CITATION: Michipicoten First Nation v. Ontario (Natural Resources and Forestry), 2016 ONSC 2115
COURT FILE NO.: DC-15-00001015-0000 and DC-15-00001016-0000
DATE: 2016-03-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michipicoten First Nation
Applicant/Respondent on Motion
– and –
Minister of Natural Resources and Forestry, Nodin Kitagan Limited Partnership, Nodin Kitagan 2 Limited Partnership, by their respective general partners, Shongwish Nodin Kitagan GP Corp. and Shongwish Nodin Kitagan 2 GP Corp., and Batchewana First Nation
Respondents/Moving Parties
Chantell J. Bryson, for the Applicant
John Terry/Sarah Whitmore, for the Respondents
AND BETWEEN:
Michipicoten First Nation
Applicant/Respondent on Motion
– and –
Director Environmental Approvals Branch (Ministry of the Environment and Climate Change), Nodin Kitagan Limited Partnership, Nodin Kitagan 2 Limited Partnership, by their respective general partners, Shongwish Nodin Kitagan GP Corp. and Shongwish Nodin Kitagan 2 GP Corp., and Batchewana First Nation
Respondents/Moving Parties
Chantell J. Bryson, for the Applicant
John Terry/Sarah Whitmore, for the Respondents
HEARD: Written Submission
RULING ON Costs
GAUTHIER J.
[1] On January 28, 2016, for reasons rendered in writing, I granted the Nodin respondents’ request for adjournment.
[2] Nodin (the moving parties) now seeks its costs of the contested motion argued on January 26, 2016. They seek partial indemnity costs in the amount of $11,097.22.
[3] Michipicoten First Nation, who opposed the motion for adjournment, submits that (a) any costs of the motion be assessed by the panel of the Divisional Court on the hearing of the judicial review application, or (b) that the moving parties be awarded no costs for the motion or, finally, (c) that costs be fixed at $1,500.
Moving Parties’ Position
[4] As they were successful on the motion, they should be awarded costs, and there is no reason to deviate from the general rule that a successful party is entitled to its costs.
[5] The motion for adjournment was necessary to ensure that the moving parties were not denied natural justice that is, the ability to fairly make its case in response to the application. The moving parties required more time to respond, and their counsel was not available on the date set for the hearing.
[6] The conduct of counsel for Michipicoten First Nation required the motion to be brought and to be argued. She did not consult the moving parties regarding their availability on the date fixed for the hearing, and she refused to address the request for adjournment without a formal motion hearing, and this despite having been advised by the Regional Senior Judge of possible adverse costs consequences of insisting on a motion.
[7] Extensive motion materials had to be prepared by the moving parties to respond to the inaccurate allegations of delay made by the applicant.
Applicant’s Position
[8] The applicant continues to assert delay occasioned by the moving parties. These delays are characterized as self-created, self-serving, and will be relied upon by them at the eventual hearing of the judicial review application.
[9] The moving parties failed to establish that their counsel was not available for the hearing.
[10] There is the suggestion of improper or irregular dealings with the court in Thunder Bay before the matter was transferred to Sudbury: “… motion date of July 28, 2015, which they then scuttled through an off-the-record case conference adjournment request.” See paragraph 6 of the Responding Written Submission on Costs.
Analysis
[11] Firstly, there is absolutely no valid reason to deny the successful parties their costs of the motion in the circumstances. The request for adjournment was made in a timely manner, was fully supported by a proper evidentiary record, and was necessitated by the unreasonable refusal of the applicant to address the request for adjournment in any other context than a formal hearing of a motion.
[12] Further, I did not conclude that there had been intentional and self-serving delay by the moving parties which would justify the denial of the motion.
[13] My reasons make it clear that I accepted that there would be prejudice to the moving parties if their request were denied. See paragraph 12 of my reasons. For the applicant to continue to maintain, in its costs submissions, that “Nodin did not demonstrate that neither they nor competent colleagues were unavailable for the judicial review hearing…” is unreasonable and inappropriate, given my ruling on the motion.
[14] The motion was entirely avoidable.
[15] For these reasons, I am satisfied that the moving parties are entitled to their costs, on a partial indemnity basis, however I am not prepared to grant the amount of costs being sought.
[16] The costs outline sets out that more than 11 hours were spent drafting the affidavit in support of the motion, more than 13 hours drafting the factum, and more than 10 hours were spent in preparation for the motion, which was not complicated, and which was argued, by way of conference call, and required less than 2 hours. The time spent in my view is excessive.
[17] I have taken into account the factors enumerated under Rule 57, including the principle of proportionality, set out in Rule 1.04(1.1). In addition, I have considered the principles established by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), in particular, that the overall objective in fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances.
Conclusion and Order
[18] I conclude that the applicant should pay costs in the amount of $6,000 inclusive of disbursements, plus H.S.T. The applicant shall pay those costs within 30 days of today’s date.
The Honourable Madam Justice Louise L. Gauthier
Released: March 29, 2016
CITATION: Michipicoten First Nation v. Ontario (Natural Resources and Forestry), 2016 ONSC 2115
COURT FILE NO.: DC-15-00001015-0000 and DC-15-00001016-0000
DATE: 2016-03-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michipicoten First Nation
Applicant/Respondent on Motion
– and –
Minister of Natural Resources and Forestry, Nodin Kitagan Limited Partnership, Nodin Kitagan 2 Limited Partnership, by their respective general partners, Shongwish Nodin Kitagan GP Corp. and Shongwish Nodin Kitagan 2 GP Corp., and Batchewana First Nation
Respondents/Moving Parties
AND BETWEEN:
Michipicoten First Nation
Applicant/Respondent on Motion
– and –
Director Environmental Approvals Branch (Ministry of the Environment and Climate Change), Nodin Kitagan Limited Partnership, Nodin Kitagan 2 Limited Partnership, by their respective general partners, Shongwish Nodin Kitagan GP Corp. and Shongwish Nodin Kitagan 2 GP Corp., and Batchewana First Nation
Respondents/Moving Parties
RULING ON costs
Gauthier J.
Released: March 29, 2016