Daniel E. Luxat

The Court of Appeal for Ontario dismissed the appeals of both the Attorney General of Canada and Katherine Cannon from a trial judgment finding them liable for abuse and loss of Indigenous culture suffered by the respondents, three sisters.

The court held that Canada owed an ad hoc fiduciary duty to the respondents as de facto wards in a unique interprovincial context, and that Canada breached this duty by shelving a plan to return the children to their Indigenous maternal family.

The court also upheld findings of negligence and joint and several liability for damages.

The court clarified the limits of sui generis fiduciary duty, the requirements for ad hoc fiduciary duty, and the application of proximity and foreseeability in negligence.

The First Nations moved to vary costs awards against the Estate of William Albin Herold, seeking to make Jeffrey S. Herold, the Estate Trustee, jointly and severally liable for over $190,000 in costs.

This motion was brought under Rule 59.06(2)(a) after the First Nations discovered that Mr. Herold had personally received a transfer of Lot 35, the property forming the basis of the Estate's claim to certain islands, a fact not disclosed during the original litigation.

The Court of Appeal dismissed the motion regarding Supreme Court of Canada costs, stating it lacked authority, but granted the variation for its own costs awards.

The court found that the non-disclosure was a material fact, not a mere irregularity, and that Mr. Herold was the true litigant, satisfying the "person of straw" test for imposing costs on a non-party.

The Court of Appeal issued a costs endorsement following its decision to allow an appeal and order a new trial.

The parties reached a consent order regarding costs.

The trial costs order in favour of Katherine Cannon was set aside, with the issue of first trial costs to be determined by the new trial judge.

The respondents were ordered to pay the appellants $8,000 in appeal costs, inclusive of disbursements and taxes, with each respondent contributing $4,000 within 90 days.

The appellants, three sisters, appealed a trial decision that dismissed their claims of physical abuse against their aunt and breach of fiduciary duty against the Attorney General of Canada.

The trial judge had found the appellants' evidence unreliable due to the passage of several decades since the alleged abuse.

The Court of Appeal allowed the appeal, finding that the trial judge erred in principle by treating the passage of time as nearly determinative of reliability without adequately considering the context of adult testimony regarding childhood abuse, as guided by the Supreme Court of Canada in R. v. W. (R.).

The court ordered a new trial to properly assess the evidence.

This is a costs endorsement following a successful appeal by the Attorney General of Canada and several First Nations against the Estate of William Albin Herold.

The Court of Appeal had previously allowed the appeals and set aside the lower court orders.

In this endorsement, the court fixed the costs of the proceedings below at $154,530.76, awarded to the appellant First Nations, as the Attorney General of Canada did not seek costs below.

The court also varied its previous appeal costs award, granting the full $43,000 (inclusive of disbursements and taxes) to the appellant First Nations, with no costs awarded to the Attorney General of Canada on appeal, in accordance with a prior agreement between the parties.

The Estate of William Albin Herold claimed ownership of three islands in Lake Katchewanooka, arguing they were conveyed as part of Lot 35 by Letters Patent in 1868, despite having separated from the mainland due to rising water levels.

The application judge found in favour of the Estate, applying a "Flooding Principle" to fix the boundary and concluding that treaties with First Nations did not affect the Crown's right to sell.

The Court of Appeal allowed the appeals by the First Nations and the Attorney General of Canada, finding that the application judge made extricable errors of law by failing to objectively ascertain the parties' intentions in the Letters Patent, misapplying the Flooding Principle, and not properly considering the Crown's treaty obligations.

The appellate court concluded that the Letters Patent did not convey the islands, as they were physically separate, separately identified, and subject to specific Crown obligations under Treaty 78.

This decision from the Court of Appeal for Ontario addresses three related matters.

The first involved an appeal in Blanchard v. Georgina (Town), where the panel considered a motion to review a security for costs order and an ex parte motion by the Town of Georgina to dismiss the appeal for non-payment of security.

The second matter concerned a proposed appeal in Grand Chief v. Phillips et al, specifically a review of an order denying an extension of time to file a notice of appeal.

The third matter was a general review of a prior order by Thorburn J.A. The court dismissed the request for an adjournment and allowed a non-lawyer spokesperson to represent one of the parties.

The court found no basis to stay or consolidate the appeals based on aboriginal land claims.

The Georgina appeal was dismissed due to non-compliance with the security for costs order, and the review of the denial of extension of time for the Grand Chief v. Phillips appeal was also dismissed, with costs awarded against the unsuccessful parties in both instances.

The plaintiffs, three sisters, brought an action against their aunt and the Attorney General of Canada, alleging that they were physically abused by their aunt while living in her home as children over fifty years ago.

They claimed damages for assault and battery, and breach of fiduciary duty.

The court reviewed extensive testimony from the plaintiffs, the aunt, and other family members.

Applying the balance of probabilities standard and considering the frailties of memory regarding distant events, the court found the plaintiffs' evidence to be unreliable due to inconsistencies and lack of detail.

The action was dismissed against both defendants.

Aroland First Nation and Ginoogaming First Nation sought partial summary judgment for a declaration that the Crown's duty to consult under s. 35 of the Constitution Act, 1982, is triggered by ongoing invasive testing (integrity digs and hydrostatic testing) on established natural gas pipelines traversing their traditional territories.

The defendants opposed, arguing no duty to consult or that the matter was unsuitable for partial summary judgment.

The court dismissed the motion, concluding that the issue could not be fairly and justly decided through partial summary judgment due to the need for a careful, incremental approach to Aboriginal law, disputed facts regarding adverse impact, significant overlap with broader issues of duty scope and breach, and the novelty of the case.