Court File and Parties
CITATION: Ogichidaakwe v. Ontario (Energy), 2014 ONSC 6413
DIVISIONAL COURT FILE NO.: 411/11
DATE: 20141104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OGICHIDAAKWE (GRAND CHIEF) DIANE M. 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 –
H2O POWER LIMITED PARTNERSHIP and RESOLUTE FP CANADA INC.
Interveners
Counsel:
Scott A. Smith and Paul Seaman for the Applicants
Geoff R. Hall and Carole J. Piovesan for the Interveners
HEARD: In Writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] In a judicial review application that concerns Aboriginal rights and the Crown’s constitutional obligations to consult, the Interveners H2O Power Limited Partnership and Resolute FP Canada Inc. applied for a Kelly v. Canada Order.
[2] The Applicants: (1) Grand Council Treaty 3; (2) Chief Lorraine Cobiness; (3) Chief Janice Henderson, (4) Chief Kimberly Sandy-Kasprick; (5) Chief Earl Klyne; and (6) Grand Chief (Ogichidaakwe) Kelly on her own behalf, on behalf of the all members of the Anishinaabe Nation in Treaty 3, and on behalf of Grand Council Treaty 3, opposed the motion.
[3] I granted the motion. See Ogichidaakwe v. Ontario (Energy) 2014 ONSC 5492.
[4] I invited the parties to make submissions in writing, if they could not agree about the matter of costs, and I noted that my inclination was to order costs in the cause.
[5] The parties were unable to agree about costs, and the Interveners request that they receive costs in the cause fixed at $13,500. The Applicants submit that costs should simply be in the cause.
[6] The Interveners submit that an order with costs in their favour in the cause is justified because: (a) the Applicants claim the status of a government; and (b) they used hardball tactics on a procedural motion in which they were ultimately unsuccessful.
[7] I do not necessarily agree with the Interveners’ depiction of how the Applicants presented themselves, but I do not understand how the status of Applicants, be it as a government or some sort of civil society or a governing body, has anything to do with their exposure to costs or to the Interveners’ entitlement, if any, to costs. I shall, therefore, ignore this first submission as a reason for changing my inclination to order costs in the cause.
[8] The matter of hardball tactics in resisting the Interveners’ procedural motion is a different matter, and, if true, would be relevant to the court’s discretion in awarding costs.
[9] The Interveners provide as an example of the Applicants’ hardball tactics the circumstance that after the Intervenors brought their motion for a Kelly v. Canada Order, the Applicants challenged the Interveners standing to do so and threatened to seek costs on a substantial indemnity basis against the Interveners and personally against the Interveners’ counsel if the motion was not withdrawn.
[10] The Applicants, however, were unsuccessful on the standing issue, and by-and-large, they were unsuccessful in their other arguments on the motion. So we have here a largely unsuccessful party having threatened a punitive costs request.
[11] Speaking generally - and without reference to the immediate proceedings - there is a deplorable tendency by many lawyers to make rude, bullying, and silly requests for substantial indemnity costs awards in every notice of motion or factum. After a while these threats lose credibility and simply show that the bully does not understand the law associated with substantial indemnity costs awards.
[12] Speaking particularly with reference to the immediate proceedings, I suspect that the capable counsel for the Interveners did not take the threat of costs consequences seriously and certainly was not put off by it.
[13] I also do not take the threat seriously, and, in the circumstances of this case, the tone of the correspondence between the parties does not provide a reason to change my original inclination to order costs in the cause.
[14] The reason for ordering costs in the cause is that developing the appropriate procedure for Aboriginal rights claims is still a work in progress and it, therefore, seems appropriate and fair to order costs in the cause in these circumstances.
[15] Order accordingly.
Perell, J.
Released: November 04, 2014
CITATION: Ogichidaakwe v. Ontario (Energy), 2014 ONSC 6413
DIVISIONAL COURT FILE NO.: 411/11
DATE: 20141104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OGICHIDAAKWE (GRAND CHIEF) DIANE M. 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
REASONS FOR DECISION - COSTS
PERELL J.
Released: November 04, 2014