Richard Grayson Ogden

This costs endorsement follows the dismissal of appeals by the Attorney General of Ontario, His Majesty the King in Right of Ontario, the Town of South Bruce Peninsula, Alberta Lemon, and the Estate of Barbara Twining, and the allowance of the cross-appeal by the Attorney General of Canada and His Majesty the King in Right of Canada.

The Court orders the Town and the Families to pay costs to the Chippewas of Saugeen First Nation and the Town to pay costs to Canada, finding the amounts sought reasonable in light of the complexity and significance of the appeal.

Ontario appealed from the Court of Appeal's decision concerning the Robinson Treaties of 1850, which contained an Augmentation Clause providing for periodic increases to annual payments to the Anishinaabe of Lake Huron and Lake Superior contingent on economic conditions.

The annuities had been frozen at $4 per person since 1875.

The Supreme Court of Canada held that treaty interpretation is reviewable on a correctness standard, and adopted the fourth interpretation of the Augmentation Clause: the annuity is a single payment to the 'Chiefs and their Tribes', with mandatory increases to $4 per person where economic conditions permit, and discretionary increases beyond $4.

The Crown's discretion is not unfettered; it must be exercised diligently, honourably, liberally, and justly, consistently with the honour of the Crown.

No specific fiduciary duties arose in respect of the Augmentation Clause, but the duty of diligent implementation did.

The breach of treaty claims were not statute-barred.

The appeals were allowed in part, cross-appeals dismissed, and a declaration issued directing the Crown to engage in time-bound negotiations with the Superior plaintiffs regarding compensation for past breaches.

The Chippewas of Saugeen First Nation, having been entirely successful in the liability phase of a bifurcated proceeding concerning the status of the "Disputed Beach" as reserve land, sought costs.

This endorsement addresses the costs awards and apportionment among the multiple defendants.

The court awarded Saugeen their costs on a partial indemnity scale, totaling $3,221,802.54, on a joint and several liability basis.

These costs were apportioned for indemnification purposes among Canada (10%), Ontario (40%), and the Town of South Bruce Peninsula (50%).

Additionally, the court granted Canada a Sanderson order, requiring the Town to pay Canada $470,000 in partial indemnity costs, recognizing Canada's success on the essential issue of the reserve boundary location.

The Town's claim for costs against Canada was dismissed.

The Missanabie Cree First Nation appealed a trial decision that determined the "crystallization date" for calculating their Treaty No. 9 reserve land entitlement was 1906, the year they adhered to the Treaty.

The Court of Appeal dismissed the appeal, affirming that the trial judge correctly interpreted the Treaty's reserve clause and the common intention of the parties, and properly distinguished other treaty cases.

The court also addressed ancillary issues, admitting fresh evidence of a settlement between Canada and MCFN, lifting a sealing order on the settlement, and dismissing Canada's abuse of process motion to dismiss the appeal against it.

This costs endorsement addresses the entitlement of the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON) to costs from Ontario following a partially successful appeal.

SON had sued Canada and Ontario for Aboriginal title to submerged lands and for breaches of fiduciary duty.

The Court of Appeal allowed SON’s title claim appeal to the extent of remitting the matter back to the trial judge for a determination on a more limited portion of the claim area, while dismissing their treaty claim appeal.

SON had settled costs with Canada and was not seeking costs for the treaty claim.

The court found that SON was the overall successful party on the title claim appeal against Ontario, as they obtained the relief sought (remittal), and Ontario's position was to dismiss the claim entirely.

The quantum of costs sought by SON was deemed reasonable given the complexity and public importance of the appeal.

This decision provides supplementary reasons for judgment in a land claim case.

Following an earlier declaration that a substantial portion of Sauble Beach was reserved for the sole use and benefit of the Chippewas of Saugeen First Nation and forms part of Saugeen Indian Reserve No. 29, the court considered whether to grant a life interest in certain 'Disputed Lots' to current family title owners (Landowners).

The Chippewas of Saugeen First Nation and Canada opposed this.

The court determined it lacked jurisdiction to impose a proprietary interest contrary to the Indian Act and Constitution Act, as reserve land is inalienable.

It also found that granting such an interest would not advance reconciliation.

Consequently, the temporary delay in the original declaration that no third parties have an interest in the land was terminated, making the declaration effective immediately.

The respondent Chippewas of Nawash Unceded First Nation brought a motion to strike portions of affidavits filed by the respondent Troy James Hunter and the applicant Ontario Heritage Trust, arguing settlement privilege.

The motion arose from an underlying application by the Trust seeking removal of encroachments by Hunter on a sacred site co-managed by the Trust and Chippewas.

The court dismissed the motion, finding that Chippewas lacked standing to assert privilege over communications between the Trust and Hunter, and that the Trust had waived its own settlement privilege by disclosing and relying on settlement communications in both a prior regulatory proceeding and the current application.

The court emphasized that privilege issues should be decided by the motion judge, not deferred to the application judge.

This decision addresses a motion for intervener status in an appeal concerning novel issues of Aboriginal title to submerged lands and the public right of navigation.

The Court of Appeal for Ontario granted intervener status to four Indigenous communities, finding they could make a useful contribution to the appeal.

The order stipulated that interveners could not raise new issues and that affidavits filed in support of the motions were for contextual purposes only, not for adjudicative facts.

This is an appeal management endorsement providing directions for an appeal concerning the determination of the Missanabie Cree population for Treaty 9 reserve entitlement.

The endorsement addresses issues with exhibit books, factum lengths, electronic document formats, a timetable for materials, motions for leave to intervene, oral hearing compendia, and sets a hearing length and date.

It also provides general notice for intervention motions.

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 Court of Appeal for Ontario heard motions for leave to intervene from three public interest organizations (1492 Windsor Law Coalition, Aboriginal Legal Services, and Canadian Civil Liberties Association) in an appeal concerning the striking of an Indigenous appellant's pleadings and a substantial costs award in an injunction proceeding related to a land dispute.

The motions judge had found the appellant in contempt of court.

The Court dismissed all motions for intervention, finding that 1492 WLC and ALS's submissions inappropriately expanded the legal issues on appeal by focusing on injunctions, and CCLA's submissions largely overlapped with the appellant's arguments.

The court concluded that the appellant could adequately address the Indigenous perspective.

No costs were awarded against the proposed interveners.

The Attorney General of Ontario brought a motion to determine the appropriate sentence for Trinity Bible Chapel and six individuals (the "Contemnors") who were found in contempt of a January 22, 2021 court order.

The order restrained them from holding gatherings of more than 10 persons, contravening Ontario Regulation 82/20.

The Contemnors had intentionally and publicly breached the order, having previously expressed an intent to engage in civil disobedience rather than challenge the legislation constitutionally.

The court considered proportionality, mitigating and aggravating factors, deterrence, denunciation, and similar sentences.

The court imposed fines totaling $38,000 ($15,000 for Trinity Bible Chapel, and varying amounts for the individual Contemnors based on their involvement) and fixed costs of $45,000 on a substantial indemnity basis, payable jointly and severally by the respondents.

This endorsement addresses two motions to intervene in a land claim action brought by the Cree Nation of Eeyou Istchee against the Crown.

The Moose Cree First Nation sought to intervene as a necessary party, claiming exclusive Aboriginal title to a portion of the disputed lands.

The Nishnawbe Aski Nation (NAN), a political territorial organization representing 49 First Nations, sought to intervene as an added party, asserting a general interest in the interpretation and application of Treaty #9.

The court granted the Moose Cree First Nation status as a necessary party without conditions under Rule 5.03, acknowledging its direct territorial claim.

The Nishnawbe Aski Nation was granted status as a friend of the court under Rule 13.02, with specific limitations on its participation, as it lacked a direct or immediate interest in the substance of the claim independent of its members.

The court emphasized the complexity of multi-lateral disputes between First Nations in the context of reconciliation.

The plaintiffs sought damages arising from the termination of a memorandum of understanding and a subsequent agreement relating to the proposed development of an 80 MW wind energy project on the defendant's industrial lands.

The court held that both documents were largely agreements to agree and therefore unenforceable with respect to the broader development and lease arrangements.

However, the documents imposed limited binding obligations, including a requirement to provide 60 days’ notice before termination of the memorandum and an obligation to allow access for wind measurement under the second agreement.

The defendant breached those obligations by terminating immediately and preventing continued wind testing.

Claims for fiduciary duty, breach of confidence, unjust enrichment, partnership, and loss of chance damages were rejected.