Court File and Parties

COURT FILE NO.: CV-21-671532 RELEASED: 2023/06/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ontario Heritage Trust (Applicant) v. Troy James Hunter and Chippewas of Nawash Unceded First Nation (Respondents)

BEFORE: Associate Justice Graham HEARD: March 21, 2023

COUNSEL: Benjamin Brookwell and Jesse Abell for Chippewas of Nawash (moving party) Alex Van Kralingen and Jennifer Hand for Troy James Hunter Richard Ogden for Ontario Heritage Trust

REASONS FOR DECISION

(Motion by Respondent Chippewas of Nawash to strike portions of various affidavits filed on the underlying application)

[1] Ontario Heritage Trust (“the Trust”) is the owner of Lot 20, Plan 3M-117 in the Municipality of Northern Bruce Peninsula. Pursuant to a Management Agreement dated July 26, 2011, the Trust co-manages Lot 20 with the respondent Chippewas of Nawash Unceded First Nation (“Chippewas”), for which Lot 20 is part of a burial ground and sacred site known as Nochemoweanaing. The respondent Troy James Hunter (“Hunter”) is the owner of Lot 21 which is adjacent to Lot 20. Hunter purchased Lot 21 from his father Alton Hunter in 1989.

[2] In 2004 and 2005, Hunter developed Lot 21 resulting in encroachments on Lot 20 consisting of 28.9 square meters of a cottage dwelling, eight decorative cedar trees, a shore-line well and underground servicing lines, a gravel driveway and a shed and propane tank (“the Encroachments”). The Trust acquired Lot 20 in 2007, with the existing encroachments. The Encroachments were first identified in 2018. When Hunter learned of the Encroachments, he relocated the shed and propane tank from Lot 20, but the other Encroachments remain.

[3] Following the discovery of the Encroachments in 2018, the parties attempted to negotiate a remedy through correspondence, meetings and hearings. Hunter made his first offer, by letter from his counsel, on November 7, 2018. On June 21, 2019, the Trust reported the Encroachments to the Municipality of Northern Bruce Peninsula and to the Niagara Escarpment Commission (“NEC”). The NEC then initiated a compliance proceeding, leading to the preparation of various reports by its staff. Throughout 2020 and 2021, NEC deferred its decision with respect to the remedy for the Encroachments. During this time, the parties unsuccessfully exchanged various settlement proposals. Hunter ultimately brought a motion to strike the compliance hearing, which never proceeded.

The application

[4] On November 5, 2021, the Trust commenced this application seeking a declaration that all the Encroachments constitute trespasses to land, and a mandatory order that Hunter remove all remaining Encroachments on Lot 20 and restore Lot 20 to its original condition at his expense. The Trust seeks no relief against Chippewas. Hunter acknowledges that when he developed Lot 21 in 2004 and 2005, he inadvertently misidentified the boundary between it and Lot 20, and that the Encroachments constitute a trespass on Lot 20. Hunter submits that the only remaining issue is the appropriate remedy.

[5] Following the issuing of the Trust’s notice of application, the next steps in the application proceeded as follows:

December 1, 2021: The Trust served its application record including an affidavit affirmed by its CEO Beth Hanna. January 31, 2022: The respondent Chippewas served their responding record. May 3, 2022: The respondent Hunter served his responding record. May 10, 2022: The Trust wrote to Hunter stating that the affidavits that he served in his responding record contained descriptions of “Communications and Documents” that were exchanged during negotiations between the parties while attempting to resolve their dispute arising from the Encroachments from Lot 21 onto Lot 20, and that were therefore subject to settlement privilege. May 17, 2022: The respondent Chippewas advised that they shared the Trust’s concerns with respect to the use by Hunter of privileged Communications and Documents. May 19, 2022: Hunter’s counsel responded that the Communications and Documents should be included in their responding record because the Trust and Chippewas had waived privilege over them, and they were relevant to the issues in the application, specifically the allegations that he had engaged in bad faith conduct in that the Encroachments were deliberate and he had moved surveying stakes.

The motion

[6] Chippewas now bring this motion to strike numerous portions of the affidavits in the Hunter materials, including some exhibits, as well as portions of the affidavit of Beth Hanna filed by the Trust in its materials, on the basis that they consist of communications and documents that are subject to settlement privilege. The Trust is unopposed to the striking of the paragraphs and exhibits identified in the affidavit of their deponent Beth Hanna. For the reasons set out below, the motion is dismissed.

Issues on the motion

[7] Hunter does not dispute that the settlement discussions in the context of the NEC proceeding were initially protected by settlement privilege. Hunter submits in response to the motion that:

• Any privilege issues should be deferred to the judge hearing the application;
• Chippewas were not the holders of any settlement privilege and therefore have no standing to bring this motion;
• The Trust waived the privilege, first by relying on the settlement communications in the NEC proceeding, and second by the Trust’s reference to those settlement communications in its material on this application and Chippewas’ failure to object until Hunter also relied on settlement communications.

[8] Accordingly, the issues on the motion are:

1. Whether the determination of the privilege issues should be deferred to the judge hearing the application on its merits.
2. Whether the moving party Chippewas hold the privilege at issue, and if not, whether they have standing to bring this motion.
3. Whether settlement privilege has been waived by (i) the use by the Trust or Chippewas of settlement communications in the NEC proceeding, or (ii) the Trust intentionally including settlement privileged communications in its own material.

Case Law

[9] The parties agree on the guiding legal principles as to the function of settlement privilege in the justice system as stated by the Supreme Court of Canada in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (at para. 31):

31 Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement: “In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming” (A. W. Bryant, S. N. Lederman and M. K. Fuerst, The Law of Evidence in Canada (3rd ed. 2009), at para. 14.315).

[10] The parties also agree that the circumstances in which settlement privilege arises are as set out in Stronach v. Belinda Stronach, 2021 ONSC 3801 (at para. 23):

23 Settlement privilege will attach to a document or communication where (a) there is a litigious dispute; (b) the communication was made with the express or implied intention that it would not be disclosed; and (c) the purpose of the communication is to attempt to effect a settlement: Hollinger Inc., Re, 2011 ONCA 579, at para. 16.

[11] As stated above, the settlement discussions that Chippewas seek to have struck from Hunter’s and the Trust’s application materials are in relation to the parties’ attempts at resolution of the Encroachments issue in the context of the NEC proceeding. The issue of whether privilege that would attach to settlement discussions in one proceeding continue to apply in a subsequent related proceeding was addressed in Ross River Dena Council v. Canada (Attorney General), 2016 YKSC 51. There had been written settlement communications in a Federal Court action involving the same parties, and the plaintiff Council sought to admit those documents in the related action in the Supreme Court of Yukon on the basis that they pertained to a separate court action and that the privilege had been waived.

[12] In addressing this issue, Gower J. stated (at para. 8):

8 . . . The fact that the communications were made in the context of a separate court action is not one of the generally recognized exceptions to settlement privilege. Further, RRDC [Ross River Dena Council] has not established that the circumstances of this case give rise to “compelling policy reasons” to invoke an exception to the general rule that communications protected by settlement privilege will not be admissible in subsequent court proceedings on the same matter.

[13] In addressing the issue of whether waiver of part of a series of settlement communications may constitute waiver of all such communications, Gower J. reviewed various cases and concluded, at para 21:

21 I conclude from these cases that waiver of part may lead to waiver of all of a communication where it would be unfair, inconsistent or misleading for a party to rely upon partial disclosure. For example, where a party has cherry picked selective information for strategic disclosure. In that circumstance, fairness may require disclosure of the complete body of information in order to avoid misleading the court.

[14] The issue of when the court could conclude that a party to settlement communications has waived settlement privilege was addressed in Cowichan Tribes v. Canada (Attorney General), 2022 BCSC 2053 (at para. 73):

73 . . . The evidentiary burden to demonstrate waiver of privilege rests with the party asserting waiver. Waiver is established where the possessor of the privilege (1) knows of the existence of privilege, and (2) voluntarily evinces an intention to waive that privilege; Sauve v. Insurance Corporation of British Columbia, 2010 BCSC 763 at para. 21.

74 Waiver may occur in the absence of an intention to waive where fairness and consistency so require, such that waiver of privilege over part of a communication will result in waiver as to the whole communication: Pacific Concessions, Inc. v. Weir and Weir, 2004 BCSC 1682 at para. 13, citing Fraser v. Houston, 2002 BCSC 1378 at para. 22. In Pacific Concessions at para. 24, Justice Kirkpatrick (as she then was) considered the scope of waiver in the context of partial disclosure of solicitor-client privileged communications, relying on Sopinka, Ledeman and Bryant’s The Law of Evidence in Canada, 2nd ed. (Butterworths, 1999):

. . . Similarly, if a client testifies on his or her own behalf and gives evidence of a professional, confidential communication, he or she will have waived the privilege shielding all of the communications relating to the particular subject-matter. Moreover, if the privilege is waived, then production of all documents relating to the acts contained in the communication will be ordered.

[15] As stated above, Hunter argues that the issue of whether portions of his material should be struck should be determined by the judge hearing the application. In this regard, Hunter relies on Hunt v. Stassen, 2019 ONSC 4466 (at paras. 8-10):

8 In Holder v. Wray, 2018 ONSC 6133, Emery J. reviewed a number of cases dealing with the question of whether a court should hear a motion to strike inadmissible paragraphs from an affidavit in advance of the main application or whether the admissibility of affidavit evidence is a question best left to the court that hears the application. He concluded, at para. 40:

An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation. The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary. Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances. One “special reason” to make such an order in advance of the main hearing would be where the affidavit at issue is “clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party.” See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death.

9 Emery J. adopted a hybrid approach and struck some offending paragraphs from the affidavits but deferred a decision about other impugned paragraphs to the judge hearing the motion.

10 Where the motion to strike is based on the relevance of the affidavit evidence it is often preferable to leave the questions to the court hearing the application because relevance can often only be assessed in the context of the application as a whole. The judge who hears the application on its merits is usually best suited to make that determination.

[16] Hunter also relies on R. v. Morisette, [1993] O.J. No. 152, in which the appellant sought to quash subpoenas in order to assert statutory privilege over certain school documents. On appeal, the court concluded that the trial judge was in the best position to assess the impact of the statutory privilege and the relevance of the documents.

Analysis and Decision

1. Whether the determination of the privilege issues should be deferred to the judge hearing the application on its merits.

[17] Hunter submits that the issue of whether documents filed in the evidence on this application are protected by settlement privilege should be deferred to the judge hearing the application. Based on Holder v. Wray, cited in Hunt v. Stassen, supra, Hunter submits that affidavit evidence should only be struck for “special reasons” such as where evidence is “clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party”. He submits that if it is unclear whether the Trust and/or Chippewas waived the privilege, or there is some other policy ground that would allow the evidence of settlement communications to remain in the record, the issue should be left to the application judge.

[18] As stated by Charney J. in Hunt v. Stassen (para. 10), “where the motion to strike is based on the relevance of the affidavit evidence it is often preferable to leave the questions to the court hearing the application because relevance can often only be assessed in the context of the application as a whole.” [emphasis added]

[19] There is a distinction between a challenge to evidence based on privilege, in this case settlement privilege, and a challenge based on relevance. Evidence relevant to issues in a proceeding would still be excluded if it is privileged and the application judge will be in no better position to adjudicate privilege issues than I am. Further, leaving the settlement privilege issue to the application judge will create an unnecessary distraction from the main issue of the appropriate remedy for the Encroachments. Accordingly, I will decide whether the challenged evidence is protected by settlement privilege; if I decide that it is not protected, then the application judge can rule on any issues of relevance. For example, the application judge could determine whether Hunter can rely on settlement communications over which privilege has been waived as evidence of good faith relevant to the granting of an equitable remedy.

2. Whether the moving party Chippewas hold the privilege at issue.

[20] As stated in the introduction to these Reasons, the applicant Trust co-manages Lot 20 with the respondent Chippewas pursuant to a Management Agreement dated July 26, 2011. The provisions in the Agreement relevant to this motion are:

Recital C. – Nochemowenaing is regarded by the First Nation [i.e. Chippewas] and other Anishinabek peoples as a sacred place where important ceremonial, healing and spiritual activities occur.

Recital E. – Because of the sensitivity and significance of the cultural heritage resources located on the Site [which includes Lot 20 described above], the Government of Ontario has purchased the Site in public ownership to protect the Site and its cultural heritage resources.

Recital F. – Ownership of the Site has been vested in the Ontario Heritage Trust, the Government of Ontario’s lead heritage agency, having as its mandate under the Ontario Heritage Act the protection, interpretation, preservation and promotion of Ontario’s heritage.

s. 1.2 – The parties wish to partner with each other in the management of the Site. The First Nation has an interest that the site is preserved as important to Anishnabek cultural heritage and as a sacred site. The Trust has an interest in ensuring that cultural and natural heritage resources of the Site are conserved and the sensitive archaeological resources, human remains and burials are protected.

s. 5.5 – The First Nation shall have the rights of an occupier under the Trespass to Property Act.

s. 6.1 – The parties agree that their representatives will meet at least annually to discuss issues of mutual concern respecting the Site, including . . . (i) Site monitoring; (ii) Conservation and maintenance activities; (iii) Trespass, unauthorized use and vandalism issues.

s. 10.1 – The parties are and will at all times remain independent of each other and are not and will not represent themselves to be the agent, joint venturer, partner or employee of the other. No representations will be made or acts taken by either party which could establish or imply any apparent relationship of agency, joint venture, partnership or employment and neither party will be bound in any manner whatsoever by any agreements, warranties or representations made by the other party to any other person nor with respect to any other action of the other party. [emphasis added throughout]

[21] Hunter’s counsel acknowledges that Chippewas had an interest in the outcome of a possible settlement of the Encroachments issue between the Trust and Hunter in the NEC proceeding. However, as acknowledged by the Trust and Chippewas in Recital F of the Management Agreement, “Ownership of the Site [including Lot 20] has been vested in the Ontario Heritage Trust”. It is therefore the Trust, as owner of Lot 20, and not Chippewas, that has the ultimate right to settle the Encroachments dispute.

[22] Hunter submits that essentially, there are two “conversations”, one between the Trust and Hunter and one between the Trust and Chippewas. The fact that the Trust included Chippewas in the settlement negotiations does not grant settlement privilege to the Chippewas in respect of settlement communications between the Trust and Hunter. The Management Agreement of July 26, 2011 requires consultation between the Trust and Chippewas but ultimately, it was the Trust’s decision as to whether to settle the Encroachment issue with Hunter. The Trust, as the owner of Lot 20, is the party with the right to prosecute the Encroachments dispute, as confirmed by the fact that it, and not Chippewas, has brought this application.

[23] Chippewas submit that Hunter was aware that the Trust’s settlement discussions with him were on behalf of both itself and Chippewas and that no settlement agreement between the Trust and Hunter would be reached without Chippewas’ involvement. The NEC proceeding was initiated with the Trust’s report of the Encroachments on July 21, 2019. However, Hunter would have been aware of the Chippewas’ involvement in the NEC proceeding, for example by way of a letter dated August 18, 2020 from Gregory Nadjiwon, Chief of Nawash Unceded First Nation, to Troy Hunter and Shelia Hunter, responding to a proposal made by the Hunters to resolve the Encroachment issue. Also, representatives of Chippewas appeared and submitted letters in the NEC matter.

[24] Although the applicant Trust consulted with Chippewas with respect to offers exchanged to resolve the Encroachments issue in the NEC proceeding, it is the Trust that owns Lot 20 on which the Encroachments occurred, and the agreement between the Trust and Chippewas specifically states that they are not agents of each other. Accordingly, any settlement of the Encroachments issue must be between the Trust and Hunter, and any privilege attaching to settlement discussions would be that of the Trust and not Chippewas. The Trust included settlement discussions in its own material and is not raising any issue of settlement privilege in relation to the impugned paragraphs and exhibits in Hunter’s materials. I therefore conclude that settlement discussions between the Trust and Hunter do not give rise to any settlement privilege in favour of Chippewas and Chippewas have no standing to challenge Hunter’s materials on the basis of settlement privilege.

3. Whether settlement privilege has been waived.

[25] I have determined that Chippewas hold no privilege in the settlement discussions in relation to the NEC proceeding so have no right to challenge the use by Hunter of settlement communications in his material in response to the Trust’s application. However, I will still address the issue of whether the Trust waived their settlement privilege.

[26] As stated, Hunter acknowledges that the bulk of the challenged statements in his material consist of settlement communications between the Trust and himself, but he submits on this motion that the Trust waived their privilege over these settlement communications by relying on them both in the NEC proceeding and in this application. The principles of law with respect to waiver of privilege are as stated in Cowichan Tribes v. Canada, supra:

• “The evidentiary burden to demonstrate waiver of privilege rests with the party asserting waiver”; and
• “Waiver is established where the possessor of the privilege (1) knows of the existence of privilege, and (2) voluntarily evinces an intention to waive that privilege.”

[27] In support of the Trust’s application, Beth Hanna, the Chief Executive Officer of the Trust, affirmed an affidavit on November 29, 2021 in which she states:

• The Trust is the registered owner of Lot 20 (para. 5), Hunter is the registered owner of Lot 21 (para. 6), and Chippewas along with the Trust co-manage Lot 20, which is part of the Nochemownaing aboriginal burial ground (paras. 8 and 49), an important sacred site to the Chippewas (para. 69).
• She describes the Encroachments from Hunter’s Lot 21 onto Lot 20 (para. 54) and refers to her initial letter of June 21, 2019 to a senior planner with the NEC requesting copies of any development permits issued to the owner of Lot 21 relating to the constructions of the Encroachments on Lot 20 (para. 58).
• On June 27, 2019 NEC compliance staff conducted a site inspection of Lot 20. They subsequently prepared a report which summarized their findings and sought the NEC’s endorsement of “an order to demolish/restore” at its meeting on July 16, 2020 (para. 64).
• On July 16, 2020, the NEC deferred the matter to its September meeting to provide Troy Hunter with an opportunity to consider the report. On September 17, 2020, the NEC staff prepared an Addendum with respect to meetings involving the Hunters, the Trust and Chippewas including two follow up meetings (paras. 72 and 73).
• From para. 73: “The meetings were primarily focused on the following: a possible land transfer or land purchase, the encroachment of the dwelling unit, possible conditions of an easement to allow the dwelling unit to be legalized in its current location, and the various qualified professionals that may be selected to produce an archaeological and environmental oversight of any/all reports, Terms of Reference and Restoration Plans as required by Order if approved. During the initial follow up meeting, the Hunters offered a proposal to acquire Lot 20 or to exchange 786 [sq. meters] of undisturbed forest on Lot 21 for 745 [sq. meters] of disturbed land on Lot 20 as a possible solution. [The Trust] in consultation with the [Chippewas of Nawash] have formally refused that offer. During the remainder of the first follow up meeting and for a majority of the second meeting the possibility of an easement and its terms and conditions were discussed. NEC staff have now been advised that the Hunters have rejected the easement proposal put forward by [the Trust] and have opted for removal of the structure, in whole or in part, from Lot 20. As such, The Hunters have requested an extension of the timeline in the Restoration Order to one year or possibly longer.” [emphasis added]
• Para. 75: “By letter dated September 15, 2020 . . . Ms. Land [counsel for Chippewas] indicated that only limited progress was made in the two meetings with Shelia Hunter to discuss restoration work following the NEC’s July 16, 2020 hearing because “the Hunter team was largely unprepared to discuss steps associated with restoration.” Ms. Land expressed the Chippewas of Nawash’s support for the September Proposed NEC Order and conditions and requested that the NEC issue the Order proposed by the NEC Staff without further delay. As Ms. Land stated: Nawash’s first priority is the removal of the Encroachments and the careful rehabilitation of the lands damaged by the Encroachments. Precautions must be taken to ensure that this work does not cause further damage to cultural and natural heritage affected by the Encroachments. Nawash believes that the Conditions proposed by NEC Staff will ensure that further damage to archaeological and burials sites located in the vicinity of the Encroachments is minimized as much as possible in the course of the removal and rehabilitation work. The proposed Conditions also ensure that the removal and rehabilitation work necessary will be undertaken by qualified professionals and completed in a timely fashion. Nawash requests that the NEC exercise its authority to grant the Order to Demolish/Restore #2020.002 on the terms and with the conditions requested by the NEC Staff. In so doing, the NEC will be acting in alignment with Ontario’s hard work of moving towards reconciliation with Nawash, and the Anishinaabe more generally, with respect to this sacred site. Continued reluctance to issue the Order, however, will undermine this reconciliation and signal a lack of respect for the importance of this important Indigenous cultural landscape valued by Anishinaabe and protected for thousands of years. We hope and trust that the NEC will act in accordance with its mandate to enforce the Act and to protect the Escarpment region.” [emphasis added]
• NEC staff prepared a further Addendum dated November 19, 2020 to provide the NEC with an overview of the parties’ information and submissions (para. 77). This Addendum contained three tables summarizing the submissions of Chippewas, the Trust and the Hunters. This summary noted “the Chippewas of Nawash’s comments that the “[m]eetings with Hunters after July Commission meeting yielded limited progress in dealing with restoration” and their recommendation that there be “no further delay to imposition of a Restoration Order”” (para. 78). [emphasis added]
• Ms. Hanna refers to the Hunters’ submissions that the NEC does not have jurisdiction to issue the Restoration Order sought by the Trust and that the remedy for trespass to the Trust lands, which Hunter admits occurred through an error on his part, is more appropriately sought through the Superior Court (para. 79). She also refers to Hunter’s written submission to the NEC dated September 15, 2020 in which he describes his error as to the boundary line between Lots 21 and 20, but goes on to state that “it is apparent . . . that Troy Hunter constructed or placed all of the Encroachments, including the dwelling, well across any Notional Line he may have mistaken for the Boundary Line” (paras. 80 and 81).
• On November 19, 2020, the NEC deferred consideration of the proposed order for one year (para. 84). Ms. Hanna then goes on to rely on the statement of Hunter’s then counsel that “the real problem is trespass”, stating that “This is a wrong which the Superior Court of Justice is well-equipped to remedy in a direct and timely manner” (para. 85).

[28] Ms. Hanna’s affidavit in support of the Trust’s application provides considerable details of the settlement discussions between the Trust, Chippewas and the Hunters. Applying the two part test from Cowichan Tribes, supra, the Trust must have known that they were involved in settlement discussions with respect to the Encroachments issue and that the communications in those discussions were privileged. Further, they clearly intended to waive the privilege in relying on those communications in the NEC proceeding and then in their application materials. The Trust’s voluntary disclosure of these settlement discussions in their application materials, following their use in the NEC proceeding, constitutes a waiver of their settlement privilege with respect to these communications.

[29] Chippewas submit that the Trust’s materials refer to settlement discussions regarding the Encroachments in “a summary fashion” and Chippewas themselves have not referred to any settlement discussions. Although Hunter’s responding materials do include a more detailed review of the parties’ settlement discussions, the Trust’s disclosure of and reliance on those communications put them “front and centre” in the application and are sufficient to constitute waiver of settlement privilege over all of those communications.

[30] Chippewas acknowledge that many of the parties’ settlement discussions were disclosed in the NEC proceeding but submit that the disclosure of those communications was for the purpose of trying to obtain a NEC order with the support of NEC compliance staff. Chippewas submit that they had no intention of putting those discussions before the court in this proceeding and that their disclosure in the NEC proceeding does not constitute a waiver of the settlement privilege that initially attached to the communications. I disagree. The Trust, with Chippewas’ support, was prepared to use the parties’ settlement discussions in the NEC proceeding to obtain a remedy for the same Encroachments that are at issue in this application. They cannot waive their settlement privilege to attempt to obtain a remedy in one forum and then rescind that waiver when seeking similar relief in another.

[31] Chippewas rely on Ross River Dena Council v. Canada, supra, to argue that privilege with respect to settlement in communications in one proceeding, in this case the NEC proceeding, still operates to prevent the use of those communications in another proceeding, such as this application. I accept this statement of the law. However, the origin of the privilege is a separate matter from whether the privilege has been waived. The point on this motion is that the Trust’s disclosure of the settlement communications both in the NEC proceeding, in which the identical Encroachments issue was raised, and on this application, constitutes a waiver of the privilege.

[32] Chippewas argue that there is a strong public interest in allowing parties to disputes to negotiate freely in a forum like the NEC without fear that those discussions might become admissible in civil proceedings. The problem with this argument is that the NEC proceeding and this civil proceeding both concern the same issue: How should the Encroachments from Hunter’s Lot 21 onto the Trust’s Lot 20 be addressed? The Trust and Chippewas were content to waive or disregard settlement privilege in relation to the issue in the NEC proceeding and after having done so, they cannot conduct themselves in this civil proceeding as though they never did so.

[33] Even if I had concluded that Chippewas also held the privilege with respect to the settlement communications, I would also conclude that by failing to object to their disclosure by the Trust, Chippewas by implication waived their own privilege. Chippewas cannot take the position that they enjoy the benefit of any privilege in settlement discussions and communications to which the Trust was a party, but then say that they are not equally bound by the Trust’s waiver of settlement privilege in its materials on this application.

[34] My conclusion that the Trust waived any privilege over the settlement communications in the NEC proceeding is based on the evidence in Ms. Hanna’s affidavit. Hunter also relied on paragraph 18 of the affidavit of Miptoon, filed on behalf of Chippewas in support of the Trust’s application, to argue that Chippewas have put the parties’ settlement discussions in issue in the application. Paragraph 18 states Chippewas’ position with respect to resolution of the Encroachments issue but makes no reference to any settlement discussions or communications. I have not relied on the Miptoon affidavit in concluding that the Trust waived its settlement privilege.

[35] Based on my conclusion that the Trust waived its settlement privilege in the settlement communications in the NEC proceeding, Chippewas’ motion to strike the various paragraphs and exhibits in the Hunter responding affidavits on the basis of settlement privilege is dismissed. It should be clear to the parties which items this ruling applies to and the time required to provide individual rulings on 86 items is not warranted, particularly where counsel for Chippewas and counsel for Hunter have used different numbering systems to identify the items in dispute.

[36] My ruling above relates to all items in the moving party’s chart other than Exhibits 25, 27 and 28 to the affidavit of Shelia Hunter. As there does not appear to be any privilege issue raised with respect to these items, their admissibility at the hearing of the application can be addressed by the application judge.

[37] To summarize, I conclude that Chippewas do not hold any settlement privilege in the subject settlement communications and therefore have no right to challenge Hunter’s use of those communications in the application. I further conclude that any settlement privilege held by the Trust has been waived by the Trust’s use of the settlement communications both in the NEC proceeding and in their application materials. The motion is therefore dismissed.

Costs

[38] Counsel agreed that the costs of the motion on a partial indemnity basis fixed at $24,000.00 should be awarded to the successful party. Counsel for Hunter submitted and then withdrew the submission that any award of costs against Chippewas should also be made against the Trust. As Hunter has been completely successful in opposing the motion, Chippewas shall pay his costs fixed at $24,000.00, payable within 30 days.

ASSOCIATE JUSTICE GRAHAM Date: June 26, 2023