Court File and Parties

Court File No.: CV-23-00000052-0000 Date: 2025/09/11 Superior Court of Justice – Ontario

Re: David John Rowe Plaintiff/Moving Party/Responding Party by Cross-Motions

And:

His Majesty the King in Right of Canada and His Majesty the King in Right of Ontario and Grand Erie Business Centre Inc.

Defendants/Responding Parties/Moving Parties by Cross-Motions

Before: Gibson J.

Counsel:

• David John Rowe, self-represented Plaintiff
• Jennifer Boyczuk, Counsel for the Defendant His Majesty the King in Right of Ontario
• Cameron Fiske and Tajesh Adhihetty, Counsel for the Defendant The Attorney General of Canada, incorrectly named as His Majesty the King in Right of Canada

Heard: July 2, 2025

Endorsement

Overview

[1] This matter concerns a claim commenced by the plaintiff, David John Rowe ("the plaintiff") who is a self-represented litigant. There are also proposed corporate plaintiffs in a proposed amended claim. The plaintiff brings this claim seeking damages for financial losses that he alleges he and his corporations experienced from around 2004 to 2014. He alleges that the pending claim brought by the Six Nations against Canada and Ontario has created uncertainty regarding his corporation's ownership of a parcel of land and that this impeded his ability to sell the land and liquidate assets to ease his financial strain.

[2] Mr. Rowe indicates that his property and business were located on and adjacent to the Dunnville Dam and Welland Canal Feeder Lands by the Grand River. The plaintiff claims that he is impacted by the unresolved litigation between Six Nations of the Grand River ("Six Nations"), Canada, and Ontario in which Six Nations seeks land and damages. Specifically, the plaintiff states that his property, which includes or included 46.5 hectares of islands and a wetland complex, declined in value due to the uncertainty of title because of the ongoing Six Nations litigation. The plaintiff seeks damages against Ontario and Canada for not resolving the Six Nations litigation and surrounding dispute.

[3] Mr. Rowe concedes that his claim is time barred but argues that an exception should be made as a result of the alleged negligence and breach of fiduciary duty on the part of the defendants related to either improvident sale of the plaintiff's property by the defendant Grand Erie Business Centre Inc. ("GEBC") on or about August 1, 2013, or the failure to properly clarify his ownership rights and/or verify title and/or settle the Six Nations litigation.

[4] The plaintiff also seeks an exception to an expired limitation period based upon his past health issues, which are discussed below, as well as his difficulties in hiring a lawyer.

[5] The action is brought under the Simplified Procedure although unspecified damages are sought (although in the proposed amended claim $10 million is sought in damages). The plaintiff now seeks to add two numbered companies that he owns as new parties to the action, and for leave to represent the corporate plaintiffs.

[6] In his statement of claim, the plaintiff incorrectly names "His Majesty the King in Right of Canada" as a defendant. Pursuant to s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, proceedings against the federal Crown may be taken in the name of the Attorney General of Canada.

[7] Both Ontario and Canada bring cross-motions to strike.

[8] The motion of the defendant Attorney General of Canada ("Canada") seeks to strike out the Statement of Claim and/or Amended Statement of Claim without leave to amend because the action is time barred under the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B ("Limitations Act, 2002") and it discloses no reasonable cause of action. Canada submits that this action should be dismissed as time barred, and that there is no cause of action against Canada for not resolving the land claim in the Six Nations litigation and any ancillary effects that this may have had. Neither the original claim nor the proposed claim, it contends, set out a viable cause of action regardless of who the plaintiff(s) are.

[9] The defendant His Majesty the King in Right of Ontario ("Ontario") moves to strike the claim against it for several reasons. The plaintiff alleges that he and his corporations experienced financial losses due to uncertainty in his corporation's ownership of land because of the unresolved claim brought by the Six Nations of The Grand River Band of Indians ("Six Nations") against the defendants, Ontario and Canada. Specifically, beginning in 2004, 21 years ago, he was unable to sell land owned by one of his corporations for fair market value because, he alleges, that land fell within the area that was and is still the subject of the Six Nations' claim. In 2014, 11 years ago, a lender, the defendant, Grand Erie Business Centre Inc. ("GEBC"), exercised a power of sale and sold the land to recover funds owing to it. The plaintiff alleges the sale was under fair market value. He seeks damages for financial losses and physical and mental distress.

[10] Ontario submits that this action is a nullity against it because the plaintiff did not provide notice before commencing this action, as required by section 18(1) of the Crown Liability and Proceedings Act, 2019. The notice period cannot be waived or abridged by the Crown or the Court and must run before the action is commenced. As such, the claim should be dismissed.

[11] Further, Ontario submits, the claim against it fails to disclose a cause of action in negligence or breach of fiduciary duty. Ontario did not owe the plaintiff or his corporations either a private law duty of care or fiduciary duty as alleged. Ontario also contends that the plaintiff's claim is also plainly and obviously statute-barred by the Limitations Act, 2002. The plaintiff admits the limitation period has expired but asks for an exception due to the "contentious and controversial nature of this case." The Limitations Act, 2002 provides no such exception and has removed the court's discretion to extend the limitation period in special circumstances.

[12] Finally, Ontario submits, the plaintiff's motion to amend the pleadings to add his corporations as plaintiffs to this proceeding should be dismissed. The proposed amendments do not remedy the deficiencies in his claim as against Ontario. Ontario submits that the claim against it ought to be struck without leave to amend. It seeks an order dismissing the plaintiff's claim against Ontario with costs of the plaintiff's motion and Ontario's cross-motion.

[13] The plaintiff's motion to amend the statement of claim and to add corporate defendants, and for leave for him to represent the corporations, was heard together with the defendants' motions to strike.

[14] These reasons explain the multiple reasons why the action is time barred, the proceeding as against Ontario is a nullity, Canada's and Ontario's motions to strike succeed, and the plaintiff's action will be dismissed.

Background

[15] The plaintiff claims that the defendant Haldimand-Dunnville Business Development Corporation, now called Grand Erie Business Centre Inc. ("GEBC"), which is in the business of financing and supporting small businesses within Haldimand County, improvidently sold his businesses. Specifically, the plaintiff alleges that he is the sole owner and director of two provincially incorporated companies: Lumber Island Company Limited ("LICL") and 659877 Ontario Inc. operating as Bar-B-Q ("659"). According to GEBC's defence, in 1997 LICL and 659 applied through Mr. Rowe for financing in order to pay off bank loans and to use the balance of the funds for working capital. GEBC extended several loans to LICL and 659, which included a General Security Agreement. The mortgages were for approximately $200,000 per company plus interest. Beginning in 2004 the plaintiff claims that he attempted to sell the property owned by the businesses that had been in his family since the 1880s. Mr. Rowe says that he was not able to sell due to buyer fears surrounding the ongoing Six Nations litigation and disputes. Specifically, Mr. Rowe states that after listing a popular waterfront facility owned by LICL for $1.65 million, there were no buyers due to protests that erupted in February 2006 in Caledonia, Ontario (over the Douglas Creek Estates housing development). The plaintiff pleads that this garnered significant media attention which the plaintiff alleges frightened potential buyers. The defendant GEBC has denied the plaintiff's allegations.

[16] On March 16, 2012, the proposed plaintiffs LICL and 659 defaulted under their respective loan agreements and promissory notes due to non-payment of the monthly installment. The outstanding indebtedness owed to GEBC by LICL and 659 was approximately $183,901.71 and $183,627.45 respectively. That same day GEBC made a demand for payment from LICL in the amount of $183,901.71 and upon 659 for $183,627.45. This was pursuant to LICL's guarantee of the debt and the obligation of 659. GEBC also provided notice that if payment was not made by March 26, 2012, it would proceed to enforce the mortgages. GEBC also served on LICL a Notice of Intent to Enforce Security. In April 2012 GEBC commenced an action against LICL for possession of the mortgage property. On June 13, 2012, GEBC obtained a Default Judgment for Possession of the Mortgaged Property and leave to issue a Writ of Possession. On March 11, 2013, GEBC delivered a Notice to 659 pursuant to the Personal Property Security Act, R.S.O. 1990 c. P.10, to dispose of its collateral pursuant to the General Security Agreement dated December 24, 1997. On October 22, 2012, GEBC delivered to LICL a Notice of Sale under the mortgage. This was followed by a notice of failure to cure the default on November 28, 2012. When the default was not cured GEBC listed the mortgaged property for sale through a realtor for $899,900.00. In February 2013, GEBC obtained two independent appraisals of the mortgaged property, which valued them at $462,000 and $600,000. Further to the February 2013 appraisals, GEBC reduced the listing price to $799,900.00. In February 2013, GEBC received an offer in the amount of $400,000. GEBC rejected the offer as it wished to further canvass the market to determine if a higher price could be obtained for the mortgage property. By June 2013, no offers had come in. As such, GEBC further reduced the listing price to $599,000.00 in order to generate interest. The mortgaged property remained on the market until April 1, 2014 when, GEBC alleges in its statement of defence, that it entered into an arms-length purchase agreement. The sale of the mortgaged property closed on May 30, 2014 for the sale price of $400,000.

[17] The plaintiff has alleged in the statement of claim that GEBC made an improvident sale as they received and rejected an offer of $1.7 million. GEBC specifically denies ever receiving such an offer and it further denies any improvident sale. The ultimate payment to GEBC from the proceeds of sale was collectively in the amount of $364,593.42. LICL and 659 continue to be in debt to GEBC for the amount of $140,407.81 plus interest.

[18] Over the years in which the plaintiff and the corporations faced financial challenges, he says that he wrote repeatedly to representatives of the federal and provincial governments, including Ministers and MPPs, about his challenges in selling the Property.

[19] The plaintiff pleads that had Canada and Ontario resolved the dispute involving Six Nations in a timely manner, i.e. before 2004, the alleged improvident sale would never have occurred. In other words, the plaintiff would have been able to sell the businesses between 2004-2006 for $1.65 million rather than lose his property in 2012 after defaults on the mortgages.

The Property

[20] The parcel of land at issue in this action is municipally known as 7336 Rainham Road, Dunnville, Haldimand County (the "Property"). It consists of 46.5 hectares of island and wetland located in the Grand River. The plaintiff says that the Property has been owned and farmed by his family since 1881. He alleges that the Property is located within an area known as the Haldimand Tract. The Haldimand Tract is subject to the pending litigation between the Six Nations and Canada and Ontario. Although the precise boundaries are disputed, this address would fall within the area covered by the Haldimand Proclamation.

[21] Ontario's position is the lands were validly surrendered.

Six Nations Litigation

[22] On March 7, 1995, the Six Nations commenced a claim bearing Court File No. 406/95 in the Superior Court of Justice of Ontario against Ontario and Canada. Justice Akbarali, the current case management judge, described the nature of the Six Nations' claim and its history in Six Nations Grand River Band of Indians v. The Attorney General of Canada, 2023 ONSC 4476 at paras. 2-4:

In this action, the plaintiff, Six Nations of the Grand River Band of Indians ("SNGR") seeks an accounting and compensation for what it alleges are the breaches of duty and treaty obligations by the Crown defendants dating back to 1784, the time of the Haldimand Proclamation.

SNGR argues that the Haldimand Proclamation set aside lands along the Grand River for the Haudenosaunee people who wished to settle there, and their progeny, as compensation for the homes and property that the Haudenosaunee lost after the American Revolution, during which the Haudenosaunee had been allies of the British Crown. SNGR states that today, it has the use of less than 4.8% of the lands reserved by the Haldimand Proclamation.

The action is over 28 years old, and is extremely complex. The breadth and the depth of the issues raised in this action are significant. The action covers about 250 years of history and involves a large tract of land. The dispute between SNGR and the Crown defendants concerns the extent of the lands set aside by the Crown, whether certain lands were properly alienated, and whether the Crown properly managed and accounted for SNGR's monies.

[23] Although the parties are moving towards trial, a trial date for the Six Nations litigation has not yet been scheduled: Six Nations Grand River Band of Indians v. The Attorney General of Canada, et al., 2024 ONSC 2884.

This Action

[24] The plaintiff pleads that he has suffered three heart attacks due to the ongoing stress that all of this has caused (between 2014-2017). He admits that the limitation period has expired but seeks a special circumstance to continue the claim on the basis of mental, physical and psychological hardship.

[25] The statement of claim was issued against Canada, Ontario and GEBC on September 27, 2023. Canada submitted a notice of intent to defend on October 18, 2023, but did not ultimately plead.

Canada and Ontario now bring motions to strike pursuant to Rules 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure.

Issues

[28] The following issues are before this Court on the plaintiff's motion to amend, the cross-motions to strike, and related responses to the motion to amend:

1. Has requisite notice been given to the defendant His Majesty the King in Right of Ontario under section 18 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7 Schedule 17 ("CLPA") ("the notice issue")?

2. Is the claim time-barred and should the plaintiff be granted an extension of time due to health reasons and special circumstances as he sets out in the statement of claim ("the limitations issue")?

3. Does the plaintiff have a cognizable cause of action against Canada and Ontario for the unresolved land claim in the Six Nations dispute and any ancillary issues connected to this ("the cause of action issue")?

4. Should the plaintiff be permitted to amend the statement of claim?

Law and Analysis

1. The Notice Issue

[29] On September 27, 2023, the plaintiff commenced this claim seeking damages for his financial losses from 2004 to 2014 and the physical and emotional distress caused by the financial losses. On September 28, 2023, the plaintiff served Ontario with the Statement of Claim (the "Claim"). The plaintiff did not provide Ontario with notice of his intention to bring the Claim at any time prior to commencing this proceeding. On February 2, 2024, the plaintiff served Ontario with two letters, advising of his intention to bring a claim in his personal capacity and on behalf of the corporations with respect to the losses caused "as a result of the SIX NATIONS unresolved land claim(s) – Court File No. 406-95." On March 25, 2024, the plaintiff served Ontario with a motion seeking, among other things, to amend the Claim to add the corporations as plaintiffs in the action. The plaintiff has not served Ontario with any other Statement of Claim relating to the allegations in this action.

[30] Ontario submits that the Claim is a nullity because the plaintiff failed to provide Ontario with the required notice before commencing this proceeding. Ontario moves for an order to strike this Claim under Rule 21.01(1)(a) because as a question of law, this proceeding is a nullity pursuant to section 18 of the CLPA for failure to provide notice.

[31] Rule 21.01(1)(a) provides that a party may move before a judge for a determination on a question of law raised by a pleading in an action where that determination may dispose of all or part of the action. The "plain and obvious" test is equally applicable to motions to strike under Rules 21.01(1)(a) and (b): Daniels Midtown Corp. v. Mariai, 2015 ONSC 6568 at para. 16.

[32] Proper notice is a necessary pre-condition to the right to sue Ontario. The CLPA has a mandatory notice requirement under section 18(1) which states:

No proceeding that includes a claim for damages may be brought against the Crown unless, at least 60 days before the commencement of the proceeding, the claimant serves on the Crown, in accordance with section 15, notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose.

[33] The CLPA applies to this proceeding because the plaintiff seeks damages from Ontario. A "proceeding" is defined in the CLPA under s. 1(1) to mean "an action or application for damages and any other civil proceeding in respect of damages to which the rules of court apply."

[34] A proceeding commenced against Ontario without providing the required statutory notice under the CLPA is rendered a nullity under section 18(6). The CLPA notice requirement cannot be waived or abridged.

[35] The Claim is a nullity because the plaintiff failed to serve Ontario with any notice of the Claim before it was issued on September 27, 2023, as is required pursuant to section 18(1) of the CLPA. The Plaintiff did not deliver any notice to Ontario of this proceeding before the Claim was served on Ontario on September 28, 2023.

[36] In his motion, the plaintiff seeks leave to amend the Claim to add the corporations as parties. He appears to believe that amending the Claim will remedy the nullification of the Claim because he served Ontario with notice of his intention to bring a claim on his own behalf and on behalf of the corporations on February 2, 2024 (after the Claim had been commenced). Under section 18(6) of the CLPA, failure to serve the required notice renders the proceeding a nullity from the time the proceeding is brought. The plaintiff failed to provide notice to Ontario before the proceeding was brought. Therefore, the Claim has been and always will be a nullity; amending the Claim will not change that and at law there is no extant Claim to amend. The Claim should therefore be dismissed without leave to amend.

2. The Limitations Issue

[37] On a Rule 21 motion to strike, the moving party must demonstrate that it is "plain and obvious" that the matter at issue fails to disclose a reasonable cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at para. 18. On a motion to strike out a pleading, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof. Moreover, the court should not, at an earlier stage of the proceedings, dispose of matters of law that were not fully settled in the jurisprudence: Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.).

[38] Section 4 of the Limitations Act, 2002 provides:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[39] Courts may strike a claim under Rule 21.01(1)(a), if, as a matter of law, the claim is plainly and obviously barred by s. 4 of the Limitations Act, 2002.

[40] Mr. Rowe submits, in effect, that there are special circumstances in his case. He has plead health challenges which are that he suffered three heart attacks between 2014 and 2017. He pleads that he continues to receive treatment to this day and that hospitalizations have occurred on several occasions. He asserts that the federal and provincial governments' prolonged actions or inactions led to health issues for him including three heart attacks between the periods of 2014-2017 after the controversial sale of the family property and two more heart attacks in 2017 which led to unstable angina coupled with a mental anxiety disorder, hindering his ability to take timely legal action.

[41] Mr. Rowe pleads that special circumstances should extend the limitation period. Special circumstances cannot extend a limitation period. In Joseph v. Paramount Canada's Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401 (C.A.) at paras 11-29 ("Joseph"), the Court of Appeal explained that insofar as the law in the Province of Ontario is concerned, there simply is now no doctrine of special circumstances under the Limitations Act, 2002. The plaintiff argues that his three heart attacks and inability to secure any one of 25 lawyers between 2011-2018 ought to extend the limitation period. While limitations motions under Rule 21 are rare, Joseph also stands for the principle that any special circumstances pleadings can be dealt with by way of a pleadings motion alone.

[42] In Kaynes v. BP p.l.c., 2021 ONCA 36 at paragraph 8, the Court of Appeal for Ontario set out the test for when actions can be struck out under Rule 21.01(1). Where a plaintiff's pleadings establish when the plaintiff discovered the claim, so that the issue is undisputed, then the courts have allowed Rule 21.01(1)(a) to be used as an efficient method of striking claims that have no chance of success.

[43] In this case, no defence has been filed. The pleadings are taken to be true for the purposes of the motion. Canada submits, and I agree, that the action expired in either 2009 or 2015, i.e. two years after the time periods set out above by the plaintiff in his own pleading. It must be "plain and obvious" that the action is time barred for Canada and Ontario to succeed. The plaintiff's dates are clear in the pleading.

[44] With respect to health concerns, Mr. Rowe has not plead that he was incapacitated. At most he has said that the 2014-2017 heart attacks "hindered his ability to take legal action." Mr. Rowe does not plead that the heart attack barred or permanently prevented him from commencing a claim. Moreover, he has also plead that between 2011-2018 he attempted to hire 25 lawyers to take his case.

[45] Based upon the facts as pleaded by the plaintiff, the claim was discovered in 2007 or 2013, but the proceeding was commenced in 2023 after the limitation period expired. Further, the sale of the plaintiff's previous property – which would have crystallized his alleged economic damages – closed on May 30, 2014.

[46] Contrary to the submission of the plaintiff, the limitation period cannot be "tolled" or made inapplicable based upon the alleged continuous breach of duty and damages related to the unresolved land claims of Six Nations of the Grand River. The plaintiff argues that his claim is not barred by s. 4 of the Limitations Act, 2002 because he continues to suffer harm and the Six Nations litigation itself is ongoing. Whether a plaintiff continues to suffer harm or whether the situation giving rise to the alleged harm continues is irrelevant to the commencement of the limitation period under s. 4 of the Limitations Act, 2002. Rather, the question is when did the plaintiff discover his loss.

[47] The plaintiff's action was required to be commenced by the second anniversary of the day on which the claim was discovered (Limitations Act, s. 4-5). The Court of Appeal for Ontario in Rumsam v. Pakes, 2019 ONCA 748 at para. 33 held that a "claim is discovered when the claimant first knew the injury occurred, that it was caused by an act or omission, that the act or omission was caused by the person against whom the claim is made, and that there was loss". The limitation period runs regardless of whether the plaintiff knows the exact extent or type of harm he has suffered, or the precise cause of his injury: Brown v. Wahl, 2015 ONCA 778 at para. 15.

[48] The Claim is plainly and obviously barred by s. 4 of the Limitations Act, 2002. The plaintiff commenced the Claim on September 27, 2023, over nine years after GEBC sold the Property and over 19 years after LICL first listed the Property for sale. The plaintiff admits that the limitation period has expired but asks the court for an exception "given the contentious and controversial nature of this case." The Court has no discretion to grant such an exception.

[49] Under s. 5 of the Limitations Act, 2002, an action is discovered on the earlier of the date when the plaintiff knew or ought to have known that an incident occurred that resulted in a loss (s. 5(1)(a)(i)), that the defendant did or failed to do something to cause that loss (s. 5(1)(a)(ii) and (iii)), and that, having regard to the nature of the injury, loss, or damage, a court proceeding is an appropriate means to seek a remedy (s. 5(1)(a)(iv)). The plaintiff need not know the exact extent or type of harm suffered or the precise cause of injury for a limitation period to begin running. The plaintiff admits that the limitation period has expired.

[50] As noted by Ontario in its submissions, it is clear from the facts pleaded in the Statement of Claim that latest the plaintiff would have discovered that he (or his corporations) had suffered a loss was when they were "evicted" from the property by the defendant, Grand Erie Business Centre Inc. ("GEBC") on October 23, 2012. Further, as Canada notes in its submissions, the financial harm to the plaintiff and his corporations crystallized on May 30, 2014, when GEBC allegedly sold the property at undervalue. Therefore, the alleged harm is not ongoing. The plaintiff did not commence his claim until 2023 – approximately 11 years after being "evicted" from the property and 9 years after the property was sold by GEBC.

[51] The plaintiff pleads that he had difficulty obtaining legal representation due to "the contentious and controversial nature of the case." However, inability to retain legal counsel is not a basis to extend the limitation period under the Limitations Act, 2002. The Limitations Act, 2002 is a comprehensive code regarding the application of limitation periods in Ontario: Joseph, at para. 15. Although courts had previously applied a common law "special circumstances" doctrine to extend limitation periods at their discretion, the Limitations Act, 2002 removed any such discretion: Joseph, at para. 13. As such, this Court has no discretion to extend the limitation period based on the plaintiff's circumstances. On the plaintiff's own admission, the Claim is thus plainly and obviously statute-barred by section 4 of the Limitations Act, 2002 and should be struck without leave to amend.

[52] In the event that I am mistaken in my conclusion regarding the notice or limitation period issues, I will also discuss the cause of action issue.

3. The Cause of Action Issue: Rule 21.01(1)(a) or (b)

No Cause of Action in Negligence

[53] The plaintiff's claim discloses no reasonable cause of action in negligence or breach of fiduciary duty. Neither Canada nor Ontario owe a duty of care to the plaintiff in these circumstances. Simply put, there is no recognized duty of care or cause of action to settle ongoing litigation or to confirm title or ownership when there is ongoing litigation.

[54] In order for the plaintiff to establish a novel cause of action he must meet various legal requirements. The court is to apply the "Anns/Cooper" test (Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, 2001 SCC 79) to determine whether the defendant owed a private law duty of care to the plaintiff.

[55] The first step in the Anns/Cooper test is to determine whether the court, in a previous ruling, established the existence of a sufficiently analogous duty of care in a similar case: Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163 at para. 52. Under the first stage of the Anns/Cooper test, the court asks whether a prima facie duty of care exists between the parties. The questions at this stage are: a) whether the harm alleged in the claim was a reasonably foreseeable consequence of the defendant's conduct; and b) whether there is "a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff": Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19 at para. 18-19.

[56] If there is sufficient proximity to base a prima facie duty of care, then one can proceed to the second stage of the Anns/Cooper test. This asks whether there are residual policy concerns outside the parties' relationship that should negate the creation of a prima facie duty of care (Cooper v. Hobart, 2001 SCC 79 at para. 52-55).

[57] The exercise of public law duties, for the most part, do not create a private law duty of care to specific individuals: Wu v. Vancouver (City), 2019 BCCA 23 at para. 58. In this case, Canada submits, and I agree, that the Government of Canada cannot be faulted for exercising its right to defend a lawsuit. Canada does not owe Mr. Rowe a duty to take his needs into account during litigation with a third party.

[58] The plaintiff's claim is not a recognized cause of action. There is no recognized duty of care. All of the contingencies, however remote, that happen when litigation is commenced are not reasonably foreseeable. Canada cannot foresee every imaginable contingency that may result when it is sued. Moreover, Canada has no proximate relationship with Mr. Rowe in defending the Six Nations litigation. He is not a party.

[59] The resolution of Indigenous land claims, such as those of Six Nations, engages a government's core policy function and decision-making. The plaintiff acknowledges that government policy decisions are generally exempt from tort liability. (See also R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 90; Nelson (City) v. Marchi, 2021 SCC 41 at para. 2). However, the plaintiff incorrectly characterizes resolving Indigenous land claims as "operational duties" or "operational decisions" of government and asserts that "operational negligence" or "operational failures" occurred regarding the Six Nations' claims. Resolving Indigenous land claims requires Canada to weigh public policy considerations, including social, economic, and political factors, to arrive at a course or principle of action. Such decision-making is immune from the plaintiff's claim of tort liability. In particular, resolution of land claims involves reconciliation of historical and present matters towards the renewal of the nation-to-nation relationship. The Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at para. 1, described the context surrounding Indigenous claims:

The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding.

[60] In this case, the assessment of the nature of the government's decision-making is unnecessary because the plaintiff has not fulfilled the first stage of the "Anns/Cooper" test and consideration of core policy immunity is part of the second stage (Cooper v. Hobart, 2001 SCC 79, at paras. 30, 37; Nelson (City) v. Marchi, 2021 SCC 41 at para. 33).

[61] The plaintiff seeks to create a novel "Tort of Failing to Resolve Ongoing Litigation" ([Plaintiff's] Responding to the Defendant / Book of Authorities, p. 4). For the first stage of the test, the plaintiff has not established that a prima facie duty of care exists between the parties for this novel tort. For example, the plaintiff has not established that the resolution of the ongoing Six Nations litigation is capable of being an operational decision of Canada. Simply put, Canada cannot control the decisions of the other parties in that action.

[62] There are also residual policy concerns. There could be indeterminate liability to an indeterminate class of people in the Haldimand County area should a new tort be created against Canada for an unresolved land claim in ongoing litigation brought and controlled by the Six Nations.

[63] Courts are reluctant to strike novel claims on a preliminary motion to strike (Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19). But a claim will be struck without leave to amend where it contains a radical defect that cannot be cured by any amendment. This is one of the clear cases where leave to amend should be denied because the allegations in the claim cannot support the necessary elements of negligence or breach of fiduciary duty asserted against Ontario and Canada. The plaintiff alleges that Ontario and Canada were negligent towards him and the corporations by failing to "defend" title to the Property or to provide him or the corporations with "due process" in relation to the Six Nations litigation. To make out a claim in negligence against either Ontario or Canada, an employee, agent or officer of Ontario or Canada must have owed the plaintiff and/or his corporations a private law duty of care, breached the standard of care, and caused the plaintiff damages. In the present case, there is no private law duty of care.

[64] There are two circumstances in which public authorities can be found to owe a prima facie duty of care: where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme, and where the duty of care is alleged to arise from interactions between the claimant and the government and is not negated by statute: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paras. 43-46.

[65] Neither apply here. Ontario and Canada were not in a special or close and direct relationship with the plaintiff or the corporations such that it owed them a duty to "defend" their title or otherwise protect their interests in responding to the Six Nations litigation. There was no proximity between Ontario and the plaintiff and/or the corporations in the circumstances because no duty of care arises from statute and there were no specific interactions between the plaintiff or the corporations and any Ontario or Canada office, employee or agent sufficient to ground a duty of care.

[66] In this case, both Canada and Ontario submit, and I agree, that creating a new duty of care to settle ongoing litigation would create a potentially dangerous precedent. If the plaintiff is successful in creating a new tort for failing to settle and resolve a land claim via litigation, it will create indeterminate liability. Moreover, such a novel tort will have a significant effect on how parties litigate and/or defend actions as they will have to fear parallel lawsuits: Six Nations of the Grand River Indians v. the Attorney General of Canada, 2024 ONSC 1760.

[67] The plaintiff's claim regarding a statutory obligation arising from Ontario's land title legislation also has no merit. The Land Titles Act does not impose any duty on any officer, employee or agent of Ontario to "defend" any person's title beyond what is required for administering the Act and the land titles system. It is well-established that carrying out statutory functions does not create a duty of care.

[68] The plaintiff pleads that LICL held registered title to the Property. Assuming the facts pleaded are true, LICL's title was thus guaranteed under the Land Titles Act, subject to any registered encumbrances and enumerated statutory exceptions. No officer, employee or agent of Ontario owed the plaintiff or the corporations any further guarantee or to otherwise assist them in selling the Property. The plaintiff has identified no specific interactions between any of Ontario's officers, employees or agents that would give rise to a duty of care. The plaintiff does not plead that any officer, employee or agent of Ontario gave him or the corporations any undertaking or assurance that they would protect their private economic interests in relation to litigating the Six Nations' claim or provide him with compensation. Rather, the plaintiff pleads that the provincial government "did not confirm" his property ownership after writing to them and that provincial representatives did not provide "further assistance or reply" to him. These interactions cannot create the alleged duty of care.

[69] Ontario submits, and I agree, that although the plaintiff's allegations are limited to his specific experiences in relation to the Six Nations litigation, finding that an officer, employee or agent of Ontario owes the plaintiff or the corporations a duty of care based on the facts pleaded could open the door to a claim in negligence by any third party to litigation where Ontario is a party and the third party alleged that their private economic interests could be adversely affected. Such a duty of care should be negated because of the following stage two policy considerations. First, recognizing that an officer, employee or agent of Ontario has a private law duty of care to individuals whose private economic interests could be affected by the conduct or outcome of litigation in which Ontario is a party would conflict with the Attorney General's duty to act in the public interest in conducting such litigation. Second, indeterminate liability militates against imposing such a duty of care on an officer, employee or agent of Ontario. Ontario exercises jurisdiction over many different persons, businesses, organizations and properties, and could be involved in any number of court cases where the outcome or the existence of the litigation itself could affect the private economic interests of those who are not party to the litigation. Possible claimants are thus theoretically endless. Recognizing a private law duty of care in such circumstances could create virtually unlimited exposure of Ontario to private claims. Further, the applicable standard of care is indeterminate. What is required to protect or "defend" a third party's interests in litigation in which Ontario is a party is incapable of having any predictive or objective content – it would be different in every case and for each third party. Moreover, recognizing a private law duty of care on Ontario to protect the interests of all persons who could be affected by litigation in which Ontario is a party creates an impossible conundrum. If Ontario acts to protect one set of interests, it means that other competing interests may not be protected; however, under the posited duty of care, all interests are equally entitled to protection. Ontario could never escape liability in these circumstances. The plaintiff's proposal is simply not viable in theory or in practice.

No Fiduciary Duty Owed

[70] The plaintiff alleges that Ontario owed him and the corporations a fiduciary duty to "defend" LICL's ownership of the Property. It is plain and obvious that Ontario owes neither the plaintiff nor the corporations any such fiduciary duty. For an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at para. 36. None of these apply here.

[71] The Supreme Court of Canada in Elder Advocates explained that, given the nature of governmental responsibilities and functions, governments will rarely owe fiduciary duties. As Binnie J stated in Wewaykum Indian Band v. Canada, 2002 SCC 79 at para. 96: "The Crown can be no ordinary fiduciary; it wears many hats and represents many interests, some of which cannot help but be conflicting". The requirement that a fiduciary act in the beneficiary's best interests is inherently at odds with the nature of the Crown's public law duties, which is to mediate between many, often equally deserving interests. A fiduciary duty must be owed to a specific person or class of persons; however, the Crown must generally act in the interests of the public as a whole. It will thus be difficult for a claimant to establish the Crown's deliberate forsaking of all other interests in favour of the alleged beneficiary. Additionally, the alleged fiduciary's degree of control over the beneficiary's interests must be equivalent or analogous to direct administration of that interest. The ordinary exercise of statutory powers does not suffice, otherwise fiduciary obligations would arise from most day-to-day governmental functions, making it impossible for the Crown to act for the public good: Elder Advocates, at para. 53.

[72] Ontario submits, and I agree, that it does not owe the plaintiff or the corporations a fiduciary duty to "defend" title to the Property. The plaintiff has identified no undertaking, express or implied, by Ontario to act in his or the corporations' best interests in relation to the Property. If such an undertaking is alleged to arise from statute, the statutory language must clearly support it. Contrary to the plaintiff's position, there is nothing in the Land Titles Act that can reasonably be found to ground an undertaking by Ontario to act in the plaintiff's or the corporations' best interests by providing potential purchasers additional assurances as to the ownership of the Property beyond the registration regime established by the Act.

[73] The purpose of the land title system established by the Land Titles Act is "to provide the public with security of title and facility of transfer," which is a public good. Additionally, Ontario has no control over the plaintiff or the corporations' interests in the Property equivalent or analogous to direct administration of those interests. Ontario had no control over decisions to sell the Property or what the selling price would be. Further, Ontario had no control over whether potential purchasers of the Property believed that Lumber Island's ownership of the Property was uncertain or whether they were willing to buy the Property for an amount that the plaintiff believed reflected its fair market value. Ontario does not owe the plaintiff or the corporations a fiduciary duty to offer them "due process" in litigating the Six Nations' claim. In any litigation involving Ontario, there are multiple competing interests that Ontario must weigh. Owing a fiduciary duty to protect a third party's interests over and above all other interests would undermine Ontario's ability to respond to litigation in the public interest. Ontario made no such undertaking to protect the plaintiff or the corporations' interests in the context of the Six Nations litigation or otherwise.

[74] Lastly, the relationship between Ontario and the plaintiff and the corporations in relation to the Six Nations litigation is simply that between a party to litigation (Ontario) and third parties who say their interests are affected by the litigation (the plaintiff and the corporations). This relationship is not analogous to any of the traditional fiduciary relationships noted in Elder Advocates.

4. Amendment of the Plaintiff's Claim

[75] Considering the above, the Claim has no reasonable prospect of success. As such, the plaintiff's motion to amend the Claim should be dismissed together with the Claim as a whole. There is no absolute right to amend pleadings; the court has residual discretion to deny amendments where appropriate. No amendment should be allowed which, if originally pleaded, would have been struck on a Rule 21 motion. It is thus appropriate for the court to consider the tenability of proposed amendments when deciding whether to grant a motion for leave to amend a pleading.

[76] I will exercise my discretion to deny the plaintiff's proposed amendments to the Claim, including adding the corporations as plaintiffs, because the amendments do not remedy the fundamental defects in the claim. As explained above, the Claim is a nullity regarding Ontario due to lack of notice and the plaintiff's proposed amendments do not fix this. Further, neither Ontario nor Canada does owe the corporations a duty of care or fiduciary duty, and thus, their claims are not tenable at law. Lastly, the corporations' claim is plainly and obviously statute-barred by the Limitations Act, 2002. The Proposed Amended Statement of Claim also admits that the corporations' claims are statute-barred. As noted above, the Court does not have discretion to extend the limitation period established by the Limitations Act, 2002.

[77] Even if the Claim were not a nullity as against Ontario, it is plain and obvious that the Claim pleads no tenable cause of action against either Canada or Ontario. The Claim should be struck without leave to amend under Rules 21.01(1)(b) and 21.01(3)(d) on the grounds that the Claim discloses no reasonable cause of action and lacks legal merit.

[78] Under Rule 26.01, where a party moves to amend their pleading, a Court "shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment". In Talbot v. Nourse, 2016 ONSC 1399 at para. 43, the expiry of a limitation period was held to be a sufficient basis to refuse an amendment.

[79] The plaintiff's motion to amend the Claim should thus be dismissed because allowing the amendments would result in prejudice to Canada and to Ontario. Additionally, s. 21 of the Limitations Act, 2002 precludes the addition of parties to an existing action after the expiry of the limitation period.

Conclusion

[80] The plaintiff's claim will be struck on the basis that (i) this action is a nullity as against Ontario because the plaintiff did not provide notice of his claim as required by s. 18 of the Crown Liability and Proceedings Act, 2019; and (ii) the claim discloses no reasonable cause of action in negligence or breach of fiduciary duty as against Ontario or Canada.

[81] The claim is plainly and obviously barred by s. 4 of the Limitations Act, 2002.

[82] The plaintiff's motion to amend the claim will be dismissed for the reasons set out above.

Costs

[83] Canada makes no claim for costs. Ontario is limiting its requests for costs to $3,000, despite incurring substantially more costs preparing for these motions.

[84] The plaintiff shall pay costs to Ontario fixed at $3,000 all-inclusive.

Order

[85] The Court Orders that:

1. The motions to strike of Ontario and Canada are granted and the within action as against Ontario and Canada is dismissed.

2. The plaintiff's motion to amend the Statement of Claim and for leave to represent the proposed corporate plaintiffs is dismissed.

3. The plaintiff shall pay the costs of Ontario in the amount of $3,000 all-inclusive.

M. Gibson J.

Date: September 11, 2025