Owen Young

This case conference endorsement addresses several procedural issues in a complex litigation involving Six Nations of the Grand River Band of Indians, the Attorney General of Canada, and His Majesty the King in Right of Ontario.

Key issues include determining the venue for upcoming intervention motions, managing requests for participation from individuals in response to public notices, addressing the filing of a redacted motion record to protect privacy, setting procedures for evidentiary objections, approving a minor change to the online notice regarding hearing dates, and providing detailed CaseLines directions for electronic document management.

The court provided specific instructions for each of these procedural aspects to ensure the efficient and transparent progression of the litigation.

This appeal concerned the procedural fairness requirements when a court, on its own motion, strikes the pleadings of a self-represented Indigenous party for alleged contempt and abuse of process.

The motion judge had found the appellant, an alleged protest leader, in defiance of court orders, struck his pleadings, and granted a permanent injunction with significant costs.

The Court of Appeal found that the motion judge erred by conflating contempt and abuse of process, failing to provide the appellant with adequate procedural safeguards, and denying him a fair opportunity to be heard, especially given his self-represented and Indigenous status.

The appeal was allowed, the orders striking pleadings and granting the permanent injunction were set aside, and the costs award was also set aside.

The plaintiffs, beneficiaries of the Robinson Huron and Robinson Superior Treaties, brought a motion for partial summary judgment in Stage Two of their action against the federal and provincial Crowns.

They sought declarations that their claims for breach of the treaties' annuity augmentation promises were not barred by Ontario's limitations legislation or the doctrine of Crown immunity.

The Superior Court of Justice granted partial summary judgment on these issues, finding that treaties are not contracts or specialties subject to the Limitations Act, 1990, and that equitable claims for breach of fiduciary duty could historically be pursued by petition of right, thus falling outside Crown immunity under the Proceedings Against the Crown Act.

The court declined to grant summary judgment on the issues of joint and several liability and whether Canada should act as paymaster, deferring those matters to the Stage Three trial.

The Anishinaabe beneficiaries of the Robinson Huron and Robinson Superior Treaties of 1850 brought actions seeking declarations regarding the interpretation of the annuity augmentation clause in the Treaties.

The Treaties provided for a perpetual annuity that the Crown promised to increase if the ceded territory produced an amount enabling the Crown to do so without incurring loss, provided the amount paid to each individual did not exceed £1 ($4) per year, or such further sum as Her Majesty may be graciously pleased to order.

The Court held that the Crown has a mandatory obligation to increase the collective annuities when economic circumstances warrant, and that the $4 cap applies only to individual distributions, not the collective entitlement.

The Court also found that the Crown owes an ad hoc fiduciary duty to the beneficiaries to engage in the process of determining whether the economic circumstances warrant an increase.

The plaintiff brought a class action for damages arising from the "Sixties Scoop," alleging that Canada breached its obligation under the 1965 Canada-Ontario Welfare Services Agreement to consult Indian bands before extending child welfare services to reserves.

This failure resulted in the loss of aboriginal identity for thousands of children placed with non-aboriginal foster or adoptive parents.

The court granted the plaintiff's motion for summary judgment, finding Canada liable for breaching a common law duty of care, though it did not establish a fiduciary duty.

The case will proceed to the damages assessment stage.

Following a re-hearing of a class action certification motion relating to the ‘Sixties Scoop’, the court addressed costs after granting certification and dismissing the federal Crown’s motion to strike.

The plaintiffs sought substantial indemnity costs, but the court held that such costs require reprehensible or outrageous conduct and were not justified.

Applying a partial indemnity scale and reviewing historical certification-motion cost awards, the court found the plaintiffs’ request modest given the complexity of the litigation and the work spanning both the original and rehearing motions.

The court fixed costs at an all-inclusive amount reflecting fairness to the losing party and proportionality to comparable certification proceedings.

The plaintiffs brought a motion to certify a class action against the Federal Crown regarding the 'Sixties Scoop', alleging breach of fiduciary duty and negligence for funding provincial child welfare services that placed on-reserve aboriginal children in non-aboriginal homes without protecting their cultural identity.

The Federal Crown brought a cross-motion to strike the pleadings under Rule 21.

The court dismissed the motion to strike, finding it was not plain and obvious that the claims would fail, given the evolving nature of aboriginal law.

The court granted the certification motion, revising the class definition and common issues to focus specifically on the impact of the 1965 Canada-Ontario Welfare Services Agreement.