Owen D. Young

The parties made costs submissions following an appeal.

Given the divided success of the parties, the Court of Appeal ordered that there be no costs awarded for the motion for leave to appeal or the appeal.

The appellants appealed a Divisional Court order that set aside the conditional certification of their proposed class action against Canada regarding the placement of Aboriginal children in non-Aboriginal foster care.

The Court of Appeal upheld the Divisional Court's finding that the case management judge erred by conditionally certifying the action when the statement of claim did not disclose a viable cause of action.

The Court also agreed that the certification motion should be heard by a different judge to avoid the original judge sitting in review of his own decision.

However, the Court allowed the appeal regarding costs, quashing the Divisional Court's costs award because it failed to consider the public interest and novel legal issues raised by the case.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.