DIVISIONAL COURT FILE NO. 45/12; COURT FILE NO.: 95-CU-93574

DATE: 2012/05/03

SUPERIOR COURT OF JUSTICE - ONTARIO

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, Plaintiffs

AND:

Her Majesty the Queen in right of Ontario and The Attorney General of Canada, Defendants

BEFORE: H. Sachs J.

COUNSEL:
Gary Penner and Michael Beggs, for the Defendant, The Attorney General of Canada, the Moving Party

Michael E. Burke and Vanessa Glasser, for the Defendant, Her Majesty the Queen in right of Ontario, Respondent Party

Michael Bailey Q. C., and R. David House , for the Plaintiffs, Respondent Party

HEARD: May 2, 2012

ENDORSEMENT

[ 1 ] The Attorney-General of Canada ("Canada") seeks leave to appeal the order of Stewart J. made December 5, 2011 granting the Plaintiffs' motion for advance costs in any event of the cause. Canada seeks leave to appeal all aspects of the order, including how the costs were apportioned between them and the other Defendant ("Ontario"). Ontario took no position with regard to Canada's allegation that Stewart J. had erred in determining that the Plaintiffs had satisfied the test for advance costs, but opposed the motion to the extent that Canada is seeking to appeal how those costs were apportioned.

Background

[ 2 ] Pursuant to Treaty 9, the Plaintiffs have brought an action claiming a treaty land entitlement to a reserve, among other relief. Both Canada and Ontario have conceded that the Plaintiffs are entitled to a reserve. What is at issue is how large that reserve should be.

[ 3 ] Canada and Ontario argue that the Plaintiffs are entitled to have the size of the reserve calculated based on the population of the band in 1905, the time of the treaty. The Plaintiffs contend that they are entitled to a larger reserve based on their current population.

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[ 4 ] The parties agreed that this issue should be dealt with first in the litigation and pursuant to a consent order the issue was severed. The Plaintiffs brought a motion for advance costs for the funding of the trial of the threshold issue only. The motion was argued for two days before Stewart J. who ordered advance costs in any event of the cause. She further ordered that those costs should be initially shared equally between Ontario and Canada, but provided that that aspect of her decision could be revisited by the trial judge hearing the threshold issue or at a later stage of the proceedings.

[ 5 ] Canada argues that there is good reason to doubt the correctness of Stewart J. 's decision. According to them she failed to give effect to the principles governing an award of advance costs as those principles have been laid out by the Supreme Court of Canada. In particular, she failed to appreciate the exceptional nature of these orders. Because she failed to appreciate the stringent requirements of the test, she was unable to properly apply it. Further, her failure to make a final decision as to how the costs should be apportioned as between Canada and Ontario constituted a failure to exercise the discretion she was supposed to exercise, especially since the order was for costs in any event of the cause.

[ 6 ] Canada also submits that the motion judge's failure to appreciate and apply the test for advance costs is of significant importance to the public generally, and is of particular importance to First Nations/Crown litigation.

Analysis

[ 7 ] I do not find that there is any reason to doubt the correctness of Stewart J.' s decision. In paragraph 4 of her decision she cites the correct test and in paragraph 9 she makes it clear that she appreciates the "extraordinary" nature of the relief sought.

[ 8 ] Canada asserts that the motion judge erred in law when she found that the Plaintiffs had met the three branches of the test. In particular they assert that the motion judge erred in law when she found that the Plaintiffs had demonstrated that they had a meritorious case; that they were impecunious and that the litigation raised issues of public importance and transcended their individual interests.

[ 9 ] The motion judge, after extensive argument, applied each branch of the correct test to the facts before her and found that each branch of the test had been met. In doing so she made no error of law and no palpable or overriding error of fact. She then went on to consider whether this was an appropriate case in which to exercise her discretion and order the costs requested. In doing so she made no error in principle.

[ 10 ] With respect to the motion judge's decision about how the costs should be shared as between Ontario and Canada, this decision was a very fair and reasonable one in the circumstances. Both Ontario and Canada have a real stake in the determination of the threshold issue. What happens in that trial could affect decisions as to the extent of the liability of each of the defendants. It is impossible at this early stage of the proceedings to make any determinations as to liability as between the two defendants. Therefore, it is fair to make both parties share the costs, but to provide for readjustment once liability determinations can be made. To the extent that Canada submitted that because of the fact that the order is an order for costs in any event of

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the cause, the trial judge will have no discretion to readjust, this is not an issue for an appeal to the Divisional Court. The intent of the motion judge is clear. If Canada had a concern about whether that intent could be carried out because of the wording of her decision, this was a matter that they should have addressed before the motion judge.

[ 11 ] Leave to appeal costs decisions should rarely be granted. In this case, the law about advance costs is well settled and the issues raised only concern how the motion judge applied that law to the facts before her. The issue is a fact driven one that does not raise a matter of public importance or a matter relevant to the development of the law and the administration of justice.

Conclusion

[ 12 ] For these reasons, the motion for leave to appeal is dismissed. Failing agreement the parties may address me in writing on the question of costs. The Plaintiffs and Ontario (if they are seeking costs) shall deliver their submissions within 10 days of the release of this endorsement; Canada shall have 10 days to respond and any reply submissions shall be made within 5 days after receipt of that response.

Date: May 3, 2012