Katherine Hensel

The applicants, two Indigenous representative groups, brought motions for a stay of a Minister's Directive and Designations that authorized three children's aid societies to provide child and family services in Thunder Bay.

The applicants argued the Directive interfered with their inherent right to self-government and was issued without proper consultation or statutory compliance.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicants failed to establish irreparable harm or that the balance of convenience favoured a stay.

The motions for a stay were dismissed.

The applicants, Dilico Anishinabek Family Care and Fort William First Nation, brought a motion for a stay of a Minister's Directive and Designation pending their applications for judicial review.

The Directive designated Tikinagan Child and Family Services to provide child and family services to certain Indigenous children in Thunder Bay.

The court applied the three-part test for a stay.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm or that the balance of convenience favoured granting the stay.

The motion was dismissed, with written reasons to follow.

The court heard multiple motions to strike claims against Her Majesty the Queen in Right of Ontario (HMQ), various Children's Aid Societies (CAS), and an expert witness (Julia Klein).

These claims arose from the use of unreliable hair follicle drug testing by the Motherisk Drug Testing Laboratory in child welfare investigations and proceedings, leading to children's apprehension and, in some cases, Crown wardship.

The plaintiffs alleged negligence, breach of Charter rights, bad faith, and other torts against the defendants.

The court granted all motions to strike, finding that HMQ and the CAS did not owe a private law duty of care to the parents or children in their supervisory or investigative roles, as their paramount duty was to the child's best interests.

Many claims were also deemed impermissible collateral attacks on existing court orders.

The claim against the expert witness, Julia Klein, was struck due to witness immunity and a lack of causal connection between her testimony and the alleged damages.

A claimant, an Indian Residential School survivor, sought to reopen their Independent Assessment Process (IAP) claim under the Indian Residential Schools Settlement Agreement (IRSSA) to remedy an alleged miscarriage of justice due to the government's breach of disclosure obligations.

The claimant contended that previously undisclosed police documents and revised school narratives would have impacted the assessment of their claims regarding specific abuses and an alleged punitive device.

The court dismissed the Request for Direction, finding that the "Schachter threshold" for judicial recourse was not met, as the claimant had not exhausted internal review mechanisms and the new evidence would not meet the fresh evidence test.

The court emphasized the finality of the IAP process and the claimant's informed decision to accept the initial award.

Costs were awarded to the claimant's counsel despite the dismissal of the RFD.

The applicant brought a family law application seeking custody, child support, and spousal support.

The respondent, a Haudenosaunee person and member of the Six Nations, filed an Amended Answer challenging the court's jurisdiction and the applicability of Ontario family law legislation, asserting an aboriginal right under s. 35(1) of the Constitution Act, 1982 to have the dispute resolved under Haudenosaunee laws and processes.

The applicant moved to strike the Amended Answer and dismiss the constitutional case summarily.

The court held that while conflict of laws principles apply to the jurisdiction analysis, they must be modified to account for aboriginal rights claims.

However, the court struck the Amended Answer in its entirety, finding that it failed to plead the necessary material facts, that the respondent lacked standing to advance a collective right of self-government individually, and that the broad claim of immunity from Ontario family law was not cognizable under s. 35(1) jurisprudence.

The court declared it had jurisdiction to hear the family law issues and dismissed the respondent's motion for a stay of proceedings.

This is a second appeal in a child protection matter involving a 10-year-old child made a Crown ward with no access for adoption purposes.

The biological parents appealed the no access order.

The first appeal judge, while finding no error with the trial judge's determination, nonetheless ordered access followed by an openness hearing, made findings of ineffective assistance of counsel against trial counsel, and ordered personal costs against her.

The Court of Appeal allowed the Society's appeal, restored the trial judge's no access order, dismissed the parents' cross-appeal seeking declarations of Charter violations and miscarriage of justice, and allowed trial counsel's cross-appeal on the ineffective assistance findings and costs order.

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.

This appeal addressed systemic failures in the child welfare system, including trial counsel incompetence, judicial bias, and inordinate procedural delay, which led to a child remaining in legal limbo for over four years.

The court found the parents' trial counsel incompetent and the trial process unfair.

While the Crown wardship order was not challenged on appeal, the court overturned the "no access" order, replacing it with a contact order for the parents and the child.

It also established a "Pathway Plan" for an Openness Order Hearing, acknowledging a legislative conflict between a child's right to contact with parents and the requirement that such contact not impair adoption opportunities.

The applicant sought an interim order for the recovery of personal property (tobacco kilns and bins) from the respondent, his former business partner's spouse, located on a Six Nations Reserve.

The court dismissed the motion, finding that the applicant failed to establish "substantial grounds" for ownership or unlawful detention of the property, and that granting the order would effectively nullify the respondent's potential rights before trial, contrary to the mandatory security provisions of Rule 44.04(1).

The appellants appealed a decision ordering Crown wardship with access to the maternal grandmother for two Aboriginal children.

The children had been apprehended and placed with a non-Aboriginal foster family for several years.

The appellants argued the trial judge failed to give sufficient weight to the children's First Nations status.

The Court of Appeal dismissed the appeal, finding that while Aboriginal heritage is an important consideration under the Child and Family Services Act, it does not override the paramount consideration of the children's best interests.

The court upheld the finding that removing the children from their established foster family would be damaging, and that their cultural connection could be maintained through access visits.

In an application seeking an interlocutory and permanent injunction relating to alleged municipal by-law and building code violations, the respondents brought a motion to add the Province of Ontario as a party.

The respondents argued that issues concerning land ownership, asserted Indigenous treaty rights, duty to consult, and the applicability of municipal and provincial laws required Ontario’s participation.

The province opposed the motion, arguing it was unnecessary to resolve the injunction request.

The court held that the respondents had raised issues directly affecting the province and that Ontario, as the landowner, had a significant interest in the matter.

The motion to add Ontario as a party was granted.

The parents and two First Nations appealed a trial decision making two First Nations children Crown wards with no access for the purpose of adoption.

The appellants argued the trial judge made palpable and overriding errors of fact, erred in finding Crown wardship was the least restrictive alternative, and that the mother received ineffective assistance of counsel.

The appeal court dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the evidence, which included significant parenting deficits, developmental delays that improved in care, and the need for stability.

The court also admitted fresh evidence but concluded it did not warrant a new trial or a change to the order, affirming that Crown wardship with no access remained in the children's best interests.

In this child protection proceeding under the Child and Family Services Act, the court determined that two Native children were in need of protection and made orders regarding their placement.

The Children's Aid Society sought Crown wardship with placement in a non-Native foster family (the S.D. family), while the maternal grandmother and the Algonquin Nation sought placement with the grandmother with CAS supervision.

The court found that the children had been in need of protection due to the grandmother's inability to protect them from unsupervised contact with their mother, who had a significant criminal history, and the grandmother's ongoing struggles with alcohol and dishonesty with authorities.

Despite the importance of cultural connection for Native children, the court prioritized the children's established attachment to their foster family, their expressed wishes to remain in that home, and their emotional security and stability.

The court ordered Crown wardship with the children remaining in the S.D. family's care, with reasonable access for the grandmother twice per year while the foster family resided in the United Kingdom.

Appeal in child protection proceedings where a First Nation community and a family member challenged a Crown wardship disposition.

The appellants argued the trial judge erred by refusing a short adjournment when approximately 1500 pages of disclosure were provided on the first day of trial, preventing meaningful review and the ability to obtain counsel.

They also argued the trial judge failed to give adequate consideration to the children’s Indigenous identity, culture, and heritage in determining their best interests, particularly where the foster placement had relocated the children to the United Kingdom.

The court held that denying the adjournment constituted a denial of natural justice and that insufficient weight had been given to cultural identity considerations.

The original judgment was set aside and a new trial ordered before a different judge.

The appellant appealed her custodial sentence.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by failing to obtain Gladue information for the Aboriginal offender and by incorrectly characterizing the offence as a breach of trust.

The court admitted fresh evidence regarding the impact of residential schools and pervasive oxycontin use in the appellant's community.

The sentence of imprisonment was reduced to time served, with the 18-month probation order remaining in place.

The Chippewas of Mnjikaning First Nation (MFN) appealed the dismissal of its action claiming a 35% share of net profits from Casino Rama.

MFN argued that its selection as the host site for the casino created a binding contract with Ontario based on its submitted proposal.

The Court of Appeal upheld the trial judge's findings that the site selection process did not constitute a binding tender or RFP process for revenue sharing, and that revenue sharing was intended to be negotiated separately among all First Nations.

The Court also rejected MFN's arguments regarding breach of fiduciary duty, misapprehension of the Aboriginal context, and reasonable apprehension of bias arising from the trial judge's interventions.

Following a request for clarification and further submissions respecting costs in relation to an initial disciplinary hearing, the Court of Appeal ordered that the costs for that hearing be reserved to the Tribunal presiding over the re-hearing.

The parties made written submissions regarding costs following an appeal.

The Court of Appeal determined that costs should be awarded on a partial indemnity scale rather than an elevated scale.

The court awarded the respondent a total of $61,000 in costs, which included amounts for proceedings before the professional discipline appeal panel, the lower court stay motion, the lower court appeal, and the appellate proceedings, after setting off a previous costs award in favour of the appellant.

The Law Society and the respondent lawyer brought separate appeals from a Divisional Court decision that set aside a Law Society Appeal Panel's order upholding a finding of professional misconduct and disbarment.

The Divisional Court had remitted the matter to a new hearing panel due to breaches of natural justice.

The Court of Appeal dismissed both appeals.

It held that the Hearing Panel breached natural justice by refusing a brief adjournment to allow the lawyer to be represented by counsel, and by proceeding immediately to the penalty phase without adequate notice.

The Court also upheld the Divisional Court's refusal to stay the proceedings for undue delay, binding the new hearing panel to the original findings on delay up to the start of the first hearing.

The appellant lawyer appealed a decision of the Law Society Appeal Panel upholding a Hearing Panel's finding of professional misconduct and order for disbarment.

The appellant argued that the proceedings should have been stayed for delay, and that the Hearing Panel breached natural justice by refusing an adjournment and proceeding to the penalty phase without adequate notice.

The Divisional Court held that the decision not to stay for delay was reasonable.

However, the court found that the Hearing Panel breached natural justice by refusing a brief adjournment when the appellant's counsel had a scheduling conflict, forcing the appellant to proceed unrepresented.

The court also found a clear breach of natural justice in proceeding to the penalty phase with less than 24 hours' notice.

The findings of misconduct and penalty were set aside, and a new hearing was ordered.