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.

The appellants appealed a trial judgment declaring that approximately 1.4 miles of coastline (the Disputed Beach) forms part of the Saugeen Indian Reserve No. 29 under Treaty 72 of 1854.

The trial judge found that the Crown breached its fiduciary duty and acted dishonourably when a surveyor improperly excluded the beach from the reserve boundaries.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's application of treaty interpretation principles or her assessment of the historical record.

The Court also upheld the trial judge's decision to deny the bona fide purchaser for value defence to private landowners, prioritizing the First Nation's constitutionally protected treaty rights.

A cross-appeal by Canada regarding the allocation of pre-Confederation liability was allowed and referred to the next phase of the trial.

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.

The appellants, the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation, appealed the dismissal of their claim for Aboriginal title to submerged lands in Lake Huron and Georgian Bay, and their claim for breach of fiduciary duty regarding the Crown's failure to protect their lands from settler encroachment under Treaty 45 ½.

The Court of Appeal upheld the trial judge's dismissal of the broad Aboriginal title claim but remitted the matter to determine if title could be established over a smaller, specific area.

The Court affirmed that the Crown breached its treaty promise and the honour of the Crown by failing to diligently protect the lands, but agreed no fiduciary duty was owed.

The Court also allowed the municipalities' cross-appeal, dismissing the action against them on the basis that a constructive trust over municipal roads was an inappropriate remedy.

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.

The Chippewas of Saugeen First Nation brought an action seeking a declaration that a 1.4-mile strip of Sauble Beach (the Disputed Beach) is part of their unsurrendered reserve land under Treaty 72 of 1854.

The court found that the Imperial Crown's surveyor, Charles Rankin, improperly marked the northern terminus of the reserve's eastern boundary further south than the Treaty stipulated, depriving the First Nation of the promised coastline.

The court held that the Imperial Crown and the federal Crown breached their sui generis fiduciary duties and acted inconsistently with the honour of the Crown by failing to properly survey, protect, and preserve the reserve.

The court rejected the defendants' arguments that the First Nation's claim was defeated by Crown patents, the doctrine of bona fide purchaser for value without notice, the Limitations Act, laches, dedication, or proprietary estoppel.

The court declared that the Disputed Beach remains unsurrendered reserve land for the sole use and benefit of the First Nation.

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 Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.

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.

Ontario brought a motion to quash an application by the Thessalon First Nation regarding the size of its reserve under the Robinson-Huron Treaty of 1850.

Ontario argued the complex historical and treaty issues required a trial rather than an application.

The court agreed that the matter required a proper evidentiary foundation and ordered the application converted to an action under Rule 38.10(1)(b), with a staged litigation process to follow.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The plaintiffs brought a motion on consent to place the action in abeyance pursuant to s. 106 of the Courts of Justice Act.

The action involves complex issues of Aboriginal title relating to water and floodplains in Southern Ontario, which are also being addressed in a separate proceeding.

The court agreed that it would be disproportionate and inefficient to advance this action concurrently and ordered the matter placed in abeyance.

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.

The applicant brought a motion for contempt against the respondents, a church and its elders, for breaching a court order that restrained them from holding gatherings of more than 10 persons in contravention of COVID-19 regulations.

The respondents did not oppose the motion.

The court applied the three-part test for civil contempt and found beyond a reasonable doubt that the order was clear, the respondents had notice of it, and they intentionally breached it by holding a service with approximately 225 people.

All respondents were found in contempt, and the matter was adjourned for sentencing.