Dilico v. Ontario; Fort William First Nation v. Ontario

CITATION: Dilico v. Ontario; Fort William First Nation v. Ontario, 2020 ONSC 4848

COURT FILE NOS.: 19-013-JR, 19-014-JR (Thunder Bay)

DATE: 20200812

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Dilico v. Ontario; Fort William First Nation v. Ontario

COUNSEL: Katherine Hensel and Kaelan Unrau, for the Applicant Dilico Anishinabek Family Care David Postel, for the Applicant Fort William First Nation Kisha Chatterjee, for the Respondent Ontario Catherine Beamish Michael Wilchesky, for the Respondent Tikinagan Child and Family Services Nick Melchiorre, for the Respondent Children’s Aid Society of Thunder Bay Natalie Posala and Asha James for the Intervenor Nishnabe Aski Nation

BEFORE: D.L. Corbett J.

DATE: August 12, 2020

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management teleconference held on August 11, 2020.

[2] Unfortunately, counsel for Dilico, who requested this teleconference, was not advised by Divisional Court staff of this teleconference and so did not attend. It was not apparent to the court why requesting counsel was not at the conference, and immediate email and telephone queries did not reach counsel. The court presumed that some error in communications took place or some other unexpected event led to this situation. The conference proceeded without requesting counsel, but without prejudice to a further teleconference on all issues addressed in this endorsement.

[3] Counsel for First William First Nation reported that discussions are still underway on the issue of converting his client’s application to an action. Counsel hopes and expects that these discussions can be completed and a consent order placed before the court by around the end of August. If the parties require the court’s assistance on this issue, they should arrange a further teleconference. The court notes that this issue has been under discussion for many months. The parties need to resolve this issue or move forward to a motion so that matters may proceed in some fashion. The court will give a direction on this issue at the first case management conference held after August 31, 2020, if the issue has not been resolved by then.

[4] Requesting counsel advised in writing that her client delivered an expert report and now seeks a schedule from this court including a return date before the end of December 2020. While I do not foreclose ordering a special date before the end of 2020, this will not be done unless the parties can satisfy the court (a) that the case really will be ready to proceed on the scheduled dates; and (b) that there is sufficient urgency to warrant scheduling the case in priority to other cases that have been waiting for a date and are ready to proceed. The court does not expect to have difficulty scheduling return dates once there is a realistic schedule to which all parties will be bound, but at the moment – if the parties agree to such a schedule in August 2020 – that return date is likely to be in January or February 2021. The court asks that counsel try to develop a schedule to which they can all agree, that will see all materials filed at least three weeks prior to the date the application is returned before the court (to give the court time to distribute the materials, to obtain bench memos from judicial clerks, and for the judges to prepare for the application).

[5] On a provisional basis counsel agreed that the application will likely require two full days to argue (assuming that the Fort William application is converted into an action).

[6] Any party may request a further case management conference with the court; the parties should expect that future teleconferences will be available roughly three weeks after a request is made.

[7] After this endorsement was prepared but before it was released, the court heard from the office of requesting counsel and determined that no notice of the teleconference was given to requesting counsel through an error by court staff. If requesting counsel wishes to schedule a fresh teleconference, the court will do so. The court would ask, however, that counsel try to agree upon a schedule before conducting the next teleconference.

D.L. Corbett J.

Date: August 12, 2020