Paul Seaman

The Algonquins appealed a motion judge's decision to strike most of their claims against Ontario and the Métis Nation of Ontario regarding harvesting rights.

The core issue was Ontario's duty to consult and accommodate Algonquin interests before recognizing Métis communities and extending unlimited harvesting rights, which allegedly impacted Algonquin resources.

The Court of Appeal found the motion judge erred in striking claims for declaratory relief based on standing and in compelling the Algonquins to pursue judicial review instead of an action.

The court emphasized a generous approach to pleadings in Indigenous cases and that the duty to consult provides standing for consequential relief.

The appeal was allowed, reinstating most of the Algonquins' claims, while the cross-appeals by Ontario and the Métis Nation were dismissed.

The moving parties brought a motion for leave to appeal an order dated September 18, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding plaintiffs in the amount of $4,625.00 on a partial indemnity basis.

Following the settlement and abandonment of an application for judicial review regarding the Crown's duty to consult, the interveners and the respondent Ontario Power Authority sought costs against the applicants.

The Divisional Court dismissed the requests for costs.

The court held that interveners typically do not receive costs and that imposing costs on First Nations in disputes concerning constitutional rights and reconciliation would inappropriately deter such claims.

The court also denied costs to the Ontario Power Authority, noting it played a secondary role and the Crown itself did not seek costs.

Following a successful motion by the interveners for a Kelly v. Canada order in an Aboriginal rights judicial review application, the parties could not agree on costs.

The interveners sought costs in the cause fixed at $13,500, arguing the applicants used hardball tactics by threatening substantial indemnity costs.

The court declined to fix costs, noting that threats of substantial indemnity costs are often empty and did not deter the interveners' counsel.

The court ordered costs in the cause, as the appropriate procedure for Aboriginal rights claims remains a work in progress.

The interveners in a judicial review application concerning the Crown's duty to consult brought a motion for a Kelly v. Canada Order to add 28 Indian Bands as parties.

The applicants opposed the motion, arguing it was offensive to Aboriginal custom and unnecessary as they were the true rights holders.

The court granted the motion, finding that adding the bands as party respondents was necessary to ensure all potential rights holders were before the court and to avoid the risk of multiple proceedings and inconsistent results.

The interveners, H20 Power Limited Partnership and Resolute FP Canada Inc., were granted leave to intervene on restrictive terms.

Both the interveners and the applicants sought costs against each other for the motion.

The court found that success was divided, as neither party achieved their primary position.

Applying the general rule that interveners are not awarded costs and costs are not awarded against them, the court made no order as to costs.

H20 Power Limited Partnership and Resolute FP Canada Inc. brought a motion for leave to intervene as added parties in an application for judicial review concerning the Crown's duty to consult and accommodate the Anishinaabe Nation regarding hydroelectric contracts.

The applicants opposed full intervention, arguing it should be limited to the issue of relief.

The court found that the proposed interveners had a direct interest in the contracts and could provide a useful contribution regarding the operation of the generating stations.

Leave to intervene was granted, subject to conditions limiting their evidence and argument to avoid duplication and delay.