COURT FILE NO.: CV-20-00644545

DATE: 2022-01-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Iskatewizaagegan No. 39 Independent First Nation, Plaintiff

AND:

The City of Winnipeg and Her Majesty the Queen in the Right of Ontario, Defendants

AND:

Shoal Lake #40 First Nation, Proposed Intervenor

BEFORE: D.A. Wilson J.

COUNSEL: Julian N. Falconer and Jeremy Greenberg, for the Plaintiff Shea Garber, for the Defendant, The City of Winnipeg Vanessa Glasser and Colin Bourrier, for the Defendant, Her Majesty The Queen in Right of Ontario Bruce McIvor and Kate Gunn, for the Proposed Intervenor

HEARD: January 19, 2022 (via Zoom)

ENDORSEMENT

[1] Iskatewizaagegan No. 39 (“No. 39”) brings this action against the City of Winnipeg (“Winnipeg”) and the Province of Ontario (“Ontario”) claiming damages arising from the taking of water from Shoal Lake emanating from a 1913 Order in Council. The Plaintiff asserts that Winnipeg was authorized to take water from Shoal Lake, a term of which was that compensation be made to parties whose lands or properties may be “injuriously affected or in any way interfered with” as a result.

[2] No. 39 and Shoal Lake No. 40 (“No. 40”) are neighbours on the shores of Shoal Lake. Both are Anishinaabe communities, but they are independent. No. 40 has brought a motion seeking leave to intervene in this action as an added party pursuant to Rule 13.01 of the Rules of Civil Procedure. The Plaintiff opposes this motion; I am advised that the Defendants consent to it.

[3] In support of its motion to intervene, No. 40 has filed the affidavit of Chief Vernon Redsky. In opposition, the Plaintiff has filed the affidavit of Chief Gerald Lewis and the affidavit of Dottie Goriah, a legal assistant in the offices of counsel for the Plaintiff. The latter affidavit details the exchanges between counsel concerning the proposed intervention motion.

Positions of the Parties

Proposed Intervenor

[4] No. 40 seeks leave to intervene as an added party or alternatively, as a friend of the court. No. 40 submits that it has an interest in the subject matter of this action and could be affected by the determination of the issues in this claim. No. 40 submits that it is in the same position as No. 39, in that it has suffered losses as a result of the taking and diversion of water from Shoal Lake and any findings in this action could affect the interests of No. 40.

[5] It asserts that no delay will result due to the Order sought as No. 40 does not contemplate being involved in the discovery process nor in documentation production. It intends to provide argument relevant to the legal issues in this claim, to assist the Court.

Plaintiff

[6] The Plaintiff objects to No. 40 being added as an intervenor. This action is a damages claim and No. 40 is free to pursue its own action for damages arising from the taking of water from Shoal Lake. The action by No. 39 has been proceeding for 2 years on a schedule and the involvement of No. 40 will result in delay. Furthermore, historically, No. 39 and No. 40 have not had an easy relationship; they are distinct communities and do not necessarily follow the same path.

Background

[7] Both No. 39 and No. 40 are Anishinaabe communities located in the northwestern part of Ontario on the shores of Shoal Lake. Ontario issued an Order in Council in 1913 by which the city of Winnipeg was permitted to divert and use water from Shoal Lake as its drinking water. The Order provided that full compensation be made to private parties whose lands or properties were taken, injuriously affected or in a way interfered with as a result of the Order. Since 1919, Winnipeg has used the water from Shoal Lake as the drinking water for its residents.

[8] In 1989, No. 40 signed a Tripartite Agreement with Winning and the province of Manitoba which provided certain compensation to No. 40. It negotiated another agreement with Canada in 1990 which also concerned compensation for the taking of water. The affidavit of Chief Redsky indicates that these agreements provided No. 40 with more than $9 million in compensation arising from the taking of water from Shoal Lake.

[9] After No. 39 issued an Application in the Superior Court, the Defendants Ontario and Winnipeg agreed that the Applicant met the definition of a “party” as set out in the Order in Council. In July 2020, No. 39 brought this action seeking compensatory damages as a result of the taking of water from Shoal Lake. No. 39 pleads that it has suffered ecological, financial, and cultural losses arising from injurious affection and interference with its lands and properties as a result of the use and diversion of water from Shoal Lake. It pleads that no compensation has been provided to No. 39 for these losses and that Ontario breached its fiduciary duties to No. 39 by failing to ensure that appropriate compensation was given as a result of the harm occasioned to No. 39’s interests caused by the use and diversion of water from Shoal Lake.

[10] This matter was initially case managed by Justice Gans. Upon his retirement from the Bench, I assumed carriage as the case management judge. In March 2021, No. 40 wrote to the parties in this action advising that it would be seeking leave to intervene. Subsequently, counsel advised that it would not be pursuing an order to be added as an Intervenor but would be advancing its own claim for damages. That position was changed and in July 2021, No. 40 served a formal motion to be added as an Intervenor. Responding materials were delivered by the Plaintiff and the motion date of January 19, 2022 was fixed.

Analysis

[11] Rule 13.01 provides that a person who is not a party to a proceeding may bring a motion for leave to intervene as an added party if the person claims an interest in the subject matter of the proceeding or that they may be adversely affected by a judgment or that there is a question of law or fact in common between the person and one of the parties in the proceeding.

[12] Rule 13.02 provides that a person may without becoming a party to the proceeding intervene as a friend of the Court for the purpose of rendering assistance to the Court by way of argument.

[13] No. 40 submits that leave ought to be granted to intervene as an added party because it has an interest in the subject matter of the claim and will be affected by the determination of the issues in this action. I do not accept this submission. This is a claim for damages and while there may be similarities between this claim and a claim advanced by No. 40, they are not identical. It has no interest in the subject matter of the claims of No. 39. While it may be affected by the decision of the Court in this claim, in the same manner as any person with a similar claim against a Defendant might be affected adversely by findings of the Court in an action, that cannot form the basis for the granting of leave to intervene.

[14] This action is not seeking a declaration, for example, of rights nor is it asking the Court to interpret the provisions of a treaty or a contract which might result in an adverse outcome for No. 40. It is a claim by No. 39 for compensation which it argues it is entitled to pursuant to the Order in Council. The fact that No. 40 may make the same argument does not justify it being granted leave to intervene as an added party in this action.

[15] No. 40 is in a similar position to that of No. 39 and should it wish to do so, it could bring an action for damages pursuant to the Order in Council against Winnipeg and the province. It has been aware of the within action since early 2020 and could have brought its own action to proceed alongside the claims of No. 39. It has chosen not to do so, for reasons which are not clear to me and are not set out in the motion record. Perhaps it has not brought an action for damages because it has already negotiated agreements with Winnipeg and other entities for compensation arising from the taking of water from Shoal Lake.

[16] While No. 40 submits that its participation will not result in delay, I do not accept this submission. I have been case managing the action of No. 39 for almost a year and because of the nature of the claim and the productions that are required, including archival productions, there were numerous case conferences before the parties were ready to proceed to the examination for discovery stage. I do not say this to be critical of counsel; rather, it is due to a number of factors, including that the claims being advanced arise from an Order made more than 100 years ago. No. 40 asserts that it will not participate in documentary production or in the examinations for discovery. It is not clear to me what role No. 40 envisages playing if it is granted leave to intervene.

[17] No. 40 asserts that given its position, it can provide arguments that will be of assistance to the Court in determining various issues raised in the claim, including constitutional law issues, the honour of the Crown and issues surrounding Ontario’s fiduciary obligations to First Nations. I am not persuaded that the assistance of No. 40 is necessary for the Court to deal with the issues raised in the pleadings in this action. While there may be constitutional law issues involved in the compensation claim of No. 39, they are not central to the action and I am not of the view it is the type of case that requires intervenor assistance to ensure the issues are properly dealt with.

[18] As is set out in Authorson (Guardian of) v. Canada (Attorney General), 2001 4382 (ONCA) some cases are more of a private dispute while others are more public, involving constitutional issues. It is not always easy to characterize the type of case when intervention is sought. What is clear is that “the burden on the moving party should be a heavier one in cases that are closer to the ‘private dispute’ end of the spectrum.” In my view, the case brought by No. 39 for compensation is more of a private type of dispute and thus, the onus on No. 40 in the circumstances is heavy and I do not find that burden has been met.

[19] The affidavit of Chief Redsky of No. 40 deposes that there have been significant detrimental effects on the community as a result of the taking of water from the Lake. The economic development has been arrested or restricted and although an agreement was reached with Winnipeg and Manitoba, Chief Redsky states that No. 40 was “forced” to accept the deal.

[20] The terms of the agreements that were negotiated were not provided to No. 39, despite several requests from counsel for No. 39 to provide particulars. Mr. Falconer submits that No. 40 is not content with the agreements that it negotiated and wishes to revisit them through this lawsuit. It is not clear if this is the intention of No. 40, but in my view, reviewing the agreements that No. 40 negotiated with Winnipeg and other parties arising from the taking of water from Shoal Lake would not be appropriate in the context of this claim launched by No. 39.

[21] I do not accept that the compensation claim of No. 39 could adversely affect the rights of No. 40 as suggested by counsel. Even if the claim of No. 39 is unsuccessful, it will have no impact on any potential claim for compensation by No. 40, who has the right to bring such an action forward for determination by the Court. Similarly, if the claim of No. 39 is accepted by the Court, the quantum of compensation that is awarded has no impact on any compensation claim that No. 40 might choose to advance. I am not persuaded that it is necessary for No. 40 to intervene in order to protect its interests.

[22] With respect to the alternative request for leave to intervene as a friend of the Court, I do not accept that this is necessary on the facts of the case. No. 40 is in a similar position to No. 39; and I do not accept that submissions it would make if granted intervenor status would assist the Court or offer a perspective that is useful to the issues for determination by the Court in the claim by No. 39.

[23] In the particular circumstances of this case, I am not persuaded No. 40 ought to be granted leave to intervene as a party nor as a friend of the Court. The role that No. 40 envisages if it were granted leave to intervene as a party or as a friend is not clear to me. It is not necessary in order to protect the interests of No. 40 since this is a claim for compensation by a different party; nor is it necessary to No. 40 to intervene as a friend to assist the Court by way of argument, for the reasons I have articulated.

[24] There is no prejudice to No. 40 as a result of my decision, because it is free to initiate a claim for compensation arising from the taking of water from Shoal Lake pursuant to the Order in Council if it wishes to do so and is not precluded by the agreements it has already negotiated.

Conclusion

[25] The motion by No. 40 is dismissed. If counsel cannot agree on costs, I may be contacted.

Date: January 24, 2022