Kaitlyn Lewis

In a constitutional compliance review arising from Robinson-Superior Treaty augmentation litigation, the moving parties challenged both the Crown's engagement process and the compensation amount set after negotiations failed.

The court held that although aspects of engagement, including late disclosure of reliance on per-capita benchmarking against a related treaty settlement, caused serious relational harm, the reviewing role required deference to a range of honourable discretionary outcomes.

Applying a sui generis review framework grounded in honour of the Crown and reconciliatory justice, the court concluded the Crown's ultimate compensation determination of $3.6 billion plus agreed costs was justified in the legal and factual context.

The court therefore declined to intervene in the compensation decision while also addressing allocation issues between federal and provincial Crown responsibility in the reasons.

The plaintiffs, Whitesand First Nation and a holding company, sought to maintain a Mareva injunction freezing assets of the defendants up to $17.55 million CDN.

The defendants had received grant funds from the plaintiffs to secure financing for a biomass power plant project but failed to obtain financing by the contractual deadline.

The defendants moved to set aside the Mareva injunction, arguing insufficient disclosure on the ex parte motion, and sought security for costs and a stay pending alternative dispute resolution.

The court found the plaintiffs made full and fair disclosure, met the test for a Mareva injunction, and dismissed all of the defendants' motions.

The court found the underlying agreement was null and void as the defendants failed to secure financing by the deadline, and therefore the ADR provisions no longer bound the parties.

The parties have been embroiled in complex family and civil litigation since their separation in 2014.

Following a final judgment in the family law proceeding awarding the applicant over $1.5 million, the court addressed several outstanding issues through case management.

The court dismissed the applicant's motion under Rule 59.06 to reconsider a previous order regarding bailiff fees.

Applying the doctrines of issue estoppel and abuse of process, the court dismissed the respondent's remaining civil claims against the applicant and her former counsel.

The court also found that the respondent's mother, who had purchased some of the respondent's actions from his trustee in bankruptcy and held legal title to a property beneficially owned by the respondent, was bound by the court's previous factual findings and dismissed her claims.

The court ordered that if the respondent failed to pay the judgment within 45 days, the property would be seized and sold.

Finally, the court held it had jurisdiction under Rule 1(8) of the Family Law Rules to enforce outstanding costs orders made by the Court of Appeal.

Ontario appealed from the Court of Appeal's decision concerning the Robinson Treaties of 1850, which contained an Augmentation Clause providing for periodic increases to annual payments to the Anishinaabe of Lake Huron and Lake Superior contingent on economic conditions.

The annuities had been frozen at $4 per person since 1875.

The Supreme Court of Canada held that treaty interpretation is reviewable on a correctness standard, and adopted the fourth interpretation of the Augmentation Clause: the annuity is a single payment to the 'Chiefs and their Tribes', with mandatory increases to $4 per person where economic conditions permit, and discretionary increases beyond $4.

The Crown's discretion is not unfettered; it must be exercised diligently, honourably, liberally, and justly, consistently with the honour of the Crown.

No specific fiduciary duties arose in respect of the Augmentation Clause, but the duty of diligent implementation did.

The breach of treaty claims were not statute-barred.

The appeals were allowed in part, cross-appeals dismissed, and a declaration issued directing the Crown to engage in time-bound negotiations with the Superior plaintiffs regarding compensation for past breaches.

This costs endorsement addresses the failure of the Respondent, Stewart Wilson, to pay outstanding costs awards to the Applicant, Sara Fatahi-Ghandehari.

The court clarified the specific amounts owing from previous orders, including interest, and directed Mr. Wilson to pay a total of $80,377.22.

The court also ruled that payments should be made to the Applicant's counsel in trust, rather than directly to the Applicant, due to the contentious nature of the case.

The court declined to enforce costs awards from the Court of Appeal, stating it lacked jurisdiction to do so.

No costs were awarded for the submissions themselves due to both parties' non-compliance with court directions.

Batchewana First Nation sought to be joined as a necessary party plaintiff or, alternatively, for leave to intervene as an added party plaintiff in the Robinson Superior Treaty action, which concerns claims for augmented annuities.

The motion was dismissed.

The court found that Batchewana, a beneficiary of the Robinson Huron Treaty, was not a necessary party to the Superior action, as its claim for augmented annuities based on "just claims" to lands within the Superior Territory was inconsistent with its prior position in the Huron action and did not directly relate to the Superior Treaty's interpretation or compensation.

The court also found that Batchewana did not meet the criteria for intervention and that its proposed intervention would cause undue delay and prejudice to the complex, multi-stage litigation.

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 Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.

The applicant First Nations applied to register an arbitration award and for a declaration voiding releases and indemnities in their Treaty Land Entitlement Agreements pursuant to the Manitoba Framework Agreement (MFA).

An adjudicator previously found that Canada committed an event of default by halting the reserve creation process to consult with the Métis without first amending the MFA.

Canada acknowledged the default but argued the Court should exercise its discretion to decline the declaration.

The Federal Court directed registration of the award and issued the declaration, holding that Canada's unilateral change to the MFA process constituted a significant breach, and that refusing the remedy bargained for would be contrary to contractual justice and the honour of the Crown.

Following Stage Two of a complex treaty rights trial, the plaintiffs sought costs against Ontario.

Ontario disputed the quantum and the partial indemnity rate, arguing the plaintiffs expended an unreasonable amount of time compared to the defendants.

The court found the plaintiffs' time expenditure was reasonable given the complexity of the issues, including Crown immunity and limitations, and the risks involved.

The court awarded costs to the plaintiffs on a partial indemnity basis at a rate of 65%, taking into account an offer to settle made by the Superior plaintiffs and the unique nature of the Anishinaabek-Crown treaty relationship.

The plaintiffs, beneficiaries of the Robinson Huron and Robinson Superior Treaties, brought a motion for partial summary judgment in Stage Two of their action against the federal and provincial Crowns.

They sought declarations that their claims for breach of the treaties' annuity augmentation promises were not barred by Ontario's limitations legislation or the doctrine of Crown immunity.

The Superior Court of Justice granted partial summary judgment on these issues, finding that treaties are not contracts or specialties subject to the Limitations Act, 1990, and that equitable claims for breach of fiduciary duty could historically be pursued by petition of right, thus falling outside Crown immunity under the Proceedings Against the Crown Act.

The court declined to grant summary judgment on the issues of joint and several liability and whether Canada should act as paymaster, deferring those matters to the Stage Three trial.

The Applicants, representing the Lake St Martin First Nation, sought an interlocutory injunction to stay a decision terminating Red Cross evacuee benefits for flood evacuees pending a judicial review.

The Court characterized the injunction as prohibitory because it sought to maintain the status quo of receiving benefits.

The Court found there was a serious issue to be tried but concluded the Applicants failed to provide clear and non-speculative evidence of irreparable harm, specifically that evacuees would be rendered homeless due to a lack of available housing on the reserve.

The motion for an interlocutory injunction was dismissed.

Ontario brought a motion to reopen Stage One of the trial to admit newly discovered evidence, specifically the Fort William Jesuit Mission Diary and a September 30, 1850 entry, along with expert opinion evidence.

The court dismissed the motion, finding that the evidence would not probably have changed the result of the trial and could have been discovered with reasonable diligence.

The court also ruled that the expert opinion evidence was inadmissible on the motion as it was not necessary and its prejudicial effect outweighed its probative value.

The Anishinaabe beneficiaries of the Robinson Huron and Robinson Superior Treaties of 1850 brought actions seeking declarations regarding the interpretation of the annuity augmentation clause in the Treaties.

The Treaties provided for a perpetual annuity that the Crown promised to increase if the ceded territory produced an amount enabling the Crown to do so without incurring loss, provided the amount paid to each individual did not exceed £1 ($4) per year, or such further sum as Her Majesty may be graciously pleased to order.

The Court held that the Crown has a mandatory obligation to increase the collective annuities when economic circumstances warrant, and that the $4 cap applies only to individual distributions, not the collective entitlement.

The Court also found that the Crown owes an ad hoc fiduciary duty to the beneficiaries to engage in the process of determining whether the economic circumstances warrant an increase.

Following the dismissal of the mother's urgent motion regarding the children's school attendance, the successful father sought costs of $4,405.70.

The mother argued each party should bear their own costs or that the father's claim should be reduced.

Both parties had served offers to settle under Rule 18.

The court found the father was entitled to costs and that his lawyer's hourly rates were reasonable.

Considering Family Law Rules 18 and 24, the court awarded the father costs of $3,500 inclusive of disbursements and HST.