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.

Following the dismissal of the plaintiff's defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the defendant sought costs on a full indemnity basis.

The court found that full indemnity was not appropriate because the action was not a SLAPP suit, and instead awarded costs on a partial indemnity scale.

Noting that both parties engaged in an unnecessary 'deep dive' into the evidence, the court fixed the costs at $130,000 all-inclusive, payable in two installments.

The plaintiff, former interim Commissioner of the OPP, brought a defamation action against the Premier of Ontario over public statements alleging the plaintiff breached the Police Services Act.

The defendant moved to dismiss the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The court granted the motion, finding that the defendant's expression related to a matter of public interest, the plaintiff could not show that the defence of fair comment had no real prospect of success, and the public interest in protecting the expression outweighed the public interest in permitting the action to continue.

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.

The accused, a police officer and father, pleaded guilty to assault for using a belt to discipline his child several years prior.

The court considered the significant pre-charge rehabilitation efforts by the parents, the traumatic impact of the subsequent child welfare intervention on the family, and the accused's exemplary character.

Finding that a conviction would have severe repercussions on his employment and that the public interest did not require a conviction, the court granted a joint submission for an absolute discharge.

The applicant brought a motion to expedite the hearing of his application, which sought a determination of the Ombudsman's jurisdiction to review the hiring process for the next OPP Commissioner.

The applicant argued urgency based on public concern and the potential compromise of the OPP's integrity if the new Commissioner assumed his role before the review.

The court dismissed the motion, finding no urgency that justified displacing other scheduled matters, noting that the Ombudsman's authority is limited to reporting and cannot prevent the appointment.

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 applicant sought judicial review of a decision by the Ontario Civilian Police Commission dismissing his appeal of a police discipline hearing outcome.

The Commission had ruled the appeal was filed out of time because, although faxed and received on the final day of the 30-day limit, a statutory deeming provision deemed faxed documents received the following day.

The Divisional Court allowed the application, holding that the standard of review was correctness and that the deeming provision created a rebuttable presumption, not an absolute one.

The provision is intended to protect the serving party, not to act as a trap to deprive them of a statutory right of appeal when actual receipt within the time limit is established.

Following the dismissal of the appellant's appeal regarding a Renewable Energy Approval for a wind turbine project, the successful respondent sought costs of $20,000.

The appellant argued no costs should be awarded as he was a public interest litigant and the appeal raised a novel issue.

The Divisional Court rejected these arguments, noting that private landowners challenging REAs are not public interest litigants and the appeal did not raise a novel issue.

The court fixed costs payable by the appellant to the respondent at $10,000.

The Appellant brought a motion for an extension of time to deliver a Notice of Appeal regarding a police discipline matter.

The Respondent officer argued the appeal was out of time under the Commission's Rules.

The Commission found that the Appellant had formed an intention to appeal within the relevant time period and that the justice of the case required an extension.

The motion was granted, allowing the Notice of Appeal to be filed nunc pro tunc.

The appellant sought leave to appeal the penalty decision of a Hearing Officer, which imposed a forfeiture of five days' pay on the respondent officer for discreditable conduct related to an assault during the G20 Summit.

The Commission granted leave to appeal, finding that the matters raised were of significant importance to the policing profession and the community at large, satisfying the third branch of the test for leave to appeal.

The Catholic entities appealed an order allowing residential school survivors to archive their Independent Assessment Process (IAP) documents with the National Centre for Truth and Reconciliation without the consent of alleged perpetrators.

Canada cross-appealed, arguing the IAP documents were government records subject to federal archiving and privacy legislation and could not be destroyed.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that only claimants have the right to decide whether to archive their documents.

The Court further held that the IAP documents are not government records because they are not under government control, and upheld the supervising judge's order to destroy the documents after a 15-year retention period to protect the claimants' privacy and confidentiality.