Julian N. Falconer

This decision addresses the costs of a "Hybrid Motion" brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and His Majesty the King in Right of Ontario.

The First Nation sought leave to amend its statement of claim to increase damages and clarify the "Headlands Issue," a ruling on a legal issue, and a refusals motion.

The motion had mixed success for all parties.

The First Nation requested substantial indemnity costs of over $200,000, while the defendants sought no costs or partial indemnity of $15,000-$20,000.

The court awarded the First Nation partial indemnity costs of $90,000, payable in the cause, finding no basis for substantial indemnity due to the procedural nature of the motion and the absence of punitive conduct.

The court also noted that principles of reconciliation were not argued on the motion and did not warrant extraordinary costs in this interlocutory context.

The defendants requested an extension of time to deliver their amended statements of defence or motion materials in response to the plaintiff's forthcoming amended statement of claim.

The plaintiff opposed the extension for the defence but agreed to an extension for costs submissions.

The court granted the defendants' request, extending all timelines to thirty days for all parties.

The plaintiff First Nation brought a hybrid motion seeking to determine an issue of law before trial, amend its statement of claim to increase damages to $2 billion and add particulars regarding the 'Headlands Issue', and compel answers to questions refused during discovery.

The defendants opposed the amendments, arguing they asserted a new, statute-barred cause of action, lacked a necessary party (Canada), and constituted an abuse of process.

The court dismissed the motion to determine an issue of law, finding the factual record was disputed.

The court granted leave to amend the statement of claim, holding it was not plain and obvious that the claims were statute-barred or doomed to fail without Canada, but required the plaintiff to deliver a technically compliant pleading.

The refusals motion was largely dismissed, with only four questions ordered to be answered.

The applicants, a First Nation and its former Chief, brought an application under Rule 14.05(3)(d) and (h) seeking declaratory relief regarding the interpretation of the Environmental Assessment Act and the Crown's Duty to Consult and Accommodate.

The application arose in the context of the proposed Marten Falls Community Access Road in the Ring of Fire region.

The Superior Court of Justice dismissed the application, finding it lacked jurisdiction to rewrite legislation or provide a de facto reference on how the Crown should discharge its duty in the future without a live factual dispute.

The court held that the application did not raise a justiciable issue and was not properly brought under the Rules of Civil Procedure.

Namaygoosisagagun Ojibway Nation sought leave to intervene in the Robinson Superior Treaty action under Rule 13.01(1) of the Rules of Civil Procedure.

The plaintiffs and Gull Bay First Nation opposed the intervention, arguing that Namaygoosisagagun was not a recognized band and lacked a collective interest.

The Crown defendants consented with provisos to prevent litigation of Namaygoosisagagun's band status or s. 35 rights within this proceeding.

The court granted leave to intervene, finding that Namaygoosisagagun had a contingent collective interest that met the low threshold for intervention, but imposed strict conditions prohibiting them from seeking to prove or determine issues related to their band status, s. 35 rights, or beneficiary status under the Treaty, and from making submissions conflicting with the plaintiffs' position on distribution.

The proposed intervenor, Shoal Lake #40 First Nation, brought a motion for leave to intervene as an added party or friend of the court in an action for damages brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and the Province of Ontario.

The underlying action sought compensation for the taking of water from Shoal Lake pursuant to a 1913 Order in Council.

The court dismissed the motion, finding that the proposed intervenor had no direct interest in the plaintiff's specific claim for damages, that its participation would cause delay, and that it was free to commence its own action for compensation.

The appellant, R.W. (Brad) Blair, appealed the dismissal of his defamation action against Premier Doug Ford, which was dismissed under an anti-SLAPP motion (s. 137.1 of the Courts of Justice Act).

Ford cross-appealed the costs award.

The Court of Appeal dismissed Blair's appeal, upholding the dismissal of the defamation action, and allowed Ford's cross-appeal in part regarding the timing of costs payment, making the full award immediately payable.

The court also quashed appeals from preliminary interlocutory orders due to lack of jurisdiction.

The Court of Appeal for Ontario partially allowed an appeal by the family of a deceased First Nations child, Brody Meekis, who died of strep throat following an allegedly flawed coronial investigation.

The family's civil claim, which included allegations of misfeasance in public office, negligent supervision, and Charter s. 15 discrimination, had been entirely struck by the motion judge.

The Court of Appeal reinstated the misfeasance in public office and Charter claims, finding that the motion judge erred in concluding they had no reasonable prospect of success.

The court clarified that discriminatory conduct, even within discretionary powers, can constitute unlawful action for misfeasance, and that adverse impact discrimination under s. 15 of the Charter can arise from the application of seemingly neutral laws that disproportionately disadvantage protected groups.

The claim for negligent supervision remained struck.

The plaintiff First Nation sued the City of Winnipeg for compensation for injurious affection caused by Winnipeg's water-taking from Shoal Lake, and sued the Province of Ontario for breach of fiduciary duty for failing to protect the plaintiff's interests and ensure compensation.

Ontario moved to strike the breach of fiduciary duty claims under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The court dismissed the motion, finding it was not plain and obvious that the plaintiff's claims based on sui generis and ad hoc fiduciary duties were doomed to fail, given the historical context, the 1913 Order in Council, and the Crown's potential discretionary control over the plaintiff's cognizable Aboriginal interests.

The appeal concerns the openness of a police services board hearing regarding an extension of time for service of a disciplinary notice.

Following an investigation by the Ontario Independent Police Review Director into allegations of police misconduct in the investigation of the death of an Indigenous man, a retired judge appointed as a substitute decision-maker ordered that the extension hearing be held in camera.

The Canadian Broadcasting Corporation and First Nation complainants sought judicial review, arguing that the hearing should be open pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms.

The Divisional Court upheld the in camera order, finding that the Dagenais/Mentuck test did not apply to administrative proceedings and that the statutory test under the Police Services Act was sufficient.

The Court of Appeal allowed the appeal, finding that while the Dagenais/Mentuck test does not apply to administrative proceedings, the Charter right to freedom of expression and freedom of the press recognized in Langenfeld applies to police services board meetings, and the presumption of openness under the Police Services Act must be considered in light of this Charter protection.

This endorsement addresses two motions to intervene in a land claim action brought by the Cree Nation of Eeyou Istchee against the Crown.

The Moose Cree First Nation sought to intervene as a necessary party, claiming exclusive Aboriginal title to a portion of the disputed lands.

The Nishnawbe Aski Nation (NAN), a political territorial organization representing 49 First Nations, sought to intervene as an added party, asserting a general interest in the interpretation and application of Treaty #9.

The court granted the Moose Cree First Nation status as a necessary party without conditions under Rule 5.03, acknowledging its direct territorial claim.

The Nishnawbe Aski Nation was granted status as a friend of the court under Rule 13.02, with specific limitations on its participation, as it lacked a direct or immediate interest in the substance of the claim independent of its members.

The court emphasized the complexity of multi-lateral disputes between First Nations in the context of reconciliation.

The applicants sought certiorari quashing a summary conviction trial judge’s interlocutory order requiring them to personally attend their trial rather than appear only by counsel.

The underlying prosecution involved charges relating to possession and sale of unstamped cigarettes under federal and provincial tobacco legislation.

The applicants argued the trial judge fettered his discretion by relying on a local practice requiring accused persons to attend and that the order infringed Charter protections against arbitrary detention.

The Superior Court held that the trial judge exercised a broad discretion under s. 800(2) of the Criminal Code and considered both general and case‑specific factors.

No jurisdictional error was established and, in any event, the discretionary remedy of certiorari would not be granted.

Following earlier decisions concerning requests for directions in litigation arising from the Indian Residential Schools Settlement Agreement, the court had previously awarded costs payable by the Truth and Reconciliation Commission to Independent Counsel.

After that decision was released, Canada delivered additional submissions asserting it should not be liable for costs, and the Truth and Reconciliation Commission asserted a right to file further reply submissions.

The court held that the additional submissions were unnecessary and procedurally improper because the parties had already been given the opportunity to address costs.

The judge confirmed that the earlier costs decision would not be altered and refused to permit further reply submissions.

Following earlier reasons concerning Requests for Direction under the Indian Residential School Settlement Agreement regarding the treatment of Independent Assessment Process documents, the court addressed costs.

Independent counsel who represented the interests of claimants sought full or substantial indemnity costs against the Truth and Reconciliation Commission.

The court held that although the commission’s request for directions was reasonable and undertaken pursuant to its mandate, independent counsel had effectively acted as amicus curiae and provided helpful submissions on behalf of claimants.

Considering the partial success of the parties and the reasonableness of the amounts claimed, the court exercised its discretion to award reduced partial indemnity costs.

Requests for directions were brought regarding the disposition of documents generated in the Independent Assessment Process established under the Indian Residential Schools Settlement Agreement.

The moving parties sought guidance on whether the documents, which contained highly sensitive narratives of abuse and personal information, should be archived or destroyed.

The court held that the documents were confidential, subject to the implied undertaking and the law of breach of confidence, and were created for a private adjudicative process.

Interpreting the settlement agreement and exercising supervisory jurisdiction over the class action settlement, the court concluded the documents must ultimately be destroyed after a retention period.

During the retention period, claimants must be notified of their option to consent to the transfer of redacted records to the National Research Centre for Truth and Reconciliation.

This appeal and cross-appeal addressed whether Ontario’s SIU framework permits police officers involved in fatal incidents to consult counsel before completing duty notes.

The majority held the regulatory scheme does not permit consultation with counsel at the note-making stage, emphasizing transparency, public confidence, legislative history, and the duty to prepare independent, complete notes.

It rejected even limited pre-note legal consultation as inconsistent with the scheme’s objectives, while confirming officers may consult counsel after filing notes.

The cross-appeal was allowed, overturning the Court of Appeal’s allowance of basic legal advice prior to notes.

Dissenting reasons on cross-appeal would have preserved a narrow right to basic legal advice that excluded drafting assistance.

The United States of America sought the extradition of the respondent for the offence of child luring.

The perpetrator communicated with a 17-year-old female online and coerced her into engaging in sexual activity with her 13-year-old sister over a Skype video call.

The communications were traced to an IP address assigned to the respondent at the relevant time.

The court found that the IP subscriber information provided a sufficient foundation for a reliable inference that the respondent was the perpetrator, satisfying the test for committal under the Extradition Act.

The application for committal was granted.

The appellant filed a police misconduct complaint under the Police Services Act and commenced a parallel civil action for damages arising from the same arrest.

After the disciplinary hearing officer found the officers not guilty, the respondents successfully moved to strike the civil claims on the basis of issue estoppel.

The Supreme Court of Canada, in a 4-3 decision, allowed the appeal, holding that while no public policy rule should categorically exclude police disciplinary hearings from issue estoppel, the Court of Appeal erred in its discretionary analysis by failing to consider the significant differences in purpose, scope, and stakes between the two proceedings, the parties' reasonable expectations, and the unfairness of permitting the Chief of Police's designate's decision to exonerate the Chief from civil liability.