Court File and Parties

CITATION: Dilico Anishinabek Family Care v. Her Majesty the Queen (Ontario), 2020 ONSC 2090

DIVISIONAL COURT FILE NO.: DC-19-013-JR DC-19-014-JR

DATE: 20200406

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: DILICO ANISHINABEK FAMILY CARE, Applicant (Moving Party) AND: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, TIKINAGAN CHILD and FAMILY SERVICES and CHILDREN'S AID SOCIETY OF THUNDER BAY, Respondent (Responding Parties) AND: NISHNAWBE ASKI NATION, Intervenor

AND: FORT WILLIAM FIRST NATION, Applicant (Moving Party) and: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, TIKINAGAN CHILD AND FAMILY SERVICES and CHILDREN'S AID SOCIETY OF THUNDER BAY, Respondents (Responding Parties) and: NISHNAWBE ASKI NATION, Intervenor

BEFORE: Penny J.

COUNSEL: Katherine Hensel and Kaelan Unrau for the Applicant Dilico Anishinabek Family Care Scott C. Hutchison and David Postel for the Applicant Fort William First Nation Lisa LaHorey and Kisha Chatterjee for the Respondent Her Majesty the Queen in Right of Ontario Susan M. Vella and Catherine Beamish for the Respondent Tikinagan Child and Family Services Natalie Posala for the Intervenor Nishnawbe Aski Nation Nicola-Antonio Melchiorre for the Respondent Children’s Aid Society of Thunder Bay

HEARD at Thunder Bay: January 29, 2020

COSTS ENDORSEMENT

[1] This matter involved a motion for a stay of the Directive and Designations of the Minister of Children, Community and Social Services dated November 28, 2019 pending the hearing and resolution of applications for judicial review seeking to set aside the Directive and Designations on various constitutional and administrative law grounds. The stay motions of Fort William and Dilico were opposed by Tikinagan, the Ontario government and NAN. The motions were dismissed on January 30, 2020 with reasons to follow. Those reasons were released on February 11, 2020 and are reported at 2020 ONSC 892.

[2] Costs were reserved pending submissions. Brief written submissions have been made. The Tikinagan organization seeks partial indemnity costs of about $108,000. NAN, an intervenor, seeks costs of about $31,000. Fort William and Dilico submit that the sum claimed by Tikinagan is excessive and recommend an award to Tikinagan of $20,000 payable by each of them, for a total cost award of $40,000.

[3] As an intervenor, NAN is not prima facie entitled to costs. The Court has discretion to award costs to an intervenor. However, in the context of a motion for a stay, where the opposition to the stay was already mounted by Tikinagan and the provincial government, I do not consider this an appropriate situation in which to award intervenor costs. In reaching this decision, I am in no way being critical of or lessening the NAN contribution, nor am I commenting in any way on the treatment of costs on the main application. The NAN request for costs on the stay motion is denied.

[4] I agree with Fort William and Dilico that the sum claimed by Tikinagan is excessive in the circumstances. First, this is a public interest case. The issues, although there are monetary implications, are primarily social, cultural and political in nature and are heavily weighted toward policy and broad, constitutional and quasi-constitutional legal questions. The participants are largely reliant on public funds.

[5] Second, although this was a motion, the arguments were strongly oriented toward the merits. The evidence used on these motions will also be used on the applications. Much of the legal research will be used as well. I do not agree with counsel for Tikinagan that these were “stand-alone” motions. Tikinagan chose to spend an enormous amount of its time and energy on the merits – in other words, whether there was a serious issue to be tried. Tikinagan, arguing there was no serious issue, was unsuccessful on the point. This is not a criticism, but it supports the notion that a great deal of the work done on the motions will be used and useful in the argument of the main applications.

[6] Finally, stepping back and looking at the matter as a whole, and reflecting on the essential question of proportionality, I am unable to find that $108,000 is a fair, balanced and proportional amount. Tikinagan was not alone defending these motions. It was supported in no small measure by the provincial government and NAN. Counsel for Tikinagan docketed almost 300 hours to this matter – a staggering amount for a half day motion (which only emphasizes the point that much of the work is directly relevant to the main applications).

[7] In all of the circumstances, I award costs of $25,000 each payable by Fort William and Dilico, for a total cost award to Tikinagan of $50,000.

Penny J.

Date: April 6, 2020