Paul Joseph Evraire

The plaintiffs successfully defended an appeal from a certification order and sought substantial indemnity costs, arguing the defendant's conduct was part of a litigation strategy to obfuscate and delay.

The Divisional Court rejected this argument, finding no reprehensible conduct to justify substantial indemnity costs.

The court awarded the plaintiffs partial indemnity costs fixed at $35,000, finding the defendant's costs outline of approximately $34,400 to be a more reasonable reflection of the work required for two half-day hearings.

On a Rule 21.01 appeal, the court held that the moving party's representative treaty claim was not entirely non-justiciable.

After the respondent conceded on appeal that core claims, including a declaration about the meaning of the Treaty 3 schools provision, were justiciable, the court found it unfair to maintain an order striking the entire pleading without identifying the allegedly non-justiciable portions.

The order striking the statement of claim and dismissing the action was set aside without prejudice to a more targeted future challenge.

The court upheld the motion judge's conditions for proceeding representatively, requiring authorization from all 28 bands or joinder of non-authorizing bands, granted the requested plaintiff substitution amendment, and awarded appeal costs.

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.

The plaintiffs brought a motion to certify a class action against the Federal Crown regarding the 'Sixties Scoop', alleging breach of fiduciary duty and negligence for funding provincial child welfare services that placed on-reserve aboriginal children in non-aboriginal homes without protecting their cultural identity.

The Federal Crown brought a cross-motion to strike the pleadings under Rule 21.

The court dismissed the motion to strike, finding it was not plain and obvious that the claims would fail, given the evolving nature of aboriginal law.

The court granted the certification motion, revising the class definition and common issues to focus specifically on the impact of the 1965 Canada-Ontario Welfare Services Agreement.

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.

The plaintiffs, representing the beneficiaries of Treaty 3, brought a proposed representation action against the Crown alleging breaches of the treaty's education provisions and breach of fiduciary duty.

The plaintiffs moved for authorization to proceed as a representation action under Rule 12.08.

The Crown moved under Rule 21 to dismiss the action as non-justiciable and for failing to disclose a reasonable cause of action.

The court granted the Crown's motion and dismissed the plaintiffs' motions, finding that the breach of fiduciary duty claim was untenable, the necessary parties (the 28 Indian bands) were not before the court, and the breach of treaty claim as pleaded was a non-justiciable political dispute about education policy and funding.

The Attorney General of Canada appealed a motion judge's decision to conditionally certify a class action on behalf of aboriginal people placed in non-aboriginal foster or adoptive homes.

The motion judge had found that the statement of claim did not disclose a cause of action but conditionally certified claims in negligence and breach of fiduciary duty, effectively pre-approving an amended pleading.

The Divisional Court allowed the appeal, holding that the motion judge erred by predetermining the viability of the cause of action without conducting a full analysis and denying the defendant the opportunity to argue the certification criteria.

The statement of claim was struck with leave to amend, and the certification motion was ordered to be heard by a different judge.

The parties in a class action alleging regulatory negligence against Health Canada jointly moved for leave to have a special case determined by the Court of Appeal in the first instance, bypassing the Divisional Court.

The issue was the requirement for pleading proximity in regulatory negligence, given conflicting appellate jurisprudence.

The Court of Appeal granted the motion, finding that despite the motion judge having already addressed the issue, the rules could be liberally construed to permit the special case to avoid enormous delay and expense.