Court File and Parties

2015 ONSC 2275

COURT FILE NO.: 3509-14

DATE: 2015/04/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHIPPEWAS OF THE THAMES FIRST NATION (Applicant)

And:

KATHERINE DELEARY-FRENCH (Respondent)

BEFORE: Justice I. F. Leach

COUNSEL: John C. Peters, for the Applicant The Respondent, self-representing

HEARD: April 8, 2015

ENDORSEMENT

[1] Before me is an application requesting declaratory relief in relation to certain land located within a First Nations reserve.

[2] In particular, in its formal notice of application, the substantive relief sought by the Chippewas of the Thames First Nation was a declaration that it “has all legal interest and title in Lot MF-8, located within [its] reserve boundaries”.

[3] However, during the hearing before me, counsel for the Applicant confirmed that the relief being sought actually was less extensive. In that regard:

• It was acknowledged by the Applicant that reserve lands are Crown lands, and that, while such lands have been set apart by the Crown for the use and benefit of a band, with possession of reserve land capable of being allotted to an Indian Band or its members, (and only to a band and its members), title to such lands remains with the Crown. The Applicant therefore confirmed that the declaratory relief being requested inherently focused on legal interests short of title.
• Moreover, it also was acknowledged and confirmed that, in this proceeding at least, the Applicant was not in any way seeking relief confirming any right to its immediate possession of the lot in question, or any relief entailing immediate “dispossession” or removal from that land of the Respondent, (one of the Applicant’s band members who resides on the property and claims an interest therein). In particular, it was confirmed that the Applicant was not, by its current request for relief, seeking a determination that the Respondent had no rights in relation to the land in question.
• It was instead confirmed that, in relation to its current request for declaratory relief, the Applicant only seeks confirmation that it “holds the registered interest” in Lot MF-8 subject to the rights therein, if any, held by the Respondent and her former partner Brian French pursuant to their “Housing Loan Agreement” with the Applicant dated June 26, 1986. In other words, the Applicant confirmed that, in its current application at least, the Applicant was not seeking a conclusive determination or foreclosure of rights the Respondent and Mr French might have in relation to the property, pursuant to the aforesaid Housing Loan Agreement.

[4] Counsel for the Applicant did make an oral request, at the outset of the hearing before me, for an extension of injunctive relief initially ordered by Justice Mitchell on June 25, 2014, and prolonged by later orders, (made by Justice Leitch on July 15, 2014, and by Justice Mitchell on December 9, 2014), the effect of which nevertheless was due to expire at 4:30pm on the day of the hearing before me.

[5] However, as I indicated to counsel for the Applicant, there was no indication in the material before me that the Applicant had signalled any intention to pursue any further extension of that injunctive relief, (e.g., by way of a request for a permanent injunction), at the return of the application before me.

[6] In particular, no notice, evidentiary material or authority was delivered or filed by the Applicant in that regard, and the confirmation of application form provided to the court and the Respondent made no mention whatsoever of any intention to seek such further injunctive relief.

[7] The Respondent understandably therefore attended at court for the return of the application before me, without having made any preparations to address a request for further injunctive relief.

[8] In the circumstances, I indicated that I would not entertain the Applicant’s request for further injunctive relief. However, as I made clear at the hearing, and emphasize now, this is entirely without prejudice to the Applicant’s ability to initiate and pursue whatever further proceedings it may consider necessary and appropriate to seek future reinstatement of the injunctive relief previously obtained in this proceeding.

[9] For her part, the self-represented Respondent apparently and understandably came to court intending to resist the application as originally framed by the Applicant; i.e., to dispute the Applicant’s request for a declaration that it had “all legal interest and title in Lot MF-8”. [Emphasis added.]

[10] That planned resistance stemmed from the Respondent’s contention that she does indeed have rights in relation to the land in question, pursuant to the aforesaid Housing and Loan Agreement.

[11] To some extent, the existence of such rights is admitted and acknowledged by the Applicant.

[12] For example, the Applicant concedes that, at the very least, the aforesaid Housing Loan Agreement gives the Respondent and her former partner Brian French the ability to request a formal transfer of registered interest in the relevant land once there has been payment of all sums required by the terms of that agreement, (including not only the interest free principal but also property and life insurance premiums paid by the Applicant).

[13] However, the Respondent contends that her rights in relation to the property are (or at least should be) more extensive, owing to the history of this matter.

[14] In that regard:

• The Respondent did not dispute the reality that the formal “registered interest” in the relevant land currently still rests with the Applicant, according to the Lands Registry maintained by Aboriginal Affairs and Northern Development Canada, (“AANDC”). It is difficult to see how the Respondent could do otherwise, given the written confirmations that have been obtained in that regard. In particular, on February 25, 2014, Indian and Northern Affairs Canada, (“INAC”), wrote to the Respondent saying that “according to the official Indian Lands Registry records”, the lot in question was not shown to be in the Respondent’s “lawful possession”. Moreover, on July 9, 2014, AANDC wrote to the Applicant’s counsel, confirming that “according to [their] records in Indian Land Registry System (ILRS) and shown in Natural Resources Canada (NRCAN) records Lot MF-8 shown on plan CLSR 53084 for Chippewas of the Thames First Nation has never been allotted to any band member”.
• The Respondent also did not dispute the apparently clear and settled law that lawful possession of reserve land requires both an allotment of land by a Band’s council, (exercising its legislated discretion to approve allotments in whatever manner it sees fit to employ), and approval/consent of the Minister of Indian Affairs and Northern Development, (who in turn may then issue a “Certificate of Possession” to a band member thus lawfully in possession of land in a reserve, as evidence of that member’s right to possession of the land described therein). See, in that regard: Indian Act, R.S.C. 1985, c.I-5, ss. 20(1) and 20(2); Parker v. Okanagan Indian Band Council, [2010] F.C.J. no. 1524 (T.D.), at paragraphs 35-36; and Mohawks of the Bay of Quinte v. Brant, 2014 ONCA 565, [2014] O.J. No. 3605 (C.A.), at paragraph 79.
• Nor did the Respondent dispute that, whatever the Band may have done, the Minister has not yet granted such approval/consent in relation to the land in question.
• However, the Respondent says the registered interest ultimately should be transferred to her, with the Minister being required to supply her with a corresponding Certificate of Possession, because of the Housing Loan Agreement and the manner in which the parties have interacted since its execution. In particular, she says that such a certificate should be granted to her alone because she and/or Mr French should be treated as having satisfied all obligations owed by them pursuant to the Housing Loan Agreement, (e.g., owing to the Applicant’s alleged breach of duty to provide certain disclosure, and/or to use insurance proceeds from a house fire at the property to discharge the relevant debt), and because Mr French has assigned any and all interest in the property to the Respondent.
• Moreover, the Respondent says that, because she should be viewed as the only party with rights to lawful possession of the property, she should be entitled to substantial compensation and damages owing to the manner in which the Applicant and its agents have been using the property without her permission; e.g., to access the Applicant’s newly constructed water treatment plant. In addition to property damage caused by what the Respondent describes as effective widening of her driveway, (which is said to also threaten the Respondent’s septic system), the Respondent says her enjoyment of her property also has been substantially undermined by reprehensible conduct of the Applicant and its agents that includes verbal abuse and various other reprisals taken in response to the Respondent’s assertion of her property rights. (For example, the Respondent contends that the Applicant wrongfully has terminated her mail delivery and other services.)

[15] The Applicant certainly has arguments it intends to make in response to any such claims by the Respondent.

[16] For example, the Applicant says the available evidence demonstrates that the Respondent and Mr French have never made payments sufficient to discharge their clearly assumed obligation to repay the relevant interest-free principal of the loan and insurance premiums paid by the Band, (which were to be added to the balance of indebtedness, pursuant to the parties’ agreement).

[17] Moreover, in relation to the house fire insurance proceeds, the Applicant says the Respondent herself decided not to have those funds expended towards satisfaction of the outstanding Housing Loan Agreement debt, (with she and/or Mr French then retaining any surplus insurance proceeds remaining after payment of the debt), but to have the funds directed instead towards construction of a replacement house on the property while the Housing Loan Agreement debt remained outstanding.

[18] For present purposes, however, the fundamental reality is that the Applicant is not asking that I decide such disputes and, to date, the Respondent has made no formal, proper or detailed request for any such relief from the court by way of cross-application or otherwise.

[19] In particular, although the Respondent filed material in response to the application before me, (which she labelled as a “motion record”), and that material put additional information before the court, such material contains nothing in the way of a prayer for formal relief.

[20] I have considerable sympathy for the Respondent’s professed inability to retain legal counsel, in relation to what she obviously and understandably views as an important dispute relating to the property she considers “home”.

[21] However, it seems to me that failure to provide the Applicant with proper and adequate notice of a formal request for significant declaratory and monetary relief is a fundamental failing that cannot be ignored – anymore than I was able to ignore the Applicant’s failure to put the Respondent on notice that it would be seeking further injunctive relief at the hearing before me.

[22] The rules designed to provide parties and the court with fair notice of a dispute, thereby allowing for due preparation, and marshalling of evidence and argument, must be applied evenly.

[23] Moreover, as I noted during the course of the hearing, to the extent the Respondent desires relief that includes an order compelling the Minister of Indian Affairs and Northern Development to provide the Respondent alone with a Certificate of Possession, in relation to the property, both the Minister and Mr French also would seem to be affected parties entitled to proper and formal notice detailing the Respondent’s request for relief, as well as a corresponding opportunity to be heard.

[24] In the circumstances, it seemed to me that, based on the procedural history and material before me, the Respondent’s request for substantial declaratory, injunctive and monetary relief also was not something that could be entertained during the hearing before me.

[25] However, it should be made absolutely clear that my decision in that regard is in no way intended to prejudice the Respondent’s ability to seek any such desired relief through whatever further proceedings she make think it appropriate to initiate and pursue, on proper notice to all concerned.

[26] In the result, the sole request for relief properly before me is the Applicant’s desire for an order, not opposed by the Respondent, declaring that the Applicant currently holds the registered interest in Lot MF-8, located within the reserve boundaries of the Applicant, subject to the rights therein, if any, of the Respondent and/or Brian French pursuant to their “Housing Loan Agreement” with the Applicant dated June 26, 1986.

[27] An order to that limited effect should issue.

[28] Of course, that order should be interpreted in light of the express acknowledgments and understandings confirmed herein.

[29] As noted during the course of the hearing before me, this endorsement formally will bring this proceeding to an end, (albeit without prejudice to the initiation and pursuit of possible further proceedings such as those mentioned above).

[30] During the final hearing before me, neither side sought costs of this proceeding. In particular, counsel for the Applicant confirmed that no further relief was being pursued, apart from the limited order set forth above.

[31] There accordingly shall be no costs awarded.

Justice I F. Leach

Date: April 10, 2015