Court File and Parties
COURT FILE NO.: CV-20-00644545-0000 DATE: 2024-04-24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Iskatewizaagegan No. 39 Independent First Nation Plaintiff
- and -
CITY OF WINNIPEG and HIS MAJESTY THE KING IN RIGHT OF ONTARIO Defendants
COUNSEL: Julian N. Falconer, Meaghan Daniel, Jeremy Greenberg, and Christianne Labelle for the Plaintiff Thor Hansell and Shea T. Garber for the Defendant the City of Winnipeg Vanessa Glasser, Ram Rammaya, and Ella Leishman for the Defendant His Majesty the King in Right of Ontario
HEARD: In writing
BEFORE: Perell, J.
FILE DIRECTION
[1] In my reasons for decision reported Iskatewizaagegan No. 39 Independent First Nation v. Winnipeg (City), 2024 ONSC 2163, I made an order with respect to the delivery of an amended Statement of Claim. In paragraphs 14 and 15, I stated:
However, the draft Amended Fresh as Amended Statement of Claim does not comply with the technical rules of pleading. Among other infelicities, it pleads evidence, it includes conclusory arguments, and it contains embarrassing, inflammatory, and irrelevant allegations. Although the Defendants did not oppose the proposed amendments to paragraphs 39, 40, 66, 67, 68, 77, 87, 94 (b) and 111 of the draft amended pleading, they did object to paragraphs 5, 6, 8 (a), 35-38, 54-59, 74, 80, 86 (d), 98 (b), 101, 103-105, 108-110 (the Headlands Claims). Since there is merit to the Defendants’ objections on the technical grounds that some of these paragraphs are non-compliant with the rules of pleading, in granting the second branch of the First Nation’s Hybrid Motion, it is on terms that the First Nation have ten days to deliver a Second Fresh as Amended Statement of Claim that is compliant with the technical rules of pleading.
With respect to the second branch of the Hybrid Motion, after the First Nation delivers its amended pleading, the Defendants shall have ten days to either: (a) move to strike the pleading solely on the grounds of non-compliance with the technical rules of pleading; or (b) to deliver Fresh as Amended Statements of Defence. I shall remain seized of any motion to strike, which shall be a motion in writing with a notional hearing date of May 10, 2024.
[2] On April 23, 2024, my judicial assistant received the following email message from counsel for Ontario:
We are writing with respect to the decision in this matter released by Justice Perell on April 12, 2024 and ask that you provide this message to His Honour recognizing the plaintiff’s must serve the amended statement of claim on April 25, 2024, absent any extension of the timelines.
Defendants’ Request to Extend the Timelines to Thirty Days
The Defendants are requesting an extension of the timelines for the amended defence, motion materials and costs submissions.
Justice Perell directed the plaintiff to serve an amended claim within ten days of the decision and for the defendants to serve their amended defences or any motion to strike materials within ten days after service of the amended claim.
Although we anticipate the amended statement of claim will not differ substantially from the draft included in the motion material, we do not know what the final form looks like until we are served. The ten day timeline to serve an amended statement of defence raises practical difficulties for Ontario as we will be in discoveries in Winnipeg in this matter April 24 to May 1, will need to consult with the historian prior to drafting the response and then seek approval of the final version, including potentially the decision to add Canada as a third party to the action. For these reasons, we are requesting the direction to the defendants be revised to allow for 30 days to serve the amended statement of defence and the motion materials, if any.
Although we understand the plaintiff opposes Ontario’s request for additional time to serve the amended defence and motion materials, we would also agree to their request for a corresponding extension of time for service of the amended statement of claim, if the Defendants’ request is granted.
The plaintiff agrees with the request for an extension from 20 days to 30 days for all parties to file costs submissions.
Counsel for Winnipeg supports the request to extend the timelines to thirty days for all parties.
Computation of Time
The parties also wish to seek confirmation from the court regarding the computation of time. The decision was sent to the parties after 5 pm on Friday April 12. According to the Rules, in such circumstances we exclude the Friday 12, as well as the ensuing weekend of the 13th and 14th. The day of service is thus deemed to be April 15. By excluding the first day i.e. April 15th and including the last day, computing 10 days from the date of the decision brings us to April 25, 2024 for the current deadline for service of the amended statement of claim.
Thank you in advance.
[3] In the above circumstances, I grant the request for an extension of all timelines to thirty days for all parties.
[4] Given the extension, it is not necessary to confirm the computation of time, which I decline to do.
Perell, J.