An Ontario Superior Court judge has dismissed a lawsuit brought by a Dunnville-area man who sought damages from the federal and provincial governments, alleging their failure to resolve the long-standing Six Nations land claim led to his financial ruin1. Justice M. Gibson struck the claim against Canada and Ontario, finding it was filed years too late, failed to provide proper legal notice to the province, and was based on legal duties that the governments do not owe to private citizens.
The decision stems from a claim initiated in September 2023 by David John Rowe, who represented himself in court. Mr. Rowe alleged that he and his two corporations, Lumber Island Company Limited and 659877 Ontario Inc., suffered significant financial losses between 2004 and 2014. The core of his argument was that the unresolved litigation between the Six Nations of the Grand River, Canada, and Ontario created a cloud of uncertainty over the title of his property, making it impossible to sell. His property, located on Rainham Road in Haldimand County, included 46.5 hectares of islands and wetlands on the Grand River and had been in his family since the 1880s. He asserted the land falls within the disputed Haldimand Tract, the subject of a claim first filed by the Six Nations in 1995.
Mr. Rowe’s narrative of financial decline began around 2004 when he attempted to sell a popular waterfront facility owned by one of his companies. The property was listed for $1.65 million. However, he claimed that potential buyers were deterred by the uncertainty surrounding the land claim. According to his statement of claim, this fear was amplified following the eruption of protests in nearby Caledonia in February 2006 over a housing development, which garnered significant media attention and further spooked the market. Over the years, Mr. Rowe stated he wrote to various federal and provincial government representatives about the challenges he faced but received no substantive help.
Unable to sell the assets, his businesses fell into financial distress. The companies had taken out several loans from the Grand Erie Business Centre Inc. (GEBC), a local business development corporation. By March 2012, his companies defaulted on their loan payments, owing GEBC a combined total of over $367,000. GEBC subsequently began enforcement proceedings, including obtaining a court order for possession of the mortgaged property. After listing the property for sale and receiving several appraisals valuing it between $462,000 and $600,000, GEBC eventually sold the property in May 2014 for $400,000. Mr. Rowe alleged this was an improvident sale, claiming GEBC had received and rejected an offer of $1.7 million, an assertion GEBC denied in its statement of defence. The proceeds from the sale were not enough to cover the debt, leaving his companies still owing over $140,000 to GEBC.
Mr. Rowe claimed the prolonged stress from these events caused him to suffer three heart attacks between 2014 and 2017, along with an anxiety disorder, which hindered his ability to take timely legal action. He filed his lawsuit in 2023, more than nine years after the property was sold. He also brought a motion to formally add his two corporations as plaintiffs in the action.
In response, both the Attorney General of Canada and the province of Ontario brought cross-motions to have the claim against them struck out entirely, arguing it was legally untenable on multiple grounds. Justice Gibson heard the competing motions together and ultimately sided with the governments.
The first fatal flaw identified in the claim against Ontario was a failure to provide proper notice. Justice Gibson noted that under the provincial Crown Liability and Proceedings Act, 2019, a person cannot sue the Crown for damages without first providing at least 60 days’ notice of the claim before the proceeding is commenced. Mr. Rowe filed his claim on September 27, 2023, but only served his notice letters on the province in February 2024. The court found this failure was not a minor procedural misstep. The legislation makes clear that a proceeding commenced without the required prior notice is a “nullity,” meaning it is void from the start. The judge concluded that no amendment could fix this fundamental defect, as there was no legally valid claim to amend.
The second, and perhaps most significant, reason for the dismissal was that the claim was barred by the statute of limitations. In Ontario, the Limitations Act, 2002 generally requires a lawsuit to be filed within two years of the day the claim was discovered. Justice Gibson reasoned that Mr. Rowe discovered his loss, at the very latest, when his property was sold by GEBC on May 30, 2014. This event crystallized the financial harm he alleged. By waiting until September 2023 to file his claim, he was more than seven years past the two-year deadline. Mr. Rowe acknowledged the delay but asked the court for an exception, citing his health problems and his difficulty in retaining one of 25 lawyers he had approached between 2011 and 2018.
Justice Gibson was not persuaded, explaining that the current limitations law in Ontario has removed the court’s discretion to grant extensions based on “special circumstances,” a doctrine that existed under previous legislation. The judge found that Mr. Rowe had not pleaded that his health issues legally incapacitated him, only that they “hindered” his ability to act. Furthermore, difficulty in hiring a lawyer is not a recognized basis for extending a limitation period. The judge concluded it was “plain and obvious” that the claim was statute-barred.
Beyond the procedural and limitations issues, Justice Gibson also found that Mr. Rowe’s lawsuit failed to disclose a reasonable cause of action. Mr. Rowe had argued that the governments were negligent and breached a fiduciary duty by failing to resolve the Six Nations litigation, defend his property title, or provide him with due process. The court firmly rejected these arguments. To establish negligence, a plaintiff must first show that the defendant owed them a private law duty of care. Justice Gibson found no such duty existed. The governments’ decisions regarding how to manage and litigate complex Indigenous land claims are considered core policy functions, which are generally immune from tort liability. The judge warned that creating a new “Tort of Failing to Resolve Ongoing Litigation” would create a dangerous precedent, opening the door to indeterminate liability for an unknowable number of people who might claim their economic interests were affected by ongoing court cases involving the government.
Similarly, the court found no evidence of a fiduciary duty. A fiduciary relationship requires one party to act in the best interests of another. Justice Gibson explained that the Crown, which must balance countless competing public interests, cannot be an “ordinary fiduciary” to a single individual or corporation in this context. The government’s role in administering the land titles system is a public function and does not create an undertaking to protect the private financial interests of every property owner against market uncertainties arising from third-party litigation.
Consequently, Justice Gibson granted the motions brought by Canada and Ontario, dismissing the action against them. Mr. Rowe’s motion to amend his claim to add his corporations as plaintiffs was also dismissed, as the amendments could not cure the case’s fundamental and fatal defects. Mr. Rowe was ordered to pay $3,000 in legal costs to Ontario. The federal government did not request any costs.
Read about more cases involving indigenous matters here.
