Michael E. Burke

The moving party sought leave to appeal an order granting advance costs to plaintiffs in treaty land entitlement litigation involving the size of a reserve under Treaty 9.

The motion judge had found the plaintiffs met the Supreme Court of Canada test for advance costs and ordered the costs initially shared between the federal and provincial defendants, subject to later adjustment.

The court held there was no reason to doubt the correctness of the motion judge’s application of the three‑part test for advance costs or her discretionary decision to award them.

The allocation of costs between the governmental defendants was reasonable at this preliminary stage.

Leave to appeal was denied because the issues were fact‑driven and did not raise matters of public importance or legal development.

Following a prior decision in favour of the plaintiffs on a motion, the court addressed the quantum of costs payable.

The plaintiffs sought approximately $174,000 in costs on a partial indemnity basis, while the federal defendant argued that $75,000 was reasonable.

The court considered the substantial evidentiary record, the importance of the motion, and the extensive preparation required to establish a meritorious claim related to Indigenous rights litigation.

Balancing these factors, the court fixed costs at $125,000 inclusive of disbursements and taxes.

The costs award remained subject to possible re‑adjustment between the governmental defendants at trial.