Robert Ratcliffe

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.

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 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.

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.

This motion concerned the certification of a proposed class action against the provincial government regarding the negligent operation and administration of social assistance programs for developmentally disabled adults.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of section 7 of the Canadian Charter of Rights and Freedoms, primarily due to indeterminate waitlists and flawed prioritization for approved services.

The court certified the class action, allowing the negligence and Charter claims to proceed, but struck the breach of fiduciary duty claim.

Common issues related to duty of care, Charter rights, and the availability of punitive damages were certified, while aggregate damages and the amount of punitive damages were not.

The defendant, Her Majesty The Queen in Right of Ontario, brought a motion to stay an order dated August 4, 2017.

Following the Divisional Court's dismissal of Ontario's motion for leave to appeal on October 3, 2017, the Superior Court of Justice dismissed the motion to stay as moot.

Costs of the motion were reserved to the disposition of the defendants' motions for summary judgment.

The plaintiffs sought costs of $132,992.26 after successfully opposing the defendants' motions to quash summonses.

The defendants argued that costs should be reserved to the disposition of upcoming summary judgment motions, or alternatively that the costs claimed were excessive.

The court found that the plaintiffs' costs outline did not sufficiently delineate the time spent on the motions to quash versus other related motions.

Due to the lack of required facts and detailed submissions, the court reserved the costs of the motions to quash to the hearing of the motions for summary judgment.

The defendants, Ontario and OLG, brought motions to quash summonses to witness served by the plaintiffs on 13 non-parties, including former and current Cabinet ministers, in advance of pending summary judgment motions.

The plaintiffs sought to examine these witnesses under Rule 39.03 regarding the cancellation of the Slots at Race Tracks Program (SARP).

The court held that the defendants had standing to challenge the summonses and that the plaintiffs had met the low threshold of showing the proposed witnesses might have relevant evidence.

The court rejected arguments that the examinations were an abuse of process or barred by Cabinet confidentiality at this stage.

However, the court quashed the summonses served on Premier Kathleen Wynne and Minister Ted McMeekin on the basis of parliamentary privilege, as they were sitting members of the legislature.

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

The plaintiffs, former inmates of the Elgin-Middlesex Detention Centre, brought a motion to certify a class action against the provincial Crown alleging systemic negligence and Charter breaches resulting from overcrowding and inadequate supervision.

The Crown opposed certification and moved to strike portions of the claim and evidence.

The court struck the claim for breach of fiduciary duty but found the pleadings otherwise disclosed reasonable causes of action in systemic negligence and Charter breaches.

The court admitted the plaintiffs' evidence for the limited purpose of the certification motion and concluded that all criteria under section 5(1) of the Class Proceedings Act were met.

The motion for certification was granted.

This decision approves a $35.9 million class action settlement and legal fees for a fourth class action concerning abuses in provincial "Schedule 1" facilities.

The settlement mirrors three previous approvals (Huronia, Rideau, Southwestern) and provides a claims-based compensation scheme for individuals with developmental disabilities who resided in 12 named facilities.

The court found the settlement to be fair and reasonable, particularly because the Huronia settlement, which served as the template, was reached just before trial, ensuring counsel had a comprehensive understanding of litigation risks and rewards.

The applicant sought a declaration that its proposed expansion of insurance business would not contravene s. 2(5) of the Architects Act.

The declaration was intended to address a concern raised by the Financial Services Commission of Ontario regarding the applicant’s plan to expand its insurance offerings beyond architects.

The court held that although it had jurisdiction to interpret the statutory provision, the issue arose within a comprehensive regulatory scheme under the Insurance Act assigning decision‑making authority to the Superintendent of Financial Services.

Applying principles of administrative law and deference to specialized tribunals, the court declined to exercise jurisdiction.

The matter should first be determined through the statutory licensing process before the regulator, subject to subsequent review or appeal.

The plaintiffs and the defendant OLG brought cross-motions regarding discovery in an action for damages arising from the cancellation of the Slots at Racetrack Program.

The plaintiffs sought an order compelling OLG to produce relevant emails sent or received by current and former OLG employees on personal, non-OLG email accounts, and to produce OLG's email use and document retention policies.

OLG sought leave to conduct an advance form of discovery by written questions prior to oral examinations.

The court adjourned both motions, ordering OLG to produce its IT and document retention policies for the court's review, and granting the parties leave to file further affidavit evidence regarding OLG's request for written particulars.

The applicant insurer sought a declaration that a proposed expansion of its insurance business was not inconsistent with s. 2(5) of the Architects Act.

During the hearing, the court raised concerns regarding whether it had jurisdiction to determine the issue in the absence of an adverse regulatory decision from the Financial Services Commission of Ontario.

The court noted the need to avoid undermining the statutory administrative regime by creating an alternate forum for determining issues within the regulator’s mandate.

Because the record and submissions were insufficient to resolve the jurisdictional question, the court adjourned the application and directed further materials and supplementary factums addressing jurisdiction.

In a motion under the Class Proceedings Act, 1992, class counsel sought court approval of legal fees following settlement of three related institutional abuse class actions involving provincially operated facilities for individuals with developmental disabilities.

The settlements created a total fund of $67.7 million, with additional administration and notice costs bringing the total cash value to approximately $70.7 million.

Class counsel requested $14 million in fees, representing approximately 20.68% of the settlement fund, plus disbursements and taxes.

The court applied the established factors for approving class counsel fees, including litigation risk, complexity, time invested, results achieved, and expectations of the class.

Finding the requested contingency fee within the common range for class actions and reasonable given the risks and work performed, the court approved the fees, disbursements, taxes, and the allocation of fees among the three actions.

The plaintiffs brought a motion for approval of settlements in two class actions against the Crown regarding the operation of the Rideau Regional Centre and the Southwestern Regional Centre, residential facilities for individuals with developmental disabilities.

The plaintiffs alleged negligence and breach of fiduciary duties resulting in harm and abuse.

The court approved the settlements, which included a $32.7 million settlement fund, a claims-based compensation scheme, an apology from the Premier, and other non-monetary benefits, finding them fair, reasonable, and in the best interests of the class members.

The plaintiffs moved for approval of a $35 million settlement in a class action against the Crown regarding alleged negligence and breach of fiduciary duties at the Huronia Regional Centre, a residential facility for individuals with developmental disabilities.

The settlement included a claims-based compensation scheme, an apology from the Crown, and various non-monetary benefits.

The court found the settlement to be fair, reasonable, and in the best interests of the class, considering the litigation risks and the advanced age of the class members.

The court also approved a $15,000 honorarium for each of the representative plaintiffs.

Following certification of a class proceeding concerning alleged systemic abuse at a provincial institution, the court determined the appropriate costs award for the certification motion.

The plaintiff sought full indemnity costs, arguing that the defendant increased litigation expenses by delaying disclosure of its position and by re‑litigating issues previously rejected in similar proceedings.

The court held that while the defendant’s conduct was frustrating, it did not reach the threshold of “reprehensible, scandalous or outrageous” behaviour required for full indemnity costs.

However, because the plaintiff had delivered an unaccepted offer to settle, Rule 49.10 of the Rules of Civil Procedure justified partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The requested amounts were found reasonable and were awarded accordingly.

In a certified class proceeding concerning alleged systemic abuse and mistreatment of residents at a provincial facility for individuals with developmental disabilities, the plaintiffs brought a Rule 21 motion seeking a pre‑trial determination that the defendant owed the class a duty of care and fiduciary duty.

The defendant opposed the motion, arguing that the existence and scope of such duties required a full evidentiary record and should be determined at the common issues trial.

The court held that deciding only part of the duty analysis prior to trial would improperly fragment the inquiry and risk duplicative consideration of evidence.

Exercising case management powers under s. 12 of the Class Proceedings Act, 1992, the court directed that the motion not proceed before the common issues trial.