Court File and Parties

COURT FILE NO.: CV-20-071-0000

DATE: 20210203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shawanaga First Nation, Applicant

AND:

Timothy Ladouceur and Jo-An Gascon, Respondents

BEFORE: E.J. Koke

COUNSEL: Cara Valiquette, Counsel, for the Applicant,

Stephen J. Griggs, Counsel, for the Respondents

HEARD: January 15, 2021

ENDORSEMENT: Application for a Writ of Possession

Background

[1] On September 25, 2019 Shawanaga First Nation (“Shawanaga” or the “First Nation”) purchased a property (the “property”) on the First Nation from Jordan Pawis, a member of the First Nation who held the lands subject to a Certificate of Possession (“CP”). Shawanaga states that it intends to demolish what it refers to as a “dilapidated building” on the property and use the land to extend its Health Services Building.

[2] The property is legally described by Indigenous and Northern Affairs Canada in the First Nations Land Registry as Lot 22 CLSR 57250, located at 21 Shebeshekong Road North, Nobel, Ontario.

[3] Prior to the First Nation purchasing the property Mr. Pawis had rented the house on the property to the respondents pursuant to a rental agreement signed by him and the respondents on November 21, 2012.

[4] The respondents stopped making the agreed upon monthly rental payments to Mr. Pawis in 2015 and did not make any payments after that date. They refused his requests to vacate the property and were still living there when the property was purchased by Shawanaga.

[5] Following the purchase of the property by the First Nation, the Chief and Council sent a letter to the respondents, advising of the purchase and requesting that they vacate the property. The respondents have refused to leave, notwithstanding the fact that they are not making any payments in relation to their occupation of the property. The First Nation sought assistance from Anishinabek Police Services. Police Services refuses to remove the respondents from the property without a court order.

The Application

[6] Shawanaga brings this application to the Superior Court for a declaration that the respondents are trespassing and for an order granting the First Nation a Writ of Possession and requiring the respondents to vacate the property.

[7] There are two main issues for the court to decide:

1. Preliminary issue: are the applicant’s lawyers in a conflict of interest, and if they are should they have refused to provide legal services to the First Nation?

2. Is there a legal basis for the relief requested by the First Nation?

[8] The second issue gives rise to the following sub-issues.

a) Do the First Nations Land Code (“the Code”) and the Land Code Policies (“the policies”) established thereunder govern the relationship between the parties?

b) Has the First Nation developed and implemented dispute resolution procedures and processes pursuant to the Code and Policies which are designed to deal with the dispute?

c) If such procedures and processes exist, is the applicant First Nation required to follow these procedures and processes, or does the right bring this dispute to a court of law continue to exist?

d) Is the Federal Court of Canada the appropriate court to determine this dispute and is the Superior Court without jurisdiction?

1. Preliminary Issue: Are the Applicant’s Lawyers in a Conflict of Interest?

The Respondents’ Position

[9] In the affidavit he filed in response to this application, Mr. Ladouceur deposes that on February 12, 2018 he and his spouse, the respondent Jo-An Gascon had an appointment at a legal clinic hosted by the Parry Sound Friendship Centre for the purpose of obtaining advice related to what he described as a “longstanding dispute” they were involved in with the Chief and Council of the First Nation. He states that they met with Mr. Jay Herbert and Cara Valiquette, who are lawyers with Falls Law Group, a law firm in Bracebridge Ontario whose lawyers have expertise and experience in Indigenous Law. According to Mr. Ladouceur, Mr. Herbert was the primary lawyer at this meeting and Ms. Valiquette took notes. He has been able to confirm their identities by looking at their photos on the website for their firm, and he remembers receiving their business cards.

[10] Mr. Ladouceur states that he and Ms. Gascon had a broad ranging discussion with the two lawyers about the dispute and about their relationship with the Chief and Council of Shawanaga First Nation. During this meeting they confidentially disclosed facts and information to the lawyers and showed them documents which would be prejudicial to them in this case if disclosed.

[11] Mr. Ladouceur submits that they were in a solicitor and client relationship with the applicant’s lawyers which imposes on the lawyers a duty of confidentiality. By acting for the First Nation in this dispute the lawyers are now engaged in a conflict of interest.

Discussion of the Evidence

[12] In my view there are good reasons to question the accuracy of Mr. Ladouceur’s account of the meeting at the Friendship Centre.

[13] Firstly, Ms. Valiquette, who argued the application for the First Nation denies that she attended at the Friendship Centre and that she met with the respondents on February 12, 2018.

[14] Ms. Rebecca Whiteside, who is employed as a legal assistant with Falls Law Group filed an affidavit in this proceeding. She deposes that she is the main contact and co-ordinator for the Falls Law Group with the Friendship Centres. The Friendship Centre provides summary legal advice clinics to Indigenous people, a service which is funded by Legal Aid’s duty counsel services. Ms. Whiteside has been employed in this role with the Falls Law Group since 2014.

[15] Ms. Whiteside states that a review of her law firm’s shared calendar and its records for the Friendship Centre summary advice clinics reveals that Jay Herbert and only Mr. Herbert was assigned to attend the Parry Sound Friendship Centre on February 12, 2018.

[16] According to Ms. Whiteside, there were no appointments in the firm’s calendar for Ms. Valiquette on or around February 12, 2018 since at that time Ms. Valiquette was not working but was off on parental leave, caring for her two children. She did not return to work until mid April of that year.

[17] Ms. Whiteside deposes that the Friendship Centre clinics start at 1pm, are attended by only one lawyer who is usually from the Falls Law Group, and that the clinics normally continue for about 1 to 3 hours. Seven persons scheduled visits with Mr. Herbert on the afternoon of February 12, 2018. In addition to the in-person meetings, there would likely have been telephone conferences as well.

[18] Ms. Whiteside confirms that the firm’s spreadsheet indicates that Mr. Ladouceur and Ms. Gascon attended at the Friendship Centre that day and met with Mr. Herbert. However, consistent with the policy governing Friendship Centre legal clinics, no notes, documents or other information related to the legal issues were retained by Mr. Herbert, and the firm spreadsheet does not contain any information about the legal issues discussed or the advice provided to the respondents.

[19] Ms. Whiteside also deposes that she has been advised by Mr. Herbert that he has no recollection of meeting with the respondents at any time, has no knowledge of or information about the discussion he may have had with them on February 12, 2018, and that Ms. Valiquette was not with him at the Friendship Centre on that date.

[20] At the hearing of the application on January 15, 2021 Ms. Valiquette provided her assurance to the court that she was not present at the Friendship Centre on February 12, 2018, that she had not previously met or provided legal advice to the respondents, that she was on maternity leave at that time, and that the only knowledge or information she has received about this proceeding is knowledge and information she received from her client, the First Nation.

[21] Ms. Valiquette also confirmed that the legal advice given at the Friendship clinic is of a summary nature only, that notes are not taken, and documents are not retained by counsel.

[22] With respect to the subject matter of the discussions between the respondents and Mr. Herbert, the applicant asks the court to note that the property which forms the subject matter of this application was not acquired by the First Nation until September 25, 2019, which is more than 18 months after the respondents met with Mr. Herbert. This should cast considerable doubt on Mr. Ladouceur’s claims that the information disclosed by them at the Friendship Centre can be used in such a way as to prejudice their interests in this dispute.

Analysis of the Conflict of Interest Issue

[23] In my view, the meeting on February 15, 2018 with Mr. Herbert does not give rise to a conflict of interest in relation to this proceeding.

[24] The Rules of Professional Conduct (“the Rules”) established by the Law Society of Ontario define a conflict of interest as follows in Section 1.1:

“conflict of interest” means the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer [emphasis added].

[25] What is required for a conflict of interest to exist is a substantial and genuine or serious risk that a lawyer’s duty of loyalty will be compromised in a material way. Based on my review of the facts I find that there exists no such genuine or serious risk in the circumstances of this case. In coming to this conclusion, I rely on the following findings of fact:

a) Ms. Whiteside deposes in her affidavit that Mr. Herbert informed her that he has no recollection of what he discussed with the respondents at the meeting.

Mr. Hebert’s discussion with the respondents took place almost three years ago within a three-hour time slot during which he was scheduled to provide advice to at least five other individuals. In the circumstances I am not surprised that Mr. Herbert has no recollection of the Friendship Centre meeting and his discussions with the respondents.

Also, pursuant to the policies which govern these clinics Mr. Hebert did not retain any notes of the meeting, and any advice given would have been of a summary nature.

I accept on the evidence that Mr. Herbert does not have any recollection of the meeting and did not retain any notes thereof, and in the circumstances I find that there is no genuine or serious risk that he can or will breach any duty of confidentiality to the respondents, or that the interests of the respondents will be adversely affected.

b) Ms. Valiquette has confirmed that she was not present at the February 12, 2018 meeting and that her sole source of information with respect to this case has been her client, the First Nation. She has also confirmed that she has not received any information from Mr. Herbert in relation to the February 12, 2018 meeting.

This submission by Ms. Valiquette is supported by the evidence of Ms. Whiteside and the memorandum of clinic visits which Ms. Whiteside maintains, and I accept her evidence completely. In the circumstances, I find that Ms. Valiquette is not privy to any information that could constitute a breach of any duty of confidentiality, or that her participation on behalf of the applicant will adversely affect the applicants.

c) The property which forms the subject matter of this proceeding was not owned by the First Nation on February 12, 2018. It was purchased by the First Nation from a third party in September 2019. The primary issue for the court to decide in this proceeding is whether the First Nation is entitled to a writ of possession to a property it purchased from a third party in September 2019. In the circumstances, I am satisfied that the discussion at the February 12, 2018 meeting, which has been referred to by Mr. Ladouceur in vague terms referencing a “longstanding dispute with the Chief and Counsel”, could not have pertained to the subject matter comprising this proceeding in any material or significant way.

2. Second Main Issue: Is there a Legal Basis for the Relief requested by the First Nation?

The Shawanaga First Nation Land Code and Policies (Background)

[26] On February 12, 1996 The Framework Agreement on First Nation Land Management (“Framework Agreement”) was signed by 13 First Nations and Canada. The Framework Agreement was initiated by these 13 First Nations with a view to allowing them to opt out of land management sections of the Indian Act and resume governance and management control of their reserve lands and natural resources. Subsequently, numerous other First Nations have now signed onto this agreement, including Shawanaga First Nation.

[27] The Framework Agreement required that it be ratified on behalf of Canada by an act of Parliament. Subsequently, Parliament endorsed the provisions of the Framework Agreement by enacting the First Nations Lands Management Act, S.C. 1999 c.24 (“FNLMA”) in June of 1999.

[28] First Nation signatories ratify the Framework Agreement by enacting a Land Code. The significance for a First Nation of adopting a Land Code is that after adopting such a code a First Nation has effectively opted out of certain sections of the Indian Act that pertain to lands and management of its lands. Also, after adopting a Land Code a First Nation can begin processing land transfers on site at the First Nation.

[29] On March 25, 2013 Shawanaga signed on to the First Nation Land Management Act, following which they drafted and adopted a Land Code which was ratified on May 20, 2015.

[30] Shawanaga lands which are transferred since the adoption of the Code by Shawanaga are now registered in the Shawanaga First Nation Lands Register (“SFNLR”) and the First Nations Land Register System (“FNLRS”). These registers operate similarly to a Land Registry System and Teraview and ensure that transactions are registered on time and without any title errors. This was the process which was used when the Certificate of Possession to the property was transferred to the First Nation in 2019.

[31] Key provisions related to the establishment of the Code include the following:

Framework Agreement s.16.4

Once a land code comes into force, no interest, land right or licence in relation to First Nation land may be acquired or granted except in accordance with the Land Code.

Framework Agreement s. 11.5

Once a Land Code is certified by a verifier and comes into force, the Land Code has the force of law and will be given judicial notice.

First Nations Land Registry Regulations s. 29

A registered interest - or, in Quebec, a registered right - affecting a parcel of First Nation land is entitled to priority over an unregistered interest or right affecting the same parcel

Shawanaga First Nation Land Code s.28.1

An interest or licence in SFN land created or granted after this Land Code takes effect is not enforceable unless it is registered in the SFN Lands Register and the First Nation Lands Register.

[32] The idea that CP’s constitute the highest form of title that a member of a First Nation community can have to land that is part of an Indian reserve has now been confirmed in a number of cases. For example, in Westbank Indian Band v. Normand, 1993 CanLII 805 (BC SC), [1994] 3 C.N.L. R. 197 (BCSC) the band brought a suit against the defendant on behalf of a band member who held a CP to land damaged by floodwater. The Court ruled that the band member should have brought the action rather than the band since he was the CP holder. According to Drossos J., a CP issued by the Crown with the consent of the band invests in its holder “all the incidents of ownership…with the exception of the legal title to the land itself, which remains with the Crown”.

Position of the Parties

[33] The respondents claim that they are in a landlord and tenant relationship with the applicant They submit that since Shawanaga ratified a Land Code in 2015 and thereafter established land related policies thereunder, this dispute is governed by the Code and it is therefore incumbent on the applicant to resolve this matter within the framework of the Code and by following the dispute resolution procedures set out therein. According to the respondents, the Code provides a complete framework for the management of land on a reserve and the dispute resolution procedures set out in the Code are mandatory with respect to issues pertaining to land.

[34] The respondents submit in the alternative, in the event this court determines that the courts do have jurisdiction to hear this dispute, Section 91(24) of the Constitution Act, 1867 requires that the appropriate court is the Federal Court of Canada since the dispute concerns lands on a First Nations Reserve. The Superior Court is without jurisdiction.

[35] The applicant denies that it is in a landlord and tenant relationship with the respondents and maintains that the respondents are unlawfully trespassing on the property. In the event the court finds that a landlord and tenant relationship does exist, the nature of the relationship between the parties in this case is such that the landlord and tenant policies enacted pursuant to the Code do not apply.

[36] The applicant submits that the First Nation has not yet developed and implemented any dispute resolution tribunals or processes as contemplated by the provisions of the Code and the policies. It further argues that the provisions of the Code do not oust the jurisdiction of the courts to decide land disputes and that members of First Nations retain the right to seek redress in the courts. Also, regardless of whether the courts determine that the respondents should properly be characterized as trespassers or as tenants, the applicable enforcement venue continues to be the Superior Court which has jurisdiction in such matters.

Sub-Issues

(a) Do the First Nations Land Code and the Policies established thereunder govern the relationship between the parties.

Relief Available under the Three Land Code Policies

[37] The First Nation adopted three housing policies following its ratification of the Land Code. All three policies were approved and adopted on January 25, 2016. In my view, whether the respondents are viewed as trespassers or as defaulting tenants, none of the policies govern this dispute and the dispute resolution procedures set out in the policies do not apply.

[38] The Shawanaga First Nation Private Ownership Policy applies specifically to “housing units that are located within Shawanaga First Nation lands that are privately owned by individuals…”. The only dispute resolution procedure set out in this policy is an appeal under s. 8 which is available to “an individual who is an eligible owner of a residential unit located within Shawanaga First Nation Lands” [emphasis added].

[39] In this case, the respondents do not own the house which they have been asked to vacate. This policy therefore is not applicable to this dispute.

[40] The Shawanaga First Nation Rental Housing Program Policy pertains to a rental housing “program” which provides accommodation in single detached and duplex homes and an apartment complex which are owned by the band”. Pursuant to the terms and conditions of this program, an “eligible” band member or an individual occupies the rental unit as a tenant and “signs a rental agreement with Shawanaga First Nation”. The tenant “pays rent” and Shawanaga First Nation provides a monthly subsidy from own source revenues to pay the difference between the tenant’s rent and the ongoing operating costs of the unit [emphasis added]”.

[41] I find that the respondents are not participants in this program. They have not filled out the required application for the program, nor have they met the financial eligibility requirements which are necessary for admission to the program. Also, they have not signed a rental agreement with Shawanaga First Nation consistent with the terms and conditions of the program or paid monthly rent to the First Nation. Accordingly, the dispute resolution procedure set out in this policy does not apply to the circumstances of this case.

[42] The Shawanaga First Nation Section 95 Rent -To-Own Housing Program Policy applies to Shawanaga First Nation members who have signed a mortgage agreement for a home with Shawanaga which includes a rent-to-own option. This policy does not apply to the respondents who have not entered into such a mortgage arrangement.

[43] In summary, I find that the land policies adopted by the First Nation to date do not apply to this dispute.

Relief under Section 17 of the Land Code

[44] The respondents submit that the applicant is effectively expropriating the property and must therefore comply with the provisions governing the expropriation of land which are set out in section 17 of the Code.

[45] For the following reasons I find that section 17 of the Land Code does not apply in the circumstances of this case.

[46] Firstly, for the provisions of this section of the Land Code to apply the respondents must have an “interest or licence” in the land which is subject to expropriation.

[47] Although the respondents argue that they have an interest in the land as “tenants”, I am satisfied on the evidence that their landlord and tenant relationship which previously existed with Jordan Pawis ceased to exist sometime mid 2015, and therefore was not assumed by the First Nation when it purchased the property from Pawis.

[48] Included with the applicant’s materials is a copy of a letter dated June 24, 2015 from Jordan Pawis to the respondents referencing their mutual agreement that the respondents would move out of the residence on the property on or before May 31, 2015, and that the tenancy would not be renewed after that date.

[49] There is no evidence that the respondents made any rental payments as required by the tenancy agreement following the date of the above letter. The evidence indicates that after they stopped paying rent the respondents remained living on the property and justified their refusal to vacate the property on a myriad of grounds, none of which included a claim to an interest in the land arising out of their former landlord and tenant relationship. Instead, the grounds on which they based their refusal to vacate raised issues about the ownership of the property and the authority of the holder of the Certificate of Possession to evict them. These grounds included:

a) an assertion that the respondents were given the land verbally by Mr. Pawis in 2013;

b) an assertion that they had been informed by Mr. Alfred Stevens, a member of Shawanaga and its council in 2017 that Mr. Stevens had a claim to ownership of the house;

c) most recently, that the land belonged to the Kewaquado family who retained a historic “homestead right” to the land.

[50] I find that there is no merit to any of the above claims and I note that the respondents elected not to rely on these grounds in arguing that they have an interest in land; instead they argue that they have a continuing interest or licence as tenants.

[51] In summary, I find the respondents effectively abandoned any claim to tenant status many years ago when they stopped paying rent and chose instead to justify their continuing occupation of the property by questioning the ownership credentials of Mr. Pawis and more recently the First Nation. They cannot today re-awaken a claim to tenant status which they abandoned many years ago. They have failed to convince me that they have a licence or interest in the land as tenants and as such the expropriation provisions of the Code do not apply.

[52] Secondly, I note that s. 17.4 of the Code establishes a requirement that before a First Nation can proceed to make any community expropriations in accordance with the Code, the First Nation “must enact a Land Law respecting the rights and procedures for community expropriations”. No such Land Law has yet been enacted by Shawanaga, and the expropriation provisions in the Code therefore cannot apply.

Conclusion

[53] The First Nations Land Code and Policies established thereunder do not govern the relationship between the parties in the circumstances of this case.

(b) Has the First Nation developed and implemented dispute resolution procedures and processes pursuant to the Code and Policies which are designed to deal with this dispute?

[54] The parties agree that the Land Code provides the First Nation with authority to develop and implement legal procedures and processes which are designed to enforce its land policies.

[55] The Shawanaga Land Code devotes an entire section (PART 8: DISPUTE RESOLUTION) to establishing rules which are designed to assist and guide First Nations in drafting and implementing such processes and procedures.

[56] For example, section 42.1 of the Code states that “disputes in relation to Shawanaga First Nation Land … may progress through the following stages:

(a) negotiation;

(b) facilitated discussions;

(c) mediation; and

(d) final arbitration by the Dispute Resolution Panel.

[57] Although the right to draft and adopt such procedures exists, the respondents have not directed me to a functioning dispute resolution policy and procedure which has been approved and adopted by the First Nation.

[58] Counsel for the First Nation advised the court that no formal dispute resolution policies and processes such as dispute resolution panels or tribunals have been developed and implemented by her client.

[59] I am not surprised that the Shawanaga First Nation has not yet developed formal legal processes designed to enforce its recently acquired land laws. The Code was ratified a mere 6 years and ago and the three land related policies were adopted in 2016. Shawanaga First Nation is a small band, numbering only about 200 persons living on-reserve. Its human and financial resources are limited, and I expect it will take some time before it will be possible to put in place effective and functioning dispute resolution tribunals and other processes.

Conclusion

[60] The First Nation has not yet developed and implemented dispute resolution procedures and processes designed to deal with this dispute?

(c) Now that the Land Code has been adopted by the First Nation, must all land disputes pertaining to the First Nation be resolved through the use of processes established under the Code, or does the right bring this dispute to a court of law continue to exist?

[61] The respondents argue that once a First Nation has adopted a Land Code all land disputes must be resolved using the dispute resolution processes and procedures set out in the Land Code. For the following reasons I disagree.

[62] Firstly, one of the most significant hallmarks of any civilized nation or society is a functioning and credible judicial system. It is illogical to expect that the First Nation has been given a mandate to implement land policies but that the enforcement of those policies can be delayed until such time as it has the resources to establish functioning judicial processes and procedures.

[63] Secondly, the Land Code clearly contemplates that the courts will continue to have jurisdiction in enforcing and resolving land disputes following the adoption of the Code. The following sections of the Land Code and policies speak to this:

Land Code Provisions

s.41.9 Notwithstanding subsections 41.6 and 41.7, nothing in this part shall be construed to prevent a party to a dispute from, at any stage of dispute resolution, applying to have the dispute resolved in a court of competent jurisdiction.

s. 41.10 For greater certainty, nothing in this part shall be construed to prevent a party to a dispute from challenging the validity of a Land Law, but such a challenge may be heard only in a court of competent jurisdiction.

Rent to Own Housing Program Policy Provisions

s.28.2.2 If the borrower does not vacate the unit at the required date defined in the notice to terminate occupancy, Shawanaga First Nation may apply to the courts to obtain an Order of Possession authorizing the Sheriff to remove the borrower and their belongings and to serve this order on the borrower.

s. 28.3.2 Upon termination of occupancy, Shawanaga First Nation may apply to the courts or Shawanaga tribunal process to recover any costs incurred as a result of enforcing the order of possession.

Shawanaga First Nation Rental Housing Program Policy

s. 25.2.2 If the tenant does not vacate the unit at the required date defined in the notice to terminate tenancy, Shawanaga First Nation may apply to the courts to obtain an Order of Possession authorizing the Sheriff to remove the tenant and their belongings and to serve this order on the tenant.

s. 25.2.5 Upon termination of tenancy, Shawanaga First Nation may apply to the courts/Shawanaga Tribunal process to recover any costs incurred as a result of enforcing the order of possession.

[emphasis added above]

[64] Based on the above sections of the Land Code and policies, I find that the courts continue to have jurisdiction with respect to issues affecting land following the adoption of a Land Code. In fact, it would appear that the courts have a paramount role to play, given the wording of s. 41.9 of the Code which provides a party to a dispute with the right to apply to have the dispute resolved in a court of competent jurisdiction, at any stage of the proceeding.

Conclusion:

[65] The courts do have jurisdiction with respect to the land issues on First Nations, notwithstanding the adoption of a Land Code by the First Nation.

(d) Is the Federal Court of Canada or the Superior Court the appropriate court to determine this dispute?

[66] The First Nation has brought this dispute before the Superior Court. The respondents submit that the Superior Court does not have jurisdiction to provide such relief because this litigation involves property on First Nations lands and s.91(24) of the Constitution Act 1867 gives the Federal government exclusive authority over “Indians and lands reserved for Indians”. According to the respondents, if a court has jurisdiction over this dispute, it is the Federal Court. With respect, I disagree with the respondents.

[67] In interpreting the scope of section 91 of the Constitution Act, 1867 it is necessary to distinguish between cases where a Superior Court is asked to enforce a provincial law which is not applicable to Indian lands, such as the possession, ownership or disposition of property on Indian Lands in a family law context i.e. The Family Law Act, R.S.O. 1990, c F.3, and those cases where the relief requested is not in conflict with the Indian Act, R.S.C., 1985, c I-5.

[68] In Tyendinaga Mohawk Council v Brant, 2014 ONCA 565 the plaintiff band council had been granted a mandatory injunction by the Superior court against the defendant and other band members restraining them from occupying lands on the reserve to which they did not hold a certificate of possession, together with a monetary damage award. To satisfy the monetary judgment, the Band Council took out a writ of seizure and sale on three other properties on First Nations land to which the defendant held certificates of possession. When the Band Council was unable to satisfy any of the awards made in its favour it brought a motion to enforce the transfer of the defendant’s certificates of possession to satisfy the awards.

[69] The motions judge of the Superior Court of Justice ordered the defendant to complete any documents required to transfer his certificates of possession and submit them to the Indian Land Registrar. The defendant appealed, arguing inter alia that the Superior Court did not have jurisdiction with respect to the transfer of property situated on a reserve.

[70] The Ontario Court of Appeal upheld the decision of the motions judge confirming that subject only to specific exceptions the Superior Court’s jurisdiction was broad and far reaching and included jurisdiction to transfer certificates of possession and to apply equitable principles such as injunctive relief to disputes involving First Nations’ lands.. It stated at paragraphs 38 through 42 of its decision:

38 The courts in Derrickson and Syrette refused to divide possession of Indian reserve land between family members because the applicable provincial statutes were inoperative to the extent they purported to apply to Indian reserve land. Neither Derrickson nor Syrette oust jurisdiction from the Superior Court to transfer Certificates of Possession pursuant to the Indian Act or equitable principles such as a mandatory injunction.

39 Further, the Superior Court's jurisdiction over the transfer of Certificates of Possession was expressly considered in Batchewana First Nation of Ojibways v. Corbiere (2000), 2000 CanLII 16712 (FC), 198 F.T.R 36, in circumstances very similar to this case. The application judge in Corbiere held that the Federal Court did not have jurisdiction, noting that the dispute regarding the band's right to the subject land, over a band member who held a Certificate of Possession, was one "properly within the jurisdiction of the courts of Ontario": at para. 37. I agree with that result.

40 Ontario Superior Courts have "plenary and inherent jurisdiction to hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal or constitutional", as long as an exception has not been specifically carved out by Parliament: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437at paras. 44-45. While the Indian Act does not specify the procedure to effect the relief sought by MBQ, the motion judge correctly reasoned that ss. 23, 24, 25, 27, 88, and 89 of the Act, when read together, would permit the order that he made. Given that the relief sought is permissible under the Act, the relief may be granted by the Ontario Superior Court.

41 A Superior Court ordering Miracle to take the necessary steps to transfer his Certificates of Possession, evidencing his right of possession of specific reserve lands, to MBQ is consistent with the Indian Act and provides a method for MBQ to enforce a debt owed to it by a band member. This is not negated simply because the Minister's approval of the transfer is ultimately required. Even in a regime established for colonial purposes and objectives such as the Indian Act, fairness in law requires that the legal rights created for Indian bands and Indians are to be afforded a legal process to obtain a remedy.

42 This ground of appeal is without merit.

[71] In the circumstances of this case Shawanaga is not asking the court to enforce provincial laws which are inconsistent with the Indian Act or other federal legislation, such as the Residential Tenancies Act, 2006, S.O. 2006, c. 17. The applicant is requesting the court to apply equitable and common law principles in issuing a declaration and granting it a Writ of Possession so it can enforce possessory rights which are inherent in its Certificate of Possession. The involvement of the Superior Court does not raise any constitutional issues which are required to be heard in the Federal Court.

[72] The decision of the Court of Appeal in Tyendinaga is consistent with earlier cases referred to me by counsel for the applicant, including Nicola Band et al v. Trans – Can. Displays et al, 2000 BCSC 1209 and Joe v. Findlay (1978) 87 D.L.R.(3d) 377 (B.C.C.A.).

[73] In Nicola Band at par.111 the Supreme Court of British Columbia held:

In a number of earlier decisions, this Court has assumed jurisdiction to address claims for declaratory relief involving a determination of when a member of a band is lawfully in possession of land on a reserve. I am also of the view that the jurisdiction to address issues involving reserve lands is not limited to the Federal Court. I am satisfied this Court may determine such an issue in this case. Furthermore, to decline to assume jurisdiction, in my view, effectively would deny a whole group of citizens reasonable access, including geographical convenience, to the Canadian justice system which exists for the resolution of disputes for all of its citizens.

[74] In the Joe v. Findlay decision, the British Columbia Court of Appeal held at par. 242;

There is a provision (s. 31) that where it is alleged that a non-Indian is unlawfully in occupation of reserve lands the Attorney-General of Canada may exhibit an information in the Federal Court, on behalf of an Indian or a band, claiming relief. Whether this provision should be regarded as precluding the right of an Indian or a band to sue for trespass in such a case remains to be seen; see D’Ailleboust v. Bellefleur (1918), 1918 CanLII 337 (QC CS), 25 R.L.N.S.50. In any event, there is no provision in the present Act which ousts the jurisdiction of the Court to hear an action for trespass brought by a band against an Indian [emphasis added].

[75] The Joe v Findlay decision was followed in Kwikwetlem Indian band v Cunningham, 2009 BCSC 1032, a case in which the Superior Court of British Columbia recognized a First Nation’s application to evict the defendant from a rental home on its reserve based on a breach of rental agreement. In that case Johnston J. stated at paras. 20 – 21:

[20] Mr. Cunningham argues that this action, or his objections to the actions of Band Council, constitute a review of a decision of a federal board or tribunal (Band Council of the Kwikwetlem Indian Band) and authority to deal with such is reserved to the Federal Court. Mr. Cunningham cites Gabriel v. Canatonquin, 1977 CanLII 3146 (FC), [1978] 1 F.C. 124, 9 C.N.L.C. 74 (T.D.); af’d 1980 CanLII 4125 (FCA), [1980] 2 F.C. 792, [1981] 4 C.N.L.R. 61.

[21] In my view, the jurisdiction issue has been settled against that argument in Lower Nicola Indian Band v. Trans-Canada Displays Ltd., 2000 BCSC 1209 [2000], 4 C.L.N.R. 185 [Lower Nicola], at para. 111.

Conclusion

[76] The Superior Court has jurisdiction over this dispute.

Summary of Findings

[77] Before concluding my discussion with respect to the legal basis for the applicant’s position it may be helpful to summarize my findings on the sub-issues.

a) Do the provisions of the Land Code and the policies thereunder govern the relationship between the parties;

In 2015 the respondents stopped paying rent and thereafter they justified their right to remain in possession of the property on unsupported allegations that Mr. Pawis and the First Nation did not have valid title. Their actions constituted an abandonment of their tenant status and their continued presence on the property constituted a trespass.

Even if one were to characterize the relationship between the applicant and the respondents as a landlord and tenant relationship, the provisions of the Code and the policies only address this relationship in the context of a Rent-To Own Housing Program Policy and Rental Housing Program Policy, policies which were ratified by the band in 2016. The respondents did not participate in either of these programs and the provisions of the Code and the Policies therefore do not apply.

The actions of the applicant cannot be characterized as an expropriation because the respondents do not have an interest or licence in the property. Also, the First Nation has not yet developed a Land Law with respect to expropriations, and the enactment of such a law is a precondition to carrying out expropriations under the Land Code.

In conclusion, the provisions of the Code and policies do not govern the relationship between these parties and this dispute.

b) Has the First Nation developed and implemented dispute resolution procedures and processes pursuant to the Code and Policies which are designed to deal with this dispute?

The First Nation has not yet developed and implemented dispute resolution procedures and processes to enforce its recently acquired rights to draft and adopt land policies. However, the right to develop such judicial processes is contemplated in the Code.

c) Was it incumbent on the applicant to follow the dispute resolution processes and procedures set out in the Code to resolve this dispute, or do the courts continue to play a role as well.?

The dispute resolution provisions set out in the Code and policies are not mandatory.

Section 41.9 of the Code provides that “nothing in this part shall be construed to prevent a party to a dispute from, at any stage of dispute resolution, applying to have the dispute resolved in a court of competent jurisdiction.”

The courts continue to have jurisdiction with respect to disputes involving land. Not only are the dispute resolution procedures set out in Part 8 of the Code optional, the parties to disputes are specifically mandated to use the courts in certain situations.

The rent to own housing policy provides that the First Nation may apply to the courts to obtain an Order for Possession or to recover costs incurred in enforcing an Order of Possession. The Code requires parties who wish to challenge a land law to bring the issue to a court of competent jurisdiction.

d) Does jurisdiction in a case such as this lie with the Federal Court or with the Superior Court?

Jurisdiction lies with the Superior Court. In Orden Estate v. Grail, supra the court held that the Superior Courts have “plenary and inherent jurisdiction to hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal or constitutional”, as long as an exception has not been specifically carved out by Parliament. The circumstances of this case are not subject to any exceptions.

Conclusion: Legal basis for relief requested by the First Nation

[78] The applicant brings this application for the purpose of enforcing its right to possession of a parcel of land to which it holds a valid registered Certificate of Possession. I have not been directed to any legislation which governs this dispute, and, in the circumstances, equitable and common law principles must be applied.

[79] The respondents do not contest the fact that the applicant holds such a Certificate to the land. The courts agree that a Certificate of Possession constitutes the highest form of title a First Nations member can have to land on an Indian Reserve. I have found that the respondents do not have any licence or other interest in the land and that no right to possession accrues to them. Their refusal to vacate the property makes them trespassers on the land. In the circumstances the applicant is entitled to an order granting it possession of its land.

[80] In the alternative, assuming the relationship between the parties can properly be characterized as a landlord and tenant relationship, the applicant would still be entitled to judgment in its favour based on breach of a tenancy agreement. The respondents signed a lease with Jordan Pawis in 2012 in which they agreed to pay rent. They have been in breach of this obligation since 2015 and they have not provided any reasonable and credible explanation or justification for their failure. Their refusal to make any rental payments places them in breach of their contractual obligations. The duration of the breach and the absence of any justifiable grounds or credible explanation for their contractual breach supports an order for termination of the agreement and eviction from the premises in favour of the holder of Certificate of Possession.

Decision

[81] For the above reasons, I find that the applicant is entitled to the following relief:

a) A declaration that the respondents are trespassing on land legally described in the First Nations Land Registry as Lot 22 CLSR 57250, located at 21 Shebeshekong Road North, Nobel, Ontario, on Shawanaga First Nation and are unlawfully occupying the property.

b) Leave to issue a Writ of Possession entitling the applicant to possession of the property; the Writ of Possession is to be held in abeyance and not executed for a period of 90 days form the date it is issued.

c) An injunction restraining the respondents from entering or occupying the property. This injunction is to take effect 90 days after the Writ of Possession is issued.

Costs

[82] If the parties cannot agree on costs, they are to file written submissions with respect thereto, to be delivered 10 days from the date this decision is released. Submissions are to be accompanied by a Bill of Costs and are to be no more than 3 pages in length, plus attachments.

Justice E. J. Koke

Date: February 3, 2021