Court File and Parties
COURT FILE NO.: CV-20-00646731
DATE: 20210216
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Grand Chief Wabiska Mukwa, Plaintiff
-and-
Farm Credit Canada et al. Defendants
BEFORE: FL Myers J
COUNSEL: Kathy and Brent Manary, representing themselves T. Lipton for Ontario B Bly, for Canada M Cassone for Farm Credit Corporation Michael Kestenberg for the defendants RA Biggart and JR Hart
HEARD: February 12, 2021
ENDORSEMENT
[1] Mr. and Mrs. Manary borrowed money from Farm Credit Canada. They granted the lender a mortgage over their land to stand charged as security for the repayment of their indebtedness. FCC is seeking to enforce its security. It has brought a motion for summary judgment on the mortgage debt and for possession returnable on March 1, 2021.
[2] In this action, the plaintiff, who styles himself “ASMIN Grand Chief Wabiska Mukwa By his Envoy ninigiwaydinnoong on behalf of Brent and Kathy and Cassandra of the Manary Family and Sprucepoint Farms Ltd.”, seeks to stop the enforcement of the lender’s mortgage by asserting Indigenous rights over the mortgaged land in favour of the Kinakwii Nation.
[3] As I understand it, Grand Chief Mukwa and the Manarys claim that the mortgaged land lies on unceded territory of Turtle Island that belongs to the Kinakwii Nation. Turtle Island may encompass all of North America or more. On that basis, the Manarys say that the mortgage security that they granted to their lender cannot be enforced against their land to realize proceeds to repay their debt.
[4] Neither Canada nor Ontario recognizes either Grand Chief Mukwa or the Kinakwii Nation as a legitimate aboriginal or indigenous nation under Canada’s constitutional arrangements.
[5] The Federal and Provincial Governments have asked the court to review the statement of claim and dismiss this action under Rule 2.1 for being frivolous, vexatious, or an abuse of the court’s process. Ferguson J. has scheduled those matters to be dealt with as well on March 1, 2021. Strictly speaking they are not motions. Rather, instead of being asked to submit up to ten pages of written submissions, the plaintiff will have a brief opportunity to advise the court orally of why, based on the claims set out in the statement of claim, the action should not be dismissed as frivolous, vexatious, or an abuse of process under Rule 2.1.
[6] On February 11, 2021, the plaintiff asked for an urgent case conference to schedule a motion for the following relief:
Adjournment of the Motions currently scheduled for March 1, 2021.
An Order compelling the Crown to Consult during the Adjournment.
An Order recognizing that the Court is on Un-Ceded Land, and is under UNDRIP.
An Injunction preventing the government from Appointing a new Governor General.
[7] I convened a case conference by videoconference and telephone on February 12, 2021. Grand Chief Mukwa did not participate in the case conference. Mr. and Ms. Manary spoke to the relief sought on the motion.
[8] In the notice of motion, the plaintiff relies upon the following ground among others:
- Ottawa is on Un-Ceded Land. Parliament must vacate FORTHWITH, per the Royal Proclamation of 1763, recognized by the alleged Charter of Freedoms at S. 25, and by the SCC in Tsilhqot’in v BC at [69].
[9] Mr. and Ms. Manary advised that the plaintiff has served summonses to witness on the Rt. Hon. Richard Wagner, the Chief Justice of Canada, and Mr. Roger Bilodeau, the Registrar of the Supreme Court of Canada. They say that the plaintiff needs these examinations to establish whether land is unceded land under the Royal Proclamation of 1763.
[10] In addition, the Manarys advise that the courts are closed until July 6, 2021. So that they have made their summonses returnable on July 7, 2021 at the Supreme Court of Canada in Ottawa. They say that the examinations must be held in person under indigenous law. Therefore, they need an adjournment of the hearing in this proceeding on March 1, 2021.
[11] The governments argue that the hearing under Rule 2.1 is not an evidentiary hearing. They say that no witness evidence can be tendered at the Rule 2.1 reviews by summons or otherwise.
[12] Canada submits that if the plaintiff’s claim continues past March 1, 2021, then it will consider how to deal with the summonses to witness that the plaintiff has served. Canada is not asking me to quash the summonses as an abuse of process today. Rather, the governments ask me to deny the adjournment or to leave it to the motion judge on March 1 and to defer scheduling the rest of the relief claimed until after that hearing is completed.
[13] Mr. Kestenberg agrees and notes only that his clients, two lawyers, are sued for making submissions in court in opposition to the Manarys and the plaintiff. He submits that the claim against his clients is frivolous in light of the law of absolute privilege. Ms. Manary responds that an Indigenous land claims can never be privileged.
[14] I agree with the defendants that the Rule 2.1 reviews in this action are not evidentiary hearings. The Court of Appeal has confirmed that evidence is not to be considered under Rule 2.1. The rule provides for a review of the statement of claim on its face. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at paras. 10 and 11.
[15] There is no basis therefore to adjourn the hearings under Rule 2.1 on March 1, 2021 to allow