Court File and Parties

Court File No.: CV-17-175 Date: 2018 October 9 Superior Court of Justice - Ontario

Re: 9646035 Canada Limited and Six Nations Elected Council On Its Own Behalf and on Behalf of the Six Nations of the Grand River, Plaintiffs And: Kristine Jill Hill a.k.a. Kristine Jill Green, Brian Poreba, Kevin Banks, John Doe, and other Persons Unknown, Defendants

Before: The Honourable Mr. R.J. Harper

Counsel: John Mather, Brittiny Rabinovitch, Counsel for the Plaintiffs Scott C. Hutchison, Alex Smith, Counsel for the Defendants

Heard: August 23, 2017

Sentencing and Cost Endorsement

Issues

[1] Kristine Jill Hill was found to be in contempt of my Order of June 28, 2017.

[2] There was a joint submission with respect to sentencing. Commencing at paragraph 3 of my sentencing ruling dated April 6, 2018 I made the following comments:

I have considered all of the sentencing principles referred to in Boily v. Carlton Condominium Corp 2014 CarsewellOnt 10591. I am of the view that the joint submissions as to sentencing will result in a sentence that is just in the circumstances of this case. Accepting the joint submissions in no way diminishes the court’s view that it is essential that court order be obeyed. However, there is an importance balance that must be achieved.

Ms. Hill must pay the full indemnity costs for the contempt of court proceeding and the full indemnity costs for the contempt proceeding against Mr. Poreba. Although not determined at this point, these costs will be significant.

In my view, that payment by Ms. Hill will result in the requisite specific deterrence to Ms. Hill while at the same time attempting to continue to promote the process that has and will be undertaken in mediation and arbitration. And allow for the continued reconciliation of all community interests.

[3] It is material for my considerations as to the quantum of costs that the joint submissions on sentencing conceded that the amount that Ms. Hill would have to pay as her sentence for her contempt, full indemnity costs that will be significant. That is an important consideration that I must take into account. The reasonable expectations of the unsuccessful party in this case are that she would be paying a significant amount in full indemnity costs as her sentence for her contempt.

[4] I have reviewed the bill of costs submitted by the Plaintiffs. They ask for costs in the amount of $320,899.64. That amount represents the fees for time spent on the Hill contempt liability proceedings, the Hill sentencing proceedings, the Poreba contempt liability proceedings and the April 6, 2018 hearing as well as related disbursements and applicable taxes.

[5] In considering the proper amount of costs to award in the circumstances in which these costs represent the sentence imposed by the contemptuous conduct of the Defendant Hill, I have also directed my mind to the core principles in which courts must consider in the exercise of its discretion regarding costs. In exercising my discretion I must consider these principles in conjunction with the fact that these costs are her sentence for the contempt. I have considered the following:

a. In assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (*Boucher v. Public Accountants Council for the Province of Ontario*, (2004), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302).

b. In *Zesta Engineering Ltd. v. Cloutier*, [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:

[4] In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[8] Rule 57.01 of the *Courts of Justice Act* reads as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[6] Counsel for the Plaintiff submits that the actual legal fees billed to their client were reduced in the Bill of Costs by eliminating some of the staff work properly done on the file. Counsel also represent that only the work that related to the contempt proceedings were included in the Bill of Costs and no work that related to the injunction was included. I view these adjustments to the Bill of Costs as appropriate under the circumstances.

[7] I agree with the submissions of the Plaintiffs’ that this matter was complex. It also included many moving parts and each of the three contempt motions raised new issues.

[8] I find that the Defendants took steps that increased the costs of the litigation unnecessarily. They insisted on cross examining Ava Hill. This was in spite of the fact that she was not a party to the contempt proceeding and that she did not file any affidavits in the proceedings. Plaintiffs’ counsel was required to travel to Ottawa to defend the cross examination. I find that this step yielded no material evidence that assisted me in my determination.

[9] In their motion for contempt, the Plaintiffs’ placed in issue and argued the following:

a. Did Kristine Jill Hill vacate the property known as the Burtch Lands as required by paragraph 1 of the order?

b. Did Kristine Jill Hill continue to farm the Burtch land contrary to the order of June 28, 2017?

c. Did Kristine Hill fail to remove her equipment from the Burtch Lands as required by the order of June 28, 2017?

d. Did Kristine Jill Hill direct others to place locks on the main gates of the Burtch Lands and direct security guards to prevent others from entering the Burtch Lands?

e. Did Kristine Jill Hill direct other persons to prevent access to the Burtch Lands, contrary to the Order of June 28, 2017?

[10] This matter was important to the Plaintiffs. They had title to the land and were prevented from using the land as a result of the blatant disregard of the Court’s order by the Defendant.

The Plaintiff’s Bill of Costs

[11] I have reviewed the bill of costs submitted by the Plaintiffs. I am satisfied that the time spent and the hourly rates charged are within a proper range for the experience of counsel who worked on the file. I do not feel that there was any duplication of legal work that was necessary for the proper conduct of the matter that was before the court.

[12] As a result of the above considerations, I find that the costs requested by the Plaintiffs are appropriate.

[13] The Defendant shall pay to the Plaintiffs the total amount of $320,899.64.

Released: October 9, 2018 The Honourable R. J. Harper