Kanyen’ke:haka Nation v. Ontario, 2026 ONSC 2402

Court File and Parties

CITATION: Kanyen’ke:haka Nation v. Ontario, 2026 ONSC 2402 COURT FILE NO.: CV-25-000430-00 DATE: February 9, 2026

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kanyen’ke:haka Nation, Applicant/Moving Party AND: His Majesty the King in right of Ontario as represented by the Solicitor General, Respondent/Responding Party AND: Mohawks of the Bay of Quinte, Respondent/Responding Party

BEFORE: Rees J.

COUNSEL: C. Harris for the Kanyen’ke:haka Nation T. McGee and P. Ryan for His Majesty the King in Right of Ontario L. Koerner-Yeo and E. Wall for Mohawks of the Bay of Quinte

HEARD: In writing

Costs ENDORSEMENT

Overview

1On December 18, 2025, I dismissed the applicant’s motion for an interlocutory injunction and I dismissed the application without prejudice to a properly constituted proceeding being commenced in the future. One of the findings I made was that, on this record, there is no evidence that the Kanyen’ke:haka Nation has the legal capacity to sue or be sued, and therefore the proceedings could not be brought in its name and it could not participate in the proceedings in its own right.

2As a result, I put Mr. LeFort on notice that he was at risk of bearing the cost consequences personally and I encouraged him to retain counsel.

3Mr. LeFort did so. He accepts that as Roskenrakehtekowa he, rather than the Kanyen’ke:haka Nation, ought to pay costs. Thus, the only issue is the amount.

4Ontario does not seek costs. The Mohawks of the Bay of Quinte (MBQ) seek costs in the amount of $40,510.34 on a partial indemnity basis. By contrast, Mr. LeFort argues that he should pay $8,372.49 in costs.

Analysis

5In exercising my discretion in awarding costs, I may consider any relevant matter and r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out a list of factors that the court may consider. I have considered these factors, including: the principle of indemnity; the experience of counsel, rates charged, and hours spent; the amount an unsuccessful party could reasonably expect to pay; the amount claimed and the amount recovered; the importance of the issues; the complexity of the proceedings; and the conduct of the parties. The most significant factor to consider is that the amount of costs must be reasonable and fair.

6MBQ incurred actual costs of $74,513.34, including disbursements, in responding to the applicant’s motion for an interlocutory injunction. MBQ argues that the following factors justify a partial indemnity costs award: the principle of indemnity, the complexity of the proceedings, the importance of the issues, the applicant’s conduct which unnecessarily lengthened the proceedings, and the fact that the applicant took unnecessary steps.

7MBQ argues that the court should send a message that litigating collective rights is a serious undertaking with real consequences. This is acute because First Nations governments like MBQ operate under significant financial constraints.

8MBQ’s materials were well prepared. They consisted of an affidavit from Chief Maracle and a factum. There was, however, no cross-examination on the materials exchanged by the parties. MBQ only appeared at two attendances: the first was a relatively brief timetabling attendance via Zoom and the second was in person on the return of the motion for an interlocutory injunction.

9Although the subject matter engaged Aboriginal and treaty rights, the issues were not particularly complex. The motion and application were dismissed based on established principles regarding the legal capacity to sue and be sued, r. 15.01(1) of the Rules of Civil Procedure, and principles of mootness.

10Overall, I find that the actual costs incurred by MBQ were high.

11The issues were doubtless important to MBQ and the community, both because of community safety and because the issues raised by the applicant engaged the Aboriginal and treaty rights of the First Nation. But the main issues before me were: (1) did the Kanyen’ke:haka Nation have the legal capacity to bring the application; (2) could Mr. LeFort, a non-lawyer, represent the Kanyen’ke:haka Nation; and (3) should the interlocutory injunction be granted. These issues were circumscribed and did not require significant engagement with the merits of the underlying application.

12MBQ is seeking 159.5 hours of lawyer time plus 37.8 hours of law clerk time. To put this into context, 40 hours of billing is eight hours of billing a day for five days. MBQ’s lawyers spent collectively just shy of four weeks of work on this matter. Add to that almost another week of a law clerk’s time. Respectfully, this is not proportionate to the importance and complexity of the issues. Even on a partial indemnity basis, Mr. LeFort should not have to bear all this time.

13Because I did not decide the merits of the applicant’s motion for an interlocutory injunction, I will limit my comments on its merits. Suffice it to say that while I am not prepared the find, for the purpose of fixing costs, that the applicant’s motion for an interlocutory injunction was frivolous, the broad claims being advanced were poorly supported on the record the applicant put before the court.

14Mr. LeFort argues that he is not a lawyer and had difficulty navigating the court system. He also argues that he should not be penalized for undue delay or inappropriate steps as an unsophisticated party.

15The applicant was repeatedly encouraged by the court to retain counsel. The issue of the Kanyen’ke:haka Nation’s capacity to bring the proceeding and Mr. LeFort’s ability to represent the Kanyen’ke:haka Nation was raised at his first appearance before the court and repeatedly thereafter. The court could not have signalled more clearly that the proceedings had, on this record, significant procedural defects.

16Ultimately, the amount of costs must be reasonable and fair. Having considered all the relevant factors, I conclude that awarding MBQ costs of $18,000, all inclusive, is reasonable and fair.

Disposition

17Mr. LeFort shall pay the Mohawks of the Bay of Quinte $18,000 in costs, all inclusive, within 30 days of this endorsement.