ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-440069
DATE: April 16 , 2013
BETWEEN:
GRAND CHIEF DIANE KELLY, ON HER OWN BEHALF AND ON BEHALF OF ALL BENEFICIARIES OF TREATY 3; CHIEF ERIC FISHER, WABASEEMOONG INDEPENDENT NATIONS; CHIEF KIMBERLY SANDY-KASPRICK, NORTHWEST ANGLE #33 FIRST NATION; CHIEF SIMON FOBISTER, GRASSY NARROWS FIRST NATION; CHIEF PAMELA PITCHENESE, EAGLE LAKE FIRST NATION; CHIEF CHARLES MCPHERSON, COUCHICHING FIRST NATION
Plaintiffs
– and –
THE ATTORNEY GENERAL OF CANADA
Defendant
Robert J.M. Janes for the Plaintiffs
Paul Evraire, Q.C for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] There were three motions before the Court that were argued together. First, the Plaintiffs sought an amendment to their Statement of Claim to replace three co-Plaintiffs. Second, the Plaintiffs sought an order authorizing a representation action to have Grand Chief Warren White made the representative plaintiff for the collective that the Plaintiffs contend is the beneficiary of Treaty 3. Third, the Crown moved under Rule 21 to have the Plaintiffs’ action dismissed as non-justiciable and as not disclosing a reasonable cause of action. But for its Rule 21 motion and its opposition to the Plaintiffs’ motion for a representation action, the Crown did not oppose the various substitutions of co-Plaintiffs.
[2] I dismissed the Plaintiffs motion for a representation order and granted the Crown`s motion. My reasons are reported Kelly v. Canada (Attorney General), 2013 ONSC 1220.
[3] The Crown now seeks costs on a partial indemnity basis in the amount of $30,000 for fees and $1,244.85 for disbursements.
[4] The Plaintiffs submit that this is an appropriate case for the Court to exercise its discretion to not award costs because the litigation was public interest litigation and because the case involved novel and emerging issues of law. Alternatively, the Plaintiffs submit that the amount claimed by the Crown is excessive and should be reduced.
[5] I agree with the Plaintiff`s first submission and, although I do not need to deal with it, I disagree with the alternative submission. Had the case at bar not involved matters in the public interest and novel and emerging issues about the civil procedure for claims involving aboriginal rights, I would have awarded the Crown its costs as requested.
[6] I discuss costs and public interest litigation in Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario (Markham: LexisNexis, 2010) at p. 666 as follows (footnotes omitted):
The traditional principles about costs were designed primarily for disputes between litigants motivated by self-interest who would weigh the prospects of receiving or paying costs as a factor in deciding whether to prosecute or defend a claim. Courts have come to appreciate, however, that the traditional principles may need to be altered in cases where individual litigants or intervenors seek to enforce their constitutional rights or raise matters of consequence to the public.
In public interest litigation, courts have the discretion not to follow the traditional principle that costs follow the event to ensure that constitutional law, the Canadian Charter of Rights and Freedoms, and other public interest litigation is not beyond the reach of the citizen of ordinary means. An unsuccessful litigant who raises a legal issue of public importance may be relieved of the burden of paying costs to a successful government or public authority litigant.
[7] In my opinion, the case at bar is public interest litigation and it also raised important and novel issues about how to litigate aboriginal rights claims.
[8] The case at bar is an appropriate case to make no order as to costs.
Perell, J.
Released: April 16, 2013
COURT FILE NO.: CV-11-440069
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRAND CHIEF DIANE KELLY, ON HER OWN BEHALF AND ON BEHALF OF ALL BENEFICIARIES OF TREATY 3, CHIEF ERIC FISHER, WABASEEMOONG INDEPENDENT NATIONS; CHIEF KIMBERLY SANDY-KASPRICK, NORTHWEST ANGLE #33 FIRST NATION; CHIEF SIMON FOBISTER, GRASSY NARROWS FIRST NATION; CHIEF PAMELA PITCHENESE, EAGLE LAKE FIRST NATION; CHIEF CHARLES MCPHERSON, COUCHICHING FIRST NATION
Plaintiffs
‑ and ‑
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR DECISION - COSTS
Perell, J.
Released: April 16, 2013.