COURT OF APPEAL FOR ONTARIO

DATE: 20220802 DOCKET: C63194

Brown J.A. (Case Management Judge)

BETWEEN

Chief John Fletcher, Jacqueline Fletcher, and Roy Gideon on their own behalf and on behalf of all members of the Missanabie Cree First Nation

Plaintiffs (Appellants)

and

Her Majesty the Queen in Right of Ontario and The Attorney General of Canada

Defendants (Respondents)

Ryan Lake and Laura Schaan, for the appellants Manizeh Fancy, Richard Ogden, Catherine Ma, and Fabian Esprit (law clerk), for the respondent, Her Majesty the Queen in Right of Ontario Michael Beggs and Madeline Torrie, for the respondent, The Attorney General of Canada

Heard: July 28, 2022 by video conference

ENDORSEMENT

[1] The appellants appeal the judgment of Lederer J. dated December 8, 2016, on the trial of an issue, in which he declared that 1906 is the date at which the population of the Missanabie Cree should be determined for the purpose of applying the reserve entitlement formula stipulated by Treaty 9.

[2] The appellants have perfected their appeal. An appeal management conference was held to determine certain pre-hearing issues and scheduling. The memorandum in which I provide directions on those issues is attached as Appendix “A”.

[3] The purpose of this posted endorsement is to give general notice that the date by which any interested person must serve and file a motion for leave to intervene is December 16, 2022.

“David Brown J.A.”

APPENDIX “A”

Fletcher v. Ontario

C633194 Directions (No. 1) of the Appeal Management Judge Brown J.A. July 28, 2022

STATUS OF THE APPEAL

[1] The appellants have perfected their appeal.

Issues with Appellants’ materials

[2] Ontario raised two issues about the contents of the appellants’ Exhibit Books. First, Ontario contends that a document authored by Duncan Scott entitled “The Last of the Indian Treaties” has been improperly included in the appellants’ Exhibit Book at Vol. 4, Tab 17, as it was not placed in evidence before the trial judge.

• Directions: I direct that the parties are to advise me no later than Friday, August 12, 2022, whether this document formed part of the trial record before Lederer J. If it was not, and if a party intends to place the document before the panel and any other party objects, a formal motion to adduce for fresh evidence will have to be brought before the panel.

[3] Second, Ontario also submits that the appellants improperly appended to their factum a federal Order-in-Council dated June 22, 2018, which post-dates the trial judge’s judgment.

• Directions: Ontario shall inform the other parties and the court by Friday, August 12, 2022 whether this remains a live issue that requires judicial determination.

FACTA LENGTH

[4] Responding facta by Ontario and Canada:

• Directions: Ontario and Canada may each file responding facta of up to 45 pages in length.

[5] Reply factum:

• Directions: The appellants may file a reply factum of up to 15 pages in length.

FORMATS FOR ELECTRONIC DOCUMENTS

[6] The organization of the electronic documents filed for the appeal in Restoule v. Canada (Attorney General), 2021 ONCA 779, worked very well. Ontario’s law clerk, Mr. Esprit, worked on that appeal.

• Directions: The format of the electronic documents filed on this appeal shall follow that used in Restoule, and I would ask Ontario to circulate to the parties the two protocols for electronic documents issued by Lauwers J.A. for that appeal.

TIMETABLE FOR THE DELIVERY OF MATERIALS

[7] I thank the parties for submitting a proposed joint timetable for the filing of the remaining materials. I have made minor changes to it.

Directions:

• Canada shall file its responding materials, including factum, by October 14, 2022;
• Ontario shall file its responding materials, including factum, by October 28, 2022;
• The appellants shall file any reply factum by November 25, 2022.

MOTIONS FOR LEAVE TO INTERVENE

[8] It is unclear to the parties whether any motions for leave to intervene on the appeal will be filed.

• Directions: Any person interested in seeking leave to intervene in this appeal shall deliver its motion for leave to intervene no later than Friday, December 16, 2022. Subject to any further direction by the court, any such motion will be returnable before me and shall proceed in writing without an oral hearing.

ORAL HEARING COMPENDIA

[9] In appeals such as this, with an extensive written record, oral hearing compendia can provide the panel with great assistance by collecting in one place the key documents to which the parties intend to refer at the hearing and, as well, providing a brief (up to 1,000 words) summary of the key points of their arguments.

• Directions: The parties shall file oral hearing compendia no later than one week prior to the appeal’s hearing date.

LENGTH OF HEARING AND HEARING DATE

• Direction: I allocate three (3) days for the hearing of the appeal, with the time to be divided equally amongst the parties.
• Direction: The hearing should take place during February or March, 2023. I direct the parties to approach the civil appeal co-ordinator, Ms. Lily Miranda (lily.miranda@ontario.ca), within the next week to set hearing dates that work for all the parties. If there is any difficulty in this regard, the parties shall contact me immediately.

NEXT APPEAL MANAGEMENT CONFERENCE

[10] The next appeal management conference shall take place on December 7, 2022 at 4 p.m., Eastern Time.

[11] In the meantime, if any issue arises that the parties require judicial assistance to resolve, they are free to arrange a further appeal management conference before me through Ms. Miranda.