The walls are closing in on the Town of Fort Frances’ flawed approach to the Point Park litigation, and so far it appears that the only winners on the side of the municipality are the lawyers that have billed hundreds of thousands of dollars to taxpayers under council’s watch.
On January 8, 2024, the Ontario Superior Court of Justice released a decision which delivered a predictable loss to the Town and laid bare several weaknesses in its litigation position. Remarkably, some of these should have been obvious from the outset.
While the court’s decision relates to two technical points of law, it appears to foreshadow flaws in the Town’s broader litigation strategy and fundamental misconceptions around the council table about what their case is about and their prospect of success.
Background
To appreciate the live issues, some exposition is required.
The most recent court decision is the latest in a lawsuit commenced in 1998 by the four Agency One First Nations to assert their alleged interest in the Agency One reserve lands. The First Nations sued the federal government, later adding the province and the Town as defendants.
In 2017, the Town initiated a counterclaim against the First Nations and a crossclaim against Ontario and Canada. The Town claimed that it is the legal or beneficial owner of a portion of the Agency One reserve surrendered in 1908 (that portion including the Point Park).
In 2018, the First Nations settled their claims against Ontario and Canada. As part of the consent dismissal of the First Nations’ claims, the court ordered that the First Nations were prohibited from commencing any future proceeding against Canada, Ontario, or the Town alleging that the 1908 surrender was legally or equitably invalid or otherwise ineffective or any beneficial interest in the surrendered lands.
As a result, today the only remaining claims in the litigation are those of the Town. The Town is now effectively the plaintiff, with the First Nations, the province, and federal government now the defendants to its claim. The Town has brought a motion for summary judgment to ask the court to grant its claim to the Point Park. The First Nations, Ontario, and Canada are opposed and have brought their own cross-motions, seeking to dismiss the Town’s claim.
What is Summary Judgment?
Summary judgment is a type of motion where the court is asked to decide the issues in a proceeding without a full trial. The court can grant summary judgment where it is satisfied that there are no material facts in dispute or where the issues are primarily legal ones. The evidence that is put to the court on a motion for summary judgment is in the form of affidavits. Affidavits are sworn witness statements that incorporate the documents upon which the witness is relying for any statements they make in the affidavit.
Summary judgment makes sense in this case because most of the relevant records are more than a century old and come from government archives. There are no living witnesses whose recall of the events will be useful at a trial. Ontario’s Evidence Act also explicitly states that certain types of government documents are admissible evidence as proof of their contents. The court also seeks to avoid inconsistent outcomes, and some of the issues in this case were, arguably, determined by the court in the related “two-chain” case, decided in 2018.
What is the Town’s Current Argument?
The thrust of the Town’s counterclaim, which it amended in August 2022, is that the 2018 dismissal orders foreclosed the First Nations’ ability to claim any ownership interest in the park lands. In their factum (written argument) on the most recent motion, the Town’s lawyers stated that “the fundamental issue for the court to decide [on the summary judgment motions] is the meaning of the September 1908 Ontario Order in Council, which the Town claims gave it an interest in the 1908 Surrendered Lands”. They refer to various correspondence and other materials in support of this contention.
But Ontario, Canada, and the First Nations see it differently, claiming that the Town’s argument is based on an absurd mischaracterization of the 1908 provincial Order in Council.
In its responding motion materials, Canada states that the 1908 Order in Council merely “confirmed the Agency One Reserve and enabled Canada to deal with the lands as it saw fit”. Its Notice of Motion goes on to state that “[t]he 1908 Ontario Order in Council did not grant any of the subject lands to the Town for a park as alleged, and it did not limit Canada’s authority to deal with the land surrendered in 1908. No transfer of property rights to the Town was intended or effected by Ontario’s 1908 Order in Council.”
Similarly, in Ontario’s Notice of Motion, it states that the 1908 Order in Council did not gift, convey, transfer or dedicate any of the 1908 Surrendered Lands … to the Town for a park. Nor did it create a public trust. What it did do is provide Ontario’s consent to the Government of Canada to grant such part of the surrendered lands as may be asked for by the Town for park purposes.” Ontario writes that what Canada chose to do was “to grant a portion of the 1908 surrendered lands to the Town in 1910 for a nominal amount through a 99-year lease.”
Canada’s motion materials specify that in 1910, the Town entered into a lease with the federal government for the Point Park lands, which it renewed in 1927. During the 99-year period from 1910 to 2009, the federal government alleges that the Town consistently behaved as a tenant, and that it only began asserting claims of ownership when the lease approached its expiry in 2009.
Notably, all of the defendants also argue that the Town’s claims have been brought outside of the limitation period (statutory limitation periods generally range from 2 to 15 years in Ontario) and are further barred by the legal doctrines of laches (unreasonable delay in making a claim), acquiescence (knowingly standing by without objection to a potential claim), and estoppel (making arguments that contradict previous actions).
For reasons which are likely obvious, none of these hurdles will be easily overcome given the 116 years that have elapsed since the 1908 Order in Council.
What Does the Most Recent Decision Tell Us?
The January 8 decision, written by Justice Fregeau, appears to signal how the court sees the issues it must decide on the upcoming summary judgment motions. The framing of those issues should give pause to the Town's council (if they are, in fact, paying attention) because this court decision makes clear that the Town’s claim turns on an interpretation of the 1908 Order in Council, and nothing more.
This is unhelpful to the Town, which draws on numerous extraneous materials to support its view, and rarely quotes the actual text of the Order in Council itself in its materials. Were they to do so, it might appear obvious to most readers that the wording does not commit the surrendered lands to the municipality at all, but rather appears to support the version of events asserted by Ontario and Canada. See for yourself:
The court’s decision discussed these issues in the context of another motion by the Town. In that motion, the Town was seeking an order for disclosure of the settlement agreement between the First Nations, Canada, and Ontario. The Town, as a non-party to the settlement, does not have a copy. Ordinarily, settlements are privileged and need not be disclosed to third parties.
In his decision, Justice Fregeau maintained that the obligation to disclose a settlement to a non-settling party only arises where the settlement fundamentally changes the “litigation landscape”. In this case, His Honour found that the Town’s claims were related to the 1908 Order in Council, and had been as such since they were initiated in 2017, which was before the 2018 settlement. In other words, the settlement did not shift the “litigation landscape”, but rather is the “existing and ongoing litigation landscape”. His Honour noted that the Town would have had no more right to the settlement agreement than if it had brought its claim to the park in an entirely separate lawsuit.
His Honour concluded that even if he was mistaken on this point, he would deny the Town’s request for production of the settlement agreement on the basis of relevance to their claims. This, again, points to the court’s view that the Town’s claims turn quite narrowly on the 1908 Order in Council, and nothing more. The court is clearly of the view that the 2018 settlement has no bearing on the Town's counterclaim.
Importantly, while the Town points to the dismissal orders as closing off the First Nations’ ability to assert claims in court to the surrendered lands, Justice Fregeau’s decision appears to acknowledge that it does not prevent the First Nations from seeking a return of the lands through a return to reserve process with the Crown. This appears to be a fundamental misconception in the Town's view of litigation and the paths that may be available to the First Nations to see the lands returned to reserve if the 1908 Order in Council did not vest them in the Town (which, it would appear, it did not).
Notably, the rest of the Town’s motion was also denied. The Town had sought orders compelling the other parties’ affidavit witnesses to answer its questions about how various historic documents related to the specific allegations in the lawsuit. While the court’s reasons for denying this part of the motion are technical, most lawyers will immediately recognize that the Town’s questioning of the other parties’ affidavit witnesses about litigation strategy and legal issues was improper. Cross-examination on an affidavit is only about the facts contained in the affidavit. Frankly, it is unclear what the point of cross-examining witnesses on a bunch of historical documents was other than to drive up legal bills.
What Happens Next?
Justice Fregeau’s decision states that the summary judgment motions are currently scheduled to be heard in November 2024. The result of these motions should bring this longstanding legal dispute to a close.
Until then, having lost its more recent motion on January 8, the Town will be on the hook for costs payable to all 3 other parties. Given the signals given by the court in this decision, council should seriously consider whether it has a path to resolve the rest of the litigation before it is potentially hit with an even more significant costs order for the entire lawsuit. All of these cost awards will be shouldered by local taxpayers.
It does not have to be this way. Productive efforts were made early in the last term of council to reach a community-focused resolution that would benefit all parties. That progress was thrown to the wind the moment the old guard of the municipality saw an opening to return to an adversarial forum and resume their efforts to use public money to continue a racist litigation campaign.
It remains possible that both the provincial and federal governments would prefer an outcome that did not pit two local constituencies against one another. They might even drum up the resources to pay their legal bills and move the community past a case that is so clearly animated by colonial policy, historical racism, and anti-Indigenous bigotry from successive councils and their friends in the community.
But that will require work from the current council, including some new advisors and the courage to face the prejudice of their peers. Time and again we have shown they are not up to that job and don’t care what it costs the community.
-Douglas W. Judson