COURT FILE NO.: 00-CV-192059 DATE: 20180808 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

Plaintiff - 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 ATHABASCA, 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 WESTMINSTER, 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, INSTITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYACINTHE, 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 IMMACULEE –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:

• Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada
• Stuart Wuttke and Jeremy Kolodziej, for the Assembly of First Nations
• Hugo Prud’Homme, for the Inuit Representatives
• Joanna Birenbaum, for National Centre for Truth and Reconciliation
• Diane Soroka and Sandra Staats, for Independent Counsel

Heard in Writing

PERELL, J.

ENDORSEMENT – COSTS

A. Introduction

[1] On July 4, 2018, I made a direction in connection with the notice program regarding records collected and generated for the purposes of the Independent Assessment Process (“IAP”) under the Indian Residential Schools Settlement Agreement (“IRSSA”) and the ADR process that preceded the IAP’s inception. (the “Notice Program” and “Notice Program Direction”). [1]

[2] The Notice Program Direction was made in connection with two Requests for Direction (“RFDs”; “RFD” in the singular) bought by the Chief Adjudicator of the IAP and an RFD brought earlier by the National Centre for Truth and Reconciliation (“NCTR”). [2] This endorsement follows that direction and should be read in conjunction with it.

[3] In the Notice Program Direction and accompanying order, this court: (1) established the terms of the Notice Program, including the form of the consent and the content of the notice for what was termed the “Records Disposition Notice Program” (respectively, Schedules “A” and “B” to the order); (2) made Canada responsible for funding the Notice Program and records disposition process; (3) approved the Indian Residential Schools Adjudication Secretariat (“IRSAS”) ’s cost estimate; (4) directed that Canada fund the participation in the Notice Program of the Assembly of First Nations (“AFN”), the Inuit Representatives, and the NCTR; (5) established related reporting and accounting requirements; and (6) appointed a records agent. I also confirmed earlier orders that, among other things, set the 15-year retention period for the IAP and ADR records as running from September 19, 2012 to September 19, 2027.

[4] In discussing the requirement that Canada fund the participation of the AFN, Inuit Representatives, and NCTR in the Notice Program, I recognized that their participation would be necessarily constrained by the terms of the Notice Program itself (which assigns a primary role to the Chief Adjudicator and the IRSAS) [3] but stated:

[31] … The goal of creating a historical record and ensuring the legacy of the Indian Residential School system is preserved and made accessible to the public for future study and use is an important one. For that reason, I have concluded that the while the default must remain destruction of these records, the Notice Program must be sufficiently robust to allow for IAP claimants to make informed choices about what should happen to their records. A robust notice program requires the funded participation of the NCTR.

[33] Ensuring the effectiveness of the Notice Program is an important aspect of the IRSSA’s administration. It involves striking an appropriate balance between the competing goals of respecting the privacy rights of individual abuse survivors and the collective interest in commemorating and memorializing the Indian Residential Schools legacy. It cannot be regarded as unrelated or somehow peripheral to the IRSSA or its implementation. To the contrary, this is one of the core responsibilities of the nine courts that approved the IRSSA and continue now, more than a decade later, to administer it. Accepting this responsibility honours the parties’ express intention to promote healing, education, truth and reconciliation and commemoration.

[34] The goal of creating a historical record and ensuring the legacy of the Indian Residential School system is preserved and made accessible to the public for future study and use is also important. For that reason, I have concluded that the while the default must always remain destruction of these records, the Notice Program must be sufficiently robust to allow for IAP claimants to make informed choices about what should happen to their records.

[35] The AFN and Inuit Representatives are signatories to the IRSSA. I am satisfied that they possess specialized expertise and credibility within Indigenous communities that can be put to work to optimize the Notice Program’s effectiveness.

[36] Overall, I am satisfied that with the involvement of the AFN, the Inuit Representatives and the NCTR, the Records Disposition Notice Program achieves the important objective of providing IAP and ADR claimants with the information essential to the choice that is theirs to make.

[5] As is reflected in paragraph 21 of the order appended to the Notice Program Direction, RFD participants seeking costs were given thirty (30) days from May 23, 2018 in which to serve and file costs submissions, following which Canada was given thirty (30) days in which to serve and file its responding submissions.

[6] The AFN, Inuit Representatives, NCTR and Independent Counsel have sought full indemnity costs totalling approximately $449,000.00. Each of them seeks costs incurred in attending meetings relating to what evolved to become the Notice Program before the Chief Adjudicator brought his RFDs. Canada has filed responding submissions. I have now reviewed those submissions.

[7] My determinations of the claims for costs are set out and explained below. However, I turn first to the participants’ submissions.

B. Participants’ Positions

AFN

[8] The AFN seeks $97,251.34 on a full indemnity basis and $63,213.37 on a substantial indemnity basis. Its claim for costs includes legal fees of $81,340.00 (290.5 hours at $280/hr. regardless of the differing years of call of Mr. Wuttke and Mr. Kolodziej) and disbursements of $15,911.34.

[9] Included in the AFN’s costs request are fees and disbursements incurred at the pre-litigation stage, in connection with meetings held before the Chief Adjudicator’s RFDs were instituted. The AFN’s counsel (who are based in Ottawa) participated in meetings on November 25, 2016 (Vancouver), March 30, 2017 (Vancouver), May 1, 2017 (Winnipeg), September 13, 2017 (Vancouver) and October 27, 2017 (Winnipeg), as well as the counsel meetings convened by Court Counsel on April 23 and May 22-23 and the court attendances on April 24 and May 23, 2018. The AFN also seeks costs for its counsel’s participation in what appears to have been a teleconference in May, 2016. Of the $97,251.34 claimed by the AFN, roughly one-half, or $49,740.57 relates to pre-litigation activity.

[10] In the AFN’s claim for costs, more than one-third of the time charged (106.5 of 290.5 hours) was spent on “Review of Notice Plan products; drafting revisions to Notice Plan products; review of correspondence; & research” and “Drafting affidavit of P. Tremblay, legal research, drafting factum and submissions, review of party’s (sic) submissions, exchange of materials & communication with client”. There is no reduction in the hourly rate charged for travel time.

[11] In its submissions concerning the court’s jurisdiction to award costs in connection with an RFD, the AFN cites section 131 of the Courts of Justice Act, rule 57.01 of the Rules of Civil Procedure and this court’s costs decision following its decision in what has been referred to elsewhere as “St. Anne’s RFD-1”. [5] In that costs decision, the court referred to the IRSSA as “special”, and as providing “a plenary jurisdiction to do what is right and fair given the diverse purposes of the IRSSA, some of which pull in different directions”. [6] This entails that in making costs awards, the court is not required to adhere to the usual principles regarding partial and substantial indemnity awards. [7]

[12] The AFN submits that the costs it claims were “reasonably necessary” and “fair and reasonable”. The AFN takes the position that it was invited to participate in the Notice Program’s development, its participation was essential to the creation of a balanced notice plan, and also that the IRSSA was not being adhered to, and IAP claimants were not being advised of their options to archive their records. The AFN submitted that it has an interest in the IRSSA’s full implementation and has been concerned that IAP claimants were not being advised of their ability to archive their records with the Truth and Reconciliation Commission and/or the NCTR. According to the AFN, the failure to communicate notice of the options available to IAP claimants rested on those parties who were involved in the administration of the IAP, in which the AFN has no official role. [8]

[13] Further, the AFN takes the position that although Canada did not bring any of the three RFDs, Canada should nonetheless be required to pay costs. It refers to the fact that Canada did not play an active role in the first four pre-litigation meetings and that Canada only began making concrete proposals at the last one, on October 27, 2017 (i.e., three weeks after dismissal of Canada’s appeal to the Supreme Court of Canada [9]). The AFN submits that while it made substantial efforts to attempt to reduce potential costs, Canada’s silence for a significant period of time hindered early resolution of the issues.

Inuit Representatives

[14] The Inuit Representatives seek $70,180.27 on a full indemnity basis or “any amount that in the opinion of the Court, is appropriate in the circumstances”. Their request for costs is for the legal fees and disbursements paid to their counsel in relation to the Notice Program’s development, from the date they participated in the Chief Adjudicator’s first all-party meeting on November 25, 2016 until the conclusion of the RFD hearing on May 23, 2018.

[15] The Inuit Representatives do not provide details regarding specific activities billed, and so it is impossible to distinguish fees and expenses incurred at the pre-litigation stage from those incurred after January 15, 2018, when the Chief Adjudicator initiated his RFDs.

[16] The Inuit Representatives do not claim reimbursement for legal fees or disbursements paid to their in-house legal counsel, or for the costs associated with their officers’ and employees’ involvement in the Notice Program’s development. They assert that their contribution was essential, as no other RFD participant represented Inuit IAP claimants.

[17] The Inuit Representatives adopt the AFN’s submissions regarding jurisdiction to award costs and the approach to awarding costs arising from an RFD.

[18] Like the AFN, the Inuit Representatives claim costs against Canada. The Inuit Representatives assert that when its legal counsel asked the Chief Adjudicator if their expenses would be reimbursed, the Chief Adjudicator directed the Inuit Representatives to Canada’s representative, who indicated that Canada was only attending the pre-litigation meetings as an observer but advised the Inuit Representatives to keep track of expenses. The Inuit Representatives submit that Canada placed them in an unfortunate situation in that they had to decide to participate in the development of the Notice Program without knowing whether their legal expenses and disbursements would be paid by Canada. Subsequent inquiries directed to Canada about expenses – including one at the last pre-litigation meeting on October 27, 2017 – were left unanswered. It was only on April 23, 2018, in the first of the two meetings convened by Court Counsel, that Canada advised that it had no intention to cover the Inuit Representatives’ expenses.

[19] The Inuit Representatives contend that they had a reasonable basis to believe that Canada would reimburse them for reasonable legal fees and disbursements. In this respect they point to (1) reimbursement of legal fees and disbursements for negotiating the Agreement-in-Principle and the IRSSA itself in 2005-2006, (2) the budget provided for participation in the National Administration Committee and the IAP Oversight Committee, (3) the budget approved to pay for the services of an expert in Inuit education for the purposes of the Personal Credits program, and (4) a consent order of Justice Brenda Brown that compensated the Inuit Representatives for negotiating terms and conditions for transfer of a portion of the Designated Amount Fund to the Inuvialuit Education Foundation. I note, however, that each of those items was negotiated.

[20] The Inuit Representatives assert that had Canada actively participated earlier on in the Notice Program’s development, as it did in the counsel meetings held on April 23 and May 22-23, 2018, a compromise would have been reached sooner on most of the Notice Program’s elements. They assert that this would have saved time and money of all of the parties involved.

NCTR

[21] The NCTR seeks $142,561.37 on a full indemnity basis and submits in the alternative that “if the Court is not inclined to award full indemnity costs, “any substantial or partial indemnity award to the NCTR (should) account for the legal fees of counsel, which are already more consistent with a partial indemnity rate.” The NCTR also submits that it would be fair and appropriate to pay an additional $25,000.00 in respect of work toward the Notice Program’s development undertaken by its own staff and employees of the University of Manitoba, which hosts the NCTR. Alternatively, the NCTR submits that these additional costs should be a factor weighing in favour of awarding the NCTR costs on a full indemnity basis.

[22] The amount the NCTR seeks includes legal fees (336.7 hours at $275/hr. = $92,592.50, plus 5% GST = $97,222.13), disbursements of $33,791.08 ($24,317.25 of which was for NCTR personnel’s and survivors’ circle representatives’ attendance) and expert fees inclusive of disbursements ($11,548.16).

[23] The NCTR’s counsel attended the meetings of November 25, 2016 (Vancouver), March 30, 2017 (Vancouver), May 1, 2017 (Winnipeg), September 12-13 (Vancouver) and October 27, 2017 (Winnipeg) and also met with the AFN and Inuit Representatives on September 25 and October 18, 2017 (both in Ottawa). Of the $142,561.37 sought by the NCTR, $48,467.68 relates to pre-litigation activity.

[24] The NCTR asserts that it is seeking to implement and enforce the IRSSA and that it stands in the shoes of the Truth and Reconciliation Commission, which this court has held should be fully indemnified for its costs because the funds allocated under the IRSSA for the Commission’s work should not be diluted by the expense of enforcing the obligations that Canada undertook under the IRSSA but failed to fulfill.

[25] Central to the NCTR’s claim for costs is the assertion that it has a mandate to enforce the IRSSA’s Schedule D, Item O(ii), which provides that transcripts of IAP hearings will be prepared for the purposes of report writing by adjudicators and for review decision preparation, or for memorialization, and that claimants will also be given the option of having the transcript deposited in an archive developed for the purpose.

[26] The NCTR submits that it should not bear the costs of implementation of the IRSSA and should be reimbursed for its useful and necessary contributions. The NCTR points to this court’s costs decision following the decision in St. Anne’s RFD-1 [10] as authority for the proposition that it should be awarded costs on a full indemnity basis.

Independent Counsel

[27] Independent Counsel seeks $114,033.65 on a full indemnity basis or $77,878.65 on a substantial indemnity basis. This includes compensation for 264 hours of work by two senior counsel, one of whom attended the first three of the pre-litigation meetings (i.e., those of November 25, 2016, March 30, 2017 and May 1, 2017). Of the amount claimed by Independent Counsel, $50,281.96 relates to pre-litigation activity.

[28] Like the AFN, Independent Counsel rely on section 131 of the Courts of Justice Act, rule 57.01 of the Rules of Civil Procedure and this court’s decision in St. Anne’s RFD-1 and the costs decision arising from it. However, Independent Counsel goes farther. It submits that it was the only RFD participant who spoke on behalf of individual IAP claimants and that beyond the unique and extraordinary circumstances of the IRSSA, the position of Independent Counsel at a hearing is as a public interest litigant.

Chief Adjudicator

[29] Although he was the Requestor and a key participant in the Notice Program RFD and the related RFD concerning the disposition of IAP and ADR records, the Chief Adjudicator did not seek costs and made no submissions in relation to the costs requests made by the AFN, Inuit Representatives, NCTR and Independent Counsel. I note that counsel for the Chief Adjudicator was served with submissions and related materials of those requesting costs, as well as Canada’s responding submissions and brief of authorities.

Canada

[30] Canada takes the position that it is not an appropriate costs payor. It points to the court’s costs decision following the making of the In Rem Order, where costs were awarded against the Truth and Reconciliation Commission (which had been the Requestor in relation to that RFD) [11] and the subsequent decision in which the court declined to order costs against Canada, noting that “the submissions (of Independent Counsel) provided no intelligible justification for awarding costs against Canada.” [12]

[31] In Canada’s submission, it was the Chief Adjudicator who brought the RFDs and the NCTR that primarily opposed them. Canada also distinguishes the court’s decision in St. Anne’s RFD-1 Costs [13] on the basis that in that case, Canada was an unsuccessful respondent, whereas in the present case, it was successful. Its position on the RFDs was one of general agreement with the Notice Program and records disposition process proposed by the Chief Adjudicator. Canada invokes the proposition that as a general rule, a successful party may expect to receive an award of costs and, as a corollary, should not be expected to pay the costs of an unsuccessful party. [14]

[32] Canada denies engaging in any problematic conduct that might attract costs liability and submits that if a costs award against Canada were premised on Canada’s status as a defendant, such an award would constitute an impermissible amendment to the IRSSA by materially increasing its burden.

[33] In any event, Canada submits that the costs claimed are unreasonable. Canada advances several bases for this position. First, Canada submits that the pre-litigation meetings did not occur in the context of litigation and that those claiming costs participated in them voluntarily. Second, after the Chief Adjudicator brought the RFDs, those now requesting costs participated voluntarily in proceedings where no relief was sought against any of them and Canada submits that their litigation responses were disproportionate. Third, counsel fees should be fixed in accordance with the guidance provided in the Notice to the Profession issued by the Civil Rules Committee’s Costs Subcommittee on July 1, 2005, which caps hourly rates for counsel based on number of years at the bar. [15]

[34] On the subject of proportionality, Canada points out that the groundwork for the litigation was primarily done by the Chief Adjudicator, and that those requesting costs were largely content with the notice plan and records disposition regime that the Chief Adjudicator proposed. In that light, and taking into account the background of counsel involved in litigation relating to the IRSSA and its administration, Canada submits that the amount of time and resources dedicated to providing feedback to the Chief Adjudicator seem excessive.

[35] In addition, Canada characterizes the NCTR’s approach to the RFDs as overly litigious and contends that many of the issues in dispute were demonstrably linked to the NCTR’s disagreement with the Chief Adjudicator.

[36] Canada further submits that no RFD participant has provided a reasoned basis for awarding costs on a full indemnity basis, arguing that no offer to settle was made pursuant to the Rules of Civil Procedure and that RFD participant’s conduct was sufficiently scandalous or reprehensible to justify making such an order against it.

[37] While maintaining that no costs award should be made against it, Canada submitted that once the pre-litigation activities are excluded and the governing principles are applied (including the partial indemnity scale), fair and reasonable costs awards would be as follows:

• AFN: up to $12,228.91, consisting of $9,056.25 for fixed counsel fees during the litigation, plus $3,172.66 for disbursements during litigation, representing 60% of the claimed full indemnity costs of $5,287.77;
• Inuit Representatives: up to $9,834.67, consisting of $9,056.25 for fixed counsel fees during the litigation, plus $778.42 for disbursements during litigation, representing 60% of the full indemnity disbursements claimed at $1,297.37;
• NCTR: either a nil award or up to $9,056.25, comprised of that amount for fixed counsel fees during the litigation, and nothing for the $48,467.68 claimed for pre-litigation activity, the $25,000.00 claimed for work undertaken by staff of the NCTR and the University of Manitoba, the $11,548.16 claimed for expert reports or for disbursements; and
• Independent Counsel: up to $14,782.26, consisting of $9,056.25 for fixed counsel fees during litigation and $5,726.01 for disbursements during litigation, representing 60% of the full indemnity costs claimed of $9,543.36.

Summary of Participants’ Positions

[38] The costs claims of the AFN, Inuit Representatives, NCTR and Independent Counsel and Canada’s position in relation to them can be summarized as follows:

Participant	Primary Position	Alternative Position	Canada’s Position
AFN	$97,251.34 [F]	$63,213.37 [S]	Up to $12,228.91
Inuit Representatives	$70,180.27 [F]	“any amount that in the opinion of the Court, is appropriate in the circumstances”	Up to $9,834.67
NCTR	$142,561.37 [F], plus $25,000.00 = $167,561.37	“any substantial or partial indemnity award to the NCTR [should] account for the legal fees of counsel” i.e., $92,592.50 plus 5% GST = $97.222.13	Nil award, or up to $9,056.25
Independent Counsel	$114,033.65 [F]	$77,878.65 [S]	Up to $14,782.26

Note : [F] and [S] signify full indemnity and substantial indemnity, respectively.

C. Analysis

Jurisdiction

[39] The court’s general jurisdiction to award costs is well known. It is derived from the court’s inherent jurisdiction, as well as statute and rules of court.

[40] Beyond that general jurisdiction, the IRSSA provides a special context. When exercising the power to award costs as a supervising judge overseeing the IRSSA’s administration, the court has a plenary jurisdiction. The court has previously adverted to the many purposes underlying the IRSSA as informing what it termed a “special and unique jurisdiction” in relation to costs awards:

[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. [16]

[41] I conclude that the court has jurisdiction to make costs awards in favour of the AFN, Inuit Representatives, NCTR and Independent Counsel. I also note that the RFDs and the direction made in the immediate case are in a large sense an extension of a highly contentious RFD that culminated in a hearing before the Supreme Court of Canada. The question remains, however, whether the court ought to exercise that jurisdiction, and if so, the amount of any award(s) it should make.

Applicable Principles – Costs Awards in the IRSSA’s Administration

[42] A recent decision of Justice Brown, the Western Administrative Judge and my colleague in the IRSSA’s administration, provides a useful starting point in the analysis. In disposing of the costs issue following her determination of the issue of whether the administrative law doctrine of procedural fairness could be used as a basis for re-opening decided IAP claims, Justice Brown wrote as follows:

[107] I would make no order as 0to costs. Costs awards by this court in RFD proceedings should be rare, and are reserved for the clearest of cases. This is not such a case. The public interest was not engaged in this RFD to the same extent that it was in the litigation involving the retention or destruction of IAP records, where the Supreme Court of Canada made a costs order in favour of Independent Counsel. In my view, those who chose to respond to Canada’s RFD did so on a voluntary basis in accordance with their own interests, and in the case of the St. Anne’s IAP Claimants, their interests were not at stake. They objected to Canada so much as using their cases to illustrate its point. In all of the circumstances, it would be inappropriate to require Canada to underwrite the cost of their participation.

[43] I accept, as Justice Brown did that the issues relating to the retention or destruction of IAP (and ADR) records – and therefore, those raised in the Chief Adjudicator’s RFDs – engaged the public interest to a degree warranting the making of costs awards. However, I also take Justice Brown’s point that where RFD participants choose to respond on a voluntary basis, it is useful to scrutinize their motives.

[44] If a costs award is to be made in the special context of the IRSSA’s administration, the court is guided but not governed by the jurisprudence that regards a partial indemnity as normative and a substantial indemnity award as punitive. [17] There may be other reasons to justify an award of substantial or full indemnity costs. [18] In fact, the court is not constrained by the general principles regarding full, substantial, and partial indemnity awards.

[45] Subrule 57.07(1) of the Rules of Civil Procedure sets out factors that a court may consider in exercising its discretion to award costs. Among them are the principle of indemnity, the parties’ reasonable expectations, the amount sought and recovered in the proceeding, the complexity of the proceeding, the importance of the issues, and any conduct that tended to shorten or unnecessarily lengthen the process. Subrule 57.01(2) of the Rules of Civil Procedure provides that in an appropriate case, a party’s success does not prevent the court from awarding costs against that party.

[46] In some respects, success in relation to these RFDs is difficult to quantify. While success of requests for funding to participate in the Notice Program is easily assessed, the extent to which a particular party’s views prevailed in relation to the consent form (Appendix “A” to the Court’s Order) or the Records Disposition Notice Program (Schedule “B” to the Order) is not measurable.

[47] In a sense, the success of the AFN, the Inuit Representatives and the NCTR on the RFDs can be described as mixed. Each sought an amount of funding from Canada that was substantially higher than was ultimately awarded by the court. Nonetheless, a funding award was made in favour of each of them:

• The AFN sought funding in the amount of $995,194 for its participation in the Notice Program. Canada offered to pay up to $504,000. In my direction, I awarded the AFN $569,810, and gave the AFN leave to return to court after August 31, 2019 in the event that the ordered funding was inadequate;
• The Inuit Representatives sought $588,067 for their participation. Canada offered to pay up to $460,000. In the direction, I described Canada’s offer as “more generous than the evidence warrants” and directed funding in the amount of $318,290.50. Nonetheless, the Inuit Representatives were given leave to return to court should that amount be inadequate; and
• The NCTR sought $465,899.50 in funding for its participation in the Notice Program. Canada made no offer and pointed to a $10 million gift made to the NCTR in early 2018 for core funding. The court awarded funding in the amount of $205,431.40. The NCTR was not given leave to return to court to seek more funding.

Is Independent Counsel a Public Interest Litigant?

[48] Independent Counsel claims to occupy the position of a public interest litigant. The title, “Independent Counsel” suggests a special status, one that is impartial and further, that the involvement of this entity is essential to fully informed and fair adjudication. It is true that this court, [19] the Court of Appeal, and the Supreme Court of Canada [20] have made costs awards in Independent Counsel’s favour. But fundamentally, Independent Counsel remains one of the three plaintiffs’ counsel groups that are signatories to the IRSSA, the others being the National Consortium and the Merchant Law Group. That is how the term is defined in the IRSSA. [21] In other words, Independent Counsel comprises one of three groups that together are essentially the successors of class counsel.

[49] I note that at the hearing concerning the IRSSA’s approval in this jurisdiction, Independent Counsel was described by Winkler R.S.J. as “the independent or unaffiliated counsel”. [22] That was an apt description. The members of the Independent Counsel group were and are independent from and unaffiliated with the National Consortium and the Merchant Law Group.

[50] It is important that the Supervising Judges and their respective appellate courts understand that despite the name they have assumed, Independent Counsel is not by the force of that name alone akin to a lawyer whose role is to provide impartial advice to tribunals and courts. It follows that despite having been accorded amicus curiae-like status occasionally in the past, [23] Independent Counsel should not expect to be treated as such.

[51] Put differently, while as a signatory to the IRSSA, Independent Counsel has certain rights of notice and participation in RFDs, Independent Counsel should not expect its involvement in those RFDs to be underwritten at taxpayers’ expense. In some cases, it may be appropriate to reward Independent Counsel’s involvement. In others, it may be appropriate to treat Independent Counsel as an officious intermeddler and to deny costs altogether, or to award costs against Independent Counsel. These determinations must be made on a case-by-case basis.

[52] At the hearing of these RFDs, Independent Counsel asserted that in their involvement in the meetings convened by the Chief Adjudicator and in connection with the RFDs, its members had been acting pro bono. That assertion is difficult to reconcile with Independent Counsel’s request to be paid more than $114,000. Used in its normal sense, pro bono or the more complete term, pro bono publico (“for the public good”) refers to professional work undertaken voluntarily and without payment or the expectation of payment. It does not refer to professional work undertaken with the expectation of payment by someone other than counsel’s own client.

Should the Court Make Costs Awards Against Canada?

[53] Fundamentally, each of the RFD participants claiming costs asserts that Canada is the appropriate costs payor. Canada denies that it is an appropriate costs payor. Canada denies engaging in any conduct that should attract a costs award against it.

[54] The AFN and the Inuit Representatives complain about Canada’s conduct pre-dating the Chief Adjudicator’s initiation of the RFDs. It is apparent that Canada adopted observer status at the first four pre-litigation meetings, and only became an active participant at the last meeting, on October 27, 2017. In my view, however, in itself Canada’s conduct at the pre-litigation stage affords no basis for making a costs order against it, and in fact, any finding of misconduct on Canada’s part in that respect would amount to distorting the record.

[55] Canada was entitled to adopt observer status until the Supreme Court of Canada rendered its decision on October 6, 2017 in relation to the issues pertaining to the retention or destruction of the IAP and ADR records. Canada was the appellant, and was entitled to maintain (as it did) that those records were “under the control of a government institution” within the meaning of the Library and Archives of Canada Act and other relevant federal legislation, and that this precluded the making of the In Rem Order. Canada has already been met with costs orders for maintaining that position, the most recent of which is the Supreme Court of Canada’s costs award in favour of Independent Counsel.

[56] In my view, the better position is that Canada is an appropriate costs payor, but that this results from its position as administrator of the IRSSA rather than from to any misconduct on Canada’s part in the Notice Program’s formulation, either in the pre-litigation stage or in connection with the RFDs. In the Notice Program Direction, I described the role of the Notice Program in the IRSSA’s administration this way:

[33] Ensuring the effectiveness of the Notice Program is an important aspect of the IRSSA’s administration. It involves striking an appropriate balance between the competing goals of respecting the privacy rights of individual abuse survivors and the collective interest in commemorating and memorializing the Indian Residential Schools legacy. It cannot be regarded as unrelated or somehow peripheral to the IRSSA or its implementation. To the contrary, this is one of the core responsibilities of the nine courts that approved the IRSSA and continue now, more than a decade later, to administer it. Accepting this responsibility honours the parties’ express intention to promote healing, education, truth and reconciliation and commemoration. [24]

[57] Canada suggests that it was not unsuccessful in the RFDs; i.e., that it cannot be characterized as being the loser, and that there is precedent for Canada not bearing costs liability where it was a co-respondent. In that respect, Canada points to the court’s decisions after the making of the In Rem Order, in which the court declined to make a costs order against Canada, instead awarding an all inclusive amount of $35,000.00 in Independent Counsel’s favour payable by the Truth and Reconciliation Commission. [25]

[58] However, while it may be tempting to make costs awards payable by the Chief Adjudicator on the basis that he was the Requestor in relation to the RFDs, it must be recalled that ultimately, any such costs award would be paid by Canada.

[59] In any event, I conclude that there is both jurisdiction and a justification to make Canada the payor of costs in the immediate case notwithstanding that Canada was, to use its double-negative description, not unsuccessful in the RFDs.

Are the Amounts Claimed Reasonable?

[60] The AFN, Inuit Representatives, NCTR and Independent Counsel all seek costs referable to a time prior to the inception of the Chief Adjudicator’s RFDs, that is, in relation to events before January 15, 2018. The court must assess the reasonableness of their claims for reimbursement of counsel fees and disbursements at the pre-litigation stage.

[61] In determining whether those claiming costs had any reasonable expectation of reimbursement for their participation in the development of the Notice Program at the pre-litigation stage, it is useful to refer to the email sent on the Chief Adjudicator’s behalf, in anticipation of the first meeting in Vancouver on November 25, 2016. It is dated October 12, 2016 and reads as follows:

Invitation to attend a meeting to discuss Enhanced Notice Program – IAP Records

The Chief Adjudicator would very much appreciate the opportunity to gather further input from the parties who participated in the Ontario Court of Appeal disposition of records case, regarding the development of the Enhanced Notice Program.

You [or alternatively such other representative of your client(s) as you may advise us of] are therefore invited to participate in an in-person meeting to gather your client’s perspectives and suggestions regarding the notice program that is to be developed to bring to the court for approval. Undoubtedly, the Supervising Judge will appreciate efforts to maximize areas of potential consensus and minimize areas of potential disagreement.

The Chief Adjudicator fully realizes that the Supreme Court of Canada has not yet ruled on Canada’s leave application. However, if the Supreme Court dismisses the application, the Chief Adjudicator wishes to be ready to proceed with an RFD. If the Supreme Court allows the application, barring a successful stay application, it is the Chief Adjudicator’s intention to proceed with the Enhanced Notice Program RFD, while recognizing that the Supervising Judge will not be able to conclude his decision in the matter until such time as the Supreme Court of Canada has ruled.

The in-person meeting will be held at [the location was provided and subsequently changed]. Arrangements will be made for those unable to attend in person, who wish to attend by teleconference, to do so.

More information, documents and a draft agenda, to which additions will be welcome, will follow over the next weeks leading up to the meeting. Please note that while the Chief Adjudicator will be supplying the meeting facilities, travel and accommodation will be the responsibility of each participating party. (emphasis added)

[62] I do not accept that that AFN, Inuit Representatives, NCTR and Independent Counsel had any reasonable expectation of reimbursement for their participation in the development of the Notice Program at the pre-litigation stage. No representation was made by Canada or anyone else that Canada would fund invitees’ participation in the pre-litigation meetings. In the absence of such commitment, there is no basis for including costs incurred during the pre-litigation stage in any award, and I decline to make such an award. It may be true that Canada’s non-committal approach put the Inuit Representatives and perhaps the AFN in an unfortunate situation, but with the awareness that there was no commitment from Canada to fund their participation, they both continued to participate in the pre-litigation meetings.

[63] As a result, only costs incurred after the Chief Adjudicator initiated the RFDs on January 15, 2018 are eligible for consideration. I consider the following amounts to be so eligible:

• AFN: $47,351.77 (comprised of legal fees of $42,064.00, plus disbursements of $5,287.77);
• Inuit Representatives: $36,884.37 (comprised of legal fees of $35,587.00, plus disbursements of $1,297.37);
• NCTR: $67,749l.69 (comprised of legal fees $52,057.50 plus 5% GST = $54,660.38, plus disbursements of $1,541.15, plus expert fees and disbursements of $11,548.16); [26]
• Independent Counsel: $54,934.37 (comprised of $47,400.00 legal fees, including travel time, [27] plus disbursements of $7,534.37)

[64] Once a proportionality analysis is performed, it can be seen that the amounts claimed by the NCTR and Independent Counsel are excessive. As Canada observed in its submissions, the primary conflict in the determination of the RFDs was between the Chief Adjudicator – who had been given the task of conducting the Notice Program – and the NCTR, which included challenges to the wording of the consent form and a dispute between their experts. Overall, the NCTR’s approach to the RFDs was unduly litigious. Independent Counsel was represented by two senior counsel. That was unnecessary, and out of proportion with Independent Counsel’s contribution to the resolution of the RFDs.

[65] Beyond the proportionality analysis, it would not be reasonable and fair to require Canada to pay full indemnity costs. They are beyond the reasonable expectations of any payor.

D. Conclusion

[66] For the reasons set out above, and taking into account all of the usual factors associated with a partial indemnity scale award, and with my knowledge of the contribution of the parties to the resolution of the RFDs, I conclude that the following costs award are fair and reasonable and make each of them payable by Canada and all inclusive of counsel fee, disbursements, and applicable taxes:

• AFN: $35,000.00;
• Inuit Representatives: $25,000.00;
• NCTR: $25,000.00; and
• Independent Counsel: $25,000.00.

PERELL J.

Released: August 8, 2018

COURT FILE NO.: 00-CV-192059 DATE: 20180808 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

ENDORSEMENT – COSTS

Perell, J.

Released: August 8, 2018

[1] Fontaine v. Canada, 2018 ONSC 4179 (“Noticed Program Direction”).

[2] The Chief Adjudicator’s RFD were brought on January 15, 2018. One of the Chief Adjudicator’s RFD related to the notice plan for IAP and Alternative Dispute Resolution (“ADR”) claimants; the other concerned a disposition process for IAP and ADR documents. The NCTR’s RFD was brought much earlier, on December 23, 2014, when it was thought that the Truth and Reconciliation Commission and NCTR should conduct the Notice Program. As narrated in the Notice Program Direction at paras. 13, 14 and 16, a majority of the Court of Appeal held that the Notice Program should instead be conducted by the Chief Adjudicator and that decision was upheld by the Supreme Court of Canada. Consequently, the Notice Program Direction was primarily if not exclusively concerned with the Chief Adjudicator’s RFD.

[3] Notice Program Direction, at paras. 39-40.

[4] R.S.O. 1990, Chap. C.43.

[5] Fontaine v. Canada (Attorney General), 2014 ONSC 3059 (“St. Anne’s RFD-1 Costs”).

[6] Ibid., para. 32.

[7] Ibid., para. 33.

[8] It should be noted, however, that the AFN is represented on the National Administration Committee, which has a broad mandate in relation to the IRSSA’s administration that includes the IAP: see IRSSA, section 4.11(12) and Schedule “D”, III r iii (p. 16).

[9] Canada (Attorney General) v. Fontaine, 2017 SCC 47.

[10] Fontaine v. Canada (Attorney General), 2014 ONSC 3059 at paras. 41-42.

[11] Fontaine v. Canada (Attorney General), 2014 ONSC 5292. The court awarded Independent Counsel $35,000, all inclusive of counsel fee, disbursements, and applicable taxes.

[12] Fontaine v. Canada (Attorney General), 2014 ONSC 5474, at para. 10.

[13] Supra, note 5.

[14] Mark M. Orkin, The Law of Costs, 2nd ed. (Toronto: Thompson Reuters Canada, 2018) (loose-leaf updated May 2018, release 75), Volume I, ch. 2 at s. 205.2, p. 64.23.

[15] Ontario, Superior Court of Justice, Civil Rules Committee, Costs Subcommittee, “Appendix B – Notice to the Profession”, 1 July 2005, online: http://www.ontariocourts.ca/coa/en/archives/costs/appendixb.pdf.

[16] Fontaine v. Canada (Attorney General), 2014 ONSC 3059 at paras. 11, 12.

[17] Fontaine v. Canada (Attorney General), 2014 ONSC 283 at para. 249.

[18] Ibid.

[19] Fontaine v. Canada (Attorney General), 2014 ONSC 5292. There, Independent Counsel sought a similar costs award to what is being sought here: $117,403.82 on a full indemnity basis and $76,312.48 on a substantial indemnity basis. The court awarded partial indemnity costs of $35,000, all inclusive, payable by the Truth and Reconciliation Commission, which had been the requestor in relation to that RFD.

[20] Canada (Attorney General) v. Fontaine, 2017 SCC 47 at para. 64.

[21] IRSSA Section 1.01 provides as follows: “’Independent Counsel’ means Plaintiffs’ Legal Counsel who have signed this Agreement, excluding Legal Counsel who have signed this Agreement in their capacity as counsel for the Assembly of First Nations or for the Inuit Representatives or Counsel who are members of the Merchant Law Group or 14 members of any of the firms who are members of the National Consortium”.

[22] Baxter v. Canada (Attorney General) at para. 54.

[23] Fontaine v. Canada (Attorney General), 2014 ONSC 5292 at para. 16:“[P]ractically speaking, Independent Counsel played the role of an amicus curiae and spoke up for the IAP Claimants. I found the affidavit evidence and the argument provided by Independent Counsel to be very helpful. I also appreciated that Independent Counsel’s involvement was largely if not totally altruistic.”

[24] Notice Program Direction, para. 33.

[25] See supra, notes 11 and 12.

[26] I have excluded from consideration the NCTR’s claim for NCTR staff and Survivor’s Circle travel and accommodation ($24,317.25) as this was incurred mainly if not exclusively in the pre-litigation stage and its request for an additional $25,000.00 to compensate for NCTR and University of Manitoba staff time spent in connection with the Notice Program’s formulation. As noted in the Notice Program Direction at para. 56, in February 2018, Canada gifted the NCTR $10M for core funding.

[27] This takes into account corrected amounts for Ms. Soroka’s and Ms. Staats’ attendance at the second counsel meeting and court hearing on May 22-23, 2018. Independent Counsel’s submissions gave incorrect amounts for 16 hours for each of Ms. Soroka’s and Ms. Staats’ hourly rates, overstating those amounts in both instances.