Court File and Parties
COURT FILE NO.: C-3512-14, C-3512-14A DATE: 2022-02-25 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of The Robinson Huron Treaty of 1850 Plaintiffs AND: The Attorney General of Canada, the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario Defendants The Red Rock First Nation and The Whitesand First Nation Third Parties
BEFORE: The Honourable Madam Justice Patricia C. Hennessy
COUNSEL: Diane Corbiere/Dan McCoy, for the Plaintiffs Glynis Evans/Scott Warwick/Claudia Tsang, for Defendant the Attorney General of Canada Thomas Lipton/Ram Rammaya, for the Defendant the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario Harley Schachter/Kaitlyn Lewis, for The Red Rock First Nation and The Whitesand First Nation Bruce McIvor, for Proposed Intervener Teme-Augama Anishnabai (“TAA”) Theresa Bananish, for Netmizaaggamig Nishnaabeg First Nation Peter Hollinger, for Pays Plat First Nation Lori Kruse, for Biinjitiwaabik Zaaging Anishinaabek First Nation Alan Pratt/Jordan Sewell/Long Lake No. 58 First Nation Bob Botsford/Lucas Jewitt, for Bingwi Neyaashi Anishinaabek First Nation Kim Fullerton, for Animbiigoo Zaagi’igan Anishinaabek First Nation Brian Gover/Spencer Bass, for Biigtigong Nishnaabeg First Nation
HEARD: February 11, 2022
Endorsement on Motion by TAA to Intervene
[1] Teme-Augama Anishnabai and the Temagami First Nation (collectively “TAA”) seek leave to intervene as added party plaintiffs in the Restoule action pursuant to r. 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] The Restoule plaintiffs and the defendant Canada consent to the motion on the terms proposed by TAA. Ontario consents to the intervention but opposes one of the proposed conditions of the intervention.
[3] The outstanding issue between TAA and Ontario is whether, as a condition of the intervention, TAA would be permitted to seek leave to file reports in reply to Ontario’s reports, if they had not previously filed principal reports.
[4] There is no issue that the TAA have an interest in the subject matter of the claim and will be affected by the determination of the issues in Stage Three of the claim. In particular, the determination of the issues in Stage Three regarding the boundary of the Robinson Huron Treaty could directly affect the geographic area in which the TAA hold and exercise rights under s. 35 of the Constitution Act, 1982.
[5] The hearing of Stage Three of the two Robinson Treaty actions is scheduled to begin in mid-October 2022. The matter has been the subject of case management with all of the parties and most recently with the proposed intervenors. The parties have negotiated the terms of consent orders for the intervention of ten other First Nations in the proceeding. Those terms include provisions requiring the intervenors to give notice of intent to file principal reports, setting dates for those notices, and requiring consent or leave of the court for filing any report (see paras. 3(j)-(m) of the Consent Order dated February 17, 2022).
[6] As part of their request for leave to intervene, TAA asserted that it would agree to rely on all of the plaintiff reports as filed. However, because of issues unique to it, which have been the subject of a decision of the Supreme Court of Canada: Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570, TAA asks this court to allow it to seek to file reply evidence if the issues are addressed by the Crown defendants. Since the Bear Island decision, TAA has been negotiating with Ontario and Canada on the interpretation and implementation of its s. 35 rights, a process being monitored by the Federal Court. TAA maintains that it is this unique situation, with a unique interest that it seeks to protect by preserving their ability to seek leave to enter a report in reply to expert reports filed by Canada and/or Ontario, even if TAA has not filed a principal report. They fear that one or both of the defendants may take a position on the treaty boundary that affects TAA’s s. 35 rights and risks putting them in an adverse position with the other Huron plaintiffs or that silences them. Other than on this matter, the TAA do not seek to take any steps in the proceeding which would prolong or delay the proceedings.
[7] From the Case Management process, the court is aware that the parties are attempting to resolve all the treaty boundary issues. While this process is ongoing, TAA does not want to be required to retain an expert to prepare a report which it may not require either because the matter will be resolved or because Ontario and Canada may not raise the issue. TAA simply asks that it not be required to file an expert report before it can assess whether such a report would be required or would be useful. In particular, TAA does not want to be forced into a dispute with the other Huron First Nation bands. TAA argues that the real risk here is that if Ontario or Canada seeks to put in evidence on the issue without the opportunity of TAA responding, they will essentially be gagged.
[8] Ontario objects to this proposed term as a part of the Intervention. Ontario submits that TAA should be subject to the terms that apply to the other intervenors which provide timelines to file principal reports.
[9] Ontario disputes that TAA has sufficiently distinct interests to justify different terms of intervention. Ontario notes that the seven other First Nations who assert that they are not parties to the Robinson Superior Treaty are bound by the disputed term of intervention and that TAA is not sufficiently different from them.
[10] Ontario submits that if TAA is granted the right to seek leave to file a reply report when they have not filed a principal report, it would be tantamount to giving them the right to split their case. Ontario submits that it will not know the case it has to meet if TAA is not required to file a principal report before having the right to file a reply report.
[11] It is important to underscore that TAA’s request does not seek as a term of intervention the right to file reply evidence to Ontario. Ontario’s perceived risk in this situation is speculative. First, the boundary matter may be resolved. Even if it is not resolved, Ontario has been on notice of this issue for some time. This is not a new issue. Only if Ontario files a report on the issue, does TAA ask the right to seek to file a responding report. However, TAA does not otherwise seek to raise the issue. Further, there is no risk of multiple reports on various issues as speculated by Ontario. TAA simply seeks to preserve the right to seek leave to file a report should such evidence be necessary.
[12] Including as a term of the right to intervene, a term which provides TAA the right to seek leave to file a reply report provides Ontario with the opportunity to make arguments with respect to delay, prejudice and/or case splitting when the issue crystallizes, if it does crystallize. There is no need at this time to address these possible risks to Ontario. The real risk of prejudice if Ontario succeeds on their argument will fall on TAA, in the short term and which may be completely avoidable in the long term.
[13] The order for TAA’s intervention will permit them to seek leave to file a reply report to Ontario and/or Canada’s report. Counsel may draft the order for my review.
The Honourable Madam Justice Patricia C. Hennessy