Sylvia Davis

This costs endorsement follows the court’s decision granting Ontario Heritage Trust’s application for a declaration of trespass and related relief.

The court considers the parties’ submissions on costs, including arguments about duplication of effort and offers to settle.

The Trust is awarded its requested costs of $90,000, and the Chippewas of Nawash Unceded First Nation is awarded $71,000, both to be paid by Mr. Hunter.

The court applies the principles from the Rules of Civil Procedure and the Courts of Justice Act, as well as appellate guidance on costs discretion.

This decision concerns a dispute over the legal and beneficial ownership of lands surrendered by several First Nations to Canada in 1908, known as the Unsold Surrendered Lands (USL), including the Point Park and associated roads in Fort Frances, Ontario.

The Town of Fort Frances sought summary judgment declaring it the owner of these lands or, alternatively, a public trust or entitlement to damages.

The First Nations, Canada, and Ontario opposed, seeking dismissal of the Town’s claims.

The court found that the Agency One Reserve was a validly created reserve, that the 1908 Order-in-Council (OIC) did not convey the USL to the Town by fee simple or public trust, and that the Town’s claims to the lands, roads, and damages were without merit.

The Town’s motion was dismissed, and the counterclaim struck.

The applicant, Deanna McKinlay, sought a declaration that a document she wrote and the deceased signed was a valid testamentary instrument for the estate of Virginia Beecroft.

In the alternative, she sought a declaration that the deceased’s 2020 Will and Codicil should govern.

The court found the proffered document was not a valid will, as it was not a fixed and final expression of the deceased’s testamentary intentions, and ordered the estate to be administered in accordance with the 2020 Will and Codicil.

The Ontario Heritage Trust sought a declaration of trespass and related relief regarding encroachments by Troy James Hunter onto land of significant cultural and spiritual importance to the Anishinaabe, co-managed with the Chippewas of Nawash Unceded First Nation.

The court found that the encroachments—including a cottage, driveway, well, and trees—constituted trespass and granted a mandatory injunction for their removal, emphasizing the unique, non-monetary value of the land and the inadequacy of damages as a remedy.

The court rejected arguments based on honest mistake, the Trust’s knowledge of the encroachments at purchase, and the Conveyancing and Law of Property Act, holding that the Ontario Heritage Act prevails and that the equities favoured the Trust and Nawash.

The Court of Appeal for Ontario issued a costs endorsement following an appeal from a Divisional Court order.

In the exercise of its discretion, the court ordered that all parties bear their own costs of the appeal.

The appellants, a group of First Nations, appealed a Divisional Court decision that dismissed their application for judicial review.

They argued that Ontario's revocation of a forest management regulation (MNR-75) and amendments to the Environmental Assessment Act (Bill 197) breached the Crown's duty to consult and the honour of the Crown.

The Court of Appeal upheld the Divisional Court's decision, finding that the duty to consult does not apply to the law-making process (Bill 197) and that the revocation of MNR-75 did not give rise to a duty to consult as the alleged adverse effects were speculative and equivalent protections remained in force through other legally binding instruments.

The Attorney General of Ontario sought forfeiture of Canadian and American currency under the Civil Remedies Act, 2001, alleging it was proceeds and an instrument of unlawful activity, specifically drug trafficking and possession of property obtained by crime.

The application proceeded unopposed as the individual associated with the funds, Mr. Leng, could not be reached by his counsel.

The court found, on a balance of probabilities, that the currency was indeed proceeds and an instrument of unlawful activity, citing evidence such as the amount and denominations of cash, Mr. Leng's criminal record, and the discovery of controlled substances.

The court also determined that forfeiture was in the interests of justice, as the property was closely tied to illegal activity and promoted the Act's purposes.

The forfeiture order was granted, with no order as to costs.

The applicant, a resident of the United States, was charged under the Environmental Protection Act with failing to comply with a court order.

A summons was sent to him by registered mail pursuant to s. 26(3) of the Provincial Offences Act.

The applicant brought an application for an order prohibiting the Provincial Offences Court from continuing the proceeding, arguing that s. 26(3) does not expressly authorize service outside of Ontario or Canada.

The court dismissed the application, applying the modern principle of statutory interpretation to find that s. 26(3) implicitly authorizes service of a summons via registered mail upon an individual who resides anywhere outside of Ontario, including outside of Canada.