Court File and Parties

Court File No.: CV-20-00646731 Date: 2021-03-05 Superior Court of Justice - Ontario

Re: Grand Chief Wabiska Mukwa, And: Farm Credit Canada et al.

Before: J.T. Akbarali J.

Counsel: Grand Chief Wabiska Mukwa, Kathy Manary, Brent Manary and Cassandra Manary, in person T. Lipton for the Ontario defendants B. Bly, for the Canada defendants M. Cassone, for Farm Credit Corporation M. Kestenberg for the defendants R.A. Biggart and J.R. Hart

Heard: March 1, 2021

Endorsement

Overview

[1] The plaintiffs have launched an action claiming wide-ranging and only loosely connected related relief against various defendants. These include the provincial government and certain of its agents and employees (the “Ontario defendants”), the federal government and certain of its agents and employees (the “Canada defendants”), Mr. Biggart and Mr. Hart, who were counsel for the Town of Georgina in another proceeding in respect of which the plaintiffs claim counsel committed actionable wrongs, and Farm Credit Corporation (“FCC”), which provided mortgages to the Manary family, which the Manary family now seeks to avoid, raising land claims and other issues. FCC has counterclaimed for enforcement of the mortgages.

[2] There were four matters returnable before me at this hearing: (i) a request under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, made by the Ontario defendants; (ii) a r. 2.1 request made by the Canada defendants; (iii) a r. 21 motion brought by Mr. Biggart and Mr. Hart on the basis that the claim discloses no reasonable cause of action against them; and (iv) a motion for summary judgment brought by FCC dismissing the claims against it and allowing its counter-claim against the Manary plaintiffs/defendants by counterclaim, for payment and interest arising out of the mortgages.

Procedural Issues

[3] At this juncture, I note that it is odd to hear a request made under r. 2.1 orally. The court would not normally do so, but an oral hearing was directed by another judge of this court. Subsequently, yet another judge, Myers J., in a subsequent endorsement, confirmed the r. 2.1 request would proceed without evidence (Mukwa v. Farm Credit Canada, 2021 ONSC 1156). He also dismissed the plaintiffs’ request for an adjournment of this hearing.

[4] In his endorsement, Myers J. noted that it appeared to him that the plaintiffs may have adopted the illegitimate litigation tactics commonly referred to as “Organized Pseudolegal Commercial Arguments”, as described in Meads v. Meads, 2012 ABQB 571. In the same endorsement, Myers J. declined to allow the plaintiffs to schedule a motion for certain relief, including: an order compelling the Crown to consult during the adjournment period that the plaintiffs sought, an order recognizing the court is on unceded land, and is under UNDRIP, and an injunction preventing the government from appointing a new Governor General. Justice Myers found that the plaintiffs’ motions may be frivolous, vexatious, or an abuse of process on their face.

[5] At the outset of the hearing, the plaintiffs sought an adjournment before me, arguing that they needed to proceed with the motion for relief, which Myers J. had refused to allow, and indicating that they wished to add more motions, including for a full accounting from FCC, and a motion seeking that Myers J. recuse himself.

[6] The plaintiffs then confirmed that they had filed two exhibit books and five factums in hard copy with the court on February 22, 2021, for use in the hearing before me. They claimed they had been unable to upload the materials to caselines, and so, despite the direction to use caselines, they filed only a physical copy of the materials. There is no indication they sought assistance in uploading their materials to caselines. They argued that the fact that I did not have their materials indicated the need for an adjournment.

[7] The plaintiffs also argued that, due to the earlier order granting them an oral hearing, they were entitled to adduce evidence orally. As I have noted, the reference to the oral hearing in Myers J.’s endorsement relates only to the unusual situation that the r. 2.1 requests were being argued orally, and furthermore, the endorsement makes clear that no evidence is to be adduced. The plaintiffs were only given the opportunity to make submissions about the applicability of r. 2.1 orally.

[8] I took a brief recess during which I confirmed hard copy materials had been filed with the court. Due to the ongoing COVID-19 pandemic, those materials were not available to me.

[9] When we resumed, I noted that the r. 2.1 requests did not require evidence, and a r. 21 motion proceeds on the basis of the pleading. I asked the plaintiffs to confirm that the only evidence they sought to adduce related to the summary judgment motion, and I asked them to confirm whether the exhibits they sought to file were under the cover of an affidavit. They did not answer me, except to indicate that they sought an adjournment to consult with their Tribal Council before answering my question about whether the documents in the exhibit book were proven by way of affidavit.

[10] At that point, counsel for Ontario shared his screen on the Zoom hearing so that I could view the indexes and beginning of each volume of the exhibit book. This allowed me to confirm that the plaintiffs had filed no affidavit. Thus, the documents in the exhibit book are inadmissible unless another basis exists for their admissibility. None was argued.

[11] I then requested a copy of all the written argument briefs filed by the plaintiffs, which I received by email from Mr. Lipton, together with electronic copies of the Exhibit Books. I then took a break of about an hour to review the material.

[12] Having done so, I denied the adjournment request and proceeded to hear all the matters that were before me.

[13] I indicated that I did not need to hear oral submissions on the r. 2.1 requests from the Canada defendants or the Ontario defendants. I also indicated I did not need to hear oral submissions from the moving defendants on the r. 21 motion.

[14] I then heard oral submissions from counsel for FCC with respect to its summary judgment motion seeking judgment on the mortgages. I indicated I did not require submissions with respect to its motion to dismiss the claim against it summarily.

[15] Thereafter, I turned to the plaintiffs for their submissions. Ms. Manary advised me that she believed that the recusal motion the plaintiffs seek to bring against Myers J. ought to be heard in advance of these motions. I indicated I did not agree, and that I would proceed to deal with the matters before me. She next suggested I should hear the motion to recuse Myers J. at the hearing. I explained that the recusal motion should be brought before Myers J. She then asked that I bring it to Myers J. so he could adjudicate it over the lunch break, and I indicated that would not be possible. Not only have the defendants not had an opportunity to respond, Myers J. was not likely to be available on short notice to adjudicate the motion, and I do not manage his schedule. Moreover, I understand that while the plaintiffs filed recusal motion materials on the morning of the hearing, they had not yet filed a factum.

[16] Ms. Manary then indicated that she would bring a motion, orally, seeking to recuse me. I took the lunch break early to give Ms. Manary the hour she sought to prepare a motion to recuse me. I then heard the recusal motion after lunch. I dismissed the motion, with reasons to follow. Those reasons are set out below, together with my analysis of the other matters before me.

The Plaintiffs’ Claims Regarding Indigenous Rights

[17] At the hearing, Chief Grand Wabiska Mukwa indicated that he, as Chief Justice of his Indigenous Nation, was participating in the hearing together with the plaintiffs whose rights he states are being attacked.

[18] The title of proceedings for the plaintiffs’ claim and amended claim state that the pleadings are issued in conjunction with “ASKIT” and “Kinakwii Indigenous Tribunal.”

[19] The evidence before me indicates that Chief Wabiska’s email address, which includes the phrase “askit4equity,” is linked to a website advertising the Anishinabek Solutrean Metis Indigenous Nation (“ASMIN”), which claims to be one of the oldest unsurrendered, untreatied matriarchal Indigenous Nations of Turtle Island. For $225, anyone can become a member of the ASMIN nation on filling out an application.

[20] The Kinakwii National website suggests that Kinakwii Nation was founded by William Allan of the Baldwin family and Jon of the Maskell family under certain notices which are in evidence before me. For $300 annually, anyone can become a member of the Kinakwii Nation on filling out an application.

[21] Neither the ASMIN nor the Kinakwii Nation are recognized as a First Nation on a comprehensive list of all First Nations across Canada that is compiled by Crown-Indigenous Relations, Northern Affairs Canada, and Indigenous Services Canada.

[22] The statement of claim and written argument make claims including “Land Claim in Trespass,” which is unaccompanied by any pleading of material facts to support it. The plaintiffs’ allegations about a land claim in trespass is seemingly conflated with their reliance on the test for Aboriginal Title, set out in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257.

[23] The plaintiffs also make claims about the Ontario defendants interfering with their ability to engage in international trade in tobacco, and committing trespass in the course of so doing, but these claims are unaccompanied by the pleading of any material facts supporting them.

[24] The plaintiffs adduced no affidavit evidence on the motion to provide facts in support of the claims they allege. They made no claim that the documents in their exhibit books were admissible on another basis, although to the extent some of them are academic articles, case law, statutes, or public documents, I recognize I can make use of them.

[25] While the plaintiffs deny that their claims challenge Canadian sovereignty, they also make claims in quo warranto, including seeking production of a certified copy of the British North America Act, 1867, seeking proof that the British North America Act, 1867 was passed by a lawful quorum, and seeking proof that the British North America Act, 1867 was not repealed in 1893.

[26] Claims of this nature are a challenge to Canadian sovereignty, validly enacted legislation, constitutional documents, and land surrenders. They are non-justiciable: ro: ri: wi: io v. Canada (Attorney General), 2006 CarswellOnt 8694 (Ont. S.C.J.), at paras. 7-9, aff’d 2007 ONCA 100; Commanda v. Canada, 2018 FC 189, at para. 13.

[27] Other claims advanced by the plaintiffs, in particular in response to FCC’s claim to take possession of the lands secured by the mortgages at issue, and for payment on the debt, include claims that FCC has printed money, without having any legal right to do so. They argue that FCC is not a bank, but a financial institution, and that it has not loaned the plaintiffs money, but traded in securities in the form of promissory notes from the plaintiffs. They argue that the promissory notes are securities over which the plaintiffs never released their interest, making the plaintiffs the creditors of those notes. They argue that the mortgage is a British device to obtain Aboriginal Title. They also argue that FCC is barred by s. 89 of the Indian Act from seizing the land in question, because it is reserved to ASMIN because it is unceded. While they argue that Ottawa, Toronto, and St. Thomas are unceded, and the mortgages in question here relate to properties in Langton and Vienna, they argue that the boundary of the unceded land is a triable issue. None of these arguments are pleaded. The plaintiffs refer to some academic articles and interviews with academics in support of these arguments, but no evidence.

[28] I agree with Myers J.’s assessment that the plaintiffs’ claim is designed in furtherance of illegitimate litigation tactics commonly referred to as Organized Pseudolegal Commercial Arguments, as described in Meads v. Meads, 2012 ABQB 571.

[29] I decline to entertain the plaintiffs’ organized pseudolegal commercial arguments.

Recusal Motion

[30] The test for recusal is set out by the Supreme Court of Canada in R. v. S.(R.D.), [1997] 3 S.C.R. 484, 1997 SCC 324, at paras. 109-111 (“R.D.S.”). The question is whether the particular conduct of the decision-maker gives rise to a reasonable apprehension of bias.

[31] The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The court asks what an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude: R.D.S., at paras. 109-111.

[32] The plaintiffs seek that I recuse myself because of unconscious bias. They argue that:

a. I violated the mandate of the Supreme Court of Canada when I failed to order the Crowns to Consult, b. after reading the plaintiffs’ submissions this morning for less than an hour, I reacted in a biased fashion by ignoring the fact that the Ottawa Superior Court confirmed that Ottawa in on Un-Ceded Land, which triggered the Royal Proclamation of 1763, recognized at s. 25 of the Canadian Charter of Rights and Freedoms, and by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia. They also make reference to R. v. Guerin, [1984] 2 S.C.R. 335, 1984 SCC 25, in this context and argue that my behaviour is “particularly disturbing to ASMIN’s Land Title Rights.” c. I failed to acknowledge the government authorizing this court is on the ASMIN’s Un-Ceded Land and lacks authority to issue the Rules, along with the Endorsements of “both Justices,”, who I take to be Myers J., and perhaps me. d. I know or should know about the UN CERD Missive as it is in their exhibit book. I have proceeded to continue the hearing despite the verbal plea to order that the Crown come onto the ASMIN side of the case to advise and protect them, in violation of five SCC cases and the Royal Proclamation of 1763. e. I reacted in a biased fashion by failing to order Consultation with the Metis; f. I acted in a biased fashion in not recognizing Indigenous Laws, Customs and Traditions in ASMIN Recusal proceedings.

[33] The plaintiffs also provided me with a copy of the recusal motion they seek to bring against Myers J. which includes similar allegations against him.

[34] At the time the recusal motion was brought, the only order I had made was an order to deny the plaintiffs’ request for an adjournment. I had yet to hear the plaintiffs’ submissions on the merits of the matters before me.

[35] Certain of the complaints – for example, my failure to order the Crown to Consult – relate to matters that were not before me in any event due to the order of Myers J.

[36] Some of the complaints deal with the plaintiffs’ anticipation that I would err by not accepting their arguments. To the extent they believe I have wrongly dismissed their arguments in these reasons, the remedy lies in an appeal, not in a recusal motion brought before they had even made submissions on any issue other than their repeated request for an adjournment.

[37] Moreover, to the extent that the complaint is that I failed to deal with the recusal motion in person, in a circle, with my peers, consistent with Indigenous laws, traditions, and customs, I note that, in the time of COVID-19, it would be impractical to do so, and would have had the effect of granting the plaintiffs the adjournment they have repeatedly sought and been denied. In any event, alleged bias in determining how to hear a recusal was not a basis for bringing the recusal motion in the first place. The ground was included in the written material filed before I had heard the motion.

[38] In my view, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that my conduct gave rise to a reasonable apprehension of bias.

Rule 2.1 Requests

[39] The requests made by the Ontario defendants and the Canada defendants to dismiss the plaintiffs’ claims under r. 2.1 argue that the plaintiffs’ claim is substantially similar to a claim dismissed by Templeton J. under r. 2.1 without prejudice to refile a compliant statement of claim. The plaintiffs sought an extension of time for leave to appeal that decision, which was denied, and the denial was affirmed by a panel of the Court of Appeal. A costs order made in connection with that proceeding in favour of the responding parties remains unpaid.

[40] Ontario’s brief sets out a lengthy procedural history in connection with this claim, which I need not repeat. I simply note that the plaintiffs have taken, or indicated an intention to take, steps that appear disproportionate and designed to delay the litigation, including signaling their plan to appeal an order of Kimmel J. that a case conference be scheduled (although the appeal appears never to have been brought). The plaintiffs have made threats to a judge of this court, demanding that she sign an order directing the Crown to consult, and stating that if she did not, she would be reported to her supervising judge and Wagner CJC.

[41] The plaintiffs have also sent counsel for the Ontario defendants a letter from “ASMIN Indigenous Tribunal”, in which counsel was “convicted” and fined $390,000.

[42] The plaintiffs have purported to subpoena Wagner CJC in his interim capacity as Administrator acting for the currently vacant post of Governor General. They have threatened that counsel for the Ontario and Canada defendants will be tried at the Hague. They have sent emails indicating that the endorsements of two judges of this court are suspended.

[43] The Ontario and Canada defendants rely on case law in which claims advanced by vexatious litigants are dismissed under r. 2.1, including Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 9, where the court endorsed the guidance of Myers J. that:

Rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves….There are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1.

[44] I agree with the Ontario and Canada defendants that this case is not a close call, but is plainly vexatious. I note the following:

a. This proceeding includes grounds rolled forward from earlier proceedings that were dismissed, and includes claims against counsel who have acted against them, and an administrative assistant to one of the counsel; b. The costs award from the earlier proceeding is outstanding; c. The plaintiffs have purported to convict, or have convicted, counsel for the Ontario and Canada defendants; d. The plaintiffs have pursued unsuccessful appeals in the earlier proceedings, and threatened appeals in this proceeding, including of a direction that a case conference be held; e. The plaintiffs make claims that are non-justiciable; f. The relief sought in the plaintiffs’ claim is unreasonable; g. The pleadings disclose no material facts in support of the relief pleaded; h. The pleadings ramble, and do not disclose or clarify things such as why Grand Chief Wabiska Mukwa is involved in these proceedings, or any particulars about the plaintiffs’ claims; i. The plaintiffs have threatened a judge of this court directly to try to get the order they wanted, as I described earlier, and have brought multiple recusal motions; j. The plaintiffs use devices known to be associated with organized pseudolegal commercial argument litigants, including using bizarre formatting and a bizarre style of cause, and identifying themselves as, for example, “Brent of the Manary Family”, and referring to Canada as a corporation; k. The plaintiffs raise organized pseudolegal commercial arguments in an effort to sew chaos, confusion and delay rather than address the true underlying issue in this proceeding – the loans and mortgages – on their merits.

[45] Accordingly, I conclude that the plaintiffs’ claims against the Ontario defendants and the Canada defendants shall be dismissed under r. 2.1.

Rule 21 Motion

[46] In an action in which he represented the Town of Georgina against defendants known as Marvin Blanchard and a numbered company, Mr. Biggart made submissions in respect of his client’s request for injunctive relief prohibiting the importation of fill onto a property, and authorizing the town to attend on the property to remove the fill already imported there and charge all removal expenses to the tax roll for that property.

[47] In the course of those submissions, which proceeded before Casullo J., Mr. Biggart is alleged to have made “negligent statements, and misleading the court”, by telling the court that “the fees to remove the dirt was so high due to the dirt not being clean, when Georgina’s own expert report confirmed the fill was clean.”

[48] In the context of an appeal from Casullo J.’s decision, Mr. Hart, acting for the Town of Georgina, brought a motion for security for costs. Justice Roberts ordered that William Baldwin, who I assume is the same William Baldwin who appears to have founded the Kinakwii Nation [^1], was ordered to post security for costs. The plaintiffs claim to “charge” Mr. Hart with “Abuse of Process, and Negligence, when he used the litigation procedure of Security for Costs to cover up the misleading or negligent statements of co-counsel Andrew Biggart.”

[49] Mr. Hart and Mr. Biggart rely on r. 21.01(1), arguing that the claim should be struck because it is plain and obvious that the pleading discloses no reasonable cause of action: Isaac v. Mesiano-Crookston, 2019 ONSC 6973, at paras. 36-37.

[50] The doctrine of absolute privilege applies to bar all tort claims that are based on communications during, incidental to, and in furtherance of court proceedings: Isaac, at para. 40. The impugned statements of Mr. Biggart and Mr. Hart are protected by absolute privilege.

[51] Moreover, a lawyer owes no duty to the opposite party in litigation, or the lawyer would have a conflict of interest: 9383859 Canada Limited v. Saeed, 2020 ONSC 4883, at para. 32. There are very narrow grounds on which a lawyer may be found to owe a duty of care to a non-client third party. Those grounds require that a solicitor actually know that a non-client third party is relying on his or her skill, that the non-client third party must in fact rely on a solicitor’s guidance and skill, and that the reliance is reasonable: 9383859 Canada Limited, at para. 30. These very narrow, limited circumstances do not exist here. They are not even alleged.

[52] Moreover, I agree that the claim brought against Mr. Biggart and Mr. Hart is an abuse of process: Mikhail v. Hickman, 2016 ONSC 6747, at para. 23. These claims are designed to further the plaintiffs’ organized pseudolegal commercial arguments.

[53] In the result, I strike the plaintiffs’ claims against Mr. Biggart and Mr. Hart. Moreover, this is one of the very clear cases where the pleading is struck without leave to amend, because the deficiencies in the pleading cannot be cured by an appropriate amendment: Isaac, at para. 43.

FCC’s Summary Judgment Motion

[54] FCC brings a motion for summary judgment, dismissing the claim against it and seeking judgment on its counterclaim.

[55] The claim against FCC alleges that FCC breached a contract with Brent and Kathy Manary by accelerating the loan payments due during the COVID-19 period. No material facts are pleaded to support this claim. No evidence supports this argument.

[56] The claim also alleges that Cassandra Manary is not in default of any loan, and seeks $50,000 in pain and suffering due to FCC’s threats of foreclosure. No material facts are pleaded to support this claim. No evidence supports this claim.

[57] FCC’s evidence establishes that it made five loans, four of which were made to all the members of the Manary family, and one of which was made to two members of the family only: John Manary and Cataleen Manary. The Manary plaintiffs do not dispute that the loans were advanced (although they do make arguments about the nature of money and the activities of banks, which I described above).

[58] The loans are identified as:

a. Loan agreement 586302, in the amount of $600,000, advanced to the Manary plaintiffs and accepted on March 25, 2015; b. Loan agreement 599253, in the amount of $130,000, advanced to the Manary plaintiffs and accepted on July 24, 2015; c. Loan agreement 628658, in the amount of $1,700,000, advanced to the Manary plaintiffs and accepted in August 2016 (the exact date in August is not filled in by the signature line of agreement, but the agreement is dated August 24, 2016); d. Loan agreement 670673, in the amount of $110,000, advanced to the Manary plaintiffs and accepted on March 4, 2018; and e. Loan agreement 678203, in the amount of $100,000, advanced to Brent and Cateleen Manary only, and accepted on June 15, 2018.

[59] The record establishes that all five loans were secured by two mortgages, as follows:

a. Mortgage no. NK78087, granted by Cassandra and Cateleen Manary, registered on March 31, 2015 securing the principal amount of $850,000 plus interest and costs over the property municipally known as 1076 2nd Concession Rd, Langton, Ontario; b. Mortgage no. CT130612, granted by Brent and Cateleen Manary, and registered on September 1, 2016 securing the principal amount of $2,500,000 plus interest and costs over the properties municipally known as 57238 Light Line, Vienna, Ontario, and 56930 Light Line, Vienna, ON.

[60] Both mortgages are subject to standard charge terms No. 200015, which provide that, on default, FCC may demand payment, rendering the loan amount immediately due and payable, may foreclose, may take sale proceedings, and may take immediate possession of the property.

[61] In March 2020, loan 678203 went into default. In July 2020, loan 599253 went into default. The defaults triggered demands on all five loan facilities. FCC made demands for payments on all loans on July 6, 2020, including serving the Notice of Intent to Realize a Security under s. 21 of the Farm Debt Mediation Act, S.C. 1997, c. 21, and the Notice of Intention to Enforce Security under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.

[62] There is no allegation or evidence that any payments have been made since the demand notices were issued. Although the Manary plaintiffs indicated that they wish to seek an accounting from FCC, they have filed no evidence challenging FCC’s calculation of the amounts owing to it, or the daily interest it states is accruing on each loan.

[63] There is no evidence that s. 89 of the Indian Act applies to prevent FCC from taking possession of the mortgaged properties. On executing the mortgages, the plaintiffs represented that they are the registered owners of an estate in fee simple in the property.

[64] The Manary plaintiffs’ arguments that FCC is not a bank, but a financial institution, and that it did not loan them money, but traded in securities in the form of their promissory notes, over which they have not relinquished their ownership, are organized pseudolegal commercial arguments. These arguments do not raise triable issues.

[65] In my view, this is an appropriate case in which to make an order for summary judgment. I am satisfied that there is no genuine issue requiring a trial with respect to the parties’ claims or defences: r. 20.04, Rules of Civil Procedure.

[66] The summary judgment process here provides me with the evidence required to fairly and justly adjudicate the dispute, and is a timely, affordable and proportionate procedure: Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7, at para. 66.

[67] I note that, in view of the plaintiffs’ use of organized pseudolegal commercial arguments, the goal of timely, affordable and proportionate justice is particularly important. Failure to deal with the matter on a summary basis is likely to lead to wasted costs in the form of responding to more organized pseudolegal commercial arguments, which will be costly to FCC, and will be an inefficient use of the court’s resources.

[68] I thus dismiss the plaintiffs’ claim against FCC, and allow FCC’s claims against the plaintiffs. In particular, I find that FCC is entitled to:

a. Payment by the Manary plaintiffs to FCC of $2,325,781.42; b. Payment by Brent and Cateleen Manary to FCC of $107,729.66; c. By the Manary plaintiffs, payment of pre-judgment and post-judgment interest in accordance with the terms of the loans as follows: i. On the sum of $76,190.27, at the rate of 3.35% per annum from October 6, 2020 until payment; ii. On the sum of $1,587,190.476, at the rate of 3.25% per annum from October 6, 2020, until payment; iii. On the sum of $105,309.19, at the rate of 3.45% per annum from October 6, 2020 until payment; iv. On the sum of $524,842.03, at the rate of 3.20% from October 6, 2020, until payment; d. By Brent and Cateleen Manary, payment of pre-judgment and post-judgment interest on the sum of $95,356.14 at the rate of 18% per annum from October 6, 2020 until payment. e. Against Brent and Cateleen Manary, possession of the Vienna Property; and f. Against Cassandra and Cateleen Manary, possession of the Langton Property.

Costs

[69] At the hearing of the motion I sought the positions of all parties on costs. The plaintiffs asked for an order that costs be in the cause. The Canada defendants indicated that they do not seek costs. The other defendants seek costs. Because the plaintiffs had not received the bills of costs of some defendants in advance, I allowed them the opportunity to file brief written submissions on costs, which they did.

[70] In their written submissions, the plaintiffs changed their position on costs, seeking costs in their favour. Alternatively, they argue that any costs award against them should be paid from “the Indian Trust”, which they state was recognized by the Supreme Court of Canada in Mercer v. Attorney General of Canada, [1881] 5 S.C.R. 538, 1881 SCC 6, at p. 708.

[71] As I have dismissed all the plaintiffs’ claims that were engaged in the hearings before me, and the defendants have succeeded on their requests and motions, they are presumptively entitled to their costs.

[72] With respect to their claim that any costs awarded to the defendants’ costs be paid out of the Indian Trust, I note that the passage in Mercer that the plaintiffs rely on as establishing the Indian Trust refers to lands surrendered to the Crown. The plaintiffs here allege they are an unsurrendered Nation. The plaintiffs argue that “[a]lthough the portion of the Indian Trust referred to is just that fraction of the Reserves of those Bands which surrendered. ASMIN is an unsurrendered Nation, claiming a far bigger area, being Eastern Canada and BC, from which our Resources were extracted by Crown Corporations, without an accounting of the 50% belonging to ASMIN.”

[73] I have already noted that the evidence before me indicates ASMIN is not a recognized First Nation. There is no evidence before me of the Indian Trust, why ASMIN is entitled to any funds held in the Indian Trust, the terms of the Indian Trust, or the administrator of the Indian Trust. Moreover, I have found that the plaintiffs’ organized pseudolegal commercial arguments are designed to obscure the real issue in litigation here – the Manary plaintiffs’ indebtedness to FCC. These issues are personal to those parties, and there is no basis to order any costs award to deal with their personal indebtedness be paid out of the Indian Trust, which even on the plaintiffs’ submissions, is for the benefit of many Bands.

[74] Subsequent to the hearing, the parties seeking costs uploaded their costs outlines to caselines. All parties agreed that I could review the costs outlines, and, in the case of Mr. Biggart and Mr. Hart, a letter their counsel indicated was relevant to costs, and the plaintiffs’ submissions, and make my own determination without submissions from the defendants. I do so now.

[75] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, [2004] 71 O.R. (3d) 291, 2004 ONCA 14579, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, [2002] 118 A.C.W.S. (3d) 341, 2002 ONCA 25577, at para. 4.

[76] Ontario’s costs related to this proceeding have exceeded $15,000, including $835.62 in disbursements. It seeks, at a minimum, $5000 in fees and disbursements. In my view, these costs are fair and reasonable, having regard to the principles of indemnity, and the unreasonable behaviour of the plaintiffs, as detailed herein. I thus order that the plaintiffs are jointly and severally liable to pay $5,000 in costs, all inclusive, to the Ontario defendants within thirty days.

[77] Mr. Hart and Mr. Biggart seek costs of $42,066.49 on a substantial indemnity scale. They rely on a letter from October 2, 2020, in which their counsel wrote to the plaintiffs to advise of his retainer, and provided information regarding the legal basis for the r. 21 motion, which I have accepted in these reasons. Counsel offered to consent to a dismissal of proceedings on a without costs basis, and indicated that if the offer was not accepted, Mr. Hart and Mr. Biggart would seek substantial indemnity costs. The offer is not an offer under r. 49.10, but the court may consider it under r. 49.13.

[78] In my view, having regard to the offer, and the unreasonable behaviour of the plaintiffs, an award of substantial indemnity costs is warranted.

[79] A review of the costs outline indicates an investment of time that would normally be unreasonable for claims such as the ones made against Mr. Hart and Mr. Biggart. I am cognizant that the increased time spent by counsel on the motion is a direct result of the manner in which the plaintiffs conducted these proceedings. However, having regard to the costs sought by the other defendants, I am of the view that some reduction to the costs claimed by Mr. Hart and Mr. Biggart is appropriate in order to ensure that costs are fair and reasonable. In my view, having regard to all the circumstances, it is fair and reasonable that the plaintiffs shall be jointly and severally liable to pay $25,000 in costs, all inclusive, to Mr. Hart and Mr. Biggart within thirty days.

[80] FCC seeks its costs on a full indemnity scale, relying on its contracts with the Manary plaintiffs that give it the contractual right to recover its legal costs in full. FCC seeks total costs of $27,940.04. FCC’s right to full indemnity costs is a contractual right, and nothing in FCC’s bill of costs suggests that it has incurred costs unreasonably. I thus conclude that the Manary plaintiffs are jointly and severally liable to FCC for the payment of $27,940.04 in costs, all inclusive, within thirty days.

[81] FCC made no submissions regarding costs with respect to the Grand Chief Wabiska Mukwa. Given that he was not a party to the loan agreements or mortgages, I have limited FCC’s contractual right of costs recovery to the Manary plaintiffs.

Summary of Order

[82] In summary, I order:

a. The plaintiffs’ claims against the Ontario defendants are dismissed; b. The plaintiffs’ claims against the Canada defendants are dismissed; c. The plaintiffs’ claims against Mr. Hart and Mr. Biggart are struck without leave to amend; d. The plaintiffs’ claims against FCC are dismissed; e. FCC is entitled to: i. payment by the Manary plaintiffs, jointly and severally, of $2,325,781.42; ii. payment by Brent and Cateleen Manary, jointly and severally, of $107,729.66; iii. payment by the Manary plaintiffs, jointly and severally, of pre-judgment and post-judgment interest in accordance with the terms of the loans as follows: 1. On the sum of $76,190.27, at the rate of 3.35% per annum from October 6, 2020 until payment; 2. On the sum of $1,587,190.476, at the rate of 3.25% per annum from October 6, 2020, until payment; 3. On the sum of $105,309.19, at the rate of 3.45% per annum from October 6, 2020 until payment; 4. On the sum of $524,842.03, at the rate of 3.20% from October 6, 2020, until payment; iv. payment by Brent and Cateleen Manary, jointly and severally, of pre-judgment and post-judgment interest on the sum of $95,356.14 at the rate of 18% per annum from October 6, 2020 until payment. v. Against Brent and Cateleen Manary, possession of the Vienna Property; and vi. Against Cassandra and Cateleen Manary, possession of the Langton Property. f. the plaintiffs shall be jointly and severally liable to pay $5,000 in costs, all inclusive, to the Ontario defendants within thirty days; g. the plaintiffs shall be jointly and severally liable to pay $25,000 in costs, all inclusive, to Mr. Hart and Mr. Biggart within thirty days. h. the Manary plaintiffs shall be jointly and severally liable to FCC for the payment of $27,940.04 in costs, all inclusive, within thirty days.

J.T. Akbarali J. Date: March 5, 2021

[^1]: Mr. Baldwin, and his apparent relationship to the Kinakwii Nation, is the only link I can find between the plaintiffs in this action and the allegations against Mr. Biggart and Mr. Hart.