CITATION: Missanabie Cree First Nation v. Attorney General of Canada, 2026 ONSC 4763
COURT FILE NO.: CV-23-00029205-00-CP
DATE: 2026/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MISSANABIE CREE FIRST NATION
Plaintiff
– and –
HIS MAJESTY THE KING IN RIGHT OF CANADA, as represented by the ATTORNEY GENERAL OF CANADA, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, as represented by the ATTORNEY GENERAL OF ONTARIO
Defendants
Joel Rochon, Golnaz Nayerahmadi, Ryan Lake, and Anjalika Rogers for the Plaintiff
Glynnis Evans and Rhiannon McNamara, for the Defendant, His Majesty the King in Right of Canada
David Tortell and Theresa-Anne Martin, for the Defendant, His Majesty the King in Right of Ontario
HEARD: January 26, 27, & 28, 2026 (oral submissions); February 5, 12, & 19, 2026 and May 22 & 25, 2026 (written submissions)
REASONS FOR DECISION – MOTION FOR CERTIFICATION
Cullin j.
Overview
[1] This is a proposed class action brought by the Missanabie Cree First Nation (“the plaintiff”) on their own behalf and on behalf of all First Nations signatories and adherents to James Bay Treaty #9 ("Treaty 9"). They claim declaratory relief and damages due to the defendants’ alleged failures to fulfill their obligations in the negotiation and implementation of Treaty 9.
[2] The defendants in this action are His Majesty the King in Right of Canada, as represented by the Attorney General of Canada (“Canada”) and His Majesty the King in Right of Ontario, as represented by the Attorney General of Ontario (“Ontario”). Collectively, they will be referred to as “the defendants”.
[3] The motion before me seeks to certify the plaintiff’s proposed class action. The defendants oppose the motion, arguing that the plaintiff has not established that the conditions for certification in s.5 of the Class Proceedings Act, 1992, S.O. 1992, c.6 (“CPA”) are satisfied by the proposed proceeding. Specifically, the defendants argue that a class action is not the preferable procedure for the resolution of the issues to be litigated.
[4] I have not been asked on this motion to determine how the action will proceed if not by class action.
[5] For the reasons given below, I find that a class action is not the preferable procedure for the resolution of the issues to be litigated in this proceeding. The plaintiff’s motion for certification is therefore denied.
Factual Background
[6] For the purpose of the motion, the parties are not in disagreement about the factual background underpinning the claim. Given this, and the narrow issue to be determined in this motion, my summary of the factual background will be brief.
[7] Treaty 9 was negotiated in 1905 between the defendants and the Cree and Ojibwe peoples in the James Bay region. Additional First Nations became parties to Treaty 9 through adhesions in 1906, 1929 and 1930.
[8] Presently, thirty-seven First Nations are parties to Treaty 9 (the “Treaty 9 First Nations”). As of February 2025, the Treaty 9 First Nations represented 44,214 members.
[9] Treaty 9 is a significant treaty document. The Treaty 9 territory is approximately 90,000 square miles in area and covers almost two-thirds of Ontario's landmass. It includes the west part of the James Bay and Hudson's Bay watershed.
[10] Treaty 9 provides for the surrender to Canada of Aboriginal title on the lands covered by the treaty. That surrender was negotiated in consideration of promises, outlined in the articles of the treaty, made to the Treaty 9 First Nations. Those promises included: entitlements to reserve lands; hunting, trapping and fishing rights; one-time payments and annuities; and other specified rights and benefits.
[11] In this action, the plaintiff alleges that the defendants failed to fulfill their promises and, in doing so, breached their obligations under Treaty 9. They further allege that the defendants breached their fiduciary obligations to the Treaty 9 First Nations, and that they failed to act in accordance with the Honour of the Crown.
The Proceedings
Proposed class action
[12] This action was commenced by the plaintiff on May 8, 2023. The initial plaintiffs were the Missanabie Cree First Nation on behalf of the Treaty 9 First Nations, and Chief Jason Gauthier (of the Missanabie Cree First Nation) on his own behalf, on behalf of all members of the Missanabie Cree First Nation, and on behalf of all members of the Treaty 9 First Nations. The action was commenced against Canada only.
[13] The statement of claim was amended on July 29, 2024, October 31, 2024, and July 31, 2025. The October 2024 amendment named only Missanabie Cree First Nation as a plaintiff and added Ontario as a defendant. The proposed class members in the current iteration of the statement of claim are the thirty-seven Treaty 9 First Nations.
[14] Broadly, the plaintiff’s claim seeks to address the following issues:
a. Whether there was an express or implied term in Treaty 9 to increase the annuity provided therein, and whether the defendants were obligated to do so;
b. Whether there was an express or implied term in Treaty 9 to provide economic support for agricultural operations, and to provide an annual allotment of ammunition and twine, and whether the defendants were obligated to do so; and,
c. Whether the federal and provincial legislation, An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario respecting Indian Reserve Lands, that purports to provide Ontario a one-half interest in mineral rights on reserve lands, is contrary to Treaty 9.
[15] The class action proposed by the plaintiff does not contemplate the litigation of any individual issues.
[16] Following a case conference on July 3, 2024, the plaintiff served notice of the action on the Treaty 9 First Nations. Based on correspondence received by the Court and the parties following that notice, it is suggested by Canada that, at minimum, there are ten Treaty 9 First Nations involved in a potentially overlapping proceeding (Attawapiskat et al v. Ontario and Canada, Court File No. CV-23-00701700-0000) that may elect to opt out of the proposed class action if given an opportunity to do so. At least one other Treaty 9 First Nation, the Moose Cree First Nation, has expressed their opposition to the proposed class action.
[17] No evidence was filed on behalf of any of the parties who provided correspondence, and the letters themselves are not evidence. For the purpose of a thorough record, however, I will be marking the correspondence received as lettered exhibits on this motion in my dispositive orders.
[18] The plaintiff’s motion materials do not shed light on the issue of potential opt-outs by proposed class members. They include an Amended Litigation Plan, dated July 31, 2025, which indicates that counsel has, “secured support from a number of Treaty 9 First Nations and engagement with Treaty 9 First Nation governments is ongoing”.
The motion
[19] The motion before the Court seeks to certify this action pursuant to the CPA. While the original notice of motion sought an order in the alternative authorizing the plaintiff to bring the proceeding as a representative action pursuant to Rule 12.08 of the Rules of Civil Procedure (“the Rules”) that request was omitted from a subsequent amended Notice of Motion.
[20] Given this framing of the motion, I am not being asked at this time to determine whether this action will be authorized to proceed as a representative action. However, I will be required to engage with the viability of a representative action as an alternative process when considering whether a class action is the preferable procedure.
The Test for Certification – General Principles and Application to the Motion
The test for certification
[21] To successfully have this action certified, the plaintiff must satisfy the requirements outlined in section 5(1) of the CPA. Pursuant to s.5(1), the plaintiff must demonstrate that:
a. The pleadings disclose a cause of action;
b. There is an identifiable class of two or more persons that would be represented by the representative plaintiff;
c. The claims of the class members raise common issues;
d. A class proceeding would be the preferable procedure for the resolution of the common issues; and,
e. There is a representative plaintiff who:
i. would fairly and adequately represent the interests of the class;
ii. has produced a workable litigation plan; and,
iii. does not have, on the common issues, an interest in conflict with those of the other class members.
[22] The purpose of the class proceedings regime is threefold: (a) access to justice for plaintiffs; (b) behaviour modification by defendants; and, (c) judicial economy: Banman v. Ontario, 2023 ONSC 6187, at para. 315.
Application to the motion
[23] The sole issue that the parties ask the Court to determine on this motion is whether a class action is the preferable procedure for the resolution of the common issues. The plaintiff argues that a class action is the preferable procedure. The defendants argue that it is not and submit that a representative action is not only superior to a class action, but the only available procedure given the nature of the common issues raised.
[24] Otherwise, for the purpose of the certification motion, without compromising their available defences, the defendants concede that the pleadings disclose a cause of action, an identifiable class, and common issues.
[25] As it pertains to the question of the representative plaintiff, Ontario does not object to the proposal that Missanabie Cree First Nation act as the representative plaintiff. Canada submits that the designation of a representative plaintiff is an issue that the Treaty 9 First Nations should determine amongst themselves.
[26] I would also note that, while Ontario concedes that the pleadings disclose common issues, it objects to one of the proposed common issues, namely, whether there was an express or implied term in Treaty 9 to provide economic support for agricultural operations, and to provide an annual allotment of ammunition and twine. Given my ultimate finding on the issue of preferability, I find that it is not necessary for me to address this alternative argument by Ontario in this decision.
Preferability in the Class Action Context – The Law
[27] The issue of preferability is addressed in ss.5(1)(d) and 5(1.1) of the CPA. As noted above, s.5(1)(d) provides that, on a certification motion, the plaintiff must demonstrate that, “a class proceeding would be the preferable procedure for the resolution of the common issues”. Section 5(1.1) further defines preferability as follows:
…a class proceeding is the preferable procedure for the resolution of common issues under clause 1(d) only if, at minimum,
(a) it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and,
(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members.
[28] The preferability analysis is conducted through the lens of the three principal objectives of class actions, namely: access to justice, behaviour modification, and judicial economy. While the court must be mindful of these objectives, the plaintiff is not required to establish that they will actually be achieved by the proposed class action as a precondition to certification: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 SCR 158, at para. 27; AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 SCR 949, at paras. 19, 22-23.
[29] In conducting the preferability analysis, the term “preferability” is to be construed broadly, with a view to answering two questions: whether a class action would be a “fair, efficient, and manageable” method for advancing or determining the claim; and whether a class action is the preferable procedure to the other reasonably available means of resolving the plaintiff’s claims. While a focal issue in the analysis is the resolution of the “common issues” raised in the action, the common issues must be considered in the context of the action as a whole: Hollick, at paras. 28-30.
[30] In Banman, at paras. 317-322, Perell J. identified that the analysis to be conducted having regard to s.5(1.1) of the CPA is a comparative analysis which engages the following questions:
a. whether the design of the class action is manageable as a class action;
b. whether there are reasonable alternatives to a class action;
c. whether the common issues predominate over the individual issues; and
d. whether the proposed class action is superior to (better than) the alternatives.
Preferability Analysis
Is the design of the class action manageable as a class action
[31] This is a treaty interpretation action, in which I am being asked to interpret the terms and determine the defendants’ obligations under Treaty 9.
[32] The defendants argue, and I concur, that the design of the proposed class action is not manageable in the context of treaty interpretation litigation.
[33] Aboriginal rights derived by treaty are collective rights that belong to First Nations Bands as a whole, and not to their individual members: R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 SCR 393, at para. 36; Gill v. Canada, 2005 FC 192, at para. 12. The fact that a collective right, such as the payment of an annuity, may be exercised by individual members does not change the nature of the underlying right: Chief Derek Nepinak and Chief Bonny Lynn Acoose v. Canada, 2025 FC 925, at para. 50.
[34] In this case, it is undisputed that the substance of the plaintiff’s claim involves collective rights derived under Treaty 9. At paragraph 9 of the Amended Amended Fresh as Amended Statement of Claim, issued July 31, 2025, the plaintiff pleads:
While Annuity Payments are paid to individuals, the promise to provide an annual payment to every Indian person was a promise made to the "bands" as the rights-bearing collectives recognized under Treaty 9. Annuity Payments are a collective right, and the holder of such rights is the First Nation collective which is the legal successor in interest to the Treaty Band.
[35] Both Canada and Ontario admit that the Treaty 9 rights at issue in this litigation are “collective rights”.
[36] The availability of class action procedures to determine collective rights arising by treaty, particularly claims involving annuity payments, has been debated by courts across Canada. The consensus has been that class action procedures are not available when collective rights are at issue. The “opt-out” process is inconsistent with the nature of the claims being adjudicated - when determining collective rights-based claims, it is simply not possible for individual claims to be determined without impacting the claims of the collective. The substantive rights associated with opting out, identified in Johnson v. Ontario, 2021 ONCA 650, at paras. 15-16, cannot be delivered in the context of a class action when collective rights are at issue.
[37] In Gill at para. 13, the Federal Court made the following observation:
Given the collective nature of aboriginal rights and claims under treaty, they are difficult to reconcile with class action procedure. By way of example, Crown counsel point to Rule 299.23, which allows an individual to opt out of a class proceeding. This observation is pertinent because a declaration as to aboriginal rights and treaty benefits is not a remedy of an individual nature, accruing to only those individuals who participate in the litigation, but a collective right, not amenable to opting out, the result binding each and every member of the entity, here the descendants of a specific group of people.
[38] Likewise, in Horseman v. Canada, 2015 FC 1149, at para. 82, aff’d 2016 FCA 238, the Federal Court observed the following in obiter:
The opt out provision in class actions appropriately recognizes that an individual with a cause of action may choose to pursue his or her own recourse and should not automatically be bound by a court’s decision in a class action. For that reason, a decision in a class action is not binding on an individual claimant who opts out, or on the defendant in respect of that individual’s claim. This reality brings into sharp focus why class actions are not generally appropriate when the fundamental issue to be determined is the proper interpretation of a treaty provision. The Court cannot accept that different courts or judges may reach differing interpretations of a treaty (a result that is possible in a class action proceeding that is followed by other representative or individual actions). This alone is reason to find that where, as here, the claim rests upon the interpretation of a treaty, the claim will be better advanced by way of representative action, where opting out is not an option.
[39] More recently, in Nepinak at para. 73 the Federal Court again weighed in on the issue:
By focusing and relying on how members of First Nations individually exercise their collective rights in Restoule, the Plaintiffs overlook the fundamental legal requirement that interpretation of such collective rights must yield one single, binding resolution applicable to the entire signatory group, not fragmented outcomes for different subgroups. This requirement is precisely why courts have recognized that treaty interpretation disputes are incompatible with class actions.
[40] Such observations are not limited to the Federal Court. In Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193, at paras. 106-107, Smith J.A. noted:
Even if it could be assumed that the Aboriginal collectives who would form the proposed class are all legal entities, it does not follow that the rights asserted in this action are the rights of those collectives. The rights claimed in this action are communal rights held collectively by all members of the entity who are connected to the historical rights holders. A Band as a legal entity is not identical with its members and it is the members as a collective, rather than the Band as a distinct legal entity, who hold the rights asserted in this action.
The Class Proceedings Act provides a procedure for the advancement of multiple individual claims arising from a common wrong. It is not designed to advance multiple collective rights claims for multiple collective entities. Claims of this nature (for collective rights) are generally made through a representative action, where a member (or members) of the Aboriginal entity asserting the rights, sues in a representative capacity on behalf of himself or herself and all of the other members of the Aboriginal entity.
[41] In Kelly v. Canada (Attorney General), 2013 ONSC 1220, at para. 110, Perell J. made the following observations in obiter:
A class proceeding, which is a form of representation action, is inappropriate for communal Aboriginal rights or treaty rights claims because the individual class members would be entitled to opt out: Soldier v. Canada (Attorney General), 2006 MBQB 50at paras. 70-71. Aboriginal groups are not “persons” for the purposes of class action legislation: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands) 2012 BCCA 193. A grouping of individual claims by Aboriginals may be the subject matter of a class action, but if the claims are to enforce communal Aboriginal rights, then a class action is not available, and the claim must be brought by the holder of the Aboriginal right.
[42] In Nelson v. Canada (Attorney General), 2025 MBKB 155, at para. 65 Grammond J. reasoned:
In addition, the law is clear that treaties were meant to impose obligations into the distant future and that court decisions interpreting those treaties are binding upon all Canadians, without exemption. Moreover, the interpretation of treaties must give rise to one binding outcome and there can be no second chance for a different interpretation of the same treaty. As set out in multiple decisions as referenced above, these factors lend themselves to the context of a representative action because the opt‑out provisions in class proceedings would give rise to a multiplicity of proceedings, interpretations, and outcomes, such that the pursuit of a class action in a treaty interpretation case is simply not appropriate.
[43] The plaintiff cites the decisions in Anderson et al v. Manitoba et al, 2017 MBCA 14(“Anderson MBCA”) and Nova Scotia (Attorney General) v. Joyce, 2024 NSCA 9 as cases in which appeal courts have found that class action procedures are appropriate and preferable to resolve issues involving treaty rights. Respectfully, it is my view that both cases are distinguishable from the case before me.
[44] In Anderson (MBCA), the action involved four First Nations that were impacted by flooding. The plaintiffs were individual members of the First Nations, who claimed that the defendant caused the flooding when it diverted water through its operation of the Shellmouth Dam and the Fairford Water-Control Structure. The claims were framed in negligence, nuisance, breach of fiduciary duty, and breach of treaty rights. The Court of Appeal found that the claims could properly proceed as a class action and made a certification order, overturning the decision of the court below.
[45] It was the claim for nuisance, identified as the strongest claim, which tipped the scale in favour of certification. At para. 60, the Court of Appeal noted:
The nuisance common issue and the other common issues identified by the certification judge are fundamental to each class member’s claim. The certification judge identified the nuisance claim as “the conventional cause of action for the plaintiffs to advance in a claim of this nature” (at para 140) and expressed his view that “the tort of nuisance may well be the strongest of the causes of actions available to the plaintiffs” (at para 141). In order for any of the plaintiffs to be successful in a nuisance claim against Manitoba, they would each need to prove that Manitoba caused the flooding that affected the reserves. Having this issue (as well as the other common issues) determined in one trial for all members of the class would be a more efficient use of judicial resources as compared to a multitude of individual suits making identical or nearly identical claims.
[46] As it pertained to treaty rights, the issue to be determined was framed as follows: “Did [Manitoba] interfere with the treaty rights of the members of the [First Nations] classes by the flooding and flood-control measures which were taken in 2011?” Arguments were raised about the standing of the individual plaintiffs to assert claims for treaty rights on behalf of the collective however, the issue of preferability in the context of the treaty claim was not the subject of any notable analysis either by the Court of Appeal or in the court below: Anderson et al v. Manitoba et al, 2014 MBQB 255 (“Anderson MBQB”).
[47] In my view, Anderson (MBCA) is distinguishable from the present case. The thrust of the claim was based in nuisance and negligence, with treaty rights occupying, at best, a secondary role. In my view, it is not comparable to the claims being advanced in this action and cannot be relied upon as a precedent for matters in which treaty interpretation is the central focus.
[48] I would also make an incidental note that, in Anderson (MBQB) Dewar J. identified that the class action was brought by individual First Nations members, not the First Nations themselves; the class action was brought with the consent of all affected First Nations; and, the First Nations were assigning to the individual plaintiffs any rights that they had to advance claims for breach of / interference with treaty rights and the associated individual losses and damages of their members. When referring to the ability of the First Nations to bring an action on behalf of their members, Dewar J. noted their right to bring a representative action, not a class action. In my view, these are also distinguishing factors.
[49] In Joyce, the action involved a group of individuals who were not members of First Nations Bands or recognized as having status pursuant to the Indian Act RSC, 1985, c.I-5, but rather were self-identified “direct descendants of the pre-contact Mi’kmaq peoples” who were in possession of Aboriginal and Treaty Rights Access (“ATRA”) passports. The Canadian government recognized the holders of ATRA passports as possessing Aboriginal rights for the purpose of matters falling under federal jurisdiction.
[50] The action arose from a dispute between ATRA passport holders and the Province of Nova Scotia (“the Province”) regarding Aboriginal hunting and fishing rights. Between 1989 and 2017, the ATRA passport holders were recognized by the Province as possessing Aboriginal hunting and fishing rights, pursuant to an agreement between the Native Council of Nova Scotia and the Province. In August 2017, the Province changed its policy, thereby excluding the plaintiffs. The action was framed as a claim for a breach of the plaintiffs’ treaty rights, but also as a claim for a breach of their equality rights pursuant to s.15 of the Charter of Rights and Freedoms.
[51] In the underlying decision, Joyce v. Nova Scotia, [2022] N.S.J. No. 62 at paras. 175-201, upheld on appeal, Rosinski J. noted that, in determining that a class action was the preferable procedure, the case before him presented a complex fact scenario that did not easily fit into the existing jurisprudence (including treaty interpretation cases such as Horseman, which he specifically considered), that the plaintiffs were individuals representing different affected groups, that it was highly unlikely that class members would opt-out and pursue litigation on their own, and that the issues plead were systemic in nature. In my view, all these factors distinguish Joyce from the case before me.
[52] Turning to the case before me, in my view, the opt-out procedures in the CPA are incompatible with treaty interpretation litigation, which demands uniformity given the collective rights at issue. In my view, this is the case whether the action is brought by individual band members or by individual bands. Either way, when an individual proposes to speak on behalf of a collective and the other members of the collective have the right to opt-out, the spectre of multiple proceedings arises. Achieving a uniform interpretation of the treaty rights at issue will be challenging if they are considered in multiple proceedings, potentially in different forums.
[53] The plaintiff argues that uniformity will be achieved by application of the doctrine of horizontal stare decisis. They argue that treaty interpretation is an issue of law, reviewable on a standard of correctness: Ontario (Attorney General) v. Restoule, 2024 SCC 27, at para. 87. They further argue that, in any event, there is no evidence that any of the proposed class members will opt-out and thereby create the risk of parallel actions or competing interpretations.
[54] As previously noted, there is, in fact, correspondence filed with the court that some of the affected Treaty 9 First Nations either do not support the proposed class action or are currently involved in potentially overlapping proceedings. However, even if I disregard this information because it is not before me as sworn evidence, I still find on the record before me that the opt-out procedure is problematic to the plaintiff’s motion.
[55] There is no evidence in the record before me that the plaintiff has the unanimous support of all affected Treaty 9 First Nations to act as the representative plaintiff in a class action addressing their rights under Treaty 9. Indeed, the evidence presently before me that engagement with the individual First Nations is “ongoing” three years after the commencement of this action suggests that the opposite is true.
[56] Each of the thirty-seven Treaty 9 First Nations is an independent, self-governing entity. While it is not impossible that they will collectively agree to authorize the plaintiff and their counsel to act on their behalf, in my view it is more likely than not that at least some will opt-out in favour of commencing their own litigation, with their own counsel, to prioritize their own specific concerns and objectives.
[57] While it is true that horizontal stare decisis may result in a uniform interpretation across parallel proceedings, this is not a foregone conclusion, and appeals may ultimately be required to resolve any differences.
[58] The application of s.27(2) of the CPA, which provides that a judgment on common issues of a class does not bind those who have opted out, or a party to the class action in any subsequent proceeding with those who have opted out, is a potential point of friction.
[59] In Soldier v. Canada (Attorney General), 2009 MBCA 12, at para. 78, the Manitoba Court of Appeal noted the following:
Section 26(1) of the CPA provides that a judgment binds those members of the class who do not opt out. Consistent with this, s. 26(2) provides that a defendant to a class proceeding is not bound by a judgment on common issues in any subsequent proceeding between the defendant and the persons who opted out. Individuals who opt out may properly take the position that they are not bound by the court’s decision, and bring another action against the Crown seeking different relief, and upon different evidence. More will be said on the issue of evidence under the next section. See also s. 16 of the CPA. There is the potential for a multiplicity of proceedings and conflicting decisions in respect of a single document. Accordingly, the opting out provision becomes an issue. As the certification judge noted, there should not be more than one interpretation of the treaty depending upon whether individuals opt out of the class. Such a result would not lead to judicial economy.
[60] A similar observation was made in Lac La Ronge Indian Band v. Canada (Attorney General), 2025 SKKB 147, at para. 131:
The Plaintiffs argue that the “opt-out” concern associated with class actions also applies to representative actions as a band could choose not to join the representative action—effectively opting out. While this observation is accurate on one level, it overlooks a critical distinction. In a class action, the opt-out mechanism is straightforward and preserves the right of the party who opts out to pursue separate litigation, expressly allowing for the possibility of inconsistent outcomes or multiple trials. In contrast, in a representative action, an interested party must actively join and agree to be bound by the final determination of the court. That determination would be binding on both Canada and the participants in the representative action. The doctrines of stare decisis, judicial comity and abuse of process could operate to preclude Canada and those that choose not to participate in the representative action from relitigating the interpretation of Treaty 6.
[61] In Nepinak at para. 67, the Federal Court noted the following:
Decades of provincial and federal jurisprudence stress the need for consistent adjudication of treaty rights: Kelly Trial at paras 106 and 109-110; Gill at paras 12-13; Soldier at para 78; Horseman at paras 78-82. At paragraph 82 of Horseman, I made this observation in obiter:
… class actions are not generally appropriate when the fundamental issue to be determined is the proper interpretation of a treaty provision. The Court cannot accept that different courts or judges may reach differing interpretations of a treaty (a result that is possible in a class action proceeding that is followed by other representative or individual actions).
I stand by this position. The reasoning is not that class actions lack utility in general, but rather that, once an individual or subgroup “opts out,” subsequent or parallel litigation can yield an entirely different ruling. In the context of this specific action, the resulting multiplicity of rulings stands in direct opposition to the objective of achieving a unified and consistent resolution of a treaty interpretation dispute through a collective proceeding.
[62] Of note in Nepinak is the fact that this concern about different rulings was raised notwithstanding that the court also acknowledged the operation of stare decisis later in its decision at para. 77.
[63] Even accepting that the doctrine of horizontal stare decisis applies between parallel actions, the application of the doctrine may not be a straightforward exercise. Questions may arise regarding the treatment of comments made in obiter: R. v. Henry, 2005 SCC 76, [2005] 3 SCR 609, at para. 57. There are circumstances, albeit narrow, in which a trial court may depart from decisions issued by courts of coordinate jurisdiction: R. v. Sullivan, 2022 SCC 19, [2022] 1 SCR 460, at para. 75. It is also unclear what may occur if some of the Treaty 9 First Nations attempt to opt-out in favour of a proceeding before the Specific Claims Tribunal, which is not necessarily bound by precedent from this court, or from decisions made by other Tribunal members: Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations), 2024 FCA 8, at paras. 52-53.
[64] The plaintiff also argues that uniformity could be achieved by applying the trial management approach implemented in S. v. Ukraine International Airlines JSC, 2024 ONSC 3303. In that matter, Akbarali J. conducted a joint trial of the class action and all actions commenced by parties who had opted out of the class action. While I agree that a joint trial would address many of the concerns raised, it unfortunately, does not offer a complete solution. It would not address the claims of those class members who elected to opt out and commence proceedings before the Specific Claims Tribunal. Further, the plaintiff’s argument fails to acknowledge that such case management procedures are discretionary and not always granted: Abdulrahim v. Air France, 2010 ONSC 5542. This argument, therefore, does not assist the position of the plaintiff.
[65] At the end of the day, in the context of the plaintiff’s action, the design of a class action proceeding is problematic from the perspective of judicial economy. Whether they involve one plaintiff or multiple class members, treaty interpretation actions are substantial proceedings involving an extensive evidentiary record. If class members opt out and claims are tried as separate actions or in different forums, they will require the defendants to incur significant expense to produce and present duplicative evidence, including expert evidence. Each separate action will require the allocation of significant judicial resources for case management, pretrial proceedings, trial, and appeals. It is difficult to imagine a less economical allocation of taxpayer funds or the finite resources of the court.
[66] I find that the design of the proposed class action is a factor that weighs against certification. Further, as the opt-out procedure is legislated in the CPA, it is a factor which is incapable of being abated either by adjusting the plaintiff’s litigation plan or by court order.
Are there reasonable alternatives to a class action
[67] The alternatives to a class action include individual actions, joinder, consolidation, test cases, a representative action, or an administrative or tribunal proceeding (in this case the Specific Claims Tribunal). For the purpose of this motion, the defendants have focused their submissions on a representative action, and I will similarly focus my analysis on this alternative procedure.
[68] The plaintiff submits that a representative action is not a “reasonably available” alternative procedure to resolve their claim against the defendants. They argue first that neither First Nations Bands, individually nor the Treaty 9 First Nations as a group, are unincorporated associations within the meaning of Rule 12.08. They further argue that a representative action must be requested by the plaintiff and cannot be imposed upon them and, therefore, it is not an “alternative procedure”.
[69] The defendants submit that a representative action is available either pursuant to Rule 10 or Rule 12.08, and that such a procedure has been ordered in prior actions before this court, and before courts across the country.
[70] As previously stated, for the purpose of this motion, I am not being asked to order a representative action pursuant to Rule 10, or to authorize a representative action pursuant to Rule 12.08. I am not required to conduct a merits-based analysis about whether to make such orders. Rather, it is necessary only that I be satisfied that some form of representative action is a “reasonably available” alternative to a class action, in order to conduct a comparative analysis between the two forms of proceeding.
[71] The plaintiff’s argument regarding the status of First Nations Bands as unincorporated associations, is rooted in the wording of Rule 12.08 which provides as follows:
Where numerous persons are members of an unincorporated association or trade union and a proceeding under the Act would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all.
[72] It is settled law that First Nations Bands are juridical persons with the legal capacity to sue and be sued: Kwicksutaineuk, at para. 75. Nevertheless, there remains debate in the case law regarding the appropriate characterization of First Nations Bands in the context of prosecuting and defending civil actions: Public Service Alliance of Canada v. Francis et al., 1982 CanLII 195 (SCC), [1982] 2 SCR 72; Keewatin Tribal Council Inc. v. Thompson (City), 1989 CanLII 7267 (MB QB), at p.215; Montana Band v. Canada (T.D.), 1997 CanLII 6380 (FCTTD); Lac des Mille Lacs First Nation v. Canada (Attorney General), 2002 CarswellOnt 1662, [2002] O.J. No. 1977 at paras. 13-15; Anderson v. His Majesty the King in the Right of Alberta, 2025 ABKB 167, at paras. 34-38; Kelly, at paras. 111-122.
[73] In the face of this debate, the court has adopted a flexible approach in applying procedural rules to actions involving First Nations Bands and their members. This approach recognizes the unique position that First Nations Bands occupy as statutorily-created, self-governing entities. It has included a willingness to approve representative actions in treaty interpretation cases, both to ensure that all necessary parties are before the court and to avoid a multiplicity of proceedings that would conflict with the objective of uniform treaty interpretation.
[74] In my view, even if the court were to make a finding that the Treaty 9 First Nations are not unincorporated associations within the meaning of Rule 12.08, it would not necessarily be precluded from ordering that this matter proceed as a representative action. The court may still have resort to Rule 10: Whiteduck v. HMQ in Right of Ontario, 2020 ONSC 5592; Slate Falls Nation v. Canada (Attorney General), 2004 CanLII 30894. It also has the ability, pursuant to Rule 1.04(2), to establish an appropriate procedure for the action through case management, having regard to Rules 10 and 12.08. As noted by the court in Iskatewizaagegan No. 39 Independent First Nation v. Winnipeg (City), 2024 ONSC 2163, at para 118:
The First Nation’s case concerns Aboriginal law. More precisely, the Hybrid Motion concerns the law of civil procedure in Aboriginal law cases, particularly the rules about pleading and about the joinder of parties to a proceeding. Given the paradigm shift of the enshrinement of aboriginal rights under s. 35 of the Constitution Act, 1982 and given the aspirations and imperatives of reconciliation, and given the need to examine the history and the historiography of each case, the civil procedure in Aboriginal law cases is a dynamic and a still developing specialized subject of the law of civil procedure. The Supreme Court of Canada has emphasized that in Aboriginal law cases, the Rules of Civil Procedure and the rules of evidence apply but that these rules must be approached “flexibly” and creatively within the limits set by the rules of practice and the need to prevent prejudice to opposing parties. [Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 at paras. 30-36; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 at paras. 43-44.] To achieve the project of reconciliation, it is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter and thus the rules are to be applied functionally, practically, and pragmatically. [Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 at 40-45; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at paras. 20-23.]
[75] This argument by the plaintiff, therefore, must fail.
[76] Likewise, the plaintiff’s argument about the process for initiating a representative action must also fail.
[77] In support of their position, the plaintiff relies on the recent decision of this court in Anishinabeg et al. v. AGC et al., 2026 ONSC 1139. Respectfully, I disagree with their analysis of this decision. While Flaherty J. did find that an order for a representative action pursuant to Rule 12.08 required a motion by the plaintiff, she made that finding in the context of a motion by the defendants to compel the plaintiffs to bring such a motion. She granted the requested order, finding that there was no debate that the case before her was a representative action: Anishinabeg, at para. 23. In other words, she “imposed” the representative action procedure on the plaintiffs, against their objection.
[78] On the pleadings and evidence before me, I am satisfied that a representative action is a “reasonably available” alternative to a class action in this matter, for the purpose of conducting a comparative analysis to determine the issue of preferability.
Do the common issues predominate over the individual issues
[79] It is agreed that there are no individual issues in dispute in this action. Therefore, this question is not relevant to the preferability analysis.
Is the proposed class action superior to (better than) the alternatives
[80] I find that the plaintiff’s proposed class action is not superior to the identified alternative, being a representative action. In arriving at this conclusion, I have considered a class action through the lens of access to justice, behaviour modification, and judicial economy.
Access to Justice
[81] The plaintiff argues that a representative action is problematic because it compels the involvement of individual Treaty 9 First Nations in the proceeding, thereby undermining their litigation autonomy and compelling them to incur legal costs. They argue that, in contrast, a class action gives all Treaty 9 First Nations the ability to elect whether and how to assert their treaty claims, ensuring that they are only obliged to participate if they choose to do so.
[82] This argument engages the issue of access to justice, as it requires the court to consider the overall fairness of the class action and representative action procedures relative to this litigation, and the affordability of the proceedings for participants.
[83] For those Treaty 9 First Nations that agree to be represented by the plaintiff, their engagement in the litigation is the same, regardless of whether that representation occurs in the context of a class action or in the context of a representative action.
[84] For those Treaty 9 First Nations that do not consent to being represented by the plaintiff, their engagement in the litigation differs, depending upon whether this matter proceeds by class action or by representative action. Specifically:
a. In the case of a class action, they are required to opt out of the litigation and to commence a parallel proceeding if they wish to pursue any relief. They have no input into any other parallel proceedings, including the class action that may ultimately impact or determine the interpretation of their treaty rights.
b. In the case of a representative action, they are joined as parties to the action and have the litigation autonomy to decide how they want to participate. They have input into the only proceeding that will ultimately determine the interpretation of their treaty rights. They can develop and litigate their claim on their own behalf with their own counsel. They can also join with one or more of the other Treaty 9 First Nations, thereby allowing them to reduce their litigation expenses. Their exposure to litigation risks and costs consequences is reduced as it is shared among multiple participants.
[85] The plaintiff points to procedures in the CPA, such as notice requirements and settlement approval, as enhancing access to justice. While such procedures are statutorily required by the CPA, in my view they are not exclusive to it. They can be incorporated into a representative action during case management. The settlement approval authority under Rule 10, for example, was invoked in Restoule: Mike Restoule v. The Attorney General of Canada, 2024 ONSC 1127.
[86] The plaintiff argues that a representative action also creates an access to justice issue because it requires each of the 36 non-party Treaty 9 First Nations to retain legal counsel to evaluate whether they will consent to a representation order or join the action as a party plaintiff. They argue that this will increase legal fees for class members and delay the prosecution of the action. The defendants argue, and I concur, that this issue arises whether this matter proceeds as a class action or a representative action.
[87] I find that, from an access to justice perspective, a class action which requires class members to opt out of rights-determining litigation unless they agree to be represented by the plaintiff, is not superior to the alternative of a representative action, which allows them to participate on their own terms.
Behaviour Modification
[88] From the perspective of behaviour modification, the behaviour modifying remedies of aggravated damages, punitive damages, prejudgment interest, and costs are the same regardless of whether this matter proceeds as a class action or a representative action. This is a neutral factor in the comparison of a class action to a representative action.
Judicial Economy
[89] As noted, the opt-out procedure provided in the CPA is problematic from the perspective of judicial economy. It will substantially increase the defendants’ costs by requiring them to respond to duplicative claims, and it will tax the resources of the court at both the trial and appellate levels.
[90] A representative action, by comparison, will ensure that the claims of all necessary parties are addressed in one proceeding. It is a more flexible process which will permit the court to respond to the litigation before it. The court can ensure the most efficient use of its resources while also preserving litigation fairness for all parties. All Treaty 9 First Nations will have the ability to participate in the manner that they deem most appropriate.
[91] The plaintiff also cites the availability of aggregate damages under the CPA as another factor which bolsters the preferability of a class action. They submit that, from the perspective of judicial economy, the ability to award aggregate damages conserves court resources by simplifying the assessment of damages. The plaintiff argues that the availability of aggregate damages also achieves the goal of access to justice for class members.
[92] The defendants argue, and I agree, that this is not a case where an award of aggregate damages is necessary, will enhance access to justice, or will simplify the proceeding. The identities of the affected Treaty 9 First Nations are known, and I am satisfied on the evidence that any damages capable of being assessed in the aggregate in a class action (in this case the annuities and the ammunition and twine allotments) are also capable of being quantified individually in a representative action. This argument does not assist the position of the plaintiff.
[93] I find that, on balance, from a judicial economy perspective, a class action is not superior to a representative action.
Conclusion and Disposition
[94] I recognize that refusing certification will inevitably impact those Treaty 9 First Nations that would choose to proceed by class action. While their choice of procedure or forum must be carefully weighed and considered by the court, the decision to certify must, at the end of the day, be made having regard to the litigation as a whole and to its impact on all affected parties. No litigant has an unfettered right to elect to proceed by way of class action; that is why certification is necessary.
[95] Any litigation involving the interpretation and determination of treaty rights must recognize the unique position of affected First Nations as individual, self-governing entities. In my view, no First Nation should be permitted to unilaterally commence proceedings on behalf of another without their express consent. Access to justice requires that every affected First Nation be given an opportunity to participate, on their own terms, in the litigation affecting the collective rights of their members.
[96] While the CPA provides an efficient, cost-effective remedial vehicle to address substantial, multi-party claims, it is not intended to be an all-purpose litigation tool. The Rules provide for many different procedures to manage multi-party actions. The court is the ultimate arbiter in choosing which procedure fits best.
[97] In this case, that procedure is not a class action. The plaintiff’s motion for certification is therefore denied.
[98] I hereby make the following orders:
a. The plaintiff’s motion for certification is dismissed.
b. The following shall be marked as lettered exhibits on this motion:
i. As Exhibit “A”, letter correspondence from Woodward & Company to the Court, dated October 8, 2024.
ii. As Exhibit “B”, letter correspondence from Woodward & Company to counsel, dated January 20, 2026.
iii. As Exhibit “C”, email correspondence from Pape Salter Teillet LLP to counsel, dated January 23, 2026, attaching correspondence from Moose Cree First Nation to Maurice Law, dated October 24, 2024, and correspondence from Maurice Law to Pape Salter Teillet, dated October 25, 2024.
c. The parties are directed to contact the trial co-ordinator within the next 30 days to schedule a case management conference before me to discuss next steps. This will include a process to address the issue of costs of this motion if they are unable to agree upon costs.
Cullin J.
Released: August 18, 2026
CITATION: Missanabie Cree First Nation v. Attorney General of Canada, 2026 ONSC 4763
COURT FILE NO.: CV-23-00029205-00-CP
DATE: 2026/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MISSANABIE CREE FIRST NATION
Plaintiff
– and –
HIS MAJESTY THE KING IN RIGHT OF CANADA, as represented by the ATTORNEY GENERAL OF CANADA, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, as represented by the ATTORNEY GENERAL OF ONTARIO
Defendants
reasons for decision -
motion for certification
Cullin J.
Released: August 18, 2026