Julia McRandall

At a trial management conference, an issue arose as to whether the plaintiff's pleadings in an Indigenous land claim action sought the recovery of Crown lands or merely monetary relief for alleged breaches of duty.

The court ruled that determining this issue before trial was necessary.

Analyzing the pleadings, the court found the claim exclusively sought equitable compensation, damages, and accounting, and did not properly plead any present-day interest in or right to recover actual Crown land in the Haldimand Tract.

This endorsement from a case conference addressed several procedural issues in a complex litigation involving Indigenous land claims.

The court provided directions regarding preparatory materials for upcoming out-of-court expert examinations, including the appointment of a hybrid commissioner and deadlines for expert report summaries and legal arguments.

The court also addressed a dispute regarding the scope of cross-examination of an expert witness, directing the parties to narrow issues concerning adversity of interest before seeking further judicial determination.

Finally, the court confirmed the appointment of a pre-trial judge and scheduled the next case conference.

This endorsement from a case conference addresses several procedural issues in a complex litigation.

It sets a timetable for a forthcoming motion by the Attorney General of Canada regarding the taking of evidence from certain witnesses before trial.

The court also noted Ontario's expected late delivery of expert reports, discussed the parties' differing estimates for trial length and scheduled a follow-up conference, and provided guidance on addressing concerns about trial presentation software (CaseLines).

This endorsement from a case conference addresses several procedural issues in a complex litigation, including the taking of expert evidence before trial, Canada's missed deadline for an expert report, the appointment of pre-trial and trial judges, the use of trial presentation software, and Ontario's Crown immunity defence.

The court scheduled a motion for expert evidence and provided directions for parties to prepare a trial timetable and discuss judicial assistance.

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.

This case management conference endorsement addresses the timetable for a complex action, primarily focusing on the delivery of expert reports and amended pleadings.

The court resolved disagreements between the plaintiff, defendants, and intervener regarding deadlines for expert reports, particularly those from the Mississaugas of the Credit First Nation (MCFN) and experts who had been ill.

The court also set a deadline for Ontario's defence to Canada's cross-claim, prioritizing realistic timelines and efficiency over the plaintiff's desire for earlier closures.

This case conference endorsement addresses several procedural issues in a complex litigation involving Six Nations of the Grand River Band of Indians, the Attorney General of Canada, and His Majesty the King in Right of Ontario.

Key issues include determining the venue for upcoming intervention motions, managing requests for participation from individuals in response to public notices, addressing the filing of a redacted motion record to protect privacy, setting procedures for evidentiary objections, approving a minor change to the online notice regarding hearing dates, and providing detailed CaseLines directions for electronic document management.

The court provided specific instructions for each of these procedural aspects to ensure the efficient and transparent progression of the litigation.

This case management conference addressed the plaintiff's proposed amended statement of claim and the defendants' request to vary the timetable for expert reports.

The court scheduled the motion to amend the statement of claim.

Regarding the expert reports, the court was prepared to consider an extension but required more specific information from the defendants regarding which reports needed expansion, why, and the estimated time required, rather than vacating the date outright.

A further case management conference was scheduled to address the expert report timetable.

A case conference was held to address procedural issues arising from a prior endorsement in an Indigenous land claim action.

The court determined the content and scope of a notice to be delivered to Haudenosaunee communities, ruling that the defendants could state their position in the notice and that delivery would not be expanded to Treaty 18 and 19 beneficiaries to avoid undue complexity.

The court also held that no special communications protocol was necessary and declined to order the proposed intervener, Men's Fire, to deliver a pleading.

A case management conference was held in an Aboriginal land claim action to address procedural issues.

The defendants sought clarification of the plaintiff's claims following the delivery of the plaintiff's expert reports.

The court directed the defendants to deliver demands for particulars and written interrogatories, and the plaintiff to respond or amend its statement of claim.

The court also amended the timetable for the delivery of expert reports due to delays.

Finally, the court ordered that parties must not disclose unfiled expert reports to non-parties, other than retained or potential experts, without first raising the issue in case management.

In a long-running Indigenous land claim concerning alleged Crown breaches of fiduciary and treaty obligations arising from the Haldimand Proclamation and Simcoe Patent, the court issued a case conference endorsement setting the process for forthcoming intervention motions.

The court declined to make case conferences public, but directed broader notice to affected Haudenosaunee communities and supported creation of a website containing publicly filed materials.

The court rejected, at this stage, informal in situ proceedings to gather process submissions or appointment of an amicus curiae, while indicating the intervention motions should be heard in person on the lands at issue if feasible, failing which in Brantford.

A timetable was fixed to move the intervention motions forward efficiently while allowing additional interested groups time to participate.

The Haudenosaunee Development Institute (HDI) brought a motion to be added as a party and appointed as a representative of the Haudenosaunee Confederacy in an action commenced by the Six Nations of the Grand River Band of Indians against Canada and Ontario.

Following case conferences, the parties and HDI consented to a timetable for the motion and terms for providing notice to potentially interested non-parties.

The court issued an order on consent setting out the timetable and the specific notice requirements.

Ontario brought a motion to quash an application by the Thessalon First Nation regarding the size of its reserve under the Robinson-Huron Treaty of 1850.

Ontario argued the complex historical and treaty issues required a trial rather than an application.

The court agreed that the matter required a proper evidentiary foundation and ordered the application converted to an action under Rule 38.10(1)(b), with a staged litigation process to follow.

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 applicant, facing historical sexual assault charges, brought a Rowbotham application for a stay of proceedings pending the provision of government-funded counsel.

Legal aid had been denied due to financial ineligibility.

The Crown conceded the applicant's right to a fair trial would be compromised without counsel but argued he had failed to prioritize saving funds for his defence.

The court reviewed the applicant's financial history, including the sale of his home and repayment of a significant loan to his son, and found his expenditures were not extravagant or a deliberate attempt to divest assets.

The court concluded the applicant established indigence and granted the stay.