COURT FILE NO.: 00-CV-192059
DATE: 2019/01/21
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 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
COUNSEL:
▪ Lawrence Greenspon for Fay Brunning
▪ Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada
PERELL, J.
COSTS ENDORSEMENT
A. Introduction
[1] I make the costs award set out in this endorsement in my role as Eastern Administrative Judge and Ontario Supervising Judge for the purposes of the Indian Residential Schools Settlement Agreement (the “IRSSA”).
[2] In Fontaine v. Canada (Attorney General), 2018 ONSC 4182, I declined to recuse myself from deciding whether a costs award should be made in connection with the determination of two Requests for Directions (“RFDs”).[^1] For those RFDs, Canada was seeking costs against the Requestor’s counsel, Faye Brunning, personally. Mr. Brunning retained counsel, Lawrence Greenspon, and moved to have me recuse myself from deciding Canada’s claim for costs.
[3] On the recusal motion, it was submitted on Ms. Brunning’s behalf that my Direction of January 15, 2018[^2] raised the reasonable apprehension that I was biased against her in deciding the matter of costs. I concluded that on the basis of the governing legal test, a reasonable apprehension of bias had not been shown to exist, and, therefore, I dismissed the recusal motion. In addition, I held that Canada was entitled to costs incurred in relation to the recusal motion, if requested.[^3]
[4] On the same day that Fontaine v. Canada (Attorney General), 2018 ONSC 4182 was released, I released my decision regarding Canada’s request for costs against Ms. Brunning personally. I awarded Canada the sum of $25,000, payable by Ms. Brunning personally.[^4]
[5] Canada subsequently sought costs in relation to the recusal motion, and the amount Canada sought was not challenged by counsel for Ms. Brunning; i.e., she did not file responding costs submissions.
[6] For the reasons that follow, I award Canada the sum of $28,911.04 in costs.
B. Canada’s Bill of Costs
[7] In its bill of costs, dated October 29, 2018, Canada sought a total of $28,911.04, on a partial indemnity basis for the recusal motion. This consisted of fees of $25,050.00 and related HST of $3,256.50, and disbursements totalling $604.54.
[8] I did not receive any responding costs submissions from Ms. Brunning, and, at my direction, Court Counsel emailed Mr. Greenspon on January 14, 2019, indicating that the court had received Canada’s bill of costs but had not received any responding submissions. Court Counsel advised Mr. Greenspon that if he wished to make any submissions, he should do so by the end of business hours on Friday, January 25, 2019.
[9] In a letter to Court Counsel dated January 16, 2019, Mr. Greenspon stated in operative part as follows:
As you are aware, Justice Perell issued his decision refusing to recuse on July 4, 2018. He immediately thereafter, on the same day, issued his decision awarding costs against Ms. Brunning personally in favour of the government. Ms. Brunning has appealed Justice Perell’s decision not to recuse himself and has asked for leave to appeal Justice Perell’s decision on costs. Both of these matters are still pending before the Court of Appeal. A motion to strike the recusal appeal is before the Court on February 1, 2019.
Justice Perell, in his July 4th decision on recusal, indicates that “Canada is entitled to costs, if requested”. This statement is made without contemplation of submissions being made by either party and/or consideration of the fact that Canada had no apparent interest in the outcome of his decision and therefore should not have made any submissions on the issue. Canada made no request for costs within the 30 days contemplated by Rule 57 of the Rules of Civil Procedure, but waited until October 29, 2018 to submit a bill of costs. This was approximately 4 months after Justice Perell issued his decision and 3 months after Ms. Brunning commenced her appeal.
Given that the matter is now before the Court of Appeal, it is inappropriate for Justice Perell to take any further steps, including the making of a decision on the amount of costs to be awarded to the government.
[10] Ms. Coughlan responded by email dated January 18, 2019, the text of which is as follows:
I have reviewed Mr. Greenspon’s letter of January 16, 2019 and I do not agree with its conclusion. While it is correct that the recusal matter is before the ONCA with Canada’s motion to quash scheduled for February 1, 2019, no stay was obtained in either of the costs matter or the recusal matter. As such, Canada is entitled to have the quantum of the costs determined forthwith.
Rule 57 has no application. The court has already granted Canada costs and as noted in Mr. Greenspon’s letter, that costs award is now the subject of a leave to appeal application. The only remaining issue is establishing the quantum thereof and not entitlement.
C. Analysis
[11] I agree that Rule 57 has no application at this stage. Canada sought a costs award in its factum, paragraph 54 of which asked the court to “dismiss Ms. Brunning’s request for recusal, with costs against Ms. Brunning”. Ms. Brunning and her counsel were thereby put on notice, and they had full opportunity to make submissions on the issue as to whether Canada should be awarded its costs in the event that the recusal motion was dismissed. The statement that Canada was entitled to costs incurred in relation to the recusal motion, if requested,[^5] reflects the exercise of my discretion to award costs.
[12] Consequently, I also agree that what remains to be determined is the quantum of the costs award to be made in Canada’s favour. Ms. Brunning’s counsel did not provide costs submissions, even when expressly invited to do so. Instead of providing costs submissions, Ms. Brunning’s counsel has taken the position that it would be “inappropriate for [me] to take any further steps”, including determining the amount of the costs award.
[13] I am satisfied that the amount sought by Canada in connection with fees and disbursements is reasonable.
D. Conclusion
[14] The costs of the recusal motion are fixed at $28,911.04, to be paid to Canada by Ms. Brunning within 30 days of the release of this endorsement.
PERELL J.
Released: January 21, 2019
COURT FILE NO.: 00-CV-192059
DATE: 2019/01/21
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
COSTS ENDORSEMENT
Perell, J.
Released: January 21, 2019
[^1]: The two RFDs were determined in Fontaine v. Canada (Attorney General), 2018 ONSC 103. At paragraph 210 of that decision, I referred to the fact that Canada had been largely successful and had requested costs against Ms. Brunning, the Requestors’ counsel. In addition, I noted that: (a) both Requestors had raised issues that had already been determined; (b) both Requestors had ignored the court’s direction that the standing and jurisdiction issues would be determined on the basis of their RFDs and facta, with no additional materials to be filed; (c) one Requestor had expressly claimed that Canada has been given preferential treatment by the courts tasked with supervising the IRSSA’s implementation and administration; and (d) Ms. Brunning had also baselessly claimed that Canada’s legal positions constituted an abuse of process and a breach of the Canada’s counsels’ professional obligations.
[^2]: Fontaine v. Canada (Attorney General), 2018 ONSC 357 (the “January 15, 2018 Direction”). An appeal from the January 15, 2018 Direction was quashed: Brunning v. Canada (Attorney General), 2018 ONCA 1009.
[^3]: Fontaine v. Canada (Attorney General), 2018 ONSC 4182 at para. 56.
[^4]: Fontaine v. Canada (Attorney General), 2018 ONSC 4195.
[^5]: Supra, note 3.