) ) John Lightfoot, Wendy Lightfoot v. Scott, 2013 ONSC 2544

CITATION : Lightfoot v. Chippewas of Georgina Island First Nation, 2013 ONSC 2544 COURT FILE NO.: 62777/02 DATE: 20130430 CORRIGENDA: 20130506 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) John Lightfoot, Wendy Lightfoot and Scott Lightfoot Plaintiffs – and – Chippewas of Georgina Island First Nation, and The Estate of Terrance Hugh Big Canoe Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) John Lightfoot and Wendy Lightfoot, In Person Derek T. Ground, for Chippewas of Georgina Island First Nation William B.

Henderson, for The Estate of Terrance Hugh Big Canoe ) ) HEARD: April 29, 2013 revised ruling on motion to strike jury notice The text of the original endorsement has been corrected with the text of corrigendum (released today’s date) Boswell J. [ 1 ] A party to a claim brought in the Superior Court of Justice may, in most cases, require that the action be tried before a jury. There are some exceptions. There are certain types of cases that must be tried without a jury and they are enumerated in section 108(2) of the Courts of Justice Act , R.S.O. 1990 c.

C.43 (“ CJA ”). [ 2 ] When this case began, the plaintiffs served a Jury Notice. The case is now ready for trial and is listed for the spring 2013 trial sittings at Newmarket, which commence May 13, 2013. The defendants move to strike the Jury Notice. In essence, they argue that the plaintiffs’ claim is one for equitable relief, which is one of the types of claims that

section 108 says must be tried without a jury. In the alternative, the defendants ask that this case be traversed to the fall 2013 trial sittings so that a jury panel might be assembled that includes First Nations representation in compliance with section 6(8) of the Juries Act , R.S.O. 1990 c. J.3. [ 3 ] For the reasons that follow, I conclude that the Jury Notice should be struck and that the action should proceed before a judge alone in the spring 2013 trial sittings. The Action [ 4 ] John and Wendy Lightfoot are husband and wife. Scott Lightfoot is their adopted son.

It is common ground that Scott is a Band member of the Chippewas of Georgina Island First Nation. In the late 1990s, the Lightfoots were interested in acquiring land on Georgina Island, which is a First Nations reserve. They wanted a property where their son, Scott, could be among his people – the Chippewas of Georgina Island. They engaged a real estate agent to assist them and she located a property for sale on the reserve (the “property”). The vendors were Mr. and Mrs. Roy.

The plaintiffs allege that the agent was aware that they were looking for a year-round residence and that she represented the Roys’ property as such. [ 5 ] Lands on Indian reserves may not be transferred outright, but rather are generally subject to long-term land leases. Therefore, the Lightfoots’ purchase from the Roys included the acquisition of the residence on the property, together with an assignment of the Roys’ interest, as lessees, in a 20 year lease of lands on Georgina Island (the “lease”). [ 6 ] The lease provided that the property could only be occupied from April to October inclusive, each year.

In other words, the property could not be occupied on a year-round basis as the plaintiffs wanted and expected.

[7] The plaintiffs hired a real estate solicitor to assist them with their purchase of the property. They allege that the solicitor didnot advise them that they could not occupy the property year-round. They further allege that the solicitor advised them that everythingwas in order and so they just signed the closing documents without even reading the lease. [8] The first year after the plaintiffs acquired the property, they lived in it year-round. They say that the Roys had similarlyoccupied the property year-round.

It wasn’t until their second winter season at the property that the defendants advised them that theycould not occupy the property during the winter. The Band Council passed a resolution confirming that the plaintiffs could not occupythe property during the winter months, then later passed another resolution terminating the plaintiffs’ lease altogether. [9] The plaintiffs allege that the defendants were, and are, stopped, on the basis of proprietary estoppel, from enforcing therestrictive covenant of the lease that prevents occupation during the winter months.

They say the termination of the lease was wrongfulin law and equity and that they suffered damages in the result. They lost the use and occupation of the property and had to acquireanother residence off the reserve. [10] They also seek compensation for damage done to their property by vandals who plugged a sink and turned on the tap,resulting in substantial flooding. [11] The action has settled against the real estate agent and solicitor. It proceeds now against Mr. Big Canoe and the Band.

Legal Framework [12] It is well settled that jury trials are a substantive right that ought not to be lightly interfered with: Hunt v. Sutton Group(2002), (ON CA), 60 O.R. (3d) 665 (C.A.). This right is confirmed in the CJA at section 108(1) which provides thatparties may require issues of fact and assessments of damages to be tried by a jury, save for cases identified in subsection (2). [13] The onus is on the moving parties to demonstrate that just cause exists to strike the Jury Notice: Placzek v.

Green, 2012ONCA 45. [14] Here, the defendants rely on the mandatory language of section 108(2) of the CJA, which provides as follows:

(2) The issues of fact and the assessment of damages in an action shall be tried without a jury in respect of a claim for any of thefollowing kinds of relief: … 10. Declaratory relief. 11. Other equitable relief. … [15] The defendants assert that the plaintiffs’ claim is, in essence, a claim for equitable relief, founded in proprietary estoppel. Asecondary aspect of the plaintiffs’ claim is for declaratory relief by way of what amounts to judicial review.

The defendants submit thata jury trial is precluded, in the circumstances, by subparagraphs (10) and (11). [16] It is necessary to review the pleadings carefully when assessing the nature of a claim. The language of the statement of claimis not determinative. What matters is its pith and substance – its core nature, or essence: see Constitution Insurance Co. of Canada v.Coombe, (ON SC), [1992] O.J. No. 2523 (Gen. Div.); MacNeil (Litigation Guardian of) v. Bryan, [2009] O.J. No.2344 (S.C.J.); and Harrison v. Antonopoulos, (ON SC), [2002] O.J. No. 4890 (S.C.J.).

Positions of the Parties [17] The defendants argue that the pith and substance of the plaintiffs’ claim is one of a prayer for equitable relief. As such, itmust be tried without a jury. They acknowledge that there are claims advanced which are not equitable in nature, but the core of theclaim, what they say will take up about 80% of the focus of the trial, is the claim relating to proprietary estoppel. [18] The plaintiffs want this matter tried by a jury. Mrs. Lightfoot expressed it well when she said that this is the type of claimthat, in their view, ought to be heard by a jury of their peers.

They have a firm belief that they have been dealt with in an unconscionablefashion and that the community should know of the conduct of the defendants and should pass judgment on it. Discussion [19] During oral submissions, I put a question to the plaintiffs about the nature of their claim.

I asked them if, in substance, whatthey are asserting is that they had a reasonable expectation that they were lawfully entitled to use the property year-round on the basisthat their predecessors, the Roys, had used the property year-round, and then they themselves had used it year-round for the first year oftheir occupancy, all without complaint from the defendants. In other words, based on the history of the de facto permitted use of theproperty as a year-round residence, did they expect that they would be able to use it year-round indefinitely?

They answered yes, that isthe substance of their claim against these defendants. [20] In my view, the heart of the plaintiffs’ claim, as presently constituted, is set out in paragraphs 17, 23 and 30 which provide asfollows: 17. The plaintiffs paid the vendors $100,000 for the residential property, with $70,000 being assumed as a vendor take-back firstmortgage. The plaintiffs also took an assignment of the remaining half of a 20-year lease of the land on which the residential propertywas situated, subject to the equities existing in favour of the former lessees, Eric Roy and Elizabeth Innes-Roy.

All of the foregoing

required the consent of the Band and Buzzy Big Canoe which consent was obtained through Paul Reeder. 23. Between April 1999 and December 2000, and on the express consent and agreement of the Band and Buzzy Big Canoe, John andWendy Lightfoot occupied the residential property on a full-time basis, all-year round, and made rental payments pursuant to theassigned land lease and an implied collateral contract.

Scott Lightfoot resided at the residential property between October and December2000. 30. …It is pleaded herein that the Band and Buzzy Big Canoe, by permitting and authorizing John and Wendy Lightfoot to reside in theresidential property between April 1999 and December 2000 on a full-time basis, induced John and Wendy Lightfoot to act to theirdetriment, and so the Band and Buzzy Big Canoe were and continue to be estopped from relying upon and invoking the termination andrelated provisions of the assigned land lease… [21] The thrust of the plaintiffs’ claim is that a proprietary estoppel arose as a result of the permitted use of the property in the firstyear that the Lightfoots occupied it, as well as earlier years when the Roys occupied it. [22] Proprietary estoppel is a principle rooted in equity.

Equity will intervene to prevent a person from insisting on his strict legalrights when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties: Hughes v.Metropolitan Railway Co. (1887), 2 App. Cas. 439. [23] The test for proprietary estoppel was recently addressed by the Court of Appeal in Schwark Estate v. Cutting, 2010 ONCA61. Citing its own earlier decision in Eberts v. Carleton Condominium No. 396 et. al., (ON CA), [2000] O.J.

No.3773, the Court held that proprietary estoppel may give rise to a cause of action, being an exception to the general rule that estoppelconstitutes a “shield and not a sword”. The essential elements of a promissory estoppel were described as follows, at para. 34: (

i) The owner of land (

O) induces, encourages or allows the claimant (

C) to believe that he has or will enjoy some right orbenefit over O’s property; (ii) In reliance upon this belief, C acts to his detriment to the knowledge of O; and (iii) O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive. [24] It is apparent to me from my review of the pleadings and from submissions made in oral argument, that the claim, as presentlyconstituted, is, in pith and substance, a claim grounded in proprietary estoppel. The plaintiffs seek, for the most part, relief based inequity.

As such section 108(2)(11) of the CJA is engaged and the case must be tried without a jury. [25] The plaintiffs do advance a claim for damages arising from an alleged intentional tort, specifically the intentional flooding ofthe property. A factual finding on the issue of liability and an assessment of damages associated with the alleged intentional tort, arematters that would generally be within the purview of a jury. But in my view, this is a small portion of the claim in terms of value, timeand substance.

The real pith and substance of the claim remains the allegation of proprietary estoppel. [26] In oral submissions, Mr. Lightfoot described for the court a number of other issues the plaintiffs seek to address through thetrial process. These issues have to do, for the most part, with the manner in which the local Band Council discharged their obligationsunder the Chippewas of Georgina Island First Nation Land Management Code. He posed a series of questions that he hopes the trial willaddress, including, but not limited to the following: (

a) Why didn’t the Council insist on Mr. Big Canoe addressing any complaints about their use of the property through theDispute Resolution provision of the Code? (

b) Why did Council abdicate their responsibility as Landlord and not reply to their correspondences? (

c) Why did Council accept the unfounded complaints of Mr. Big Canoe’s children? (

d) Why didn’t Council follow the lawful processes set out in the Code? (

e) Why were the rights of the plaintiffs not respected? (

f) Why didn’t Council respond to the plaintiffs’ numerous requests to obtain their possessions? [27] In the statement of claim, the plaintiffs allege that the termination of their lease was wrongful and not within the jurisdictionof the Band. The primary, if not the only, basis on which the plaintiffs allege an entitlement to use the property year-round is theargument of proprietary estoppel. Beyond that, the issues raised by Mr. Lightfoot in oral submissions engage the process by which thedecision was made to terminate the lease.

Those issues are not engaged by the pleadings. [28] The defendants’ counsel argued that the plaintiffs’ concerns about process are in the nature of judicial review. It is debatablewhether the Band was exercising a statutory power of decision when they terminated the plaintiffs’ lease. It is not necessary, however,for the purposes of this ruling, to resolve whether the plaintiffs are seeking relief in the nature of judicial review. At the end of the day,the claim is that the plaintiffs were entitled to year-round occupancy of the property, based on proprietary estoppel.

If the estoppedargument succeeds, then the process by which the lease was terminated is largely irrelevant. If the estoppel argument fails, then theissue, as pleaded, isn’t so much about the process of termination, but whether the Band had the right to terminate at all. [29] The determination as to whether the termination was lawful, in the absence of a promissory estoppel, is not insignificant.

Butin my view, the proprietary estoppel argument remains so predominant that one can reasonably say that, in pith and substance, theplaintiffs’ claim is about estoppel. [30] For these reasons, the Jury Notice is struck and the action will proceed, before a judge alone, at the civil trial sittings

commencing May 13, 2013. [ 31 ] If the parties cannot agree on costs, they may address the issue in writing on a 14 day turnaround. The defendants may file cost submissions or before May 13, 2013 and the plaintiffs on or before May 27, 2013. Submissions should not exceed 2 pages in length, not including any Costs Outlines, and should be filed with the judicial secretaries in Newmarket. Boswell J. Released: May 6, 2013 CORRIGENDA 1. In the title of proceedings, counsel for the Defendants had been reversed. It has now been amended to reflect that Derek T. Ground, represents the Chippewas of Georgina Island First Nation and William B. Henderson, represents the Estate of Terrance Hugh Big Canoe.