COURT FILE NO.: CV-21-0169-AP
DATE: 2021-06-25
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HORNEPAYNE FIRST NATION (Appellant Moving Party)
v.
ONTARIO FIRST NATIONS (2008) LIMITED PARTNERSHIP (Respondent)
HEARD: In Writing
BEFORE: Fitzpatrick J.
COUNSEL: R. Bodnar, for the Appellant (moving party)
D. Outerbridge and H. Allen, for the Respondent
Endorsement on Costs
[1] On May 27, I dismissed a motion by the Appellant Hornepayne First Nation (“HFN”) and awarded costs on a partial indemnity basis to Ontario First Nations (2008) Limited Partnership (“OFNLP”). Parties have made written submissions as to costs.
[2] OFNLP seeks partial indemnity costs in the amount of $30,643.80. HFN argues costs should be fixed in the amount of $3,500.
[3] I fix costs of this motion at $8,500 inclusive of disbursements plus HST. I do so for the following reasons.
[4] This motion was factually complex. The parties did spend a great deal of effort familiarizing the court with the background of this matter. The matter is an important one to the parties. Ultimately a lot of money is at stake which will be needed by Indigenous people to promote their economic and social welfare. The matter is continuing, and further motion dates have been set. The motions will be argued before me so that the parties need not spend additional time or effort reeducating another judge about the background.
[5] OFNLP took a reasonable position pre motion with respect to the critical issue of funds not being distributed until the pending appeal motions were resolved.
[6] In my view, given the complexity of this motion, the fee for only one counsel should be payable by the losing party. OFNLP seeks payment for two lawyers and a senior clerk. This is not reasonable for this motion on a partial indemnity basis.
[7] HFN also takes exception to the high hourly rate of the lead counsel for OFNLP. Mr. Outerbridge has in excess of 20 years of experience at the bar. It shows in his efficient presentation and focused advocacy. He seeks a rate of $657 an hour on a partial indemnity basis. Despite his capable work as a barrister, I see this as high for the Northwest Region even for senior counsel.
[8] In any event, the quantum allowed for this matter is not based on a mere mathematical calculation of the hours shown expended by Mr. Outerbridge times his stated hourly partial indemnity rate. This calculation would yield approximately $12,750. I am taking a global approach in this case. This is not to say I doubt the hours expended by Mr. Outerbridge on the file. I am taking in to account the concept that when making a partial indemnity costs award, an important factor to consider is the reasonable expectations of the party who is ending up paying the award.
[9] I do not accept the submission of counsel for HFN as to a reasonable quantum being $3,500. I think that amount is more reflective of a more run of the mill procedural motion argued pre pandemic. This motion was of a much greater complexity.
[10] There were no disbursements incurred by OFNLP on this motion. Zoom hearings have some benefits for out of town parties.
[11] Overall, for reasons stated, I find that the sum of $8,500 plus HST represents a fair and reasonable amount for HFN to pay forthwith to OFNLP in respect of HFN’s unsuccessful motion to stay.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
DATE: June 25, 2021
COURT FILE NO.: CV-21-0169-AP
DATE: 2021-06-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HORNEPAYNE FIRST NATION
v.
ONTARIO FIRST NATIONS (2008) LIMITED PARTNERSHIP
HEARD: In Writing
COUNSEL: R. Bodnar, for the Appellant (moving party)
D. Outerbridge and H. Allen, for the Respondent
ENDORSEMENT ON COSTS
Fitzpatrick J.
DATE: June 25, 2021
/lvp