Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211209 DOCKET: C68393 & C68467

Fairburn A.C.J.O., Miller and Zarnett JJ.A.

BETWEEN

DOCKET: C68393 The Estate of William Albin Herold, deceased Applicant (Respondent)

and

Attorney General of Canada, Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation Respondents (Respondent / Appellants)

AND BETWEEN

DOCKET: C68467 The Estate of William Albin Herold, deceased Applicant (Respondent)

and

Attorney General of Canada, Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation Respondent (Appellant / Respondents)

Counsel: Robert Janes, Candice S. Metallic, and Aubrey Charette, for the appellants (C68393)/respondents (C68467) Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation Daniel E. Luxat, for the appellant (C68467)/respondent (C68393) Attorney General of Canada D. Jared Brown, for the respondent (C68393/C68467) Estate of William Albin Herold

Heard: March 2, 2021 by video conference

On appeal from the order of Justice Clyde Smith of the Superior Court of Justice, dated February 28, 2020, with reasons reported at 2020 ONSC 1202.

Costs Endorsement

[1] By reasons dated August 24, 2021, we allowed the appeals and set aside the orders of the application judge: Herold Estate v. Canada (Attorney General), 2021 ONCA 579, 461 D.L.R. (4th) 683.

[2] In our reasons, we awarded costs of the appeals to the appellants in the total sum of $43,000, divided equally between the appellant First Nations and the appellant Attorney General of Canada. We did not address the costs of the proceedings below.

[3] In correspondence dated December 3, 2021, counsel have advised that the parties had reached certain agreements relating to costs, reflected in a letter to the court dated March 11, 2021. That letter did not previously come to the panel’s attention.

[4] In accordance with the agreement reflected in the March 11, 2021 letter, we fix the costs below at $154,530.76. The letter states that the appellant First Nations seek those costs if successful on the appeal, and given their success, those costs are awarded to the First Nations. The appellant Attorney General of Canada does not seek costs in the court below.

[5] The March 11, 2021 letter also provides that the parties agree that $43,000 is the appropriate amount for costs of the appeal, but that no costs are sought on the appeal by the Attorney General of Canada. We interpret the letter to mean that the amount is appropriate for the successful party or parties on the appeal who are seeking costs. We therefore vary the costs award of the appeal so that $43,000 inclusive of disbursements and applicable taxes is awarded to the appellant First Nations, and no costs are awarded to the Attorney General of Canada.

“Fairburn A.C.J.O.”

“B.W. Miller J.A.”

“B. Zarnett J.A.”