Jaclyn McNamara

This costs endorsement addresses the entitlement of the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON) to costs from Ontario following a partially successful appeal.

SON had sued Canada and Ontario for Aboriginal title to submerged lands and for breaches of fiduciary duty.

The Court of Appeal allowed SON’s title claim appeal to the extent of remitting the matter back to the trial judge for a determination on a more limited portion of the claim area, while dismissing their treaty claim appeal.

SON had settled costs with Canada and was not seeking costs for the treaty claim.

The court found that SON was the overall successful party on the title claim appeal against Ontario, as they obtained the relief sought (remittal), and Ontario's position was to dismiss the claim entirely.

The quantum of costs sought by SON was deemed reasonable given the complexity and public importance of the appeal.

The appellants, the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation, appealed the dismissal of their claim for Aboriginal title to submerged lands in Lake Huron and Georgian Bay, and their claim for breach of fiduciary duty regarding the Crown's failure to protect their lands from settler encroachment under Treaty 45 ½.

The Court of Appeal upheld the trial judge's dismissal of the broad Aboriginal title claim but remitted the matter to determine if title could be established over a smaller, specific area.

The Court affirmed that the Crown breached its treaty promise and the honour of the Crown by failing to diligently protect the lands, but agreed no fiduciary duty was owed.

The Court also allowed the municipalities' cross-appeal, dismissing the action against them on the basis that a constructive trust over municipal roads was an inappropriate remedy.

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.

The plaintiff, an experienced real estate agent, sued his former solicitor for professional negligence arising from the purchase of several properties and subsequent legal services.

The plaintiff alleged the solicitor failed to advise him of a 1995 by-law registered on title that restricted development.

The court dismissed the action, finding that the plaintiff was a sophisticated purchaser who instructed the solicitor not to conduct detailed title searches to save costs.

Furthermore, the plaintiff failed to call expert evidence to establish the standard of care, failed to prove causation as his inability to develop the properties was due to financial constraints, and failed to adequately prove his damages.

The plaintiff, a physician, sued the defendant, also a physician, for physical and sexual assault.

The defendant alleged a prior consensual sexual affair and that the plaintiff's allegations were fabricated due to hospital privilege issues.

The court found the defendant's late disclosure of the alleged affair undermined his credibility.

Based on consistent plaintiff testimony, corroborating witnesses, DNA evidence from a rug matching the defendant's DNA from a mug, and an adverse inference drawn from the defendant's refusal to provide a DNA sample, the court found the sexual assault occurred.

The court awarded $175,000 in non-pecuniary damages and $25,000 in punitive damages, finding the assault was a material contributing factor to the plaintiff's psychological injury.

The Wises severed their lakefront property, gifting one lot with road access to the appellants and retaining a water-access only lot.

The respondent bank, holding a mortgage on the retained lot, applied for an easement of necessity over the appellants' lot.

The application judge granted the easement, finding water access impractical and relying on public policy.

The Court of Appeal allowed the appeal, holding that the test for an easement of necessity is strict necessity, not practical necessity.

Because water access existed at the time of the grant, the property was not inaccessible, defeating the claim for an easement regardless of inconvenience.

The appellant appealed a summary judgment decision that dismissed her claims for wrongful dismissal and age discrimination, but awarded her 23 weeks' notice under a 1998 employment contract.

The appellant argued that a 2011 contract, though void for lack of consideration, successfully rescinded the 1998 contract, or alternatively, that the 1998 termination clause was ambiguous.

The Divisional Court upheld the motion judge's findings that the 1998 contract remained valid and its termination clause was unambiguous.

However, the court granted leave to appeal the motion judge's $15,000 costs award to the respondent, varying it to no costs due to the mixed success of the parties.

The appellant landlord appealed a decision of the Landlord and Tenant Board refusing to grant an extension of time to request a review of an earlier order.

The earlier order awarded the respondent tenant compensation for lost property and rent abatement following an eviction without notice.

The appellant argued he was denied natural justice because he did not receive notice of the hearing, as the documents were served on his paralegal.

The Divisional Court dismissed the appeal, finding that service on the legal representative was proper under the Board's Rules and the Board's refusal to extend time was reasonable.