J. Morse

The Town of Fort Frances, as plaintiff by counterclaim, brought a motion to compel the First Nations, Canada, and Ontario to answer questions refused during cross-examinations on affidavits filed for an upcoming summary judgment motion.

The refused questions sought the defendants' legal positions on historical documents and the disclosure of a 2018 Settlement Agreement between the First Nations, Canada, and Ontario.

The court dismissed the motion, finding that the questions regarding historical documents were in the nature of discovery and beyond the proper scope of cross-examination on an affidavit.

The court also held that the 2018 Settlement Agreement was protected by settlement privilege and did not need to be disclosed, as it did not change the ongoing litigation landscape of the Town's counterclaim.

The plaintiff First Nations sought a declaration that a two-chain strip of land along the shores of Rainy Lake and Rainy River formed part of the Agency One Reserve, created pursuant to Treaty #3.

The court reviewed extensive historical, ethnohistorical, and surveying evidence regarding the creation of the reserve in the 1870s.

The court found that the Crown intended to exclude the two-chain allowance from the reserve to accommodate the Dawson Route and the developing forestry industry.

The court further held that this exclusion did not breach the Crown's fiduciary duty or the honour of the Crown, as the Ojibway retained access to the shoreline and no express promise had been made to include it.

The plaintiffs' claims were dismissed.