Thessalon First Nation v. Huron Shores et al., 2021 ONSC 5587

COURT FILE NO.: 27,225/16

DATE: 20210818

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THESSALON FIRST NATION

Applicant

– and –

THE MUNICIPALITY OF HURON SHORES, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Respondents

Paul Williams, for the Applicant

Paul Cassan, for the Respondent, Huron Shores

Richard Ogden and Julia McRandall, for the Respondent, Her Majesty the Queen in Right of Ontario

Jacqueline Henry, for the Respondent, Her Majesty the Queen in Right of Canada

HEARD: August 4, 2021

VARPIO J.

REASONS ON MOTION TO QUASH APPLICATION

1This is a motion brought by Her Majesty the Queen in Right of Ontario (“Ontario”) to quash the instant applications which were brought by the Thessalon First Nation (“TFN”). The applications deal with the size of TFN’s reserve described in the Robinson-Huron Treaty of 1850 and subsequent dealings with the impugned land.

2TFN undoubtedly started the matter as an application because it believed that this form of litigation was the most expedient.

3Ontario takes the position that the applications ought to be quashed without prejudice to TFN’s right to serve a Statement of Claim in the matter. Specifically, Ontario submits that the following disputed issues take the litigation beyond the proper scope of an application:

a. The size of the reserve as originally contemplated by the parties in the Huron-Robinson Treaty;

b. The nature of the units of measurement as understood by the parties at that time;

c. Adjustments made to the size of the reserve in 1852;

d. Whether the Crown and TFN intended to recognize Aboriginal title, which is a distinct concept from Treaty title;

e. The effects of the Royal Proclamation of 1763;

f. The events and effects of the meeting at Niagara in 1764;

g. The effect of the Pennefathter Treaty of 1859; and

h. A potential claim of laches by Ontario.

4TFN is opposed to the quashing of the application but is not necessarily opposed to its conversion to an action under Rule 38.10(1)(b) provided that said action is the most expeditious form of litigation. Simply put, TFN wishes to avoid a “mega-trial” which would be quite costly and lengthy.

5Her Majesty the Queen in Right of Canada (“Canada”) takes no firm position on the motion but submits that it wishes to have the most expeditious form of litigation possible and offered alternatives.

6The Municipality of Huron Shores adopts the same position as Canada.

ANALYSIS

7In the course of submissions, it became clear that all the parties acknowledged that a form of “broken up” litigation was appropriate in the circumstances. Such trials deal with a fiori issues in hopes that subsequent issues will not require litigation at all. This style of litigation makes considerable sense in matters involving Treaty rights and other matters that have historical bases for the claims. In fact, many leading cases dealing with Indigenous rights have used this format to achieve litigation efficiency. These cases typically originate as actions in order to:

(1) promote the proper framing of issues and avoid the possibility of future complication;

(2) to provide solid footing for findings made pursuant to s. 35(1) of the Constitution Act, 1982: Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 at paras. 11-12; Ktunaxa nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para 84; Keewatin v. Ontario (Ministry of Natural Resources), 2003 CanLII 43991 (ON SCDC), 66 O.R. (3d) 370 (Div. Ct.); Moonias v. Ontario, [1995] CNLR 108 (Gen. Div.); For William Indian Band v. Canada (Attorney General), 2005 CanLII 28533 (ON SC), [2005] OJ No. 2317.

8This case is no different than the jurisprudence quoted in the previous paragraph in that it deals with matters of general import that will require a proper evidentiary foundation in order to ensure that justice is done in the circumstances. Staged litigation will provide efficiency.

9Accordingly, I hereby order that the application be converted to a trial as per Rule 38.10(1)(b). I also order that new pleadings be exchanged and that, pursuant to my powers as the trial management judge, a staged litigation process ensue.

10Canada submitted that three discrete areas could be litigated prior to all others which, when decided, could in turn enable the parties to return to mediation. These areas involved the historical boundaries of the reserve and the intentions of the parties in 1850 and 1852.

11TFN generally agrees with Canada’s position but would like the opportunity to discuss the matter with the other parties prior to making a determination in this regard.

12I am content to allow TFN to have such conversations and I hereby order the parties to attend a teleconference with me in September, to be scheduled through the office of the trial coordinator. At that time, if the parties have agreed to the issues to be litigated in the first tranche of litigation, I will create a timetable for that litigation. If not, I will decide next steps.

Varpio J.