Reasons for Decision – Costs

Court File No.: 00-CV-192059CP
Date: 2025-05-21
Ontario Superior Court of Justice

Between:
Larry Philip Fontaine et al., Plaintiffs
and
The Attorney General of Canada et al., Defendants

Before: Justice Benjamin Glustein

Counsel:

• Daniel Engel, Rishma Bhimji, Madeline Torrie, and Sahara Douglas for the moving party, the Attorney General of Canada
• Fay K. Brunning, Liza Swale, and Michael Swinwood for the Respondents, Edmund Metatawabin, the St. Anne’s independent assessment process (IAP) claimants T-00185, S-20774 and the Estate of St. Anne’s IAP Claimant S-16753
• Christopher Rapson and Lacey Kassis for the Assembly of First Nations

Heard: In Writing

Overview

[1] These reasons set out my costs decision following the release of Fontaine v. The Attorney General of Canada, 2025 ONSC 1757 (the "Canada RFD Decision").

[2] At paragraph 18 of the Canada RFD Decision, I set out my conclusions that:

(i) I summarily dismiss Metatawabin RFD #2. [1] Under the Ancillary Orders, Canada was not required to deliver updated POI reports in Concluded Claims.

(ii) I strike Metatawabin RFD #2 in its entirety on the basis that it is time-barred, based on the principles set out by Justice Brown in the Bundled RFD and referred to with approval by subsequent courts.

[3] At paragraph 19 of the Canada RFD Decision, I summarized my conclusions on the other bases in the Canada RFD.

[4] At paragraph 296 of the Canada RFD Decision, I set out my understanding that neither party was seeking costs of the hearing.

[5] However, after the release of the Canada RFD Decision, counsel to the Respondents contacted Locum Court Counsel and advised that they did not intend to waive their request for costs even if unsuccessful on the Canada RFD. I conferred with Locum Court Counsel who also understood at the hearing that the Respondents were not seeking costs.

[6] Canada confirmed that it was not seeking costs of the Canada RFD Decision, but would oppose any request by the Respondents for costs.

[7] To ensure that the Respondents were not prejudiced by any misunderstanding of their position on costs at the hearing, I directed, through Locum Court Counsel, that the Respondents deliver written submissions in respect of costs, and for Canada to deliver responding submissions.

[8] Despite being unsuccessful in the Canada RFD Decision, the Respondents seek recovery of fees and disbursements totaling $73,797.96. Canada opposes any costs award.

[9] I have reviewed the written costs submissions of the parties. For the following reasons, I do not order costs of the hearing.

Applicable Law

[10] The following principles of law are relevant in respect of the Respondents’ request for costs:

• Fairness and reasonableness are overriding principles in costs awards: Boucher v. Public Accountants Council (Ontario), paras. 24, 38.
• The general principle that costs are awarded to a successful party should not be departed from except for very good reason: Ehsaan v. Zare, 2018 ONCA 453, para. 10.
• A successful party may be denied costs in limited circumstances: Cutajar v. Frasca, para. 81.
• An award of costs to the unsuccessful party is generally exercised only in exceptional cases, including where the successful party has engaged in misconduct, or significant public interest issues are raised: David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co., 2008 ONCA 703, para. 32.
• Costs awards under the IRSSA engage unique considerations relevant to achieving truth and reconciliation: Fontaine v. Canada (Attorney General), 2015 ONSC 5032, paras. 28, 31.
• Costs may be awarded to the unsuccessful party where the successful party benefits from clarification of the law: Fontaine v. Canada (Attorney General), 2017 ONCA 26 (Spanish RFD), para. 71.
• The court in a class proceeding is directed to consider whether the claim involves matters of public interest when awarding costs: Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 31(1).
• “Public interest” considerations in respect of costs can refer to: (i) the public interest in facilitating access to justice for persons or groups who have historically faced significant disadvantages when seeking legal redress for alleged wrongs, (ii) subject matter of claims, or (iii) claims that raise issues that transcend the immediate interests of the litigants and engage broad societal concerns of significant importance: Das v. George Weston Limited, 2018 ONCA 1053, para. 248.

Positions of the Parties

[11] The Respondents submit that they should be awarded costs on the Canada RFD Decision because:

(i) Metatawabin RFD #2 constitutes public interest litigation.

(ii) The Respondents brought Metatawabin RFD #2 based on a plausible interpretation of the Ancillary Orders, albeit one that I concluded was not correct in the Canada RFD Decision.

(iii) In light of the ambiguity in the language of the Ancillary Orders and the fact that a court is ultimately responsible for the interpretation of its own orders, Canada ought to have brought an RFD analogous to Metatawabin RFD #2, and Canada acted unreasonably in failing to do so.

(iv) Canada unreasonably never offered to settle Metatawabin RFD #2.

[12] Canada submits that the Respondents have not established that the Canada RFD was one of the rare cases in which an unsuccessful party should receive its costs.

Analysis

[13] I do not agree with the Respondents that the Canada RFD was an exceptional RFD in which costs should be awarded against the successful party.

[14] In Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, para. 90, the court held, at para. 90:

It is not enough that a matter be of public interest or importance; to warrant costs in any event of the cause, the case must be “highly exceptional”.

[15] While I accept that Metatawabin RFD #2 raised matters of public interest, there are no “highly exceptional” circumstances to justify costs to the Respondents in unsuccessfully opposing the Canada RFD.

[16] The Canada RFD Decision was based on (i) the interpretation of the Ancillary Orders and (ii) the principles relevant to whether Metatawabin RFD #2 was time-barred, based on the analysis of Justice Brown in the Bundled RFD and referred to with approval by subsequent courts. Neither of those preliminary (and determinative) objections are based on a public interest issue.

[17] In any event, public interest considerations in themselves do not overcome the general principle that costs are awarded to the successful party. In Das, the Court of Appeal reduced a costs award owing to the successful party because of public interest considerations, but did not award costs to the unsuccessful party: Das at para. 273. Awarding costs against a successful party due to public interest considerations would require much more exceptional circumstances than those present in this case.

[18] The public interest issues at play in Metatawabin RFD #2 apply generally in respect of RFDs under the IRSSA. There is no rule or presumption under the IRSSA, however, for Canada to indemnify an unsuccessful requestor: Fontaine v. Canada (Attorney General), 2015 ONSC 5431, para. 39.

[19] I therefore do not find that any circumstances arise from the Canada RFD to establish on a public interest basis that a highly exceptional order should be made directing Canada as the successful party to pay costs of the unsuccessful Respondents.

[20] I likewise do not conclude that the Canada RFD Decision was analogous to the Spanish RFD, wherein the Court of Appeal awarded costs to an unsuccessful respondent (the requestor in that RFD) under the IRSSA in light of the broader benefit to Canada of “having the law clarified on important aspects of the IAP process”: at paras. 31, 71. The Canada RFD Decision addressed compliance with particular orders and whether Metatawabin RFD #2 was time-barred, unlike the broader interests at issue in the Spanish RFD.

[21] I do not fault Canada for not bringing an RFD seeking clarification of the Ancillary Orders. There is no obligation on parties to request that a court interpret an order.

[22] Further, I find no basis to order costs based on settlement proposals related to Metatawabin RFD #2. Based on the Canada RFD Decision, Canada properly declined any offer to settle Metatawabin RFD #2. Canada believed that its interpretations of the Ancillary Orders and the Bundled RFD were correct, and Canada succeeded. There is no basis to penalize Canada in these respects by making a costs award against it, given its success in the Canada RFD Decision.

Conclusion

[23] For the above reasons, I do not order costs of the hearing.

Justice Benjamin Glustein
Released: May 21, 2025

[1] All defined terms are as set out in the Canada RFD Decision.