Court File and Parties

COURT FILE NO.: CV-08-366890 DATE: 20240829 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ATIKAMEKSHENG ANISHNAWBEK, Plaintiff – and – THE ATTORNEY GENERAL OF CANADA and HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Ryan Lake, Simon Sigler, and Anjalika Rogers, for the Plaintiff Michael Beggs, Michael McCulloch, and Madeline Torrie, for the Defendant, Attorney General of Canada Dona Salmon, Michael Saad, and Imran Kamal, for the Defendant, HMK in Right of Ontario

HEARD: June 13-14, 2024

MOTION FOR SUMMARY JUDGMENT

I. The request to dismiss

[2] The jurisprudential question at the heart of this motion is the finality of judgments, including very old ones.

[3] Can a 19th century Ontario case, Francis v. Attorney General of Ontario (1889), [1980] 4 CNLR 5, 1889 CarswellOnt 21 (Ch Div), which delineated the boundaries of the Plaintiff’s reserve lands, and was never appealed or otherwise set aside, be reconsidered 135 years after the decision was rendered and a Judgment issued?

[4] The Plaintiff, Atikameksheng Anishnawbek First Nation, formerly known as the White Fish Lake Band, is a “band” within the meaning of the Indian Act, RSC 1985, c. I-5. It is the successor to the interest of Chief Shawinacishick, a signatory on behalf of the White Fish Lake Band to the Robinson Huron Treaty countersigned by Treaty Commissioner William B. Robinson on behalf of Her Majesty the Queen, dated September 9, 1850 (the “Treaty”).

[5] In the Treaty, Chief Shawinacishick, along with a number of other First Nations leaders, surrendered to the Crown the land along the north shores of Lake Huron and Lake Superior, subject to the Schedule of Reservations annexed thereto. The lands identified in the reservations to the Treaty were excepted from the surrender and kept as unceded reserve lands for the signatories to the Treaty.

[6] Item 6 in the Schedule of Reservations to the Treaty applies to the Plaintiff’s lands:

6. Shawinacishick and his band, a tract of land now occupied by them and contained between the two rivers called White Fish River and Wanabitasebe, seven miles inland.

[7] The Plaintiff submits that the Francis decision, which considered and fleshed out the boundaries of Item 6, can be revisited because it is old, unfair, and wrong. The Attorney General of Canada, on the other hand, says that the Francis decision cannot be revisited because it is old and long in force, right or wrong.

[8] The Plaintiff currently occupies 174 square kilometers (43,000 acres) in the Sudbury basin as its reserve lands. In this action, it seeks, inter alia, a declaration of title and an order of possession for an additional 2,670 square kilometers (660,000 acres), which it claims were wrongly left out of its reserve by the 1889 decision in Francis. It also raises a number of other causes of action based on breach of trust and lack of good faith which are not at issue here.

[9] Canada moves to dismiss the core of the Plaintiff’s claim – that is, the request to re-delineate the boundary of the Plaintiff’s reserve. It is, in effect, a partial summary judgment motion, although the other issues not considered here are, for want of a better description, discrete and subsidiary to the central question of the boundaries of the Plaintiff’s reserve created by Schedule Item 6 to the Treaty.

[10] Counsel for Canada contends that the Plaintiff’s boundary claim amounts to a collateral attack on the Francis judgment and an abuse of process, all by virtue of the fact that it seeks to re-litigate a matter that was decided with finality last century. The other Defendant, the province of Ontario, played an important role in the Francis action and generally supports Canada in the present action. However, it took no part in the present motion.

II. The Francis decision

[11] The Francis decision was rendered after a five day trial before Justice Thomas Ferguson sitting in the Ontario High Court of Justice Chancery Division, the Superior Court of record for Ontario at the time. Justice Ferguson determined that the intended boundaries of the lands reserved for the Plaintiff in Schedule Item 6 to the Treaty are the 174 square kilometers that constitute the Plaintiff’s current reserve.

[12] To be clear, the parties in Francis were not the same as the parties to the present action. The Francis action was brought by the Attorney General of Ontario against John Harvey Francis and a number of other individuals to whom the government of Canada had granted licenses to cut timber on the Plaintiff’s reserve pursuant to an agreement between Canada and the Plaintiff. Ontario claimed that the boundaries of the Reserve were not correct, and, as such, Canada did not have the title required to grant timber licences over it. That claim necessitated a trial, in name between Ontario and Francis et al. but in effect between Ontario and Canada, to determine the Reserve’s legally recognized boundaries. Canada’s position was that the reserve covered considerably more territory than Ontario said it covered.

[13] The Plaintiff submits that its members were left out of the Francis action. In its view, the two government parties in Francis each put forward their own interest but that no one put forward the Plaintiff’s interest as a First Nation claiming the lands. It is the Plaintiff’s view that re-considering the Item 6 boundaries at issue in Francis is the only way to now do justice to its historic rights.

[14] Canada’s counsel submit that Justice Ferguson heard evidence from, among others, the Plaintiffs’ leadership and various knowledgeable members at the time, and that the Judgment takes account of the Plaintiff’s interest. It is Canada’s view that the principle of finality of judgments prohibits re-litigating the issues in Francis, and that Justice Ferguson’s judgment was a declaration in rem that therefore was, and remains, “conclusive against all the world”: Law v. Hansen (1895), 25 SCR 69, at 73.

[15] As indicated, the Francis action arose as a result of a dispute over timber rights on what Canada considered to be the Plaintiff’s reserve land and what Ontario considered to be land lying outside of the reserve’s boundaries. In bringing its claim, Ontario requested “that the true locality of this reserve should be declared”. At trial, Justice Ferguson considered a mapping out of the Schedule Item 6 reserve lands that to be the central issue, and declared that his “duty in this respect is to fix the boundaries of the reserve as well as I can upon the evidence.”

[16] During the course of the trial, Justice Ferguson heard evidence from a number of witnesses – both First Nations and non-indigenous witnesses. These included provincial government surveyor G.B. Aubrey and federal Department of Indian Affairs official Lawrence Vankoughnet. The witnesses also included a member of the Plaintiff’s community, Coucroche, who Justice Ferguson described as having “the best memory as to occupation of places for long periods for particular purposes”. Evidence was also presented by the Plaintiff’s then leader, Chief Mongowin, who testified that as a youngster, nearly 40 years prior to the trial, he had accompanied his father, Chief Shawenakishichik, in the treaty negotiations with the Crown’s representative, William B. Robinson.

[17] Justice Ferguson found the First Nations witnesses to be highly credible. He determined that Mongowin was privy to, and had accurately recollected, the Plaintiff’s council’s instructions to Shawenakishichik in respect of the negotiations he conducted with Robinson over the Treaty’s reservation of land on their behalf.

[18] More specifically, Chief Mongowin identified in his testimony nine landmarks negotiated by Shawenakishichik as being encompassed by the Plaintiff’s land. With the help of Coucroche’s evidence, these landmarks were traced on the survey provided by Aubrey and became the defining points for Justice Ferguson’s detailed boundaries – with the exception of a 7,000 acre tract of land north of the current reserve which had been included in the reserve lands by Aubrey but eliminated by Justice Ferguson (and which is not in issue in the present action as compensation for that lost acreage has been resolved in the Specific Claims process).

[19] Putting all of the testimony together, Justice Ferguson stated in his reasons for decision that he adopted the evidence of Coucroche and Mongowin as the foundation for his Judgment:

I was and I am entirely satisfied that the evidence given by Coucroche and the other witnesses in regard to occupation is true. There is not an agreement in every particular, but there is as nearly this as one often finds in evidence involving long recollection of witnesses. I think their testimony remarkably satisfactory in this respect.

I find, and I have no hesitation in finding, that the meeting of the Council of the Band was held as stated by Mongowin, the present chief; that the instructions given by the council to Shawenakishick were as he has stated; and that these were stated to Mr. Robinson on the occasion of the making of the treaty, as stated by this witness.

[20] In the result, Justice Ferguson issued a declaration as to the meaning of the reservation described in Item 6 of the Treaty. The Judgment issued in Francis begins as follows:

[T]he Court doth declare that the Indian Reserve referred to in the Treaty mentioned in the second paragraph of the Plaintiff’s Statement of Claim and designated in the Schedule attached to said Treaty known as the Robinson Huron Treaty as follows ‘Sixth, Shawanakishick and his band a tract of land now occupied by them and contained between two rivers called White Fish River and Wanabitasebe seven miles inland’ is properly described as follows…

[21] The Judgment then goes on to describe, in detailed metes and bounds, the boundaries of the Plaintiff’s reserve. That description conforms with the Plaintiff’s reserve as it exists today. It does not, however, conform with the Plaintiff’s view of their historic lands or what was promised them in Item 6 of the Treaty. It is their view that although Justice Ferguson held in favour of what he took to be Mongowin’s and Coucroche’s evidence about the Plaintiff’s lands, the boundaries he drew do not coincide with the lands they had actually occupied “between the two rivers called White Fish River and Wanabitasebe”.

[22] In any case, the result of the Francis trial was that Canada was successful and Ontario’s claim was dismissed, with costs ordered payable to Canada and the individual defendants. The Schedule Item 6 reserve lands were recorded in the land registry in accordance with Justice Ferguson’s findings.

III. The motion to exclude evidence

[23] A significant part of this proceeding has been taken up with the Plaintiff’s motion-within-a-motion to exclude evidence. The four documents in question are to one extent or another relevant and important to Canada’s motion to dismiss.

[24] The Plaintiff challenges the authenticity and reliability of these documents, and therefore objects to their admissibility. Without yet opining on their authenticity, the documents can be described as: a) the Judgment of Justice Ferguson in Francis; b) the reasons for decision of Justice Ferguson in Francis; c) Justice Ferguson’s bench book containing a record of the proceedings in Francis; and d) a transcript (or partial transcript) of the Francis proceedings created by Duncan Fraser MacDonald, an observer a the trial.

[25] All four of the challenged documents have found their way into the motion record as exhibits to an affidavit by Carol Hodgson, a researcher retained by Canada to search archival records for relevant material. Ms. Hodgson is not a historian and has not been qualified as an expert witness; in fact, she does not hold herself out as an expert. Her affidavit says nothing about the authenticity or meaning of the documents she appends, and serves merely as the vehicle to produce for identification purposes the documents that she has found in various archives.

[26] Plaintiff’s counsel point out that the disputed evidence consists of historical documents that have been retrieved by Ms. Hodgson, and that, given their age, none of the authors of the documents, whoever they may be, are available to testify as to the reliability of the documents or the accuracy of their contents. By definition, the trier of fact will not be someone who “directly observes the real evidence and hears the testimony”, creating a “concern that the evidence was recorded inaccurately”: R. v. Bradshaw, 1 SCR 865, at para. 19.

[27] It is therefore Plaintiff’s counsel’s view that these documents are hearsay and, as such, are presumptively inadmissible. The Plaintiff moves that all four documents be struck from the record.

[28] The challenge to each of the documents can be considered sequentially, in the same order as presented in Ms. Hodgson’s affidavit.

Exhibit 1 – the Judgment

[29] Plaintiff’s counsel describe the issues with what they call the purported judgment of Ferguson J. as follows:

A ten-page handwritten document which Ms. Hodgson located in the Ministry of Natural Resources and Forestry in Indian Land File 184353. At the top of the document the words “In the High Court of Justice Chancery Division Before Mr. Justice Ferguson Saturday the Nineteenth day of January A.D. 1889” are written. The document has no seal, was not retrieved from the Court Registry and there is no indication on the face of the document that it was ever entered. The signature and initials of Justice Ferguson appear nowhere on the document. At the end of the document, the words “Signed this twenty-eighth day of March 1889. Leo Holmsted, Registrar” appear. Canada characterizes this document as the sealed and entered order in Francis.

[30] Section 38 of the Evidence Act, RSO 1990, c.E. 23 provides that a judgment of a court of record in Canada “may be proved by an exemplification of the same under the seal of the court without any proof of the authenticity of such seal or other proof whatever”. The record in this motion does, in fact, contain a copy of Justice Ferguson’s Order of January 19, 1889 with a visible court seal. It is not signed by Justice Ferguson himself because orders are not typically signed by the judge; it is signed and issued under seal by the court’s Registrar, as usual. I see no reason why section 38 should not apply.

[31] Furthermore, the fact that a 19th century court order is handwritten rather than typed comes as no surprise. In fact, the only unanticipated attribute of this particular document is that it is written by an individual with surprisingly aesthetic and easily legible handwriting. In reading it, one cannot help but commend the penmanship of its author.

[32] Counsel for the Plaintiff submit in their factum, and reiterated in their oral submissions, that, “There is no seal on the document, and it did not originate from the Court Registry or the Court file. Indeed…’neither the registry nor the historic archives of the Ontario Supreme Court now contain any copy of Mr. Justice Ferguson’s final formal decision.’” It appears that the Plaintiff’s position was formulated when an initial copy of the Order lacking a seal was produced by counsel for Canada; but the record was then supplemented by a sealed version of the document. The one that is in the record now has a very visible, circular seal on the upper left corner of the first page.

[33] While it may be the case that the court’s historical archives are missing a copy, there is no mystery as to where the sealed version of the Judgment was found. It is stamped on the last page “Received for registration in the Surrendered Land Register”. As a land registry document, it is a formally valid and in-force legal instrument, which is acknowledged as such by the very arm of government to which it, as an in rem order, is directed. I have no trouble concluding that if the sealed Judgment is valid for land registry purposes it is a valid and existing Judgment for all legal purposes, including for the proceeding before me.

[34] At the hearing of the motion, Plaintiff’s counsel also suggested that the signature line at the bottom of the final page of the Judgment does not sufficiently identify the issuing officer. The document reads “Geo. S. Holmested, Registrar”.

[35] I am perplexed as to why that notation does not satisfy Plaintiff’s counsel, although at the hearing it was part of their submission that without a qualified historian’s affidavit testifying to the registrar’s identity, we do not know today who that individual actually was. Although there is nothing about the signature or the form of order that would give rise to this skepticism or prompt a special level of scrutiny, Plaintiff’s counsel seem to say that a 135 year old court order cannot be considered valid unless the court registrar can be conclusively identified as having been an authorised registrar and signing official.

[36] Frankly, I have never encountered a demand to identify a court registrar in this way, and I do not think it is necessary here. But for greater certainty, and as an example of thorough legal research, counsel for Canada has alerted me to a published decision from the Exchequer Court of Canada in which it appears that the very same individual, George S. Holmestead (with, I will note, a one-letter spelling discrepancy from the Ferguson Order), appealed his 1921 income tax assessment. In my view, this is a remarkable piece of evidence adduced in response to what was presented as a seemingly insurmountable hurdle.

[37] In Holmstead v. Minister of Customs, [1926] Ex. C.R. 68, at para. 2, the Court states:

[2] The appellant was appointed, on the 1st April, 1876, by letters patent (Exhibit No. 1), under the Great Seal of the province of Ontario, as

‘Registrar of the Court of Chancery, with all the rights, privileges and emoluments, fees and perquisites, which to the said office belong, or of right appertain.’

[38] Mr. Holmestead’s identity as a court registrar was sufficient for federal income tax purposes, and it was sufficient for the forerunner of the current Federal Court. I conclude that it is also sufficient for the purposes of the present litigation.

[39] The Judgment is signed and sealed. It is legible. The registrar is who the signature line says it is. The document is admissible.

Exhibit 2 – The Reasons for Decision

[40] Plaintiff’s counsel describe the issues with what they call the purported Francis decision as follows:

A twenty-five-page typed document with cover page with the words ‘Canadian Native Law Reporter’ at the top. Pages three to four consist of an unsigned, letter titled ‘Attorney-General of Ontario v. Francis et al.: A note on the text and related documents.’ This letter explains that ‘no official report of the decision was published’ and the text that follows was ‘transcribed from the only known complete copy of the judgment, a manuscript found among the papers of counsel for the Province of Ontario in the Archives of Ontario (Aemilius Irving papers, Box 42, File 42, Item 9). Internal evidence suggests that it is either Mr. Justice Ferguson’s own draft, or a court reporter’s transcript of the oral decision.” Notwithstanding that these statements are hearsay uttered by an unknown declarant, Canada takes the position that Exhibit 2 is the written Reasons for Judgment of Justice Thomas Ferguson in Francis.

[41] Counsel for Canada point out that the document in question is a copy of the reasons for decision of Justice Ferguson which support the Judgment. These reasons are reported in the Canadian Native Law Reporter (“CNLR”), on LexisNexis Advanced Quicklaw, and on Westlaw Canada. While there is no official publication of the reasons dating from the 1880s, these are credible sources of case law cited all the time without the need for more evidentiary support. In addition, the Francis decision was published in 1889, at the time of its issuance, in the Globe newspaper, and the copy published in the CNLR is identical to that which appeared in the Globe.

[42] As stated in the CNLR note that accompanies the reported decision, the published copy was found in the Province’s archives as part of the estate papers of counsel for Ontario in Francis. Plaintiff’s counsel submits that that makes them suspect and unreliable. I truly do not understand why that would be so. Needless to say, in the ordinary course counsel are provided by the trial judge with the reasons for decision. There is no reason to think that the Francis reasons ended up in the Ontario lawyer’s possession in a way that differs from the way that any lawyer might end up in possession of a copy of the reasons for decision in a case in which that lawyer appeared as counsel.

[43] Plaintiff’s counsel speculates about whether the CNLR published version is really the correct version of the reasons, but that is nothing more than idle speculation. It is hard to fathom how a lawyer representing a party in the case would have a pre-final draft of the reasons or an alternative version of some kind. In my view, there is no serious issue as to the accuracy and reliability of the reported reasons.

[44] If further evidence of their reliability is needed, I observe that the Plaintiff’s own history expert, Victor Lytwyn, PhD, refers extensively in his report to Justice Ferguson’s reasons for decision as a historical source. And while he does not directly opine on the accuracy or reliability of the existing set of reasons, he uses its contents in the same way as he uses any archival document – i.e. he takes the documents as being precisely what it purports to be. I do not say this to fault Dr. Lytwyn; indeed, to the contrary, he treats this archival document with a historian’s good sense of historical evidence.

[45] As the CNLR indicates, the reasons for decision, as published, were originally penned either by Justice Ferguson himself or by a court reporter transcribing Justice Ferguson’s oral reasons. Their content is reliable and their source is acceptable.

[46] A decision such as this one in a prior civil case is admissible without expert evidence, and can be submitted as proof of its findings: British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 SCR 657, at paras. 7, 37, 52. I find no grounds on which on which to reach any other conclusion in respect of the Francis reasons for decision as published in the CNLR. Justice Ferguson’s reasons are admissible.

Exhibit 3 – the bench book and transcript

[47] Plaintiff’s counsel describe the issues with what they call the purported bench book of Justice Ferguson and transcript of the Francis hearing as follows:

A one hundred-and-eight-page handwritten document. Included with the handwritten pages is a page with a stamp that reads ‘Archives of Ontario’ in typed print beneath which in the blank space left for the Reference Code the following words have been hand-written: RG22-451-1-25,b247078, Thomas Ferguson Bench Book 12-29 Sept 188 AG v. Francis pp. 279-385. There is no indication on the document itself as to who authored it and the author of the writing on the stamp is unknown. Ms. Hodgson has transcribed this document, and her transcription is part of Exhibit 3.

[48] The Bench Book was originally part of the Court file. It was in the ordinary course transferred from the Court to the Archives of Ontario pursuant to an agreement relating to all such 19th and early 20th century documents negotiated by Chief Justice Roy McMurtry and signed in 1995 for preserving “government records of enduring value”. The Bench Book is publicly available in the Archives, and there is no real controversy over its provenance.

[49] The document is not, as its name might otherwise suggest, Justice Ferguson’s personal journal of notes from the Francis trial. If that were the case, the doctrine of deliberative secrecy might bar its admissibility into evidence.

[50] Rather, the Bench Book is a contemporaneous record of the proceedings at trial. It is a lengthy document comprised of a record of Justice Ferguson’s mid-trial rulings, and identification of the shifting venue and institutional setting in which the hearings were conducted, none of which is deliberative in nature: Québec (Commission des affaires sociales) v Tremblay, [1992] 1 SCR 952, at 964.

[51] The Bench Book also contains a summary, without commentary, of facts and legal arguments made in the case, none of which falls under deliberative secrecy: Payne v Ontario Human Rights Commission (2000), 192 DLR (4th) 315, at paras. 169, 181 (ON CA). Importantly, it also contains a transcript of the witness testimony at trial. Dr. Lytwyn, the Plaintiff’s own expert, concedes that the Bench Book contains the “official transcript made by the court stenographer (J. Young) of the trial proceedings”.

[52] Given this content, the admissibility of the Bench Book does not encounter an obstacle in the form of the deliberative secrecy doctrine. That principle of law makes inadmissible any judge’s journal or notes which “penetrate the mental process by which the judge came to his decision”: Agnew v Association of Architects (Ontario) (1988), 64 OR (2d) 8, at 10 (Div Ct). Justice Ferguson’s Bench Book is more of a record of what transpired at the Francis hearing than it is an insight into “how and why” the judge arrived at his decision in the case: Grogan v. Ontario College of Teachers, 2023 ONSC 2980, at para 16; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, at paras. 13-14.

[53] Accordingly, the Bench Book does not contain material that speaks to what Justice Ferguson was thinking about the law, the evidence, or the credibility of witnesses, nor does it relate how he reached the Francis decision. It is admissible as a reliable and necessary record of proceedings.

Exhibit 4 – the MacDonald notebook

[54] Plaintiff’s counsel describe the issues with what they call the MacDonald notebook pages as follows:

A five-page handwritten document with the words “Part of Chief Mongowin Evidence Before Justice Ferguson. Sept. 1888. Rev Allan Salt Interpreter” at the top of the document. There is no indication on the face of the document as to who wrote it but according to Ms. Hodgson, the document is a portion of a notebook labelled “Whitefish Lake reserve” and was located by Ms. Hodgson in the Archives of Ontario in the Duncan Fraser Macdonald Papers fonds (F 1023). The Archives of Ontario record indicates that it is part of a collection of papers relating to the private life and professional career of Duncan Fraser MacDonald.

[55] Duncan MacDonald appears to have attended the Francis trial as an audience member. Although he produced a partial transcript, he was not an approved court reporter.

[56] This kind of historical record, with no formal status in the judicial system, can potentially be admitted if referred to by an expert witness. Where that approach is taken, the expert’s reference to the document “must be sufficient to permit the court to make a determination as to the threshold reliability (not weight) of the record”: The Ahousaht v. Canada (Attorney General), 2008 BCSC 768, at para. 40.

[57] In reading the transcript in the MacDonald notebook, one can see discrepancies between what Mr. MacDonald transcribed in the testimony of Chief Mongowin and what Chief Mongowin himself deposed in his affidavit. Dr. Lytwyn has deposed that MacDonald’s version appears to be a false representation of this evidence.

[58] Given that Dr. Lytwyn is the only expert who has opined on the reliability of the MacDonald transcript, I am inclined not to admit it into evidence. It has no formal validity and its accuracy has been put under serious question. Moreover, it is not particularly important since the record already contains the full testimony of Chief Mongowin in other sources.

[59] In fact, counsel for Canada conceded at the hearing that, unlike the rest of the challenged evidence, the MacDonald evidence was problematic. Canada’s position is that its motion can proceed, and the argument it presents will not change, with or without this document in the record.

[60] Absent an expert witness to attest to its accuracy and reliability, the MacDonald notebook with its purported transcript is inadmissible both in the present motion and in the action.

IV. The rules barring re-litigation

[61] Canada’s counsel state that the Francis judgment, Justice Ferguson’s reasons for decision, and the Bench Book provide the evidence needed to establish that the present action is barred as an attempt to re-litigate the 1899 case. Canada submits that the within action can be characterized as either a collateral attack on Francis or an abuse of process by re-litigation.

a) Collateral attack

[62] The present action will reconsider, and potentially re-draw, the boundaries of the Plaintiff’s reserve lands, expanding them beyond the boundaries as determined in Francis. The action is not, however, a direct or frontal challenge to the Francis ruling. Given the impossibility of doing so more than a century after the fact, the Plaintiff’s claim does not seek an order setting aside or varying the Judgment in Francis, nor is it fashioned as an appeal of Francis.

[63] In Wilson v. The Queen, [1983] 2 SCR 594, at 599, the Supreme Court of Canada summarized the prohibition on collaterally attacking an existing judgment:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally – and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

[64] The rule has been articulated as a broad one rather than a technical one. It exists as a matter of principle in the administration of justice: Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, at para 37. As Justice Binnie put it in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at para. 20, “a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it.”

[65] Accordingly, the rule against collateral attack is relevant wherever “the validity of the order comes into question in separate proceedings” other than those in which the original judgment is directly challenged: Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 SCR 629, at para. 71. The rule thereby embodies the principle that a judgment by a court of competent is “binding and conclusive on all the world until it is set aside, or varied on appeal”, and “must receive full effect according to its terms”: Wilson, at 599-601, 604.

[66] What’s more, the question is not whether it now appears that the first judgment is incorrect in its fact finding or its application of law. Plaintiff’s counsel makes lengthy argument about the number of ways Justice Ferguson was misled by the evidence presented to him. I will not review all of them here; to do so would almost necessitate a complete review of the evidence as if this request were itself a re-do of the trial. Suffice it to say that any errors of fact or law, including findings of non-credibility, non-disclosure, or omissions, will not prompt a repeat of the earlier proceeding: Altus Group Limited v. 3GS Incorporated, 2016 ONSC 3603, at para. 67.

[67] Short of outright intentional deceit or fraud, no misstep in the earlier judgment, including even perjury by a witness, prompts a re-litigation of the issues unless it is conclusively demonstrated that the fraud changed the outcome of the case: Hill v. Hill, 2016 ABCA 49; Ndachena v Nguyen, 2018 BCSC 1468, at para. 52. Given that Justice Ferguson expressly stated that he did not favour the government witnesses, this high test is not met here.

[68] There may have been errors and omissions during the course of the Francis trial, and there were perhaps even some knowing misstatements in the evidence. But there is no sense that a change in any witness’ testimony would have changed the ultimate verdict. Justice Ferguson’s reasons for decision show that he was following what he understood to be the testimony of the First Nations witnesses themselves. As the Supreme Court of Canada has explained, “[H]owever wrong or irregular, [the judgment] still binds, cannot be questioned collaterally”: Wilson, at 600.

[69] Counsel for Canada further argue that where, as in Francis, an action results, in “a determination of the title to property or some interest therein […] the action would result in a judgment in rem”: G.P.I. Greenfield Pioneer Inc. v. Moore (2002), 58 OR (3d) 87, at para. 26 (CA). Accordingly, it was registered on title to the Plaintiff’s reserve lands as formal notice to all; as indicated earlier in these reasons, it is in the land registry that Canada’s researcher located a full copy of the Judgment.

[70] In general, a judgment in rem is “applicable against the whole world”, not just as between the parties to it: R. v. Greco (2001), 155 OAC 316, at para. 9 (CA). Since Justice Ferguson ruled that the title of the lands within the boundaries of Treaty item 6 is vested in the federal Crown as reserve lands, the judgment in Francis is “binding erga omnes as a matter of precedent, according to the ordinary rules of stare decisis”: R. v. Sullivan, 2022 SCC 19, at para. 53.

[71] Finally, Canada’s counsel submit that a change over time in the state of the law, or in approaches to treaty interpretation, does not affect the rule against collateral attack. After all, “[i]f final orders were to be set aside when there was a change in the law, there would be no finality to litigation”: Ipex Inc. v Lubrizol Advanced Materials Canada, Inc., 2015 ONSC 6580, at para. 24.

[72] Moreover, the passage of more than a century does not weigh in favour of permitting a collateral attack on the Francis Judgment. In fact, the Court of Appeal has said that the finality of a judgment becomes increasingly important with the passage of time, so that “[w]hen an action has been disposed of in favour of a party, that party's entitlement to rely on the finality principle grows stronger as the years pass”: Giant Tiger, supra, at para 38.

[73] Given the finality of Justice Ferguson’s ruling, and the way in which the present action seeks to have its central issue – the boundaries of the Plaintiff’s reserve under Item 6 of the Treaty – reconsidered, the action fits the definition of a collateral attack. While the action has one party – the Plaintiff – whose members were witnesses in Francis but who did not participate in the Francis trial as a party with a legal interest of its own, the Judgment in issue was rendered in circumstances where it applies in rem.

[74] Accordingly, the entire world, including the Plaintiff, has adhered to the Francis judgment since it was decided in 1889. The Judgment defined more than the rights of the two government parties inter se; it defined the reserve land itself. It can no longer be appealed or challenged in a direct way.

[75] The present action, which seeks to revisit the boundaries of the reserve lands, on its face challenges collaterally what is not, and cannot be, attacked directly. In the most literal sense of the term, it is a collateral attack on prior judgment.

b) Abuse of process

[76] Having found that the action is a collateral attack on Francis, it is not strictly necessary to ask the further question of whether it amounts to an abuse of process by re-litigation. As the Court of Appeal observed in Flores v. Glegg, 2022 ONCA 825, abuse of process in this context is more broadly available than related grounds of attack.

[77] I will add that although the doctrine carries the label “abuse”, motive is not part of the abuse of process by re-litigation analysis; the bar to re-litigation is not about male fides: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 51. As Justice Pepall explained in Flores, at para. 24, “The doctrine is related to the common law doctrines of res judicata, issue estoppel and collateral attack, but is more flexible…”

[78] Accordingly, while the abuse approach “is similar to issue estoppel in that it can bar litigation of legal and factual issues ‘that are necessarily bound up with the determination of’ an issue in the prior proceeding, abuse of process also applies where issues ‘could have been determined’”: Winter v. Sherman Estate, 2018 ONCA 703, at para. 7, citing Danyluk v. Ainsworth Technologies Inc., supra, at para. 54. Counsel for the Crown sums up the idea in its factum, submitting that if to be successful in the new litigation, a party must challenge the findings of fact or law made by a court in a previous proceeding, the new action is an abuse of process: see Caci v. Dorkin (2008), 93 OR (3d) 701, at para. 15 (CA).

[79] The present action fits that description. The question posed by the Ontario government to the court in Francis, at para. 19, was precisely the same question as that posed by the Plaintiff in the present case: “that the true locality of this reserve should be declared”. Thus, counsel for Canada asks, rhetorically, “Could the trial judge in this Action find that the Claimed Lands are the intended boundaries of the reservation described in Schedule Item 6 without making findings of fact and law that are different from Justice Ferguson’s?”

[80] To pose the question in the context of this action is to answer it. The tasks set for Justice Ferguson and for a court trying the present action are self-evidently the same.

[81] The relief sought by the Plaintiff in the Fresh As Amended Statement of Claim includes: “A declaration of title and an order of possession of all lands within the Whitefish Reservation Lands…” Appendix ‘A’ to the pleading is a map of the Whitefish Reservation Lands that engulfs and is by several orders of magnitude larger than the Plaintiff’s present reserve land as delineated in Francis. The rest of the relief sought in the pleading has to do with whether the Crown breached its duties of trust and good faith to the Plaintiff in arriving at the boundaries ultimately drawn in Francis which, the Plaintiff contends, deprived it of lands that were rightfully part of the Schedule Item 6 reserve. It is the redefinition of the boundaries that is at the heart of the claim.

[82] In order to grant the relief requested by the Plaintiff, the court will be compelled to conclude that various findings made by Justice Ferguson were incorrect. The relief sought in the boundary claim advanced in this action is a re-drawing of the reserve boundaries drawn in Francis. It is undeniably a request to re-litigate today, in Ontario’s Superior Court of Justice, a case that was squarely before, and for which a final conclusion was reached in, Ontario’s superior court of record in 1899.

[83] Given the way the issues are posed in this action, I have little choice but to conclude that, at least on the surface, it is trying to re-do what this Court’s predecessor has already done. It seeks to replace Justice Ferguson’s in rem judgment setting out the boundaries of the Plaintiff’s reserve with a new judgment setting out new boundaries for the Plaintiff’s reserve.

[84] While counsel for the Plaintiff does an admirable job of advocacy in casting the matter as an issue of breach of duty that was not addressed in the previous ruling, no amount of good lawyering can displace the central finding which the Plaintiff seeks to obtain: that the reserve boundaries drawn in Francis were wrong, and that the reserve boundaries pleaded by the Plaintiff and depicted in Appendix ‘A’ to its pleading are right.

[85] The Plaintiff’s current boundary claim is impossible to characterize as anything other than a revisiting of a previous court’s finding. In this respect it is, again in the most literal sense, an abuse of process by re-litigation.

V. Residual discretion

[86] In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125, the Supreme Court made it clear that there is a residual discretion residing in the courts to allow a revisiting of a previously determined matter. In circumstances where it will achieve a necessary level of fairness, that discretion may be exercised even where a case might otherwise be barred by the rules prohibiting re-litigation: Danyluk, at para 63.

[87] The overall legal principle in this area is, of course, that of finality of litigation and the authority of judicial rulings, which, unless appealed or set aside, must be seen to be in force regardless of any disagreement with their conclusion: Wilson, supra, at 600. But it is equally the law’s aim to ensure that due process, or fairness, is rendered in all of its aspects: Dosen v. Meloche Monnex Financial Services Inc., 2021 ONCA 141, at para. 37. As the Court put it in Penner, at para. 40, “If the prior proceedings were unfair to a party, it will likely compound the unfairness to hold that party to its results for the purposes of a subsequent proceeding.”

[88] The Court in Penner went on to discuss the two aspects of adjudicative fairness that are relevant to this analysis. The first is fairness in the procedural sense – i.e. was the process carried on by the first court in a way that complies with natural justice principles. As the Court put it, “These considerations are important because they address the question of whether there was a fair opportunity for the parties to put forward their position, a fair opportunity to adjudicate the issues in the prior proceedings and a means to have the decision reviewed. If there was not, it may well be unfair to hold the parties to the results of that adjudication for the purposes of different proceedings”: Ibid., at para. 41.

[89] The second sense of fairness with which re-litigation is concerned raises a somewhat more subtle point. The Court explained it as a combination of process and substance, pointing out that different types of proceedings may import different purposes. In Penner, at para. 42, it observed that there may therefore be occasions where a just result in one instance, or for one purpose, may is unjust one in another:

The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings. Fairness, in this second sense, is a much more nuanced enquiry. On the one hand, a party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favourable judicial determination. Finality is important both to the parties and to the judicial system. However, even if the prior proceeding was conducted fairly and properly having regard to its purpose, injustice may arise from using the results to preclude the subsequent proceedings. This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings. [emphasis in original]

[90] The basic due process, or fairness concerns have been further combined with a number of more pragmatic policy considerations to be taken into account when approaching the prospect of re-litigation. These features of judicial process were elaborated on by the Supreme Court in Toronto v. C.U.P.E., supra, at para. 51, where they were seen to equally inform the narrow scope of discretion which courts retain to re-consider what otherwise would be a finally decided point:

First, there can be no assumption that re-litigation will yield a more accurate result than the original proceedings. Second, if the same result is reached in the subsequent proceeding, the re-litigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly and additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[91] All of this must, then, be taken into account where the court’s residual discretion to proceed with a case otherwise barred as re-litigation of a prior case is invoked. Here, in particular, the Plaintiff’s absence as a party in the Francis case must be factored into the analysis of each of the legal and policy concerns.

[92] For example, re-litigation may or may not yield a “more accurate result” than the result in Francis, but a re-visiting of the issues in a new trial will include extra input by the Plaintiff as a party to the action that will inform the judgment. Even if the resulting reserve boundaries turn out to be the same, the extra judicial resources will, in my view, have been worthwhile as an effort to add legitimacy to the resolution of a First Nation’s treaty claim. After all, the Supreme Court of Canada has acknowledged that we are in an era when “Canada has abandoned its policy of assimilation in favour of a policy of reconciliation”: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (Bill C-92), 2024 SCC 5, at para. 12.

[93] On the other side of the coin, if the result at trial expands on the Francis boundaries, the inconsistency can only help enhance, not undermine, the credibility of the judicial process. It may be true, as the Supreme Court has said on other occasions, that “[t]rue reconciliation is rarely, if ever, achieved in courtrooms”: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 SCR 1069, at para. 24. But allowing the Plaintiff a voice in determining its own reserve land will be a step in the national imperative of seeing that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy…”: Bill C-92 Reference, at para. 3.

[94] In the civil litigation context, autonomy and recognition of First Nations’ peoplehood would be reflected in the Plaintiff’s equality of participation with the other two governments in the case. Accordingly, in litigating the Plaintiff’s reserve lands, the Plaintiff and Canada must be situated in a way that reflects the Supreme Court’s vision of “Indigenous governing bodies and the Government of Canada work[ing] together to remedy the harms of the past and create[ing] a solid foundation for a renewed nation‑to‑nation relationship”: Ibid., at para. 20.

[95] The Plaintiff is a rights-holding entity seeking a remedy under a Treaty in which it is a partner, Chief Shawenakishichik having agreed to the Treaty on the Plaintiff’s collective behalf. The Plaintiff’s equality of stature with the other parties to the litigation – and the mutuality of the legal rights and obligations in issue – is a first principle of legal process and of the law surrounding treaty interpretation and enforcement: Vienna Convention on the Law of Treaties, May 23, 1969, art. 2(l)(a), 1155 UNTS 331, 333; R. v. Sioui, [1990] 1 SCR 1025.

[96] This sense of equality before the court ties into the understanding voiced in Penner, at para. 41, that parties are barred from relitigating a prior case, but only as long as they received the opportunity to present their case in the first place. And while not every type of proceeding affords the full panoply of courtroom rights to the litigants, ordinary conceptions of due process preclude allowing one side one side to present its case in a manner from which the other party was effectively barred.

[97] In a trial such as Francis, it is fundamental that each side have the opportunity not only to present evidence, but to cross-examine the opposing side’s witnesses and to argue its case: Innisfil Township v. Vespra Township, [1981] 2 SCR 145, at 160. These process rights were enjoyed by the governments of Canada and Ontario in Francis, but not by the Plaintiff whose land was in issue. Coucroche and Mongowin testified as witnesses for Canada, but they did not have counsel to cross-examine the government surveyor and other officials or to argue the case for a more expansive interpretation of the Treaty’s Schedule Item 6.

[98] Counsel for Canada points out, correctly, that Justice Ferguson heard what seemed to be the most knowledgeable First Nations witnesses – i.e. Coucroche, Chief Mongowin, and, albeit as hearsay through Mongowin, Chief Shawenakishichik and his instructions to the Robinson-Huron treaty negotiators. In furtherance of this point, Canada’s counsel cite in their factum Justice Ferguson’s view of “the necessity of hearing evidence from both parties to the Treaty”, and point out that he “accepted the testimony of the Atikameksheng Anishnawbek witnesses regarding their intentions when entering the Treaty.” They also observe that “Justice Ferguson did not find a single instance in which he ‘was disposed to doubt the veracity of the [Atikameksheng] witness.’”

[99] While all of that is indeed noteworthy, it does not exactly amount to equality. In fact, it is posed by Canada as an admirable instance of a court taking account of the interests of a non-party, or an interest-holder who is otherwise not an equal litigant with the actual parties to the case.

[100] Not to belittle the efforts gone to by Justice Ferguson, but this characterization is reminiscent of the position of children with diminished standing in court, where, for example, the Supreme Court has held that in criminal proceedings dealing with a parent or teacher administering corporal discipline, “The child’s interests are represented at trial by the Crown”: Canadian Foundation for Children v. Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76, at para. 6. Likewise, in family proceedings and in the immigration context, the “best interests of the child” is a recognized factor that an adjudicator must take into account, but the child herself is not a necessary party and the context of the child’s interest is sandwiched between the disputed rights of the litigating parents or of the migrant parents and immigration authorities: Gordon v. Goertz, [1996] 2 SCR 27; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125.

[101] The fact that Justice Ferguson heard First Nations witnesses, and that the federal lawyers presented the Atikameksheng “case” to the Court, did not make the Plaintiff a party to the trial. Their interests may have been taken into account by the judge, but argument of the case was not submitted to him by those who were actually members of the interested party.

[102] Thus, while Justice Ferguson made no procedural error in hearing the case as it arose – i.e. as a contest between Ontario and Canada – the fact is that the Plaintiff was caught in the middle of the dispute, but was not an equal participant with any of the disputants. The Francis judgment may or may not have been overturned had it ever been appealed; but it was certainly not fair in the Penner sense of the term.

[103] One simple illustration will suffice. Hypothetically, the two neighbours straddling either side of my house might litigate a property boundary dispute with each other, with one claiming a portion of the east side of my backyard and the other claiming a portion of the west side in a configuration resembling overlapping circles. Either party might call me as a witness, and I would express my view on the witness stand. But if I were not a party to the case, and so could not cross-examine the neighbours’ witnesses or retain counsel to make submissions in my own legal interest, have I had a fair hearing – or, indeed, any hearing at all? And if following this kind of trial between my two neighbours the court shrinks my property boundary in an in rem judgment, did I get a fair result? The answer, self-evidently, is No.

[104] In Francis, the proceeding between the two levels of government was appropriate for the purpose of carving out their respective jurisdictions. It was designed to consider the rights of the two governments inter se, and it did so. But it was not designed to consider the position of the Plaintiff as a rights-holder with standing of its own. For that reason, it was structurally impaired from accomplishing a fair adjudication of the Plaintiff’s rights under the Treaty.

[105] As explained in Penner, at para. 42, injustice can arise from the result of a previous legal process that was designed for a different purpose or that took place in a different context than the present action. There, the Court observed that what was fair and just in an administrative proceeding might be unfair and unjust in civil litigation. Similarly, one can say here that what was fair and just in carving out jurisdiction between Ontario and Canada in Francis, was structurally unfair and unjust in determining the rights and title of the Plaintiff.

[106] Accordingly, labelling an action that attempts to re-litigate the Plaintiff’s boundary issue a collateral attack or an abuse of process may be technically correct, but that is to look only at the superficial aspects of the case. A deeper view of the Francis proceeding demonstrates that the although the raison d’être of the doctrines barring re-litigation is the stability of judicial rulings, application of those doctrines in the present circumstance will only perpetuate a structural injustice that Justice Ferguson was powerless to avoid. While finality of judgments is important in the justice system, it is not more important than justice itself.

[107] For that reason, there is a residual discretion to override the re-litigation prohibition in the right circumstances. I hereby exercise that discretion in concluding that this action should proceed to trial on all issues.

VI. Disposition

[108] Canada’s motion is dismissed.

[109] Costs will be in the cause.

Date: August 29, 2024 Morgan J.