Court File and Parties

COURT FILE NO.: CV-22-00675899-0000 DATE: 20231019 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Métis National Council Secretariat Inc., Plaintiff -and- Clément Chartier, David Chartrand, Manitoba Métis Federation Inc., carrying on business as Manitoba Métis Federation, Wenda Watteyne, Storm Russell, Kristina Monette, Marc LeClair, LeClair Infocom Inc., Celeste McKay, Celeste McKay Consulting Inc., John Weinstein, Public Policy Nexus Group Inc., Kathy Hodgson-Smith, Infinity Research Development and Design Inc., Wei Xie and Systemway Consulting, Inc., Defendants

BEFORE: Robert Centa J.

COUNSEL: Robert B. Cohen and Emilie Lahaie, for the plaintiff Rahool P. Agarwal, Niklas Holmberg, and Cole Pizzo, for the defendants David Chartrand, and the Manitoba Métis Federation Inc.

HEARD: October 18, 2023 (in writing)

Costs ENDORSEMENT

[1] On July 27, 2023, I heard a motion brought by the plaintiff, Metis National Council Secretariat Inc. (“MNC”) seeking:

a. joint custody, possession, and control of certain funds (the “MVLP Funds”) advanced by the Canadian government in respect of the Metis Veterans Legacy Program (the “MVLP”), and for interlocutory possession or preservation of the centralized web-interfaced catalogue of Metis historical data developed by the University of Alberta (the “Online Database”), both of which are currently in the sole custody, possession and control of the defendants, Manitoba Metis Federation Inc. and Manitoba Metis Federation (collectively, “MMF”); and

b. disclosure of certain accounting and banking records pertaining to the MVLP, which are in the custody, possession or control of MMF.

[2] During the hearing, I asked a number of questions of counsel for MNC. The ensuing discussion was helpful and counsel for MMF was able to provide some additional information and assurances that went a significant way to addressing the plaintiff’s concerns about preservation. I adjourned the hearing to give counsel the opportunity to try and work out the terms of an order. By and large, the parties were successful. I assisted them with some wordsmithing, and they delivered an order to me, which I signed.

[3] The parties were not able to resolve the issue of costs. I have now received and reviewed their submissions.

Submissions of the parties

[4] MMF seeks $213,687.57 in partial indemnity costs of the motion, inclusive of disbursements and taxes. MMF submits that this motion was critical to its interests and that MNC sought to obtain extraordinary relief, essentially execution before judgment, through this motion. MMF submits that, through this motion, MNC advanced a significant portion of its entire case theory and MMF was required to respond to that framing. MMF submits that, despite the high test to obtain interim possession and control, MNC’s evidence was largely based on information and belief affidavits. Regardless, the parties tendered over 1,700 pages of affidavit evidence, conducted multiple days of examinations, and delivered 40-page factums. Because the evidence at trial will be given in-person, almost all of this evidence will not be able to be used at trial.

[5] MMF submits that its costs are reasonable given a motion of this scale and that they would have been within the reasonable expectations of MNC, which is also represented by a prominent Toronto-based litigation firm.

[6] MMF submits that it was entirely successful on its motion and that the only relief obtained by MNC on the consent motion preserved an existing status quo (that was not in jeopardy) and the production of documents that MMF had already offered to produce.

[7] In sharp contrast, MNC submits that MMF should not receive its costs of this motion, which should be reserved to the trial judge. MNC maintains that it is “patently obvious” that it obtained success on this motion. MNC submits that the amount claimed by MMF is exorbitant and reflects overlapping work by the legal team and fails to take into account MNC’s success on the motion, MMF’s delayed production of certain documents, and the ability of the parties to reuse much of the emotion materials on trial.

Legal principles

[8] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, the Court of Appeal for Ontario restated the general principles to be applied when the court exercises its discretion to award costs. Fixing costs is a discretionary decision under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In exercising my discretion, I may consider the factors listed in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. These factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, as well as any other matter relevant to costs.

[9] There are five purposes served by modern costs rules:

a. to indemnify successful litigants for the costs of litigation, although not necessarily completely;

b. to facilitate access to justice, including access for impecunious litigants;

c. to discourage frivolous claims and defences;

d. to discourage inappropriate behaviour by litigants in their conduct of the proceedings; and

e. to encourage settlements. 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10.

[10] A proper costs assessment requires the court to undertake a critical examination of the relevant factors as applied to the costs claimed and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.” Apotex, at para. 60; Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356; citing Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 24.

[11] The overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. Apotex, at para. 61; Boucher, at para. 26.

[12] While the reasonable expectation of the parties concerning the amount of a costs award is a relevant factor that informs the determination of what is fair and reasonable, it is not the only determinative factor and cannot be allowed to overwhelm the analysis of what is objectively reasonable in the circumstances of the case. Apotex, at para. 62.

[13] Costs that are reasonable, fair, and proportionate for a party to pay in the circumstances of the case should reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party’s lawyer is willing or permitted to expend. Apotex, at para. 65. The party required to pay the successful party’s costs “must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings.” Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission (2003), 170 O.A.C. 388 (Div. Ct.), at para. 17.

Result

[14] I award MMF its partial indemnity costs, fixed in the amount of $213,687.57, inclusive of taxes and disbursements.

[15] First, MMF was clearly and overwhelmingly successful on this motion. I do not accept MNC’s submissions that it obtained “substantial relief,” enjoyed “substantial success on the motion,” or that its “success…on the motion is patently obvious.” MNC failed to obtain any of the extraordinary and intrusive relief that prompted its motion.

[16] The relief that MNC obtained was, in my view, extremely modest. I have little doubt that MMF would have agreed to do voluntarily what the consent order now requires: preserve the database and produce relevant documents. MNC did not have to bring a motion of this scale to achieve those goals. I agree with MMF’s submissions that MNC has attempted to recast the relief it sought on the motion in an attempt to improve its case on costs.

[17] I find that this was not a case of divided success. MNC did not get the relief that prompted the motion. MMF was the successful party.

[18] Second, and in a related point, this motion is now complete. Normally, the court will fix the costs of a determined motion and order them to be paid within 30 days. Rule 57.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. I do not think that any other order would be more just in these circumstances. The scale and complexity of this motion is best understood on its own terms, considered with the nature of the interlocutory relief sought by MNC. While I hope for the sake of the parties that some of the material used on this motion may be used again, I do not think that justifies depriving MMF of its costs of this motion. There is no conduct of MMF, much less misconduct, that would justify depriving MMF of a costs award at this time. Yelda v. Vu, 2013 ONSC 5903, paras 11-12. I do not accept MNC’s submission that awarding MMF its costs would amount to an injustice.

[19] Third, I accept that this motion was of critical importance to MMF. MNC sought execution before judgment. Given the extraordinary relief sought by MNC, it had to expect that MMF’s response would involve significant time and expense.

[20] Fourth, a costs order of the magnitude sought by MMF was well-within the reasonable contemplation of MNC. Both parties retained prominent law firms in downtown Toronto. Although the blended hourly rate charged by the lawyers for MMF is approximately 30% higher than the lawyers for MNC, this amount is not so significant as to require an adjustment.

[21] MNC submits that the amount claimed by MMF is “exorbitant.” After making this submission in writing, MMF protested (entirely properly) that MNC had not uploaded its own bill of costs to allow me to make a meaningful comparison of the time spent by both sides. MNC’s bill of costs indicates that it incurred partial indemnity fees and disbursements of $105,093.50. The fact that MMF’s lawyers charged a blended hourly rate approximately 30% higher than MNC’s lawyers accounts for part of this difference.

[22] Moreover, MMF points out that MNC has excluded certain items from its costs outline, including in relation to the cross-examination of the principal affiants. MMF spent 88.4 hours (almost $40,000 in legal fees on a partial indemnity basis) for cross examinations and MNC spent 14.9 hours ($8,537.10). MNC’s decision to exclude the time spent on certain important cross-examinations makes it very difficult to do an apples-to-apples comparison and undoubtedly understates its partial indemnity costs of this motion. In any event, I do not accept MNC’s submission that MMF’s partial indemnity costs are exorbitant. This level of engagement was justified given the stakes. I find that MNC would reasonably have expected to face a costs order on this scale if it was unsuccessful.

[23] Finally, it is important to step back and consider what is objectively reasonable, fair, and proportionate for MNC pay in the circumstances of this motion. Certainly, there are not many motions that would justify a costs award of the size claimed by MMF. MNC, however, started this particular interlocutory skirmish. Given the scale and the scope of the motion MNC designed and prosecuted, I think it is objectively reasonable, fair, and proportionate for it to pay MMF’s partial indemnity costs as claimed.

[24] I order that MNC the costs of this motion to MMF on a partial indemnity scale fixed in the amount of $213,687.57, inclusive of disbursements and HST, within 30 days.

Robert Centa J. Date: October 19, 2023