E. A. Brant

Following dismissal of an application challenging the validity of a property transfer involving lands in Tyendinaga Mohawk Territory, the court addressed costs.

The successful party sought costs on a substantial indemnity basis, arguing the opposing claim was weak.

The court held that substantial indemnity costs are reserved for rare cases involving litigation misconduct or other exceptional circumstances.

Finding no bad faith or sanctionable conduct, the court awarded partial indemnity costs and assessed a proportionate amount based on the simplicity and short duration of the application.

A dispute arose between two brothers regarding reserve land that their father had initially devised to one son in a will but later transferred into joint tenancy with the other son.

The applicant sought a declaration that the later transfer was invalid on the basis that the testator lacked understanding of joint tenancy and that the transfer failed to comply with requirements under the Indian Act.

The court found that despite limited formal education, the testator was experienced in land transactions and fully understood the effect of joint tenancy.

The transfer had been properly processed and registered by federal authorities and the band council.

The court held that the joint tenancy was valid and that the property passed to the respondent by right of survivorship upon the testator’s death.