COURT FILE NO.: CV-19-0302-000
DATE: 2019-08-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RAINY RIVER FIRST NATIONS and NAICATCHEWENIN FIRST NATION
M. Holervich, for the Applicants
Applicants
- and -
RAINY LAKE TRIBAL RESOURCE MANAGEMENT INC., COUCHICHING FIRST NATION, MITAANJIGAMIING FIRST NATION, NIGOONSIMINIKAANING FIRST NATION, and SEINE RIVER FIRST NATION
S. Crowe, for the Respondents
Respondents
HEARD: Via Written Submissions at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Costs
Background
[1] The two applicant First Nations and the four respondent First Nations are equal shareholders of the respondent corporation, Rainy Lake Tribal Resource Management Inc. (the “Corporation”).
[2] The two applicant First Nations (“the applicants”) brought a motion to restrain the four respondent First Nations (the “respondents”) from distributing any monies from the Corporation to any of the Corporation’s shareholders, pending further order of the court.
[3] This motion was served on the respondents on June 11, 2019 and was heard on June 13, 2019.
[4] The applicants brought their motion for an order restraining the distribution of funds under the oppression provisions of s. 248 (3) of the Ontario Business Corporations Act.
[5] The applicants submitted that the three-stage test for an interlocutory injunction set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. was not applicable to a motion under s. 248 (3).
[6] I held that the circumstances of the case were not so exceptional as to warrant departing from the traditional tripartite test for an interlocutory injunction. I found that the applicants had failed to establish that they would suffer irreparable harm that could not be adequately compensated by damages. I dismissed the motion. Costs were reserved pending receipt of written submissions. Those submissions have been received and reviewed.
Submissions
[7] The respondents, as the successful parties on the motion, seek costs on a partial indemnity basis, in the amount of $2,911.50 for fees, plus HST, and disbursements of $175.56, inclusive of HST.
[8] Notwithstanding that the motion, was dismissed, the applicants submit that they should be awarded costs in bringing their motion through June 12, 2019 (the day before the hearing of the motion), and that the costs of the hearing of the motion on June 13, 2019 should be reserved to the judge hearing the s. 248 oppression application. The applicants’ Bill of Costs shows $2,905.00 for fees, on a full indemnity basis, for work done through June 12, 2019.
[9] In their cost submissions, the applicants reiterate many of their submissions made on the hearing of the motion and state that they were “entirely justified in bringing their motion.”
[10] The applicants submit that financial documents provided to them on the morning of the hearing did not include any documents which would enable an assessment of whether it was proper to distribute the monies in question from the Corporation. The applicants further submit that the respondents had failed to respond to reasonable requests for information and provided information only “at the Courtroom door.”
Discussion
[11] The respondents were entirely successful on the motion. Although Rule 57.02 of the Rules of Civil Procedure provides that the fact that a party is successful in a step in a proceeding does not prevent the court from awarding costs against the party in a proper case, there is no basis, in my view, in this case to depart from the usual standard that costs follow the event.
[12] In my reasons for my decision on the applicants’ motion, I did not accept that the applicants were justified in bringing their motion. I rejected their position that the RJR-MacDonald criteria did not apply to a s. 248 motion and I found that the applicants had not satisfied those criteria. Those are not issues that need to be revisited on this costs decision.
[13] In regard to the applicants’ complaint that the respondents only supplied certain information “at the Courtroom door”, the respondents were short-served with the applicants’ motion materials on June 11, 2019, for a hearing set by the applicants for June 13, 2019. The respondents moved with dispatch to have their information gathered and materials prepared within two days of service of the applicants’ 210-page motion record.
[14] The issue on the motion, of whether the applicants were entitled to injunctive relief, was straightforward and comprehensively argued. The question was resolved as against the applicants. There should be costs consequences for bringing the unsuccessful motion.
[15] The applicants make no submissions as to the quantum of the respondents’ Bill of Costs. The hourly rates set out for the solicitors for the respondents, on a partial indemnity basis, are $210 for counsel with 20 years’ experience and $135 for counsel with 5 years’ experience. The hourly rates are reasonable. For comparison purpose, the actual hourly rate shown in the applicants’ Bill of Costs for senior counsel is $350 which extrapolates to a partial indemnity hourly rate of $210. The total number of hours docketed by counsel and a law clerk for the respondents is 21.9 hours. The total number of hours docketed by counsel and law clerks for the applicants is 17.2 hours. The time expensed by the respective law firms is therefore roughly comparable. I do not see from the respondents’ Bill of Costs any unecessary overlap between senior and junior counsel.
[16] The partial indemnity costs claimed by the respondents are an amount that the applicants could reasonably have expected to pay as the unsuccessful parties.
[17] The assessment of party and party costs is not a mechanical exercise of calculating hourly rates and time docketed. The question is one of reasonableness and proportionality.
[18] In the circumstances of this case, I find that it is fair, reasonable, and proportional that the applicants pay to the respondents costs of this motion fixed in the amount of $2,750.00 for fees, plus HST, and $175.56 for disbursements, inclusive of HST, payable within 30 days.
“original signed by”
The Honourable Justice D. C. Shaw
Released: August 30, 2019
et al., 2019 ONSC 5101
COURT FILE NO.: CV-19-0302-000
DATE: 2019-08-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RAINY RIVER FIRST NATIONS and NAICATCHEWENIN FIRST NATION
Applicants
- and –
RAINY LAKE TRIBAL RESOURCE MANAGEMENT INC., COUCHICHING FIRST NATION, MITAANJIGAMIING FIRST NATION, NIGIGOONSIMINKIAANING FIRST NATION, and SEINE RIVER FIRST NATION
Respondents
DECISION ON COSTS
Shaw, J.
Released: August 30, 2019
/lvp