Paul Joseph Evraire

Following a re-hearing of a class action certification motion relating to the ‘Sixties Scoop’, the court addressed costs after granting certification and dismissing the federal Crown’s motion to strike.

The plaintiffs sought substantial indemnity costs, but the court held that such costs require reprehensible or outrageous conduct and were not justified.

Applying a partial indemnity scale and reviewing historical certification-motion cost awards, the court found the plaintiffs’ request modest given the complexity of the litigation and the work spanning both the original and rehearing motions.

The court fixed costs at an all-inclusive amount reflecting fairness to the losing party and proportionality to comparable certification proceedings.

Following the dismissal of an action and related motions concerning Treaty 3 beneficiaries and Aboriginal rights litigation, the successful government defendant sought costs of approximately $31,000 on a partial indemnity basis.

The plaintiffs argued that the matter constituted public interest litigation raising novel issues regarding civil procedure for Aboriginal rights claims, and that no costs should be awarded.

The court held that the litigation raised significant public interest considerations and novel legal questions concerning the procedural framework for litigating Aboriginal rights.

Exercising its discretion on costs, the court declined to apply the traditional rule that costs follow the event in order to avoid discouraging public interest litigation.

No order as to costs was made.