ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-192059

DATE: 20150831

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 IMMACULÉE 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:

• Fay Brunning for the Applicants
• Catherine A. Coughlan and Brent Thompson for the Attorney General of Canada

HEARING DATES: Written submissions

PERELL, J.

COSTS ENDORSEMENT

A. INTRODUCTION

[1] This is my costs endorsement 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 Bishop Horden Indian Residential School (“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 3611) at paras. 4-7:

[4] The Applicants bring their RFD because of their lawyer’s discovery of a problem about one of Canada’s disclosure obligations under the IRSSA. One of Canada’s obligations for the IAP part of the contract is to provide reports known as Narratives. The Narratives are designed to facilitate the IAP. Under the IRSSA, Narratives summarize information about: each Indian Residential School; documents mentioning sexual abuse at the particular school; and alleged perpetrators of assaults who are called POIs (“Persons of Interest”).

[5] The Narratives and the POI Reports are prepared by Aboriginal Affairs and Northern Development Canada (“AANDC”), the department of Canada with responsibility for policies relating to Aboriginal peoples in Canada. The Narrative prepared by Canada for the Bishop Horden Indian Residential School (“Bishop Horden IRS”) is silent about an alleged incident involving an assault in the girl’s dorm that led to criminal charges and the dismissal and replacement of the supervisors at the school.

[6] The Applicants allege that Canada has breached its disclosure obligations with respect to the Narrative for the Bishop Horden IRS, which was located in Moose Factory, Ontario.

[7] The Applicants seek a very broad remedial order from this Court to correct the alleged breach of contract. In their RFD, the Applicants seek, among other things, directions: (1) compelling Canada to answer the questions its representative refused to answer during cross-examinations for this RFD; (2) compelling Canada to conduct additional searches of various governmental departments for documents relevant to abuses at Bishop Horden IRS; (3) requiring Canada to produce any additional documents relevant to the IAP process that it may have in its possession; and (4) requiring the Indian Residential Schools Adjudication Secretariat (“Secretariat”) to establish a “witness-matching” program.

[3] I ordered Canada to conduct additional searches with one governmental department, the RCMP, but not with the others requested by the Applicants, Health Canada and the Department of Justice (“DOJ”). I also dismissed the requests: (1) that Canada be compelled to answer the refused questions; (2) that Canada produce any additional documents relevant to the IAP process that it may have in its possession; and (3) that the Secretariat establish a witness-matching program.

[4] The Assembly of First Nations (“AFN”) participated in the RFD and supported the position of the Applicants on the disclosure issues. The Chief Adjudicator, who oversees the Secretariat, participated in respect of the request involving the witness-matching program. The General Synod of the Anglican Church of Canada (the “Anglican Church”) also participated in the RFD because the RFD initially sought disclosure from the Anglican Church, although the Applicants subsequently abandoned that request for relief.

[5] At the end of my reasons for decision on the merits, I 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, who seek costs against Canada, and from Canada, responding to the Applicants’ submissions. The Chief Adjudicator indicated that he would not be seeking costs. The AFN did not make submissions on costs, nor did the Anglican Church.

[6] The Applicants do not state the amount they are seeking in their written submissions. However, their Bill of Costs is presented on a full indemnity basis, and sets out a total of $95,148.85, consisting of $91,031.67 in fees and HST, and $4,117.18 in disbursements and HST. In response, Canada submits that no costs should be awarded against it, and in the alternative, that $5,000 is an appropriate quantum. For the reasons that follow, I order Canada to pay costs to the Applicants in the amount of $50,000, inclusive of disbursements and HST.

[7] I make no order as to costs in favour of or against the AFN, the Chief Adjudicator or the Anglican Church.

B. THE PARTIES’ POSITIONS

1. The Applicants’ Position

[8] The Applicants argue that costs in relation to an RFD under the IRSSA should be treated differently from costs in regular litigation, following adjudication of a motion or trial. Instead, the Applicants submit, IAP claimants who bring forward reasonable judiciable issues to the court under the RFD process should have their reasonable costs, regardless of outcome. The Applicants submit that the intention of the parties to the IRSSA was that IAP claimants would retain legal representation on an RFD, given the context of a highly vulnerable IAP claimant trying to enforce the terms of the IRSSA against federal officials of Canada.

[9] Relying on my decision on costs in an RFD involving another IRS, St. Anne’s, (Fontaine v. Canada (Attorney General), 2014 ONSC 3059 [St. Anne’s Costs #1]), the Applicants submit that the court can do what is “right and fair” in awarding costs on an RFD. They assert that responsibility for enforcement of the disclosure rights of IAP claimants under the IRSSA is currently placed entirely on claimant counsel; such enforcement is not undertaken by the Secretariat or IAP adjudicators. They argue that signatories such as the AFN are under no obligation to bring an RFD on behalf of claimants, and in any event do not participate in individual IAP claims, which is the context where legal issues pertaining to non-disclosure arise.

[10] The Applicants point out that Canada funds the IAP process, including costs of the Secretariat, adjudicators, Oversight Committee, DOJ legal counsel, etc., and that similarly, in the RFD process, the DOJ counsel, legal counsel for the Chief Adjudicator and legal counsel for the court are paid remuneration regardless of outcome, and those IRSSA costs are ultimately borne by the federal government. They argue that it should not be incumbent upon an IAP claimant to personally file and/or to pay a lawyer to bring an RFD against Canada on questions as to whether federal officials are complying with the IRSSA, nor should it be incumbent on claimant counsel to subsidize the IRSSA and assume personal financial risk to facilitate access to the court for determination of IRSSA legal issues. In essence, they say that contingency fee arrangements should not be expected to extend beyond the IAP claim process, i.e., into the RFD process.

[11] According to the Applicants, there is a lacuna in the IRSSA in that it did not provide for salaried or per diem counsel for former IRS students, so that they could be on an equal footing with Canada. For the purpose of an RFD on behalf of IAP claimants, the Applicants submit that it is fair that Canada should fund claimant counsel at a reasonable rate regardless of outcome because Canada and the other defendants agreed that the court is to supervise the IRSSA and it is just that IAP claimants should have access to legal advice and have competent legal representation to bring forward an RFD, when there are genuine legal issues to be determined for the IAP claimant. It is unfair to IAP claimants that claimant counsel may not get paid and/or indemnified at a reasonable rate to bring forward an RFD to the court. Because this is not settled, currently claimant counsel can decline to take forward an RFD, because the client cannot fund the lawyer and there is risk of not being paid at all, despite the merits of the potential RFD. In essence, according to the Applicants, this is an access to justice issue.

[12] The Applicants submit that the RFD was reasonably commenced, pursued and conducted. The Applicants note that they did not know Canada’s legal position until Canada filed its factum. They also note that they made reasonable and genuine efforts to expedite the Bishop Horden IRS documentary disclosure issue, including an offer to withdraw the RFD if legal counsel for Canada and the Anglican Church could confirm there was no such documentation in the possession of either defendant. The Applicants say that while the witness-matching request was not successful, it was a reasonable question for the claimant in S-11816 to raise, in the context of the very serious issue of whether Canada’s documentary search/disclosure for the IAP had been compliant. In any event, limited time was spent on that witness/victim connection issue.

[13] The Applicants submit that Canada, on the other hand, conducted the RFD unfairly, including refusing to disclose what searches really happened until answers to undertakings were given. The Applicants argue that Canada’s approach to disclosure in IAP proceedings is designed to defeat documentary disclosure in advance of a hearing. They assert that the DOJ lawyer appearing and challenging the IAP claimant in each IAP hearing is not given responsibility or power to ensure that documents that should be disclosed prior to adjudication, are disclosed for the IAP claim in question, and that DOJ counsel attending IAP hearings claim that they have no power over disclosure and purport to only be able to get instructions from Aboriginal Affairs and Northern Development Canada (“AANDC”). The Applicants say that artificial internal barriers in the DOJ also create increased costs to claimant counsel.

[14] Finally, the Applicants comment on what they perceive to be a suggestion in St. Anne’s Costs #1 that because claimant counsel are receiving additional compensation from contingency fees in the IAP hearings, the costs of the RFD should be lessened from a full indemnity. The Applicants say the court should not assume that Applicants’ counsel will be paid for RFD costs from IAP hearing outcomes (the Applicants’ costs submissions include a detailed critique of the current practice of what they describe as “mandatory” legal fee reviews by adjudicators – which they say has the effect of re-writing valid contingency retainer agreements by competent claimant counsel and is, in any event, ultra vires the adjudicators – followed by a description of the burden that the mandatory fee reviews, coupled with the need to pursue disclosure rights, has had on Ms. Brunning in particular; the process is described as a “financial disaster”).

[15] The Applicants also made submissions to the effect that costs should never be payable against an IAP claimant in respect of an RFD, and should not be payable against claimant counsel.

[16] Although the Applicants note that Canada gave notice to Ms. Brunning at an earlier stage of the RFD that Canada would seek costs of the RFD, and say that Ms. Brunning effectively assumed the risk of adverse costs personally, these issues are ultimately moot, since no one is now seeking either type of costs order here.

2. Canada’s Position

[17] Canada makes a number of preliminary comments regarding the relevance and propriety of some of the Applicants’ costs submissions, including that the Applicants’ arguments about what the IRSSA should have included vis-à-vis the funding of IAP counsel to bring RFDs is an attempt by the Applicants to rewrite the IRSSA, and that the critique of the “mandatory” fee reviews by adjudicators is erroneous and falls outside the scope of the present matter.

[18] Canada relies on the following arguments in support of its submissions that no costs should be awarded:

a. The Applicants sought extensive relief, but ultimately it was the argument of the AFN that compelled the court to grant limited relief on the basis of a narrow point of contractual interpretation of the IRSSA;

b. This is public interest litigation or litigation in which novel issues were argued;

c. This court has previously noted that the IRSSA is in some respects sui generis and is not precise or comprehensive regarding Canada’s disclosure obligations;

d. The relief granted, measured against the relief dismissed, simply does not attract a costs award; and

e. Even on the one point on which the Applicants were successful, the court emphasized that its findings were “not for the reasons advanced by the Applicants” and that it did “not agree with the Applicants’ version […]” of the proper interpretation of the IRSSA, which “much overstates Canada’s obligations”.

[19] In addition, Canada suggests that Applicants’ counsel’s conduct disentitles the Applicants to a costs award. Specifically, Canada alleges that Applicants’ counsel failed to inform the court that she was in possession of the results of a relevant Access to Information and Privacy (“ATIP”) search, revealing that no documents of the type sought were in the possession of the RCMP.

[20] Canada says the ATIP request came to light during Canada’s efforts to comply with the court’s order on this RFD. The ATIP request was made by Charlie Angus, a Member of Parliament, but Canada points to correspondence in which Applicants’ counsel described herself as having “been involved”. Canada describes this as a failure by Applicants’ counsel to be forthcoming, and says it is conduct that weighs against costs being awarded, and also undermines the very limited relief awarded, as the results of the searches ordered were already in the possession of Applicants’ counsel.

[21] Alternatively, Canada argues that any costs award be on a partial indemnity scale and be subject to significant discounting. In support of its position on scale, Canada submits that:

a. Under this court’s framework for determining costs on an RFD, 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;

b. Recognizing that this court has held that the guidelines for awarding partial indemnity or substantial indemnity costs are more flexible in the IRSSA context, on the facts in this case, a partial indemnity award is nonetheless appropriate, and in particular, Canada emphasizes the Applicants’ very limited success;

c. In the present RFD, the issues were narrow and technical, based on the contractual interpretation principles, and the court held that the “IRSSA is not precise or comprehensive” regarding Canada’s disclosure obligations, suggesting that different parties may hold reasonable but different interpretations of these obligations; an analysis of what is fair and reasonable under the circumstances does not support awarding the equivalent of punitive costs to be payable by Canada simply due to a narrow point of contractual interpretation; and

d. The impact of the very limited relief granted appears to be non-existent, especially in light of the results of Canada’s subsequent disclosures in compliance with the decision.

[22] With respect to quantum, Canada submits that:

a. A total discount of $52,669.18 should be applied as against the gross total of costs claimed, particularly in consideration of the reasonable expectations of the parties; and,

b. A global discount of 90% should be applied to all of the fees and disbursements eligible to be claimed by Applicants’ counsel, particularly in consideration of the 34% discount required on the partial indemnity scale, the relative successes of the parties, the marginal importance of the issues, the non-complexity of the legal issues, and the conduct of Applicants’ counsel.

[23] Canada has provided a detailed chart of the fee deductions that it proposes be made from the Applicants’ Bill of Costs, resulting in a remaining quantum for fees of $3,845.15.

[24] Canada relies on the following submissions in respect of the criteria set out in sub-rule 57.01(1) of the Rules of Civil Procedure:

a. The principle of indemnity: Canada points to the relative success of the parties. Canada also relies on the nature of the Applicants’ relationship with their counsel and suggests that because Ms. Brunning states that she is unpaid for her services, the HST claimed on fees is unrecoverable;

b. The reasonable expectation of the parties: Canada argues that:

i. The involvement of three senior counsel is excessive and improper and points out that nearly all of the work in this matter, including legal research, was performed by counsel who have at least 25 years at the bar;

ii. Some of the Applicants’ claimed time is in respect of counsel’s efforts to engage with third parties;

iii. The Applicants should not be reimbursed for instances in which cross-examinations were cancelled due to illness;

iv. Hours relating exclusively to IAP claim S-11816 should be discounted because they can be compensated for under the rules of the IAP process;

c. The complexity of the proceedings: this was an application and hearing of low to moderate complexity, requiring only one day in court, and had Applicants’ counsel admitted that she already was in possession of the search results sought, the need for court time could have been further reduced or entirely eliminated;

d. The importance of the issues: the issues in this matter were largely technical, and the practical impact of these proceedings has been negligible; and

e. The conduct of the parties: Canada did not act in a manner that could be construed as improper, vexatious or unnecessary, nor did it act out of excessive caution. In contrast, the Applicants engaged in conduct that unnecessarily enlarged the proceedings. In particular:

i. The attempts by Applicants’ counsel to negotiate terms of Order broader than the relief set out in the Reasons, as well as inclusion of irrelevant argument in the costs submissions, should not be compensated for by a costs award;

ii. Counsel for the Applicants also inappropriately engaged numerous parties, including the Chief Adjudicator and the Anglican Church, despite having no role vis-à-vis the relief ultimately granted;

iii. Time related to the unsuccessful motion to compel the Executive Director of the Secretariat to submit to questioning should be deducted;

iv. Counsel for the Applicants was duty-bound to advise this court that she was in possession of the results of an ATIP search which stated that all relevant documents being sought from the RCMP had been transferred to Library and Archives Canada (“LAC”), but instead made positive submissions to the effect that Canada had failed to undertake the searches requested; and

v. Finally, Applicants’ counsel created procedural difficulties and lengthened these proceedings by changing the nature of the relief sought throughout the proceedings, including by filing a new amended RFD concurrently to filing her factum, notwithstanding that by that date, all affidavit evidence had been filed and examined on as opted by the parties.

3. The Applicants’ Position in Reply

[25] At their request, the Applicants were permitted to file reply submissions.

[26] First, the Applicants dispute Canada’s submissions that Ms. Brunning failed to inform the court that an ATIP had already confirmed that the RCMP had no such records. They assert that as of the hearing date on May 20, 2015, LAC still could not confirm whether the RCMP patrol reports were part of the archival holdings of the RCMP with LAC. They add that even after the RFD hearing on June 1, 2015, the RCMP responded to the ATIP that they had not searched the detachment patrol reports from Moose Factory, to respond to the ATIP.

[27] According to the Applicants, the history of the ATIP request in question is as follows. After the Applicants’ affiant was cross-examined by Canada on March 31, 2015, including on the question of whether Applicants’ counsel had done any ancillary searches of their own, the Applicants received a suggestion by a staff member for Charlie Angus, the local MP, that an ATIP could be filed, and it was agreed that an ATIP would be sent to the RCMP by Mr. Angus’ office. This was done on April 14, 2015. On May 5, 2015, a response was sent by LAC to Mr. Angus’ office that spoke only about the LAC holdings of the RCMP. LAC suggested that Mr. Angus contact AANDC and the RCMP regarding the record holdings of those two departments. Mr. Angus’ office sent that response to Fay Brunning.

[28] On May 7, 2015, a follow up was sent by Mr. Angus’ office to LAC, to which a response was provided later that same day. LAC again indicated they only had the LAC holdings of the RCMP and could not determine if the patrol reports of the detachment in Moose Factory had been searched. Mr. Angus’ office was still waiting to hear from the RCMP. On June 1, 2015, the RCMP sent a further response to Mr. Angus’ office which confirmed that the RCMP had not searched the microfiche of the RCMP to answer the ATIP.

[29] In brief, the Applicants submit that Ms. Brunning did not fail to inform the court about the ATIP results in any respect. They add that the additional ATIP requests were made in good faith after cross-examinations and in anticipation of the DOJ’s argument in the RFD that an ATIP had not been filed by claimant counsel.

[30] The Applicants also reply to the following issues raised by Canada’s submissions:

a. The court’s degree of reliance on legal work of the Applicants: The Applicants submissions on this point include the fact that they took the lead on filing the Notice of RFD and the evidence, and presented a judiciable issue to the correct supervising authority;

b. The role of other senior claimant counsel on the RFD: The Applicants note firstly that Canada has not provided its own bill of costs for comparison purposes, but submit in any event that the separate involvement of lawyers from Ms. Brunning’s former firm, Goldblatt Partners LLP, who still represent some of the Applicants, was proper;

c. Costs regarding cross-examination of Secretariat Executive Director: The Applicants say the Bill of Costs was intended to remove all time of Applicants’ counsel pertaining to this issue, and will agree to withdraw the amounts, if the precise entries being disputed can be identified by Canada;

d. Scale of costs: The Applicants take the position that they are not requesting full or substantial indemnity scale of costs, but rather simply providing full particulars of time dockets and rates, and asking the court to approve rates that are reasonable and just for claimant counsel to bring an RFD on behalf of IAP claimants to the court; and

e. Mandatory fee reviews: The Applicants make further detailed submissions critiquing the current fee review practice of IAP adjudicators.

C. DISCUSSION AND ANALYSIS

1. Approach to costs under the IRSSA

[31] I have previously discussed in detail the court’s approach to costs under the IRSSA, in St. Anne’s Costs #1, and again in a costs decision related to a second RFD involving St. Anne’s IRS, Fontaine v. Canada (Attorney General), 2015 ONSC 5177 [St. Anne’s Costs #2]. I will not repeat that analysis here except to emphasize that costs determinations under the IRSSA involve considerations that are not present in regular civil litigation, and that requests for costs for RFDs require the court to exercise its discretion about costs having regard to the unique and extraordinary circumstances of the IRSSA, including the objective of achieving truth and reconciliation.

2. Entitlement

[32] I do not agree with Canada that the Applicants should not receive any costs in respect of this RFD. The scope of Canada’s disclosure obligations under the IRSSA was a valid and significant issue that required a determination by the court, and the Applicants should be compensated for their diligence and risk in bringing the RFD, insofar as it was successful. Although I did not accept the Applicants’ arguments and preferred the interpretation argued for by the AFN, the Applicants were the ones who brought and pursued this RFD.

[33] I will make the following observations about Canada’s assertion that the failure to disclose the ATIP request and its results to the court is fatal to the Applicants’ request for costs. First, I ultimately determined, as a matter of contractual interpretation, that Canada had a legal obligation under the IRSSA to conduct additional searches with the RCMP for documents relevant to the alleged assault in the girl’s dorm at the IRS. Whether the Applicants had taken their own steps to explore alternate avenues for determining whether the documents existed was irrelevant to that contractual interpretation question, as would be the fruits of any such steps.

[34] In suggesting that given the results of the ATIP request, Ms. Brunning’s submission at the hearing of the RFD that the possibility of additional RCMP documents was extant was misleading, Canada makes a serious allegation and one that normally would not lend itself to resolution based on affidavits filed in the context of costs submissions. However, I accept, based on the evidence filed on this costs determination, that it was not until at least May 19, 2015 that Mr. Angus’ office received a response directly from the RCMP (as opposed to LAC), and not until June 1, 2015 - after the hearing of the RFD - that Ms. Brunning received a copy of that response.

[35] I cannot accept Canada’s suggestion that given the results of the ATIP request, the limited relief granted was of no value, and this disentitles the Applicants to costs. I need not resolve whether the results were in fact clear that no additional documents existed, because at the time the results became known, the Applicants had already incurred costs working up the RFD due to Canada’s failure to do the searches with the RCMP itself, as Canada was obliged to do.

[36] In short, I conclude the Applicants are entitled and not disentitled to claim costs for the RFD process.

3. Scale

[37] I will apply a similar approach to scale here as I took in St. Anne’s Costs #1 and St. Anne’s Costs #2. Specifically, 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, insofar as it was successful. I accept that the Applicants made genuine efforts to obtain from Canada the information they were seeking before taking the step of bringing this RFD. However, I will make no punitive costs award against Canada, because 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.

[38] I will also not award the Applicants their full indemnity costs in this case, and will discount their claim for the reasons described below.

4. Quantum

[39] To begin with, I do not agree with the Applicants’ contention that Canada should simply be required to pay for the time of counsel for IAP claimants who bring RFDs, regardless of the outcome of the RFD, so long as the rates charged are reasonable. There is no doubt that access to justice is an important objective, and that the cost of legal services can be an impediment to access to justice, but this alone is an insufficient basis for concluding that Canada must be compelled effectively to fund legal counsel for IAP claimants for the purpose of RFDs. I agree with Canada that that is not what the parties bargained for in the IRSSA, and as this court has previously noted, it is not the court’s role to amend the IRSSA.

[40] While taking on a matter on contingency is laudable, the fact that counsel has incurred risk in doing so, although it may be relevant to the reasonableness of the contingency fee arrangement, is not a matter relevant to the assessment of costs. I agree with Canada that arguments about the current fee review practice of adjudicators and its practical impact on claimant counsel’s compensation are beside the point here.

[41] Ultimately, the court must assess what is fair and reasonable for Canada to pay in all the circumstances.

[42] Because Canada did not provide its own Bill of Costs, some of Canada’s arguments as to what it could reasonably have expected to pay may be given less weight. I will, however, take into account that some of the time claimed was for the unsuccessful motion to examine the Executive Director of the Secretariat. The Applicants, in their reply submissions, seem to suggest that the onus is on Canada to identify the disputed docket entries and submit them for confirmation by the Applicants before any amount can be discounted. I disagree. The Bill of Costs on its face includes time for “submissions re: examination of ED of the Secretariat; all research related thereto”. In the absence of greater specificity by the Applicants as to the number of hours devoted to those responsibilities, the court will make its best estimate.

[43] I also agree that the award should reflect some modest reduction having regard to the fact that the claim is for three senior counsel at senior counsel rates. Although, as noted above, Canada has not provided its own Bill of Costs, objectively, for the purposes of a costs award, Canada could not be expected to reimburse the Applicants for three senior counsel at senior counsel rates.

[44] Most significantly, I will discount the Applicants’ claim because the costs award should reflect their limited success on the RFD. Most of the Applicants’ requests were dismissed. While access to justice is always a concern – especially in the context of the IRSSA – Canada cannot be required to underwrite every argument that might be made in the context of an RFD.

[45] I will not give effect to Canada’s argument that the Applicants are not entitled to claim HST because Ms. Brunning has said she is working without being paid. Regardless of whether payment has already been made for counsel’s legal services, cost awards are intended to be applied in respect of those services, and there is no reason to conclude Ms. Brunning would be exempt from having to charge and remit HST in this case.

[46] In all the circumstances I find that it would be fair and reasonable for Canada to pay costs in respect of fees and disbursements in the total amount of $50,000, including HST.

D. CONCLUSION

[47] For these reasons, I order Canada to pay costs in the amount of $50,000, all inclusive, to the Applicants, and make no order as to costs in favour of or against the AFN, the Chief Adjudicator or the Anglican Church.

Perell, J.

Released: August 31, 2015

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