Court File and Parties

COURT FILE NO.: CV-18-594281-0000 DATE: 2023-08-02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Six Nations of the Grand River Band of Indians AND: The Attorney General of Canada and His Majesty the King in Right of Ontario

BEFORE: J.T. Akbarali J.

COUNSEL: Iris Antonios, Max Shapiro, Robert Janes K.C., and Gregory Sheppard, for the plaintiff Katrina Longo and Sarah Kanko, for the defendant The Attorney General of Canada Manizeh Fancy, David Tortell and Brandon Fragomeni, for the defendant His Majesty the King in Right of Ontario Tim Gilbert, Colin Carruthers, Thomas Dumigan, Jack MacDonald, Dylan Gibbs and Jonathan Martin, for the proposed intervener Haudenosaunee Development Institute Jeffrey Kaufman, for the proposed intervener Men’s Fire of the Six Nations Grand River Territory Nuri Frame and Alex DeParde, for the proposed intervener Mississaugas of the Credit First Nation

HEARD: In writing

ENDORSEMENT

Overview

[1] On June 14, 2023, I released reasons in motions brought by (i) the Haudenosaunee Development Institute (“HDI”) and (ii) the Mississaugas of the Credit First Nation (“MCFN”) to intervene as parties in this litigation. I also addressed (iii) the motion by Men’s Fire of the Six Nations Grand River Territory (“Men’s Fire”) to intervene in the intervention motion brought by HDI and, if HDI were granted leave to intervene in the action, to intervene in the action itself as a friend of the court: Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2023 ONSC 3604.

[2] In my reasons, I granted leave to MCFN to intervene as a party in the litigation and dealt with the costs of MCFN’s motion.

[3] I denied leave to HDI to intervene in the litigation. I granted leave to Men’s Fire to intervene in HDI’s motion, but in view of the result of HDI’s motion, I did not address Men’s Fire’s motion to intervene in the action as a friend of the court.

[4] The costs of HDI’s motion remain outstanding. In addition, the costs of Men’s Fire’s motion remain outstanding.[^1] These reasons address the claims for costs arising out of HDI’s motion and Men’s Fire’s motion.

General Principles Relating to Costs Determinations

[5] The law with respect to determinations of costs is not contentious. There are three main purposes of modern costs rules: to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22.

[6] Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion considering the factors enumerated in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: see Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.

Six Nations of the Grand River Band of Indians’ Claim for Costs

[7] The plaintiff, Six Nations of the Grand River Band of Indians (“SNGR”), seeks costs of HDI’s motion and Men’s Fire’s motion. Its costs outline supports all-inclusive partial indemnity costs of $452,299.19, and all-inclusive substantial indemnity costs of $648,751.29. It seeks these costs against HDI, and also argues it may be appropriate for the defendants, Ontario and Canada, to contribute to the costs given the positions they took on the motion.

[8] SNGR argues that it is entitled to an award of costs on an elevated scale, based on the findings I made in my reasons to the effect that HDI was not a good faith actor in the litigation, but rather was seeking to mount a collateral attack on prior decisions that validated SNGR’s governance of the Six Nations of the Grand River community in an abuse of the court’s process. It also argues that it beat an offer to settle it made on May 2, 2023, in which it offered not to seek costs if HDI abandoned its motion on a with prejudice basis, which, it states, justifies an elevated costs award.

[9] Neither Canada nor Ontario seeks costs of the motion, and each asks that no costs be awarded against it.

[10] With respect to SNGR’s claim for costs, HDI argues that the costs claimed are overinclusive, that they contain a mathematical error (which is acknowledged by SNGR), that substantial indemnity costs are unwarranted, and that Canada and Ontario should pay, or contribute to the payment of, any costs ordered in respect of HDI’s motion.

[11] While taking no issue with the hours incurred by SNGR, HDI disagrees that SNGR is entitled to recover costs of Men’s Fire’s motion from HDI, noting, among other things, that SNGR took no position on Men’s Fire’s motion. It also points to other claims SNGR makes for costs related to a public website that hosts information about the action and the dispute between SNGR and the defendants about language for the website in which SNGR’s position was not accepted by the court. It argues there is no basis to seek these costs from HDI.

[12] HDI also takes issue with the hourly rates claimed by SNGR’s counsel, which it states are higher than those claimed by counsel of similar experience for other parties involved in this litigation.

[13] HDI argues that an elevated costs award is not appropriate. First, the offer on which SNGR relies does not comply with r. 49.10(1)(a) such that the consequences of that rule do not apply. Moreover, HDI argues that the offer did not propose any meaningful compromise but sought only HDI’s capitulation.

[14] HDI also argues that substantial indemnity costs are not warranted because it has not engaged in behaviour worthy of sanction. It argues that its position was not unreasonable, and that each of HDI, SNGR and Ontario proposed terms contemplating the participation of the Haudenosaunee Confederacy Chief’s Council (“HCCC”) at the hearing, and that Canada argued that the perspective of HCCC was essential to the litigation.

[15] With respect to HDI’s argument that the defendants should jointly bear any costs award made in favour of SNGR, or at least bear a third of the award, I set out HDI’s submission in its entirety:

There is unquestionably a deep rift within the Six Nations of the Grand River community, premised upon the complex and acrimonious relationship between the HCCC and the SNGR elected council, recognized by all parties and the Court. That rift was created by the Crown by its installation of an elected council under the Indian Act in 1924, and continues to exist today (the Court found it was the impetus for HDI’s motion).

The Crown has failed to remedy this shameful past (and the conduct that is the very subject of the action). Its inaction continues—evidenced by Ontario and Canada’s collective failure to deal with the issues surrounding HDI’s motion for more than a year in this case.

The parties first started discussing HDI’s proposed intervention shortly after HDI notified counsel for the parties on April 7, 2022. HDI subsequently brought its motion on June 10, 2022. Neither Canada nor Ontario provided their position on HDI’s motion until May 1, 2023—325 days after HDI served its motion, and 8 days before the hearing. Canada consented to HDI’s motion (a finding it now seeks to collaterally attack), and Ontario took no position on the HCCC’s involvement (its sole objection regarding capacity was unhelpful and inconsequential). Before May 1, while each of Canada and Ontario cross-examined HDI’s witnesses (i.e., they were, by operation of the Rules, “adverse in interest”), neither indicated any opposition to HDI’s motion.

The Crown defendants’ failure to take a position until the eve of the hearing affected the progression of HDI’s motion: it simultaneously (a) complicated and lengthened the motion and (b) led the HCCC to believe that its treaty counterparty viewed HDI’s motion as reasonable. Much has been made of HDI’s “shifting” position (e.g., a shift to focus on representing the HCCC); that shift was to accommodate the late-breaking input of the Crown defendants.

Despite the historical context, each of Ontario and Canada effectively ask the Court to ignore the Crown’s inaction and shift the costs of the rift the Crown created onto the Haudenosaunee people—this is the community’s problem; leave the Crown out of it. This ignores the disgraceful history in which HDI's motion is situated and does not advance reconciliation. A just outcome (consistent with the costs on the MCFN motion) would see the Crown defendants contribute to any adverse costs ordered against HDI, particularly given that unlike the MCFN or SNGR, the HCCC receives no federal funding despite its centuries-old treaty relationship with the Crown.¹³ Canada and Ontario should jointly bear any adverse costs. Alternatively, each should bear a third.

[16] SNGR is the successful party on HDI’s intervention motion and it is entitled to its costs. The first question is, from whom?

[17] I agree with HDI and SNGR that the defendants bear some responsibility for SNGR’s costs. I do not reach this conclusion because of the history behind the fracture in the Haudenosaunee community. The court’s costs awards are not moral judgments to punish historical conduct. Rather, I accept that the conduct of the defendants contributed to the complexity and costs of HDI’s motion for the reasons advanced by HDI. In my view, especially considering my conclusion below regarding elevated costs, it is just for responsibility for SNGR’s costs to be allocated 65% to HDI, and 17.5% to each of Canada and Ontario.

[18] I agree with SNGR that HDI’s conduct in the litigation warrants an elevated costs award. However, I find that HDI’s concerns with the quantum of SNGR’s costs, in particular as it relates to the costs with respect to Men’s Fire’s motion, and the website, are justified.

[19] In assessing the quantum of costs, I note the following:

a. HDI’s motion to intervene was highly complex and involved a significant evidentiary record, including 18 affidavits and 12 cross-examinations.

b. HDI’s motion to intervene was unusual in scope, in particular given its request for a representation order allowing it to represent the entire Haudenosaunee Confederacy, which was only withdrawn at the hearing of the motion. This resulted in atypical costs, including the creation of a website (although Canada funded the website-related costs) designed to inform the public, and particularly the Haudenosaunee community, about the progress of the litigation.

c. The issues raised in HDI’s motion were very important for it and for SNGR, in particular, given my finding that HDI sought to derail SNGR’s litigation and displace it in favour of the Haudenosaunee Confederacy Chief’s Council (“HCCC”).

d. SNGR’s costs related to the Men’s Fire motion represent under 5% of its total costs of the motions.

e. HDI did not produce a costs outline against which I might have measured its reasonable expectations with respect to SNGR’s costs.

[20] These factors warrant a substantial costs award. I conclude that an all-inclusive award, fixed at $460,000 is fair and reasonable. Of this amount, HDI shall pay $299,000, and Ontario and Canada shall each pay $80,500. I make this costs award severally. Costs shall be paid within 60 days of the release of these reasons.

Men’s Fire’s Claim for Costs

[21] Men’s Fire seeks its costs of this motion against HDI. It claims partial indemnity costs in the amount of $88,815.55 all-inclusive.

[22] While acknowledging that interveners are not generally awarded costs, Men’s Fire relies on Lavigne v. O.P.S.E.U., 1989 ONCA 4087, where the Court of Appeal for Ontario confirmed that an intervener is entitled to costs when its interests are seriously affected by the proceeding.

[23] HDI argues that no costs ought to be awarded to Men’s Fire, consistent with HDI’s reasonable expectations of the relief sought by Men’s Fire on its motion. HDI notes that Men’s Fire did not seek costs in its materials served and filed with the court, with the exception of one sentence in its factum delivered shortly before the hearing of the motions, after the evidentiary record was developed in which it sought the dismissal of HDI’s motion with costs. Alternatively, HDI argues that a fair and reasonable costs order would limit costs to only those incurred after the date of Men’s Fire’s only request for costs, in its factum of April 10, 2023. For its part, Men’s Fire argues that there are plenty of cases where costs are awarded in the discretion of the court even if they have not been specifically claimed. However, the cases advanced by Men’s Fire do not involve costs to interveners, which usually do not seek costs, but rather costs to parties, who typically do seek costs.

[24] I am troubled by Men’s Fire’s failure to seek costs in its motion materials. It was not a foregone conclusion that Men’s Fire, a proposed intervener, was seeking costs of its motion. The request for costs was made only in its factum.

[25] In these circumstances, I am only prepared to consider Men’s Fire’s claim for costs incurred after it made its first request for costs in its factum. The partial indemnity costs incurred following delivery of its factum are at least $14,016.00. This amount likely undercounts the costs by some measure, because it does not include the costs of counsel’s review of factums delivered after Men’s Fire’s factum was served, but the amount related to such review has not been separated from amounts related to drafting Men’s Fire’s factum, so it is not possible for me to know by how much this calculation is short.

[26] The $14,016.00 also does not include the claimed disbursements of $9,711.55, all of which appear to relate to the cross-examinations, and thus pre-date the request for costs. The disbursements thus fall outside the time period within which I am prepared to consider the costs claim.

[27] HDI raises concerns with respect to two submissions made by Men’s Fire: first, Men’s Fire’s disclosure of its offer to settle costs, and second, Men’s Fire’s statement with respect to HDI’s own costs, which HDI states reflects without prejudice discussions to which Men’s Fire was not privy. I agree that these submissions are inappropriate and irrelevant, and I do not consider them in my decision.

[28] There is no doubt that Men’s Fire’s motion was important to the parties, and that it made a useful and proportionate contribution to HDI’s motion. The time spent by counsel for Men’s Fire is reasonable.

[29] I conclude that HDI shall pay Men’s Fire’s costs of its intervention motion fixed in the amount of $12,500 all-inclusive within thirty days.

Conclusion

[30] In summary, I make the following orders:

a. SNGR shall receive its costs of HDI’s and Men’s Fire’s motion, fixed in the amount of $460,000 all-inclusive, to be paid severally by HDI, Canada, and Ontario in the following shares: HDI shall pay $299,000; Canada shall pay $80,500; and Ontario shall pay $80,500. Costs shall be paid within sixty days.

b. Men’s Fire shall receive its costs of its motion, fixed in the amount of $12,500, all-inclusive, to be paid by HDI within thirty days.

J.T. Akbarali J.

Date: August 2, 2023

[^1]: I had understood that Men’s Fire was not seeking costs of its motion, and thus ordered no costs of its motion in my reasons. Men’s Fire has subsequently clarified that I misunderstood its position on costs, and as a result, I agreed to accept costs submissions with respect to its motion, which I address herein.