Mariam Gagi

This endorsement addresses the issue of costs following a previous decision (2023 ONSC 1073) which dismissed an application and an action against the Attorney General of Canada, and struck out a statement of claim against the Attorney General of Ontario (AGO) with leave to amend.

The plaintiff and Attorney General of Canada settled costs.

The Attorney General of Ontario sought partial indemnity costs of $2,127.50 from the self-represented plaintiff.

The plaintiff failed to provide responding costs submissions despite multiple opportunities.

The court found the AGO was largely successful and justified in bringing the motion to strike.

The court awarded the AGO $2,000.00 in all-inclusive partial indemnity costs, payable by the plaintiff to the Minister of Finance for Ontario within 30 days.

The plaintiff, Donald Jameson Whitehead, initiated an action and an application against the Attorney General of Ontario (AGO) and the Attorney General of Canada (AGC), seeking substantial damages for alleged infringements of rights during his detention and treatment.

The AGO moved to dismiss the action and application, and the AGC moved to consolidate and strike the pleadings.

The court dismissed the application as an abuse of process due to duplication.

It dismissed the action against the AGC, finding no reasonable cause of action.

For the AGO, the court struck out claims related to municipal police, correctional facilities, tribunals, and healthcare institutions without leave to amend, as the AGO is not vicariously liable for these entities.

Claims against Crown prosecutors were also struck for insufficient pleading of malicious prosecution or wrongful non-disclosure, but with leave to amend to provide necessary particulars.

The entire Statement of Claim was struck with leave to file a Fresh as Amended Statement of Claim within 45 days, specifically for claims against Crown prosecutors.

Ontario brought a motion to adjourn the Stage Three trial of a complex treaty rights claim sine die, pending the Supreme Court of Canada's decision on the appeal of Stage One and Stage Two.

The plaintiffs, interveners, and Canada opposed the motion.

The court applied the test for an adjournment, balancing the interests of the parties and the administration of justice.

The court found that the risk of proceeding was manageable, while the prejudice to the plaintiffs and the administration of justice caused by further delay would be significant.

The motion to adjourn was dismissed.

The Ontario Court of Appeal remitted the issue of the Huron plaintiffs' Stage One trial costs to the Superior Court for reconsideration, questioning the substantial difference in hours claimed compared to the Superior plaintiffs.

The court found the Huron plaintiffs' costs to be fair and reasonable, noting the added complexity of representing 21 First Nations, the extensive evidence led on the Anishinaabe perspective, the incorporation of Anishinaabe Ceremony and protocol, and the necessary creation of the Robinson Huron Trust to manage the litigation.

The court concluded that the costs were proportionate and within the reasonable expectations of the parties given the historical significance and complexity of the treaty claims.