COURT FILE NO.: CV-18-594281-0000
(Formerly Court file no.: 406/95)
DATE: 20220921
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS Plaintiff
AND:
THE ATTORNEY GENERAL OF CANADA and HIS MAJESTY THE KING IN RIGHT OF ONTARIO Defendants
BEFORE: A.A. SANFILIPPO J.
COUNSEL: Iris Antonios, Max Shapiro, Gregory Sheppard and Robert Janes, for the Plaintiff
Anusha Aruliah, Edward Harrison, and Sarah Kanko, for the Defendant, the Attorney General of Canada
Manizeh Fancy, David Feliciant, Christine Perruzza, Shima Heidari, Julia McRandall, Catherine Ma, and Lina Chaker, for the Defendant, His Majesty the King in Right of Ontario
Tim Gilbert, Thomas Dumigan, Jonathan Martin, Dylan Gibbs and Jack MacDonald, for the moving party, the Haudenosaunee Development Institute
HEARD (By videoconference): September 16, 2022 and in writing, September 21, 2022
CASE CONFERENCE ENDORSEMENT
[1] Case Conferences were conducted on August 15, 2022 and September 16, 2022 to address the request by the Haudenosaunee Development Institute (“HDI”) for the scheduling of a motion for the following relief: (i) to add HDI as a party to this action, either pursuant to Rule 5.03 (joinder as necessary party) or Rule 13.01 (leave to intervene as an added party) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; (ii) to appoint HDI as a representative of the citizens of the Haudenosaunee Confederacy, pursuant to Rule 10.01 or 12.08 (the “HDI Motion”).
[2] By the time of the Case Conference of September 16, 2022, Six Nations of the Grand River Band of Indians, the Attorney General of Canada and His Majesty the King in Right of Ontario (collectively the “Parties”) had provided HDI with the documents requested by HDI as arising from the Parties’ pleadings, and HDI had provided the Parties with HDI’s Draft Statement of Defence, Counterclaim and Crossclaim. On September 16, 2022, the Parties and HDI agreed to a timetable for the development of the HDI Motion for adjudication, as follows (the “HDI Motion Timetable”).
(a) HDI shall, by September 23, 2022, give notice to potentially interested non-parties of the HDI Motion, at HDI’s cost.
(b) Anyone given notice who wishes to participate in the HDI Motion, shall, by October 24, 2022, so advise counsel for HDI by email to their counsel.
(c) The Parties shall, by November 2, 2022, deliver their Responding Motion Records to the HDI Motion.
(d) The Parties and HDI shall, on November 7, 2022 at 2:00 p.m., attend at a Case Conference to confirm the motion participants and the further steps of the Timetable.
(e) Subject to any further Order of this Court:
a. Cross-examinations, if any, on the affidavits filed by all parties shall be completed by November 16, 2022.
b. HDI shall, by November 25, 2022, deliver their factum.
c. The Parties shall, by December 16, 2022, deliver their responding facta.
d. The hearing of the HDI Motion shall take place on January 30 and 31, 2023.
[3] The Parties and HDI required additional time to confer and conclude terms for the provision of notice of the HDI Motion to potentially interested non-parties. The Parties and HDI filed, on September 20, 2022, a Consent, as executed by the Parties and HDI, for the issuance of an Order in accordance with the terms for notice set out in Schedule #1 to this Case Conference Endorsement.
Case Conference Orders
[4] Having considered the steps required to prepare the HDI Motion for adjudication, and on the consent of HDI and the Parties, I order as follows:
(a) The HDI Motion shall be prepared for adjudication in accordance with the HDI Motion Timetable.
(b) An Order shall issue on the terms of the draft Order filed by the Parties and HDI with their written Consent of September 20, 2022, as set out in Schedule #1 of this Case Conference Endorsement, to give notice of the HDI Motion to any potentially interested non-parties. I will sign the draft Order.
(c) The Case Conference to be conducted on November 7, 2022 at 2:00 p.m. shall be conducted by videoconference, using video connection coordinates that will be provided by the Court.
(d) The parties shall, by November 3, 2022 at 1:00 p.m., deliver a Case Conference Memorandum of no more than three pages in length, setting out the status of the HDI Motion and any issues affecting the orderly and efficient development of the HDI Motion for hearing.
[5] Broad application of Rule 50.13 will be used to address and resolve matters raised at case conference, in circumstances where this is possible. Counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.
[6] In accordance with Rules 59.04(1), 77.07(6) and 1.04, this order is effective from the date that it is made and is enforceable without any need for entry and filing.
Justice A.A. Sanfilippo
Date: September 21, 2022
SCHEDULE #1
Terms of Order on Notice
- THIS COURT ORDERS that the Haudenosaunee Development Institute (Aaron Detlor and Brian Doolittle), as appointed by the Haudenosaunee Confederacy Chiefs Council (the “Moving Party”) shall, at its cost, promptly provide a copy of (i) the notice attached as Schedule “A” (the “Notice”), (ii) its Notice of Motion dated June 10, 2022, (iii) its draft pleading dated September 9, 2022, and (iv) this Order, to the following (in the manner specified for each below) by September 23, 2022:
(a) To the secretary for the Haudenosaunee Confederacy Chiefs Council by email and registered mail, with the request that the secretary send the Notice to all current chiefs and all current clan mothers by email (if any) and mail;
(b) To the secretary for the Grand Council by email and registered mail, with the request that they send the Notice to all current chiefs and all current clan mothers by email (if any) and mail;
(c) The following Haudenosaunee Longhouses and Longhouse representatives:
(i) Mohawk Nation Longhouse by email to the Longhouse representative, Bula Hill, and by mail to P.O. Box 366, Rooseveltown, New York, 13683-0196;
(ii) Oneida Nation Longhouse by email to Longhouse representatives Alfred Day, Howard Elijah, and Robert Brown;
(iii) Tonawanda Seneca Longhouse by email to the Longhouse representative, Christine Abrams;
(iv) Tuscarora Longhouse by email to Longhouse representatives Thomas Jonathan, Brennen Ferguson, and Renee Rickard and mail to 1954 Mount Hope Road, Lewiston, NY 14092;
(d) Mohawk Council of Akwesasne at PO Box 90 Akwesasne, QC H0M 1A0 and PO Box 489, Hogansburg, NY 13655, by mail;
(e) Mohawk Council of Kahnawà:ke at PO Box 720, Kahnawake, QC, J0L 1B0, by mail;
(f) Mohawks of Kanesatake at 681 Ste-Philomene Street, Kanesatake, QC, J0N 1E0, by mail;
(g) Mohawks of the Bay of Quinte at 24 Meadow Drive, Tyendinaga Mohawk Territory, ON, K0K 1X0, by mail;
(h) Mohawks of Wahta at P.O. Box 260, 2664 Muskoka Road, Bala, ON, P0C 1A0, by mail;
(i) Saint Regis Mohawk Tribe at 71 Margaret Terrance Memorial Way, Akwesasne, NY, 13655, by mail;
(j) Oneida Nation of the Thames at RR 2, Southwold, ON, N0L 2G0, by mail;
(k) Cayuga Nation at PO Box 803, Seneca Falls, NY, 13148, by mail;
(l) Seneca Nation of Indians at 90 Ohi:yo’ Way Salamanca, NY 14779 and 12837 Route 438 Irving, NY, 14081, by mail;
(m) Tonawanda Band of Seneca at 7027 Meadville Road, Basom, NY, 14013, by mail;
(n) Onondaga Nation at Administration Building 4040, Route 11, Onondaga Nation, Nedrow, NY, 13120, by mail;
(o) Tuscarora Nation at 5226 Walmore Road, Lewistown, NY, 14092, by mail;
(p) Delaware-Shawnee at 29 S Hwy 69A, Miami, OK, 74354, by mail; and
(q) Wyandotte Nation at 8 Turtle Drive, Wyandotte, OK, 74370, by mail.
- THIS COURT ORDERS THAT the Moving Party shall, at its cost, give notice of its motion and this Order to other members of the Haudenosaunee Confederacy by publishing the Notice in the following publications by September 23, 2022 or as soon thereafter as is possible:
(a) Two Row Times;
(b) The Turtle Island News;
(c) Brantford Expositor;
(d) Haldimand Press;
(e) Indian Time;
(f) The Eastern Door; and
(g) Oneida Daily Dispatch.
THIS COURT ORDERS that the Moving Party shall provide the parties with proof of the notice required by subparagraphs 1 and 2, above, and file with the Court such proof and copies of the notices published in paragraph 2 above, by September 30, 2022.
THIS COURT ORDERS that any person wishing to participate in the Moving Party’s motion shall so advise counsel for the Moving Party by October 24, 2022, at the following email addresses: tim@gilbertslaw.ca, tdumigan@gilbertslaw.ca, and dylan@gilbertslaw.ca.
SCHEDULE “A”
NOTICE: Six Nations of the Grand River Band of Indians v Canada (Attorney General) and His Majesty the King in Right of Ontario (Ontario Superior Court of Justice File No. CV-18-594281 [Toronto])
The Haudenosaunee Development Institute (“HDI”), under the authority and at the direction of the Haudenosaunee Confederacy Chiefs Council (the “HCCC”), has brought a motion to be appointed as a representative of all citizens of the Haudenosaunee Confederacy in respect of litigation commenced by the plaintiff Six Nations of the Grand River Band of Indians against the defendants The Attorney General of Canada and His Majesty the King in Right of Ontario (Ontario Superior Court of Justice Court File No. CV-18-594281 [Toronto], formerly Court File No. 406/95 [Brantford]) (the “Litigation”), and seeks to join/intervene as a party in the Litigation.
The Litigation concerns, among other things, rights stemming from the Haldimand Proclamation of 1784 and Simcoe Patent of 1793, and alleges breaches of treaty and fiduciary duty and a failure to account, and seeks remedies including compensation. HDI in its draft pleading seeks, among other things, “a declaration that the Haudenosaunee Confederacy is the collective rightsholder in respect of the rights and interests asserted in the action” by the plaintiff, and that the Six Nations of the Grand River Band of Indians “is not the collective rightsholder”.
HDI seeks to represent and bind all citizens of the Haudenosaunee Confederacy, wherever they are located, and join/intervene as a party in the Litigation in order to represent the interests of the Haudenosaunee Confederacy and its citizens which, HDI submits, are affected by the Litigation. HDI, accordingly, seeks a court order appointing it as a representative of the Haudenosaunee Confederacy in the Litigation. If that order is granted, all decisions and findings in the Litigation will be binding on the Haudenosaunee Confederacy, its Chiefs and Councils, and all its citizens, as will any agreements amongst counsel for the parties in respect of the conduct of the litigation.
Copies of the following court documents are accessible at this URL: https://www.gilbertslaw.ca/post/CV-18-594281
The parties’ current pleadings;
HDI’s motion materials and proposed draft pleading;
The order of Justice Sanfilippo dated September 21, 2022 attaching this Notice and the case management endorsement of Justice Sanfilippo dated September 21, 2022.
This motion is expected to be heard in January 2023. For parties looking for more information or who may wish to participate in this motion, please contact HDI’s counsel below no later than October 24, 2022:
Tim Gilbert, Gilbert’s LLP (tim@gilbertslaw.ca, 416-703-1100, with copy to tdumigan@gilbertslaw.ca and dylan@gilbertslaw.ca)