Court File and Parties

CITATION: Ogichidaakwe (Grand Chief) Diane Kelly v. Ontario Minister of Energy, 2013 ONSC 6143

DIVISIONAL COURT FILE NO.: 411/11

DATE: 2013/10/01

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ogichidaakwe (Grand Chief) Diane Kelly on her own behalf, on behalf of all members of the Anishinaabe Nation in Treaty 3 and on behalf of Grand Council Treaty 3, Grand Council Treaty 3, Chief Lorraine Cobiness, Chief Janice Henderson, Chief Kimberly Sandy-Kasprick, and Chief Earl Klyne, on their own behalf and on behalf of Grand Council Treaty #3, Chiefs in Assembly, Applicants

AND:

Ontario Minister of Energy and Ontario Power Authority, Respondents

AND:

H20 Power Limited Partnership and Resolute FP Canada Inc., Interveners

BEFORE: Herman J.

COUNSEL: David Estrin, Scott A. Smith, Paul Seaman, for the Applicants

Rebecca Regenstreif, for the Ontario Minister of Energy

Alex Smith, for the Ontario Power Authority

Geoff R. Hall, Thomas Isaac, Brendan O. Brammall, for H20 Power Limited Partnership and Resolute FP Canada Inc.

COSTS ENDORSEMENT

[1] H20 Power Limited Partnership (“H20”) and Resolute FP Canada Inc. (“Resolute”) were granted leave to intervene, subject to terms. They now seek costs from the applicants (the “Grand Council”) who, in turn, seek costs against them.

[2] The respondents, the Ontario Minister of Energy and the Ontario Power Authority, do not seek costs and they submit that no costs should be granted against them.

[3] H20 and Resolute seek costs against the Grand Council on the basis that they were substantially successful. They assert that the Grand Council’s primary position was that they should not be granted leave to intervene at all. In the alternative, the Grand Council proposed very restrictive terms, primarily that the intervention should be limited to remedy and H20 and Resolute could not seek costs against the Grand Council, while the Grand Council could seek costs against them.

[4] The Grand Council seeks costs against H20 and Resolute on the basis that it was substantially successful. The primary position of H20 and Resolute was to be added as parties, with the full rights of parties. Instead, they were granted leave to intervene on restrictive terms. The Grand Council submits that costs would, in any case, have been incurred regardless of the position taken by the Grand Council, given that leave from the court was required and H20 and Resolute would have had to demonstrate to the court that they satisfied the criteria to be granted intervener status.

[5] In my opinion, success was divided. While each of the parties put forward the more extreme positions that full party status should be granted, on the one hand, or no leave to intervene should be granted, on the other, the real issue at the motion was the terms upon which leave should be granted. The terms that were granted were neither as limited as proposed by the Grand Council nor as broad as sought by H20 and Resolute.

[6] As a general rule, interveners are not awarded costs and costs are not awarded against them (Toronto Police Association v. Toronto (Metropolitan) Police Services Board, [2000] O.J. No. 2236 (S.C.J.) at para. 7; Good v. Toronto (City) Police Services Board, 2001 5153 (ON CA), [2001] O.J. No. 4724 (S.C.J.) at para. 10). I see no reason to depart from the general rule in the circumstances of this motion.

[7] In the result, there will be no order as to costs.

Herman J.

Date: October 1, 2013