COURT FILE NO.: CV-98-0743

DATE: 2024-01-08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Couchiching First Nation, Naicatchewenin First Nation, Nicickousemenecaning First Nation, and Stanjikoming First Nation

Plaintiffs

and -

The Attorney General of Canada, His Majesty the King in Right of Ontario, and the Corporation of the Town of Fort Frances

Defendants/Plaintiff by Counterclaim

COUNSEL:

M. McPherson, B. Brookwell and K. Hille for the Plaintiffs

J. Morse and D. Trafford, for the Corporation of the Town of Fort Frances

C. Collins-Williams and T. Andreas for the Defendant the Attorney General of Canada

S. Davis, I. Kamal and S. Nestico-Semianiw for the Defendant His Majesty the King in Right of Ontario

HEARD IN WRITING

Mr. Justice J.S. Fregeau

Decision On Motion

The Nature of the Motion

[1] This motion is brought by the Corporation of the Town of Fort Frances (the “Town”), plaintiff by counterclaim, requesting an order requiring the representative of the First Nations plaintiffs (collectively the “First Nations”), the representative of The Attorney General of Canada (“Canada”) and the representative of His Majesty the King in Right of Ontario (“Ontario”) to provide answers to certain questions refused by each of them at the cross-examinations on their affidavits and to answer follow-up questions arising from the questions they are ordered to answer.

[2] The First Nations, Canada and Ontario, the defendants by counterclaim (collectively referred to as the “defendants”) contend that all questions refused were properly refused. The defendants suggest that the questions were beyond the scope of permissible cross-examination on an affidavit and that the questions requested disclosure by the defendants of a 2018 Settlement Agreement reached by the First Nations, Canada and Ontario in the main action and which is protected by settlement privilege.

Background

[3] The First Nations initiated these proceedings in 1998 by way of a Statement of Claim in which they sought $70 million in damages from Canada for an alleged breach of fiduciary duty. The First Nations’ claim related to their interest in the “Agency One” Reserve lands located near the town of Fort Frances, Ontario, and a 1908 surrender of a portion of the Agency One Reserve (the “1908 Surrendered Lands”).

[4] In October 2007, the First Nations amended their claim to add both Ontario and the Town as defendants. In their amended claim, the First Nations claimed, among other things:

As against Canada and Ontario, but not the Town, damages of $70 million for breach of fiduciary duty “arising out of a surrender of Indian land”;
A declaration that they are entitled to a conveyance or conveyances of title to the 1908 surrendered lands; and
A declaration that an attempted exchange of the 1908 Surrendered Lands between Canada and Ontario is null and void.

[5] In 2011, the First Nations again amended their claim. The Amended Amended Statement of Claim sought a declaration that the 1908 Surrendered Lands “revested” in the First Nations “as Indian reserve lands by resulting or constructive trust, or, in the alternative a declaration that the defendants have a duty to take such steps as may be required to establish that the said lands are Indian reserve lands”.

[6] The 1908 Surrendered Lands include lands that the Town claims were set aside for the Town as a public park in 1910 and lands currently known and used as a park by the Town and the public, locally known as Pither’s Point Park (“Point Park”). Point Park is included within the 1910 Park and the 1910 Park is included in the wider area of the 1908 Surrendered Lands.

[7] In 2017, the Town initiated a counterclaim against the First Nations and a crossclaim against Ontario and Canada, claiming it is the legal or beneficial owner of the 1908 Surrendered Lands. The Town maintains a claim in the alternative to both the 1910 Park and Point Park.

[8] As noted by the Town at para. 6 of its factum on this motion, “the fundamental issue for the court to decide [in regard to the Town’s claim that it is the legal or beneficial owner of the 1908 Surrendered Lands] is the meaning of a September 1908 Ontario Order in Council which the Town claims gave it an interest in the 1908 Surrendered Lands”.

[9] The action commenced by the First Nations in 1998 was resolved in 2018 by the 2018 Settlement Agreement between the First Nations, Canada and Ontario (the “2018 Settlement Agreement”). The First Nations issued a press release on March 6, 2018, stating that a final settlement had been reached with Canada and Ontario over legal claims related to the Agency One Reserve and that the settlement did not change the status of the Agency One lands.

[10] On March 12, 2018, the Town released a press statement stating it was not a party to the settlement discussions, that it was not privy to the details of the settlement and that possession of the Point Park, located within the 1908 Surrendered Lands, remains with the Town pending a final determination of ownership by this Court.

[11] As a result of the 2018 settlement between the First Nations, Canada and Ontario, the First Nations sought and were granted leave to discontinue their action against all parties, including the Town. A dismissal order was issued by this court on December 18, 2018, and included the following terms:

The First Nations are prohibited from commencing any future action or proceeding against Canada, Ontario or the Town upon claims or causes of action alleging: (i) That the 1908 Surrender was legally or equitably invalid or otherwise ineffective; (ii) That the September 10, 1936, Ontario Order in Council transferring to Ontario roads within the Agency One Reserve were legally or equitably invalid, or challenging the subsequent vesting of those roads in the Town.
The First Nations, Canada and Ontario are granted leave to deliver Statements of Defence to the Town’s Crossclaim.
Except by way of defence to the Town’s counterclaim, the First Nations are prohibited from advancing or pursuing any cause or causes of action against the Town asserting the First Nations’ beneficial interest in the unsold lands [the 1908 Surrendered Lands].

[12] In a further consent order dated December 18, 2018, this court ordered:

That the First Nations Surrender for Sale dated October 1, 1908, is admitted to be binding by and on the First Nations, and that no legal or equitable invalidity or other ineffectiveness will or may be contended by the First Nations, including by way of defence.

[13] As a result of the December 18, 2018 dismissal order, the only extant issues in this protracted litigation are those raised in the Town’s counterclaim against the First Nations and crossclaims against Canada and Ontario. It is not in dispute that the Town is now functionally the plaintiff in this proceeding.

[14] In 2022, the Town amended its Counterclaim in response to the 2018 settlement between the First Nations, Canada and Ontario:

Notwithstanding the Town’s position that the [First Nations] did not and continue not to have an interest in the 1908 Surrendered Lands, the effect of the settlement is to eliminate any claim (at law or equity) by the [First Nations] against or in respect of the 1908 Surrendered Lands.

[15] In direct response to this amendment by the Town, the First Nations, in its Statement of Defence to the Town’s Counterclaim, plead as follows:

The First Nations admit that they reached a settlement with Canada and Ontario about their claims of maladministration of the Agency One Reserve Lands. However, this settlement did not include compensation for the market value of the Park Lands or release any claim for their return. The First Nations continue to seek the return of those unsold surrendered lands to reserve land status. The only impediment is the continued occupation of the tenant Town after the expiry of the 1927 lease.

[16] On August 8, 2022, the Town brought a motion for summary judgment on its counterclaim and crossclaims. The defendants each brought cross-motions, substantially identical, seeking the dismissal of the Town’s Counterclaim and Crossclaims. The summary judgment motions are scheduled to be heard in November 2024.

[17] A Case Management Endorsement dated August 25, 2022, established the following timetable:

The Town to provide an amended Statement of Counter and Crossclaim (the Town’s Claim”) as well as a Notice of Motion for Summary Judgment and accompanying motion record by August 29, 2022;
On or before November 25, 2022, each of the defendants to provide an amended Statement of Defence, as well as Notices of Cross Motion;
The Town was entitled to file a Reply on or before December 9, 2022; and
The defendants to file their motion records by January 20, 2023.

[18] A further Case Management Endorsement dated August 11, 2023, established the following schedule and page limits for factums for the summary judgment motion:

The Town shall serve/file its factum on/before January 30, 2024;
The defendants shall serve/file their factums on/before April 5, 2024;
The Town’s reply factum, if any, shall be served/filed on/before May 3, 2024;
The reply factum of the defendants is restricted to addressing the response of the Town to the summary judgment motion brought by the defendants, and shall be served/filed on/before May 24, 2024;
All parties shall, 14 days prior to the hearing of the summary judgment motions, file compendiums for oral argument;
All parties are given leave to file factums, in the first instance, 65 pages in length. The reply factums of the defendants are restricted to 20 pages in length.

[19] Within the underlying motions for summary judgment, the parties filed affidavit evidence as follows:

The Town served and filed the affidavits of Travis Rob, sworn August 12, 2022 and June 13, 2023;
The First Nation filed the affidavit of Ed Morrison sworn February 1, 2023;
Ontario filed the affidavit of Julita Pacholczyk sworn January 26, 2023; and
Canada filed three affidavits of Jennifer Clarke sworn February 3, 2023, March 2, 2023 and June 2, 2023.

[20] Cross-examinations of all affiants were held in June 2023. The affiants for the defendants refused to answer many questions put to them by counsel for the Town. For the purposes of this refusals motion, the parties have helpfully placed the impugned questions and the affiants’ refusals into two categories:

Category 1

Questions attempting to identify what documents in the historical record the defendants intend to rely upon for specific allegations made in the pleadings and in the Notices of Motion for Summary Judgment and the defendants’ legal positions and any admissions in relation to these identified documents.

Category 2

Questions attempting to elicit details of the 2018 Settlement Agreement and the defendants’ refusal to produce a copy of the 2018 Settlement Agreement.

The Issues on the Motion

[21] This background gives rise to the following issues on this motion:

Did the defendants properly refuse questions put to their respective affiants?
Did the defendants properly refuse to disclose details of, and properly refuse to produce, the 2018 Settlement Agreement?

The Positions of the Parties

The Town

Category 1

[22] The Town submits that the parties’ respective positions on the summary judgment motions rely heavily, if not exclusively, on the historical record, much of which is more than 100 years old. The Town further submits that all parties agree that the historical documents “speak for themselves” and that none of the affiants for the parties can provide admissible evidence on the meaning or interpretation of those documents.

[23] The Town contends, however, that this does not foreclose the availability of cross-examination on a party’s legal position as to the relevance of a historical document to a position advanced by the defendants in the action based on the historical record. The Town contends that the defendants have improperly refused to identify what documents in the historical record they intend to rely upon in support of specific allegations made in the pleadings and in the Notices of Motion for Summary Judgment.

[24] The Town readily concedes that this category of questions seeks confirmation of the defendants’ respective legal positions and admissions. The Town suggests that questioning an opposing party’s witness, (who are not themselves parties) about the party’s legal position is proper on a cross-examination in the context of a summary judgment motion.

[25] The Town submits that absent Category 1 questions being answered, it is unable to determine the case it must meet in advance of receiving the defendants’ responding factums. The Town contends that this is contrary to the goals and purposes of summary judgment, a proceeding in which each party is required to put its best foot forward in the first instance.

[26] The Town submits that it is entitled to cross-examine the defendants’ witnesses about the defendants’ legal positions in relation to the evidence contained in the record and that if a deponent does not know the answer, counsel is required to state their client’s respective position.

Category 2

[27] The Town submits that before the First Nations, Canada and Ontario settled the main action in 2018, Canada and Ontario were adverse in interest to the First Nations. The Town suggests that as a result of the 2018 Settlement Agreement, the First Nations, Canada and Ontario are aligned in interest. The Town submits that the 2018 Settlement Agreement has therefore altered the “litigation landscape” and that the failure of the defendants to disclose the terms of and/or to produce the 2018 Settlement Agreement is an abuse of process.

[28] The Town acknowledges that the caselaw in Ontario requiring settlement agreements that change the “litigation landscape” be immediately disclosed to the non-settling parties has not been applied in a context similar to the immediate case, where a plaintiff settles its action but remains in the litigation as a defendant in a counterclaim concerning, to a large extent, the same underlying facts. The Town suggests, however, that the principles requiring immediate disclosure nonetheless apply.

[29] The Town further submits that the 2018 Settlement Agreement must be disclosed because it is expressly relevant to the motion for summary judgment and the terms of the settlement were put in issue by the First Nations in their Statement of Defence when they denied the Town’s pleading with respect to the terms of the settlement. The Town submits that the First Nations have also thereby waived any claim to settlement privilege.

The Defendants

Category 1

[30] The defendants submit that all questions refused by all deponents are in the nature of examination for discovery and therefore outside the scope of permissible cross-examination on an affidavit, even in the context of a summary judgment motion. The distinction drawn by the defendants is that while a party or a party’s representative may be asked questions about the party’s legal position as an aspect of oral examinations for discovery, a party’s witness for a summary judgment motion or a trial cannot be asked about the party’s legal position.

[31] The defendants submit that cross-examination on affidavits and examination for discovery are distinct procedures with particular purposes that govern their form. The defendants submit that both the Rules of Civil Procedure and applicable authority confirm that the broad purpose of examination for discovery is to enable the examining party to know the case to be met, eliminate or narrow issues and procure admissions. The individual being examined in discovery is held out to represent the party and answers given are admissions of the party.

[32] The defendants contend that the purpose of cross-examination on an affidavit is to test the evidence and credibility of the deponent, who is a fact witness only and whose answers are evidence, and not a representative of the party whose answers might be admissions.

[33] The defendants submit that the Town ignores these fundamental distinctions in arguing, in the context of this summary judgment motion, that it is permissible to cross-examine the deponents on any question that has a semblance of relevance. The defendants submit that the Town’s position is not supported by authority.

[34] The defendants submit that questions seeking a legal opinion on historical documents or events or a party’s legal position on historical events and documents, as the Town’s questions admittedly do, fall outside the scope of permissible questions during cross-examination on an affidavit. The defendants submit that the Town chose to proceed with its summary judgment motion prior to examination for discovery and that it would be unfair for this court to expand the permissible scope of cross-examination as a substitute for examination for discovery.

[35] The defendants submit that this court should decline the Town’s invitation to improperly expand the scope of cross-examination and uphold the defendants’ refusal to answer Category 1 questions.

Category 2

[36] The defendants submit that the 2018 Settlement Agreement is subject to settlement privilege that has not been waived. The defendants contend that the Town has failed to establish that the 2018 Settlement Agreement has changed the litigation landscape such that asserting privilege and failing to disclose it would be an abuse of process.

[37] The defendants suggest that it cannot seriously be in issue that settlement privilege applies to the 2018 Settlement Agreement. The defendants contend that it is a fact-dependent exercise to determine if exceptions to settlement privilege apply, one such exception being when the settlement changes the litigation landscape of the ongoing litigation.

[38] The defendants submit that the 2018 Settlement Agreement settled the First Nations’ entire action against all defendants in that action, including the Town. The defendants contend that as a result, there is no continuing litigation landscape in that proceeding. The defendants submit that the Town thereafter chose to continue with its claim, in which the Town is functionally the plaintiff, and the First Nations, Canada and Ontario are defendants. The litigation landscape of the Town’s claim remains unchanged.

[39] In this particular fact situation, the defendants submit that the Town has no greater right to disclosure of the 2018 Settlement Agreement, relating to a claim that is no longer active, through its counterclaim than if it had brought a separate action regarding the 1908 Surrendered Lands after the First Nations had settled its action against Canada and Ontario.

[40] The defendants further submit that the Town’s request for production of the 2018 Settlement Agreement should be dismissed because it is not relevant to the issues to be addressed by the court in the motions for summary judgment.

[41] The defendants submit that material issue before the court on the summary judgment motions is whether the Crown continues to hold title to the 1908 Surrendered Lands. The issue of the First Nations” continuing connection to and beneficial interest in those lands is not in issue in the ongoing litigation, according to the defendants.

[42] The defendants note that the First Nations’ legal claim to the 1908 Surrendered Lands was dismissed as against Canada and Ontario on March 13, 2018, and discontinued as against the Town, on terms as noted above, by order dated December 18, 2018. The defendants emphasize that the First Nations are not asserting any legal claim to the 1908 Surrendered Lands in the ongoing litigation. Rather, they are pursuing the return of the 1908 Surrendered Lands directly from the Crown through a separate, return to reserve process which is not before this court.

[43] The defendants submit that the 2018 Settlement Agreement is therefore irrelevant to the summary judgment motions because it has no bearing on the First Nations’ position in the ongoing litigation or the determination of the summary judgment motions, in which, to repeat, the fundamental issue to determine is the meaning of a September 1908 Ontario Order in Council that the Town claims gave it an interest in the 1908 Surrendered Lands.

Discussion

Category 1

[44] Ontario v. Rothmans Inc., 2011 ONSC 2504 remains the leading case on the nature and scope of a cross-examination for an application or motion. At para. 142 of Rothmans, Perell J. identified relevancy as a key determinant of a proper question for a cross-examination on an affidavit and noted that “relevancy is determined by reference to the matters in issue in the motion in respect of which the affidavit has been filed and the matters put in issue by the deponent’s statements in the affidavit. The scope of cross-examination for an application or motion only coincidentally will be commensurate with the scope of an examination for discovery”.

[45] At para. 143 of Rothmans, Perell J. helpfully summarized the principles which have evolved from the case law as to the scope of the cross-examination of a deponent for an application or motion, including the following:

The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery;
A cross-examination is not a substitute for examinations for discovery;
The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence;
The test for relevancy is whether the question has a semblance of relevancy.

[46] As noted by the First Nations in their factum, in Sanctuary et al v. Toronto (City) et al, 2020 ONSC 4708, at para. 18, this court clarified that standard of a “semblance of relevance” no longer applies, having been replaced by “relevance”.

[47] However, at para. 19 of Sanctuary, Sossin J., quoting Romspen Investment Corporation v. Woods et al., 2010 ONSC 3005, at para. 16, made the following common-sense, practical observation:

At the end of the day, regardless of whether the test is relevance or semblance thereof, the approach comes down to this: subject to privilege, if the question asked could elicit a response that the trial judge could rely on to resolve a matter in issue before him, the test has been met – the question asked is relevant.

[48] The Town acknowledges that the Category 1 questions all seek the defendants’ legal positions in relation to certain historical documents and in some cases admissions as to what is revealed by the record. The Town submits, without providing supporting applicable authority, that this area of questioning is proper on a cross-examination in the context of a summary judgment motion. With respect, I disagree.

[49] I accept the submission of the defendants that the Town is attempting to conflate cross-examination with discovery on the basis that this is a summary judgment motion in an action in which discoveries have not taken place. The questions refused by the defendants are beyond the scope of proper cross-examination on an affidavit, are clearly in the nature of examination for discovery and are in essence an attempt to engage in a “premature examination for discovery”: Rothmans at para. 6.

[50] I also accept the submission of the defendants that the questions refused could not elicit responses that would be useful to the judge hearing the summary judgment motions. The defendants’ affiants are all fact witnesses. Any answers given at cross-examination are evidence and not admissions which can bind the parties. As such, the impugned questions cannot assist the court and are of no utility.

[51] The Category 1 questions were properly refused by the defendants. The Town’s motion seeking an order compelling the defendants to answer all Category 1 questions is dismissed.

Category 2

[52] It is not in dispute that the 2018 Settlement Agreement is protected by settlement privilege. The issue is whether there is a legal basis on the facts of this case to order that settlement privilege be pierced and that the 2018 Settlement Agreement be ordered to be produced to the Town.

[53] The Supreme Court of Canada has recognized that promoting settlement is sound judicial policy which contributes to effective administration of justice (see Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 [“Sable”] at para. 11). Settlements are promoted by settlement privilege (Sable at para. 12). Settlement privilege is a class privilege that prima facie raises a presumption of inadmissibility (Sable at para. 12).

[54] However, there are exceptions to settlement privilege. To fall within an exception, a defendant must show on balance that “a competing public interest outweighs the public interest in encouraging settlement” (Sable at para. 19, citing Dos Santos Estate v. Sun Life Assurance Co. of Canada, 2005 BCCA 4 at para. 20).

[55] The Court of Appeal for Ontario has repeatedly held that “settlement agreements reached between some parties, but not others, need to be immediately disclosed to non-settling parties if they entirely change the litigation landscape” (Skymark Finance Corporation v. Ontario, 2023 ONCA 234 [“Skymark”] at para. 46). This obligation extends to any agreement between or amongst parties which has “the effect of changing the adversarial position of the parties into a co-operative one” (Skymark at para. 47(b)). In such cases, the existence of the settlement and the terms of the settlement that change the adversarial orientation of the proceeding must be disclosed (Skymark at para. 47(c)).

[56] The Court of Appeal for Ontario noted that immediate disclosure of agreements is required where they have “the effect of changing entirely the landscape of the litigation in a way that significantly alters the dynamics of the litigation” (underline in original): Skymark at para. 53, citing Crestwood Preparatory College Inc v. Smith, 2022 ONCA 743, at para. 57. The rule is designed to preserve fairness to the parties and integrity of the court process (Skymark at para. 55).

[57] The Town acknowledges that the requirement that settlement agreements that change the litigation landscape must be disclosed to the non-settling parties has not been applied in the circumstances of this case – a plaintiff’s settlement of its action with the plaintiff remaining a defendant to a counterclaim.

[58] For the following reasons, I reject the Town’s submission that the 2018 Settlement Agreement changed the ongoing litigation landscape. It therefore follows that the Town’s request for an order compelling the disclosure and production of the 2018 Settlement Agreement is dismissed.

[59] The First Nations’ claim was initiated against Canada in 1998. At that time, the First Nations sought monetary damages from Canada for an alleged breach of fiduciary duty in relation to Canada’s administration of the Agency One Reserve lands and the 1908 Surrendered Lands.

[60] In 2007, Ontario and the Town were added as defendants and the First Nations claimed, among other things, a legal interest in the 1908 Surrendered Lands. The First Nations amended their claim again in 2011 in relation to their alleged legal interest in the 1908 Surrendered Lands.

[61] In 2017, the Town initiated its counterclaim against the First Nations and a crossclaim against Canada and Ontario, claiming legal or beneficial ownership of the 1908 Surrendered Lands. The primary factual basis for the Town’s claim to the 1908 Surrendered Lands is a September 1908 Ontario Order in Council which the Town alleges gave it legal title to the 1908 Surrendered Lands.

[62] In 2018, pursuant to the 2018 Settlement Agreement, the First Nations resolved all issues in the initial claim as against Canada and Ontario. The First Nations action as against Canada, Ontario and the Town was then discontinued on terms. That concluded the litigation landscape in that proceeding.

[63] The Town has chosen to pursue an alleged legal or equitable interest in the 1908 Surrendered Lands by way of its counterclaim against the First Nations and its crossclaims against Canada and Ontario. In my view, the Town’s extant action via its counterclaim is the existing and ongoing litigation landscape. I am not persuaded that the 2018 Settlement Agreement can change the expected litigation landscape going forward. I accept the submission of Ontario that the Town has no more right to disclosure of the 2018 Settlement Agreement through the prosecution of its counterclaim than if it had brought a separate action regarding the 1908 Surrendered Lands, after the First Nations had settled its action against Canada, Ontario and the Town.

[64] As far as the present dispute is concerned, the 2018 Settlement Agreement did not transform the litigation landscape between parties from adversarial to co-operative. Instead, the settlement enabled the claim brought by the First Nations against Ontario, Canada and the Town to be discontinued. Refusing to disclose the terms of this settlement is not an abuse of process.

[65] In the event I am incorrect in my conclusion that the 2018 Settlement Agreement need not be disclosed because it does not change the litigation landscape in the ongoing litigation, I find that the defendants properly refused disclosure of the terms of the 2018 Settlement Agreement and production of the document on the grounds of relevance.

[66] As I indicated earlier, relevance is the key determinant of a proper question on the cross-examination of an affidavit (Rothmans at para. 142). In particular, a question must be relevant to the issues on a particular motion. An examining party may not ask questions on issues that go beyond the scope of the cross-examination for the motion (Rothmans at para. 143). Nor is an affiant required to inform themselves of the evidence of others (Rothmans at para. 153). In the present case, I am not satisfied that disclosure of the settlement would assist the court in determining an issue in this proceeding (Sanctuary et al v Toronto (City) et al, 2020 ONSC 4708 at paras 18-19).

[67] Pursuant to the December 18, 2018, dismissal order, the First Nations are prohibited from challenging the validity of the 1908 surrender or pursuing any claim to the 1908 Surrendered Lands except by way of defence to the Town’s counterclaim. Consistent with this prohibition, in their defence of the Town’s counterclaim the First Nations are only seeking to preserve the status quo – that they have a continuing beneficial interest in the 1908 Surrendered Lands which they assert are held by the Crown.

[68] As noted by the Town in its factum, “the fundamental issue for the court to decide [on the summary judgment motions] is the meaning of the September 1908 Ontario Order in Council, which the Town claims gave it an interest in the 1908 Surrendered Lands”. In their factum, the First Nations described the primary issue on the summary judgment motions as “whether the Crown continues to hold title to the unsold Agency One lands”.

[69] Should the Town fail in its counterclaim, the First Nations will pursue the return to the 1908 Surrendered Lands directly from the Crown through a separate return to reserve process unrelated to the ongoing litigation.

[70] I am not privy to the contents of the 2018 Settlement Agreement. However, it is difficult to conceive of how that resolution, considered in conjunction with the terms of the December 18, 2018 dismissal order, could be relevant to the meaning of the 1908 Ontario Order in Council, which the Town claims gave it a legal interest in the 1908 Surrendered Lands.

[71] The Town’s motion regarding Category 2 questions is dismissed.

[72] If the parties cannot agree on the costs of this motion, they shall file written Costs Submissions, not to exceed five pages, together with their respective Bills of Costs. The defendants’ Costs Submissions shall be filed within 14 days of the release of these reasons; the Town’s Costs Submissions shall be filed within 7 days thereafter. If Costs Submissions are not filed within this timeframe, costs shall be deemed to be resolved.

“originally signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: January 8, 2024

COURT FILE NO.: CV-98-0743

DATE: 2024-01-08

ONTARIO