COURT OF APPEAL FOR ONTARIO

CITATION: Armstrong v. Corus Entertainment Inc., 2018 ONCA 852

DATE: 20181024

DOCKET: C62752 & C62764

Doherty, Brown and Huscroft JJ.A.

BETWEEN

William John Armstrong

Plaintiff (Respondent)

and

Corus Entertainment Inc.
,
Craig
    Needles, Shawn Lewis,

Nancy McSloy, Joseph Wilson, Robert Spencer
,
Cheryl
    Miller, Christopher George and Stewart Blair
and
Jack
    McSloy

Defendants (
Appellants
)

Andrew F. Camman, for the appellants, Nancy McSloy, Joseph
    Wilson, Robert Spencer and Jack McSloy

Peter M. Jacobsen and Julia L. Lefebvre, for the
    appellant, Corus Entertainment Inc.

Sean C. Flaherty, for the respondent

Heard: June 29, 2017

On appeal from the order of Justice Joseph M. W. Donohue
    of the Superior Court of Justice, dated September 2, 2016.

COSTS
    ENDORSEMENT

[1]

In our view the presumption in s. 137.1(7) of the
Courts
    of Justice Act,
R.S.O. 1990, c. C.43,
    applies. The appellants are entitled to their costs of the motion and
    proceedings below on a full indemnity basis. The costs must still however be
    reasonable. We fix Corus costs at $30,000, inclusive of taxes and
    disbursements and we fix the costs of the McSloy appellants (Nancy McSloy,
    Joseph Wilson, Robert Spencer, Jack McSloy) at $30,000, inclusive of taxes and
    disbursements.

[2]

The appellants were
    successful on the appeal and are entitled to costs on a partial indemnity
    basis. We fix Corus costs at $15,000, inclusive of disbursements and taxes. We
    also fix the costs of the McSloy appellants at $15,000, inclusive of
    disbursements and taxes.

[3]

The McSloy appellants also request
    damages pursuant to s. 137.1(9) of the
Courts of Justice Act
. We see no basis for that order.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2018 ONCA 816

DATE: 20181012

DOCKET: C64766 & M49326

Lauwers, van Rensburg and Nordheimer JJ.A.

BETWEEN

Brittany Beaver

Applicant (Respondent)

and

Kenneth Hill

Respondent (Appellant)

Chris G. Paliare, Bryan R.G. Smith, and Andrew K. Lokan,
    for the appellant

Harold Niman, Martha McCarthy, Sarah Strathopolous,
    Joanna Radbord, and Scott Byers, for the respondent

Manizeh Fancy and Estée L. Garfin, for the Attorney
    General of Ontario, intervenor

Heard: September 11, 2018

On appeal from the order of Justice D.L. Chappel of the
    Superior Court of Justice, dated December 8, 2017, with reasons reported at
    2017 ONSC 7245, 4 R.F.L. (8th) 53, and costs reasons reported at 2018 ONSC 3352,
    8 R.F.L. (8th) 288.

Lauwers J.A.:

[1]

Brittany Beaver and Kenneth
    Hill are Haudenosaunee and are members of the Six Nations of the Grand River.
    They were in an intimate relationship from 2008 to 2013. Together, they had one
    child  B., who was born in August 2009.

[2]

In the order under appeal,
    the motion judge struck out Mr. Hills amended answer and dismissed the
    constitutional claim he brought under s. 35 of the
Constitution Act, 1982
,
to have the parties family law dispute
    decided through Haudenosaunee governance processes and protocols and according
    to Haudenosaunee laws. Under the motion judges order, Ms. Beavers
    application for custody, spousal and child support would proceed in the
    ordinary course under the
Childrens Law Reform Act
, R.S.O. 1990, c.
    C.12 (
CLRA
) and
Family Law Act
,
R.S.O. 1990
,
c. F. 3 (
FLA
) and associated rules and practices, without regard to
    Mr. Hills constitutional claim.

[3]

For the reasons set out
    below, I would allow the appeal in part. I would dismiss Ms. Beavers motion
    before this court to dismiss the appeal as an abuse of process.

A.

The Proceedings to Date

[4]

In December 2015, Ms. Beaver
    brought an application for B.s custody under the
CLRA
and child and
    spousal support under the
FLA
. Mr. Hill filed an answer and defence in
    the usual form in February 2016. However, in March 2016, he filed a notice of
    constitutional question challenging the jurisdiction of the Superior Court, as
    well as the applicability of the
CLRA

and
FLA
, on the
    basis that he had an Aboriginal and treaty right, protected by s. 35 of the
Constitution
    Act, 1982
, to have his family law disputes resolved pursuant to
    Haudenosaunee law. He claimed what might be characterized as a constitutional
    exemption from the application of Ontario family law and the jurisdiction of
    the Superior Court to determine the parties dispute. Mr. Hill also gave notice
    of his constitutional claim to the Chief of the Six Nations and to the Haudenosaunee
    Confederacy Council but neither has taken steps to intervene or participate.

[5]

In pursuit of the
    constitutional question, Mr. Hill filed an amended answer consistent with his
    constitutional claim. He moved for an order dismissing Ms. Beavers family law
    application, or, in the alternative, for an order staying her application for
    interim relief in order to allow his constitutional challenge to proceed first.

[6]

Ms. Beaver moved for interim
    spousal and child support. She sought additional relief including:

(i)    a declaration
    that the Superior Court has jurisdiction to deal with the family law issues
    raised by the parties;

(ii)   an order
    striking the amended answer; or

(iii)   an order
    staying Mr. Hills constitutional challenge.

[7]

The motion judge granted Ms. Beavers motion and dismissed Mr. Hills stay
    motion. She held that the Superior Court had jurisdiction to hear the family
    law dispute. She struck Mr. Hills amended answer without leave to amend and
    dismissed his claim under s. 35(1) of the
Constitution Act, 1982
. The
    motion judge left Mr. Hill to decide whether to proceed with a conventional
    answer as he suggested he might do in his amended answer.

[8]

Based on the appellants non-taxable
    income in 2014 of $2,109,000, by order dated May 28, 2018, Sloan J. required
    the appellant to pay $33,183 per month interim child support, and 100% of the s.
    7 expenses.

B.

Overview

[9]

It is axiomatic that a
    person who has a constitutional right has the right to assert it in ordinary legal
    proceedings subject to the limitations in the jurisprudence to which I will
    refer later.

[10]

The
    constitutional issue to which Mr. Hills claim gives rise is whether s. 35 of
    the
Constitution Act, 1982
,
together with any applicable treaties, completely displace or otherwise modify
    the application of the
FLA
, the
CLRA
and associated rules to
    this family law dispute between Indigenous parties who live in Ontario. This is
    a complex legal issue with serious implications for the immediate parties and
    more broadly.

[11]

The
    Superior Court of Justice has jurisdiction to decide the constitutional issue.
    It is a court of inherent and plenary jurisdiction, and has authority over
    disputes between citizens and residents subject to the provisions of
    legislation and the Constitution, with associated rights of appeal:

Canada
    (A.G.) v. Law Society of British Columbia
, [1982] 2 S.C.R. 307 at pp.
    326-27. This appears to be trite law and is now common ground on the appeal,
    although the appellant at first instance mounted a comprehensive challenge to
    the jurisdiction of the Superior Court, including its ability to make any order
    in the family law proceedings in the face of his s. 35 claim.

[12]

The
    prospective delay in resolving Mr. Hills constitutional claim added urgency.
    Ms. Beaver needed support for herself and B., and Mr. Hills proposed stay
    would have exempted him from any obligation to pay support under provincial law
    while the constitutional claim proceeded. He implicitly recognized how
    untenable that position was by undertaking to pay support voluntarily at the
    rate of $10,000 monthly, considerably less than the amount required by the
    applicable Ontario guidelines.

[13]

The
    version of Mr. Hills amended answer considered by the motion judge was poorly
    pleaded and lacking in detail. Neither Mr. Hills pleading, nor the ramshackle
    way in which the constitutional claim was asserted and is being developed, does
    justice to the seriousness of the claim. The appellant provided this court with
    a draft Amended Answer and Claim, which would amend extensively the version
    considered by the motion judge. Nonetheless, as I will explain, it was
    premature to dispose of the constitutional claim at this early stage. It is
    difficult to evaluate Mr. Hills claim under s. 35 of the
Constitution Act,
    1982
at this early stage of the
    proceeding. I
t would be unwise to dismiss the claim summarily on
    such a scanty record.

[14]

In
    the end result, I would permit Mr. Hill to seek leave before another Superior
    Court judge to amend his answer to address the motion judges criticisms of his
    pleading and the requirements of the jurisprudence. I would refuse to stay the interim
    support order and would permit Ms. Beaver to pursue any other remedy open to
    her short of a final order while the constitutional challenge is pending. This
    would properly balance the contending interests: Ms. Beavers immediate
    interest in obtaining interim support for herself and B., and Mr. Hills
    interest in having the constitutional claim determined.

C.

The Issues

[15]

The
    appeal raises the following issues:

1.

Should conflict of laws concepts be applied to determine whether the
    Superior Court had jurisdiction over Mr. Hill?

2.

Was it appropriate for the motion judge to strike Mr. Hills constitutional
    claim without leave to amend?

3.

Does Mr. Hill have standing to assert the constitutional claim, and is
    it justiciable?

4.

Was Mr. Hill entitled to a stay of Ms. Beavers family law claims
    pending disposition of his constitutional claims?

D.

Analysis

[16]

I
    address each issue in turn.

(1)

Should conflict of laws concepts be applied to determine whether the
    Superior Court had jurisdiction over Mr. Hill?

[17]

I
    agree with the appellant and with the Attorney General of Ontario that it was
    an error of law for the motion judge to take into account general conflict of laws
    principles in her analysis of the jurisdiction issue raised by the appellant.
    These principles do not provide an apt framework for reconciling Aboriginal
    rights with the family law of Ontario. For the purpose of applying s. 35 of the
Constitution Act, 1982
, Aboriginal rights or Indigenous law do not
    constitute foreign law, even conceptually.

[18]

I
    note here, to be fair, that the appellants approach to the motions at first
    instance was to deny that the general common law rules respecting jurisdiction
    apply where the challenge is founded on a s. 35 right. The motion judge
    described the appellants assertion, at para. 37, that it was premature for the
    court to issue a declaration respecting jurisdiction at that stage, in the
    absence of a full and fair hearing of [the appellants] aboriginal rights case
    on the merits,  [which] can only occur in this case if the court has the
    benefit of a complete evidentiary record respecting relevant current and
    pre-European contact practices, customs and traditions of the Haudenosaunee and
    the people of the Six Nations. This might explain the motion judges resort to
    the concept of attornment. In any event the appellant conceded on appeal the plenary
    jurisdiction of the court.

(2)

Was it appropriate for the motion judge to strike Mr. Hills constitutional
    claim without leave to amend?

[19]

The
    motion judge found Mr. Hills amended answer to be woefully inadequate with
    respect to his constitutional claim. I generally agree with the motion judges
    analysis of the deficiencies in the amended answer, at paras. 76-92 of the
    reasons.

[20]

The
    motion judge did not give Mr. Hill leave to amend the answer in relation to the
    constitutional claim, presumably on the basis that she had dismissed it. In the
    circumstances of this case, this was an error in principle. There is a general
    right to amend pleadings absent non-compensable prejudice: r. 26.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194; r. 11 of the
Family Law
    Rules
, 0. Reg. 114/99. Even where the motion is to strike the pleading for
    failure to disclose a cause of action, the court should consider whether an
    amendment could remedy the deficiency:
Spar Roofing and Metal Supplies Ltd.
    v. Glynn
, 2016 ONCA 296, 348 O.A.C. 330, at para. 37.  Even in this case,
    where the appellant had already amended his answer, the motion judge ought to
    have considered whether he should be given the opportunity to further amend the
    answer in an effort to address the serious deficiencies she identified.

[21]

As
    noted, the appellant provided this court with a draft Amended Answer and
    Claim. It is not our role to decide whether the draft passes pleadings muster.
    That decision lies with the Superior Court of Justice on a proper motion. But I
    will make occasional references to it in these reasons because it clarifies
    somewhat the appellants constitutional claim.

(3)

Does Mr. Hill have standing to assert the constitutional claim, and is
    it justiciable?

[22]

The
    issues of standing and justiciability are best addressed together because the
    motion judges logic for her disposition of both stems from the same root: in
    her view Mr. Hill impermissibly makes a comprehensive claim to self-government
    for the particular Aboriginal community, the Haudenosaunee, to which he, Ms.
    Beaver and B. belong by blood.

[23]

As
    I will explain, the motion judges decision that Mr. Hill does not have
    standing to assert the claim he is making and that it is not justiciable cannot
    be sustained on the record before us. This is a determination that should
    usually (but not invariably) be made on the basis of evidence, as the Supreme
    Court jurisprudence urges.

(a)

The Motion Judges Reasons

[24]

The
    motion judge characterized Mr. Hills constitutional claim under s. 35(1) of
    the
Constitution Act, 1982
, at para. 100, as a broad claim to have
    his family law dispute dealt with through Haudenosaunee processes and laws. She
    concluded, at para. 99, that Mr. Hill did not have standing to make the claim,
    and dismissed the constitutional claim. She added a second reason, at para.
    122, that the constitutional claim was not justiciable.

[25]

On
    the standing issue, the motion judge noted the uncertainty in the law regarding
    the right of an individual member of an Aboriginal community to pursue personally
    a claim based on Aboriginal rights: paras. 96-97. She rejected Mr. Hills
    argument that his claim is essentially individual in nature: para. 98. She
    noted that:

[H]is claim is in essence that the Haudenosaunee and the
    people of the Six Nations as a collective group, or as two separate
    communities, have an inherent right of self-government with respect to the
    management, adjudication and resolution of inter and intra-familial disputes,
    and that he as an individual member of these communities is entitled to avail
    himself of the benefit of that right.

She added, at para. 99:

The Respondent's attempt to describe his claim as
    being purely individual to him does not in my view make sense given that
    aboriginal rights derive from practices, customs and traditions that are
    integral to the distinctive culture of the collective
community
.
    Furthermore, if he were to succeed in advancing such a broad right to be
    governed by Haudenosaunee adjudicative processes and laws, the decision would
    have precedential value for all other Haudenosaunee peoples, which would in
    essence render any established right a communal one. The notion that an
    individual member of an aboriginal group can on their own initiative and for
    their sole benefit seek to define the content of broad Haudenosaunee rights of
    self-government in Family Law matters is simply not tenable.

[26]

On
    justiciability, the motion judge again characterized Mr. Hills claim as essentially
    a claim to self-government. She noted, at para. 123, that courts cannot
    adjudicate upon claims involving broadly framed rights of self-governance. She
    referred, at para. 124, to Lamer C.J.s statement that aboriginal rights
    claims to self-government, if they exist, are not cognizable under s. 35(1)
    if they are cast in overly broad terms:
Delgamuukw v. British Columbia
[1997] 3 S.C.R. 1010, at para 170. She also cited this courts decision to the
    same effect in
Mississaugas of Scugog Island First Nation v. National
    Automobile, Aerospace, Transportation and General Workers Union of Canada
,
    2007 ONCA 814, 231 O.A.C. 113 (at paras. 18 and 47), leave to appeal to the
    S.C.C. denied , [2008] S.C.C.A. No. 35.

[27]

The
    motion judge analyzed and rejected Ms. Beavers argument that some of the
    claims Mr. Hill makes in his answer should be struck as incompatible with Crown
    sovereignty, at paras. 108-121. Although I do not necessarily agree with the
    text of every paragraph in her reasons on this point, in my view she correctly
    refused to strike the amended answer on this basis.

(b)

Discussion

(i)

The Governing Principles

[28]

I
    pick out five relevant principles from the jurisprudence. First, courts have
    been instructed to keep in mind the basic purpose of s. 35(1) of the
Constitution
    Act, 1982
, which is the reconciliation of the pre-existence of aboriginal
    societies with the sovereignty of the Crown:

per Lamer C.J. in

R.
    v. Van der Peet
, [1996] 2 S.C.R. 507 at para. 31, see also

Delgamuukw
,
    at para. 186, and
Haida Nation v. British Columbia (Minister of Forests)
,
2004 SCC
    73, [2004] 3 S.C.R. 511, at para. 17
. Proceedings in this area call for
    a measure of flexibility not always present in ordinary litigation:

Lax
    Kwalaams Indian Band v. Canada (Attorney General)
, 2011 SCC 56 [2011]
    3 S.C.R. 535, at para. 46.

[29]

Second,
    because we are still feeling our way in this delicate area, courts should avoid
    making definitive pronouncements where a case is in the early stages and where the
    applicable law is yet in the early stage of development:
Behn v. Moulton
    Contracting Ltd.
, 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 32 and 35.

[30]

Such
    caution is consistent with the decision in
Lax Kwalaams Indian Band
.
    Binnie J. noted, at para. 11, that Aboriginal and treaty claims are complex.
    They are best suited to civil actions for declaratory relief, where there are
    pleadings, pre-trial discovery and procedural advantages afforded by the civil
    rules of practice to facilitate a full hearing of all relevant issues. He
    added an important caution:

Such potential advantages are
    dissipated, however, if the ordinary rules governing civil litigation,
    including the rules of pleading, are not respected. It would not be in the
    public interest to permit a civil trial to lapse into a sort of free-ranging
    general inquiry into the practices and customs of pre-contact Aboriginal
    peoples from which, at the end of the day, the trial judge would be expected to
    put together a report on what Aboriginal rights might, if properly raised in
    the pleadings, have been established.

The pleadings play an important role in defining the
    issues.

[31]

Third,
    Binnie J. concluded his observations in
Lax Kwalaams Indian Band
with
    a clear direction, at para. 12: The existence and scope of Aboriginal rights
    protected as they are under s. 35(1) of the
Constitution Act, 1982
,
    must be determined after a full hearing that is fair to all the stakeholders. This
    direction should give courts some pause before employing summary processes such
    as pleadings motions to dismiss claims involving Aboriginal and treaty rights.

[32]

Fourth,
    the four-stage structure for analyzing s. 35(1) claims was set out by the
    Supreme Court in
Lax Kwalaams Indian Band
, at para. 46. The decision
    built on the framework initiated in
R. v. Sparrow
,
[1990] 1 S.C.R. 1075 and developed
    further in
Van der Peet
. This structure would apply with necessary
    modifications to Mr. Hill:

First, at the characterization stage,
    identify the precise nature of the First Nation's claim to an Aboriginal right
    based on the pleadings. If necessary, in light of the evidence, refine the
    characterization of the right claimed on terms that are fair to all parties.

Second, determine whether the First Nation has proved, based on
    the evidence adduced at trial:

(a) the existence of the pre-contact
    practice, tradition or custom advanced in the pleadings as supporting the
    claimed right; and

(b) that this practice was integral to
    the distinctive pre-contact Aboriginal society.

Third, determine whether the
    claimed modern right has a reasonable degree of continuity with the
    "integral" pre-contact practice. In other words, is the claimed
    modern right demonstrably connected to, and reasonably regarded as a
    continuation of, the pre-contact practice? At this step, the court should take
    a generous though realistic approach to matching pre-contact practices to the
    claimed modern right. As will be discussed, the pre-contact practices must
    engage the essential elements of the modern right, though of course the two
    need not be exactly the same.

[33]

The
    fourth stage is to consider whether any infringement of the right established
    on the evidence could be justified.

[34]

Finally,
    how the individual and collective aspects of Aboriginal and treaty rights are
    to be reconciled practically in live litigation like this case is an unresolved
    issue.

[35]

In
Behn
,
the Supreme
    Court considered when and how an individual might personally claim the shelter
    of a communal constitutional right under s. 35, which is the issue we face here.
    While acknowledging, at para. 31, that the duty to consult is owed to the
    Aboriginal community and cannot be asserted by an individual, the court
    resisted the invitation of intervenors to classify or categorize Aboriginal or
    treaty rights into those that are exclusively collective, those that are
    predominantly individual and those that are mixed: paras. 34-35.

[36]

The
    analysis is subtle, and can best be seen by considering together several
    passages. LeBel J. noted the Crowns argument, at para. 33, that claims in
    relation to treaty rights must be brought by, or on behalf of, the Aboriginal
    community. He rejected this argument: This general proposition is too
    narrow. While accepting that Aboriginal and treaty rights are collective in
    nature, LeBel J. left the door ajar for individuals to assert or protect such
    rights:

However, certain rights, despite
    being held by the Aboriginal community, are nonetheless exercised by individual
    members or assigned to them. These rights may therefore have both collective
    and individual aspects. Individual members of a community may have a vested
    interest in the protection of these rights. It may well be that, in appropriate
    circumstances, individual members can assert certain Aboriginal or treaty
    rights, as some of the interveners have proposed.

[37]

LeBel
    J. noted, at para. 35, that despite the collective aspect of Aboriginal and
    treaty rights, rights may sometimes be assigned to or exercised by individual
    members of Aboriginal communities, and entitlements may sometimes be created in
    their favour. Consequently, he observed: it could be said that these rights
    might belong to them or that they have an individual aspect regardless of their
    collective nature.

[38]

The
    Supreme Court was not required in
Behn
to make a definitive ruling on
    how the individual and collective aspects of Aboriginal and treaty rights are
    to be reconciled practically in live actions because the case, which was about
    fishing rights, was decided on the ground of abuse of process. But the courts
    observations are instructive.

(ii)

The Principles Applied

[39]

Mr.
    Hill has no authority to pursue a constitutional claim on behalf of the
    Haudenosaunee or the people of Six Nations. He is not a representative
    plaintiff. However, this is not necessarily fatal to Mr. Hills personal claim
    to have the parties family law dispute decided through Haudenosaunee
    governance processes and protocols and according to Haudenosaunee laws. Consistent
    with LeBel J.s observations in
Behn
, some Aboriginal and treaty
    rights might be capable of being asserted by an individual. The claim Mr. Hill
    makes could fall into that category, depending on how the evidence unfolds.

[40]

The
Sparrow
framework requires the court first to characterize the Aboriginal
    and treaty claim, and then to refine it if necessary. This can only be done by
    looking at the pleading, which has changed significantly.

A Moving Target?

[41]

Earlier,
    I made the observation that Mr. Hills claim had been pursued in a ramshackle
    way. Counsel for Ms. Beaver argues that Mr. Hill continues to present a moving
    target, which changes as success eludes him. It could be said that his position
    is evolving as his lawyers grasp more clearly the full implications of his
    claim and what he will need to prove in order to be successful. The case we are
    asked to consider is not the same as the one before the motion judge.

[42]

The
    case has changed in two ways. First, as I have already observed, the thrust of
    Mr. Hills argument to the motion judge was that the Superior Court had no
    jurisdiction over this family law dispute, based on s. 35 of the
Constitution
    Act, 1982
. The Superior Courts undoubted jurisdiction is now conceded by
    Mr. Hill. Second, Mr. Hill insisted before the motion judge that he was
    asserting an essentially individual claim, although his pleading could arguably
    be characterized as a claim to self-government. Mr. Hills draft amended
    answer clarifies his claim somewhat.

[43]

I
    proceed by considering first the amended answer before the motion judge and
    then the draft amended answer filed with this court.

The Amended Answer Assessed by the Motion Judge

[44]

In
    the amended answer Mr. Hill began by describing the dispute as one concerning
    quantum of child support and whether he has any spousal support obligations
    to Ms. Beaver.

[45]

In
    relation to the constitutional claim, Mr. Hills pleading largely tracked the
Sparrow
framework. He asserted an Aboriginal and treaty right to be bound by the laws
    of the Haudenosaunee and the people of the Six Nations of the Grand River,
    including with respect to the care and support of children, and obligations
    from intimate relationships. He claimed the right to have this dispute
    resolved through processes, and pursuant to protocols, that are determined and
    specific to the Haudenosaunee and the people of the Six Nations of the Grand
    River.

[46]

Mr.
    Hill asserted the historical dimension:

The Haudenosaunee and the people of the Six Nations have,
    since prior to the arrival of European settlers and colonization, a robust law,
    a dispute resolution system, which, among other things, determined how disputes
    within and between families were to be resolved.

[47]

He
    added a reference to continuity:

This system of law and governance
    has been practiced continuously since the time of contact with European
    settlers, despite the operation of other, colonial legal systems. It is
    distinct to the Haudenosaunee and the Iroquois people of the Six Nations of the
    Grand River. It is comprehensive and exclusive, in its application to the
    Haudenosaunee and the people of the Six Nations of the Grand River within their
    lands and territory. The right of the Haudenosaunee and the people of the Six
    Nations of the Grand River [to] be governed, and to have intra- and inter-familial
    disputes resolved through and according to this system has never been
    extinguished nor surrendered.

[48]

Finally,
    Mr. Hill asserted that: the application and imposition of the
Family Law
    Act
of Ontario, and associated laws, regulations, and legal processes to
    this dispute infringe his right, and the infringement is not justified.

[49]

I
    agree with the motion judges trenchant and accurate criticisms of the version
    of Mr. Hills pleading before her. I make no substantive comments on the
    adequacy of the draft amended pleading; that is the task of a Superior Court
    judge. But it factors into the analysis.

The Draft Amended Answer and Claim

[50]

The
    pleading considered by the motion judge was sparse and consisted of 20
    paragraphs. The draft pleading now consists of 176 paragraphs. The first 119
    paragraphs respond in conventional terms to the application. The thrust of
    these paragraphs is to address what Mr. Hill continues to call a dispute
    concerning quantum of child support and whether he has any spousal support
    obligations to Ms. Beaver.

[51]

There
    is a lengthy new section on constitutional issues that is 56 paragraphs long
    and elaborates considerably on the earlier pleading. The appellants
    constitutional claim has been clarified somewhat. In self-government terms, the
    draft pleading describes an organization known as the Haudenosaunee
    Confederacy Council, which is said to be the peak body that acts as a forum
    for resolution of disputes, and coordinates discussions and deliberations
    leading to decisions of the Haudenosaunee. It adds that the Confederacy
    Council does function as the highest forum for resolving disputes, including
    family disputes.

[52]

The
    draft pleading states in paras. 150 and 151:

In or about 2016, the Respondent gave notice of the Dispute to
    the Confederacy Council.

The Confederacy Council has not
    yet determined the Dispute, in part because the Applicant has brought these
    proceedings in the Ontario Superior Court of Justice.
It is the stated
    position of the Confederacy Council that no Haudenosaunee person should
    compromise their sovereignty by appearing before courts of another
    jurisdiction.
(Emphasis added.)

[53]

This
    would appear to be a sweeping claim by the Haudenosaunee Confederacy Council to
    a form of sovereign immunity from the laws of Ontario and of Canada. In oral
    argument, counsel advanced the claim that Haudenosaunee laws in relation to
    this family dispute are exclusive and compulsory for Haudenosaunee people
    including the appellant, the respondent, and B. This is the upshot of the draft
    pleading, which states at paras. 163 and 164:

The Respondent pleads that, as a Haudenosaunee person and as a member
    of the Six Nations of the Grand River,
he has a right to be governed by
    Haudenosaunee law and governance systems, and to have the dispute resolved
    within and pursuant to the jurisdiction and authority of his own government,
    rather than by or pursuant to the Province of Ontario
, a provincially or
    federally mandated adjudicative body, and provincial or federal law. He pleads
    that these rights are recognized and affirmed under s. 35(1) of Canadas
Constitution
    Act, 1982
.

Further, the Applicant, as a
    Haudenosaunee person and a member of the Six Nations, cannot avoid her
    responsibilities to her community by opting out of Haudenosaunee laws,
    processes, and protocols.
Under Haudenosaunee law, once the Respondent has
    invoked the laws, processes, and protocols of the Haudenosaunee by notifying
    the Confederacy Council of the dispute, as he did in 2016, he has the right to
    have the dispute determined according to these laws, processes, and protocols,
    and the Confederacy Council has the responsibility to determine the dispute
    under Haudenosaunee laws, processes, and protocols by the means set out above.
Both
    parties have the responsibility to comply with the results
. (Emphasis
    added.)

[54]

Mr.
    Hill asserts that neither the
FLA
nor the
CLRA
apply to him
    or to Ms. Beaver and B., and, in fact, any effort to apply Ontario law would infringe
    his s. 35 rights as a Haudenosaunee person. In oral argument counsel sharpened
    the claim by referring to several American authorities, which rest on a theory
    of complete Aboriginal sovereignty in some spheres:
Fisher v. District
    Court
, 424 U.S. 382 (1976),
Davis v. Means
, Indian Law Reporter
    6125 (Navajo Nation Supreme Court 1994). This is evidently the claim Mr. Hill
    wants to pursue.

[55]

Counsel
    pointed out that some limited recognition has been given to this feature of American
    law in Canada. In
S.R.L. v. K.J.T.
, 2014 BCSC 1562, with respect to a
    First Nations couple and their two children who resided in British Columbia,
    Fenlon J. recognized the jurisdiction of the
Shakopee
    Mdewakanton Sioux (Dakota) Community Tribal Court in Minnesota
respecting divorce, property division and spousal support, but took
    jurisdiction over parenting and child support; this outcome was accepted by the
    judge of the Tribal Court whose analysis of American law led to the same result.

[56]

This
    is quite different from the constitutional basis of reconciliation heretofore
    understood to be the Canadian vision under s. 35 as expressed in
Van der Peet,
    Delgamuukw
, and
Haida

Nation
.

[57]

In
    oral argument, the appellants counsel agreed that characterizing Haudenosaunee
    laws as exclusive and compulsory in relation to this family dispute was the
    strongest form of Aboriginal right Mr. Hill could claim, but he allowed that
    the case might not pan out for Mr. Hill that way based on the evidence and the
    development of the law.

Do the Clarifications Affect the Analysis?

[58]

I agree with the motion judge that Mr. Hills constitutional
    claim does draw on an aspect of self-government, because in order to succeed,
    he must establish the existence, in reality, of a functioning family dispute
    resolution system, personal access to which qualifies as an Aboriginal right
    under s. 35 of the
Constitution Act, 1982.

[59]

On
    their face, the clarifications of Mr. Hills position in the draft pleading
    appear to support Ms. Beavers argument that he is really making a strong claim
    to self-government, one that is no longer veiled or unclear. Accordingly, her
    counsel argued, the motion judge got it right on the self-government issue and
    on standing. She added that Mr. Hills assertions do not seek reconciliation of
    two systems, which the Supreme Court envisaged as the essential spirit of s. 35
    of the

Constitution Act, 1982
in its decisions on
    reconciliation. He is not seeking the accommodation of Aboriginal perspectives
    in Ontario family law, but the exclusion of Ontario law. This is not
    reconciliation but repudiation, and on that basis alone is constitutionally
    unsound.

[60]

I
    do not see it that way, for four reasons. First, Mr. Hill is not personally or
    by proxy representing the Haudenosaunee Confederacy Conference. The Conference
    is not a party to these proceedings, nor at this stage has the Confederacy
    chosen to intervene. How the Confederacy actually sees its s. 35 rights is not
    known.

[61]

Second,
    Mr. Hills personal rights depend on the proven existence of a functioning Indigenous
    family dispute resolution system, access to which qualifies as an Aboriginal
    right under s. 35 of the
Constitution Act, 1982
. How the
    constitutional claim fares on the evidence is not the issue before us. That is
    for another forum. Mr. Hills focus now is not so much on self-government at
    large, but on having whatever support obligations he might owe determined
    through the Indigenous family dispute resolution system. Consequently, despite
    his own earlier characterization of the claim, Mr. Hills claim is not
    exclusively a claim to self-government.

[62]

Third,
    although it is true that the determination of Mr. Hills claim might affect
    other Haudenosaunee people, this does not make this constitutional dispute
    different from any other. This feature is common to much constitutional
    litigation. Consider the example of minority language education rights.

[63]

Fourth,
    I would note that the recognition of separate spheres of jurisdiction is a form
    of reconciliation, albeit not the one that Ms. Beaver seeks.

[64]

It
    is not clear to me at this early stage of the litigation that Mr. Hill lacks
    standing to make the constitutional claim, or that it is not justiciable. I
    noted above that it is axiomatic that a person who has a constitutional right
    has the right to assert it in ordinary legal proceedings, as Mr. Hill has done,
    subject to the limitations in the jurisprudence.

[65]

If
    Mr. Hills factual assertions about the existence of Haudenosaunee laws and
    protocols are true, and if he can prove they do qualify as Aboriginal rights
    under s. 35 of the

Constitution Act, 1982
, then I see no way for
    him to obtain access to the alleged Aboriginal family dispute resolution system
    to which he claims entitlement other than by the means he has pursued in this
    case.

[66]

However,
    Mr. Hills claim faces some serious, perhaps insuperable obstacles raised by
    the jurisprudence, including the following. First, the underlying facts are
    disputed. Ms. Beavers evidence is that there is no such robust law that Aboriginal
    persons from Six Nations have used and are using to resolve their family law
    issues, as the motion judge pointed out at para. 24. She noted Mr. Hills
    failure to adduce any evidence as to the Haudenosaunee laws and protocols that
    he relies on, at para 151. This might turn out to be fatal to Mr. Hills claim
    under the
Sparrow
framework.

[67]

Second,
    it is not yet clear whether the Aboriginal law to which Mr. Hill refers, if it
    exists, would entirely displace Ontario family law or only modify it, a
    possibility to which the motion judge alluded at para. 89. Indeed, many of the
    assertions he makes in the draft pleading could easily inform the process under
    Ontario law, leading to the form of reconciliation to which Ms. Beavers
    counsel alluded.

[68]

Third,
    it is not clear whether the Aboriginal law would bind Ms. Beaver and B., who do
    not live on the reserve, if they do not consent to its application to them.

[69]

In
    short, neither the constitutional claim, nor the standing issue, is ripe for
    disposition on this record. I would set aside the motion judges dismissal of
    the claim and her determination of the standing issue. It would be open to Ms.
    Beaver to pursue a motion for summary judgment after the pleadings have been
    improved and the evidence has been adequately developed.

(4)

Is Mr. Hill entitled to a stay of Ms. Beavers family law claims pending
    disposition of his constitutional claims?

[70]

The
    motion judge based her analysis of Mr. Hills entitlement to a stay on the
    Supreme Courts decisions in
Metropolitan Stores (MTS) Ltd. v. Manitoba
    Food and Commercial Workers, Local 832
, [1987] 1 S.C.R. 110 and
R.J.R.
    MacDonald Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311.

[71]

The
    motion judge said, at para. 140: I would have declined to grant him a stay of
    the Family Law proceedings even if I had not struck out his Amended Answer. I
    largely agree with her analysis.

[72]

The
    Superior Court of Justice clearly has jurisdiction to grant interim relief
    incidental to its plenary inherent jurisdiction to decide questions of law in
    private and constitutional matters while the s. 35 claim is being determined.

[73]

If
    Mr. Hill wishes to pursue his constitutional claim, he will have to do so while
    at all times abiding fully with the terms of any and all interim orders. Ms.
    Beaver and B. are entitled to enforceable support pending the determination of
    the constitutional claim.

E.

The Motion to Dismiss the Appeal as an Abuse of Process

[74]

Ms.
    Beaver brought a motion to dismiss the appeal as an abuse of process on the
    basis that Mr. Hill had not paid arrears of support and had not complied with
    disclosure orders. This court has held that it would not grant a right of
    audience to an appellant in such a position. Aware of the possibility that this
    would deny him an audience, Mr. Hill paid up the arrears and largely complied
    with the disclosure orders before the hearing of this appeal.

[75]

Ms.
    Beaver nonetheless persisted in the motion on two grounds. First, she pointed
    to the primary objective of family law proceedings as set out in Rule 2 of the
Family
    Law Rules
, which is to deal with cases justly. This includes ensuring
    that the procedure is fair to all parties; saving expense and time; dealing
    with the case in ways that are appropriate to its importance and complexity;
    and giving appropriate court resources to the case while taking account of the
    need to give resources to other cases. Her counsel argued that the protracted
    proceedings in a full bore constitutional case on s. 35 of the
Constitution
    Act, 1982
would defeat the primary objective. Ms. Beaver and B. need their
    support issues to be finally determined.

[76]

The
    second ground advanced by counsel for dismissing on the basis of abuse of
    process is that, quite apart from the constitutional claim, Mr. Hill has taken
    a scorched earth approach to every step of this case, including seven motions
    in this court alone. The moving target characterization applies to Mr. Hills
    changing positions on paternity and custody, for example. He initially denied paternity,
    but in the draft pleading says he is not certain he is [B.]s biological
    father. Before Roberts J.A. on March 14, 2018, she noted that he no longer
    disputes paternity. He seeks access in the draft pleading, but before Sloan J.
    in May he sought leave to amend the answer to include a claim for custody of B.
    The judge refused on the basis that the new custody claim was meant to
    intimidate [Ms. Beaver] and for [Mr. Hill] to get more leverage than he already
    has over the financial issues.

[77]

Nonetheless,
    I would dismiss the abuse of process motion. The appellant has the right to
    advance his constitutional claim, as inconvenient to the respondent, time-consuming
    and expensive as that might be, even in view of the primary objective of family
    law proceedings. However, that does not relieve the judiciary or the parties from
    making every effort to adhere to the primary objective where possible. As for
    controlling abuse of process, that is a matter of case management as well as
    the ordinary application of the
Family Law Rules
, including costs
    consequences.

F.

Going Forward

[78]

This
    case has developed into a procedural morass, to which both sides have
    contributed. A phalanx of lawyers appeared before us. The parties have
    made no effort to save expense or time as required by ss. 2(3) of the
Family
    Law Rules
:
Titova v. Titov
, 2012 ONCA 864, 299 O.A.C. 215, at
    para. 54. Their tactics have led to a proliferation of materials, skirmishes
    and arguments that the Rules seek to avoid. This must not be permitted to
    continue.

[79]

The
    case going forward requires active and determined case management, with a view,
    in particular, to avoiding the sort of free-ranging general inquiry Binnie J.
    deplored in
Lax Kwalaams Indian Band
.
We were told that this
    matter is now being case-managed. It will fall to the case management judge, in
    the first instance, to ensure that this objective is met.

[80]

Mr.
    Hill can easily afford constitutional litigation, it would appear. Not so Ms.
    Beaver. She is simply seeking support under provincial legislation for herself
    and B. in her family dispute; she should not be left to defend the
    constitutionality of provincial legislation as important as the
FLA
and the
CLRA
on her own.

[81]

The
    Attorney General of Ontario has intervened, thus far only on the conflicts of
    laws issue, which has now been resolved. If the Attorney General chooses not to
    become involved in the substantive constitutional issues, in my view it may
    well be an appropriate case for
amicus
to be considered to assist the
    court regarding the constitutionality of the impugned provincial legislation.

[82]

I
    would also observe that this might well be an appropriate case to consider the
    trial of an issue regarding the appellants constitutional claim, which could
    proceed independently of the support and custody issues.

G.

Disposition

[83]

In
    light of these reasons, I would allow the appeal in part by setting aside
    paragraph 4 of the order, which dismissed the constitutional claim, and
    substituting the following: The Respondents Amended Answer and Claim dated
    June 8, 2016 is struck, with leave to amend.

[84]

I
    would otherwise dismiss the appeal.

Released: October 12, 2018

P.
    Lauwers J.A.

I
    agree. K. van Rensburg J.A.

I
    agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2018 ONCA 840

DATE: 20181022

DOCKET: M49327 (C64766)

Lauwers, van Rensburg and Nordheimer JJ.A.

BETWEEN

Brittany Beaver

Applicant (Respondent)

and

Kenneth Hill

Respondent (Appellant)

Chris G. Paliare, Bryan R.G. Smith, and Andrew
    K. Lokan, for the appellant

Harold Niman, Martha McCarthy, Sarah
    Strathopolous, Joanna Radbord, and Scott Byers, for the respondent

Manizeh Fancy and Estee L. Garfin, for the
    Attorney General of Ontario, intervenor

Heard: September 11, 2018

On appeal from the order of Justice D.L. Chappel of the
    Superior Court of Justice, dated December 8, 2017, with reasons reported at
    2017 ONSC 7245, 4 R.F.L. (8th) 53, and reasons on costs reported at 2018 ONSC
    3352, 8 R.F.L. (8th) 288.

Nordheimer J.A.:

[1]

In addition to appealing the decision of the motion judge, the appellant
    also brought a motion for leave to appeal the costs award made by the motion
    judge.  The parties agreed that this aspect of the appeal could be dealt with
    by way of submissions in writing.

[2]

This court has since allowed the appellants appeal.  Thus, the
    appellant no longer requires leave to appeal the costs disposition which
    inevitably requires reconsideration as a result of the successful appeal on the
    merits.

[3]

Nevertheless, in my view, the respondent is still entitled to the costs
    of the original motion to strike the amended answer.  She was successful on
    that motion and that success remains.  This courts decision, on the merits
    appeal, simply provides the appellant with the opportunity to seek to amend his
    answer to properly plead his constitutional argument.  His failure to do so in
    the first instance is what led to the motion to strike.  The respondent should
    not bear the consequences of that failure.

[4]

I begin with the basic premise that costs awards are discretionary and
    entitled to deference.  However, in my view, the motion judge erred in her
    costs decision as a result of her failure to apply two important principles.
    One is proportionality and the other is the reasonableness evaluation of the ultimate
    award.  That error led to a costs award that was excessive.

[5]

This matter began as a motion, by the appellant, to stay the family law
    proceedings until the constitutional issue was heard and determined.  In
    response, the respondent brought a motion seeking 14 different orders or
    declarations, including an order to strike the appellants pleading, a
    declaration that the Superior Court of Justice had jurisdiction to deal with
    the family law issues, and an order staying the appellants constitutional
    case.  It is not clear why the respondent launched such a broad and sweeping
    response, but, having done so, she bears a significant share of the
    responsibility for the unwarranted eight days of court time it took to address
    the issues, even with the serious constitutional issue that was raised.

[6]

On that latter point, it must be remembered that the motion judge was
    not being called on to determine the constitutional issue.  Her task was, in
    essence, to determine whether the answer adequately pleaded the constitutional
    issue and, if so, whether that issue ought to proceed before, after, or
    concurrently with the family law claims.  Unfortunately, the motions traversed
    into other issues, the answers to which were either obvious or unnecessary to
    the narrow issues that were before the motion judge.

[7]

In terms of her costs award, the motion judge correctly concluded that a
    risk premium could not be awarded.  She also correctly concluded that this was
    not a case for a full recovery award of costs.

[8]

Yet, that is not how the costs in this case were determined.  Rather,
    the resulting award approached a full recovery amount.  In defence of that
    result, the respondent relies on what is contended to be the principle from

Biant
    v. Sagoo
, [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that
    costs in family proceedings should generally approach full recovery.  I would
    make a couple of points in response to that contention.

[9]

First, while the judge in
Biant
does make that statement, it is
    based on two decisions of other Superior Court judges, a close reading of which
    do not support the thrust of that statement.  What those other cases do
    establish is that under the
Family Law Rules
, O. Reg. 114/99, judges
    are not constrained to the normal scales of costs found in the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, since no scales of costs are
    mentioned in the
Family Law Rules
.  Also, the
Family Law Rules
expressly provide that, depending on the conduct of the parties and the
    presence or absence of offers to settle, a judge may increase or decrease what
    would otherwise be the appropriate quantum of costs awarded.

[10]

Second,
    the respondents assertion that this courts decision in
Berta v. Berta
,
    2015 ONCA 918, 128 O.R. (3d) 730 supports the full recovery approach to costs
    in family matters also reflects a failure to read the decision closely.  What
    this court endorsed in that case was the principle that a successful party in
    a family law case is presumptively entitled to costs (at para. 94) subject,
    though, to the factors set out in Rule 24.  This caveat is an important one
    since, as this court pointed out in
Frick v. Frick
, 2016 ONCA 799, 132
    O.R. (3d) 321, the
Family Law Rules
embody a philosophy peculiar to a
    lawsuit that involves a family (at para. 11).

[11]

There
    is no provision in the
Family Law Rules
that provides for a general
    approach of close to full recovery costs.  Rather, r. 24(12) sets out the
    appropriate considerations in fixing the quantum of costs.  It reads:

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the
    following factors as it relates to the importance and complexity of the issues:

(i) each partys behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle,
    including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the
    number of lawyers and their rates,

(v) any expert witness fees,
    including the number of experts and their rates,

(vi) any other expenses properly
    paid or payable; and

(b) any other relevant matter

[12]

As
    the wording of the rule makes clear, proportionality and reasonableness are the
    touchstone considerations to be applied in fixing the amount of costs.

[13]

Further,
    a close to full recovery approach is inconsistent with the fact that the
Family
    Law Rules
expressly contemplate full recovery in specific circumstances,
    e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14).
    Consequently, the motion judge erred in principle in adopting a close to full
    recovery approach in fixing the costs of these motions.  I would note that such
    a result also appears inconsistent with her determination that full recovery
    costs were not appropriate in this case.

[14]

This
    error underlies the problem with the motion judges ultimate costs assessment.
    The motion judge did undertake a review of the hours spent, and made a number
    of reductions to them.  I would note, in passing, however, that she left
    untouched some problematic inclusions such as time and expenses associated with
    travelling to court.  Having reviewed the hours charged, though, the motion
    judge did not evaluate the hourly rates charged with the proportionality and
    reasonableness principles in mind.

[15]

The
    motion judge also gave undue weight to the respondents offer to settle, along
    with the appellants failure to make an offer to settle.  Although I accept
    that the presence or absence of offers to settle can properly be taken into
    account in fixing costs, it remains the fact that the appellant was not under
    any obligation to proffer an offer to settle.  Further, before the absence of
    an offer to settle can properly be used against a party, the situation has to
    be one where it is realistic to expect offers to settle to be made.  The case
    here was not a situation where the issues could have been settled in any
    practical way.  Either the appellant was going to be able to proceed with his
    constitutional claim or he was not.  There was no way of compromising on that
    central issue.  Consequently, this was not a case where the presence or absence
    of offers to settle should have played any material role in determining the
    appropriate quantum of costs.

[16]

That
    salient point also impacts on the respondents offer to settle.  Her offer to
    settle does not reflect a compromise, given that it included a requirement that
    the appellant completely abandon his constitutional argument.  It is recognized
    that the failure of an offer to settle to contain a true element of compromise
    is a factor to be considered in deciding whether the offer properly impacts on
    the appropriate award of costs.  In addition, judges should be very cautious about
    relying too heavily on this factor to increase or decrease the quantum of
    costs, when the specific Rules regarding such offers are not directly engaged.
    Even under r. 24(5)(a) of the
Family Law Rules
, it is but one factor
    that is to be considered.

[17]

The
    motion judge also determined that it was appropriate to award the respondent
    85% of her full recovery costs.  The motion judge did not explain where she
    drew this percentage from or why it was appropriate to apply it in this case.    On
    that point, I would note that employing 85% seems to simply be another way of
    utilizing a close to full recovery approach.

[18]

Another
    concerning aspect of the motion judges costs award is the fact that she
    appears to have increased the amount of costs as a consequence of the
    appellants ability to pay, along with her perception that the respondent was
    in need of a larger award in order for her to have the ability to pay her
    legal bills.  Neither of these considerations are appropriate ones when fixing
    the quantum of costs.  There is no principle relating to costs that requires
    wealthier individuals to pay more for costs for the same step in a proceeding
    than less wealthy ones.  While it may be appropriate, in the exercise of a
    judges overriding discretion, to reduce the quantum of costs that a party will
    have to pay because of their financial condition, this principle does not apply
    in the reverse.
[1]

[19]

What
    is most important, however, is that the motion judge did not consider the
    principle of proportionality.  Proportionality is a core principle that not
    only governs the conduct of proceedings generally, but is specifically applicable
    to fixing costs in family law matters, as I have set out above.

[20]

The
    motion judge never considered whether a costs award of over $300,000 was proportionate
    to the issues raised by the motions that were before her.  It was an error in
    principle for her not to do so.

[21]

There
    is a final factor to which the motion judge appears to have given only passing
    consideration: the respondents motion that sought a wide variety of relief,
    almost all of which she was unsuccessful in obtaining and which greatly
    extended the hearing time.  The motion judge did not make any adjustment to the
    costs award arising from this element of divided success.
[2]

[22]

In
    terms of quantum, the appellant suggested, before the motion judge, that the
    upper limit for a costs award in this case should be $100,000.  On appeal, the
    appellant has adjusted that upper limit to $200,000.  In my view, both of those
    amounts are exceptional for what was actually involved in these motions.  That
    said, I am conscious of the fact that a court should avoid overly penalizing
    the parties for errors made by their counsel in terms of the overall conduct of
    the matter.  In the end, I adopt the appellants revised upper limit and fix
    the costs of the original motions at $200,000 payable by the appellant to the
    respondent, inclusive of disbursements and HST.

[23]

I
    would not interfere with the motion judges conclusion that the costs should be
    designated as relating to support and thus enforceable by the Family
    Responsibility Office, although I do note that the appellant has since paid the
    costs so this issue would appear to be moot.

[24]

This
    leaves the costs of the appeal itself.  If the parties have not resolved those
    costs, they may make brief written submissions (no more than five pages and no
    case authorities need be filed).  The appellant shall file his submissions
    within 10 days and the respondent shall file her submissions within 10 days
    thereafter.  No reply submissions are to be filed.

Released: October 22, 2018

I.V.B. Nordheimer J.A.

I agree. P. Lauwers J.A.

I agree. K. van Rensburg J.A.

[1]

That this approach applies in the family law context seems
    implicit in this courts decision in
C.A.M. v. D.M.
(2003), 67 O.R. (3d) 181 (C.A.) at para. 42.

[2]

Divided success is an appropriate consideration in fixing
    costs in family law matters  see r. 24(6).


COURT OF APPEAL FOR ONTARIO

CITATION: Birchland Plywood-Veneer Ltd. v. Activa Trading Co.
    Ltd., 2018 ONCA 846

DATE: 20181024

DOCKET: M49487 (C59583)

Hoy A.C.J.O, Sharpe and Fairburn JJ.A.

BETWEEN

Birchland Plywood-Veneer Ltd.

Responding Party (Respondent)

and

Activa Trading Co. Ltd. and MLS Machinery
    Incorporated

Moving Parties (Appellants)

Terry Corsianos, for the moving parties

Dhiren R. Chohan, for the responding party

Heard: October 18, 2018

REASONS FOR DECISION

[1]

On April 14, 2015, the Deputy Registrar dismissed the moving parties
    appeal for delay. In May 2018, the moving parties brought a motion to set aside
    the Deputy Registrars order. The motion was dismissed by MacFarland J.A. The
    moving parties now bring a subsequent motion to review the order of MacFarland
    J.A.

[2]

The responding party commenced an action against
    the moving parties in July 2010. The action pertained to the responding partys
    purchase of equipment from the moving parties in November 2007. Default
    judgment was obtained and damages were awarded in March 2011. Although the
    moving parties filed a notice of motion for an order to set aside the default
    judgment in May 2011, the motion was not heard until September 2014. The moving
    parties tried to explain the over three-year delay between the default judgment
    and the motion as having resulted from the incompetence of a series of lawyers
    they had retained.

[3]

The motion judge gave multiple reasons for
    dismissing the motion to set aside the default judgment. He rejected the moving
    parties position that they had not been served with the statement of claim in
    August 2010; found that, through their principal, the moving parties had attempted
    to manipulate the litigation; concluded that the responding party had been
    prejudiced by the delay; and determined that the delay had not been adequately
    explained.

[4]

After a correct recitation of the law and
    careful review of the evidence, the motion judge ultimately concluded that the
    equities of the situation demand that the motion be dismissed despite the
    prejudice that would flow to the [moving parties] from failure to set aside
    default Judgment and the obvious and meaningful weight that Courts often accord
    this final consideration.

[5]

The moving parties then appealed to this court,
    after which more delay accrued. Although the moving parties were twice ordered
    to perfect their appeal by specified dates, they did not do so.

[6]

Accordingly, on April 14, 2015, the Deputy
    Registrar dismissed the appeal for delay. The moving parties did nothing to
    resurrect their appeal for over three years. The only explanation offered by
    the moving parties for failing to act is that they had again received poor legal
    representation. They point to a single email exchange with a prior lawyer in
    April 2015 as evidence that they thought things were in hand and that the
    lawyer was drafting the application to place the appeal back on the list. We
    agree with MacFarland J.A.s observation that [i]t is impossible on this
    record to make any conclusion except that this litigation was seemingly
    parked until the timing served [the moving parties] better.

[7]

It is against that factual backdrop  almost
    eleven years since the original purchase that ultimately gave rise to the
    dispute  that MacFarland J.A. concluded that the moving parties had lost their
    right to have their case determined on the merits. Although the moving parties
    argue that they have a strong defence to the claim on the merits, the original
    motion judge, whose decision would be the subject of any potential appeal, was
    cognizant of the fact that arguable defences ought to be given every
    reasonable opportunity to be advanced in Court. Yet he concluded that, taking
    into account all of the circumstances, the equities of the situation demanded
    that the motion be dismissed. We see no error in that approach.

[8]

Nor do we see error in MacFarland J.A.s careful
    review of the factual record or her application of the legal principles to
    those facts. As she found, the delay has been extraordinary, the moving
    parties have failed to address that delay in any meaningful way, and prejudice
    would result to the responding party if the matter were to be permitted to
    proceed at this stage.

[9]

The motion is dismissed. Costs to the respondent
    fixed in the sum of $5,000 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.
Robert J. Sharpe J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: C. Valery Construction Limited v. Battilana, 2018
    ONCA 849

DATE: 20181023

DOCKET: C65022, C65023, C65024 and C65206

Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

BETWEEN

C. Valery Construction
    Limited

Applicant (Appellant)

and

Flavio Battilana, Diana Battilana, Mark Peter
    Fingland, Rebecca Jane Raven and Merike Laigna

Respondents (Respondents)

AND
    BETWEEN

Merike Laigna

Applicant (Respondent)

and

C. Valery Construction
    Limited

Respondent (Appellant)

AND
    BETWEEN

Mark Peter Fingland and
    Rebecca Jane Raven

Applicants (Respondents)

and

C. Valery Construction
    Limited

Respondent (Appellant)

AND BETWEEN

Flavio Battilana and
    Diana Battilana

Applicants (Respondent)

and

C. Valery Construction
    Limited

Respondent (Appellant)

Ronald Allan, for the appellant, C. Valery Construction
    Limited

M. Scott Martin, for the respondents, Mark Peter
    Fingland and Rebecca Jane Raven

Jordan Diacur, for the respondents, Flavio Battilana and
    Diana Battilana,

Alan V. Mills, for the respondent, Merike Laigna

Heard and released orally: October 17, 2018

On appeal from the
    judgment and order of Justice Kim A. Carpenter-Gunn of the Superior Court of
    Justice, dated January 26, 2018.

REASONS FOR DECISION

[1]

The appellants principal submission is that the application judge erred
    by failing to direct the trial of an issue or convert the application into an
    action.

[2]

The appellant chose to proceed with an application. The respondents
    filed cross-applications. There were contested factual issues but those issues
    were obvious from the outset and at no point did the appellant object to the
    matter being determined on an application. In these circumstances, we cannot agree
    with the submission that the application judge erred by failing to direct on
    her on initiative the trial of an issue or convert the application to an action.
    See:
1213763 Ontario Inc. v. Shopsys Hospitality Inc.
, 2008 ONCA 865
    at para. 25.

[3]

The appellant also submits that the application judge erred in finding
    that the respondents Fingland and Raven and the respondent Battilanas made
    lasting improvements sufficient to trigger their claim pursuant to
the
    Conveyancing in Law Property Act
s. 37. The appellant does not take issue
    with the legal test applied by the trial judge but contends that the facts of
    these cases do not bring them within that test. That is an issue of mixed fact
    and law to which a deferential standard of palpable and overriding error
    applies.

[4]

We are not persuaded that the appellant has met that standard. The
    respondents did make significant improvements and it was open to the
    application judge to find that they satisfied the legal test that she correctly
    stated. Applying the appropriate standard of review, we are required to defer
    to that finding.

[5]

The judgment in favour of the respondent Laigna, who succeeded on
    proprietary estoppel, is only appealed on the issue of whether the application
    judge erred by deciding the case by way of application. Accordingly, it is not
    necessary for us to deal with proprietary estoppel.

[6]

The appeals are dismissed.

[7]

Costs are awarded to the respondent or respondents on appeal in each
    proceeding, fixed in the amount of $8,000 inclusive of taxes and disbursements.

Alexandra
    Hoy A.C.J.O.

Robert J. Sharpe
    J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Campisi v. Ontario (Attorney General), 2018 ONCA
    869

DATE: 20181030

DOCKET: C64008

Rouleau, Watt and Brown JJ.A.

BETWEEN

Joseph Campisi

Applicant (Appellant)

and

Her Majesty in Right of Ontario as Represented by
    the Attorney General of Ontario and the Insurance Bureau of Canada

Respondents (Respondents)

Rocco Galati and Peter Murray, for the appellant

Daniel Guttman and Padraic Ryan, for the Attorney
    General of Ontario

Jeff Galway, for the Insurance Bureau of Canada

Heard and released orally: October 23, 2018

On appeal from the order
    of Justice Edward P. Belobaba of the Superior Court of Justice dated May 31,
    2017, with reasons reported at 2017 ONSC 2884.

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of his application for a
    declaration that two provisions of the
Insurance Act
R.S.O. 1990, c.
    I.8, relating to automobile accident claims   ss. 267.5(1) and 280  violate ss.
    7 and 15 of the
Charter
and that s. 280 contravenes s. 96 of the
Constitution
    Act, 1867
. Section 267.5(1) places limits on the recovery of pre-trial
    income loss and s. 280 confers jurisdiction over statutory accident benefits
    disputes to an administrative tribunal.

[2]

The application judge found that the appellant, a lawyer, lacked private
    and public interest standing to bring the application. The fact that his
    practice involved representing clients who were affected by these provisions did
    not give him standing to mount a challenge to the sections. The appellant
    maintains that the application judge erred in denying both private and public interest
    standing.

[3]

We disagree.

[4]

In our view, the application judge correctly determined that private
    interest standing is not made out. The appellant failed to demonstrate that the
    impugned provisions affect him personally and directly. The appellants
    experience litigating insurance claims and his concern for properly advising
    his clients and for adequately settling their claims falls short of
    establishing that the provisions had a direct impact on him. As the application
    judge noted, the appellant has not been injured in an automobile accident, is
    not claiming for lost income, and is not disputing a statutory benefit entitlement
    before the administrative tribunal.

[5]

Turning to the issue of public interest standing, the appellant argues,
    in effect, that the application judge considered each of the three factors in
Canada
    (A.G.) v. Downtown Eastside Sex Workers
, 2012 SCC 45, [2012] 2 S.C.R.
    524, separately, requiring that each of the three be satisfied. In his
    submission, the application judge ignored the flexibility in the application of
    the test that the Supreme Court of Canada prescribes. We would not give effect
    to this submission.

[6]

Although the application judges reasons could be read as suggesting
    that his analysis of each of the three factors was carried out separately and
    that he may have viewed them as prerequisites, in our view, this suggestion is
    not made out. The application judge correctly listed the three factors, namely whether
    the case raises a serious justiciable issue; whether the applicant has a real
    stake or a genuine interest in its outcome; and whether, in all the
    circumstances, the proposed application is a reasonable and effective way to
    bring the issue before the courts.

[7]

Reading the reasons as a whole, it is apparent that the application
    judge considered the three factors in combination and with the flexibility
    required. We reject, therefore, the suggestion that he acted on the wrong
    principles or erred in law.

[8]

Further, we do not consider that the appellants scholarly contributions
    regarding the
Insurance Act
exemplify a genuine interest in the
    outcome of the application. Moreover, the appellant, who has not filed an
    affidavit in his own name, has failed to establish that the application is a
    reasonable and effective way of bringing the case to court. Although his two
    affidavit witnesses may be unable to bring an action themselves, the appellant
    has not provided a compelling reason why an auto accident victim who is
    directly impacted by the impugned provisions could not challenge the
    legislation.

[9]

The application judges discretionary decision is, in our view, entitled
    to deference and we see no reason to interfere.

[10]

The
    appeal is therefore dismissed. Costs are awarded to the Attorney General in the
    amount of $10,000, inclusive of HST and disbursements. No costs are awarded to
    the Insurance Bureau of Canada.

Paul Rouleau
    J.A.

David Watt J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Celik v. TD Canada Trust, 2018 ONCA 835

DATE: 20181018

DOCKET: C63448

Feldman, Pepall and Pardu JJ.A.

BETWEEN

Mihrali Celik

Appellant/ (Applicant)

and

TD
    Canada Trust, Canada Trust, TD Bank Financial Group

Toronto-Dominion
    Bank

Respondents/ (Respondents)

Mihrali Celik, in person

Richard Forget, for the appellant

James Riewald, for the respondent

Heard and released orally: October 16, 2018

On appeal from the
    order of Justice Peter B. Hockin of the Superior Court of Justice, dated
    October 4, 2016.

REASONS FOR DECISION

[1]

Mr. Forget appeared today for the first time, having been contacted this
    morning by Mr. Celik and asked to assist with the appeal. He asked for an
    adjournment of 45-60 days to review the file and to prepare a new factum
    focusing only on the mental impairment issue depending on his review of the
    transcript.

[2]

Mr. Riewald took a very fair position with the court. He opposes the
    adjournment request because there have been a number of them since September
    2017 and a cost order has gone unpaid. However, recognizing that Mr. Forget was
    only contacted today, he submitted in the alternative that if an adjournment
    were to be granted, costs thrown away for today of $2,500 and the $1,000
    ordered in September 2017 be paid forthwith or at least prior to the return
    date of the appeal as terms of the adjournment.

[3]

In light of the submission that the issue of mental disability was not
    addressed by the trial judge, and Mr. Forgets undertaking to go on the record
    if the adjournment is granted, the adjournment will be granted on the following
    conditions:

1.

Mr. Forget will go on the record within one week;

2.

Costs of $2,500 for today and $1,000 ordered in September 2017 to be
    paid by Mr. Celik within 14 days of today;

3.

Mr. Forget may file a further factum as advised within 30 days of today;

4.

Failing to comply with any of these conditions will result in the appeal
    being dismissed by the registrar. Mr. Riewald is to advise the court whether
    the costs have been paid after the 14 day time period has gone by;

5.

Leave is granted to the respondent to file a new responding factum as
    advised;

6.

The balance of the costs of the appeal, including any further
    preparation required to be done as a result of the new factums to be left to
    the panel hearing the appeal.

[4]

The adjournment is therefore granted to a date to be set by the
    registrar within 60 days if possible. Counsel is to be in touch with the
    registrar for that purpose.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Copperfin Credit Union Limited v. Cupello, 2018
    ONCA 873

DATE: 20181031

DOCKET: C64453

Lauwers, Huscroft and Trotter JJ.A.

BETWEEN

Copperfin Credit Union
    Limited

Plaintiff (Respondent)

and

2427087 Ontario Inc., Melissa Harrison,
Rosalba
    Cupello

Defendants (
Appellant
)

Michael Cupello, for the appellant

Jordan Lester, for the respondent

Heard: October 29, 2018

On appeal from the
    judgment of Justice J.S. Fregeau of the Superior Court of Justice, dated August
    23, 2017.

REASONS FOR DECISION

[1]

Copperfin sued Rosalba Cupello on a guarantee of the indebtedness of
    2427087 Ontario Inc.  The motion judge granted summary judgment in the amount
    of $100,000, plus interest and costs.

[2]

The appellant argues that by advancing the loan before it got all of the
    associated security, Copperfin materially varied the loan agreement, thus
    releasing Ms. Cupello from her personal guarantee.  We reject this argument.
    The motion judge correctly pointed out that the guarantee expressly provided
    that liability of the guarantor under it would not be affected by any failure
    on Copperfins part to perfect any security.

[3]

The appellant next argues that by way of a collateral agreement,
    Copperfin agreed not to advance more than $200,000 without having the necessary
    security documentation in place.  There is nothing in the loan agreement or in
    the guarantee to support this argument.  The motion judge pointed out that Ms.
    Cupello was legally advised throughout. Moreover, the guarantee contained an
    entire agreement clause, providing that the guarantee could not be modified
    by any collateral agreements unless they were properly formalized.

[4]

The motion judge stated: There is no evidence before me on this motion
    to support Ms. Cupellos assertion that the terms of the guarantee were
    modified at some point in time to reflect an express agreement between
    herself and Copperfin in which it was agreed that no more than $200,000 would
    be advanced on the project, which was going to be secured dollar for dollar by
    way of my pledge of $100,000 and Harrisons pledge of $100,000. This is an
    evidentiary finding to which we must defer unless the motion judge made a
    palpable and overriding error in so finding.

[5]

The appellant points to an October 16, 2014 email from a representative
    of Copperfin to Ms. Cupello.  The motion judge interpreted the email, taking
    into account the cross-examination of the representative, as stating only that
    any future advances beyond the $314,000 that had been advanced at the date of
    the email would come through [him] moving forward.  This was a reasonable
    interpretation. As it happens, no additional funds were advanced after the date
    of the email.

[6]

The motion judge buttressed his finding that the alleged collateral
    agreement contradicted the entire agreement clause in the guarantee with a
    finding that the parol evidence rule precluded the admission of Ms. Cupellos
    evidence of an alleged collateral agreement or Copperfins representations.  He
    also found the doctrine of promissory estoppel did not apply.  We agree.

[7]

The appellant has pointed to no palpable and overriding error of fact
    and to no error of law made by the motion judge that would justify allowing the
    appeal.  The appeal is dismissed with costs payable by the appellant to the
    respondent fixed at $9,500.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Crawford v. Crawford, 2018 ONCA 810

DATE: 20181009

DOCKET: C65188

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Stacey Elizabeth
    Crawford

Respondent

and

Paul Glen Crawford

Appellant

Patrick Morris, for the appellant

Erika MacLeod, for the respondent

Heard and released orally: October 4, 2018

On appeal from the
    judgment of Justice Jennifer Woollcombe of the Superior Court of Justice, dated
    March 5, 2018.

REASONS FOR DECISION

[1]

There is a dispute between the parties regarding their date of
    separation. The appellant brought a motion seeking an order fixing the date of
    separation as at January 1, 2011, based on an agreement between the parties to
    use that date to value the appellants pension.

[2]

The respondent brought a motion to strike paragraphs from the
    appellants affidavit and Answer referring to an alleged agreement on the issue
    of the date of separation on the ground that they referred to communications that
    were protected by settlement privilege.

[3]

The motion judge ruled that the evidence did not evince a clear
    decision to reach a final settlement of the issue and ordered that the issue of
    the date of separation be determined at trial. She also struck references to
    the privileged communications on the ground that they would be irrelevant to
    the issue to be decided at trial.

[4]

On appeal, the appellant submits that motion judge erred because he
    should have been permitted to argue at trial that the parties concluded a
    settlement agreement with respect to the date of separation.

[5]

We disagree.

[6]

On the motion below, the appellant was attempting to enforce the parties
    alleged agreement on the issue of the date of separation. Therefore, the
    settlement communications were both relevant and producible for the purposes of
    determining whether an agreement had been reached. The motion judge found that
    there was no such agreement for all purposes. There has been no appeal of that
    finding.

[7]

The trial the motion judge ordered will determine the date of
    separation, not the issue of whether the parties reached an agreement on that
    point, which issue has been finally determined. In these circumstances, the
    motion judge was correct in striking the impugned paragraphs. These communications
    are properly considered to be privileged and cannot be used at trial for the
    purpose of determining the correct date of separation.

[8]

The appeal is dismissed.

[9]

The appellant shall pay the respondent her costs of the appeal in the
    all-inclusive sum of $6,500.

C.W.
    Hourigan J.A.

B.W.
    Miller J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Daya (Re), 2018 ONCA 865

DATE: 20181025

DOCKET: C65059

Doherty, Brown and Trotter JJ.A.

IN THE MATTER OF:  Nabil Daya

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann and Geocelyne Meyers, for the appellant

Jennifer Epstein, for the respondent, Her Majesty the
    Queen

Heard: October 22, 2018

On appeal against the disposition of the Ontario Review
    Board dated, January 26, 2018 and amended disposition of the Ontario Review
    Board dated, February 26, 2018.

APPEAL BOOK ENDORSEMENT

[1]

This was a close case. The Board is charged with the responsibility of
    making these difficult decisions. The Court will interfere only if the order
    falls outside of the range of orders that could reasonably be made having
    regard to the totality of the evidence and the Boards expertise.

[2]

In this case, the treating psychiatrist was concerned about the
    appellants lack of initiative in addressing his medical needs and absence of
    any real insight into his condition. In his view, some oversight by the
    hospital was necessary to prevent the appellant from falling away from
    treatment and once again, as he did when he committed the index offence,
    presenting a very significant risk of serious harm to the public.

[3]

In our view the Board, acting reasonably could accept that evidence and
    make the order that it did.

[4]

The appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    832

DATE: 20181017

DOCKET: M49699 (C65955)

Sharpe J.A. (In Chambers)

BETWEEN

Larry Philip Fontaine
    in his personal capacity and in his capacity as the executor of the estate of
    Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter
    Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum,
    Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan,
    Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor,
    James Fontaine in his personal capacity and in his capacity as the executor of
    the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva
    Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak,
    Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley
    Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney
    Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward
    Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs

and

The Attorney General
    of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican
    Church of Canada, The United Church of Canada, The Board of Home Missions of
    the United Church of Canada, The Womens Missionary Society of the Presbyterian
    Church, The Baptist Church in Canada, Board of Home Missions and Social
    Services of the Presbyterian Church in Bay, The Canada Impact North Ministries
    of the Company for the Propagation of the Gospel in New England (also known as
    The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod
    of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The
    Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The
    Missionary Society of the Anglican Church of Canada, The Missionary Society of
    the Methodist Church of Canada (also known as the Methodist Missionary Society
    of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the
    Anglican Church of the Diocese of Quebec, The Synod of the Diocese of
    Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the
    Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of
    the Diocese of Keewatin, The Synod of the Diocese of QuAppelle, The Synod of
    the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee
    Board of the Presbyterian Church in Canada, The Board of Home Missions and Social
    Service of the Presbyterian Church of Canada, The Women's Missionary Society of
    the United Church of Canada, Sisters of Charity, A Body Corporate also known as
    Sisters of Charity of St. Vincent De Paul, Halifax, also known as Sisters of Charity
    Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Surs de Notre
    Dame-Auxiliatrice, Les Surs de St. François D'Assise, Institut des Surs du
    Bon Conseil, Les Surs de Saint-Joseph de Saint-Hyacinthe, Les Surs de Jésus-Marie,
    Les Surs de l'Assomption de la Sainte Vierge, Les Surs de L'Assomption de la
    Saint Vierge de L'Alberta, Les Surs de la Charité de St. Hyacinthe, Les uvres
    Oblates de L'Ontario, Les Résidences Oblates du Québec, La Corporation
    Épiscopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal
    Corporation of James Bay), The Catholic Diocese of Moosonee, Surs Grises de
    Montréall/Grey Nuns Of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les
    Surs de la Charité des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba
    Inc.-Les Surs Grises du Manitoba Inc., La Corporation Épiscopale Catholique
    Romaine De La Baie D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's
    Bay, Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du
    Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the
    Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of
    Ottawa, Oblates of Mary Immaculate -St. Peter's Province, The Sisters of Saint
    Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt.
    Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops
    Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic
    Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the
    Province of British Columbia, The Sisters of Charity of Providence of Western Canada,
    La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic
    Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique
    Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The
    Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles
    CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver,
    Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt.
    Angel Abbey Inc.

Defendants (Responding Parties)

and

Chief
    Adjudicator Indian Residential Schools Adjudication Secretariat

Respondent (Moving Party)

Proceedings
    under the
Class Proceedings Act
, 1992, S.O. 1992 c. 6

Andrew Faith and Sandy Lockhart, for the moving party

Catherine A. Coughlan and Brent Thompson, for the responding
    party, The Attorney General of Canada

Heard: October 15, 2018

REASONS FOR DECISION

[1]

On September 5, 2018, the Eastern Administrative Judge for the Indian
    Residential School Settlement Agreement (IRSSA), on his own motion and
    without notice to any party, issued a Direction (the First Direction)
    prohibiting the Chief Adjudicator for the Independent Assessment Process
    (IAP) from continuing his participation in three appeals: 2018 ONSC 5197. One
    of those appeals was to be argued before the Supreme Court of Canada on October
    10, 2018. The Chief Adjudicator filed a Notice of Appeal against the First
    Direction and moved for a stay pending the hearing of the appeal. I granted
    that stay on September 12, 2018, in reasons reported at 2018 ONCA 749.
    Following a case management conference call, I directed that the appeal against
    the First Direction would be heard on November 23, 2018.

[2]

On September 27, 2018, the Eastern Administrative Judge issued a Second
    Direction, again on his own motion and without notice to any party: 2018 ONSC
    5706. The Second Direction rescinds the First Direction and directs a
    different path that will provide for a fuller opportunity to canvass this Supervising
    Courts underlying concerns and provide the Chief Adjudicator with a full
    hearing with due process, as he submits is his due.

[3]

The Second Direction appoints an
amicus curiae
and directs him
    to bring a Request for Direction (RFD) to be heard at a hearing to be held in
    Toronto during November 2018 before two other supervising judges, one from the
    Supreme Court of Yukon and the second from the Superior Court of Québec. The
    Second Direction specifies five issues for the RFD to address and lists the
    materials to be considered. The issues to be addressed reflect similar concerns
    to those that motivated the First Direction, namely, whether the Chief
    Adjudicator has taken partisan positions before courts without proper
    instructions from Supervising Courts or advice from the IAP Oversight Committee,
    and failed to properly report his activities to the Supervising Courts. The
    issue of whether the Chief Adjudicator complied with a specific order issued by
    the Supervising Judge for British Columbia is included in the list of matters
    to be considered.

[4]

The Chief Adjudicator filed a Notice of Appeal against the Second
    Direction on October 5, 2018 and now moves for a stay pending the determination
    of that appeal. The Chief Adjudicator also asks that the second appeal be heard
    at the same time as the appeal from the First Direction.

[5]

I am advised by counsel that
amicus
has prepared the RFD and
    that December 19, 2018 has been set as the date for the hearing of the RFD. I
    note as well that of the three appeals that gave rise to the First Direction,
    the appeal before the Supreme Court of Canada has already been heard and the
    two appeals before the British Columbia Court of Appeal are to be heard on
    November 30 and December 13-14, 2018, before the date of the RFD hearing.

[6]

For the following reasons, I conclude that the interests of justice
    favour granting a stay and ordering this appeal to be heard with the appeal
    from the First Direction.

Jurisdiction

[7]

I am satisfied that the Second Direction is a final order from which an
    appeal lies to this court. If the Second Direction rescinds the First
    Direction, it has the effect of ending the appeal from the First Direction, as
    the Chief Adjudicator cannot appeal from an order that is no longer in effect.
    The Second Direction thus removes some of the issues raised in that appeal to
    another tribunal outside the jurisdiction of the Ontario courts. An order that
    finally determines the forum for the dispute is a final order for the purposes
    of appeal, even though the substantive issues remain to be determined by the
    court or tribunal held to have jurisdiction:
Manos Foods International Inc.
    v. Coca-Cola Ltd.
(1999), 180 D.L.R. (4th) 309 (Ont. C.A.), at para. 4.

Serious Issue to be Tried

[8]

I am satisfied that the appeal from the Second Direction raises several
    arguable issues.

[9]

As the order was made without notice and without a hearing, it is
    arguable that it was made in violation of the principles of procedural
    fairness.

[10]

It
    is, so far as I am aware, unprecedented for a judge to purport to rescind an
    order after it has been made, appealed and stayed, thereby effectively ending
    the appeal and replacing it with another process. Counsel for the responding
    party, the Attorney General of Canada, was unable to identify any such
    precedent. It is arguable that the Second Direction was issued in violation of
    the
functus officio
principle. As the Supreme Court of Canada stated
    in
Doucet-Boudreau v. Nova Scotia (Minister of Education)
, 2003 SCC
    62, [2003] 3 S.C.R. 3, at para. 79, the purpose of this principle is to allow
    finality of judgments from courts which are subject to appeal. The Supreme
    Court recognized that allowing the court appealed from to vary its orders would
    allow that court to assume the function of an appellate court and deny
    litigants a stable basis from which to launch an appeal:
Doucet-Boudreau
, at
para, 79.

[11]

It
    is also arguable that Second Direction amounts to an attempt to short-circuit
    the appeal to this court from the First Direction. The Second Direction
    declares the appeal to this court largely moot, rescinds the First Direction
    thereby removing the basis for the appeal, and purports to confer jurisdiction
    on two extra-provincial judges to decide some of the issues raised by the
    appeal. In addition, the terms of the RFD that the Eastern Administrative Judge
    directed the
amicus curiae
to bring appear to assume, if not decide,
    some of the issues raised before this court in the appeal from the First
    Direction. Issues 1 and 2 ask whether the Chief Adjudicator has taken partisan
    positions in litigation without having obtained instructions from the
    Supervising Courts. This arguably assumes that the Chief Adjudicator is
    required to obtain instructions or permission from a Supervising Judge as to
    positions taken before the courts, yet that very assumption is a contested
    issue that is raised in the appeal from the First Direction.

[12]

In
    my view, it is arguable that the Court Administration Protocol which governs
    the RFD process does not contemplate referring issues such as those the Eastern
    Administrative Judge identified to a panel of two judges from different
    provinces. As para. 5(c) of the Protocol provides, Where the issue(s) will
    affect all jurisdictions, the hearing may be directed to
any
    court
supervising the Agreement (emphasis added). The language of any
    court is singular, not plural. The issue of the Chief Adjudicators
    participation on court proceedings is one that affects all jurisdictions. It
    does not fall into the category of decisions resulting in an order that would
    constitute an amendment to the Agreement that may be referred to more than one
    supervising court under para. 5(d). In any event, it is arguable that a panel
    of two judges from different provincial and territorial superior courts should
    be avoided where the issue is hotly contested, as it is in the present case.
    What happens if the two judges disagree? Whether or not they agree, are there
    two appeals, one to each provincial or territorial court of appeal? If not, how
    is it to be determined to which court the appeal lies? What happens if there
    are two appeals leading to conflicting results?

Irreparable harm

[13]

The
    Attorney General of Canada argues that the Chief Adjudicator will not suffer
    irreparable harm if the RFD process ordered by the Second Direction is allowed
    to unfold at that same time as both appeals from both Directions make their way
    to this court.

[14]

I
    disagree.

[15]

In
    my view, irreparable harm could flow from allowing two parallel proceedings to
    unfold at the same time. Quite apart from the added cost of duplicative
    proceedings, there is a clear risk of inconsistent results. That would cause
    confusion from which the Chief Adjudicator and the IAP would suffer serious
    harm. Conflicting results would also cause harm by bringing the administration
    of justice into disrepute. Both are forms of irreparable harm sufficient to
    warrant the grant of a stay.

Balance of Convenience

[16]

In
    my view, the balance of convenience favours granting a stay. A stay would allow
    these proceedings to unfold in an orderly manner and avoid duplicative
    proceedings that could lead to inconsistent results. The propriety of the RFD
    process depends upon the correctness of the Second Direction. In my view, that
    issue should be resolved before the RFD process unfolds. If the Attorney
    General prevails, the RFD process can proceed as directed by the Eastern
    Administrative Judge, albeit with some delay. As both the appeals to the
    British Columbia Court of Appeal will be heard before the date set for the RFD,
    any such delay will not result in prejudice.

Disposition

[17]

Accordingly,
    I stay the Second Direction
nunc pro tunc
from the date it was issued
    and direct that the appeal in this matter be heard together with the appeal
    from the First Direction.

Robert J. Sharpe J.A.