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  • Writer's pictureDouglas W. Judson

Current Status of the Point Park Litigation

I am often asked about the status of the Point Park litigation between the Town of Fort Frances, the Agency One First Nations (Couchiching, Mitaanjigamiing, Naicatchewenin, and Nigigoonsiminikaaning), and the federal and provincial government. While some of what I know on this topic is from in-camera discussions and cannot be shared with the public, much information is on the public record if you know where to look.

The fate of the park is especially topical right now because the remaining issues in dispute are headed for a 5-day court motion this December, initiated by the Town.

In this post, I will provide you with a brief overview of the current status of the litigation and where it is headed. I have uploaded various court filings and other public documents, which are linked below.

I will leave it to you to generate your own conclusions about whether the Town is likely to prevail.

Remember, there were two pieces of litigation

As a preliminary matter, it must be understood that there were, in fact, two cases related to the Point Park and adjacent lands. Both were commenced in 1998.

The first piece, known as the "two-chain" case (court file number CV-98-0910), dealt with the shoreline road allowance surrounding the park lands (a "chain" is a unit of measurement). That case is concluded. It went to trial in 2013 before Justice Fregeau of the Ontario Superior Court of Justice. His Honour's reasons, cited at 2014 ONSC 1076, are available here. The decision states that title of the two-chain allowance is held by the Town.

In 2018, Justice Fregeau awarded the Town, as the successful party, $1,396,296 in costs. His costs decision is cited as 2018 ONSC 5051 and can be viewed here.

The second case (court file number CV-98-0743) relates to the park lands themselves (I am simplifying here as the treatment of different parts of the landmass is complicated). The Town was not an original party to this proceeding and had itself added as a defendant after the claim was brought by the First Nations. The Town also brought a counterclaim, seeking to secure its title to the park.

The park case was settled between the First Nations and the federal and provincial governments in 2018. The First Nations announced this publicly on March 6, 2018 (you can read their media release here). The Town was not a part of this settlement. As a result, the Town is now effectively the plaintiff in this litigation because its counterclaim is the only claim outstanding.

On December 18, 2018, Justice Fregeau made an order discontinuing the First Nations' claims against the Town. The order states that the First Nations are prohibited from advancing or pursuing any claims against the Town asserting ownership of the park. You can read this order here.

On the same day, Justice Fregeau also made an order, on consent of the parties, that the First Nations' surrender for sale of certain lands in 1908 was binding on them. You can read that order here.

The Town moves for summary judgment of its claim

Here's what the material in the court file tells us happened next:

As a result of many of the claims in the park litigation being settled, on August 12, 2022, the Town served an amended counterclaim to address these developments. This document, titled "Fresh As Amended Counterclaim" (which you can read here), sets out the current basis for the Town's claim to the park. This document is not evidence - it is a pleading. The statements in this document will need to be proven with evidence and supported by law for the Town to be successful.

On August 12, 2022, the Town also delivered a Notice of Motion indicating that intended to bring a motion for summary judgment of its claims. Summary judgment is typically available where there are not material facts in dispute and the issues before the court are largely legal issues. It is a procedure that allows the court to make a decision without a full trial.

In this case, the Town's Notice of Motion (which you can read here) basically says that because of the decision in the two-chain case and the orders made on December 18, 2018, there is no need for a trial and the remaining issues can be determined on a motion with affidavit evidence.

On August 26, 2022, the parties attended a case management meeting with Justice Fregeau where orders were made setting a timeline for the hearing of the Town's motion. His Honour's endorsement, cited as 2022 ONSC 4923, can be read here.

The court staff have confirmed that the Town's motion is going to a 5-day hearing starting on December 11, 2023 at the Fort Frances Courthouse.

All of the other parties oppose the Town's motion

All of the other parties - the First Nations, the federal government, and the provincial government - are united in their opposition to the Town's motion and the Town's claim to the park.

On November 25, 2022, each party filed their Statement of Defence to the Town's amended counterclaim. You can read them at the below links:

  • Statement of Defence of the Agency One First Nations, available here;

  • Statement of Defence of the Attorney General of Ontario, available here; and

  • Statement of Defence and Crossclaim of the Attorney General of Canada, available here.

On the same day, each of the other parties also filed a cross-motion to be heard at the same time as the Town's motion. Their motions seek the summary dismissal of the Town's claims. You can read the notices of motion at the below links:

  • Notice of Motion of the Agency One First Nations, available here;

  • Notice of Motion of the Attorney General of Ontario, available here; and

  • Notice of Motion of the Attorney General of Canada, available here.

These motions are largely duplicative of one another, suggesting that if the Town loses its motion, and the other parties are successful on their motions, the Town could be on the hook for a barrage of significant cost awards.

What evidence is each party relying on?

As mentioned, motions (unlike trials) are argued on the basis of affidavit evidence. Affidavits are sworn documents setting out the evidence of a witness. The witnesses can be cross-examined out of court on their affidavit. Their affidavits often include attached documents, called exhibits. In this case, that is what each party has done.

Each party to a motion compiles their affidavit evidence into a brief called a motion record. There are currently 3 motion records in the court file:

  • The Motion Record of the Town, dated August 29, 2022 (containing affidavits from Faisal Anwar and Travis Rob), available here;

  • The Motion Record of the Attorney General of Ontario, dated February 3, 2023 (containing an affidavit from Julita Pacholczyk), available here; and

  • The Motion Record of the Attorney General of Canada (containing an affidavit from Jennifer Clarke), dated February 3, 2023, available here.

At this point, there does not appear to be a motion record in the court's file from the Agency One First Nations.

What happens next?

The endorsement from Justice Fregeau indicates that written legal argument (these are call facta or factums) were to be filed between May 5 and June 12, 2023.

It does not appear that there are any factums yet in the court file, but I will post them here if I obtain copies at a future date. Facta are useful at understanding a party's position because it is a synthesis of the evidence and law they are relying on to make their case.

The motions will be heard for 5 days starting on December 11, 2023. Court is open to the public.

Quick links to documents referred to above

The Two-Chain Case

Park Litigation Settlement

The Town's Ongoing Claim and Motion for Summary Judgment

-Douglas W. Judson

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