Stephanie Rose Figliomeni

This costs endorsement follows the dismissal of appeals by the Attorney General of Ontario, His Majesty the King in Right of Ontario, the Town of South Bruce Peninsula, Alberta Lemon, and the Estate of Barbara Twining, and the allowance of the cross-appeal by the Attorney General of Canada and His Majesty the King in Right of Canada.

The Court orders the Town and the Families to pay costs to the Chippewas of Saugeen First Nation and the Town to pay costs to Canada, finding the amounts sought reasonable in light of the complexity and significance of the appeal.

The appellants appealed a trial judgment declaring that approximately 1.4 miles of coastline (the Disputed Beach) forms part of the Saugeen Indian Reserve No. 29 under Treaty 72 of 1854.

The trial judge found that the Crown breached its fiduciary duty and acted dishonourably when a surveyor improperly excluded the beach from the reserve boundaries.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's application of treaty interpretation principles or her assessment of the historical record.

The Court also upheld the trial judge's decision to deny the bona fide purchaser for value defence to private landowners, prioritizing the First Nation's constitutionally protected treaty rights.

A cross-appeal by Canada regarding the allocation of pre-Confederation liability was allowed and referred to the next phase of the trial.

The Chippewas of Saugeen First Nation, having been entirely successful in the liability phase of a bifurcated proceeding concerning the status of the "Disputed Beach" as reserve land, sought costs.

This endorsement addresses the costs awards and apportionment among the multiple defendants.

The court awarded Saugeen their costs on a partial indemnity scale, totaling $3,221,802.54, on a joint and several liability basis.

These costs were apportioned for indemnification purposes among Canada (10%), Ontario (40%), and the Town of South Bruce Peninsula (50%).

Additionally, the court granted Canada a Sanderson order, requiring the Town to pay Canada $470,000 in partial indemnity costs, recognizing Canada's success on the essential issue of the reserve boundary location.

The Town's claim for costs against Canada was dismissed.

This decision provides supplementary reasons for judgment in a land claim case.

Following an earlier declaration that a substantial portion of Sauble Beach was reserved for the sole use and benefit of the Chippewas of Saugeen First Nation and forms part of Saugeen Indian Reserve No. 29, the court considered whether to grant a life interest in certain 'Disputed Lots' to current family title owners (Landowners).

The Chippewas of Saugeen First Nation and Canada opposed this.

The court determined it lacked jurisdiction to impose a proprietary interest contrary to the Indian Act and Constitution Act, as reserve land is inalienable.

It also found that granting such an interest would not advance reconciliation.

Consequently, the temporary delay in the original declaration that no third parties have an interest in the land was terminated, making the declaration effective immediately.

The applicant, a forensic pathologist, sought judicial review of a reporting letter issued by the Death Investigation Oversight Council regarding her complaint against the Chief Forensic Pathologist.

The applicant alleged that the Chief Forensic Pathologist abused his authority by interfering with her conclusion that a child's death was due to natural causes rather than abuse.

The Council investigated and issued recommendations to improve the death investigation system but did not recommend the Chief Forensic Pathologist's dismissal.

The Divisional Court dismissed the application, finding that the Council is an advisory body, not a disciplinary tribunal, and its decision not to make findings of fact or recommend dismissal was reasonable.

The Chippewas of Saugeen First Nation brought an action seeking a declaration that a 1.4-mile strip of Sauble Beach (the Disputed Beach) is part of their unsurrendered reserve land under Treaty 72 of 1854.

The court found that the Imperial Crown's surveyor, Charles Rankin, improperly marked the northern terminus of the reserve's eastern boundary further south than the Treaty stipulated, depriving the First Nation of the promised coastline.

The court held that the Imperial Crown and the federal Crown breached their sui generis fiduciary duties and acted inconsistently with the honour of the Crown by failing to properly survey, protect, and preserve the reserve.

The court rejected the defendants' arguments that the First Nation's claim was defeated by Crown patents, the doctrine of bona fide purchaser for value without notice, the Limitations Act, laches, dedication, or proprietary estoppel.

The court declared that the Disputed Beach remains unsurrendered reserve land for the sole use and benefit of the First Nation.

The moving party sought leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal in writing and awarded all-inclusive costs of $5,000 to the responding party, His Majesty the King in Right of Ontario.

The applicant brought a motion to adjourn a scheduled hearing because she was working as a medic in Ukraine, citing unstable internet access and security concerns that would make it difficult to instruct counsel.

The respondent opposed the motion, noting the late request and scarce court resources.

Despite concerns about the late request and missed deadlines, the court granted the adjournment in the interests of justice to allow the applicant sufficient time to instruct counsel, making the new date peremptory on the applicant.

The applicant brought a motion to strike portions of the record considered by the DIOC and to determine whether materials provided to but not reviewed by the DIOC form part of the record on judicial review.

The court dismissed the motion to strike, holding that the admissibility of evidence before the DIOC is a matter for the panel hearing the judicial review.

The court directed that unreviewed materials be provided to the panel in a sealed envelope.

The court also granted consent redactions sought by the DIOC and granted interim redactions sought by the applicant to protect her privacy interests pending the panel's decision, applying the Sherman Estate test.

The Death Investigation Oversight Council (DIOC) brought a motion for a sealing order over autopsy files and a redaction order for witness identities in its record of proceedings, which was filed in response to an application for judicial review by Dr. Jane Turner.

Applying the Sherman Estate test, the Divisional Court held that while identifying information in the autopsy files must be redacted to protect the dignity of the deceased infants and their families, sealing the entire files was unnecessary.

The court also refused to redact the identities of witnesses interviewed during the DIOC's investigation, finding that the open court principle did not pose a serious risk to the public interest in witness candour.

The oversight council brought a motion to seal and redact the record of proceedings in an application for judicial review brought by the applicant.

The proposed redactions aimed to protect the identities of witnesses and deceased individuals.

The Divisional Court adjourned the motion, finding it would be contrary to the due administration of justice to proceed without giving notice to the potentially affected non-parties whose privacy interests were at stake.

The 12th Case Management Conference addressed the timetable for expert reports and pleading amendments in a complex Indigenous litigation.

The Plaintiff sought a simultaneous exchange of expert reports, arguing for procedural reciprocity and efficiency.

The Defendants advocated for a sequential timetable, asserting it would allow them to better understand and respond to the Plaintiff's case, aligning with common practice in similar complex litigation.

The court adopted the Defendants' sequential timetable for expert reports, finding no basis to deviate from established practice in complex land claims.

The court also granted leave for the Plaintiff to amend its Statement of Claim, with the formal filing deferred due to COVID-19 court closures.

The 11th Case Management Conference addressed the trial process and timetable for a complex action involving historic evidence.

The parties agreed to a bifurcated trial but disagreed on the degree of bifurcation.

The plaintiff proposed a four-phase structure (two liability, two remedies/crossclaims), while the defendants proposed a two-phase structure (all liability in Phase 1, all remedies/crossclaims in Phase 2).

The court adopted the two-phase structure, finding it more efficient and less prone to inconsistencies, while reserving the right for parties to seek further refinement at the pre-trial stage.

A detailed timetable for pleadings, discovery, and documentary production was also established to keep the action on track for a 2022 trial.

The applicants, a physician and three corporate entities operating independent health facilities, sought judicial review of the Ministry of Health and Long-Term Care's decision to set off $1.6 million in future facility fees against alleged past overbilling.

The Ministry had also alleged overbilling of physician fees but refused to issue a final notice that would allow the physician to seek an independent adjudication before the Physician Payment Review Board.

The Divisional Court found that the Ministry had no express or implied statutory authority under the Independent Health Facilities Act to impose the set-off.

Furthermore, the court held that the Ministry acted unreasonably in relying on equitable set-off to avoid an independent adjudication of the billing dispute.

The court granted the application and issued an order of mandamus requiring the Ministry to reimburse the applicants for the facility fees taken pursuant to the unlawful set-off decision.

The defendants, Her Majesty the Queen in the Right of Ontario and the Attorney General of Canada, successfully moved to strike the plaintiffs' action as res judicata and an abuse of process.

In this costs endorsement, the plaintiffs argued for an exemption from costs as public interest litigants.

The court rejected this argument, finding the action was primarily intended to prevent regulatory charges from being heard, was substantially similar to previous actions, and therefore constituted an abuse of process not in the public interest.

The court applied the five factors from *St. James Preservation Society* and the criteria from *Incredible Electronics Inc.* to determine that the plaintiffs did not qualify as public interest litigants.

Costs were awarded to Ontario and Canada.

The defendants, Her Majesty the Queen in Right of Ontario and the Attorney General of Canada, moved to strike the plaintiffs' action as an abuse of process and res judicata.

The court found the action was substantially similar to two prior dismissed proceedings and was primarily intended to delay regulatory hunting and fishing prosecutions against the individual plaintiffs.

The court determined that constitutional issues related to the prosecutions should be raised in the Ontario Court of Justice, and other land claims could be pursued in a separate, ongoing action (17-71837).

The motion to strike was granted.

The appellants, owners of a residential property in Caledon, Ontario, appealed a decision dismissing their application against the Ontario Heritage Trust and a local resident.

The appellants' property is accessible only via a 1 km driveway through parkland owned by the OHT, over which they hold an easement for ingress and egress.

The appellants claimed the easement granted them exclusive use of the driveway and sought to prevent public access by hikers using trails on the OHT property.

The court upheld the lower court's decision, finding that the deed of easement did not grant exclusive use, that public use by hikers did not substantially interfere with the appellants' easement rights, and that an injunction against the publication of a hiking guide was not warranted.

Following the dismissal of the applicants' application, the respondents sought costs.

One respondent settled their costs claim, while the other, represented by pro bono counsel, sought substantial indemnity costs due to the applicants' conduct.

The court held that pro bono representation does not preclude a costs award and that ordinary costs rules apply.

The court found the applicants' conduct expanded the litigation but did not rise to the level of reprehensible conduct required for substantial indemnity.

The court awarded partial indemnity costs to the pro bono respondent in the amount of $84,836.79.

The applicants, Saugeen First Nation and Chippewas of Nawash Unceded First Nation, sought judicial review of the Minister's decision to issue a limestone quarry license to the respondent proponent.

The applicants argued the Crown failed to fulfill its constitutional duty to consult and accommodate their Aboriginal and treaty rights.

The Divisional Court found that while the duty to consult was triggered and assessed at the middle of the spectrum, the Crown failed to discharge this duty by repeatedly changing its consultation process, failing to provide agreed-upon capacity funding for expert reviews, and prematurely issuing the license.

The application was allowed, the license was set aside, and the matter was remitted for adequate consultation.

The applicants sought a declaration of exclusive use over a right-of-way (ROW) connected to their property and permanent injunctions against the Ontario Heritage Trust (OHT) and Nicola Ross.

The OHT, as the servient tenement owner, permitted public access to the ROW, which also served as access to the Bruce Trail.

The court dismissed the application, finding that the easement did not grant exclusive use to the applicants and that there was no substantial interference with their rights.

The court also found the applicants lacked "clean hands" due to misleading evidence and dismissed the injunction claim against Ms. Ross, noting her statements were consistent with OHT's position and not made with malice.