Our Approach

How We Achieve Superior Results in Superior Trial Courts for First Nations

We provide advocacy & representation in civil, administrative and criminal litigation in the Ontario Superior Court of Justice as well as the Manitoba Court of King’s Bench, including researching, drafting and responding to Notices of Application, Statements of Claim, class actions, discoveries, disclosure, conducting trials, and settlement of outstanding litigation through negotiation. 

In addition to our role as legal counsel who comprehensively gather, analyse and report on facts through our own means, we also conduct court-assisted investigations, as well as litigate the results of our investigative findings. 

• Anton Piller Orders - Superior Courts may issue civil search warrants for private parties to enter premises (including computer data systems) and obtain information relevant to legal issues, without criminal search warrants being involved. The obtaining of such orders can be both complex, but may be well worth it if they reveal the proof of wrongdoing or location of assets that a party has been pursuing.

• Mareva & Other Injunctions - Superior Courts may issue civil orders freezing the moving or disposal of assets pending the outcome of other events, like fraud or debt recovery litigation. An injunction can prevent a party from moving an aircraft, ship, motor vehicle, cash, investments or documents out of where they are currently located, and could also prevent their destruction or alteration.

• Fraud & Debt Recovery Litigation - Superior Courts may order monetary damages or the return of property to a party who can prove a loss caused by another party, such as in investment, corporate, banking, insurance and relationship situations.

• Corporate-Commercial Litigation - oppression and shareholder actions against corporate entities, their officers, directors, managers, employees and other shareholders due to oppressive or dishonest conduct

• Acting for First Nations, Chiefs and Councillors - defence of unwarranted allegations of improper conduct, and pursuit of actions for improper conduct on the part of others in an organization.

When is Small Claims Court Worthwhile?

The Small Claims Courts of both Ontario and Manitoba are part of the Superior Courts, however they are limited in the jurisdiction of cases they hear, with Ontario Deputy Small Claims Court judges (who are always qualified lawyers) adjudicating disputes over the payment of money or return of property of no greater than $50,000 in value, and the Manitoba Small Claims Court Officers (who may not being legally trained) being limited to $20,000 jurisdiction. Either courts costs of small fraction of the legal fees to litigate in as do the non-Small Claims Court divisions of the Superior Court, where the much more complex procedure there tends to multiply legal fees by up to 1000%, meaning that even if a dispute is worth more than the top monetary threshold of a Small Claims Court, it might still be worth keeping it in that court to avoid legal fees possibly costing more than the total amount of money in dispute.

Top 5 Reasons Parties Lose Cases in Superior Courts

1. Thinking the Case is All About the Law Rather than the Facts - All Superior Court cases are ultimately won and lost on the facts, not the law. If a First Nation presents a compelling, sympathetic, detailed, well-sourced set of facts, a Superior Court may go out of its way to give them what they want. If the facts are vague, rambling, obscure and poorly sourced, it’s not a Superior Court’s job fill in the blanks and guess at what the true facts might actually be. All facts - whether for or against a case - must be proven on a balance of probabilities, in addition to being releavant, reliable and necessary.

2. Not Understanding that the Law is Overwhelmingly Against You - Notwithstanding the facts being the primary driver in every Superior Court case, the law also needs to be clearly on your side as well to win. In both Manitoba and Ontario that law is primarily driven by the legislation passed by the provincial legislatures and Canada’s Parliament, as well as the Common Law which is the unwritten body of applicable legal principles developed over the centuries by the Courts.

   If legislation says you lose and if the Common Law says you lose, that doesn’t mean a Court will definitively find against you, but you’ll have a terrible uphill battle against the trends in the law, such that your legal counsel may need to be very creative, you may need to convince the Court that the facts are so compelling that the Court should rewrite the law (I was able to do this in R. v. Montour, concerning First Nation rights, but that is a very rare result), or perhaps you should reconsider your position in fighting the case if it is going to be an almost inevitable loss.

3. Trying for a Quick Knockout Blow, Rather than Being Prepared for a War of Attrition - while the ideal outcome of a Superior Court case for every client may be quick cheap win, the reality is usually the opposite of a very slow expensive win (but with the win being key). There is therefore a tendancy to try to win with a relatively quick motion (often called a summary judgment motion), rather than

4. Underestimating the Legal Costs Involved in Winning in Superior Court - While the rise of lawyer hourly rates are a legitimate concern, two hours of legal advice can be a total bargain at any rate if it solves your legal problem, wheras 200 or 2000 hours of court litigation lawyer time will always be expensive at any hourly rate. Before starting or defending any Superior Court litigation, a First Nation should ask itself two questions: (1) is it financially worth it, and (2) can we afford it?

   Like spending $250,000 in legal fees to fight over a $100,000 business fee dispute is pointless, because even if you win, you’ll lose. Whereas fighting to defend Treaty or Aboriginal constitutionally protected rights may be priceless. But lawyers should always be pushed for anticipate legal fees budgetary estimates, where even though they usually won’t be able to guarantee them because of the unpredictable twists and turns of litigation, they should be able to produce some guidelines for you so that you can determine if your First Nation’s internal budget can afford the fees, or if a litigation loan might be required.

5. Picking the Wrong Geographic Jurisdiction - where you file (or respond) to a Superior Court of Justice case can be almost as important as what you file. The Rules of Court generally require you to file your case in the court jurisdiction closest to where the events happened and the parties reside, not where it happens to be convenient for the lawyers because that is where their offices are located. The jurisdiction will dictate which selection of local judges you have available to you, how long you may have to wait to get a court date, and how difficult the court Registrar’s office is to communicate with.

   Generally, the larger and busier the jurisdiction, the greater the selection of judges, but the longer the wait, and the more overwhelmed the Court’s Registrar may be in responding to questions and filings. There is an optimal balance to be achieved among all these factors, which requires careful advance consideration on where to file, or if a defendant whether it is worth trying to force a case into another jurisdiction because it was no filed in the one the Rules dictate it should have been filed in.

   The Ontario and Manitoba Superior Court First Nations Lawyers

   Gordon S. Campbell, B.A., LL.B., B.C.L. leads the Firm’s Superior Court litigation practice. He’s been a member of the Ontario bar since 1995, and has conducted hundreds of trials, in all levels of courts.

   Shanelle Dover, B.A., J.D., is a member of both the Manitoba and Ontario bars, worked at a national Toronto-based law firm where she honed her skills in trial advocacy, legal research, and written submissions. She was a member of litigation teams preparing for judge-alone and jury trials, attended mediations, and supported clients through all stages of the dispute process.