Cree Nation (MoCreebec Council) v. Ontario, 2013 ONSC 2404

CITATION: Cree Nation (MoCreebec Council) v. Ontario, 2013 ONSC 2404

DIVISIONAL COURT FILE NO.: 557/10

DATE: 20130423

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MoCreebec Council of the Cree Nation (Applicant)

AND:

Her Majesty the Queen in Right of Ontario et al. (Respondents)

BEFORE: MOLLOY J.

COUNSEL: Jean Teillet and Nuri Frame, for the Moving Party (Respondent) Moose Cree First Nation

Eric Gillespie, Ian Flett and Erin Wallace, for the Responding Party (Applicant) MoCreebec Council of the Cree Nation

Iris Antonios, for the Responding Party Ontario Power Generation Inc.

Tamara D. Barclay, for Her Majesty the Queen in Right of Ontario and other Ontario parties

HEARD: April 22, 2013 at Toronto

ENDORSEMENT

(Decision #1—Motion to Strike)

The Motion

[1] MoCreebec Council of the Cree Nation commenced a judicial review application in this Court by notice dated November 17, 2010. The application relates to a proposed hydroelectric generating project in the Moose River/James Bay area. The applicant was one of the parties to an agreement with the Ontario government in 1994 with respect to how the project was going to proceed. The applicant now contends that Ontario has failed to comply with its obligations under that agreement and under the Environmental Assessment Act. The application for judicial review seeks various forms of relief requiring Ontario to comply with those obligations and prohibiting further development that is not in compliance. In support of the application was filed the affidavit of Allan Jolly, the Acting Chief of the MoCreebec Council.

[2] Moose Cree First Nation is named as a party respondent in the application. Moose Cree brought a motion to strike various aspects of the judicial review application and portions of the supporting affidavit. As a result of discussions between counsel, which continued through the weekend, many aspects of the motion have been resolved, for which all counsel are to be commended. From the perspective of the moving party, one principal issue remains: the capacity of MoCreebec to bring this application. I also have some concerns about the form of the proceeding itself.

Amendments to the Notice of Application for Judicial Review

[3] The MoCreebec Council has agreed to withdraw from its application all arguments and claims that are related to alleged aboriginal and treaty rights of the MoCreebec Council and all claims based on the Canadian Charter of Rights and Freedoms. An amended notice of application was filed in court on the motion before me striking paragraphs: 1(a)(vi) and (vii); 1(c)(iii); 2(y); and 2(z).

[4] Based on those amendments the moving party is satisfied that the application can proceed, subject to the applicant having the legal capacity to do so, an issue I am referring to the full panel (see below).

[5] Although counsel for the applicant maintains that the remaining claims will not require this Court to resolve competing factual issues, that is not entirely clear to me and I will also refer that matter to the full panel (see below).

Affidavit of Allan Jolly for the Main Application

[6] The original affidavit filed by the MoCreebec Council was sworn by Chief Kapeshesit, who has subsequently died. The applicant thereafter filed an affidavit sworn by the Acting Chief, Allan Jolly on October 12, 2012.

[7] As a result of hits motion, the MoCreebec Council agreed to make extensive amendments to the affidavit of Allan Jolly, filed in support of the application. Many of those amendments are directed to removing references to treaty/aboriginal rights and Charter claims. Others were related to the moving party’s concerns about hearsay and unsupported opinion evidence. An unsworn amended affidavit was filed before me on the motion. There were still three areas of concern raised by Ms. Teillet, counsel for the moving party: paras. 46; 76; and 59-60.

[8] At paragraph 46, a number of amendments are required merely to change pronouns used. The affidavit was originally drafted with Chief Kapeshesit as the deponent and the language used to refer to him personally now needs to be adjusted. Mr. Gillespie, on behalf of MoCreebec, has undertaken to make those changes.

[9] In paragraph 76, Mr. Gillespie has agreed to amend the first sentence by removing the words “their Aboriginal and Treaty harvesting rights” and replacing those words with the word “them.” Also, the second sentence will be amended to insert the words “under the Environmental Assessment Act” after the words “legal duty.”

[10] Paragraph 59 relates to what was said at a meeting in Timmins on or about May 7, 2010, which was attended by Chief Kapeshesit and various representatives from government, OPG and other First Nations groups. Paragraph 60 relates to a meeting in Toronto on May 7, 2010 attended by Chief Kapeshesit, Minister Gerretsen, various unnamed Ministry of the Environment staff members and Ms. Burgandy Dunn. Mr. Jolly was not present at either meeting and the entirety of the two paragraphs is therefore hearsay. Ms. Teillet, for the moving party, submits that both paragraphs should be struck.

[11] Mr. Gillespie submits that these paragraphs should be admissible under the principled exception to the hearsay rule, based on necessity and reliability. The information in both of these paragraphs had previously been set out in the affidavit of Chief Kapeshesit, who has since died. Necessity is therefore established with respect to paragraph 59, and possibly paragraph 60 as well. The only distinction between the two is that Burgandy Dunn was also present at the Toronto meeting on May 7, 2010. At the time she was a student-at-law with the former counsel for the MoCreebec Council. There is an affidavit of hers filed as part of the material on the application, but it does not deal with that meeting. If Ms. Dunn is still available and has some knowledge of the May 7, 2010 meeting, her evidence could be obtained on this point.

[12] With respect to reliability, the contents of these two paragraphs were previously sworn to by Chief Kapeshesit under oath. That provides some threshold reassurance as to reliability, even though there has not been cross-examination on the affidavit because of the preliminary stage of the proceeding.

[13] There were other people present at both meetings and it may well be the case that there is no dispute as to what happened at the meetings. Indeed, I suspect that will be the case. If the evidence is not contentious, I see no basis for striking it.

[14] I am inclined to leave these paragraphs as they are, subject to whatever weight the court hearing the application is prepared to give them. However, I will withhold a final decision on the point pending receipt of information from counsel for MoCreebec as to whether Ms. Dunn is available and from all respondents’ counsel as to whether the other people at the meetings within their client groups can confirm or deny the accuracy of paragraphs 59 and 60. Depending on whether counsel can agree on these issues, further affidavits may need to be filed to address the point at a later motion before me.

[15] When the permitted content of this affidavit is settled, a fresh affidavit shall be filed to form part of the application record, rather than the amended affidavit that is currently in the file.

Referral to a Full Panel

[16] The main issue now outstanding with respect to Moose Cree’s motion to strike is the issue of the capacity of the MoCreebec Council to bring this application. I accept that a single judge has jurisdiction to deal with that issue. However, I have a discretion under s. 21(4) of the Courts of Justice Act.

[17] The capacity (or status) issue is by no means a simple matter factually or legally, and it is one with profound consequences for the MoCreebec Council, not just with respect to this application, but to their status generally. In light of the complexity of the issue, the inadequate state of the record before me at present, and the significant public policy issues raised, in my view it is preferable that this motion be heard by a three-person panel of the Divisional Court, rather than by a single judge.

[18] Accordingly, I am referring this matter to a full panel of the Divisional Court. The motion has been scheduled for October 10, 2013 for a full day. That date has been confirmed as available for all counsel and the court.

[19] In addition, I believe there should be an early resolution as to whether this matter is appropriately dealt with by the Divisional Court or whether there remain contested issues of fact that can only be resolved at a trial. It is not in the interest of any of the parties to prepare all of the material for argument of the application, only to be told by the panel hearing it that it cannot be resolved in this manner. Accordingly, that issue as well should be placed before the panel on the motion on October 10, 2013.

Material for the Motion to Strike

[20] New material should be filed by all parties for use on the motion. The existing material is too jumbled and confusing.

[21] The moving party Moose Cree First Nation shall deliver a notice of motion and, if so advised, affidavit material by May 10, 2013. The notice of motion shall clearly setting out the precise relief sought and the grounds for taking that position. Affidavit evidence may also be filed, particularly with respect to the practical problems of having an application brought by MoCreebec with the Moose Cree as a respondent, given there may be some overlap between the membership of both groups, and any other issues that may be contentious relating to the capacity of the MoCreebec Council to sue. A factum will not need to be filed by May 10. Factums from all parties will follow once the evidentiary material is in place. Ultimately, the motion record to be filed with the Divisional Court for the argument of the motion on October 10, 2013 will need to include the Amended Notice of Application and the Fresh Affidavit of Allan Jolly. However, it is not necessary to file that by May 10 as it is unlikely that the form of that material will be fully settled by then.

[22] The responding party MoCreebec Council shall deliver its responding affidavit material for the motion by May 31, 2013. This will require a separate affidavit, not the same affidavit that will be the evidentiary basis for the application itself. If the paragraphs 59 and 60 issue has been resolved by that time, the final version of the Jolly affidavit for use on the application shall also be filed by May 31.

[23] With respect to the affidavit for use on the motion, there may well be material excised from the previous application affidavit that will be permissible on the motion. I do recognize that there may need to be some latitude for data of an historical nature. However, as much as possible, unsupported opinion evidence and hearsay should be avoided, and sources of information should be provided.

[24] If the moving party wishes to file any reply, this must be delivered by June 7, 2013.

Ongoing Issues

[25] Once the affidavit material for the motion has been settled, I would expect counsel will be able to agree on a timetable for delivery of motion records, responding records and factums as well as dates for cross-examinations on affidavits if required.

[26] Counsel have been quite successful to date in resolving many matters amongst themselves and I am sure this will continue. However, I shall remain seized. If there are matters that cannot be resolved, I will hear any motions arising, particularly with respect to the material to be filed for the motion or any interlocutory issues with respect to the application for judicial review itself. Such motions, at the option of counsel or as I may direct, may be done in writing, by conference call, or with oral argument, depending on the subject matter. I have set aside June 24, 2013 to address such issues, if necessary, and have asked all counsel to keep that date open. Counsel should give me as much notice as possible if that date will be required, or conversely, if it will not.

[27] I may also be able to make time available during the weeks of July 8, 15 and 22 or during the month of September, provided advance notice is given.

[28] If any issues arise, counsel should contact the Divisional Court Office to make the necessary arrangements or call my secretary Aggie Gomez at 416-327-5295.

MOLLOY J.

Date: April 23, 2013