CITATION: Apitipi Anicinapek Nation v. Ontario, 2025 ONSC 5033
DIVISIONAL COURT FILE NO.: 656/24
DATE: 20251119
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: APITIPI ANICINAPEK NATION, Applicant/Responding Party on Motions
AND:
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, MINISTER OF NATURAL RESOURCES, ONTARIO POWER GENERATION INC., FIRSTLIGHT POWER AND ALGONQUIN POWER & UTILITIES CORP., Respondents/Moving Parties
BEFORE: Sachs, Backhouse and Matheson JJ.
COUNSEL: Saba Ahmad and Kelsie McNeil, for the Applicant/Respondent on the Motions
Susan Keenan and Kristina Yeretsian, for the Respondents/Moving Parties
Andrae Shaw, for the Respondent Ontario Power Generation Inc.
Robin Linley and Ryan McNamara, for the Respondent FirstLight Power
W. David Rankin, for the Respondent Algonquin Power & Utilities Corp.
HEARD at Toronto: November 13, 2025
ENDORSEMENT
[1] His Majesty the King in right of Ontario and the Minister of Natural Resources (MNR) (together, the moving parties) have brought two motions:
(1) a motion to quash part of the underlying application for judicial review for lack of jurisdiction; and,
(2) a motion to strike out certain evidence put forward by the applicant Apitipi Anicinapek Nation (AAN) in support of the application for judicial review.
[2] The AAN asks that both motions be dismissed. On the evidence motion, in the alternative, the AAN submits that the motion should be adjourned to be heard by the panel hearing the application for judicial review.
[3] The respondents Ontario Power Generation Inc., FirstLight Power, and Algonquin Power & Utilities Corp. support the motions and do not make separate submissions.
[4] The motion to quash is granted on terms as set out below.
[5] The motion to strike out certain evidence is adjourned to the panel hearing the application for judicial review.
Brief background
[6] The underlying application for judicial review challenges the October 1, 2024 decision of the MNR in connection with the Abitibi River Water Management Plan (the Decision).
[7] In 2024, the AAN requested a meeting with the MNR about the Abitibi River Water Management Plan. By letter dated May 29, 2024, the AAN wrote giving notice of its requirement that the River Management Plan be amended as a result of a dam breach in July of 2023. The AAN sought remedies that included monitoring and oversight of the water management facilities. However, the AAN indicated that it could not propose specific amendments without a fully funded engagement between the parties. The AAN indicated that it had to undertake research and analysis on how the Plan should be amended.
[8] The MNR and AAN met in July 2024. The AAN put forward proposals for consideration. As set out in the Decision letter dated October 1, 2024, the MNR responded to and declined the proposals, giving reasons for doing so. In short, the MNR indicated that the AAN’s concerns did not fall within the scope of the Lakes and Rivers Improvement Act, R.S.O. 1990, c. L.3 (the LARIA), under which the River Management Plan was made, and therefore could not be addressed through proposed changes to the Plan. Similarly, the AAN’s request for funding to undertake the necessary research was declined.
[9] The AAN then brought this application for judicial review.
[10] In the application for judicial review, the AAN seeks two sets of remedies (only the second of which is at issue on the jurisdiction motion):
(1) The AAN seeks to quash the Decision as unreasonable and not in compliance with the moving parties’ duty to consult and also seeks a mandatory order that the MNR engage with the AAN and enter into an agreement as proposed.
On the jurisdiction motion, there is no issue that the AAN can proceed with this challenge to the Decision in this application for judicial review.
(2) The AAN also seeks a declaration “that the [LARIA], and related regulations and policies is unconstitutional” as inconsistent with s. 35 of the Constitution Act, 1982. The declaration is sought pursuant to s. 52 of the Constitution Act, 1982 and r. 14.05(3)(g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The AAN seeks an order that the LARIA be amended within one year after the s. 52 declaration to provide for the duty to consult to be triggered and met.
This is the claim for relief that is challenged on the jurisdiction motion (the “Constitutional Challenge”).
[11] In the facta and oral submissions, there was a dialogue about what was within the AAN’s Constitutional Challenge as set out in the notice of application for judicial review. The AAN states in its factum and oral submissions that it is not challenging LARIA as a whole. The AAN submits that it challenges the LARIA “Regime”. As put in its factum, that Regime “includes regulations and policies, and also Ontario’s implementation of the [LARIA] Regime.”
[12] The AAN submits that it is the absence of certain things in the Regime that is unconstitutional. For example, the AAN does not say that one or more of the existing regulations under the LARIA are unauthorized or invalid. The AAN submits that the omission of certain kinds of regulation is the problem. In short, the AAN submits that the Regime should invoke the duty to consult and permit its proposal, and if it does not, it is unconstitutional.
[13] The moving parties submit that this Constitutional Challenge is not within the jurisdiction of the Divisional Court on this application for judicial review. Instead, it should be proceeding as an application in the Superior Court of Justice.
[14] This is an issue about where, not whether, the Constitutional Challenge can be pursued. Further, the moving parties agree that there are no time constraints that preclude proceeding with it in the Superior Court.
Motion to Quash
[15] The moving parties therefore move to strike out those parts of the notice of application for judicial review that seek relief under s. 52 of the Constitution Act, 1982, as set out in the notice of motion, and the related notice of constitutional question. The AAN disagrees, submitting that the Divisional Court has jurisdiction.
[16] The substantive jurisdiction of the Divisional Court is statutory. It is a court of review. It has statutory appellate jurisdiction as set out in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the CJA) and other statutes, which is not at issue here. Its jurisdiction on applications for judicial review, which is at issue here, is found in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA).
[17] Contrary to the AAN’s submissions, the Divisional Court’s status as a Branch of the Superior Court does not transform its substantive jurisdiction to include the broad inherent jurisdiction of a Superior Court judge. Nor does r. 14.05 of the Rules of Civil Procedure expand the Court’s substantive jurisdiction on an application for judicial review: J.N. v. Durham Regional Police Service, 2012 ONCA 428, at para. 16.
[18] Section 2 of the JRPA sets out this Court’s jurisdiction for an application for judicial review. It is limited to applications for an order “in the nature of mandamus, prohibition or certiorari”, and other proceedings for a declaration or injunction “in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power”. The Constitutional Challenge put forward in this application for judicial review does not fall within this jurisdiction.
[19] The JRPA defines “statutory power” and “statutory power of decision” in s. 1. The closest the Constitutional Challenge comes to falling within that definition is the general reference to regulations as part of the LARIA “Regime”. However, the application for judicial review does not assert that any regulation made under LARIA is unauthorized or invalid. The AAN is concerned about the absence of a statutory power to proceed with its proposal to the MNR under LARIA. The AAN seeks an order that the LARIA Regime be amended within one year after the requested s. 52 declaration to provide for the duty to consult under s. 35 to be triggered and met.
[20] With respect to s. 35 of the Constitution Act, 1982, legislation and the exercise of statutory powers must comply with s. 35. However, s. 35 is not itself a statutory power under the JRPA: Whiteduck v. Ontario, 2023 ONCA 543, para. 60; JRPA, s. 1; Legislation Act, 2006, S.O. 2006, c. 21, Sch F, s. 87.
[21] Further, the legislative process at large is not the exercise of a statutory power: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 2, 18, 33, 38, per Karakatsanis J; Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div. Ct.), at para. 38.
[22] Nor is this a question of which procedure is preferrable. “Once jurisdiction is determined, then the procedure to be followed is the procedure prescribed in the forum with jurisdiction”: Alford v. Law Society of Upper Canada, 2018 ONSC 4269, at para. 45.
[23] The AAN further submits that this Court may hear the Constitutional Challenge because it is ancillary to the judicial review of the Decision. Most germane are two decisions of this Court: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks), 2022 ONSC 6859 and Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks), 2023 ONSC 5708.
[24] In Mississauga First Nation, at para. 54, the Court found that a constitutional challenge to amendments to legislation was ancillary to and dependent on the determination of the duty to consult in a judicial review application. However, in that case, the Court found that there was a refusal to exercise a statutory power, based on an unreasonable delay of about three years in addressing the application for judicial review, during which time the legislation was amended to remove a key statutory provision. Similarly, in Regional Municipality of York, an environmental assessment was pending for several years during which an amendment was passed that rendered the matter moot.
[25] We do not have like circumstances in this case. There was no inter-related step taken after the Decision to undermine the challenge to the Decision in this application for judicial review. The Constitutional Challenge to the entire Regime, and related request that the Regime be amended, is not merely support for the judicial review. It is a request for broad primary relief including legislative amendments and should be decided by a Superior Court judge. The provincial superior courts have always occupied a position of prime importance to rule on the constitutional validity of legislation: MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725, at pp. 752-753. The cases relied upon by the AAN do not approach what would be needed to show that the Constitutional Challenge is ancillary to this application for judicial review.
[26] Having considered all the AAN submissions, we conclude that the Constitutional Challenge plainly does not fall within the jurisdiction of this Court under s. 2(1) of the JRPA. That claim is properly addressed before the Superior Court, not in this application for judicial review.
[27] In reaching this decision, we have taken into account the importance of s. 35 of the Constitution Act, 1982, and all that it serves, as well as the importance of access to justice. While those principles do not expand the Court’s jurisdiction as broadly as is suggested by the AAN on this motion, they are reasons to exercise our jurisdiction to transfer the Constitutional Challenge to the Superior Court along with terms to facilitate a smooth transfer.
[28] We therefore transfer the Constitutional Challenge to the Superior Court and do so on the following terms to facilitate that process:
(i) the application for judicial review shall continue in this Court, with an amended notice of application as the next step;
(ii) the parties shall email this Court within one week from today with their agreed-on proposal for amendments to the current schedule for the application for judicial review (or their individual proposals, if there is no agreement), which is scheduled for March 2026, and seek directions;
(iii) the Constitutional Challenge shall be transferred to the Superior Court, including any and all records filed in the Divisional Court that a party wishes to have included in that transfer;
(iv) there shall be no additional court filing fees for the filing of any court documents in the Superior Court that have been filed in the Divisional Court; and,
(v) arrangements have been made (and shall form part of a case management email) for a prompt judicial case conference before a Toronto Civil Team Lead to address a notice of application for the Constitutional Challenge and any other process needed to facilitate the transfer, as well as the scheduling of the Superior Court application.
Motion to strike out evidence
[29] The AAN has delivered four affidavits in support of the application. Two of the affidavits offer expert evidence that was not before the MNR when the Decision was made, as follows:
(i) Affidavit of Robert McCullough, offering an opinion on the adequacy of the above Abitibi River Water Management Plan to monitor, analyze, limit or mitigate the risks and impacts of dam failures; and,
(ii) Affidavit of Dr. Annette Luttermann, offering a comparative analysis of water management regimes, dam safety regulation and cumulative environmental impacts of dams and dam operations.
[30] The above affidavits are the subject of the motion to strike. As well, part of the affidavit of Andrew Bubar is the subject of the motion to strike. Mr. Bubar’s affidavit indicates that he is a Water and Geochemistry Specialist Consultant who has acted as an advisor to First Nations, including the AAN, on land and resource matters. The moving parties seek to strike out paras. 18, 19, 21, 22, 27 and 28 of his affidavit.
[31] The fourth affidavit is from Chief June Black, a member and the present Chief of AAN. This affidavit is not the subject of the motion to strike.
[32] The motion to strike is based on two grounds: first, that some of the challenged evidence is not within the limits that apply to supplementing the record on an application for judicial review; and, second, that some of that evidence is inadmissible in any event.
[33] There is no issue that the evidence on an application for judicial review is limited to the evidence before the decision-maker, with limited exceptions: Humberplex Developments v Attorney General for Ontario, 2023 ONSC 2962 (Div. Ct.), at para. 15. In addition to those exceptions, AAN relies upon Mississauga First Nation. As set out in para. 10 of Mississauga First Nation, this Court noted that “courts have recognized an exception to the rule against extrinsic evidence in judicial review applications to allow evidence that the Crown had a duty to consult. This is generally treated as a subset of the rule permitting evidence on issues of procedural fairness.”
[34] The AAN submits that, to the extent that the challenged evidence is not permitted under the other exceptions, it is permitted under the exception for evidence about the nature and scope of the duty to consult in this case. As noted by the AAN, the exception relates to the nature and scope of the duty, not the reasonableness of the Decision.
[35] There is no question that this type of motion may be brought in advance of the hearing of the application, but if it is, all or part of the motion may be adjourned to the panel hearing the application. Courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits: Humberplex Developments, at para. 10. The AAN submits that this is not a case in which to depart from that general reluctance.
[36] Having considered the submissions of the parties, we conclude that in this instance the motion should be adjourned to the panel hearing the application for judicial review as amended above.
[37] If the moving parties wish to pursue this motion in the Constitutional Challenge in the Superior Court, that should be raised at the judicial case management conference before the Civil Team Lead referred to above.
Orders
[38] The motion to quash is granted on the terms set out in para. 28, above, with costs to the moving parties, fixed at the total amount of $5,000, in the cause of the application for judicial review.
[39] The motion to strike out certain evidence (and related costs claims) is adjourned to the panel hearing the application for judicial review.
Sachs J.
Backhouse J.
Matheson J.
Date: November 19, 2025