M. McPherson

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 Town of Fort Frances, as plaintiff by counterclaim, brought a motion to compel the First Nations, Canada, and Ontario to answer questions refused during cross-examinations on affidavits filed for an upcoming summary judgment motion.

The refused questions sought the defendants' legal positions on historical documents and the disclosure of a 2018 Settlement Agreement between the First Nations, Canada, and Ontario.

The court dismissed the motion, finding that the questions regarding historical documents were in the nature of discovery and beyond the proper scope of cross-examination on an affidavit.

The court also held that the 2018 Settlement Agreement was protected by settlement privilege and did not need to be disclosed, as it did not change the ongoing litigation landscape of the Town's counterclaim.

The court determined costs following a 20-day trial concerning the ownership of a two-chain strip of land adjacent to the Agency One Reserve.

The plaintiffs, a group of First Nations, were largely unsuccessful in their claim for a declaration of ownership but succeeded on a threshold res judicata issue.

The Corporation of the Town of Fort Frances, a defendant, sought partial indemnity costs from the plaintiffs.

The court rejected the plaintiffs' argument that they were public interest litigants and that costs should be waived or deferred, finding their claim had significant proprietary and financial interests.

While acknowledging the Crown's role in the historical uncertainty, the court found no compelling policy reason to relieve the plaintiffs of costs in relation to Fort Frances, which was not a Crown authority.

The court fixed costs for Fort Frances, reducing a specific expert disbursement.