Jesse Abell

This costs endorsement follows the court’s decision granting Ontario Heritage Trust’s application for a declaration of trespass and related relief.

The court considers the parties’ submissions on costs, including arguments about duplication of effort and offers to settle.

The Trust is awarded its requested costs of $90,000, and the Chippewas of Nawash Unceded First Nation is awarded $71,000, both to be paid by Mr. Hunter.

The court applies the principles from the Rules of Civil Procedure and the Courts of Justice Act, as well as appellate guidance on costs discretion.

The Ontario Heritage Trust sought a declaration of trespass and related relief regarding encroachments by Troy James Hunter onto land of significant cultural and spiritual importance to the Anishinaabe, co-managed with the Chippewas of Nawash Unceded First Nation.

The court found that the encroachments—including a cottage, driveway, well, and trees—constituted trespass and granted a mandatory injunction for their removal, emphasizing the unique, non-monetary value of the land and the inadequacy of damages as a remedy.

The court rejected arguments based on honest mistake, the Trust’s knowledge of the encroachments at purchase, and the Conveyancing and Law of Property Act, holding that the Ontario Heritage Act prevails and that the equities favoured the Trust and Nawash.

The respondent Chippewas of Nawash Unceded First Nation brought a motion to strike portions of affidavits filed by the respondent Troy James Hunter and the applicant Ontario Heritage Trust, arguing settlement privilege.

The motion arose from an underlying application by the Trust seeking removal of encroachments by Hunter on a sacred site co-managed by the Trust and Chippewas.

The court dismissed the motion, finding that Chippewas lacked standing to assert privilege over communications between the Trust and Hunter, and that the Trust had waived its own settlement privilege by disclosing and relying on settlement communications in both a prior regulatory proceeding and the current application.

The court emphasized that privilege issues should be decided by the motion judge, not deferred to the application judge.