Tim Danson

Several First Nations moved to be added as party respondents in a judicial review application challenging Ontario’s Interim Enforcement Policy permitting First Nations to hunt and fish for food, social and ceremonial purposes on lands subject to the 1923 Williams Treaties pending resolution of related litigation.

The applicant organization opposed the motion, arguing the First Nations should not participate as parties or should be limited to intervenor status.

The court held that the proceeding directly targeted the asserted treaty and Charter rights of the First Nations and that effective adjudication required their participation.

The First Nations met the test for mandatory joinder under Rule 5.03 of the Rules of Civil Procedure and would also qualify as party intervenors under Rule 13.01.

As they were plainly proper parties and were forced to bring the motion after the applicant resisted their participation, the court awarded them substantial indemnity costs.

The defendants appealed a Master's order that struck out one of two defence neuropsychological assessments of the plaintiff.

The Master had varied his original order allowing two assessments after discovering the defendants had entered into an undisclosed settlement agreement, reasoning they were no longer adverse in interest.

The Superior Court allowed the appeal, finding the Master erred in law.

The court held that the defendants remained adverse in interest despite the settlement, and that adversity is not a strict prerequisite for multiple defence medicals under section 105 of the Courts of Justice Act if fairness requires it.

Both assessments were permitted, but the defendants were ordered to pay full indemnity costs and fund an additional assessment for the plaintiff as a sanction for failing to disclose the agreement and breaching the examination protocol.