Executive Summary: Key Legal and Evidentiary Issues

• Cowichan Tribes sought production of documents from British Columbia and Montrose to challenge the timing of Montrose's post-judgment application to be added as a party and reopen the trial.

• Montrose opposed on the basis that the plaintiffs' document request constituted an abuse of process due to allegedly inconsistent positions regarding the impact on private landowners.

• Delay in bringing the Montrose Application was a central issue, with the court confirming that an assessment of delay may be included and rejecting Montrose's submission that delay is only a consideration where a limitation period has expired.

• The court rejected Montrose's abuse of process argument, finding the plaintiffs maintained a consistent position throughout the litigation that Aboriginal title could have consequences for private interests but did not seek to invalidate fee simple holdings.

• Document production under Rule 22-1(4)(c) was granted on a narrowed basis, limited to documents referencing the Aboriginal rights and title claim or the proceedings, rather than all references to the plaintiffs and Related Entities.

• Production was ordered within 14 days, with the plaintiffs' response to the Montrose Application due seven days after production, followed by a judicial management conference.

Background of the dispute

The Cowichan Tribes, along with several First Nations and their representatives acting on behalf of all descendants of the Cowichan Nation, commenced an Aboriginal title claim in 2014 against the Attorney General of Canada, His Majesty the King in right of the Province of British Columbia, the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam Indian Band, and the Tsawwassen First Nation. The trial had concluded approximately two years before this application was brought, and final reasons for judgment were issued in August 2025 (indexed at 2025 BCSC 1490). The final order had not yet been entered, and all parties had filed notices of appeal at the time of this ruling.

Montrose's post-judgment intervention attempt

On January 23, 2026, Montrose Industries Ltd., Montrose Property Holdings Ltd., and Ecowaste Industries Ltd. (collectively "Montrose") filed an application seeking to be added as a party and to reopen the trial. This application came two years after the trial concluded and approximately six months after the final reasons for judgment were issued. In support of its application, the President and CEO of Montrose Property Holdings Ltd., Ken Low, deposed that Montrose was aware of the case and had a general familiarity with it but at no point did Montrose consider that its interests as a private landowner could be affected by the final reasons for judgment. The plaintiffs submitted that Mr. Low's affidavit did not sufficiently explain how familiar Montrose was with the action, when Montrose became familiar with the action, or what he meant by "a general familiarity" with the action.

The plaintiffs' document production application

The Cowichan Tribes applied for production of seven categories of documents from both British Columbia and Montrose. These included documents related to Ecowaste's applications under the Water Sustainability Act, Montrose Property Ltd.'s and/or Wood PLC's applications under the Heritage Conservation Act, Ecowaste's application to remove lands from the Agricultural Land Reserve, Archaeological Overview Assessments concerning the property located at 15111 Williams Road, documents referring to those assessments, and any other documents that the Province sent to Montrose regarding the Cowichan legal proceedings between 2014 and 2025. The plaintiffs submitted these documents were likely to illuminate the extent of the notice Montrose had about the proceedings and why Montrose did not seek to participate at an earlier stage, asserting that delay is a factor for the court to consider on the Montrose Application.

Montrose's abuse of process defence

Montrose opposed the plaintiffs' application on several grounds. It submitted that the plaintiffs had taken a diametrically opposed position on this application in contrast with the position they took throughout the litigation — namely, that fee simple title owners would not be affected by their claim. Montrose further pointed to post-judgment media statements by plaintiffs' counsel, Mr. Rosenberg, suggesting that private land sales in Cowichan Aboriginal title lands would be with the Cowichan's consent and some accommodation from the Crown to the Cowichan. Montrose submitted these changes in position constituted an abuse of process. Additionally, Montrose asserted that even if it received regulatory communications from the Province referencing the litigation — which it did not concede — such communications were not formal notice of the litigation and would not require Montrose to apply to become a party.

The court's analysis of abuse of process

Justice Young reviewed the doctrine of abuse of process as articulated in cases including Behn v. Moulton Contracting Ltd., Toronto (City) v. C.U.P.E., Local 79, Este v. Esteghamat-Ardakani, and Pan Afric Holdings Ltd. v. Athabasca Holdings Ltd. The court found that Montrose's submission that the plaintiffs said the declarations sought in the trial would not impact private property owners misstated the position the plaintiffs maintained throughout the proceedings. The plaintiffs had consistently maintained that the declaration of Aboriginal title sought included land that was privately held, that they were not seeking a declaration that the private fee simple interests were defective and invalid, and that the consequences of a declaration of Aboriginal title for private property interests were uncertain and not at issue in these proceedings. Justice Power had addressed notice to private landowners in a 2017 ruling (2017 BCSC 1575), declining to require the plaintiffs or BC to provide formal notice to private landowners while recognizing that the consequences of a declaration of Aboriginal title over privately held lands remained unclear. As for Mr. Rosenberg's remarks to the media, the court held that his expression of his opinion about the consequences of the declaration of Aboriginal title was not a position put forward by the plaintiffs in this proceeding nor any other, and did not constitute misuse of the court's process.

Relevance of delay and the legal framework for joinder

The court turned to the merits of the production request under Rule 22-1(4)(c) of the Supreme Court Civil Rules, which grants the court discretion to order production of documents in respect of a chambers proceeding. Citing Malii v. British Columbia and Kwikwetlem First Nation v. British Columbia (Attorney General), the court confirmed that when assessing whether joinder is "just and convenient" under subrule 6-2(7)(c), the factors typically considered include the extent of and reasons for delay in bringing the application and the degree of prejudice caused by delay. The court rejected Montrose's submission that delay is only a consideration where a limitation period has expired, finding that Montrose's application to be added as a party may include an assessment of delay. The court also found that the plaintiffs' preliminary abuse of process objection to the Montrose Application independently put delay in issue, noting that inordinate delay causing serious prejudice can give rise to an abuse of process.

The production order and scope adjustments

While the court found that most documents of the type the plaintiffs sought were likely to be relevant to the Montrose Application and the issue of delay, it narrowed the scope of the production request. Rather than requiring production of all documents referencing the plaintiffs and Related Entities, the court limited the order to documents that reference the Aboriginal rights and title claim or these proceedings. The court found that general references to the plaintiffs and Related Entities, without more, in relation to those regulatory applications, would likely not be probative. The court also noted that the plaintiffs would be prejudiced in their ability to respond to the Montrose Application without some degree of document production, and that the kind of non-privileged, non-confidential documents that the plaintiffs may receive from BC, in the nature of a response to a freedom of information request with the usual attendant exemptions and redactions, were not a substitute.

The ruling and overall outcome

The Honourable Madam Justice Young ruled substantially in favour of the Cowichan Tribes (the plaintiffs), granting their application for document production in a narrowed form. The abuse of process defence raised by Montrose was not made out. The court ordered Montrose and BC to produce the relevant documents to the plaintiffs within 14 days after the release of the decision. The plaintiffs were required to file and serve their response to the Montrose Application within seven days after both Montrose and BC had produced the documents. A judicial management conference was to be held within seven days after the plaintiffs filed and served their response. Costs of the application were to be spoken to at the conclusion of the Montrose Application. No specific monetary amount was awarded or ordered in this ruling, as the decision concerned a procedural matter regarding document production.