COURT FILE NO.: CV-08-151
DATE: 2019-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen in Right of Ontario
Ms. D. Salmon, for the Attorney General for Ontario, Plaintiff and Moving Party
Plaintiff
- and -
Henry Wetelainen Jr.
Self-represented Defendant and Responding Party
Defendant
HEARD: July 8, 2019, at Kenora, Ontario
Madam Justice H. M Pierce
Reasons on Summary Judgment Motion
Introduction
[1] The plaintiff moves for summary judgment in the amount of $80,672.01 plus pre-judgment and post-judgment interest. The plaintiff also seeks dismissal of the defendant’s counterclaim. The defendant submits that the case should be heard at trial where he can call evidence. He claims that as a Métis person, he has a constitutional right to harvest trees that were the subject of provincial charges. He also submits that provincial legislation exacting a fee for harvesting trees is unconstitutional as it applies to him, because of his Métis status.
[2] The facts are not contentious.
[3] The defendant applied to the Ministry of Natural Resources for two forest resource licences which authorized him to harvest trees in a certain area. Pursuant to the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 and Ontario Regulation 167/95, and the terms and conditions of the licences, a licensee is required to pay charges on the trees that he or she harvests.
[4] The defendant was granted tree harvesting licences in 2004. When applying for the licences, he did not declare his Métis status, and did not seek an exemption from provincial fees for tree harvesting on Crown-controlled land.
[5] The Crown sent the defendant eleven invoices totaling $80,672.01 for charges related to tree harvesting. The defendant never paid them. In 2006, the plaintiff sued the defendant in Small Claims Court for judgment on each invoice. The Small Claims Court actions were later consolidated and transferred to the Superior Court of Justice to proceed under the Simplified Rules jurisdiction of the court.
[6] Mr. Wetelainen Jr.’s counsel served a statement of defence and counterclaim in 2010. In it, the defendant alleged that he was not liable to pay the charges because he enjoyed an Aboriginal or treaty right to harvest trees because of his status as a Métis and Non-Status Indian. He also issued a Notice of Constitutional Question. This was the defendant’s first indication that he believed he was exempt from paying the charges.
[7] Alternatively, Mr. Wetelainen Jr. contends that the Crown charges are excessive because they include tax and interest.
[8] The Crown issued a reply and defence to the counterclaim in 2012. In 2014, the plaintiff served its affidavit of documents. Despite the plaintiff’s request for the defendant’s affidavit of documents, no affidavit was produced. The defendant’s counsel did not respond to the plaintiff’s request for a timetable for discoveries, motions, and mediation.
[9] The plaintiff served counsel for the defendant with its motion for summary judgment on January 30, 2018. In June of 2018, the defendant served a notice of intent to act in person. The defendant has taken no steps to advance his case since serving his statement of defence and counterclaim in 2010.
[10] The defendant filed no affidavit evidence on the motion for summary judgment; nor did he file a factum or any case law.
Discussion
The Claim
[11] Summary judgment is available under Rule 20.04 (2)(a) of the Rules of Civil Procedure “where there is no genuine issue requiring a trial with respect to a claim or defence.”
[12] The Supreme Court of Canada explained in Hryniak v. Maudlin, 2014 SCC 7 at para. 49 that:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[13] In my view, this is such a case. On a summary judgment motion, each party is required to file evidence that would be available at trial. See: Da Silva v. Gomes, 2018 ONCA 610 at para. 18. In the Da Silva case, the Court of Appeal observed:
The appellants’ case foundered on the absence of evidence. The motion judge rightly noted, at para. 49: “The responding party must ‘lead trump or risk losing,” citing 1061590 Ontario Limited v. Ontario Jockey Club 1995 CanLII 1686 (ON CA), [1995] O.J. No. 132, 21 O.R. (3d) 547 (C.A.). In a motion for summary judgment, the court can reasonably assume that “the parties have placed before it, in some form, all of the evidence that will be available for trial….”
[14] The onus is on the responding party to demonstrate that there is a genuine issue requiring a trial. Mr. Wetelainen Jr. has not done so.
[15] The defendant has been on notice of the plaintiff’s motion claiming summary judgment for 18 months. Even though he was represented by counsel for six months following service of the motion, he has taken no steps to comply with the Rules of Civil Procedure or to advance the counterclaim.
[16] It is not enough for the responding party in a summary judgment motion to rely on his pleadings. In this case, Mr. Wetelainen Jr. has not filed affidavit evidence to suggest that he paid the fees.
[17] Further, he has not filed affidavit evidence relating to his Aboriginal status and treaty rights that would support his claim for an exemption from payment of the forestry fees. He simply asks the court to accept his statement that it is common knowledge that he enjoys Métis status and is therefore entitled to an exemption. Thus, he has not established that there is a genuine issue requiring a trial of his constitutional claims as there is no evidence to support his standing to make such a claim.
[18] There is no dispute that the defendant obtained licences to harvest trees.
[19] Section 40 (1) of the Crown Forest Sustainability Act, 1994 provides that a licensee shall pay Crown charges. Section 31 of the Act authorizes the Minister to determine the amount of the Crown charges. Section 7 of Ontario Regulation 167/95, made pursuant to the Act, stipulates that every licence shall include a term requiring the licensee to pay the prices specified under s. 31 of the Act. These terms appeared on the defendant’s licences.
[20] The defendant submits that the charges sought by the Crown are excessive. I do not accept this argument. The stumpage fees are calculated in accordance with the Ontario Stumpage Matrix.
[21] Section 3 of the Act defines “Crown charges” as:
…all prices, charges, fees, penalties, costs, expenses, interest and fines imposed under this Act or under a forest resource licence.”
[22] This is an expansive definition that encompasses GST.
[23] Moreover, s. 69 (1).17 of the Act permits the Lieutenant Governor in Council to make regulations “requiring the payment of interest on overdue payments and prescribing the method for determining the amount of interest payable.”
[24] Section 3 of the Interest Act, R.S., c. I-18, provides:
Whenever any interest is payable by the agreement of the parties or by law, and no rate is fixed by the agreement or by law, the rate of interest shall be five per cent per annum.
[25] In this case, the interest rate is fixed by law, so the five per cent ceiling does not apply. Section 6 (1) of Ontario Regulation 167/95 sets out the following formula for the calculation of interest:
(1) Interest is payable on payments of Crown charges that are overdue using the rate of interest determined in accordance with the following rules:
A base rate of interest shall be determined for January 1, 2006 and for each adjustment date after January 1, 2006 and shall be equal to the average prime rate on,
i. October 15 of the previous year, if the adjustment date is January 1,
ii. January 15 of the same year, if the adjustment date is April 1,
iii. April 15 of the same year, if the adjustment date is July 1, and
iv. July 15 of the same year, if the adjustment date is October 1.
- The base rate of interest in effect on a particular date shall be,
i. the base rate for the particular date, if the particular date is an adjustment date, and
ii. the base rate for the last adjustment date before the particular date, otherwise.
- The rate of interest payable by a person under this section in respect of a particular day shall be an annual interest rate that is three percentage points higher than the base rate of interest in effect on that day. O. Reg. 257/06, s. 1.
(2) In subsection (1),
“adjustment date” means January 1, April 1, July 1 or October 1; (“date de rajustement”)
“average prime rate”, on a particular date, means the mean, rounded to the nearest whole percentage point, of the annual rates of interest announced by each of The Royal Bank of Canada, The Bank of Nova Scotia, the Canadian Imperial Bank of Commerce, the Bank of Montreal and The Toronto-Dominion Bank to be its prime or reference rate of interest in effect on that date for determining interest rates on Canadian dollar commercial loans by that bank in Canada. (“taux préférentiel moyen”) O. Reg. 257/06, s. 1.
[26] The plaintiff has demonstrated that its interest rates are charged in accordance with legislation; the defendant has not shown that they are excessive.
The Counter Claim
[27] As I have said, the defendant has not filed evidence to prove his standing as a Métis person in order to advance a claim challenging the constitutionality of the Crown Forest Sustainability Act, 1994 as it applies to him. Nor has he filed evidence to show that the Act infringes his Aboriginal or treaty rights. Standing is a precursor to making such a claim. Then the onus is on the defendant to establish an infringement of his constitutional right. He has not done so.
Conclusion
[28] The plaintiff shall have summary judgment against the defendant in the amount of $80,672.01 together with prejudgment and post-judgment interest calculated in accordance with section 6 (1) of Ontario Regulation 167/95.
[29] The counterclaim is dismissed.
[30] If costs are not agreed upon within 30 days of the release of these reasons, the plaintiff may, within 45 days of their release, make written submission with respect to costs. The defendant shall have 15 days from service of the plaintiff’s costs submissions to file a response. Costs submissions are not to exceed five pages, excluding any offers to settle.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: July 22, 2019
COURT FILE NO.: CV-08-151
DATE: 2019-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen in Right of Ontario
Plaintiff
- and -
Henry Wetelainen Jr.
Defendant
REASONS ON SUMMARY
JUDGMENT MOTION
Pierce J.
Released: July 22, 2019
/lvp