Fletcher v. Ontario (Attorney General) et al., 2012 ONSC 1841

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 95-CU-93574
DATE: 20120320

RE: CHIEF JOHN FLETCHER, JACQUELINE FLETCHER and ROY GIDEON on their own behalf and on behalf of all members of the MISSANABIE CREE FIRST NATION

AND:

HER MAJESTY the QUEEN in Right of the PROVINCE OF ONTARIO and THE ATTORNEY-GENERAL OF CANADA

BEFORE: STEWART J.

COUNSEL:
Michael Bailey and R. David House , for the Plaintiffs

Gary Penner and Michael Beggs , for the Defendant the Attorney-General of Canada

E. Ria Tzimas and Michael E. Burke , for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: In Writing

COSTS ENDORSEMENT

1In my decision of December 5, 2011 I invited counsel for the Plaintiffs and the Defendant, the Attorney-General of Canada (“Canada”) to provide written submissions on costs if that subject could not be agreed upon by them. I have now received and considered those submissions.

2The Defendant, Her Majesty the Queen in Right of the Province of Ontario (“Ontario”) consented to the relief sought on this motion by the Plaintiffs. In accordance with their agreement, the Plaintiffs do not seek costs from Ontario.

3It is agreed by the remaining parties that the successful Plaintiffs should recover costs of the motion, and that such costs should be on a partial indemnity basis. The Plaintiffs seek a total of approximately $174,000.00 (including disbursements of $23,814.42) as costs for this motion. Canada argues that the fair and reasonable amount for the Plaintiffs to recover by way of costs for this motion is $75,000.00, inclusive of all disbursements and applicable taxes.

4Although the actual argument on the motion did not exceed two days, there was a very significant amount of documentary and sworn evidence adduced, in large part by the Plaintiffs. This fairly massive amount of evidence was required to be assembled (and cross-examined upon) due to the nature of the test that the Plaintiffs were required to meet in order to succeed on the motion. Although the motion itself and the test imposed are not supposed to require a preview “trial”, the fact is that the obligation upon the Plaintiffs to demonstrate a meritorious case made it necessary for a very considerable amount of work to be done by Plaintiffs’ counsel before any trial of the threshold issue can begin.

5On the other hand, I anticipate that much of the evidence (and the testing of it on cross-examination) will be of benefit to all parties as and when the trial of the threshold issue proceeds. Ironically, because this work has been done and presumably now need not be duplicated, the impact of the relief granted on the motion will be potentially softened as against both Defendants.

6In the meantime, it is clear the subject matter of the motion and its outcome were of vital importance to the parties. Volumes of legal authorities were submitted by the parties, as well as extensive and detailed facta addressing both the facts and the law as they relate to the issues raised.

7When these and all of the other factors influencing an award of costs are considered, I am of the opinion that a fair, just and reasonable amount to award to the Plaintiffs as costs of this motion is the sum of $125,000.00, inclusive of disbursements and applicable taxes.

8This award of costs shall likewise be subject to any possible re-adjustment as between Canada and Ontario by the trial judge, as contemplated in paragraph 49 of my December 5, 2011 endorsement.