Courts of Justice Act

RESPONSE TO SUPLEMENTRY FACTUM OF THE APPLICANT

Court File no. 13-267
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJET! THE "#EEN IN RI$HT OF ONTARIO
As re%resente& '( THE MINITER OF TRAN)ORTATION
Applicant
and
*2+ ,R#CE TREET HO-.IN$ INC.
An& JOHN CHN#RR
Respndents
RESPONSE TO SUPPLIMENTRY FACTUM OF APPLICANT
1. The Respondent John C. Schnurr admits to the submissions in paragraph 1.
2. The Respondent John C. Schnurr agrees to the submissions in paragraph 2.
3. The Respondent John C. Schnurr, denies the in totality the submissions in paragraph 3 of the
Applicants submission.
3a! The Respondent denies that the flo"er bo#es are any ris$ to the tra%eling public and submits
that the Applicant pro%e the ris$ to the tra%eling public "ith statistics and facts %erifying the said
ris$.
3b! The Respondent ha%e in fact submitted applications and fees "ithout pre&udice to the Cro"n
'atent, "hich in fact, the Applicant has refused to process as is %erified by the letter of Tanya
Cross of (arch 1), 2*1+.
3c! The Respondent adamantly denies that the Applicant made reasonable attempts to remo%e
the ,lo"er -o#es, in fact the Applicant and or their agents did attend the property at ./** A.(.
in unmar$ed %ehicles and began remo%ing the ,lo"erbo#es causing e#tensi%e damage to the
bo#es themsel%es and destroying the flo"ers planted along "ith the cedar trees. The Applicants
did in fact cut the pa%ement surrounding the flo"erbo#es and did refuse to stop "or$ "hen
re0uested by the Respondent until the Respondent had the 1'' enforce the Applicants remo%al
from the property. The Applicants did attempt to put the flo"erbo#es bac$ in place in a hap
ha2ard manner ho"e%er the damage to the bo#es, the pa%ement and the plants "as substantial.
3d! 3hen the Respondent as$ed if the Applicant had a Court 1rder to enter the property or to
remo%e the ,lo"er -o#es, he "as ad%ised by the Applicants representati%es, that they did not
need appro%al as they "ere the go%ernment.
+. The Respondent agrees "ith the submissions contained in paragraph + "ith the e#ception that the
Applicant through its agent (r. 4i#on "as in the midst of settling the matter "hen the assault by
the Applicant too$ place. The Respondent remo%ed all signage as a gesture of good faith and
agreed to and did submit applications for signage, 5ncroachment, land use, along "ith site
dra"ings and prescribed fees.
'ART 66 7,ACTS
8. The Respondent agrees "ith the Applicants submission "ith the e#ception that in the reference to
lea%ing to paragraph ., (s. Cross demanded all flo"er bo#es be remo%ed contrary to
discussions "ith (r. 4i#on of the (T1.
.. The Respondent agrees "ith submission contained in 'aragraph ..
9. The Respondent agrees "ith submission contained in 'aragraph 9.
). The Respondent agrees "ith submission contained in 'aragraph ).
:. The Respondent denies the allegation cited by the Applicant in paragraph : "ith respect to the
0uoted comment and states that the said comment "as ta$en out of conte#t. The respondent
maintains that he "as conforming to the agreement made "ith (r. 4i#on of (T1.
1*. The Respondent agrees "ith submission contained in 'aragraph 1*.
11. Respondent denies the allegation cited by the Applicant in paragraph 11 as the comment "as
made &o$ingly.
12. The Respondent agrees "ith submission contained in 'aragraph 12.
'ART 66676SS;5S
13. The Respondent agrees "ith submission contained in 'aragraph 12 in principal.
1+. The Respondent denies the statement made by the Applicant in 'aragraph 1+.
'art 6<7 Analysis
18. The Respondent denies the argument as submitted and submits that the Applicant bring for"ard
their employees (r. =agnon, (r. 4i#on and (r. >at2ir2 to substantiate their position that there
"as no agreement.
a! (r. Ste"art did in fact state that there "ere no specific discussions other than on general
terms relating to the o%erall de%elopment of the site.
1.. The Respondent entered into discussions "ith numerous (T1 representati%es in good faith
belie%ing he could trust the "ord of the =o%ernment Representati%es. As a subse0uent did not
feel it "as necessary to confirm the "ords of trusted indi%iduals.
A. The Respondent denies the Applicants suggestion that the Respondent has selecti%e memory.
The Respondent did ha%e serious -rain Surgery in 2*1* but has since reco%ered for the most
part.
-. The Respondent maintains that the 'lanter -o#es are a 'rior ?on7Conforming ;se.
19. The Respondent states and it is a matter of fact that the 'ictures from 1::8, Tab ;, John Schnurr
Affida%it, sho" that the property "as accessed through steps that "ent right to the side"al$ and
the front of the -uilding had shrubs planted "ith a "ell maintained front la"n. The fact of the
matter is that the property used and maintained the property to the side"al$ edge then and
maintains that they are simply carry for"ard "hat "as al"ays there thus confirming a ?on7
conforming use of the property of the right of "ay.
1). The Applicant argues that the Constitution Act of 1).9 grants authority to the 'ro%ince,
ho"e%er the Applicant has not ta$en into account the %ery fact that the sub&ect property is
in the Saugeen 1&ib"ay ?ation and the 'ro%ince merely acts as a Trustee, and has a
,iduciary obligation to act in the best interest of the actual o"ner of the property. The
conduct to date by the (T1, has been high handed and damaging to the interests of
prosperity and the property %alue as "ell as being contrary to the interests of the community
as a "hole.
a! The Royal 'roclamation of 19.3 made the "hole of the -ruce 'eninsula the property of the
Saugeen 1&ib"ay ?ation.
b! @er (a&esty again made a Royal 4eclaration in 1)+9 declaring the "hole of the -ruce
'eninsula the 'roperty of Saugeen 1&ib"ay ?ation.
c! 6n 1)81 the 1&ib"ay people surrendered by "ay of Treaty A92 to the 4ominion of Canada,
retaining title to the said lands.
d! The 1)88 1rder in Council, by "hich the =o%ernment accepted the terms of the surrender,
"hich states clearly, the Cro"n recei%ed the lands Bin trustB for the 1&ib"ay 'eople, the
Cro"n accepted the responsibility to sell the lands for the benefit of the Saugeen 1&ib"ay.
The go%ernment promised to sell all the lands for the benefit of the Saugeen 1&ib"ay and
subse0uently failed to do so. Section 1*: of the -?A binds the 'ro%ince to the ,iduciary
responsibilities created by the trust "hich they ha%e ignored.

e! As part of the 1&ib"ay Claim all Cetters of 'atent on the -ruce 'eninsula are being respected
and recogni2ed, by the 1&ib"ay ?ation.
f! The letters of 'atent granted by the 4ominion of Canada on 1ctober 13, 1).) through the
Superintendent =eneral of 6ndian Affairs, are in fact a Statutory 6nstrument "hich by its %ery
nature creates a contract to be go%erned by the Ca"s of 5ngland , at the time of the 'atent.
g! There appears to be no record or proof that the proceeds of the sale, by the go%ernment of
Canada, "hich "ere to be distributed to the Chippe"aDs of ?a"ash "ere e%er paid.
h! Regardless, the regulations imposed by the 'ro%ince of 1ntario, "ith respect to the sub&ect
property, are sub&ect to the appro%al of the Saugeen 1&ib"ay ?ation, as "as determined by
the Supreme Court of Canada on June 2., 2*1+.
i! 6n 1::+, the Saugeen 1&ib"ay ?ation filed an action claiming bac$ the land on the -ruce
'eninsula, "hile embracing the Cands already sub&ect to 'atent, "hich is currently before
the Courts.
&! The -ruce 'eninsula is in fact o"ned by the Saugeen 1&ib"ay ?ation "hich is unceded and
as such, are "ithin a ,ederal Jurisdiction, not a 'ro%incial Jurisdiction. The 'ro%ince of
1ntario is bound to the terms of the trust established by the 1rder in Council of 1)88.
$! The Cetters of 'atent "ere issued by the 4ominion of Canada on behalf of the Chippe"as
of ?a"ash, as part of the Saugeen 1&ib"ay ?ation. The 'atent itself is in fact a Statutory
6nstrument as is defined by the Statutory 6nstrument Act, "hich sub&ect it to the la"s of
5ngland on the date of the issuance of the instrument.
l! 6t is abundantly clear that the 1&ib"ay ?ation is in fact the beneficial o"ner of the land and
as such, the Constitution Act does not bind Saugeen 1&ib"ay ?ation until such time as the
=o%ernment of Canada satisfies its ,iduciary obligations as outlined in Treaty A92 and the
1rder in Council of 1)88.
m!,urther to that, the 1&ib"ay ?ation is not sub&ect to the 5#propriation of 1:.8, as declared by
the 'ro%ince of 1ntario, as the @igh"ay is "ithin the Saugeen 1&ib"ay ?ation and as such
@igh"ay ., remains the property of the Saugeen 1&ib"ay 'eople and any benefit deri%ed for
the said asset is the property of the Trust and is sub&ect to their appro%al not the discretion of
the Trustee.
n! 6t is further stated, that there is no record of the 5#propriation of 1:.8 registered on the title
of the sub&ect property as is e%idenced on Tab '2 of the Respondents Response to
Application.
o! 6t is stated and a matter of fact that the 5#propriation Act re0uires consideration to be paid to
the o"ner of the e#propriated property at fair mar$et %alue 5#propriations Act 131! 2!!
neither the 'atent holder nor the Saugeen 1&ib"ay ?ation "ere granted or paid consideration
for the said property in any amount.
p! The fiduciary obligations of the federal go%ernment to ,irst ?ations "ere established in 1:)+
Supreme Court of Canada ruling in fa%or of the (us0ueam ?ation of -ritish Columbia.
1:. The Respondent respectfully argues that the 'ro%ince, by creating the 'T@6A, has created
imbalance by contradicting ,ederal la" and ignoring the significance of the statutory nature
of the Cetters of 'atent itself.
2*. The Respondent respectfully refers to the -lac$stone Commentaries, more particularly the
>ings 'rerogati%e, "herein "hich, in essence, "hat has been granted by the >ing may only
be "ithdra"n by the >ing.
1. The Cro"n, "ithin its po"er, =ranted the 'atent for the sub&ect property through the
4ominion of Canada in1).9, 6ndian Affairs, to entice settlement in the area, in order to
de%elop prosperity and gro"th, in the best interest of the actual o"ners of the property.
2. The (inistry of Transportation, on behalf of the Cro"n, by implementing the 'T@6A, has
effecti%ely, sei2ed all rights of utility, in self interest, to generate re%enue to their gain,
"ithout consideration, and "ithout sanction of the beneficial o"ners of the property or in the
interests of the 'atent holder.
3. 6t is the 'osition of the Respondent that the rights carried for"ard are in fact %ested and as a
subse0uent "e rely on the follo"ing from the -lac$stone Commentaries 'age 2.: EE Vested
rights, public or private are not taken away without just compensation. - In Re Cuno, Bowen,
.!, said" #In the construction o$ statutes you must not construe the words so as to take away
rights which already e%isted be$ore the statute was passed, unless you have plain words
which indicate that such was the intention o$ the egislature.& An& in R/n&ol%0 1. Mil2/n3
40ere t0e 5uestion /rose /s to 40et0er t0e ri60t of %re'en&/ries of c/t0e&r/ls to 1ote /t
t0e election of %roctors 4/s t/7en /4/( '( t0e Ecclesi/stic/l Co22issioners Act3 189+3 /
ri60t 40ic0 t0e %re'en&/ries 0/& en:o(e& fro2 ti2e i22e2ori/l3 t0e Court s/i&; <=e
/6ree 4it0 t0e %rinci%le of t0e l/4 st/te& '( ir Roun&ell )/l2er /t t0e outset3 t0/t 1este&
ri60ts /re not to 'e t/7en /4/( 4it0out e>%ress 4or&s or necess/r( inten&2ent or
i2%lic/tion? /n& u%on /&1ertin6 to t0e st/tute3 it 4ill 'e foun& t0/t t0ere is no e>%ress
e>tinction of t0e ri60t 0ere cl/i2e&3 /n& no necess/r( i2%lic/tion or inten&2ent to t0/t
effect.@ 'nd the like is laid down in more recent cases. (or instance, in )urton v. )urnbull, a
*uestion under the 'gricultural +oldings 'ct, ,-./, 0crutton, .!., said" #'s by the 'ct he
1the landlord2 is being deprived o$ his common law rights, I think we must construe the 'ct
with some liberality in his $avour or scrutini3e the tenants claim with some strictness4Brett,
5.R. In 'tt.-6en. v. +orner, said" #It is a proper rule o$ construction not to construe an 'ct
o$ 7arliament as inter$ering with or injuring persons8 rights without compensation unless
one is obliged to so construe it.&4. ord 'tkinson in Central Control Board v. Cannon
Brewery Co., re$erring to what he described as a canon o$ construction o$ statutes well
recogni3ed said" #)hat canon is this" that an intention to take away the property o$ a subject
without giving him a legal right to compensation $or the loss o$ it is not to be imputed to the
egislature unless that intention is e%pressed in une*uivocal terms.&&
+. 6t is the submission of the Respondent that the 'ro%ince of 1ntario, has in fact breached its
,iduciary responsibilities to the Saugeen 1&ib"ay ?ation, by di%erting re%enue, rightfully
being the property of Saugeen 1&ib"ay ?ation, under guise of Cicence fees, thus re%ersing
the Cetters of 'atent of 1).9 , as intended by the Cro"n, effecti%ely %oiding the effect of
o"nership pro%ided by the 'atent itself.
8. The Respondents rely upon the 'roperty and Ci%il Rights Act, "hich clearly pro%ides that the
la"s of 5ngland as they stood on the 18th day of 1ctober, 19:2, as the rule for decision.

21. The Respondents submit that the matter be referred to a Court of Competent Jurisdiction or
in the alternati%e, the Respondents as$ that the Applicants application be dismissed "ith
costs to the Respondent and any further cost that that this @onourable Court sees fit to a"ard
for all the reasons cited.
' 9( :+IC+ I0 R;07;C)(<= 0<B5I));>
>ated"
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!ohn C. 0chnurr