COURT FILE NO.: C-3512-14, C-3512-14A and 2001-0673
DATE: 2021-03-25
CORRECTED DATE: 2021-08-09
ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: C-3512-14 & C-3512-14A
Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of The Robinson Huron Treaty of 1850
Plaintiffs
– and –
The Attorney General of Canada, the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario
Defendants
The Red Rock First Nation and The Whitesand First Nation
Third Parties
-AND-
Joseph J. Arvay Q.C., Catherine Boies Parker Q.C., David C. Nahwegahbow, Dianne G. Corbiere and Christopher Albinati, for the Plaintiffs
Glynis Evans and Scott Warwick for the Defendant The Attorney General of Canada / Lisa La Horey and Brent Kettles for the Defendant The Attorney General of Ontario
Harley Schachter and Kaitlyn Lewis, for the Third Parties.
Court File No.: 2001-0673
The Chief and Council of Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, The Chief and Council of the Whitesand First Nation on behalf of the Whitesand First Nation Band of Indians
Plaintiffs
Harley Schachter and Kaitlyn Lewis, for the Plaintiffs.
– and –
The Attorney General of Canada and Her Majesty the Queen in Right of Ontario and the Attorney General of Ontario as representing Her Majesty the Queen in Right of Ontario
Defendants
Glynis Evans and Scott Warwick for the Defendant The Attorney General of Canada / Lisa La Horey and Brent Kettles for the Defendant The Attorney General of Ontario
HEARD: September 29, 2020
CORRECTED DECISION ON COSTS – STAGE TWO
In paragraph [38] the first line was amended to read: “… are entitled to their costs from Ontario on a partial indemnity basis calculated at 65%, being $531,228.10. They are further entitled to 100% of their disbursements as claimed in the sum of $42,453.20 for a total of $573,681.30.”
HENNESSY, J.
[1] In Stage Two hearing of these actions, four issues were argued:
a. The applicability of the doctrine of Crown immunity to the plaintiffs’ claims.
b. The applicability of provincial limitations legislation to the plaintiffs’ claims.
c. The joint and several liability of the federal and provincial Crowns and/or the requirement that Canada act as paymaster for any compensation owed to the plaintiffs.
d. The correct approach to statutory interpretation of the statutes at issue.
[2] This court found in favour of the plaintiffs on the questions of limitations and Crown immunity as asserted by Ontario. Canada did not participate in either of those arguments. The court accepted Canada’s and Ontario’s argument and deferred the issues of joint liability and paymaster theory, asserted by the plaintiffs, to Stage Three of the trial. The court accepted that the statutory interpretation model proposed by the plaintiffs was the appropriate approach.
[3] Stage Two proceeded as a motion for summary judgment, with submissions being made over eight days. Written submissions were made on costs.
[4] Both plaintiffs seek costs against Ontario. Ontario does not take issue with claims for disbursements.
[5] Ontario agrees that the plaintiffs should receive reasonable costs but disputes the quantum and the partial indemnity rate sought by the plaintiffs. Ontario does not dispute the full indemnity rate claimed by the plaintiffs.
[6] Canada and Ontario do not agree that the offer made by the plaintiffs should be factored into the analysis of costs.
[7] Neither Crown defendant seeks costs against the plaintiffs.
Issues in Dispute
[8] Three issues, all related to quantum of costs remain in dispute:
a. Whether the plaintiffs claim for time is reasonable given the circumstances?
b. What is the appropriate rate for partial indemnity?
c. Whether an offer made by the Superior plaintiffs is a r. 49 offer or whether it should be a factor in determining the quantum of costs?
Reasonableness of the Amount Claimed
[9] Ontario says that the plaintiffs expended more time than was reasonable on this motion, that the Huron plaintiffs did not provide sufficient information to assess the quantum of costs and that the Superior plaintiffs may have wrongly included a claim for pre-2016 time.
[10] Ontario argues that the time claimed by the plaintiffs represents an expenditure of time proportionately greater than the time expended by the defendants and is therefore unreasonable.
[11] It bears to be repeated that this multi-stage litigation is enormously complex, highly resourced and has been in the courts for over a decade. The single fact that the plaintiffs may have expended more time than expended by the province (24% Superior and 43% Huron) is not surprising in and of itself and is not objectionable. The challenges faced by the different parties, in their different circumstances, with different client relationships will necessarily mean that their counsel teams will spend different amounts of time in preparation. The reasonableness of the amount of time spent must be assessed in light of the issues before the court and the positions taken by the Crowns.
[12] Each of the counsel teams are entitled to take their own approaches to this high stakes, historical litigation and this court does not expect that they are in lock step with one another.
[13] After achieving considerable success at Stage One of the litigation, on this motion the plaintiffs faced the risk of a partial or complete termination of their claim had Ontario’s defences been successful. From my observation, the plaintiffs prepared to meet every single argument made by Ontario no matter the strength of any of these assertions.
[14] As other judges in Ontario have noted, the fact that different parties expend different amounts of time on an issue does not in and of itself make the higher claim unreasonable. In Cheesman v. Credit Valley Hospital, 2020 ONSC 1729, at para. 98, the court did not take issue with the costs of the plaintiff where the difference was 1.4 times the amount of time the defendants spent. In Cheesman, the court made the following comments, at para. 89:
It is well accepted that a plaintiff's costs are generally higher than a defendant's costs: Gardner v. Hann, [2012] O.J. No. 1440 at para 42; Hanisch v. McKean, 2013 ONSC 5086, [2013] O.J. No. 3599 at para 59; Frazer v. Haukioja, [2008] O.J. 5306 at para 18 - 20; Shearer v. Sewchand, [2013] ONSC 6760 at para. 24, 30-32, 40-41. This results from the fact that the plaintiff bears the burden of proof and has a more difficult task than defendants do. In both Gardner and in Shearer the court had no difficulty with the fact that the plaintiff's fees were twice as high as those of the defendants.
[15] As Koehnen J. was in Cheesman, I am quite comfortable that the plaintiffs’ counsel teams needed to put in 125% and 143% more of the time of Ontario’s counsel into this case. It is possible that Ontario’s time reflected the fact that they were repeating arguments they had previously made on the issue of Crown immunity. This was not a new issue for them.
[16] The goal is to award a fair and reasonable amount of costs commensurate with the relevant factors laid out in the cases and in r. 57.01 including the amount that the defendants ought to fairly have anticipated being incurred in the process: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2016 ONSC 7643, at para. 8.
[17] On the issue of Crown immunity, Ontario mounted a vigorous argument which included repeating arguments they had unsuccessfully made in the past and urged this court not to follow those decisions where courts had decided against them. The plaintiffs were forced to argue what one might consider to be an appeal of those prior decisions. The plaintiffs were also forced to respond to Ontario’s arguments on the historical evolution of Crown immunity based on jurisprudence going back to 1688 and pre-1900 scholarly texts. It would have been a reasonable expectation that the plaintiffs would respond comprehensively to those arguments and in doing so would have incurred significant costs in time and resources.
[18] Ontario had the experience of dealing with the Stage One hearing and costs, which reflected similar levels of preparation. They ought to have reasonably anticipated that the plaintiffs would take a similar approach to their preparation for this motion, that is, to make their case and meet the responding arguments completely and thoroughly.
[19] Ontario raised the issue of Superior’s claim for some time spent pre-2016. This is a non-issue. Ontario claimed for similar amount of time during that period. It is a reasonable claim.
[20] In the circumstances, I find the claim of the Huron plaintiffs to be sufficiently supported. This case has been subject to a high level of case management. Counsel teams were well aware of the manner that each of the parties would approach the questions and of the preparation work that was being done by the other teams. There is no deficiency here.
[21] I also find the issue of divided success to be a non-issue. The question of joint and several liability or paymaster took up a very small portion of the time during case management, during the hearing and for the purposes of preparation. Canada took the lead on this issue and Ontario substantially adopted the submissions made by Canada. The issue was deferred to Stage Three, as per the request and argument of the Crowns. Ontario was not successful on the substantive issue which remains to be argued. The cost award should not reflect any significant reduction based on the finding on this issue.
[22] Given the risks to the plaintiffs’ claims, and all parties’ past experiences in this litigation, I am of the view that the plaintiffs time expenditure was reasonable and proportionate to the complexity of the case and the arguments submitted by Ontario, therefore there is no basis to reduce the plaintiffs’ claim for time.
Offer made by the Superior Plaintiffs
[23] The Superior plaintiffs made an offer to the defendants and submit that the determination on the motion was as favourable as the offer and as such that costs consequences should be applied. The offer made October 3, 2019 would have permitted the defendants to abandon their defences of Crown immunity and limitations and defer the issue of joint and several liability and the paymaster issue to Stage Three. Had the defendants accepted the offer, the Superior plaintiffs would have accepted costs on a partial indemnity scale, at 60%. The offer was made on a joint basis, i.e. it had to be accepted by both defendants for the plaintiffs to accept.
[24] Both Ontario and Canada reject the proposition that the Superior plaintiffs are now entitled to costs at 100% from the time of the offer.
[25] Canada submits that the offer and its response do not attract the cost consequences of r. 57.01(1) as it pertains to them. Canada states that it could not have accepted this offer by itself, even had it wanted to do so.
[26] I agree with this position. Canada did not participate in the main issues in dispute on the motion. On the issues of joint liability and paymaster, by far the least time-consuming issues to be argued, Canada could not act alone. Because they were not involved in the other issues, they could not influence Ontario to abandon their defences.
[27] As for Ontario, they simply rejected the offer and note that the offer was only made by the Superior plaintiffs.
[28] While the fact that the offer was only made by one of two plaintiffs, it was not an unreasonable offer, especially considering the analysis in the decision. On the issue of Crown immunity, Ontario asked this court to reject current Ontario jurisprudence on the issue of Crown immunity from equitable claims. On the issue of limitations, Ontario argued that the Treaties were akin to contracts. On both of these questions, Ontario argued against current jurisprudence and was wholly unsuccessful with their positions.
[29] One purpose of an offer, especially in complex litigation, is to cause a party to scrupulously review their long-held position and consider the reasonableness of it in the ever-evolving circumstances, including the discussions at case management. I do not agree that an offer is unreasonable simply because it seeks to have a party abandon a long-held position.
[30] I agree that the complications of the offer, i.e. that it had be accepted by both defendants and that it was only made by one plaintiff, made it very difficult to accept without a certain amount of work by the parties. I do not find that it attracts the full consequences available under r. 57.01(1). However, I do take the offer into account on the issue of partial indemnity rate.
Appropriate Rate for Partial Indemnity
[31] Ontario argues that the partial indemnity rate is normally between 55-60%, based on the decision in Inter-Leasing Inc. v. Ontario (Minister of Revenue), 2014 ONCA 683. However, in that case the court did not set down fixed guidelines and the finding was highly specific to the facts and circumstances before it. In Bondy-Rafael v. Potrebic, 2019 ONCA 1026, 441 D.L.R. (4th) 658, the Ontario Court of Appeal noted that the Ontario Rules of Civil Procedure do not fix a percentage rate for partial indemnity. The Court reinforced the notion that the court fixing costs must consider the myriad factors before it in exercising its discretion to fix costs: Bondy-Rafael, at para. 57.
[32] The circumstances of this case have been described above as well as in the award of costs for Stage One. The complexities of this case have not changed. It is a massive undertaking on the part of the plaintiffs to seek an interpretation and implementation of a treaty-based promise made at a Treaty Council in 1848 at Bawaating. The unique nature of the promise, the Anishinaabe cultural, language and historical dimensions and the different legal orders of the parties all factor into this complexity, and therefore into the demands of presenting this claim and responding to the statutory defences. The consideration of costs reflects those complexities and dimensions.
[33] The Superior plaintiffs request a partial indemnity rate of 65% for costs prior to the offer made by them and a substantial indemnity rate of 97.5% thereafter. The Huron plaintiffs request a costs award of 65% for all of their fees and 100% of disbursements. They were not involved in the offer made by the Superior plaintiffs.
[34] The issues underlying Ontario’s technical defences of limitations and Crown immunity were complex and the questions addressed are of significant public importance. I agree with the parties that the issues were not as complex as those raised in the Stage One hearing.
[35] I also agree that the plaintiffs succeeded on the issues that took up the bulk of the time on the hearing and in preparation. The joint liability and paymaster issues were significantly less time consuming both throughout case management, in the hearing and in the decision.
[36] Taking into account, the full range of unique features of this claim and of this motion, primarily on the technical defences raised by Ontario, the offer made by the Superior plaintiffs, it is my view that a partial indemnity rate of 65% is reasonable. This rate also reflects consideration of the important issues of access to justice and reconciliation that are at the forefront of this and all treaty litigation.
[37] The unique nature of the Anishinaabek-Crown treaty relationship underscores the enormous impact the resolution of this dispute has for all treaty beneficiaries and brings into sharp relief the hardship and expense that the Anishinaabek plaintiffs must bear in bringing this disputed promise before the court.
Conclusion
[38] The Huron plaintiffs are entitled to their costs from Ontario on a partial indemnity basis calculated at 65%, being $531,228.10. They are further entitled to 100% of their disbursements as claimed in the sum of $42,453.20 for a total of $573,681.30.
[39] The Superior plaintiffs are entitled to their costs from Ontario on a partial indemnity basis of 65% and further entitled to 100% of their disbursements as claimed.
The Honourable Madam Justice Patricia C. Hennessy
Released: March 25, 2021
Corrected: August 9, 2021
COURT FILE NO.: C-3512-14 & C-3512-14A and 2001-0673
DATE: 2021-03-25
CORRECTED DATE: 2021-08-09
Court File No.: C-3512-14 & C-3512-14A
Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron Treaty Of 1850
Plaintiffs
– and –
The Attorney General of Canada, the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario
Defendants
- and -
The Red Rock First Nation and the Whitesand First Nation
Third Parties
-AND-
Court File No.: 2001-0673
The Chief and Council of Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, the Chief and Council of the Whitesand First Nation on behalf of the Whitesand First Nation Band of Indians
Plaintiffs
– and –
The Attorney General of Canada, and Her Majesty the Queen in Right of Ontario and the Attorney General of Ontario as representing Her Majesty the Queen in Right of Ontario
Defendants
DECISION ON COSTS - STAGE TWO
Hennessy, J.
Released: March 25, 2021
Corrected: August 9, 2021