ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No. : 00-CV-192059CP Date:20120611

B E T W E E N:

LARRY PHILIP FONTAINE et al

Susan Vella for the Moving Parties, Windigo First Nations and Nishnawbe Aski Nation

Plaintiffs

• and -

THE ATTORNEY GENERAL OF CANADA et al.

Catherine Coughlan and Teresa Crotty-Wong for the Attorney General of Canada

Defendants

Motion heard in writing

Proceeding under the Class Proceedings Act, 1992

Motion for costs pursuant to Article 12 of the

Residential School Settlement Agreement

Reasons for Decision

Winkler C.J.O.:

Overview

[ 1 ] In March 2007, orders were issued by nine provincial and territorial superior courts approving a national settlement (the “Settlement Agreement”) with respect to Indian Residential Schools throughout Canada. The Settlement Agreement contains a Schedule “E” which included over 130 eligible schools and institutions for the purposes of a judgment distribution scheme. Schedule “F” allows for the addition of further schools and institutions which satisfy the criteria of Article 12 of the Settlement Agreement.

[ 2 ] On June 2, 2009 the Moving Parties, Windigo First Nations Council and Nishnawbe Aski Nation brought a successful application pursuant to Section 12.01 (5) of the Settlement Agreement for the addition of Stirland Lake High School/Wahbon Bay Academy and Cristal Lake High School to Schedule “F”.

[ 3 ] The Moving Parties now seek costs on a full indemnity basis for a total of $246,955.87, or in the alternative, on a substantial indemnity basis for a total of $224,337.64. The Moving Parties advance numerous grounds in support of this motion. First, they argue that they acted in a representative capacity and as such, given the nature of the remedy, they cannot collect a fee from or be reimbursed for the costs they have incurred by those they represented. Secondly, the Moving Parties are not themselves eligible for any compensation as a result of the successful application. Finally, they emphasize the significant success they have achieved on behalf of the approximately 600 former students of the Institutions who will now be eligible to apply for compensation in amounts which could total between $3.5 million and $7.8 million. For these reasons, they submit that it is appropriate that Canada fully indemnify them for their legal costs and disbursements.

[ 4 ] Canada opposes the request for costs on either a full or substantial indemnity basis. Canada also submits that the costs sought are excessive. Canada submits that the Court should be guided by reference to national standards for costs awards, as the Settlement Agreement is a national settlement agreement approved by the Courts of nine jurisdictions.

Preliminary Issues

[ 5 ] Canada’s submits that Section 12.01(6) provides the basis upon which the costs of successful Article 12 applications should be determined. It reads as follows:

Where Canada adds an institution to Schedule “F” under Section 12.01(4), Canada may provide the Requestor with reasonable legal costs and disbursements.

[ 6 ] I accept the submission of Canada that the Moving Parties are entitled to their “reasonable legal costs”.

[ 7 ] In my view, the term “reasonable legal costs” is not synonymous with the full, substantial or partial indemnity regimes used to fix costs in court proceedings. In other words, it does not reference a costs regime under the civil rules of court of any province. It does however mean that a party will be reimbursed in full for its legal costs, subject to one qualification: those costs must have been reasonably necessary.

Application of the ‘Reasonableness’ Standard

[ 8 ] I have reviewed the accounts of the Moving Parties. I accept those accounts as reasonable, with the following exceptions.

[ 9 ] As noted in Canada’s submissions, substantial time was required to prepare and test the evidence of Richard Morris, Rebecca Maki, James Cutfeet, Jeanette Beardy and Paul Johnuph. I agree with Canada’s submissions that the evidence offered by these affiants provided little assistance in determining the outcome of the motion.

[9] I also agree with Canada’s submissions to the effect that some items included in the Moving Parties’ dockets, such as conducting radio interviews and copying binders should not form part of a claim for “reasonable legal costs.”

[ 10 ] Finally, I note that a substantial portion of legal work underpinning the Moving Parties’ costs claim could have been performed by junior counsel, but was not. Counsel for the Moving Parties, a senior litigator with over twenty years of experience, performed the vast majority of work relating to the preparation of written materials. It would not be reasonable to require Canada to pay costs at senior counsel rates when junior counsel could have performed portions of the tasks in question.

Conclusion

[12] Accordingly, I fix the reasonable legal costs of the Moving Parties in the amount of $190,495.59 2 and disbursements in the amount of $22,843.41, plus all applicable taxes.

Released : June 11, 2012

Warren K. Winkler,

Chief Justice of Ontario