Court of Appeal for Ontario

Citation: Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 787 Date: 2023-11-24 Docket: C69830 & C69831

Judges: Lauwers, Pardu and George JJ.A.

Docket: C69830

BETWEEN

Chippewas of Nawash Unceded First Nation and Saugeen First Nation Plaintiffs (Appellants)

and

The Attorney General of Canada and His Majesty the King in Right of Ontario Defendants (Respondents)

Docket: C69831

AND BETWEEN

Saugeen First Nation and Chippewas of Nawash Unceded First Nation Plaintiffs (Appellants/Respondents by way of cross-appeal)

and

The Attorney General of Canada*, His Majesty the King in Right of Ontario**, the Corporation of the County Grey, the Corporation of the County of Bruce, the Corporation of the Municipality of Northern Bruce Peninsula**, the Corporation of the Town of South Bruce Peninsula**, the Corporation of the Town of Saugeen Shores, and the Corporation of the Township of Georgian Bluffs** Defendants (Respondent*/Respondents/Appellants by way of cross-appeal**)

Counsel:

Roger Townshend, Cathy Guirguis, Renée Pelletier, Jaclyn McNamara, Krista Nerland and Benjamin Brookwell, for the appellants (C69830) and the appellants/respondents by way of cross-appeal (C69831), Chippewas of Nawash Unceded First Nation and Saugeen First Nation

Michael Beggs, Michael McCulloch, Barry Ennis, Claudia Tsang and Sharath Voleti, for the respondent (C69830 & C69831), the Attorney General of Canada

David J. Feliciant, Richard Ogden, Julia McRandall and Jennifer Lepan, for the respondent (C69830) and the respondent/appellant by way of cross-appeal (C69831), His Majesty the King in Right of Ontario

M. Jill Dougherty and Debra McKenna, for the respondent/appellant by way of cross-appeal (C69831), the Corporation of the Township of Georgian Bluffs

Gregory F. Stewart, for the respondents/appellants by way of cross-appeal (C69831), the Corporation of the Municipality of Northern Bruce Peninsula and the Corporation of the Town of South Bruce Peninsula [1]

Michael Jackson, Terri-Lynn Williams-Davidson, Elizabeth Bulbrook and Nigel Baker-Grenier for the intervener the Council of the Haida Nation (C69830)

Ruben Tillman and Rachel Ariss, for the intervener Heiltsuk Nation (C69830)

Kelsey Rose, for the intervener Songhees Nation and Esquimalt Nation (C69830)

Thomas Slade and Cory Giordano, for the intervener Walpole Island First Nation (C69830)

Heard: May 8-11 and 15-17, 2023

On appeal from the judgments of Justice Wendy M. Matheson of the Superior Court of Justice, dated July 29, 2021 and October 28, 2021, with reasons reported at 2021 ONSC 4181.

Costs Endorsement

[1] This costs endorsement is further to our reasons dated August 30, 2023. The appellants, the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation (collectively, “SON”), sued Canada and Ontario for a declaration of Aboriginal title to submerged lands in a large section of Lake Huron and Georgian Bay (the “Title claim”). SON also sued Canada, Ontario, and several municipalities for breaches of fiduciary duty relating to Treaty 45 ½ and Treaty 72 (the “Treaty claim”).

[2] This court allowed SON’s Title claim appeal only to the extent of remitting the matter back to the trial judge to determine whether Aboriginal title can be established to a more limited portion of the claim area. This court dismissed SON’s Treaty claim appeal.

[3] SON is not seeking costs from any party for the Treaty claim appeal. Further, SON has settled its costs for the Title claim appeal with Canada. Accordingly, the sole issue before this court is whether SON is entitled to costs from Ontario for the Title claim appeal and, if so, the appropriate quantum.

[4] SON submits that they were they successful party. SON seeks an order that Ontario pay half of their partial indemnity costs in the amount of $269,693.63, and half of their disbursements in the amount of $27,464.79. SON concedes that while they were not successful on every ground of appeal, the relief granted by this court was precisely what they sought.

[5] Ontario submits that success on the Title claim appeal was divided and that each party should therefore bear its own costs. Ontario further submits that SON was “less substantially successful” than Ontario because the trial judge declined to grant the primary relief sought by SON – namely, a new trial on Aboriginal title to the entire claim area.

[6] We accept SON’s position. A costs award should follow the overall outcome of an appeal rather than the proportion of issues on which a party succeeded or failed: see e.g. Le Treport Wedding & Convention Centre Ltd. v. Co-operators General Insurance Company, 2020 ONCA 556, at paras. 8-9. The overall success on the Title claim appeal lies with SON. SON obtained the relief they sought –remittal of the matter back to the trial judge “for a judgment, after further evidence and submissions, on the question of Aboriginal title to a portion of the Aboriginal title area claimed” (emphasis added). This is not a case of divided success, as Ontario’s position on appeal was that this court should dismiss SON’s claim entirely.

[7] The quantum of costs sought by SON is reasonable, particularly in view of the complexity of the appeal and its public importance: see e.g. William v. British Columbia, 2013 BCCA 1.

[8] Accordingly, Ontario shall pay costs to SON in the amount of $297,158.42, inclusive of disbursements and all applicable taxes.

“P. Lauwers J.A.”

“G. Pardu J.A.”

“J. George J.A.”

[1] Gregory Stewart appeared but made no written or oral submissions on behalf of the Corporation of the Municipality of Northern Bruce Peninsula and the Corporation of the Town of South Bruce Peninsula. These two municipalities adopted the submissions of the Corporation of the Township of Georgian Bluffs.