Kevin Liam Russell Hille

This decision concerns a dispute over the legal and beneficial ownership of lands surrendered by several First Nations to Canada in 1908, known as the Unsold Surrendered Lands (USL), including the Point Park and associated roads in Fort Frances, Ontario.

The Town of Fort Frances sought summary judgment declaring it the owner of these lands or, alternatively, a public trust or entitlement to damages.

The First Nations, Canada, and Ontario opposed, seeking dismissal of the Town’s claims.

The court found that the Agency One Reserve was a validly created reserve, that the 1908 Order-in-Council (OIC) did not convey the USL to the Town by fee simple or public trust, and that the Town’s claims to the lands, roads, and damages were without merit.

The Town’s motion was dismissed, and the counterclaim struck.

The Court of Appeal for Ontario issued a costs endorsement following an appeal from a Divisional Court order.

In the exercise of its discretion, the court ordered that all parties bear their own costs of the appeal.

The appellants, a group of First Nations, appealed a Divisional Court decision that dismissed their application for judicial review.

They argued that Ontario's revocation of a forest management regulation (MNR-75) and amendments to the Environmental Assessment Act (Bill 197) breached the Crown's duty to consult and the honour of the Crown.

The Court of Appeal upheld the Divisional Court's decision, finding that the duty to consult does not apply to the law-making process (Bill 197) and that the revocation of MNR-75 did not give rise to a duty to consult as the alleged adverse effects were speculative and equivalent protections remained in force through other legally binding instruments.

The moving defendants sought leave under Rule 26.01 of the Rules of Civil Procedure to amend their joint statement of defence, counterclaim, crossclaim, and third party claim by delivering separate pleadings and adding additional allegations and claims.

The court reaffirmed that leave to amend should generally be granted unless non-compensable prejudice would result, but scrutinized the proposed amendments for improper pleadings, including arguments, evidence, irrelevant matters, and procedural history that should instead be addressed through motions.

Numerous proposed paragraphs were rejected for pleading evidence, lacking particularity, or raising issues relating to pre-trial disclosure.

Leave was granted in part for both moving parties to amend their pleadings and third party claims, subject to extensive limitations and corrections.

Costs of $3,000 were awarded to one set of responding defendants for part of the motion.

Following dismissal of jurisdiction motions brought by several foreign tobacco companies in a health care cost recovery action, the court determined costs.

The unsuccessful moving parties argued that earlier evidentiary and procedural steps constituted separate proceedings and sought substantial costs for those steps.

The court rejected that characterization, holding that all preliminary steps formed part of the overall jurisdiction challenge and that distributive costs awards based on success on individual steps should be avoided.

Applying Rule 57.01 factors and general costs principles, the court found the responding party was the successful party and entitled to costs, subject to reductions reflecting partial success on certain evidentiary and motion issues.

The court awarded partial indemnity costs of $425,000 plus disbursements, allocating liability between two groups of moving defendants.