Roger Townshend

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 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.

The proposed intervenor, WIFN, brought a motion for leave to intervene as a party in an application between HDI and Ontario.

WIFN sought to intervene to contest HDI's claimed rights under the Nanfan Treaty, arguing that any court acknowledgment of such rights could prejudice WIFN's interests in future proceedings.

The court dismissed the motion, finding that WIFN had no interest in the substantive outcome of the procedural application and that adding WIFN would substantially delay and broaden the scope of the proceedings.

The court noted that WIFN's concerns were mitigated by HDI's voluntary amendment of its notice of application.

The complainant, a senior operator in a safety-sensitive position, disclosed a past alcohol problem pursuant to the employer's new Alcohol and Drug Policy.

Despite having been abstinent for over seven years, he was reassigned to a lower position and later reinstated subject to rigorous, unannounced testing and controls.

The Board of Inquiry found that past alcoholism constitutes a handicap under the Human Rights Code.

The Board held that the employer's mandatory self-disclosure, automatic reassignment, and excessive reinstatement controls amounted to direct discrimination.

While freedom from alcohol impairment is a bona fide occupational requirement for safety-sensitive jobs, the employer failed to prove that the complainant was incapable of performing his duties or that the intrusive measures were reasonably necessary.

The employer also failed to meet its duty to accommodate, as less drastic means of assessment, such as supervisory monitoring, were available.

The complainant, who had previously been reassigned due to past alcohol dependency, sought to expand the scope of his human rights complaint to challenge the respondent's random drug testing policy.

The complainant argued he was at risk of discipline because he took a prescription medication containing codeine for a knee injury.

The Board of Inquiry granted the motion to expand the hearing's scope, finding the complainant had standing to challenge the policy.

The Board also allowed an amendment to the complaint to allege that the distribution of the policy violated s. 13 of the Human Rights Code.