CITATION: Ogichidaakwe (Grand Chief), et al. v. Ontario Minister of Energy, et al., 2015 ONSC 7582
DIVISIONAL COURT FILE NO.: 411/11
DATE: 20151209
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Ogichidaakwe (Grand Chief), et al Applicants
AND: Ontario Minister of Energy, et al Respondents
AND: H20 Power Limited Partnership and Resolute FP Canada Inc., Interveners
BEFORE: Lederman, Molloy and Lederer JJ.
COUNSEL: Maxime Faille, Scott A. Smith and Paul Seaman for the Applicants Sara Blake, Sarah Valair and Stephanie Figliomeni for the Respondent Ontario Ministry of Energy John A. Terry and Alex Smith for the Respondent Ontario Power Authority Geoff R. Hall and Carole J. Piovesan for the Internveners
HEARD at Toronto: In Writing
COSTS ENDORSEMENT
[1] This application for judicial review which had been commenced in September, 2011 was set for a five day hearing to commence on Monday June 8th, 2015. At 3:55 p.m. on June 5th, 2015, the Friday before the week long hearing was to begin, the applicants delivered a Notice of Abandonment.
[2] This application was resolved and settled as between the main applicant, Grand Council Treaty 3 (“Grand Council”) and the Crown, as represented by the Minister of Energy on June 5, 2015 on a without costs basis.
[3] Interveners to the proceeding, H20 Power Limited Partnership and Resolute FP Canada Inc. (“collectively, H20”) seek costs on a partial indemnity basis in the total amount of $335,000 (inclusive of disbursements and HST). Similarly, the respondent Ontario Power Authority (“OPA”) seeks its partial indemnity costs in a total amount of $450,399.17 (inclusive of disbursements and HST).
[4] The position of the Grand Council is that H20 was added to the proceeding as an intervener with limited rights and as such, it is not a respondent entitled to costs within the meaning of Rule 38.08(3). It submits the court should not depart from the well-established general rule that interveners are not entitled to claim costs. Further, the settlement which resulted in the abandonment of the application resolved all issues arising in the judicial review; promoted the constitutional goal of reconciliation and respectful Crown-Aboriginal relations; and importantly, did not involve an admission of liability or wrong doing by either party. The Grand Council submits therefore that there was no “successful” litigant in the traditional sense. It also submits that granting an award of costs to H20 would undermine the core principles that underlie the modern approach to costs award. To impose a crippling award of costs against an aboriginal community of limited means in favour of a deep pocketed third party who has insinuated itself into the proceedings to protect commercial interests would only serve to deter important constitutional issues from being raised and would discourage settlement. It therefore submits that H20’s request for costs should be dismissed.
[5] Although the Grand Council acknowledges that the OPA, as a respondent party, is presumptively entitled to costs under the rules, it points out that it played only a secondary role in this proceeding. It is a statutory corporation without share capital that takes directives from the Minister of Energy (“the Minister”). It supported the position of the Minister in this proceeding. Notwithstanding the fact that the Minister agreed to settle this proceeding on a without costs basis, the OPA seeks its costs against the Grand Council. The Grand Council submits that the OPA should not receive any costs for the reasons that:
(a) it appears that there is an indemnity in favour of the OPA requiring H20 to cover the OPA’s legal fees and disbursements in this matter and, accordingly, there is no danger that Ontario rate payers will bear the costs associated with OPA’s participation in this proceeding;
(b) the award of costs sought by OPA is of a crippling nature against an Aboriginal community of limited means. It would only serve to deter other Aboriginal communities from raising such important constitutional issues and ultimately from settling their disputes with the Crown through negotiations. A costs award would defeat the Supreme Court’s statement that it is through negotiated settlements such as the one reached in this case, that the the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown is achieved.
Nature of the Application
[6] The underlying application alleged that the Ontario Crown failed to consult the Anishinaabe Nation prior to a ministerial directive being issued to the OPA; that the OPA, pursuant to that directive, entered into a power purchase agreement for five existing hydro-electric facilities operated by H20; and that the OPA pursuant to that agreement, later authorized a change of control in relation to the transaction. It was the position of the Grand Council on the application that the life of the facilities that had been extended would cause new impacts on the Anishinaabe Nation’s rights under Treaty 3. The dispute was therefore between the Crown, as represented by the Minister, and the Anishinaabe Nation as represented by the Grand Council. The OPA, having been the relevant Crown agency that received and carried out the impugned ministerial directive and later approved the relevant changing of control was named as a respondent
[7] The application challenged what is an important contract for H20. Herman J., who ordered the intervention, found that H20 had unique perspectives to provide to the Court on the duty to consult but placed limits on its participation. In essence, H20 was limited to raising only the issue of how it may be adversely impacted by the relief that the Grand Council was seeking.
Costs
[8] H2O sought to be added as a party. Instead it was granted standing as an intervener, one whose role and participation was limited. The usual rule is that an intervener neither receives nor pays costs.[^1] There is no reason to divert from that course here. It may be that H2O had a commercial interest in the outcome but this was not central to the dispute. The cost request made on behalf of H2O is excessive. Most importantly the duty to consult is the pragmatic manifestation of our collective recognition of the constitutional position of First Nations within Canada. The concerns raised are understood to be between nations. Settlement of such issues is to be celebrated, not unnecessarily impeded by the threat that the First Nations involved may have to pay costs. Those whose commercial interests could be engaged may have to absorb the costs of becoming involved. In this case H2O will have to.
[9] OPA mirrored the position of the Minister and played only a secondary role in the proceeding. It is significant that the Minister in its settlement of the application is not seeking costs and the same should hold for the OPA. It is also noteworthy that the Minister is in fact opposing the claim for costs by the OPA as against the Grand Council. In these circumstances, it is appropriate to deny the OPA’s claim for costs.
Lederman J.
Molloy J.
Lederer J.
Date:
[^1]: Perell and Morden, The Law of Civil Procedure, Second Edition LexisNexis, Canada Inc. 2014 at p. 363, para. 4.376 referring to Harper v. Harper, [1979] S.C.J. No. 92, 98 D.L.R. (3d) 600 (S.C.C.); Young v. Young, [1993] S.C.J. 112, [1993] 4 S.C.R. 3 (S.C.C); Toronto Police Assn. v. Toronto (Metropolitan) Services Board, [2000] O.J. No. 2236 (Ont. Div. Ct.); M. v. H., [1996] O.J. No. 2597, 137 D.L.R. (4th) 569 (Ont. Gen. Div.); Metropolitan Stores (MTS) Ltd. v. Manitoba food and Commercial Workers, Local 832, [1990] M.J. No. 590, 70 Man. R. (2d) 59 (Man. Q.B.); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2001] O.J. No. 1110 (Ont. S.C.J.)