Ontario Civil

Aboriginal and Indigenous Law

Practice and procedure


Municipality, not “Crown” authority in any sense of the word, also named as defendant

Claim by plaintiff group of four first Nations sought declaration that strip of land adjacent to reserve was part of that reserve. Defendants were provincial and federal Crown and municipality. Issues determined at trial were whether plaintiffs’ claim barred by res judicata or issue estoppel; whether strip was set aside as part of reserve; and whether it was intended pursuant to Treaty #3 and reserve selection process that followed that strip was to be part of reserve such that failure to include it was a breach of Crown’s fiduciary duty or honour of Crow. Plaintiffs succeeded regarding issue estoppel, but defendants succeeded on other grounds. Municipality claimed total costs claim of $1,474,833 on partial indemnity basis. Plaintiffs submitted that municipality’s costs should be reduced to reflect complex and novel Aboriginal law issues involved in this case, importance of promoting reconciliation in claims with merit involving First Nations and to promote access to justice for First Nations who are advancing claims related to their constitutional rights. Costs awarded to municipality. Plaintiffs’ submissions are well supported in case law and have considerable merit in general sense. However, application of these principles is necessarily fact specific and were not applicable in present case. Uncertainty that existed for 135 years as to exact boundaries of reserve following signing of Treaty #3 rested squarely with Crown. Ancestors of plaintiffs reasonably assumed that reserve’s boundaries extended to normal high water mark of adjacent water bodies, thus it was fair and reasonable for plaintiffs to now assert that their claim had merit and that their exposure for costs of action brought to assert what they reasonably assumed to have been theirs for 135 years should be reduced. However, this claim was somewhat unique because municipality, which is not “Crown” authority in any sense of the word, was also named as defendant. Municipality had nothing to do with negotiation of Treaty #3 or reserve creation process mandated by Treaty #3. Canada and Ontario did not seek their costs from plaintiffs, who were therefore been relieved of any costs consequences of action vis-à-vis federal and provincial Crowns. There was no compelling policy reason why plaintiffs should be further relieved of usual fair and reasonable costs consequences in relation to municipality. Costs of $1,396,296 awarded to municipality on partial indemnity basis.

Couchiching v. Canada (A.G.) (2018), 2018 CarswellOnt 14016, 2018 ONSC 5051, J. Fregeau J. (Ont. S.C.J.); additional reasons (2014), 2014 CarswellOnt 1945, 2014 ONSC 1076, J.S. Fregeau J. (Ont. S.C.J.).

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