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David Cheifetz
Sun, 18 Nov 2007 21:19:43 -0500
Cases of restitution for historic wrongs



The actions, so long as they're framed for breach of fiduciary duty, won't be caught by prescription period arguments here. The situation is that most (all?) of the traditional forms of limitation statute in the common jurisdictions have been held not to apply to breach of fiduciary duty.

Although they are claims for compensatory damages, not restitutionary or unjust enrichment recovery, the various Indian Residential Schools class actions probably fit your description of actions brought seeking restitution, in the sense of payment, for historic wrongs.

Those actions - brought against various religious orders and primarily the government of Canada - were settled recently. Here are some links:


The last link is to one court decision approving the settlement which gives you some flavour. The first link is the Canada site which will take you to many links.

I suspect others reading this can give you more information.

On land claims, here's the home site for the Indian Claims Commission.

There's a recent Ontario action which might interest you and provide leads.

Here's the cite: Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744 (CanLII). This is the first 7 paras. which summarize the situation so that you can tell if you're interested.

[1] The Crown breached its fiduciary duty to the Whitefish Lake Band of Indians 120 years ago. The issue on this appeal is whether the trial judge erred in his assessment of compensation for that breach. The facts of this case are straightforward. Its resolution is not.

[2] Whitefish occupies a reserve near Sudbury. In 1886 Whitefish surrendered the timber rights on its reserve to the Crown, which then sold these rights for $316. In 2002, Whitefish sued the Crown for damages for an improvident sale. Shortly before the trial, the Crown admitted that it breached its fiduciary duty by failing to obtain a fair value for Whitefish’s timber rights.

[3] The trial judge, Blenus Wright J., was then asked to assess Whitefish’s compensation for the Crown’s admitted breach. To do so, he had to determine two issues: first, what was the fair value of the timber rights in 1886; and second, how is that fair value to be assessed in 2005, the date of trial.

[4] On the first issue, the trial judge valued Whitefish’s timbers right in 1886 at $31,600. He did so by choosing the highest price paid for comparable timber at a public auction. On the second issue, the trial judge assessed Whitefish’s compensation at $1,095,888. In doing so he took into account that the Crown had not profited from its breach of duty and that it had no legal obligation to pay prejudgment interest until 1992. He adjusted the fair value of the timber rights for inflation between 1886 and 1992, and awarded simple interest on that adjusted amount from 1992 to 2005.

[5] Whitefish appeals the trial judge’s valuation on the first issue and the Crown cross-appeals. Whitefish contends that the trial judge erred by failing to accept reliable evidence from its own expert, who placed the value of the timber rights in 1886 at $50,000. The Crown contends that the trial judge erred by failing to use a weighted average of the valuations of its expert, which would have produced a figure of $16,000.

[6] On the second issue, Whitefish, supported by the intervenors, contends that the trial judge erred in three related ways. First, it says that the trial judge erred by failing to compensate it in equity for its lost opportunity to have the $31,600 invested for its benefit, and to have the use of the investment income; second, it says that the trial judge erred in law by holding that he could not include compound interest as an element of equitable compensation; and, third, it says that the trial judge’s finding that the sale proceeds would have been “dissipated” is contrary to the terms of the surrender, the provisions of the Indian Act, R.S.C. 1886, c. 43, and the principles of equitable compensation, and is unsupported by the evidence. Whitefish claims that an award that fairly compensates it for the Crown’s breach of fiduciary duty would be in the range of $23 million. The Crown contends that the trial judge’s use of inflation and simple prejudgment interest achieved a “fair, equitable and proportionate award” of compensation in an historical claim.

[7] On the first issue, I would not give effect either to Whitefish’s appeal or the Crown’s cross-appeal. The trial judge did not err in principle in valuing the timber rights in 1886 at $31,600 and I would defer to his valuation. On the second issue, however, I agree with Whitefish’s three arguments. I would allow the appeal on this issue and set aside the trial judge’s award. Because the record is insufficient, this court cannot substitute its own award for that of the trial judge. I would order a new hearing to determine the equitable compensation to which Whitefish is entitled.

You might also want to look at Authorson v Canada. You'll find a synopsis, here.

You can get to pdf versions of the 3 court citations I've given you by changing the suffix of the URL to .pdf

David Cheifetz


From: Neil Foster
Sent: November 18, 2007 7:55 PM
Subject: Re: [RDG] RDG -- cases of restitution for historic wrongs

Dear Chaim, Lionel and colleagues;

While it is not precisely what Chaim is asking about, the recent South Australian decision of Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) raises some of these issues. In Australia the "Stolen Generations" issue refers to Aboriginal children removed from their families and placed into the care of non-Aboriginals or institutions. Mr Trevorrow was the first claimant awarded significant damages for the consequences of his removal. The action succeeded in misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence. An extension of time was granted in those common law actions that required it; but it was also noted that the equitable action for breach of fiduciary duty would have been successful, and that was not subject to a limitation under SA law. An equitable "limitation" defence of laches was rejected - see [948] ff.

However, the case is not quite what Chaim was looking for, of course, since the events are not perhaps old enough to be "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, and time did not even begin to run against him until he turned 18. And there was no action for restitution.

While I don't know a lot about it, I know there has also been research into the issue of money that was paid to Aboriginals who were under the "protection" of the State, and paid into "trust funds" which were never released. See 'Eventually They Get It All' ... Government Management of Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August 2007). I am not sure whether or not this has been the subject of litigation, or is being addressed more at a political level.

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