ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-192059
DATE: 20150812

BETWEEN:

LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, MICHELLINE AMMAQ, PERCY ARCHIE, CHARLES BAXTER SR., ELIJAH BAXTER, EVELYN BAXTER, DONALD BELCOURT, NORA BERNARD, JOHN BOSUM, JANET BREWSTER, RHONDA BUFFALO, ERNESTINE CAIBAIOSAI-GIDMARK, MICHAEL CARPAN, BRENDA CYR, DEANNA CYR, MALCOLM DAWSON, ANN DENE, BENNY DOCTOR, LUCY DOCTOR, JAMES FONTAINE in his personal capacity and in his capacity as the Executor of the Estate of Agnes Mary Fontaine, deceased, VINCENT BRADLEY FONTAINE, DANA EVA MARIE FRANCEY, PEGGY GOOD, FRED KELLY, ROSEMARIE KUPTANA, ELIZABETH KUSIAK, THERESA LAROCQUE, JANE McCULLUM, CORNELIUS McCOMBER, VERONICA MARTEN, STANLEY THOMAS NEPETAYPO, FLORA NORTHWEST, NORMAN PAUCHEY, CAMBLE QUATELL, ALVIN BARNEY SAULTEAUX, CHRISTINE SEMPLE, DENNIS SMOKEYDAY, KENNETH SPARVIER, EDWARD TAPIATIC, HELEN WINDERMAN and ADRIAN YELLOWKNEE

Plaintiffs

• and -

THE ATTORNEY GENERAL OF CANADA, THE PRESBYTERIAN CHURCH IN CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE UNITED CHURCH OF CANADA, THE BOARD OF HOME MISSIONS OF THE UNITED CHURCH OF CANADA, THE WOMEN’S MISSIONARY SOCIETY OF THE PRESBYTERIAN CHURCH, THE BAPTIST CHURCH IN CANADA, BOARD OF HOME MISSIONS AND SOCIAL SERVICES OF THE PRESBYTERIAN CHURCH IN BAY, THE CANADA IMPACT NORTH MINISTRIES OF THE COMPANY FOR THE PROPAGATION OF THE GOSPEL IN NEW ENGLAND (also known as THE NEW ENGLAND COMPANY), THE DIOCESE OF SASKATCHEWAN, THE DIOCESE OF THE SYNOD OF CARIBOO, THE FOREIGN MISSION OF THE PRESBYTERIAN CHURCH IN CANADA, THE INCORPORATED SYNOD OF THE DIOCESE OF HURON, THE METHODIST CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE ANGLICAN CHURCH OF CANADA, THE MISSIONARY SOCIETY OF THE METHODIST CHURCH OF CANADA (ALSO KNOWN AS THE METHODIST MISSIONARY SOCIETY OF CANADA), THE INCORPORATED SYNOD OF THE DIOCESE OF ALGOMA, THE SYNOD OF THE ANGLICAN CHURCH OF THE DIOCESE OF QUEBEC, THE SYNOD OF THE DIOCESE OF ATHBASCA, THE SYNOD OF THE DIOCESE OF BRANDON, THE ANGLICAN SYNOD OF THE DIOCESE OF BRITISH COLUMBIA, THE SYNOD OF THE DIOCESE OF CALGARY, THE SYNOD OF THE DIOCESE OF KEEWATIN, THE SYNOD OF THE DIOCESE OF QU’APPELLE, THE SYNOD OF THE DIOCESE OF NEW WESTMINISTER, THE SYNOD OF THE DIOCESE OF YUKON, THE TRUSTEE BOARD OF THE PRESBYTERIAN CHURCH IN CANADA, THE BOARD OF HOME MISSIONS AND SOCIAL SERVICE OF THE PRESBYTERIAN CHURCH OF CANADA, THE WOMEN’S MISSIONARY SOCIETY OF THE UNITED CHURCH OF CANADA, SISTERS OF CHARITY, A BODY CORPORATE ALSO KNOWN AS SISTERS OF CHARITY OF ST. VINCENT DE PAUL, HALIFAX, ALSO KNOWN AS SISTERS OF CHARITY HALIFAX, ROMAN CATHOLIC EPISCOPAL CORPORATION OF HALIFAX, LES SOEURS DE NOTRE DAME-AUXILIATRICE, LES SOEURS DE ST. FRANCOIS D’ASSISE, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYANCITHE, LES SOEURS DE JESUS-MARIE, LES SOEURS DE L’ASSOMPTION DE LA SAINTE VIERGE, LES SOEURS DE L’ASSOMPTION DE LA SAINT VIERGE DE L’ALBERTA, LES SOEURS DE LA CHARITE DE ST.-HYACINTHE, LES OEUVRES OBLATES DE L’ONTARIO, LES RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTRéAL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARITé DES T.N.O., HOTEL-DIEU DE NICOLET, THE GREY NUNS OF MANITOBA INC.-LES SOEURS GRISES DU MANITOBA INC., LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE D’HUDSON – THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF HUDSON’S BAY, MISSIONARY OBLATES – GRANDIN PROVINCE, LES OBLATS DE MARIE IMMACULEE DU MANITOBA, THE ARCHIEPISCOPAL CORPORATION OF REGINA, THE SISTERS OF THE PRESENTATION, THE SISTERS OF ST. JOSEPH OF SAULT ST. MARIE, SISTERS OF CHARITY OF OTTAWA, OBLATES OF MARY IMMACULATE –ST. PETER’S PROVINCE, THE SISTERS OF SAINT ANN, SISTERS OF INSTRUCTION OF THE CHILD JESUS, THE BENEDICTINE SISTERS OF MT. ANGEL OREGON, LES PERES MONTFORTAINS, THE ROMAN CATHOLIC BISHOP OF KAMLOOPS CORPORATION SOLE, THE BISHOP OF VICTORIA, CORPORATION SOLE, THE ROMAN CATHOLIC BISHOP OF NELSON, CORPORATION SOLE, ORDER OF THE OBLATES OF MARY IMMACULATE IN THE PROVINCE OF BRITISH COLUMBIA, THE SISTERS OF CHARITY OF PROVIDENCE OF WESTERN CANADA, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE GROUARD, ROMAN CATHOLIC EPISCOPAL CORPORATION OF KEEWATIN, LA CORPORATION ARCHIéPISCOPALE CATHOLIQUE ROMAINE DE ST. BONIFACE, LES MISSIONNAIRES OBLATES SISTERS DE ST. BONIFACE-THE MISSIONARY OBLATES SISTERS OF ST. BONIFACE, ROMAN CATHOLIC ARCHIEPISCOPAL CORPORATION OF WINNIPEG, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE PRINCE ALBERT, THE ROMAN CATHOLIC BISHOP OF THUNDER BAY, IMMACULATE HEART COMMUNITY OF LOS ANGELES CA, ARCHDIOCESE OF VANCOUVER – THE ROMAN CATHOLIC ARCHBISHOP OF VANCOUVER, ROMAN CATHOLIC DIOCESE OF WHITEHORSE, THE CATHOLIC EPISCOPALE CORPORATION OF MACKENZIE-FORT SMITH, THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF PRINCE RUPERT, EPISCOPAL CORPORATION OF SASKATOON, OMI LACOMBE CANADA INC. and MT. ANGEL ABBEY INC.

Defendants

Proceeding under the Class Proceedings Act, 1992

COUNSEL:

• Fiona Campbell and Ben Piper for the Applicants

• Catherine A. Coughlan and Eve Coppinger for the Attorney General of Canada

HEARING DATES: Written submissions

PERELL, J.

REASONS FOR DECISION - COSTS

A. INTRODUCTION

[1] The following are my reasons for decision on costs in a Request for Directions (“RFD”) made to the Court under the Indian Residential Schools Settlement Agreement (“IRSSA”).

[2] The RFD was brought by former students of St. Anne’s Indian Residential School (“IRS”) and Bishop Horden IRS[^1] who have made or are making claims for compensation under the Independent Assessment Process (“IAP”) of the IRSSA. I provided the following summary of the RFD in my reasons for decision on the merits of the RFD (Fontaine v. Canada (Attorney General), 2015 ONSC 4061):

In their RFD, they assert that Canada has not complied with its report writing obligations under the IRSSA, including its obligation to update reports following this court’s January 14, 2014 order for the production of documents about a criminal investigation of activities at St. Anne’s IRS: see Fontaine v. Canada (Attorney General), 2014 ONSC 283. More particularly, the Applicants submit that having regard to the thousands of documents disclosed, Canada has not provided an adequate School Narrative or Person of Interest Reports (“POI Reports”) for claims involving St. Anne’s IRS. The Applicants also assert that publically available documents should not be redacted and that IAP adjudicators should receive unredacted documents.

The Applicants request Orders that: (1) Canada revise the School Narrative and POI Reports for St. Anne’s IRS and for Bishop Horden IRS in a manner that makes the source documents useable by Claimants and adjudicators in IAP hearings; and (2) Canada provide an unredacted copy of source documents for St. Anne’s IRS and for Bishop Horden IRS to the Indian Residential Schools Adjudication Secretariat (“Secretariat”) for use by IAP adjudicators and, upon request, to Applicants or their Counsel.

[3] I dealt with two interlocutory matters in the course of this RFD. First, I granted the Applicants’ request to file an affidavit, that of A.M., later than contemplated by the agreed upon timetable (Fontaine v. Canada (Attorney General), 2015 ONSC 2982). Second, I dismissed a refusals motion by the Applicants arising from the cross-examination of Eric Guimond, one of Canada’s affiants (Fontaine v. Canada (Attorney General), 2015 ONSC 3185). In both cases, I ordered that the costs of those matters could be dealt with in the context of the costs of the RFD.

[4] On the merits of the RFD, I ordered Canada to revise its School Narrative and POI Reports for St. Anne’s IRS. I also ordered Canada to provide unredacted copies of any court records that were at any time publicly available to the Secretariat, and, upon request, to Claimants or their lawyers for IAP hearings about St. Anne’s IRS or Bishop Horden IRS; Canada consented to this second order at the hearing. I dismissed the Applicants’ request for an order that Canada provide the Secretariat, Claimants, and Claimants’ Counsel with unredacted copies of other documents gathered for the School Narrative and POI Reports. I also dismissed the Applicants’ request that Canada update its reports for Bishop Horden IRS.

[5] The Assembly of First Nations (“AFN”) participated in the RFD and supported the position of the Applicants on all issues.

[6] At the end of my reasons for decision on the merits I stated my conclusion that Canada should pay costs of the RFD to the Applicants and the AFN, and invited written submissions if the parties could not agree on costs. The parties did not agree, and I have received written submissions from the Applicants and from Canada.

[7] The Applicants seek full indemnity costs in the amount of $143,537.09, consisting of $140,447.14 in fees and HST, and $3,089.95 in disbursements and HST. Canada submits that a range of $15,000 to $20,000, inclusive, is appropriate. For the reasons that follow, I order Canada to pay costs to the Applicants in the amount of $75,000.00 for fees and HST, and $3,089.95 in disbursements and HST, for a total of $78,089.95, all inclusive.

[8] The AFN did not make submissions on costs. In the absence of any submissions on costs from the AFN, I make no order as to costs in favour of the AFN.

B. THE PARTIES’ POSITIONS

1. The Applicants’ Position

[9] The Applicants submit that they should be awarded costs on a full indemnity scale. They rely on the approach to costs that I applied in my reasons on costs of the first set of St. Anne’s RFDs (Fontaine v. Canada (Attorney General), 2014 ONSC 3059) [St. Anne’s Costs #1]. Under that approach, the court is guided but not governed by jurisprudence that regards a partial indemnity award as normative, and a substantial or full indemnity award as punitive.

[10] The Applicants rely on two overarching factors in support of their request for full indemnity costs: their substantial success on the RFD, and the conduct of the parties during litigation.

[11] In respect of the first factor, the Applicants say that they were successful on the “vast majority” of issues that were brought to the Court in this RFD. The only issue on which they were unsuccessful was the request that Canada provide the Secretariat with unredacted copies of documents gathered for the School Narrative and POI Reports. However, while the Applicants did not prevail on this point, they submit that it was a legitimate interpretive question to bring before the Court, given ambiguities in the language of the IRSSA. Moreover, this issue was not a significant part of the arguments made by the parties in their written submissions, or in the examinations on affidavits.

[12] Although the Court also declined the Applicants’ request that Canada update its reports for Bishop Horden IRS, the matter was not pursued by any of the parties in their written or oral submissions, nor was it the subject of any evidence led by the parties.

[13] As for the conduct of the parties during litigation, the Applicants submit that they made substantial efforts to attempt to reduce the potential costs:

a. Prior to initiating the RFD, the Applicants engaged in several communications with counsel for Canada to identify the perceived issues with the School Narratives, POI Reports and redactions and attempted to discuss a solution;

b. After filing the RFD, the Applicants proposed that it be argued in writing;

c. The Applicants equally proposed that examinations on the affidavits filed by the parties be conducted in writing; and

d. The Applicants examined one of Canada’s two affiants, electing not to examine Mario Brillant, whose affidavit only gave information about Sack Goldblatt Mitchell’s involvement in the IAP.

[14] In contrast, say the Applicants, Canada’s conduct of the litigation was “aggressive and uncooperative”:

a. Canada made no effort to engage in genuine discussions with the Applicants on these matters prior to the RFD (by way of example, Canada provided no information on its redaction practices until it filed the affidavit of Eric Guimond);

b. Canada not only insisted on conducting examinations on affidavits in person, but examined both of the Applicants’ affiants, who had sworn clerical affidavits. Canada cited the answers it received from those examinations only once in its factum, as authority for the number of Applicants represented by Sack Goldblatt Mitchell LLP;

c. Following the admission of the Affidavit of A.M., the Court stipulated that “cross-examination of A.M., if any, is to be completed” by May 13 and that the “applicants’/requesting parties amended factum, if any, is to be filed” by May 20. Canada delivered a list of 30 questions and nine sub-questions on the afternoon of May 13, requesting responses by May 20;

d. In its written submissions, Canada made various assertions about “specific research requests” that it fields at the instance of parties to an IAP claim, with little detail about the nature of such requests and without having introduced evidence to support this claim. Likewise, in oral submissions, Canada described, without evidence, efforts made by the Secretariat to assist self-represented litigants in the IAP; and

e. Canada objected to hearing the matter in writing, preferring to have the matter argued orally, in Toronto, adding significant time and expense to the RFD.

[15] The Applicants raise additional arguments, including: they made a number of efforts to have the problem addressed before coming to this Court, including approaching Canada, the Chief Adjudicator and members of the Oversight Committee; they assumed risk in bringing this matter before the Court, with no guarantee of compensation for their effort; they have not claimed costs for work on specific IAP files in reviewing the source documents and preparing summaries; and their bill of costs does not include the costs associated with the Applicants’ unsuccessful motion concerning refusals in the examination of Eric Guimond.

[16] In addition to their Bill of Costs, the Applicants purported to file a “pre-bill” containing dockets supporting the Bill of Costs. The Applicants did not provide a copy of the pre-bill to Canada with their costs submissions, but rather filed the pre-bill “under separate cover for the Court only”.

2. Canada’s Position

[17] Canada submits that costs should be payable on a partial indemnity basis, and that the Court should also use its discretion to apply “significant discounting”. Additionally, Canada submits that certain fees and disbursements claimed by the Applicants are improper or excessive, and should not be included in a costs award.

[18] On the matter of scale, Canada submits that there is no default presumption, contrary to the Applicants’ submissions, that substantial or full indemnity should be awarded against the unsuccessful party on an RFD. Indeed, on many RFDs, costs have not been awarded.

[19] Canada points to the absence of any conduct supporting an elevated costs award on a full or substantial indemnity scale. Canada submits that a finding of mistake or misreading on the part of government officials with respect to obligations under the IRSSA is not a sufficient ground to support a costs award on a substantial or full indemnity basis. No finding has been made with respect to any reprehensible, scandalous or outrageous conduct on the part of Canada, which is generally required to award costs exceeding the partial indemnity scale. There is also no indication that Canada acted in bad faith.

[20] Canada submits that the limited success of the Applicants on this RFD does not justify the imposition of substantial indemnity costs. In the present RFD, the issues were narrow and technical, requiring clarity on Canada’s obligations based on the contractual interpretation of the IRSSA, which “is not precise or comprehensive” in that regard. Canada also takes issue with the notion that the Applicants incurred significant risk in undertaking this RFD.

[21] On the question of quantum, Canada first points out that the Bill of Costs ascribes amounts globally to variously grouped tasks and is generally lacking in detail. Canada is at a disadvantage in making submissions on quantum, because while the Applicants have provided a pre-bill to the Court they have failed to disclose to Canada any dockets or pre-bills in respect of the amounts claimed in their Bill of Costs.

[22] In any event, Canada argues that the quantum of costs should be significantly discounted, applying the discretionary factors under Rule 57.01(1) of the Rules of Civil Procedure. First, the Applicants are not entitled to be indemnified for costs in connection to with relief consented to or dismissed on the RFD. The dismissed requests were significant to the underlying RFD as a whole.

[23] Second, the total costs claimed by the Applicants are not within the reasonable expectation of the parties, having regard to:

a. The amount awarded to the Truth and Reconciliation Commission (“TRC”) on the first set of St. Anne’s RFDs, which took two days to argue ($46,398.98 full indemnity);

b. The mixed success of the Applicants on the two interlocutory matters; and

c. The excessive number of senior counsel involved on behalf of the Applicants.

[24] Third, the complexity of the RFD, which took less than two hours of court time, was minimal.

[25] Fourth, the importance of the issues, which were largely technical, and have had no real world application in a number of IAP claims that have settled without regard to redactions or deficiencies in the Narratives and POI Reports, was minor.

[26] Fifth, the conduct of the parties weighs in Canada’s favour. Canada did not engage in improper, vexatious or unnecessary conduct, and should not be penalized for choosing to cross-examine on affidavits or having an oral hearing. Indeed, Canada exercised its rights in a cost-effective and efficient manner. In contrast, the conduct of the Applicants included:

a. Distraction from the matters at issue, including by way of the affidavit of A.M., which was revealed by Canada’s cross-examination to include allegations that were exaggerated or, in one case, completely erroneous, and as a result, had no probative value;

b. Affidavits that improperly included materials that breached both the directions of the Court and the confidentiality provisions of the IRSSA process; and

c. Lack of transparency regarding the identification of the individuals actually making the claims advanced through the RFD.

[27] Canada also takes issue with certain fees and disbursements that it says are improperly claimed by the Applicants. In particular, Canada says it should not be required to pay:

a. Fees claimed on behalf of Fay Brunning, because Ms. Brunning was not counsel for the Applicants in the present RFD, or in the alternative, because Ms. Brunning was a fourth counsel for the Applicants. In either case, Canada submits that the entirety of the $13,860 claimed by Ms. Brunning should be subtracted from the costs awarded; or

b. Fees claimed for time spent post-judgment in considering the terms of Order. Canada maintains that the Applicants should not be entitled to any such time. The parties to this RFD have had the benefit of terms of Order drafted by the Court itself, eliminating the necessity of settling the terms of Order.

C. DISCUSSION AND ANALYSIS

1. Approach to costs under the IRSSA

[28] In St. Anne’s Costs #1, at paras. 9-14, I described the Court’s approach to costs under the IRSSA:

9. As the discussion below will reveal, the resulting requests for costs for the RFDs requires the court to exercise its discretion about costs having regard to the unique and extraordinary circumstances of the IRSSA, which circumstances include the laudatory purpose of achieving truth and reconciliation among the Aboriginal and non-Aboriginal citizens of Canada, the Canadian government, Aboriginal organizations, and the defendants responsible for the Indian Residential Schools.

10. As a purpose, reconciliation is more than settlement, because it aims at not only ending the conflict between the parties, but reconciliation also may have elements of atonement, penance, forgiveness, and the restoration of trust between the estranged and alienated parties.

11. Indeed, the IRSSA has many purposes. It settled numerous individual court actions and numerous class actions brought against the Government of Canada and against a long list of church organizations and their clergy and educators for the inhumane and reprehensible mistreatment of students at the Indian Residential Schools. Another purpose of the IRSSA is to provide compensation for the victims of acts of mistreatment. Yet another purpose is to disclose the truth about what occurred and to create a historical record for future generations. The Government of Canada sincerely apologized for what occurred at the schools. Still yet another major purpose of the IRSSA is to effect reconciliation among the Aboriginal and non-Aboriginal citizens of Canada, their government, and the defendants responsible for the Indian Residential Schools.

12. It is necessary for the Court to consider all of these purposes when exercising its discretion with respect to costs under the IRSSA. It is a special and unique jurisdiction.

13. Unfortunately, as the costs submissions made by the parties reveal, the compensation purposes of the IRSSA - where Canada and the survivors of abuse at the schools remain opposing litigants in the adjudication of claims under the IAP of the IRSSA – have strained the truth and reconciliation purposes of the IRSSA and fueled animosity and distrust about whether Canada has honoured its disclosure obligations under the IRSSA or purposely undermined the IAP process, which is strongly denied by Canada.

14. In these circumstances, the exercise of the Court’s discretion about costs must be particularly sensitive to the feelings of the parties about what message the Court is sending in making a costs award.

2. The Applicants’ pre-bill

[29] I have not considered the Applicants’ pre-bill. As noted above, the Applicants did not provide a copy to Canada with their costs submissions, but rather filed the pre-bill “under separate cover for the Court only”. It is not open to the Applicants to file material “for the Court only”. Since Canada has not had an opportunity to view and comment on the information contained in the pre-bill, not even in a form redacted for privilege, it is not properly before the Court.

3. Scale

[30] I have previously noted that in determining the scale of costs on an RFD under the IRSSA, the Court is not bound by the same principles that apply to scale in other civil litigation. In determining the scale of costs in St. Anne’s Costs #1, I referred back to my reasons on the merits of the underlying RFDs (Fontaine v. Canada (Attorney General), 2014 ONSC 283), in which I stated at paras. 249-252:

249. In my opinion, the court’s jurisdiction to award costs in a RFD proceeding is a plenary discretion and includes awarding costs on a substantial indemnity basis. I say that the court’s costs jurisdiction under the IRSSA is a plenary jurisdiction because, in my opinion, in administering the IRSSA, the court would be guided but not governed by the jurisprudence that regards a partial indemnity as normative and a substantial indemnity award as punitive. In other words, under the IRSSA, there may be other reasons to justify an award of substantial or full indemnity costs.

250. The court’s jurisdiction to award costs in a RFD is separate and apart from the provisions of the IRSSA that govern legal fees for the IAP and is not a way to circumvent those provisions.

251. In the case at bar, the Commission and the Applicants properly resorted to the RFD procedure to ensure compliance with the IRSSA. Subject to the details of the services provided and disbursements incurred, I conclude that the court has the jurisdiction to award the Commission and the RFD costs as part of the RFD procedure and this jurisdiction can and should be exercised in the circumstances of this case to indemnify the Applicants and the Commission for the legal expenses and disbursements associated with bringing forward their RFDs.

252. To be more precise, the Applicants and the Commission are entitled to claim costs for the legal services that identified that there was a problem associated with the operation of the IRSSA and also for the legal services associated with the RFD designed to find a solution for the problem. This award of costs is not a way to circumvent the regime for costs for the IAP; rather, it is an award made to implement and to enforce the IRSSA.

[31] In St. Anne’s Costs #1, I concluded that in all of the circumstances, I would “not confine the IAP Applicants to a partial indemnity award of costs. While I certainly make no punitive costs award against Canada, I do grant more than partial indemnity costs to reward the IAP Applicants for their diligence and for the risk they took in bringing a RFD” (para. 34).

[32] In the result, however, I did not award the IAP Applicants their full indemnity costs as claimed, having regard to a number of discretionary factors, including the overriding principle that costs be fair and reasonable in all of the circumstances.

[33] I will take a similar approach here as well. I will not confine the Applicants to a partial indemnity award of costs, and will factor in some compensation to the Applicants for diligence and risk in undertaking this RFD. The issue of the adequacy of the revised Narrative and POI Reports was important. However, I will make no punitive costs award against Canada. Canada’s late concession that court documents should be provided in unredacted form leads to the conclusion that the costs that Canada could reasonably expect to pay in respect of that request are higher than they would have been had Canada conceded that point earlier. However, as in St. Anne’s Costs #1, Canada was entitled to submit that the IRSSA should be interpreted differently than as submitted by the Applicants, and its conduct of the litigation does not attract punitive sanctions.

[34] Moreover, I will not award the Applicants their full indemnity costs, for the reasons described below.

4. Quantum

[35] I will discount the Applicants’ full indemnity claim based on a number of factors, including the overriding principle of fairness and reasonableness in the circumstances.

[36] In considering what Canada could reasonably have expected to pay, it would have been preferable for Canada to provide its own Bill of Costs, and in the absence of one, some of Canada’s criticisms must be taken with a grain of salt. However, the absence of a Bill of Costs from the unsuccessful party is but one factor for consideration, and the Court must be satisfied that the claiming party’s Bill of Costs is fair and reasonable standing on its own (Smith Estate v. Rotstein, 2011 ONCA 491, at para. 54).

[37] In St. Anne’s Costs #1, I took into account the fact that not all of the Applicants’ RFDs were successful. I will apply the same principle here, and discount the Applicants’ claim having regard to their lack of success on the request to order production of unredacted copies to the Secretariat, and to a lesser extent, their lack of success on the request to have my order apply to Bishop Horden IRS.

[38] I also take into account that although the Applicants were successful on the interlocutory issue of the late filing of A.M.’s affidavit, that was something of an indulgence.

[39] I will also discount somewhat the fees requested for Ms. Brunning. Until December 31, 2014, she was part of the Applicants’ counsel’s firm, Sack Goldblatt Mitchell, and as such her time up until that point may be evaluated as part of the time spent by the Applicants’ lawyers of record. However, after that point, although she apparently remained counsel to A.M., who is one of the Applicants, in respect of his IAP claim, it is not entirely clear from the material what her arrangement with the Applicants is in connection with this RFD. In any event, I accept Canada’s position that the number of senior counsel involved on behalf of the Applicants on this RFD warrants a modest reduction.

[40] For these reasons, assessing what is fair and reasonable for Canada to pay in all the circumstances, I award costs in respect of fees in the amount of $75,000.00, including HST.

[41] Canada does not appear to take issue with the claim for disbursements. In any event, I find the disbursements claimed to be reasonable and award $3,089.95 to the Applicants in respect of disbursements.

D. CONCLUSION

[42] For these reasons, I order Canada to pay costs in the amount of $78,089.95, all inclusive, to the Applicants, and make no order as to costs in favour of the AFN.

Perell, J.

Released: August 12, 2015

COURT FILE NO.: 00-CV-192059
DATE: 20150812

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, et al.

Plaintiffs

‑ and ‑

THE ATTORNEY GENERAL OF CANADA et al.

Defendants

REASONS FOR DECISION - COSTS

Perell, J.

Released: August 12, 2015

[^1]: Listed in Schedule “E” to the IRSSA as “Bishop Horden Hall (Moose Fort, Moose Factory)”.