Court File and Parties

COURT FILE NO.: CV-18-75371 DATE: 2019-07-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBER BIDAL, RAEFORD COMANDA on their own behalf and on behalf of those set at Schedule “A” and on behalf of all the members of the ALGONQUIN ANISHINABE NATION/ALGONQUIN AMIKWA NATION Plaintiffs/Respondents

– and –

HER MAJESTY THE QUEEN in right of Ontario and ATTORNEY GENERAL OF CANADA Defendants/Moving Parties

COUNSEL: Michael Swinwood, for the Plaintiffs/Respondents Sara Valair/Stephanie Figliomeni, for the Defendant/Moving Party, Her Majesty the Queen in Right of Ontario Zoe Oxaal/John S. Tyhurst/Mary Roberts, for the Defendant/Moving Party, Attorney General of Canada

HEARD: May 6, 2019, Ottawa

REASONS FOR DECISION

C. T. HACKLAND J.

Overview

[1] The defendants, Her Majesty the Queen in Right of Ontario (“Ontario”) and the Attorney General of Canada (“Canada”) seek to strike this action. They submit it is the latest in a string of duplicative litigation, brought by the same counsel, on behalf of substantially the same plaintiffs. There have been two prior actions seeking much the same relief which were dismissed on consent or discontinued immediately preceding or during the hearing of prior motions to strike. They submit that, in the circumstances, the present action is barred as res judicata and amounts to an abuse of process.

[2] The individual plaintiffs are currently the subject of hunting and fishing charges being prosecuted by Ontario in the Ontario Court of Justice.

The Plaintiffs

[3] The plaintiffs in this proceeding are described as “fishermen from the Nipissing First Nation and …hunters … off reserve.” The Statement of Claim states that they are members of the “Amikwa Nation of the Algonquin Nation”, and seeks, amongst other things, a declaration of Indigenous title to “traditional Algonquin territory” to an area stretching from Lake Superior to the Maritimes. It also seeks compensation for interference with Indigenous title and rights in that area.

[4] The plaintiffs say they bring this civil claim as representatives of the “Algonquin Anishinabe Nation/Algonquin Amikwa Nation”, and seek an order “appointing Matriarch Jacqueline Sarazin and Grandmother Jane Chartrand” as representative plaintiffs.

[5] Ontario’s essential argument is that the clear intent of the present proceeding is to delay the regulatory prosecutions against the plaintiffs in the Ontario Court of Justice, and as such, is an abuse of process. The present action is also said to be an abuse of process because it seeks to re-litigate issues in a series of cases pursed by the plaintiffs and subsequently dismissed by final orders of this Court.

[6] It is apparent from a review of the plaintiffs’ previous proceedings that virtually the same legal issues had been raised. The previous proceedings have been referred to in argument as the 2012 McQuabbie action (CV-12-5341), North Bay Registry, and the 2014 Amikwabi action (CV-14-517372), Toronto Registry.

The McQuabbie Action

[7] The 2012 McQuabbie action included the following:

a. Title claim: involved a claim for Indigenous title of the Algonquins in Ontario and Quebec; b. Challenge to prosecution: challenged the authority of Ontario to bring and sought to stay the regulatory prosecutions; c. Challenge to AOO: challenged the authority of the Algonquins of Ontario (“AOO”) and related entities to negotiate on behalf of the Algonquin Nation; d. Authority of Bands: attacked the legitimacy of Band Councils; e. Challenge to Robinson-Huron Treaty: challenged the application of the Robinson-Huron treaty; f. Status of Wampum Belts: sought a declaration of the constitutional status of wampum belt(s); g. Genocide and Apartheid Claims: alleged that Canada and Ontario’s policies and system of governance amount to “genocide” and “apartheid”. h. Duty of Consult: claimed the Crown failed to satisfy the duty to consult; and i. Trust Claim: sought the creation of a trust in favour of the plaintiffs pursuant to s.109 of the BNA Act.

[8] The McQuabbie action was discontinued by the plaintiffs at the time of the hearing of motions to strike brought by Ontario and Canada. By Order dated December 19, 2013, the claim was discontinued on a without costs basis. Justice Hennessy’s Order stated:

[i]n the event the content of the pleadings is re-filed in substantially the same form, the defendants shall be entitled to costs in these proceedings,

and

[t]he plaintiffs may file a new Statement of Claim to proceed as a representative action so long as the pleadings are not substantially similar to those in the within Statement of Claim [emphasis added]

[9] I find that the Statement of Claim in the present action is substantially similar to the Statement of Claim in McQuabbie, and in that respect, contravenes justice Henessy’s Order.

The Amikwabi Action

[10] The 2014 Amikwabi claim was commenced by the same plaintiffs, and the legal issues raised I find to be virtually identical to those raised in the McQuabbie action; albeit with additional defendants including Windmill Development Group, the City of Ottawa, the National Capital Commission and Domtar Inc. The defendants’ motion to strike this claim came on for hearing before Lederer J. and was resolved by a consent dismissal without costs. The plaintiffs’ witness, Douglas Cardinal, explains that this action was taken “due to the threat of costs against our solicitor, Michael Swinwood personally and Stacy McQuabbie.”

[11] A further related proceeding resulted in the decision of this Court in Bidal v. Ontario, 2015 ONSC 506. In that case, 28 of the Bidal plaintiffs, again represented by the same counsel, brought a writ of prohibition to stay the regulatory prosecutions and sought an order directing that a representative action be litigated instead. The Court refused both forms of relief.

[12] In his endorsement, Whitaker J. directed the applicants to litigate their aboriginal rights claim in their defence to the regulatory prosecutions in the criminal court. The Court followed the binding decision of the Court of Appeal in R. v. Sarazin, 2010 ONCA 439, which held:

4 It is well-established in Canadian law that where an accused person raises constitutional issues, claims of aboriginal right; inter-jurisdictional immunity or rule of law issues by way of defence to a charge, the proper place to advance those defences is in the court having jurisdiction to entertain the charges. If there is any merit to grounds 1-4, they are matters properly raised by way of defence to the charges against the appellants in the court having jurisdiction to entertain those charges, namely, the Ontario Court of Justice. If the appellants are dissatisfied with the result in the Ontario Court of Justice, they may have recourse to any statutory rights of appeal afforded from conviction.

[13] There seems to be little doubt that the accepted ingredients for res judicata or cause of action estoppel exist in the circumstances of this case. There must have been a final (and not merely interlocutory) decision of a court of competent jurisdiction in the prior action, the same parties or their privies must be involved, the causes of action must not be separate or distinct, and the essential basis of the action must have been argued or capable of having been argued in the prior action.

[14] There is also authority for the proposition that a discontinuance of an action or a final order of dismissal can give rise to the doctrine of res judicata, see D’Addario v. Englobe Corp, 2012 ONSC 1918 at para. 268-269, aff’d 2014 ONCA 376 and Mohammed v. York Fire and Casualty Insurance Co., [2006] O.J. No. 547 (C.A.) at para. 34-36. Moreover, if litigation is being pursued for a collateral purpose, such as to delay or obstruct a regulatory prosecution, this can amount to an abuse of process.

[15] I am of the opinion that the present action is being pursued primarily to prevent the hunting and fishing charges from being heard on their merits. I accept the position of Ontario and Canada in this regard. I also find that the McQuabbie and Amikwa actions and the Bidal 2015 proceeding are all duplicate proceedings and have never been pursued by the plaintiffs so as to allow any final adjudication on the merits of any of these claims.

[16] It does not necessarily follow that because I regard the present action as an abuse of process, that I must dismiss it. As the plaintiffs point out, the appellate case law indicates the court has a broad and flexible discretion to respond to the equities of a particular case. See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. As a general principle, an action should not be struck as res judicata if to do so would result in a failure of justice.

[17] In the present case, there is a danger in applying the doctrine of abuse of process and striking the action when the previous proceedings did not result in the determination of the substantive legal issues on their merits. This is particularly so when, and to the extent the substantive issues involve an indigenous land claim, or involve important representational issues affecting the plaintiffs and related constitutional issues. If there was no other forum for the adjudication of these issues, then the court would be reluctant to dismiss an action in such a way as to forgo any determination of the true justice of the claims.

[18] In the present circumstances, Ontario correctly points out that to the extent the constitutional issues and any other matters plead in the current Statement of Claim may provide a defence to the hunting and fishing charges, the proper forum is the Ontario Court of Justice where these charges are pending. This was decided by the Court of Appeal in Sarazin.

[19] Significantly, there is also another Sarazin action being 17-71837 (Ottawa Registry) began by the same plaintiffs, again through counsel, Mr. Swinwood, which once again, seems to re-package and roll over a number of claims from the present case and its predecessors discussed above. I have been case managing both the present claim and action 17-71837. It would appear, however, that 17-71837 is principally a land claim and is not focused on the regulatory charges. There is a representation motion in action 17-71837 currently scheduled to be heard in October of 2019. It would appear to me that many of the plaintiffs’ claims have been or could be incorporated in the 17-71837 proceeding.

[20] I observe that what would not be appropriate would be to allow the plaintiffs to continue to pursue multiple Superior Court actions purporting to claim the same relief or confusingly similar relief in respect to vaguely defined land claims. This problem has been the subject of discussion at several case conferences attended by Mr. Swinwood for the plaintiffs and counsel for Ontario, Canada, and other concerned groups. The goal would be to facilitate an adjudication of issues on the merits, but not multiple adjudications creating the danger of conflicting findings of fact and contradictory outcomes.

Disposition

[21] In all the circumstances, I would strike out the present action as an abuse of process. Whether the regulatory charges proceed will be for Ontario and the Ontario Court of Justice to determine. Such other claims as the plaintiffs wish to pursue should be brought forward in action No. 17-71837, where, subject to the representation determination and other future orders of the court, there may be an adjudication of the claims on their merits.

[22] As the present action is struck as an abuse of process, there is no need to determine Ontario’s motion to strike the plaintiffs’ claims for damages for the alleged torts of genocide and apartheid.

[23] If Ontario or Canada wish to seek costs of this motion, they should submit written submissions within 30 days of the release of this ruling, and the plaintiffs may respond within 30 days of receiving the submissions of Ontario and Canada.

Mr. Justice Charles T. Hackland Released: July 15, 2019