Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 408

CITATION: Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 408

DATE: 20100604

DOCKET: C49485

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Blair and Juriansz JJ.A.

BETWEEN

The Chippewas of Mnjikaning First Nation

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario, as represented by the Minister Responsible for Native Affairs, the Minister of Consumer and Commercial Relations, the Chair of the Management Board of Cabinet, and the Attorney General of Ontario, and the Ontario Lottery and Gaming Corporation, the Chiefs of Ontario, and Ontario First Nations Limited Partnership

Defendants (Respondents)

M. Philip Tunley, Gavin MacKenzie and Brendan Van Niejenhuis, for the appellant

Sheila R. Block, David Outerbridge and Jana Stettner, for the respondents, the Chiefs of Ontario and Ontario First Nations Limited Partnership

Dennis Brown, Q.C., Malliha Wilson, Edmund Huang and William MacLarkey, for the respondent, Her Majesty the Queen in Right of Ontario

COSTS ENDORSEMENT

[1] On January 22, 2010, the Court released its decision dismissing MFN’s appeal from the judgment of Gans J. dated September 15, 2008. In his judgment, Gans J. dismissed MFN’s claim to be entitled to 35% of the net profits of Casino Rama, in perpetuity, as well as to a portion of the gross revenues representing its share of operating compensation.

[2] The parties have now filed their written submissions respecting the costs of the appeal. We have reviewed those submissions and this is our decision in that regard.

[3] On behalf of the successful respondents, the Chiefs of Ontario and Ontario First Nations Limited Partnership, counsel seek costs on a heightened scale in light of what they refer to as the unusual features of the case and its exceptional complexity and the volume of the trial record. They ask for full indemnity costs in the amount of $534,115.13 ($490,189.35 for fees and $43,925.78 for disbursements) or alternatively substantial indemnity costs in the amount of $390,343.57 including the foregoing disbursements. In the further alternative, their claim is for $274,973.56 including disbursements on a partial indemnity scale.

[4] The successful respondent, Ontario, claims costs of $118,828.93 (fees of $116,778.50 and disbursements of $2,050.42) on a partial indemnity basis.

[5] MFN and OFNLP base their arguments for costs on a heightened scale on what they assert were (a) MFN’s inappropriate conduct respecting the appeal, (b) its failure to accept an equitable offer to settle at trial that would have benefitted all First Nations, and (c) its reasonable expectation to pay higher costs if it lost on appeal. The “inappropriate conduct” submissions are founded on (i) the conclusion of both Gans J. and this Court that MFN did not have a subjective belief that it had the contract alleged (i.e., it advanced a case it didn’t believe in itself, say the respondents), (ii) MFN’s “scorched earth tactics” in unsuccessfully attacking more than 100 of the trial judge’s findings of fact, and (iii) MFN’s shifting theory of the case that the respondents had to meet.

[6] We are not persuaded this is a case for costs of the appeal to be awarded on a higher scale than partial indemnity.

[7] First, we do not think that MFN’s failure to accept an offer to settle that expired during trial is particularly relevant to the appeal. No offer to settle prior to the appeal has been brought to our attention. Secondly, MFN’s counsel accept that MFN is obliged to pay significant costs on the appeal, but they submit that those costs should be on a partial indemnity basis and fixed in an amount considerably less than that claimed by the respondents (they have in mind an award of $80,000.00 inclusive of disbursements).

[8] The core of the argument for a heightened scale of costs revolves around the very significant amounts at stake, the length and complexity of the matter (and the aggravation of that factor by MFN’s detailed and ultimately unfounded attack on the whole of the trial judge’s decision), and MFN’s shifting theories of liability throughout. While we accept that counsel for the respondents were compelled to respond in great detail to MFN’s approach to the appeal – with the attendant expenditure of time and legal expertise that response entailed – we do not think that MFN’s approach constituted the type of “reprehensible, scandalous or outrageous conduct on the part of one of the parties” called for to warrant a full or substantial indemnity award of costs: Young v. Young (1993), 1993 CanLII 34 (SCC), 108 D.L.R. (4th) 193 (S.C.C.), at p. 283. See also, Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.).

[9] That said, we do accept that the factors referred to above justify a robust award based on a partial indemnity basis. The appellants point out that some of the hourly rates claimed with respect to counsel for the Chiefs and OFNLP with less than 10 years experience exceed those suggested by the Notice to the Profession issued on behalf of the Rules Committee. They also submit that a disbursement in excess of $30,000 for consulting fees and other disbursements associated with maintaining the electronic record for the appeal is excessive. We are prepared to make some allowances based upon those submissions.

[10] Having regard to all the circumstances, we fix the costs of the appeal in favour of the Chiefs of Ontario and OFNLP in the amount of $250,000.00 inclusive of disbursements and GST.

[11] Although Ontario was a defendant in the case, it made no claim to any of the proceeds of the casino and the lis was primarily between MFN and all of the other Ontario First Nations. Ontario’s role on appeal was therefore limited and its submissions more or less mirrored those of the Chiefs and OFNLP. We do not accept MFN’s submission that the Crown should not be entitled to any costs of the appeal, however. Ontario was required to prepare for and to defend its position, nonetheless. As with the Chiefs and OFNLP, we have no doubt that preparation was extensive. We therefore fix costs in favour of Ontario in the amount of $75,000.00 all inclusive.

“D. O’Connor A.C.J.O.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”