Joan Holmes

The plaintiff First Nation brought an action against Canada and Ontario for failing to set aside a reserve for them under Treaty No. 9 in 1906.

The parties agreed that a reserve should have been set aside.

The threshold issue at trial was determining the 'crystallization date'—the point in time at which the band's population should be assessed to calculate the size of the reserve.

The plaintiffs argued the population should be determined as of the date the reserve is actually set aside or the date of the court's declaration.

The Crown argued the population should be determined as of the date the treaty was made.

The court held that the common intention of the parties, based on the text of the treaty and its historical context, was that reserves were to be set aside and sized according to the population at the time the treaty was made.

The appellants, representing the Haudenosaunee Development Institute, challenged two municipal by-laws passed by the City of Brantford to prohibit unauthorized interference with development and the imposition of unauthorized fees.

The appellants argued the by-laws were passed in bad faith, violated the open meeting requirements of the Municipal Act, 2001, infringed sections 2(b) and 15 of the Charter, and were ultra vires the province under section 91(24) of the Constitution Act, 1867.

The Court of Appeal dismissed most of the appeal, finding the by-laws were validly passed and did not target the Haudenosaunee.

However, the Court allowed the appeal in part, striking the words 'invite', 'request', and 'sign' from the by-laws as they unjustifiably limited freedom of expression under section 2(b) of the Charter.

The applicant municipality successfully obtained an interlocutory injunction to prevent the respondents from blockading various development sites and successfully defended a motion to quash its by-laws.

The applicant subsequently sought its costs of the proceedings.

The respondents argued they were public interest litigants and that costs should be in the cause or paid by the province.

The court rejected these arguments, finding the respondents' unlawful conduct necessitated the litigation and they were not acting in the public interest.

The court awarded the applicant costs fixed at $350,000, significantly reducing the $887,000 claimed due to duplication, excessive time, and the exclusion of costs for a court-ordered consultation process.