Ontario Superior Court of Justice

Court File No.: CV-21-0094-00
Date: 2025-06-30

BETWEEN:
McAsphalt Industries Limited
Applicant
– and –
City of Thunder Bay, Fort William First Nation and Fort William First Nation Development Corporation
Respondents

Applicant not attending

Appearances:
Anne-Marie McKitrick, for the City of Thunder Bay
Derek Zulianello, for the Fort William First Nation and Fort William First Nation Development Corporation

Heard: May 26, 2025, at Thunder Bay, Ontario
Justice: C.M. Brochu

Reasons on Motion

Overview – Nature of Application and Motion

[1] The Applicant, McAsphalt Industries Limited, is a tenant of the Respondent, Fort William First Nation Development Corporation, and is carrying on a business (as are others) on the lands that are subject to the Application. McAsphalt brought the within interpleader Application to pay monies into court pending a determination by this court regarding the payment of monies.

[2] The Fort William First Nation and Fort William First Nation Development Corporation ("FWFN Respondents") have taken the position that this matter should be converted to an action and that the court should direct the trial of the issues between the FWFN Respondents and the City.

[3] The FWFN Respondents advanced that the underlying issue in the Application is whether the FWFN Respondents’ lands that are currently leased by McAsphalt (and other tenants) are reserve lands as defined by the Indian Act, such that the City has no taxing authority over these lands and a determination as to which FWFN Respondents and/or the City is entitled to rents paid by McAsphalt (and other tenants).

[4] Following delivery of the FWFN Respondents’ responding record in November 2024, the City delivered a Request to Inspect documents.

[5] This motion is in relation to the Request to Inspect and involves the Respondents in this matter. The Applicant, McAsphalt, did not participate.

[6] The City is seeking an order compelling the FWFN Respondents to comply with the Request to Inspect Documents served on December 4, 2024.

[7] More particularly, the City is requesting an order that the FWFN Respondents produce the following documents:

i) The “2017 Settlement Agreement”; and
ii) The Fort William First Nation’s Return to Reserve Applications to Canada (or Addition to Reserve Applications) (“ATR Applications”) made in or about 2001 and 2020.

[8] The FWFN Respondents are not opposed to producing for inspection the 2017 Settlement Agreement in accordance with rule 30.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). They have attempted to schedule a date and time with Counsel for the City for this purpose. The FWFN Respondents have also communicated to the City their position that the deemed undertaking rule would apply. The City does not agree.

[9] The FWFN Respondents opposed the production of the ATR Applications.

[10] Consequently, the City requested an Order under rule 30.1.01(8) of the Rules that rule 30.1.01(3) of the Rules, being the deemed undertaking rule, does not apply to the 2017 Settlement Agreement or the ATR Application, if ordered produced.

[11] I have found that the ATR Applications were not referred to in the originating process, pleadings or an affidavit served by the FWFN Respondents as contemplated in rule 30.04(2). Furthermore, this is not a matter in which an order for their production should be made pursuant to rule 30.04(5).

[12] As it relates to the 2017 Settlement Agreement, the City is bound by the deemed undertaking rule as outlined in subrule 30.1.01(3).

[13] The following are my reasons.

[14] I will first address whether the ATR Applications should be produced for inspection and disclosed.

[15] I will then determine whether the deemed undertaking rule should apply to the documents requested.

Request to Inspect – ATR Applications

[16] The FWFN Respondents have taken the position that the Application should be converted into an Action. It is within the context of discussing this issue and the exchange of letters between counsel for the Respondents that the ATR Applications were mentioned.

[17] In this regard, the City sent a letter to the FWFN Respondents on July 19, 2023 (“July 2023 letter”) rejecting their proposal of converting the Application into an Action. In that same July 2023 letter, the City requested disclosure of information and documentation, including the disclosure of the ATR Applications.

[18] The July 2023 letter was appended to the affidavit of Ian Bannon sworn on November 8, 2024 (“Bannon November Affidavit”), which formed part of the FWFN Respondents’ Responding Record dated November 8, 2024. The only reference made in the Bannon November Affidavit to the July 2023 letter was in relation to their request to convert the Application into an Action, which had been refused by the City.

[19] The FWFN Respondents advanced that the only references to the ATR Applications are contained within the City’s July 2023 letter. They are not mentioned in any of the FWFN Respondents pleadings or other documents. Consequently, the FWFN Respondents opposed the inspection of the ATR Applications on the basis that they are not a proper subject of inspection under rule 30.04.

[20] The relevant portions of rule 30.04 are as follows:

Inspection of Documents
Request to Inspect

30.04 (1) A party who serves on another party a request to inspect documents (Form 30C) is entitled to inspect any document that is not privileged and that is referred to in the other party’s affidavit of documents as being in that party’s possession, control or power. R.R.O. 1990, Reg. 194, r. 30.04 (1).

(2) A request to inspect documents may also be used to obtain the inspection of any document in another party’s possession, control or power that is referred to in the originating process, pleadings or an affidavit served by the other party. R.R.O. 1990, Reg. 194, r. 30.04 (2).

(3) A party on whom a request to inspect documents is served shall forthwith inform the party making the request of a date within five days after the service of the request to inspect documents and of a time between 9:30 a.m. and 4:30 p.m. when the documents may be inspected at the office of the lawyer of the party served, or at some other convenient place, and shall at the time and place named make the documents available for inspection. R.R.O. 1990, Reg. 194, r. 30.04 (3); O. Reg. 575/07, s. 1.

Court may Order Production

(5) The court may at any time order production for inspection of documents that are not privileged and that are in the possession, control or power of a party. R.R.O. 1990, Reg. 194, r. 30.04 (5).

[21] The City relied on and referenced the decision of Rath v. Tanzanian Gold Corporation, 2022 ONSC 5184, 164 O.R. (3d) 118, wherein the court found that a request for inspection is proper when the requested documents were specifically referred to and mentioned by name and date in accordance with rule 34.04(2).

[22] In Rath, at paragraph 28, the court found that the September minutes were clearly referenced and identified by name and date on multiple instances in the pleadings. However, it noted that the November minutes were not referenced anywhere in the pleadings. As a result, it found that a request to inspect the November minutes was not a proper request under rule 30.04(2).

[23] The court went on to determine whether the November minutes should be produced pursuant to rule 30.04(5). It did find that although not specifically referenced in the pleadings, they clearly contained information relevant to the issues in the action given the connection between the two and specifically the reliance on the approval of the September minutes at the November meeting. Production was ordered under rule 30.04(5).

[24] In the context of this motion, the issue is whether the ATR Applications fall under rule 30.04(2) and are documents referred to by the FWFN Respondents. Otherwise, the issue is whether the court should exercise its discretion and order the production for inspection pursuant to rule 30.04(5).

Should the ATR Applications be ordered produced for inspection under subrule 30.04(2)?

[25] The determination at this stage turns on whether the ATR Applications were mentioned in the FWFN Respondents pleadings and/or affidavit.

[26] The City advanced that the documents were referred to in multiple court documents, including the Bannon November Affidavit. Specific reference is made to paras 12-18 of the Bannon November Affidavit and Exhibit C.

[27] There is no dispute that the Bannon November Affidavit referenced the Settlement Agreements. However, there is no mention of the ATR Applications in the body of the Affidavit. The City referenced exhibit C to the Bannon November Affidavit, which consists of their own July 2023 letter.

[28] There is no question that the ATR Applications are mentioned in the July 2023 letter. However, this is a letter from the City’s counsel to the other counsel, including the FWFN Respondents’ counsel.

[29] In its factum, the City provided some information that related to the intermingling and overlapping of several other claims involving the issue of ownership of the lands in question. It is noted that those issues may be relevant as they pertain to the determination that the FWFN Respondents are seeking by converting the Application into an Action.

[30] In providing a very brief history of some of these other matters, the City submitted that “the ATR Applications likely contain claims directly related to compensation for the payment of municipal taxes or which have an impact on matters of assessment and taxation.” (my emphasis)

[31] The City acknowledged that the ATR Applications would be relevant to the trial of issues should the Application be converted to an Action, which is sought by the FWFN Respondents and opposed by the City.

[32] I note that the issue of whether the Application should be converted into an Action was not before the court on this motion. The City has taken the position that there should be no trial and have indicated that they will be opposing the FWFN Respondents’ motion on that issue. Nonetheless, the City is taking the position that the ATR Applications would be relevant to the trial of issues, and should be produced.

[33] The FWFN Respondents argued that the ATR Applications were not referred to in the originating process, pleadings or an affidavit served by the FWFN Respondents, and as a result are not documents subject to inspection under rule 30.04(2).

[34] The fact that the City made reference in the July 2023 letter to the ATR Applications does not give rise to a right of inspection.

[35] I find that the reference to the July 2023 letter in the Bannon November Affidavit was to highlight the City’s position and response to the FWFN Respondents’ proposal to convert the Application to an Action. The City in the July 2023 letter elaborated on a number of other issues involving a lengthy history of litigation and made reference to the ATR Applications.

[36] The City cannot rely on their own reference in a letter as triggering an entitlement to inspect documents. Should such be the case, it would open the door for opposing parties to slip in references to documents they may want to inspect in correspondence which they know may eventually form part of the court record.

[37] It could also result in numerous document production requests. The prime example is the matter at hand. The City not only referenced the ATR Applications in their July 2023 letter, but many other documents related to previous and existing litigation and negotiations. Should the court allow them to inspect a document they themselves referenced, then the next request could be for the remainder of documents they mention in their July 2023 letter.

[38] I find that the ATR Applications are not to be produced for inspection under rule 30.04(2).

Should the ATR Applications be ordered produced for inspection under rule 30.04(5)?

[39] In Rath at para. 20, the court noted that in the event of non-compliance with rule 30.04(2), the court could compel production under rule 30.04(5). It also noted that the court has discretion not to enforce rule 30.04(2). Citing Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5958 at para. 44, Rath indicates that courts may refuse to enforce a request to inspect based on immateriality, irrelevance, prejudicial effect overcoming probative value, disproportionality, untimeliness (i.e., premature documentary discovery), and privilege.

[40] There is no evidence offered by the City on how the ATR Applications are relevant in this Application. Counsel submitted that there may be a connection to this Application, other litigation and other litigation yet to be commenced. However, no evidence was filed by the City addressing the relevance of the ATR Applications to this specific matter, such as: What do they expect they will reveal? How would they advance this litigation? Why should they be ordered produced at this stage?

[41] At most, the ATR applications may become relevant if the matter is converted to an Action. This is a premature request for production on the part of the City, especially when the City has clearly stated their position to oppose the request of the FWFN Respondents to convert the Application into an Action.

[42] In light of the above noted issues, I am not prepared to make an order under rule 30.04(5) for the production of the ATR Applications.

Does the Deemed Undertaking Rule Apply?

[43] Rule 30.1.01 applies to evidence obtained under rules 30-35 and provides that:

Deemed Undertaking

(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained. O. Reg. 61/96, s. 2; O. Reg. 575/07, s. 4.

[44] The Court in Rath at paragraph 40 commented on the fact that an order for production under rule 30.04(5) is not an evidentiary order, but an order for documentary discovery. Consequently, documents produced under such an order are produced only to the requesting party and are subject to the deemed undertaking rule.

[45] The City is requesting an order under rule 30.1.01(8) that the undertaking does not apply to the requested documents.

[46] The City’s position on the applicability of the deemed undertaking rule is revealing of the intended use of the documents; they want this information to be able to use it in other proceedings. Counsel for the City submitted that should the rule apply; it would be difficult for the City to separate this evidence and its use in this Application from its use in other present and anticipated litigation involving the FWFN Respondents and others.

[47] Counsel for the City stated in submissions that it cannot be expected that the City “take a [peek]” at a document and only remember the information for one proceeding and ignore that same information that may be relevant for another proceeding. In essence, what the City is stating is that “once you have seen it, you cannot unsee it,” suggesting that the deemed undertaking rule would put them in an impossible position. That is somewhat concerning. Not only does the City want this court to order the production of documents, but they want an unfettered right to use it as they see fit, in this matter and other matters. Counsel indicated that if the court permits them to inspect this document, they are incapable of disassociating themselves from what they will have read, so that it does not impact the City’s future dealings with the FWFN Respondents in existing and prospective litigation.

[48] Furthermore, the City wants the court to make an order without having seen the document. At this stage of the process, the order would be made blindly, and result in a blanket order without substance. In fact, the City has not even seen these documents. It is speculative as to what they may or may not contain.

[49] The City relied on Juman v. Doucette, 2008 SCC 8, [2008] 1 SCR 157, at paras. 32, 34 and 35, and Brome Financial Corporation Inc. v. Bank of Montreal, 2013 ONSC 6834, at para. 56, to support its position. In Juman, the court stated that to modify or obtain a relief against an implied undertaking, the applicant must demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation.

[50] There is no dispute on the principles established in the jurisprudence. The case law also offers examples and factors to consider when weighing the competing values. However, the City has not provided the necessary evidence required for this court to consider the guiding principles outlined in the case law.

[51] The proper way to address this type of process is to make the request to produce and obtain the document with the understanding that the deemed undertaking rule applies. Subsequent to having inspected and obtained the document, the City could then bring a motion requesting an order that the deemed undertaking rule should not apply. At that time, they would be able to advance an argument that the interest of justice outweighs any prejudice that would result to the party who disclosed the evidence. It would also allow the Respondents to properly oppose the order requested, without risk of prejudice. As it stands now, they would be divulging information on the contents of the documents in order to advance their position.

[52] The Court would also be able to determine whether it should impose any terms and give directions, should such terms or directions be required to balance the interest of justice and potential prejudice.

[53] The request that the deemed undertaking rule not apply is premature in the circumstances of this case. The City does not have the document, it is therefore difficult for them to inform the Court as to why the deemed undertaking rule should not apply.

[54] The City has not provided any evidence that would satisfy this court that the interest of justice outweighs any prejudice that would result to the party who disclosed the evidence. As a result, I find that the deemed undertaking rule applies.

Conclusion

[55] There is no dispute that the 2017 Settlement Agreement is to be produced for inspection. The FWFN Respondents have already agreed to the inspection of this document. The FWFN Respondents also acknowledged that rule 30.04(7) specifically provides that the City can obtain a copy of the document.

[56] The City is bound by the deemed undertaking rule as it relates to the production of the 2017 Settlement Agreement.

[57] As it concerns the ATR Applications, I find that these documents were not referred to in the originating process, pleadings or an affidavit served by the FWFN Respondents as contemplated in rule 30.04(2). Furthermore, for the above noted reasons, I am not prepared to make an order for its production pursuant to rule 30.04(5).

Costs

[58] With respect to the issue of costs, failing agreement between the parties, I direct the parties to make brief written submissions as to the costs before this court. Those submissions are to be served and filed by the City within 10 days of the release of these reasons. Responding submissions shall be served and filed within seven days of the receipt of the materials served by the City, and any Reply submissions shall be served and filed within three days of the receipt of the responding submissions. All costs submissions shall be limited to five pages, plus a bill of costs.

“original signed by”
C.M. Brochu

Released: June 30, 2025