COURT FILE NO.: 00-CV-192059
DATE: 20180412
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, 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
BEFORE: PERELL, J.
COUNSEL: E. Anthony Ross, Q.C. for the Requestor
Aminollah Sabzevari for the Attorney General of Canada
HEARD: In writing
AMENDED REASONS FOR DECISION - COSTS
1. Introduction
[1] I have determined it appropriate to amend my “Reasons for Decision – Costs”, cited as Fontaine v. Canada (Attorney General), 2018 ONSC 1156. The Initial Costs Decision arose out of an unsuccessful RFD (Request for Directions) made pursuant to the Indian Residential Schools Settlement Agreement (“IRSSA”).[^1] In the Initial Costs Decision, Canada was directed to pay $44,427.29 to the Requestor. I amend that costs award to provide that instead of being payable to the Requestor, it is payable to the Requestor’s counsel.
2. Discussion
[2] In the Initial Costs Decision, I made an award of $80,000, inclusive of HST, for the Counsel Fee and $34,427.29, inclusive of HST, for disbursements, for a total award of $114,427.29, all inclusive, on a substantial indemnity basis. Taking into account and deducting the advance costs award of $70,000 made in favour of the Requestor,[^2] a balance of $44,427.29 was left to be paid by Canada. In accord with the principle that costs awards are meant to indemnify litigants for fees they have paid to their counsel, the costs award was made payable to the Requestor, Ruth Ann Henry, née Beardy.
[3] On March 16, 2018, Aminollah Sabzevari, Canada’s counsel wrote to Mr. Ross, the Requestor’s counsel, enclosing a cheque of $44,427.29, payable to the Requestor. Canada’s counsel, Mr. Sabzevari, indicated that the cheque was provided to the Requestor’s counsel upon conditions designed to ensure that the cheque was delivered to the Requestor, failing which it was to be returned.
[4] On March 20, 2018, Mr. Ross wrote to Court Counsel and requested that the court direct that Canada reissue the cheque payable to the law firm in trust, as opposed to the client, and without any conditions.
[5] On March 21, 2018, Mr. Sabzevari wrote to Court Counsel and pointed out that as it was the Requestor’s award of costs, she may direct that the payment be issued directly to her counsel. Canada was, therefore, content that the Requestor’s counsel confirm in writing that the Requestor had been informed of her award of costs in the Initial Costs Decision and that she directed that the payment of $44,427.29 be issued directly to the law firm. Following this written confirmation and upon receipt of the initial cheque, Canada would reissue the cheque as requested by the Requestor’s counsel, without the need for any direction from the court.
[6] On April 9, 2018, Mr. Ross wrote to the court, care of Court Counsel, renewing the request that the court add an endorsement to the Initial Costs Decision directing that Canada issue and forward a new cheque for the award of $44,427.29 made payable to “E. Anthony Ross Professional Corporation in Trust” within seven (7) days of the endorsement.
[7] In response, Mr. Sabzevari reiterated the position taken on March 21 and indicated that Canada takes no further position in relation to Mr. Ross’s request for an amending endorsement.
[8] In my view, while Canada has taken the correct and principled approach based on the wording of the Initial Costs Decision and in accordance with the rule that costs belong to the litigant, the normal rule is designed to indemnify the client for a costs liability, but in the immediate case, it was never intended that the Requestor be exposed to costs and, to his credit, Mr. Ross undertook a retainer that many others had declined.
[9] In these circumstances, it is appropriate to amend the Initial Costs Decision to provide that the award be made payable by cheque to “E. Anthony Ross Professional Corporation in Trust” within thirty (30) days of Mr. Ross returning the cheque forwarded to him on March 16, 2018.
[10] Order accordingly.
Perell J.
Released: April 12, 2018
COURT FILE NO.: 00-CV-192059
DATE: 20180412
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
AMENDED REASONS FOR DECISION - COSTS
Perell, J.
Released: April 12, 2018
[^1]: Fontaine v. Canada (Attorney General), 2018 ONSC 24.
[^2]: Fontaine v. Canada (Attorney General), 2015 ONSC 7007.