Court of Appeal for Ontario

Date: 2018-08-23 Docket: C63804

Judges: Hoy A.C.J.O., Juriansz and Miller JJ.A.

Between

Plaintiffs: Larry Philip Fontaine, et al.

and

Defendants/Respondents: The Attorney General of Canada, et al.

In the Matter of the Request for Directions by IAP Claimant H-15019 Pertaining to St. Anne's Indian Residential School

Requestor/Appellant

In the Matter of the Request for Directions by Edmund Metatawabin and by IAP Claimant K-10106 Pertaining to St. Anne's Indian Residential School

Requestors/Appellants

Proceedings under the [Class Proceedings Act, 1992, S.O. 1992, c.6](https://www.ontario.ca/laws/statute/92c06)

Counsel

For the appellants Claimant H15019, Claimant K-10106 and Edmund Metatawabin: Margaret L. Waddell and Fay K. Brunning

For the respondent Attorney General of Canada: Catherine A. Coughlan and Brent Thompson

For the intervenor: Peter C. Wardle

For the Independent Counsel: Diane Soroka, David Schulze and Maryse Décarie-Daigneault

Heard: March 13, 2018

On appeal from: The judgment of Justice Paul M. Perell of the Superior Court of Justice, dated April 24, 2017.

Costs Endorsement

[1] We have received and reviewed the submissions of the parties and Independent Counsel regarding the costs of the appeal.

[2] Canada, which was successful on the appeal, does not seek costs against the appellants. Further, it has dropped its prior request that appellants' counsel be ordered to pay costs personally.

[3] Although unsuccessful on the appeal, the appellants seek costs against Canada on a partial indemnity scale. The appellants argue that costs are warranted given what they characterize as the unique circumstances of, and public interest underlying, the case.

[4] Independent Counsel supported the appellants' position on appeal. They submit that they should also be entitled to costs. They argue that they provided the court with helpful background information on the Indian Residential Schools Settlement Agreement (2006) and made different submissions than the appellants.

[5] Canada opposes the award of costs to the appellants and Independent Counsel. They submit that costs are not appropriate in this case because the issues on appeal were predominantly procedural, the issues were largely settled in earlier litigation in which several of the litigants were involved, and the conduct of the appellants' counsel is incongruous with a costs award.

[6] This court upheld the order of the administrative judge. He dismissed the appellants' Requests for Directions without costs. We see no reason why a different costs disposition should prevail on appeal. The nature of the issues raised on this appeal do not warrant a costs award in favour of the appellants or Independent Counsel.

[7] Accordingly, there shall be no costs of the appeal.

"Alexandra Hoy A.C.J.O."

"R.G. Juriansz J.A."

"B.W. Miller J.A."