Court File and Parties

Citation: 2025 ONSC 5540

Court File No.: CV-24-00721782-00ES

Date: September 30, 2025

Ontario Superior Court of Justice

Re: Gimaa (Chief) Craig Nootchtai on his own behalf, and on behalf of Atikameksheng Anishnawbek First Nation, and Ogimaakwe (Chief) Karen Bell and Councillor Chester Langille on their own behalf, and on behalf of Garden River First Nation

Applicants

-and-

Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, David Nahwegahbow, Dianne Corbiere, Roger Jones, Mark Stevenson, Donald Worme, and Connie Addario, Mike Restoule, Peter Recollet, Duke Peltier, Angus Toulouse, Patsy Corbiere, and Wilma-Lee Johnson

Respondents

Before: FL Myers J

Counsel:

• H. Michael Rosenberg and Alana Robert, counsel for the applicants
• Brian Gover, Dan Goudge, and Geri Angelova, counsel for the respondent lawyers Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, David Nahwegahbow, Dianne Corbiere, Roger Jones, Mark Stevenson, Donald Worme, and Connie Addario
• Peter Wardle, Evan Rankin, and Catherine Gleason-Mercier, counsel for the respondents Mike Restoule, Peter Recollet, Duke Peltier, Angus Toulouse, Patsy Corbiere, and Wilma-Lee Johnson

Heard: September 29, 2025

Endorsement

This Motion

[1] The applicants raise preliminary objections to the admissibility of two pieces of evidence in this application proceeding.

The Application

[2] In this application, the respondent law firm and lawyers seek recognition of the contingent portion of their fees claimed under a Partial Contingency Agreement dated June 17, 2011.

[3] In their written legal brief, the lawyers submit that to assess the propriety of the contingent fees claimed, the court must consider and weigh numerous factors including: the time expended by the lawyers, the legal complexity of the matter, the results achieved, and the risk assumed by the lawyers.

[4] If the court rules against the validity of the contingency fee agreement, the lawyers also claim fees for services rendered under the doctrine of quantum meruit. The same listed factors are relevant to that analysis (in addition to several other factors listed by the lawyers from the case law).

The Expert Report

[5] The lawyers have adduced expert evidence of the Honourable Michael L. Phelan to assist the court. In a written report dated June 10, 2025, Mr. Phelan provides his expert opinion on the complexity of the case, the risks involved, and the outcome. He bases his opinions on his review of some of the evidence that is before the court.

[6] The applicants object to the admissibility of Mr. Phelan's expert report.

[7] Mr. Phelan is a former Justice of the Federal Court of Canada. In his curriculum vitae, Mr. Phelan describes himself this way:

Mr. Phelan's experience and expertise is in public law and regulatory/commercial affairs with particular experience in competition law, intellectual property, indigenous disputes, governance and claim [sic], class actions, all modes of transportation, environmental disputes, labor/human rights, access to information and privacy, discrimination, workplace disputes, wrongful dismissal and trade remedies.

[8] Prior to being appointed as a judge, Mr. Phelan was a highly experienced litigation lawyer. He was a Senior Partner and Managing Partner at Ogilvy Renault from 1999 to 2003. From 1985 to 1999, he was a partner at Osler, Hoskin & Harcourt LLP in Ottawa.

[9] At an earlier hearing, I disclosed to the parties that I was a colleague of Mr. Phelan at Osler, Hoskin & Harcourt LLP from 1986 until he left in 1999. We were partners from and after 1992. He worked in the firm's office in Ottawa. I worked in Toronto. While I had met Mr. Phelan, I do not recall ever working on a file with him. I saw him at firm social events or when one of us visited the other's office. I told counsel that I was not concerned that our acquaintance raised any issues that would lead me to recuse myself for bias. I invited anyone with a different view to bring it forward. No one raised a concern before or at the hearing yesterday.

Expert Evidence

[10] Generally speaking, witnesses are not allowed to provide their opinions to the court. Witnesses are supposed to testify to their observations and facts. The law recognizes an exception however for expert opinions. As Mr. Gover submitted yesterday, expert opinion can be received on technical matters and on matters where a person needs special knowledge to properly understand and form a correct judgment on the evidence.

[11] Mr. Gover asks the court to recognize Mr. Phelan as an expert in two areas:

a. Factual problems in presenting claims of this type; and

b. Difficulties acting for First Nations clients in a 200-year-old treaty claim.

[12] Mr. Gover relies on the Supreme Court of Canada's seminal decision in R. v. Mohan to support the admissibility of Mr. Phelan's report as relevant, necessary, and properly expert in nature.

[13] The law has evolved since Mohan. The leading case now on the admissibility of expert evidence is White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. While the tests for relevancy, necessity, and expertise are largely the same, the framework for the analysis of admissibility of expert evidence has been altered significantly.

[14] In R. v. Abbey, 2017 ONCA 640, Laskin JA explained:

[53] First, recent case law, including White Burgess itself, has emphasized the importance of the trial judge's gatekeeper role. No longer should expert evidence be routinely admitted with only its weight to be determined by the trier of fact. As Cromwell J. said in White Burgess, at para. 20, "[t]he unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge's gatekeeping role". Cromwell J.'s observation echoes the point Binnie J. made in the earlier Supreme Court of Canada decision R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28: "The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility."

[15] Laskin JA summarized the tests to assess the admissibility of expert evidence in this way:

[48] The test may be summarized as follows:

Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule;

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,

and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[Notes omitted]

[16] The applicants challenge the admissibility of Mr. Phelan's evidence for not meeting two threshold requirements. The applicants submit that the topics on which Mr. Phelan opines are not ones on which expert evidence is necessary to assist the court. They also submit that Mr. Phelan does not have expertise in the topics on which he opines.

[17] There is no issue that Mr. Phelan's report is relevant in that he provides opinions on issues that are before the court for consideration.

Necessity

[18] In Mohan, Sopinka J. expressed the necessity requirement in this way:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provides information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". More recently, in R. v. Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. The judgment stressed that this was an area that is not understood by the average person.

[19] In my view, there is no necessity for expert evidence on either of the issues identified by Mr. Gover. There are several thousand pages of evidence before me specifically on these issues. The parties have given evidence directly on the complexity of the case, the risks involved, and the results achieved. The lawyers for the parties have summarized the evidence and provided their analyses on both sides of the issues in cogent, deep, and comprehensive submissions.

[20] There is a substantial body of law concerning the analysis of contingent fees. In the case law, courts routinely assess the relevant factors including complexity, risk, and result. The case law is sufficiently clear that the parties agree on the articulation of the legal issues. They differ principally on the analysis of the evidence relevant to each issue.

[21] The lawyers have presented evidence to show the case was exceptionally complicated. The applicants say the evidence shows that the issues were not very complex. The lawyers submit that they took exceptional risk in prosecuting the case under the Partial Contingency Agreement. The applicants say the lawyers took little risk. The lawyers say that the result that they achieved is exceptionally good. The applicants say this is not so.

[22] While the application before me is unusual in many ways, the parties differ on issues of quantity rather than quality. As in every case of this type, the complexity, risk, and result are the normal issues to be analyzed on the particular evidence before the court.

[23] The respondents were not able to point to any case in which a retired judge has provided opinion evidence on inferences to be drawn from evidence based on judicial experience and expertise. I can think of many risks of opening that door. Mr. Phelan has provided his opinions by analyzing evidence to draw inferences. That is what judges do in every case.

[24] Nothing in Mr. Phelan's opinion is outside the experience and knowledge of a judge of this court. Nor are ordinary judges unlikely to form a correct judgment about the issues if unassisted by persons with special knowledge.

[25] I find that the threshold necessity for an expert opinion is lacking in this case. Mr. Phelan's report is therefore inadmissible.

Expertise as a Lawyer

[26] While the holding on necessity is enough to resolve the issue before me, I will consider Mr. Phelan's expertise as argued by Mr. Rosenberg in case another court disagrees with my first conclusion.

[27] This is not a case where a witness has expertise in a technical issue. There is no science or engineering skill or knowledge needed, for example, to understand how a complex machine works. Mr. Phelan brings a career as a highly successful general commercial litigator and a respected judge to provide his analysis of the complexity of the case, the risks involved, and the result. His education, experience, and expertise on those matters are no different in kind than any other senior commercial litigator or judge. He applied no technical skill or learning to the evidence different than any judge who is called on to do so.

[28] Mr. Phelan has no special expertise in the topics on which he opines. He developed and honed exceptional legal skills throughout his long legal practice. But as a lawyer Mr. Phelan had very little experience dealing with First Nations. He had no experience at all "presenting claims of this type" or "acting for First Nations in a 200-year-old treaty claim."

[29] All senior counsel before the court in this matter share similarly storied backgrounds. None of the lawyers for the parties had any problem assessing the facts or applying the law in their factums. The respondent lawyers are far more experienced and expert in acting for First Nations in complex cases and I have their evidence and analysis before me.

Expertise as a Judge

[30] As a judge, Mr. Phelan describes in his cv his expertise in resolving cases put before him in several fields that are commensurate with the jurisdiction of the Federal Court of Canada. Mr. Phelan acknowledges that he assessed costs in complex litigation involving First Nations and he applied the relevant factors without expert evidence. He did so in his first case before he developed his expertise as much as in his later cases.

[31] None of Mr. Phelan's experience as a judge provides him with any expertise or experience in "presenting claims of this type" or "acting for First Nations in a 200-year-old treaty claim."

[32] Judges are passive players who analyze the material put before them by counsel. Judges see the result of counsel's role. They do not participate in the presentation of the case.

[33] While judges certainly can recognize complex issues presented to them by counsel, they do not see the difficulties experienced by counsel preparing to present their cases or dealing with the clients and the evidence collection challenges posed in a particular case.

[34] I therefore find that Mr. Phelan lacks qualifications as an expert on the topics for which his opinions are proffered.

[35] Mr. Phelan's report is therefore inadmissible in this proceeding.

The Third Nahwegahbow Affidavit

[36] The applicants also ask me to rule inadmissible the third affidavit delivered by Mr. Nahwegahbow on the bases that it is not proper reply evidence and it is scandalous.

[37] The affidavit does refer to some facts that arose after the date of the swearing of Mr. Nahwegahbow's second affidavit. So it cannot be said to be completely case splitting even if the underlying topic is one that could have been raised previously.

[38] It seems to me that I should reserve on this issue until after I understand better the relevancy of the evidence contained in the third affidavit. Mr. Rosenberg submits that this may all become moot in the event that the evidence in the affidavit is ultimately not important to the outcome. It strikes me as preferable to wait and see the use made of it, if any.

[39] I reserve to the end of the application the issue of whether the third affidavit of Mr. Nahwegahbow is admissible. It may be referred to in submissions on the basis that I may later have to put such references aside.

FL Myers J

Date: September 30, 2025