Court File and Parties

Court File No.: CV-21-00671532-0000
Date: 2025-07-17
Court: Superior Court of Justice - Ontario

Re: Ontario Heritage Trust, Applicant
And: Troy James Hunter and Chippewas of Nawash Unceded First Nation, Respondents

Before: Rohit Parghi

Counsel:

• Sylvia Davis and Jenny Kim (student-at-law), for the Applicant
• Alex Van Kralingen, for the Respondent Troy James Hunter
• Benjamin Brookwell and Jesse Abell, for the Respondent Chippewas of Nawash Unceded First Nation

Heard: July 17, 2025 (in writing)

Costs Endorsement

[1] By Reasons for Decision dated June 6, 2025, I granted the application by Ontario Heritage Trust (the “Trust”) and granted a declaration of trespass and related relief under rules 14.05(3)(e) and (g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The parties were unable to resolve costs between them. The Trust and Chippewas of Nawash Unceded First Nation (“Nawash”) advised that they each relied on the costs submissions they had previously uploaded to Case Centre. Mr. Hunter provided costs submissions to me via letter dated July 11, 2025. I have now reviewed the parties’ costs submissions and issue this Endorsement on costs.

[2] Ontario Heritage Trust seeks its costs in the application in the fixed amount of $90,000. Its costs outline demonstrates that its actual costs were $640,596.21, inclusive of disbursements and taxes.

[3] Nawash seeks $79,902.80 in costs. That amount reflects its actual costs on the application on a partial indemnity basis, inclusive of disbursements and taxes.

[4] Mr. Hunter does not dispute that the Trust and Nawash are entitled to costs, but states that there should be a discount applied to the combined costs amount they seek, for two reasons.

[5] First, Mr. Hunter submits, there was a duplication of effort by the Trust and Nawash. Mr. Hunter submits that Nawash’s most important evidence had to do with the spiritual and cultural significance of the lands at issue and that this was an issue that Mr. Hunter never disputed. He says that Nawash’s affiants could have provided their evidence as part of the Trust’s application materials and that the number of parties involved in cross-examination could have been reduced. He also states that beyond the circumstances relating to the cultural and spiritual importance of the land, this was otherwise a traditional trespass application that relied on known jurisprudence, which both the Trust and Nawash discussed in their materials and their oral submissions.

[6] Second, says Mr. Hunter, he made six offers to settle the application with the Trust in an effort to resolve the matter. These should be recognized, as should his engagement with experts who eventually worked with the Trust’s and Nawash’s experts to offer joint recommendations on remediating the encroachments on the land.

[7] In exercising my discretion to fix costs under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I may consider the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those 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, and any other matter relevant to costs.

[8] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para. 60, the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is 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”.

[9] The Trust’s costs claim is already significantly discounted. I award the Trust the amount it seeks of $90,000. In my view, this amount is more than reasonable. It certainly accords with the reasonable expectations of Mr. Hunter, whose costs were roughly the same, although given that the Trust was the applicant and therefore took the lead in amassing the sizeable evidentiary record, one would expect its costs to exceed those of Mr. Hunter.

[10] Having regard to the costs claim of Nawash, I accept Mr. Hunter’s submissions in part.

[11] I agree that there was some duplication between the Trust and Nawash with respect to written and oral argument on the legal issues. In this specific respect, the costs sought by Nawash are somewhat higher than is reasonable.

[12] I also accept that Mr. Hunter made efforts to resolve the litigation and that this is a factor I may consider in awarding costs. Rule 49.13 provides that, when I exercise my discretion in awarding costs, I may “take into account any offer to settle made in writing, the date the offer was made and the terms of the offer”. Rule 57.01 echoes this by providing that a written offer to settle is among the factors I may consider when exercising my discretion in assessing costs pursuant to section 131 of the Courts of Justice Act.

[13] However, I do not agree that the fact that Mr. Hunter conceded the importance of the land renders Nawash’s evidence and submissions on this point duplicative or excessive.

[14] Nawash’s written and oral argument regarding the cultural and spiritual importance of the land was essential to my adjudication of this matter. It was important for me as the trier of fact to understand the meaning and value of the land to Nawash. That evidence and those submissions provided me with essential context and the ability to understand, for example, the true significance of the trespass for Nawash, and why a “land swap” was not an acceptable compromise to Nawash.

[15] Moreover, it was appropriate and valuable for me to hear this evidence and these submissions from Nawash itself, and not from the Trust. Given the importance of the issues, and the unique and essential perspective that Nawash had to offer on them, it was vital that Nawash be able to make its submissions on the issues independently and in its own voice.

[16] I also note, having regard to the costs principles outlined above, that the issues in the proceeding were of great importance, and that the time spent by Nawash’s counsel, the hourly rates they applied, and the delegation of work among their team members were all reasonable.

[17] In all the circumstances, I consider it appropriate to grant Nawash its costs sought, subject to a small discount to reflect the duplication of work on certain of the legal issues, for which Mr. Hunter cannot reasonably be held responsible, and to recognize Mr. Hunter’s efforts to resolve the matter short of litigation. I accordingly award Nawash costs in the amount of $71,000, inclusive of all fees, disbursements, and taxes. Additionally, as discussed above, I award the Trust its costs in the amount of $90,000, inclusive of all fees, disbursements, and taxes. Both costs amounts are to be paid by Mr. Hunter within 30 days.

Rohit Parghi
Date: July 17, 2025