Jaclyn C. McNamara

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The plaintiff brought a motion to transfer his wrongful dismissal action from Toronto to Sarnia, citing the declining health of his wife who required his care.

The defendants opposed the transfer.

The court applied the holistic balancing test under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While acknowledging the plaintiff's caregiving responsibilities, the court noted that the other parties and counsel were located closer to Toronto, and the corporate defendant operated virtually.

The court concluded that the plaintiff failed to establish that Sarnia was a significantly better venue and dismissed the motion.