Court of Appeal for Ontario

Date: 2025-03-17
Docket: COA-23-CV-0491 & COA-23-CV-0511
Before: Julie George, Steve Copeland, David Dawe

Style of Cause

COA-23-CV-0491
Between:
Chippewas of Saugeen First Nation
Plaintiff (Respondent)

and

The Town of South Bruce Peninsula*, His Majesty the King in Right of Ontario**, His Majesty the King in Right of Canada**, the Attorney General of Canada**, the Estate of Barbara Twining (by her Estate Executors, Brenda Joan Rogers and Gary Michael Twining), Alberta Lemon, David Dobson, Sauble Beach Development Corporation, the Estate of William Eldridge, the Estate of Charles Albert Richards, and the Attorney General of Ontario**
Defendants (Appellants/Respondents**)*

COA-23-CV-0511
And Between:
Chippewas of Saugeen First Nation
Plaintiff (Respondent)

and

The Town of South Bruce Peninsula***, His Majesty the King in Right of Ontario*, His Majesty the King in Right of Canada**, the Attorney General of Canada**, the Estate of Barbara Twining (by her Estate Executors, Brenda Joan Rogers and Gary Michael Twining), Alberta Lemon, David Dobson, Sauble Beach Development Corporation, the Estate of William Eldridge, the Estate of Charles Albert Richards, and the Attorney General of Ontario*
Defendants (Appellants/Respondents by way of cross-appeal*/Respondents**/Appellants by way of cross-appeal**/Respondents***)*

Appearances

• For the respondent (COA-23-CV-0491 & COA-23-CV-0511), Chippewas of Saugeen First Nation:
  Nuri Frame, Mark Gibson, and Alexander DeParde

• For the appellants (COA-23-CV-0491) and the respondents (COA-23-CV-0511), the Town of South Bruce Peninsula, the Estate of Barbara Twining (by her Estate Executors, Brenda Joan Rogers and Gary Michael Twining), and Alberta Lemon:
  Jonathan C. Lisus, Zain Naqi, John Carlo Mastrangelo, and Andrew Winton

• For the respondents (COA-23-CV-0491) and the appellants/respondents by way of cross-appeal (COA-23-CV-0511), His Majesty the King in Right of Ontario and the Attorney General of Ontario:
  Richard Ogden, Stephanie Figliomeni, and Mohamed M. Salama

• For the respondents (COA-23-CV-0491) and the respondents/appellants by way of cross-appeal (COA-23-CV-0511), His Majesty the King in Right of Canada and the Attorney General of Canada:
  Michael Beggs, Janet Brooks, Barry Ennis, and Madeline Torrie

• For the intervener (COA-23-CV-0491 & COA-23-CV-0511), the Ontario Landowners Association:
  Brandon Kain and Bryn Gray

Heard: May 27-30, 2024

On appeal from the judgment of Justice Susan Vella of the Superior Court of Justice, dated June 30, 2023, with reasons reported at 2023 ONSC 2056 and 2023 ONSC 3928, and from the costs order, dated May 21, 2024, with reasons reported at 2024 ONSC 2827.

Costs Endorsement

[1] On December 9, 2024 we released our reasons dismissing the appeals by the Attorney General of Ontario and His Majesty the King in Right of Ontario (“Ontario”), the Town of South Bruce Peninsula (the “Town”), and Alberta Lemon and the Estate of Barbara Twining (the “Families”). We also denied leave to the Town to appeal the costs order made by the trial judge. We allowed the cross-appeal by the Attorney General of Canada and His Majesty the King in Right of Canada (“Canada”).

[2] Canada and the respondent, Chippewas of Saugeen First Nation (“Saugeen”), were the successful parties on the appeal. Ontario, the Town, and the Families were the unsuccessful parties. On the application by the Town for leave to appeal the costs order, Canada was the successful party and the Town was the unsuccessful party. On Canada’s cross-appeal, Canada was the successful party and Ontario was the unsuccessful party.

[3] In our reasons for judgment, we invited the parties to file written submissions on costs if they were unable to agree.

[4] Ontario and the other parties have now settled the issue of Ontario’s costs of both the appeal and the cross-appeal. We must decide whether the Town and/or the Families should be ordered to pay costs to Saugeen and/or Canada and, if so, in what amount.

[5] Saugeen seeks its costs of the appeal on a partial indemnity basis in the amount of $176,294.43, payable by the Town and the Families. Canada seeks its partial indemnity costs of the appeal and the costs appeal in the amount of $110,120.00, but only payable by the Town.

[6] The Town and Families argue that the amounts sought are excessive. They contend that Saugeen and Canada should each receive no more than $100,000 in costs, and that no more than half of this amount – $50,000 to each, or $100,000 in total – should be payable by the Town and Families. They argue further that Canada should bear its own costs, and should also pay any costs to Saugeen that would otherwise be payable by the Town and Families, on the grounds that this litigation arose from the Crown’s breaches of the duties it owed Saugeen, and not from anything improper that was done by the Town or Families.

[7] As a general rule, the overall objective when awarding costs “is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances”: Boucher v. Public Accountants Council for the Province of Ontario, para 26.

[8] This was a complex appeal, in which the Town and the Families were advancing entirely distinct grounds from those raised by Ontario. The appeal was heard over four days, approximately half of which was devoted to the issues raised by the Town and the Families. The evidential record from the court below was voluminous, and the legal issues raised were complex, jurisprudentially significant to some extent, and very important to all of the parties.

[9] Viewed in this context, the amounts sought by Saugeen and Canada are reasonable. By way of comparison, in Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565; and 2023 ONCA 787, which involved a similarly complex appeal heard over seven days, this court awarded the successful appellant $297,158.42 in all-inclusive partial indemnity costs.

[10] We do not accept that the underlying cause of this litigation, the Imperial Crown’s wrongful demarcation of the boundaries of Saugeen Indian Reserve No. 29, justifies departing from the ordinary rule that an unsuccessful appellants should expect to pay costs to successful respondents. The Town and Families may not have caused the underlying litigation, but they chose to appeal the trial decision. Moreover, as the trial judge noted in her trial costs ruling, the Town’s cross-claim for indemnification by Canada of any costs it is ordered to pay Saugeen has been reserved for Phase II of the trial, which remains pending: see Chippewas of Saugeen First Nation v. the Town of South Bruce Peninsula et al., 2024 ONSC 2827, paras 69-70. We agree with her observation at para. 70 that “[t]hat is the appropriate time for asserting this claim.”

[11] We would accordingly order that the Town and the Families pay costs of the appeal to Saugeen fixed at $176,294.43 and that the Town pay costs of the appeal and the costs appeal to Canada fixed at $110,120.00, both figures all inclusive.

“J. George J.A.”
“J. Copeland J.A.”
“J. Dawe J.A.”