Glynis Adele Evans

In a constitutional compliance review arising from Robinson-Superior Treaty augmentation litigation, the moving parties challenged both the Crown's engagement process and the compensation amount set after negotiations failed.

The court held that although aspects of engagement, including late disclosure of reliance on per-capita benchmarking against a related treaty settlement, caused serious relational harm, the reviewing role required deference to a range of honourable discretionary outcomes.

Applying a sui generis review framework grounded in honour of the Crown and reconciliatory justice, the court concluded the Crown's ultimate compensation determination of $3.6 billion plus agreed costs was justified in the legal and factual context.

The court therefore declined to intervene in the compensation decision while also addressing allocation issues between federal and provincial Crown responsibility in the reasons.

The plaintiffs brought a motion on consent for a partial judgment to give effect to a settlement agreement regarding past annuities payable under the Robinson Huron Treaty of 1850.

The settlement resolves claims that the Crown failed to fulfill its promise to augment the annuity over time.

Under the agreement, the federal and provincial Crowns will pay $10 billion to the plaintiffs.

The court approved the settlement agreement and granted the partial judgment.

This motion sought approval for the notice of certification and notice plan in a class proceeding concerning toxic mold in housing on Long Lake No. 58 First Nation's reserve.

The court approved the proposed notice, finding it clear and easy to understand, and the opt-out procedure straightforward.

The court also approved the notice plan, which included delivery by mail, posting on Facebook, and at community offices, and confirmed that notice only in English was appropriate given the class members' language.

The representative plaintiff, Narcise Alex Kakegabon, brought a motion to vary the certification order in a class proceeding concerning toxic mould on Long Lake No. 58 First Nation's reserve.

The motion sought to remove Kim Orr Barristers P.C. as class counsel and appoint Turan Law Office P.C. as new class counsel, along with ancillary relief.

The plaintiff cited a loss of confidence in the previous counsel due to lack of progress, noting that approximately half of the class members had passed away since certification.

The court, applying the principles from Fantl v. Transamerica, considered the competence of the proposed counsel, the propriety of the choice, and potential prejudice to the class.

Neither the defendant nor the previous class counsel opposed the motion.

The court found no concerns regarding the proposed counsel's competence or the plaintiff's choice, and no prejudice to the class.

The motion was granted.

Ontario brought a motion to adjourn the Stage Three trial of a complex treaty rights claim sine die, pending the Supreme Court of Canada's decision on the appeal of Stage One and Stage Two.

The plaintiffs, interveners, and Canada opposed the motion.

The court applied the test for an adjournment, balancing the interests of the parties and the administration of justice.

The court found that the risk of proceeding was manageable, while the prejudice to the plaintiffs and the administration of justice caused by further delay would be significant.

The motion to adjourn was dismissed.

Batchewana First Nation sought to be joined as a necessary party plaintiff or, alternatively, for leave to intervene as an added party plaintiff in the Robinson Superior Treaty action, which concerns claims for augmented annuities.

The motion was dismissed.

The court found that Batchewana, a beneficiary of the Robinson Huron Treaty, was not a necessary party to the Superior action, as its claim for augmented annuities based on "just claims" to lands within the Superior Territory was inconsistent with its prior position in the Huron action and did not directly relate to the Superior Treaty's interpretation or compensation.

The court also found that Batchewana did not meet the criteria for intervention and that its proposed intervention would cause undue delay and prejudice to the complex, multi-stage litigation.

Namaygoosisagagun Ojibway Nation sought leave to intervene in the Robinson Superior Treaty action under Rule 13.01(1) of the Rules of Civil Procedure.

The plaintiffs and Gull Bay First Nation opposed the intervention, arguing that Namaygoosisagagun was not a recognized band and lacked a collective interest.

The Crown defendants consented with provisos to prevent litigation of Namaygoosisagagun's band status or s. 35 rights within this proceeding.

The court granted leave to intervene, finding that Namaygoosisagagun had a contingent collective interest that met the low threshold for intervention, but imposed strict conditions prohibiting them from seeking to prove or determine issues related to their band status, s. 35 rights, or beneficiary status under the Treaty, and from making submissions conflicting with the plaintiffs' position on distribution.

The Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.

Following Stage Two of a complex treaty rights trial, the plaintiffs sought costs against Ontario.

Ontario disputed the quantum and the partial indemnity rate, arguing the plaintiffs expended an unreasonable amount of time compared to the defendants.

The court found the plaintiffs' time expenditure was reasonable given the complexity of the issues, including Crown immunity and limitations, and the risks involved.

The court awarded costs to the plaintiffs on a partial indemnity basis at a rate of 65%, taking into account an offer to settle made by the Superior plaintiffs and the unique nature of the Anishinaabek-Crown treaty relationship.

The plaintiffs, beneficiaries of the Robinson Huron and Robinson Superior Treaties, brought a motion for partial summary judgment in Stage Two of their action against the federal and provincial Crowns.

They sought declarations that their claims for breach of the treaties' annuity augmentation promises were not barred by Ontario's limitations legislation or the doctrine of Crown immunity.

The Superior Court of Justice granted partial summary judgment on these issues, finding that treaties are not contracts or specialties subject to the Limitations Act, 1990, and that equitable claims for breach of fiduciary duty could historically be pursued by petition of right, thus falling outside Crown immunity under the Proceedings Against the Crown Act.

The court declined to grant summary judgment on the issues of joint and several liability and whether Canada should act as paymaster, deferring those matters to the Stage Three trial.

This was a costs decision following a successful bifurcation motion by the defendants in a large misfeasance in public office action.

The plaintiff conceded entitlement, hourly rates, and disbursements, but argued that time spent preparing an affidavit was excessive for a procedural motion.

The court declined to second-guess successful counsel's preparation time, finding the affidavit materially helpful and the hours not grossly excessive.

Applying proportionality and reasonableness principles, the court allowed the defendants' bill of costs in full.

This was a costs ruling following a discovery motion in which the defendants were successful.

The plaintiff conceded the defendants' entitlement to costs and did not object to the amount claimed.

The court awarded the defendants their requested costs of $9,212.36, consisting of fees and disbursements found to be fair and reasonable.

On a defence motion in a municipal misfeasance in public office action arising from a federal environmental assessment of a highway project, the court granted leave to conduct discovery of the plaintiff by both written interrogatories and oral examination under Rule 31.02.

The court held that the plaintiff's particulars were largely a regurgitation of the pleadings and that, given the breadth of allegations against numerous individual defendants, written interrogatories would efficiently clarify the specific bad faith and illegality allegations made against each defendant.

The court rejected the plaintiff's fairness objections and accepted that a combined process could reduce duplication, narrow oral discovery, and move the long-delayed action toward trial.

Costs were left for written submissions.

The plaintiff municipality moved to bifurcate a tort action alleging misfeasance in public office arising from a federal environmental assessment order affecting a highway project.

The court held that Rule 6.1.01 permits bifurcation only with the consent of the parties and therefore ousted jurisdiction to order separate liability and damages hearings over objection.

In any event, applying pre-rule bifurcation principles and the Air Canada factors, the court found the liability and damages issues were intertwined because proof of misfeasance required proof of resulting harm.

The motion was dismissed.

Following dismissal of a motion seeking declarations and partial summary judgment based on res judicata, issue estoppel, and abuse of process in a civil action alleging misfeasance in public office, the court determined costs.

The moving party had sought numerous orders asserting that findings from a prior Federal Court decision conclusively established elements of liability against federal officials involved in an environmental review of a highway project.

The court held the motion was overly complex, repeatedly amended, and entirely unsuccessful.

Applying Rule 57.01 of the Rules of Civil Procedure and principles from appellate authorities, the court concluded that the defendants’ claimed costs were modest given the scale and duration of the proceedings.

Costs of $309,844.95 were awarded to the defendants.

The appellants sought to certify a class action against the federal government and others for alleged systemic physical, emotional, spiritual, and cultural abuse at a residential school operated between 1922 and 1969.

The motion judge dismissed the certification application, finding that a class proceeding was not the preferable procedure due to the highly individualized nature of the claims and the necessity of separate inquiries for each student.

The Divisional Court dismissed the appeal, upholding the motion judge's conclusion that the resolution of common issues would not significantly advance the litigation and that individual actions were the preferable alternative.

The appellant insured suffered a theft of equipment and subsequently made a claim for loss of income.

The respondent insurer denied the claim on the basis that it was barred by a one-year limitation period set out in the policy's conditions.

The appellant argued that the limitation period, which mirrored the statutory conditions for fire insurance under the Insurance Act, did not apply to theft or loss of profits, and that the late delivery of the policy prejudiced its ability to claim.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurer was free to incorporate the one-year limitation period into the contract for all perils, and that the contractual language was clear and unambiguous.

The court also found no prejudice from the late delivery of the policy, as the appellant's adjuster had misinterpreted the policy rather than being unaware of it.

The respondent investment dealer entered into a fidelity insurance contract with the appellant.

After discovering employee fraud, the respondent filed a proof of loss.

The appellant rescinded the bond, alleging misrepresentation in the application, and later brought a motion for summary judgment arguing the respondent failed to commence legal proceedings within the 24-month contractual limitation period.

The Supreme Court of Canada restored the motions judge's summary judgment in favour of the appellant, holding that there was no genuine issue for trial regarding the discovery of the loss, and that the contractual limitation period survived the appellant's wrongful rescission of the contract.