Court File and Parties

2016 ONSC 699

Court File No.: DC-15-00001015-0000 and DC-15-00001016-0000 Date: 2016-01-28 Superior Court of Justice – Ontario (Divisional Court)

Re: File DC-15-00001015-0000

Michipicoten First Nation, Applicant (Respondent on the Motion)

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Minister of Natural Resources and Forestry, Nodin Kitagan Limited Partnership, Nodin Kitagan 2 Limited Partnership, by their respective general partners, Shongwish Nodin Kitagan GP Corp. and Shongwish Nodin Kitagan 2 GP Corp., and Batchewana First Nation, Respondents (Moving Parties)

And Re: File DC-15-00001016-0000

Michipicoten First Nation, Applicant (Respondent on the Motion)

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Director Environmental Approvals Branch (Ministry of the Environment and Climate Change), Nodin Kitagan Limited Partnership, Nodin Kitagan 2 Limited Partnership, by their respective general partners, Shongwish Nodin Kitagan GP Corp. and Shongwish Nodin Kitagan 2 GP Corp., and Batchewana First Nation, Respondents (Moving Parties)

Before: The Honourable Madam Justice Louise L. Gauthier

Counsel: Chantelle J. Bryson, counsel for the Applicant (Respondent on the Motion) Jacqueline Henry, counsel for the Respondents (Moving Parties) Minister of Natural Resources and Forestry, and for the Director, Environmental Approvals Branch (Ministry of the Environment and Climate Change) John Terry, counsel for the Respondents (Moving Parties) Nodin Kitagan Limited Partnership and Nodin Kitagan 2 Limited Partnership, by its General Partners Shongwish Nodin Kitagan Group Corporation and Shongwish Nodin Kitagan 2 Group Corporation William B. Henderson, counsel for the Respondent (Moving Party) Batchewana First Nation

Heard: January 26, 2016

Endorsement

[1] The Motion before me is brought by Nodin Kitagan Limited Partnership and Nodin Kitagan 2 Limited Partenership, by its General Partners Shongwish Nodin Kitagan Group Corporation and Shongwish Nodin Kitagan 2 Group Corporation, to adjourn the hearing of the Judicial Review Application brought by Michipicoten First Nation, set for the week of February 15, 2016, before the Divisional Court, to the week of October 11, 2016, or to an earlier date agreeable to all counsel (at which the Court in either Toronto or Sudbury has availability).

[2] I heard the motion as a single Judge of the Divisional Court on January 26, 2016.

[3] The grounds for the motion are set out in the Notice of Motion, and I will not reproduce them.

[4] The motion is supported by the other Respondents.

[5] Considerable material was filed by the moving parties. The Applicant (Respondent on the motion) responded to the voluminous motion materials with a one page letter to the court advising that it would not be filing a responding record, and would rely on the Application Record as filed in the within Divisional Court proceeding.

[6] The moving parties’ counsel’s submissions included a review of the procedural and substantive factors a court should consider in deciding whether to grant an adjournment. Those factors include:

(a) timeliness of the request;

(b) the reasons for being unable to proceed on the scheduled date; and

(c) the length of the requested adjournment.

[7] Dealing with the timeliness of the request, the Respondent took steps to address the need for an adjournment, within days of being advised that the Application was scheduled to be heard the week of February 15, 2016, by communicating with the Regional Senior Justice of the Northeast Region to request a case conference to discuss a timetable for the Application, and the February 15 hearing date.

[8] With regard to (b) above, the moving parties’ counsel is not available during the week of February 15, 2016. His availability and the availability of other responding counsel were not canvassed by the Applicant before the date was set. In addition, and as was pointed out by counsel for Batchewana First Nation, the steps required to enable a proper and complete response to the Application, including cross-examinations, obtaining and reviewing transcripts, and preparing facta, cannot, realistically, be completed before the mid-February date.

[9] Regarding (c) above, although the request was for an adjournment to October 2016, the moving party was prepared to agree to earlier dates in Toronto. The week of October 11, 2016, is the next week during which the Divisional Court sits in Sudbury. There is no date available in Sudbury between February and October 2016.

[10] I was also referred to the factors that weigh in favour of an adjournment, as set out in the Court of Apeal decision of Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484:

(a) The fact that the consequences of the hearing are serious;

(b) The fact that the party requesting the adjournment would be prejudiced if the request were denied; and

(c) The fact that the moving party is honestly seeking to exercise its right to counsel and has continually been represented by counsel.

[11] The consequences of a Divisional Court finding in favour of the Applicant are very significant: Shutting down the wind turbine project, requiring the Respondents to remediate the lands on which the project is located, with the concomitant financial consequences.

[12] The moving parties have indicated that, without an adjournment of the February 2016 date, they will be prejudiced in their ability to properly respond to the application because (a) their counsel of record is not available and therefore would not be present for the hearing, and (b) there is insufficient time (between delivery of the Application Record in November 2015, and the February 2016 hearing date) to properly and adequately prepare their response to the application. It is noteworthy that, although the Application Record was delivered in November, the Respondents were not made aware of the February 2016 date until December 7, 2015. It is also noteworthy that all counsel had initially been advised that the hearing would proceed in October 2016. This apparently resulted from an error made by a clerk in the Divisional Court office in Sudbury. The Applicant’s counsel indicated in her submissions that her law clerk was the one who had contact with the Sudbury office of the Divisional Court. I have no evidence to that effect.

[13] In any event, a proper response would involve cross-examinations of several affiants, and obtaining and reviewing transcripts, all of which would have to be done in advance of February 15, 2016. In addition, as I understand it, the Applicant’s counsel, herself, has and has had very limited availability, given her involvement in other matters.

[14] After I heard extensive submissions by counsel for the moving parties, counsel for the Applicant suggested a proposed timetable culminating in the hearing proceeding during the week of October 11, 2016; she further requested that I make an order that no further motions be permitted, including motions for adjournment and any motion for a change of venue.

[15] No compelling submissions were made which would support a denial of the request for adjournment.

[16] I am satisfied that it is reasonable and appropriate to grant the adjournment sought. The Applicant did not consult the Respondents about their availability in connection with the February 2016 date. Proceeding in February 2016 would deny the Respondents the opportunity to fairly make out their case.

[17] I will not impose the timetable suggested by the Applicant’s counsel. The Respondents were not afforded the opportunity of considering the appropriateness of the dates proposed.

ORDER TO GO:

[18] The February 2016 hearing date is vacated, and the Application is adjourned to be heard the week of October 11, 2016.

[19] If the parties are unable to agree on costs, the moving parties may make written submissions as to the costs within 30 days of today’s date. The Applicant shall have 20 days after receipt of the moving parties’ submissions to respond. All such written submissions shall be forwarded to me at my chambers at 155 Elm Street, Sudbury, Ontario, P3C 1T9, and the submissions shall not exceed four pages (double spaced) in length. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

The Honourable Madam Justice Louise L. Gauthier

Date: January 28, 2016