Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20200319 DOCKET: M51084 & M51235 (C67197); M51169; M51229 (C66908; C67197; C67422) Feldman, Lauwers and Hourigan JJ.A.
DOCKET: M51084 (C67197)
BETWEEN
The Corporation of the Town of Georgina Moving Party
and
Marvin Blanchard and 1124123 Ontario Limited Responding Parties
DOCKET: M51235 (C67197)
AND BETWEEN
The Corporation of the Town of Georgina Moving Party
and
Marvin Blanchard and 1124123 Ontario Limited Responding Parties
DOCKET: M51169; M51229 (C66908; C67197; C67422)
AND BETWEEN
Grand Chief White Buffalo Eagle (a.k.a. Al Baldwin) Moving Party
and
Her Majesty the Queen Responding Party
and
The Corporation of the Town of Georgina Responding Party
and
Rod Phillips, Doug Downey, Dean Eastman, Deon Cousins, and Jeff Quann (in their personal capacities) Responding Parties
Spirit Warrior (a.k.a. Glenn Bogue), appearing as spokesperson for the moving party, Grand Chief White Buffalo Eagle (a.k.a. Al Baldwin) Jonathan Davis, appearing in person Eric Wagner, for the responding parties, Rod Phillips, Doug Downey, Dean Eastman, Deon Cousins, and Jeff Quann John R. Hart, for the responding party, the Corporation of the Town of Georgina Dan Luxat, for the responding party, Attorney General of Canada Kisha Chatterjee, for the responding party, Attorney General of Ontario
Heard: February 28, 2020
Reasons for Decision
[1] Three matters were heard before the panel following the order of Thorburn J.A. dated January 27, 2020. A typed transcription of that order is attached as an Appendix to these reasons.
[2] The first matter concerns the appeal of an endorsement by Casullo J., dated June 20, 2019, in Blanchard v. Georgina (Town) (the “Georgina appeal”). As part of this matter, the panel considered two motions. The first was a motion to review the order of Roberts J.A. dated November 28, 2019, ordering the appellant to pay security for costs of the appeal. The second was an ex parte motion by the Town of Georgina to dismiss the appeal for failure to pay the security for costs.
[3] The second matter arose in the proposed appeal of Grand Chief v. Phillips et al (the “Grand Chief v. Phillips matter”). That claim was dismissed and Thorburn J.A. denied an extension of time to file a notice of appeal on January 27, 2020, in a separate endorsement from the endorsement reproduced in the Appendix.
[4] The third matter was a review of the order of Thorburn J.A., reproduced in the Appendix.
[5] The panel first dealt with two preliminary issues: the request by the Grand Chief for an adjournment and the ability of Spirit Warrior to represent the Grand Chief. In her order reproduced in the Appendix, Thorburn J.A. ordered the Grand Chief to retain counsel or a paralegal to represent him for the purpose of the panel motions before us. Her order specified that counsel could not be Spirit Warrior, known to the Law Society of Ontario as Glenn Bogue, as he has been suspended from practice.
[6] The Grand Chief requested an adjournment for health reasons. The request was opposed by Georgina. Spirit Warrior advised that he sought to act as spokesperson for the Grand Chief as his authorized representative, and not in the capacity of a lawyer. He further advised that Mr. Davis, who also signed the counsel slip but is not a lawyer, was not authorized by the Grand Chief to act as his spokesperson.
[7] The panel rose to consider the two preliminary issues. It denied the request for an adjournment and allowed Spirit Warrior to speak for the Grand Chief as his authorized spokesperson but not as counsel.
[8] The main position asserted on behalf of the Grand Chief was that all matters before the court should be stayed pending consultation by the Crown on a series of aboriginal land claims said to have been asserted by the Grand Chief in respect of a number of areas of Ontario. A related position was that the Georgina appeal should be consolidated with two other appeals in respect of those land claims. The Notices of Appeal in respect of those matters have file numbers: C66908 and C67422.
[9] Spirit Warrior also advised the court that he had with him the funds to pay the amount ordered by Roberts J.A. into court as security, but only on condition that the court hold those funds pending two motions to be brought on behalf of the Grand Chief, one seeking costs against Mr. Hart, counsel for Georgina, personally and the other requiring the Crown to consult, with a view that the monies paid in would be replaced by monies ordered to be paid by other parties on those motions.
[10] On behalf of Georgina, Mr. Hart submitted that there is no land claim outstanding against Georgina, and no basis to stay the order of the court. He also submitted that as there had been no timely payment of the amount of security for costs into court in accordance with the order of Roberts J.A., and as the proposed conditional payment was not in accordance with the order, the appeal should be dismissed.
[11] Apart from the order of Casullo J. in the Georgina appeal, all counsel for the respondents on the panel motion advised the court that there have been no orders of the Superior Court. In the consolidation motion, the court is aware of an order of Templeton J. that dismissed a proceeding in the Grand Chief v. Phillips matter for being frivolous and vexatious pursuant to r. 2.1.01(1) of the Rules of Civil Procedure; an order by Tranmer J. in a habeas corpus application by the Grand Chief, with reasons reported at 2019 ONSC 2238; and an endorsement by Lacelle J. in a different habeas proceeding.
[12] The court reserved its decisions.
[13] There is no basis to stay any of the appeals or to consolidate them together. The only matters before the court are the Georgina appeal and the panel review of the order denying an extension of time to appeal the Grand Chief v. Phillips matter.
[14] In respect of the Georgina appeal, the Grand Chief did not argue that the order for security for costs be set aside. The only issue was whether it had been complied with. As no payment into court has been made, and the proposed payment was on condition only, and not in accordance with the order of Roberts J.A., the Georgina appeal is dismissed with costs to Georgina fixed in the amount of $3000. Inclusive of disbursements and HST.
[15] In respect of the Grand Chief v. Phillips proposed appeal, Thorburn J.A. made no error in denying an extension of time to appeal. The review of her order is dismissed with costs to the responding parties fixed in the amount of $1500. Inclusive of disbursements and HST.
[16] We note that in respect of both matters, these orders do not affect any land claim.
“K. Feldman J.A.”
“P. Lauwers J.A.”
“C.W. Hourigan J.A.”
Appendix
Order of Thorburn J.A., dated January 27, 2020
No one is here who is a paralegal or lawyer able to assist the appellants and the Grand Chief. As such, the parties agree that the review of Justice Roberts’ order and the ex parte motion brought by Georgina, will be heard by a panel on February 28, 2020, on the following terms:
- The respondents, the Grand Chief, shall retain counsel or a paralegal and file material within the usual timeframes and at least 2 weeks before the review scheduled for this matter.
- Any request[s] for accommodations are to be provided to the Court and the parties at least 2 weeks before the hearing so that such requests can be considered and accommodated.
- The counsel cannot be Spirit Warrior as he has been suspended from practicing law by the Law Society of Ontario.
- All parties are to appear with their legally appointed representatives.
- The effect of the adjournment of the ex parte order is that there is a stay of execution pending the panel review.
- The respondents may file their quo warranto as part of their material.
- There is no order to consolidate this proceeding with any other proceeding as no representations could be made and it is not apparent on the record that there are common issues.
- Costs of today’s date will be addressed by the panel.