar. Bearing in mind that this Court must view inferences from the facts in a light most favourable to the plaintiff, Chief Louis’s letter provides some basis to conclude that even if the OKIB Action is still actively being pursued, it excludes the Disputed Lands and does not derogate from the Plaintiffs’ claim over the Disputed Lands.

[56]      Second, the Plaintiffs have some legal basis for asserting that a CP is not necessary to prove a right of possession. A plain reading of ss. 20(1) and (2) of the Indian Act suggests that a CP does not create possessory rights – it only evidences them. Indeed, this interpretation seems consistent with some of the case authorities, such as Hepworth v. Hepworth, 2012 NSCA 117, where the Court held that the appellant was lawfully in possession of the lands pursuant to s. 20(1) of the Indian Act as follows:

[57]      I also note that the transfer of title to Sarah Parker was pursuant to a NETI, rather than a Certificate of Possession.

[58]      Thus, it is arguable that where the criteria in s. 20(1) of the Indian Act have been met, the Plaintiffs are able to assert possessory rights over the lands even in the absence of a CP. The Province’s argument that the existence of a CP trumps any claim that a CP is not required, is just that – an argument. It does not necessarily follow that the Plaintiffs have no possessory rights over the Disputed Lands. The Province’s ability to succeed in their argument will depend on many factors including how much weight the Court places on the Shortt Survey.

[59]      The third reason the Province has not met its burden under Rule 9-6 is that some basis exists for the Plaintiffs’ argument that the survey on which the Province relies is of no legal consequence. There are tenable arguments to support that: (1) a formal survey was not required; (2) the Shortt Survey was in error and misdescribes the lands that the Plaintiffs lawfully possess; and (3) the deposit of the Nielson Survey did not result in the transfer of any legal or possessory rights away from the Plaintiffs.

[60]      On the first point, there is some legal authority indicating that a formal survey attached to a Certificate of Possession is not required to establish individual rights of possession of Reserve Lands, provided that a BCR has been passed by the Chief and Council for the individual allotment and the Minister has given approval: George v. George, 139 D.L.R. (4th) 53, 1996 CanLII 2766 (B.C.C.A.); see also Hepworth. While the Province may ultimately be correct that the George and Hepworth cases are distinguishable from the facts of the case at bar, I am not prepared to dismiss their significance at this juncture. The principles enunciated in George and Hepworth are still good law and have some bearing on the matters at hand, particularly in light of the amount of reliance that the Province places on a CP which, arguably, incorporates a flawed survey.

[61]      On the second point, there is some support for the proposition that the Shortt Survey erroneously left out the Disputed Lands. On the basis that no land transaction occurred as a result of the Nielson Survey, it is arguable that the Disputed Lands still belonged to the Plaintiffs at the time that the Shortt Survey was prepared, such that the Shortt Survey is incorrect.

[62]      This brings me to the significance of the Nielson Survey. There is evidentiary and legal support for the proposition that the deposit of the Nielson Survey did not result in the transfer of the Disputed Lands away from the Plaintiffs. By letter dated January 16, 1996, Mr. Nielson himself writes that the registration of the Nielson Survey “did not result in any transfer of reserve lands.” This is similar to the position taken by Kathy Hankin, Lands Manager, Indian and Northern Affairs Canada, in her letter dated May 14, 2002. Ms. Hankin states that the registration of the survey by itself “would not alter the Locatee’s interest as shown in the Indian Lands Registration System.”

[63]      In Makwa Sahgaiehcan First Nation v. Her Majesty the Queen in Right of Canada, 2019 SCTC 5, the Court held that the “taking” did not occur upon the deposit of the survey plan by the Canadian National Railway, and that an Order-in-Council under s. 48 of the Indian Act was required: at paras. 236 and 237. Notably, there was no Order-in-Council accompanying the Nielson Survey.

[64]      To that end, the Province does not dispute that “a survey, by itself, would not have any legal effect on, or create, lawful rights of possession in reserve lands”. However, the Province maintains that because the Shortt Survey is incorporated into the Plaintiffs’ CP, it accurately delineates the reserve lands possessed by the Plaintiffs. While this argument has some merit, so too does the Plaintiffs’ argument that the narrow and technical approach advanced by the Province should not result in the deprivation of the Plaintiffs’ possessory rights to Indian Reserve Lands which are sui generis in nature. This is particularly so where the Province seeks to rely on a survey that may be flawed.

[65]      There is some legal support for the proposition advanced by the Plaintiffs that the Province’s approach in this litigation goes contrary to the direction from the Supreme Court of Canada in St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657, 1997 CanLII 364 [St. Mary’s]. The Court in St. Mary’s noted the unique sui generis nature of Indian Reserve Lands and the danger of applying traditional real property rules to these lands:

[66]      In this case, there is some evidence that the OKIB, Mr. Parker, and the predecessors in title to Mr. Parker’s Lands never intended for the Plaintiffs to lose title to the Disputed Lands. Those intentions merit consideration in the ultimate determination of the Plaintiffs’ possessory rights.

[67]      The Province’s position in this lawsuit can also be considered at odds with: (1) the Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 [Declaration Act] which establishes the United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, UNGAOR, 61st Sess, Supp No 53, UN Doc A//61/295 (2007) [UNDRIP] as the Province’s framework for reconciliation; (2) the Declaration Act Action Plan which sets out the Province’s long-term vision for implementing UNDRIP in B.C.; and (3) the B.C. government’s 2022 Directives on Civil Litigation involving Indigenous Peoples [Indigenous Litigation Directives] which were developed to:

[68]      Finally, I wish to briefly address the various decisions cited by the Province, such as Nicola Band et al v. Trans-Can. Displays et al, 2000 BCSC 1209 and Penticton Indian Band v. Jack, 2015 BCCA 337 (“Penticton Indian Band BCCA”). While those decisions assist the Province in advancing its arguments, they do not cause me to find that the Plaintiffs are bound to lose. At best, they indicate that the issues are complex and require a thorough investigation of the facts and the law, before any final determination can be made.

[69]      I conclude that the Province has failed to meet the burden of showing that the Plaintiffs are bound to fail in establishing possessory interests over the Disputed Lands.

[70]      I turn now to the specific claim advanced in trespass.

[71]      Trespass to land is committed when, without lawful justification, a party has entered on, remained on, or projected any object on, land that is in the possession of the opposing party. The essential elements of the modern tort of trespass to land were explained in Allen M. Linden et al, Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada, 2022) at s 11.01, as follows:

[72]      I have already found that the Plaintiffs are not bound to fail in their claim that they hold possessory interest in the Disputed Lands.

[73]      The Province asserts that it obtained permission from the necessary parties to relocate Westside Road. In support, it points to the CP as evidence that the reserve land has been allotted to them by the OKIB and approved by the Minister under s. 20(1) of the Indian Act. However, the existence of the CP does not necessarily mean that the rightful parties consented to the relocation of the Westside Road onto the Disputed Lands.

[74]      There are potentially three parties whose consent may have been required: Mr. Parker, the OKIB, and the Minister.

[75]      There is no question that Mr. Parker’s consent was not obtained, though the Province argues that his consent was not necessary as he did not have possessory rights over the Disputed Lands.

[76]      There is also some indication that the OKIB did not consent, despite the Province’s assertion that consent was sought and obtained from the OKIB. There is no evidence of the existence of a Band Council Resolution evidencing the consent of the OKIB. Further, in a Statutory Declaration sworn August 31, 1993, Mr. Al Desimone, an employee of the Province, explained that when the Westside Road was relocated in 1964, the Province did not have a Right of Way Agreement “signed, sealed and delivered”.

[77]      There is also no evidence that an Order-in-Council was issued by the Federal Crown (who holds legal title to the Reserve Lands), conveying any possessory rights of the Relocated Westside Road to the Province.

[78]      After having regard to the pleadings and material relied on by the parties, I conclude that the claim that the Province is in trespass is not bound to fail.

[79]      In Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, the Court explained when a fiduciary relationship arises between the Crown and Indigenous peoples:

[80]      When taking reserve lands, the Crown is under a sui generis fiduciary duty: Southwind v. Canada, 2021 SCC 28. This means that the Crown is under strict obligations to advance the best interests of Indigenous Peoples. The Court explained the obligations of the Crown that flow from its fiduciary duty as follows:

[81]      In Chippewas of Saugeen First Nation v. Town of South Bruce Peninsula et al., 2023 ONSC 2056, the Court explained the obligation of the Crown to act honourably when carrying out its fiduciary duties to Indigenous peoples:

[82]      The Province’s commitment to uphold the honour of the Crown is expressly articulated in the Indigenous Litigation Directives.[3] Even in the absence of such directives, there is case authority that supports the extension of this duty to Provincial governments, such that the Province is required to “act honourably and with intellectual honesty, and…is to avoid the appearance of ‘sharp dealings’”: Chief Austin Bear v. The Government of Saskatchewan, 2016 SKQB 73 at paras. 33 and 41.[4]

[83]      The Plaintiffs are the successors in title to Harry Parker. There is some evidence that there were ongoing negotiations between the Plaintiffs and the Province for more than 20 years in relation to the alleged trespass. There is also some evidence that in late 2021 the Province unilaterally ended these negotiations which necessitated this litigation.

[84]      The Plaintiffs are not bound to fail in their arguments that the Province breached the honour of the Crown by: (1) the manner in which the Province went about relocating the Westside Road; (2) its ongoing trespass and failure to compensate the Plaintiffs even in the face of the OKIB confirming that it was not asserting any possessory rights over the Disputed Lands; (3) its reliance on an unnecessarily technical legal argument which goes contrary to the position it took during negotiations; and (4) its litigation strategy which goes contrary to the Indigenous Litigation Directives.

[85]      I am satisfied that the Plaintiffs have raised a genuine issue for trial in their claim that the Province has breached its fiduciary duties to the Plaintiffs and Mr. Parker, by: unlawfully taking reserve lands over which the Plaintiffs held a possessory interest; failing to act in the best interests of the Indigenous persons that had an interest in those lands; and failing to have honest dealings with the Plaintiffs.

[86]      The Plaintiffs also advance claims against the Province for breach of trust and bad faith, as a result of the alleged wrongful taking and trespass to Mr. Parker’s Lands. In the Notice of Application, the Province does not seek to dismiss these causes of action. However, based on their submissions during the hearing of this application, the Province’s position is unclear. I have therefore addressed these causes of action below.

[87]      There is a considerable overlap between breach of trust and breach of fiduciary duties since trustees are fiduciaries. Justice La Forest, writing for the majority, in Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534 at 578, 1991 CanLII 52, distinguished between the two relationships noting that a trustee holds property for the benefit of another, whereas equity may impose a fiduciary duty in other circumstances.

[88]      Professor Waters in Donovan Waters, Lionel Smith & Mark Gillen, Waters' Law of Trusts in Canada, 5th ed (Toronto: Thomson Reuters, 2021) at s 25.I (“Waters Law of Trusts”), described breach of trust as follows:

[89]      The Province does not argue that a finding that the Province, inter alia, wrongfully took lands over which the Plaintiffs held possessory rights could ground the breach of trust claim. Rather, the Province only challenges the breach of trust pleading advanced on behalf of Mr. Parker on the grounds of standing. I have addressed this aspect of the application in the below section relating to the Motion to Strike.

[90]      In light of the foregoing, I am satisfied that the breach of trust claim advanced by the Plaintiffs on their own behalf is not bound to fail.

[91]      I hold a similar view in relation to the bad faith claim, which is also grounded in the possessory rights asserted by the Plaintiffs. As with the breach of trust claim, the Province has not challenged the merits of the bad faith cause of action. There is ample support that this cause of action too is not bound to fail.

[92]      The Crown’s fiduciary duty to a band requires it to act in good faith in dealing with the reserve lands: Williams Lake Indian Band at paras. 46, 53.

[93]      “Bad faith” can capture a range of dishonest or unfair conduct. In relation to a trustee, bad faith can be understood as “conduct that consciously disregards the interests of the beneficiary” or the exercise by the fiduciary of a discretionary power for their own wrongful benefit: Waters Law of Trusts, at s 18.III, footnote 399, s 18. IV.

[94]      I conclude that the Plaintiffs are not bound to lose their claim that the Province acted in bad faith in its dealings with them over the Disputed Lands.

[95]      The Province also argues that this Court does not have jurisdiction to grant the relief sought by the Plaintiffs, and as such, the claims should be struck. Specifically, it is submitted that “this Court does not have jurisdiction to correct alleged errors in the respondents’ Certificate of Possession, or otherwise create rights of possession in the Okanagan Indian Reserve”.

[96]      The Plaintiffs seek the following relief under Part 2 of the NOCC:

[97]      Importantly, none of the relief sought asks this Court to correct the alleged errors in the Certificate of Possession, or to otherwise create rights of possession in the Disputed Lands.

[98]      The Province relies on Paul v. Cooper, 2009 BCSC 515 at para. 42, to support its position that “the power to determine rights of possession on reserve lands has been conferred exclusively, by Parliament, upon the Minister”.

[99]      There are two notable observations with respect to Paul. First, the case is factually distinguishable. The Respondent relied on the principle of estoppel, rather than compliance with s. 20(1) of the Indian Act, to support his position that he was entitled to possession of the disputed lands. In declining to remit the matter to the trial list, Justice Wilson held that a finding of estoppel was “tantamount to conferring a right of possession on Mr. Cooper”, which the Court had no jurisdiction to grant in the absence of a finding of compliance with the Indian Act: Paul at para. 41. In that case the Respondent had neither a CP nor approval of the Minister granting an individual interest in the land at issue. Second, the declaratory relief granted to the Petitioner in Paul confirms that this Court has jurisdiction to make a declaration of lawful and exclusive possession of reserve lands where the evidence supports such a finding: Paul at para. 46.

[100]   The case of Penticton Indian Band v. Jack, 2013 BCSC 2587 [Penticton Indian Band BCSC], aff’d Penticton Indian Band BCCA, is also distinguishable. In that case, the Court noted the absence of any evidence that an allotment was ever presented to the Minister for approval: Penticton Indian Band BCSC at para. 45.

[101]   In my view, the Province mischaracterizes the nature of this lawsuit by submitting that the Plaintiffs are asking this Court to correct their Certificate of Possession or to otherwise create possessory or occupational rights in Reserve Lands that they do not possess. Rather, in seeking the various declarations and orders set out in the NOCC, the Plaintiffs have asked this Court to: (1) conclude that their rights to the Disputed Lands exist despite any alleged errors in the CP or attached survey; and (2) enforce their rights of possession to the Disputed Lands.

[102]   Subject to the relief sought in relation to Mr. Parker at paras. (c), (d) and (e) of the NOCC (addressed below), I am satisfied that if the Plaintiffs are successful in establishing, inter alia, that they have possessory rights over the Disputed Lands, there is no jurisdictional bar to this Court granting the remedies that they are seeking.

[103]   I finally turn to the application brought by the Province pursuant to Rule 9-5(1)(a) and (b). The Province seeks an order that the portions of the NOCC seeking relief on behalf of Harry Parker be struck and dismissed on the grounds that: (a) they disclose no reasonable claim; or (b) they are unnecessary, scandalous, frivolous, or vexatious.

[104]   In considering an application for striking of pleadings under Rule 9-5(1)(a), the court is to determine whether it is “plain and obvious” that the claim has no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (“Imperial Tobacco”) at para. 17.

[105]   Pursuant to Rule 9-5(2), no evidence is admissible on an application brought under subrule (1)(a). Rather, the facts as pleaded are assumed to be true “unless they are manifestly incapable of being proven”: Imperial Tobacco at para. 22.

[106]   In Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (“Nevsun”), at para. 65, the court cited with approval the following passage from Willow v. Chong, 2013 BCSC 1083:

[107]   The Court in Nevsun went on to note the importance of permitting novel claims to be advanced, stating as follows:

[108]   I turn now to the declarations sought in relation to Mr. Parker.

[109]   The decision to grant declaratory relief is discretionary on the court. Declaratory relief can only be granted where all of the following criteria have been met: (1) the court has jurisdiction to hear the issue; (2) the dispute is real and not theoretical; (3) the party raising the issue has a genuine interest in its resolution; (4) the responding party has an interest in opposing the declaration being sought; and (5) the declaration will have practical utility: West Moberly First Nations v. British Columbia, 2020 BCCA 138 at paras. 308-310.

[110]   I am satisfied that all five criteria in West Moberly First Nations are met in this case.

[111]   I am not convinced that the specific declaratory relief sought in this case on behalf of Mr. Parker can only be brought through federal or provincial estates legislation.[5] The Plaintiffs here are not seeking probate of Mr. Parker’s estate; nor are they suing the estate of Harry Parker; nor are they suing on behalf of the estate. Rather, in seeking the declarations on behalf of Ms. Bonneau’s father, the Plaintiffs seek to redress what they say is a historical wrong. Specifically, Ms. Bonneau asks for reparations from the Province for wrongs that she says have been done to her in her capacity as a successor in title to her father’s lands, and a holder of title to those lands. I cannot conclude, on the basis of the material before me, that this argument is bound to fail. As noted elsewhere, Reserve Lands are not necessarily subject to the typical real property regime that applies to non-Reserve Lands. To that extent, the argument advanced is novel, and the Plaintiffs should be given an opportunity to fully argue it at trial.

[112]   I am also satisfied that the dispute in relation to the declarations sought is real and not theoretical. The issue of who holds possessory interests over the Disputed Lands appears to have been festering since before Mr. Parker’s death, and has continued to be a source of dispute between the Province and the successors in title to Mr. Parker’s Lands. On that historical foundation, the Plaintiffs are seeking compensation, and not just a declaration, for wrongs they say were commenced from when Harry Parker was experiencing the trespass, to when they came into possession of Mr. Parker’s Lands.

[113]   I also find that the Plaintiffs have a genuine interest in the resolution of the question of whether the Province committed a breach of trust or breach of fiduciary duty to Mr. Parker. Similarly, the Province has an interest in opposing the declarations being sought. Those declarations are connected to the relief that the Plaintiffs are seeking. To that end, the declarations also have some practical utility. For example, findings that the Province owed fiduciary duties to Mr. Parker and was in breach of those fiduciary duties and in breach of trust could set the groundwork for the argument that the Province acted in bad faith by continuing to breach the fiduciary duties and committing a breach of trust as against the successors in title to Mr. Parker. The declarations may also inform the compensation being sought for the trespass.

[114]   As I am not convinced that the Plaintiffs lack standing, I find that it is not plain and obvious that the claims advanced on behalf of Mr. Parker have no reasonable prospect of success. I am also not satisfied that the claims are unnecessary, scandalous, frivolous or vexatious in the sense that they serve no useful purpose, waste court resources or obviously cannot succeed.

[115]   The application under Rule 9-5(1) is dismissed.

[116]   The Plaintiffs seek special costs of this application. They submit that the Province is not an ordinary litigant, and needs to be held to a higher standard given its commitment to reconciliation and its obligation to act in accordance with the honour of the Crown. The Plaintiffs contend that this application is itself clear evidence of the ongoing breach of the fiduciary duties owed by the Province, which, with its superior financial resources, has brought an application that has no merit and which undermines any promise of reconciliation.

[117]   In my view, an award of special costs of this application is premature. To support such an award, there needs to be a finding of egregious conduct that is deserving of rebuke. It may be that the trial judge who ultimately hears this matter determines that the position of the Crown or the tactics taken attracts an award of special costs. However, I am not in a position to make such a finding on the limited record before me.

[118]   The issue of whether special costs of this application should be awarded to the Plaintiffs, is a matter best left to the discretion of the trial judge. To that end, if the Plaintiffs wish to raise this matter again before the trial judge, they have leave to do so.

[119]   I order as follows: