Indigenous Legal Issues - SCJ

The applicants sought court review of legal fees claimed by six lawyers (the Legal Team) who represented the Robinson Huron Treaty Litigation Fund in litigation to enforce the Crown's obligations under the Robinson Huron Treaty of 1850.

The Legal Team claimed $510 million as a 5% contingent success fee on a $10 billion settlement.

The court found the Partial Contingency Fee Agreement was neither fair when signed nor reasonable at the time of hearing.

The court determined the Legal Team acted in conflict of interest when advising clients on their own fees and failed to ensure clients received independent legal advice.

The court assessed the fair and reasonable value of the Legal Team's services at approximately $40 million (double their billable fees of $23 million plus $6.5 million in disbursements already paid), rejecting the $510 million claim as champertous and disproportionate to the settlement amount.

The applicants challenged the validity of a purported will dated September 10, 2020, allegedly made by Kenneth Ryan Hill, a wealthy status Indian and permanent resident of the Six Nations of the Grand River Reserve.

The will named the respondent, Mr. Hill's son, as executor and left his interest in Grand River Enterprises (worth approximately $38 million) to him, with bequests of $5 million to each of his other children (except two who received nothing or $3 million).

The applicants argued that Mr. Hill did not sign the will and did not know and approve of its contents.

The court found that the respondent failed to establish that Mr. Hill signed the purported will and that suspicious circumstances surrounded its execution.

The court also found that the respondent failed to prove that Mr. Hill knew and approved of the will's contents.

The purported will was declared invalid both under the Indian Act and at common law.

A 16-year-old youth pleaded guilty to aggravated assault after shooting and partially paralyzing a victim in downtown Toronto.

The Crown sought an adult sentence of 8-10 years, while the defence sought a youth sentence with time served.

The court applied the two-stage test under s. 72(1) of the Youth Criminal Justice Act (YCJA).

At stage one, the court found the presumption of diminished moral blameworthiness was not rebutted beyond a reasonable doubt, considering the youth's significant trauma, intergenerational Indigenous trauma, impulsive nature of the offence, substance abuse issues, and remarkable rehabilitation progress during 3 years 9.5 months of pre-trial custody.

At stage two, the court found a youth sentence would hold the youth accountable.

The court imposed a two-year probation order with intensive conditions including the Intensive Support and Supervision Program (ISSP), curfew, counselling, community service, and ancillary orders including a lifetime weapons prohibition.

A self-represented plaintiff sought damages for financial losses allegedly caused by uncertainty regarding his corporation's land ownership due to an unresolved Indigenous land claim by Six Nations against Canada and Ontario.

The defendants brought cross-motions to strike the claim.

The court dismissed the action on multiple grounds: the proceeding was a nullity against Ontario due to failure to provide the mandatory 60-day notice required by the Crown Liability and Proceedings Act, 2019; the claim was plainly and obviously statute-barred under the Limitations Act, 2002; and the plaintiff failed to establish a cognizable cause of action in negligence or breach of fiduciary duty against either defendant.

The court also dismissed the plaintiff's motion to amend the pleadings to add corporate plaintiffs.

The defendant Parks Canada brought a motion for summary judgment to dismiss an action based on the expiration of the two-year limitation period under section 4 of the Limitations Act, 2002.

The plaintiff foundation sought to avoid the limitation period by arguing that the action was for declaratory relief only (exempt under section 16(1)(a)) or that it was based on Aboriginal and treaty rights (exempt under sections 2(1)(e) and 2(1)(f)).

The court found that the declaratory relief sought had no practical effect and was merely an attempt to circumvent the limitation period.

The court also found that the plaintiff was not an Aboriginal person or acting as an agent for Aboriginal peoples, and that the action was fundamentally a breach of contract claim that was time-barred.

The motion was granted and the action was dismissed with costs awarded to the defendant.

The respondent brought a motion seeking recusal of the judge on grounds of reasonable apprehension of bias.

The respondent alleged that the judge made derogatory comments about Indigenous peoples, made ad hominem attacks, directed an unfair motion structure, relied on outdated case law while ignoring a reversal by the same judge, predetermined a paramountcy issue, and intended to benefit the applicant through a solicitor's lien.

The judge dismissed the motion, finding that the allegations lacked merit, were raised well over a year after the impugned conduct, and appeared tactical in nature.

The judge awarded costs to the applicant.

The decision addresses a motion to compel a lawyer, Mr. Strickland, to answer questions refused during cross-examination in a shareholder dispute among several First Nations and a jointly owned corporation.

The court analyzes the scope of permissible cross-examination on a motion to dismiss, the application of solicitor-client and litigation privilege in the context of joint retainers, and the rights of minority shareholders to information.

The court orders that certain questions regarding the existence of contractual commitments must be answered, as they are not protected by privilege, but limits further questioning.

The applicants sought an assessment of a $510 million partial contingency fee paid to the lawyer respondents by the Robinson Huron Treaty Litigation Fund (RHTLF) and a determination of whether the $10 billion settlement proceeds were assets of the RHTLF Trust.

The court directed an assessment of the legal fees under the Solicitors Act, finding that the First Nations were liable to pay the bills and that special circumstances warranted assessment.

The court also confirmed that the settlement proceeds are assets of the Trust.

The Crown appealed an absolute discharge granted to the respondent for mischief and breach of undertaking, arguing the sentencing judge erred in applying the "best interests of the accused" and "public interest" tests under s. 730(1) of the Criminal Code.

The appeal court found the sentencing judge erred by failing to consider the respondent's criminal record and specific deterrence, and by narrowly defining "public interest" to exclude the broader community.

The appeal was allowed, the absolute discharge vacated, a conviction entered, and a suspended sentence with probation was imposed, but its execution was permanently stayed due to the passage of time and the respondent's compliance with conditions.

This temporary care and custody hearing involved three Indigenous children affiliated with Caldwell First Nations.

The Family & Children’s Services of St. Thomas and Elgin sought to place the eldest child (L.A.) with the father and the two younger children (M.W. and H.W.) with the mother, subject to supervision.

The father opposed, seeking custody of all three.

The court, applying the Child, Youth and Family Services Act and the paramount An Act respecting First Nations, Inuit and Métis children, youth and families, found that L.A. could remain with the father under terms.

However, M.W. and H.W. were at risk of physical and emotional harm with the father due to ongoing verbal and physical abuse, neglect, and the father's non-compliance with previous court orders.

The court ordered M.W. and H.W. into the temporary care of the mother, with terms to ensure their safety and cultural connection.

This case management conference endorsement addresses the timetable for a complex action, primarily focusing on the delivery of expert reports and amended pleadings.

The court resolved disagreements between the plaintiff, defendants, and intervener regarding deadlines for expert reports, particularly those from the Mississaugas of the Credit First Nation (MCFN) and experts who had been ill.

The court also set a deadline for Ontario's defence to Canada's cross-claim, prioritizing realistic timelines and efficiency over the plaintiff's desire for earlier closures.

The representative plaintiff, Narcise Alex Kakegabon, brought a motion to vary the certification order in a class proceeding concerning toxic mould on Long Lake No. 58 First Nation's reserve.

The motion sought to remove Kim Orr Barristers P.C. as class counsel and appoint Turan Law Office P.C. as new class counsel, along with ancillary relief.

The plaintiff cited a loss of confidence in the previous counsel due to lack of progress, noting that approximately half of the class members had passed away since certification.

The court, applying the principles from Fantl v. Transamerica, considered the competence of the proposed counsel, the propriety of the choice, and potential prejudice to the class.

Neither the defendant nor the previous class counsel opposed the motion.

The court found no concerns regarding the proposed counsel's competence or the plaintiff's choice, and no prejudice to the class.

The motion was granted.

The Family and Children’s Services of Renfrew County brought a motion for a temporary care and custody order for three First Nation children.

The court found reasonable grounds to believe the children were at risk of harm if returned to the mother without supervision, due to her history of substance abuse, mental health issues, and domestic violence.

Applying the "least disruptive placement" principle under the CYFSA and considering the children's First Nations heritage under the federal Act, the court ordered the children to be placed in the temporary care and custody of their parents, subject to the Society's supervision and specific conditions.

The order also granted unsupervised access to the father of the youngest child.

Batchewana First Nation sought to be joined as a necessary party plaintiff or, alternatively, for leave to intervene as an added party plaintiff in the Robinson Superior Treaty action, which concerns claims for augmented annuities.

The motion was dismissed.

The court found that Batchewana, a beneficiary of the Robinson Huron Treaty, was not a necessary party to the Superior action, as its claim for augmented annuities based on "just claims" to lands within the Superior Territory was inconsistent with its prior position in the Huron action and did not directly relate to the Superior Treaty's interpretation or compensation.

The court also found that Batchewana did not meet the criteria for intervention and that its proposed intervention would cause undue delay and prejudice to the complex, multi-stage litigation.

The plaintiff, Marcel Guibord, initiated a new action against the National Bank of Canada, its officers, a lawyer, and the federal and provincial governments, alleging fraud, conversion, and land claims related to a property previously subject to a mortgage enforcement action.

The defendants sought dismissal under Rule 2.1.01 of the Rules of Civil Procedure.

The court found the action to be frivolous, vexatious, and an abuse of process, as it constituted an attempt to re-litigate issues already adjudicated in prior proceedings, including a summary judgment motion and appeals.

The court noted the plaintiff's claims were largely unintelligible and nonsensical, and that adding the Crown as a party did not legitimize the collateral attack on previous decisions.

The action was dismissed.

The Children's Aid Society sought an order for extended society care for two Indigenous children, S.L. and L.E.L., due to ongoing exposure to domestic violence and the parents' non-compliance with court orders.

The parents, E.L. (mother) and I.O. (father), opposed this, seeking the children's return.

The court found the children remained in need of protection, citing the high risk of domestic violence and the parents' inability to adhere to supervision orders.

Despite acknowledging the importance of Indigenous heritage and the historical harms of assimilation, the court prioritized the children's safety and stability.

Extended society care was granted, with the court retaining jurisdiction over access to ensure meaningful contact with birth parents and cultural preservation.

This endorsement addresses costs arising from Requests for Direction (RFDs) concerning the Indian Residential Schools Settlement Agreement (IRSSA) Notice Program.

The Assembly of First Nations (AFN), Inuit Representatives, National Centre for Truth and Reconciliation (NCTR), and Independent Counsel sought full indemnity costs from Canada for their participation.

The court affirmed its special jurisdiction under IRSSA for costs awards, allowing deviation from standard indemnity principles.

It found Canada to be an appropriate costs payor due to its role as IRSSA administrator, not misconduct.

However, the court denied costs for pre-litigation activities, deeming them voluntary, and found the amounts claimed by NCTR and Independent Counsel excessive and disproportionate.

Ultimately, the court awarded partial indemnity costs to all four parties, significantly less than requested.

The Requestor (IAP Claimant H-15019) sought an urgent ex parte order for the production of discovery transcripts from previous civil proceedings related to St. Anne's Indian Residential School.

The transcripts were requested for use in a re-hearing of the claimant's Independent Assessment Process (IAP) claim, to ensure procedural fairness for witnesses and allow them to adopt prior sworn testimony.

The court, acting as a supervising judge for the Indian Residential Schools Settlement Agreement (IRSSA), dismissed the request as premature, reiterating that IAP processes had not been exhausted and that judicial intervention in the IAP is warranted only in exceptional circumstances.

The court also affirmed its previous finding that Canada had not breached its disclosure obligations by refusing to produce these specific transcripts, citing settlement privilege and undertakings of confidentiality.

The applicants sought an interlocutory injunction to halt logging, road building, and aerial spraying in the Benny area, asserting a lack of meaningful consultation and consent regarding their Aboriginal and Treaty rights.

The court applied the three-part test for an interlocutory injunction, finding that the Crown's duty to consult with the Atikameksheng Anishnawbek First Nation (AAFN) had been met through extensive engagement, which led to the approval of remedial measures by the AAFN Chief and Council.

The applicants failed to demonstrate a serious issue to be tried or irreparable harm, as their claims were general and the Crown's protective measures were deemed ample.

Furthermore, the balance of convenience favoured the respondents, given the significant economic impact and job losses that an injunction would cause.

The court also clarified that the duty to consult is owed to the collective Aboriginal group, not individual members, and rejected claims of additional hereditary clan leader reserves under the Robinson-Huron Treaty of 1850.

The motion for an interlocutory injunction was dismissed.

The Thessalon First Nation (TFN) sought an interim injunction to prevent The Municipality of Huron Shores from proceeding with a tax sale of lands TFN claims are part of its reservation.

TFN asserts an historical error in the 1850 Huron Treaty survey.

The Municipality had not collected taxes on the land since 2000, agreeing with TFN's position, but initiated a tax sale due to significant arrears and provincial levies.

The court applied the RJR-MacDonald test, finding a serious question to be tried regarding Aboriginal land title and the Honour of the Crown, irreparable harm if the land were sold, and that the balance of inconvenience favored TFN, especially considering the potential for the Province to mitigate its costs.

The interim injunction was granted, halting the tax sale, with a further hearing scheduled to allow provincial and federal governments to make submissions.