Michael R. Stephenson

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.

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.

The plaintiffs, members of the Grassy Narrows First Nation, brought an action alleging that Ontario's issuance of a forestry licence in the Keewatin portion of Treaty 3 lands violated their treaty harvesting rights.

The trial judge found that Ontario could not take up lands in the Keewatin territory without Canada's approval.

The Court of Appeal allowed the appeal, holding that upon the transfer of beneficial ownership of the Keewatin lands to Ontario in 1912 pursuant to s. 109 of the Constitution Act, 1867, Ontario acquired the right to take up lands under the treaty without federal approval.

The Court found that the trial judge erred in interpreting the treaty as requiring a two-step authorization process and in finding that s. 91(24) gave Canada a continuing supervisory role over provincial land use.

The court was asked for assistance in settling the terms of an order granting intervener status, specifically regarding costs.

The respondents submitted a draft order, agreed to by most parties, stating that interveners would not be entitled to seek costs or be liable for costs of the appeals.

As no other parties proposed different terms, the court approved the draft order in accordance with its usual practice.

Several First Nations and a mining company brought motions to intervene in an appeal concerning Aboriginal harvesting rights under Treaty 3 and Ontario's jurisdiction to grant logging permits.

The court granted friend of the court status to Grand Council of Treaty 3, Lac Seul First Nation, Big Grassy First Nation, and Treaty 6 First Nations, finding their perspectives would assist the court.

The court granted party status to Goldcorp Inc. and Wabauskang First Nation, finding they had a direct interest in the subject matter and could be adversely affected by the broad declaration under appeal.

The interveners were ordered to accept the record as it is and not expand the issues.

A case management conference was held to determine the procedure for hearing motions for leave to intervene in the appeals.

The court ordered that all interested persons must bring a motion in accordance with Rule 13 of the Rules of Civil Procedure, and set a timetable for the service and filing of motion records and factums, with the motions to be heard on June 28, 2012.

The appellant appealed a decision finding it liable for tax under s. 189(1)(e) of the Mining Act.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the appellant's acquisition of mineral rights fell within the statutory definition of 'mining rights'.

The court held that the industry distinction between surface rights and surface access rights does not apply for the purpose of tax liability under the Act.

The Attorney General of Canada sought leave to appeal an interlocutory order that dismissed its motion to strike portions of the plaintiffs' Statement of Claim regarding post-confederation annuity payments under a rectified treaty.

The motion judge had refused to strike the pleadings, reasoning that complex constitutional cases involving treaty interpretation should not be decided at the pleadings stage without a complete factual record.

The court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision to allow the action to proceed to trial.

Following a successful appeal by Canadian Waste Services Inc. and the Minister of the Environment, the Court of Appeal determined the issue of costs.

The Court exercised its discretion to order no costs for either the application in the Divisional Court or the appeal.

The Court reasoned that the case involved a novel and difficult issue of statutory interpretation regarding the 1996 amendments to the Environmental Assessment Act, raised issues of public importance, and featured a significant disparity in the financial resources of the parties.

Canadian Waste Services Inc. sought to expand a landfill site and obtained the Minister of the Environment's approval for the terms of reference for an environmental assessment.

The respondents successfully applied for judicial review, with the Divisional Court quashing the Minister's decision on the basis that the terms of reference did not include all generic elements required by the Environmental Assessment Act.

On appeal, the Court of Appeal held that the Minister's decision to approve tailored terms of reference was entitled to deference and was reasonable.

The appeal was allowed and the Minister's decision was reinstated.