Zoe Oxaal

The defendants brought a motion seeking a direction that the plaintiffs obtain court authorization under Rule 12.08 of the Rules of Civil Procedure before continuing a representative action asserting Aboriginal title and treaty rights under s. 35 of the Constitution Act, 1982.

The action sought declarations concerning Aboriginal title to federally held lands along the Ottawa River, including lands in the national capital region.

The plaintiffs argued that a representation motion should not be required in Aboriginal title litigation and that imposing such a requirement would undermine reconciliation and access to justice.

The court held that Rule 12.08 applies to representative proceedings advancing s. 35 claims and requires prior judicial authorization regardless of the substantive nature of the claim.

The plaintiffs were directed to bring a Rule 12.08 motion to seek authorization to proceed as representatives of the proposed collective.

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 appellant appealed his convictions for drug trafficking and possession of proceeds of crime, arguing that his arrest lacked reasonable and probable grounds once evidence obtained from an illegal police entry into a condominium was excluded.

The Court of Appeal dismissed the conviction appeal, finding that the totality of the remaining circumstances provided sufficient grounds for the arrest.

However, the court granted leave to appeal the sentence and quashed the two-year probation order, as the Crown conceded it was illegal under s. 731(1)(b) of the Criminal Code.

The Court of Appeal issued an endorsement regarding the costs of an appeal and a motion in the Superior Court.

The court ordered that the appellant, the Attorney General of Canada, be awarded costs in the cause in both courts, fixed at a total amount of $35,000 inclusive of disbursements and taxes.

The plaintiffs sued Canada in the Superior Court of Justice, alleging complicity in their torture by foreign governments and Charter violations.

Canada redacted disclosed documents under s. 38 of the Canada Evidence Act, claiming privilege on national security grounds, and applied to the Federal Court to confirm the prohibition on disclosure.

The plaintiffs moved in the Superior Court for unredacted production, arguing s. 38 unconstitutionally deprived the Superior Court of its core jurisdiction under s. 96 of the Constitution Act, 1867.

The Court of Appeal held that s. 38 is constitutionally valid at the pre-trial stage because pre-trial discovery against the Crown did not exist at Confederation, and set aside the motion judge's declaration regarding s. 38's validity at trial as premature.