Court File and Parties

COURT FILE NO.: CV-18-75371 DATE: 2019/12/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT BIDAL, RAEFORD COMANDA on their own behalf and on behalf of those set out at Schedule “A” and on behalf of all the members of the ALGONQUIN ANISHINABE NATION/ALGONQUIN AMIKWA NATION, Plaintiffs (Respondents)

AND

HER MAJESTY THE QUEEN in the Right of Ontario and ATTORNEY GENERAL OF CANADA, Defendants (Moving Parties)

BEFORE: The Honourable Justice C.T. Hackland

COUNSEL: Michael Swinwood, for the Plaintiffs Sarah Valair, Stephanie Figliomeni, for the Respondents Her Majesty the Queen In Right of Ontario, and Zoe Oxaal and Mary Roberts, for the Defendant Attorney General of Canada

HEARD: In writing

Costs Endorsement

[1] The defendant Her Majesty the Queen in the Right of Ontario (“Ontario”) brought a motion to strike this action on the basis that the issues raised are res judicata and an abuse of process. Ontario was entirely successful in being granted this relief. The court’s reasons are reported, see Bidal v. H.M. the Queen in Right of Ontario, [2019], ONSC 4257.

[2] The court found that the action was an abuse of process and was being pursued primarily to prevent the plaintiff’s ongoing hunting and fishing prosecutions from being heard on their merits in the Ontario Court of Justice. The court also found that the action was substantially similar to a Statement of Claim in a 2012 action and thereby contravened the terms of the order made by Justice Hennessy discontinuing that action. Indeed the cause of action put forward by the plaintiffs were found to be virtually the same as in the 2012 McQuabbie action (CV-12-5341) and the 2014 Amikwabi action (CV-14-517372).

[3] In the normal course the defendants as the successful parties, would be entitled to their costs of the proceeding, either on a partial or substantial indemnity basis. The plaintiffs however advance the argument that they are public interest litigants in the circumstances and should therefore not be subject to a costs order. For the reasons that follow, I do not accept the plaintiff’s position.

[4] In St. James Preservation Society v. Toronto (City) [2007], ONCA 601, the Ontario Court of Appeal set out the five factors to consider when deciding whether to exempt a party from the ordinary costs regime on the basis of public interest grounds:

a) The nature of the unsuccessful litigant; b) The nature of the successful litigant; c) The nature of the dispute – was it in the public interest?; d) Has the litigation had any adverse impact on the public interest; and e) The financial consequences to the parties.

[5] A similar approach was taken by Perell J. in Incredible Electronics Inc. v. Canada (Attorney General) , [2006] 80 O.R. (3d) 723 in which the court defined public interest litigation as:

“ Litigation that involves the resolution of a legal question of importance to the public as opposed to private interest litigation, which, I will define as litigation that involves the resolution of a legal question of importance mainly only to the parties.”

[6] At para. 71 of Incredible Electronics, the court observed:

“It may be noted that a one-way regime approach was the recommendation of the Ontario Law Reform Commission. The Commission recommended that a one-way rule should be applied when it was established that: (a) the proceeding involved issues the importance of which extends beyond the immediate interests of the parties involved; (b) the litigant has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearly does not justify the proceeding economically; (c) the issues have not been previously determined by a Court in a proceeding against the same defendant; (d) the defendant has a clearly superior capacity to bear the costs of the proceeding; and (e) the litigant has not engaged in vexatious, frivolous or abusive conduct.”

[7] Applying the indicia of public interest litigation discussed above, I am unable to conclude that the plaintiffs qualify as public interest litigants. In this case the plaintiffs are not putting forward a land claim or otherwise bringing forward a matter of general public interest for judicial determination. I accept the defendants argument that this proceeding was being advanced primarily for the purpose of preventing the regulatory charges against the plaintiffs from being heard.

[8] I agree with and adopt Ontario’s submission that an action, such as the present action, which is found to be an abuse of process cannot be in the public interest and cannot be the basis for concluding that costs should not be awarded. The plaintiffs have a personal and pecuniary interest in the outcome of the hunting and fishing charges. Moreover, the issues raised have been put forward in two previous actions and then terminated without any decision on the merits. This and the previous litigation has resulted in a significant waste of time and resources and therefore has had an adverse impact on the public interest.

[9] I find that the plaintiffs do not meet the criteria to be characterized as public interest litigants and are therefore not exempt from the normal Rule 57 costs regime.

[10] Ontario is seeking costs on a partial indemnity basis in the sum of $15,775.00. This consists of $12,000.00 for fees plus a counsel fee of $2,750.00 for attendance of two counsel at the argument of the motion and disbursements of $1,025.00. Ontario’s bill of costs, without the counsel fee, totals $36,560.00 on the basis of docketed time. I am of the view that Ontario’s costs sought in the sum of $15,775.00 is reasonable in the circumstances and will be awarded. I note the plaintiffs have not taken issue with the quantum of costs claimed. This award is made against the individually named plaintiffs in schedule A to the statement of claim in the present action, which does not including Michael Comanda or the two proposed representative plaintiffs.

[11] Ontario also seeks costs pursuant to the order of Hennessy J. in the 2012 McQuabbie action. Her Honour’s order at the time of the plaintiff discontinuing the McQuabbie action was that Ontario would be entitled to claim costs if the content of the pleadings in a further action was “in substantially the same form.” I have found that the claims in the present action are substantially the same. Ontario is awarded costs which I fix in the sum of $5,000.00 pursuant to Justice Hennessy’s order, which are to be payable by Robert Bidal.

[12] The Attorney General (“Canada”) claims that it has incurred partial indemnity costs of over $20,000.00 to defend the present action and over $63,000.00 in the 2012 McQuabbie action. However Canada says that it has substantially reduced its costs claim and specifically seeks $8,014.00 in the present action and $13,492.00 in the McQuabbie action. In the exercise of the courts discretion Canada is awarded costs of $8,000.00 in the present action and $5,000.00 pursuant to Justice Hennessy’s ruling, to be paid by the same individuals identified above with reference to costs awarded to Ontario.

Justice Charles T. Hackland Dated: At Ottawa the 17th day of December, 2019