Court File and Parties

Date: 2001-09-05 Docket: C32170, C32188 and C32202

Court of Appeal for Ontario

Re: The Chippewas of Sarnia Band (Appellant) and Attorney General of Canada, Her Majesty the Queen in Right of Ontario, and Canadian National Railway Company, Dow Chemical Canada Inc., The Corporation of the City of Sarnia, Amoco Canada Resources Ltd., Amoco Canada Petroleum Company Ltd., Ontario Hydro, Union Gas Limited, Interprovincial Pipe Line Inc., The Bank of Montreal, The Toronto-Dominion Bank, and Canada Trustco Mortgage Company Individually and as class representatives (Respondents)

Before: Osborne A.C.J.O., Finlayson, Doherty, Charron and Sharpe JJ.A.

Counsel: Earl A. Cherniak, Q.C., Elizabeth K.P. Grace and H. Sandra Bang for the appellant Charlotte Bell, Q.C., Gary Penner and Scott Warwick for the Attorney General of Canada J. T. S. McCabe, Q.C. and E. Ria Tzimas for Her Majesty the Queen in Right of Ontario Kenneth R. Peel for Canadian National Railway Company M. Philip Tunley and Jane A. Langford for Dow Chemical Canada Inc. and Union Gas Limited Gerard T. Tillmann and Norman W. Feaver for The Corporation of the City of Sarnia, Bank of Montreal, The Toronto-Dominion Bank and Canada Trustco Mortgage Company Jeff G. Cowan for Amoco Canada Resources Ltd. and Amoco Canada Petroleum Company Ltd. Joseph Agostino for Ontario Hydro Networks Company Inc. Brian A. Crane, Q.C. for Interprovincial Pipe Line Inc. M. Celeste McKay and Alan Pratt for the Intervener Chief Lisa Eshkakogan Ozawanimke on behalf of the Algonquin Nation in Ontario Paul Williams for the Intervener Chief Richard K. Miskokomon on behalf of the Chippewas of the Thames et al.

Heard: June 19-29, 2000

Endorsement Re Costs

[1] Following the release of our reasons disposing of the appeals in this matter, we directed that the parties file written submissions with respect to costs. We have now received and reviewed those submissions and make the following orders with respect to the costs of these proceedings.

1. Canada

[2] Canada seeks an order for party and party costs both of the appeals and cross-appeals and of the summary judgment motions.

[3] The genesis of this litigation is the failure of Indian Department officials to obtain a surrender as required by established protocol in effect at the time. In our view, our costs award should reflect the fact that much of Canada’s case before the motions court judge and before this court was essentially an unsuccessful effort to vindicate actions of the Indian Department.

[4] We order no costs of the summary judgment motions as Canada based its entire position in the motions court on the basis that there had been a surrender. Contrary to the written submission of Canada, this went well beyond what was necessary to deal with the claims of the landowners and would have finally determined the central issue in all claims advanced by the Chippewas against Canada. Before the motions court judge, Canada did not argue the point that ultimately proved successful before us, namely, that the Chippewas were not entitled to a remedy for the return of the land. As Canada was successful on that point before us, but unsuccessful on the surrender issue, we order that the Chippewas pay 50% of Canada's cost of the appeals and cross-appeals on a party and party basis.

2. Ontario

[5] There was no costs order for or against Ontario on the summary judgment motions and no appeal is taken from that. The sole issue is whether Ontario is entitled to its costs on the appeals and cross-appeals. In view of the result and Ontario's position essentially supporting the position of Canada with regard to the surrender issue, we order that the Chippewas pay 50% of Ontario's costs on a party and party basis.

3. Class Representatives

[6] The class representatives of the landowners were entirely successful, both on the motions for summary judgment and before this court. The motions court judge held that this was not a case for solicitor client costs and therefore awarded the class representatives their costs on a party and party basis. No appeal is taken from this order however the class representatives seek their costs of the appeal on a solicitor and client basis. We are also of the view that the award of costs should be on a party and party basis but for different reasons. This matter proceeded essentially as a paper trial on consent of all parties and in the circumstances the usual costs sanctions under Rule 20.06 should not be imposed. We order party and party costs in favour of the class representatives, payable by the Chippewas.

[7] As we have set aside the order that Canada pay the Chippewas' costs, the order that the costs of the Class Representatives be paid from such costs falls away. We are not satisfied that there is any remaining basis upon which we could order Canada or Ontario to pay the costs of the Class Representatives should the Chippewas fail to do so.

[8] The class representatives submit that there should be an order allowing them to set off various amounts payable to the Chippewas under various agreements against any costs ordered in favour of the Chippewas. In our view, there is an insufficient record before this court as to the nature of the respective obligations between the parties for us to make such an order. If the class representatives wish to pursue that issue they will have to do so in some other proceeding.

[9] Each of the class representatives is entitled to its own set of costs.

4. Canadian National

[10] In our view, the costs award in favour of Canadian National should be on the same basis as that in favour of the other class representatives. We do not accept the motions court judge’s conclusion that Canadian National should be disentitled to costs on account of the agreement between Canadian National and the Government of Canada. We accept the submission that Canadian National was involved in these proceedings because it was a named defendant and as a result of the order of Adams J. appointing it as one of the class representatives. We would allow Canadian National’s appeal from the costs order of the motions court judge denying them costs, and order costs throughout in its favour on a party and party basis, payable by the Chippewas.

5. Chippewas

[11] While the Chippewas did succeed before us in upholding the motions court judge's finding that there had been no valid surrender, in all other respects, the effect of our judgment was to set aside the portions of the judgment that favoured the Chippewas. In view of the result, we do not accept the submission of the Chippewas that the costs order of the motions court judge in their favour following the summary judgment motions should stand, although as already explained, we would make no order as to costs of the summary judgment motions in Canada's favour.

[12] We note the Chippewas’ submission that they intend to assert a claim for any costs awarded against them as part of their damages claim advanced against Canada and Ontario. We express no opinion as to their entitlement to do so.

Other Issues

[13] All parties except the Chippewas asked that we fix the costs. The Chippewas submit that the costs should be assessed. We do not agree that it would be appropriate for a five-judge panel of this court to fix the costs. In view of the number of parties involved and the complexity of the proceedings, it is appropriate to order that the costs be assessed.

[14] The costs of those parties using in-house counsel are to be assessed on the same basis as the cost of all other parties.

Conclusion

[15] Accordingly, we make the following order as to costs:

1. The motions court judge's order with respect to the costs of the summary judgment motions is set aside.

2. The following costs are payable by the Chippewas:

a) 50% of Canada's costs of the appeals and cross-appeals;

b) 50% of Ontario's costs of the appeals and cross-appeals;

c) 100% of the class representatives’ (including Canadian National) costs of the summary judgment motions and of the appeals and cross-appeals;

d) each class representative to have its own set of costs; and

e) the costs of parties using in-house counsel are to be assessed on the same basis as the cost of all other parties.

3. All costs are to be assessed on a party and party basis.

“C. A. Osborne A.C.J.O.”

“G.D. Finlayson J.A.”

“D. H. Doherty J.A.”

“Louise Charron J.A.”

“Robert J. Sharpe J.A.”