Executive Summary: Key Legal and Evidentiary Issues

• Timeliness and court discretion regarding the late filing of the Notice of Contest under the Civil Procedure Rules.

• Standing of the respondent, Clinton Ray Howard, to raise treaty and Aboriginal rights in the proceeding.

• Allegations of unlawful trespass and the applicants’ request for vacant possession and a permanent injunction.

• Motions to strike affidavits and portions of affidavits filed by both parties.

• Prejudice to the parties resulting from procedural irregularities and potential delays in the merits hearing.

• Award of costs in relation to the motion for late filing of the Notice of Contest.

Background and facts

In Glooscap First Nation v. Howard, the applicants—Glooscap First Nation, Glooscap Landing #1 GP Ltd in its capacity as general partner of Glooscap Landing #1 Limited Partnership, and Glooscap First Nation Economic Development Corporation Ltd., doing business as Glooscap Ventures Management—filed an Application in Chambers on November 13, 2024. They sought a declaration that the respondent, Clinton Ray Howard, carrying on business as Glooscap’s Finest Herbal Body Care, was unlawfully trespassing on their property, an order for vacant possession, and a permanent injunction. An interlocutory injunction restraining the respondent from certain activities was granted on December 5, 2024, pending the hearing of the merits of the application.

The procedural history included a hearing on the standing of Mr. Howard to raise treaty and Aboriginal rights, which took place on April 29, 2025. On May 6, 2025, the court found that Mr. Howard did not have standing to raise treaty and Aboriginal rights in this proceeding. Several motions were scheduled for hearing on October 6, 2025, including motions to strike affidavits from both parties and a motion to dismiss the application on the basis that the applicants were allegedly relying on an illegal contract. However, these motions could not proceed until the issue of the late filing of the Notice of Contest was resolved.

Procedural developments and legal issues

The respondent attempted to file a Notice of Contest approximately eight months after counsel was retained and about one month before the hearing on the merits. The court considered whether to permit this late filing, taking into account the Civil Procedure Rules, the conduct of both parties, and the potential prejudice to each side. The court noted that the applicants had proceeded as if the Notice of Contest had been filed and had not previously raised the issue. The judge found that the balance of prejudice favored permitting the late filing, as denying it would prevent the respondent from being heard on the merits, especially given the significant remedies sought by the applicants.

The court also addressed the applicants’ argument that any novel grounds of relief in the Notice of Contest should be struck, concluding that the proposed notice was permissible subject to the right to request particulars and to an award of costs. The merits hearing, originally scheduled for November 10, 2025, was adjourned to allow the applicants time to consider whether additional evidence was required in response to new allegations in the Notice of Contest.

Outcome and costs

The court granted the respondent’s motion to file the Notice of Contest outside the prescribed timelines. The applicants were awarded costs in the amount of $750, payable forthwith, regardless of the success of the motion. No damages or other monetary awards were determined in this decision, as the merits of the underlying application have not yet been heard. The successful party on the procedural motion was the respondent, Clinton Ray Howard, while the applicants received a costs award of $750; this is the total amount ordered in favor of the successful party on this motion.