Shea T. Garber

This decision addresses the costs of a "Hybrid Motion" brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and His Majesty the King in Right of Ontario.

The First Nation sought leave to amend its statement of claim to increase damages and clarify the "Headlands Issue," a ruling on a legal issue, and a refusals motion.

The motion had mixed success for all parties.

The First Nation requested substantial indemnity costs of over $200,000, while the defendants sought no costs or partial indemnity of $15,000-$20,000.

The court awarded the First Nation partial indemnity costs of $90,000, payable in the cause, finding no basis for substantial indemnity due to the procedural nature of the motion and the absence of punitive conduct.

The court also noted that principles of reconciliation were not argued on the motion and did not warrant extraordinary costs in this interlocutory context.

The defendants requested an extension of time to deliver their amended statements of defence or motion materials in response to the plaintiff's forthcoming amended statement of claim.

The plaintiff opposed the extension for the defence but agreed to an extension for costs submissions.

The court granted the defendants' request, extending all timelines to thirty days for all parties.

The plaintiff First Nation brought a hybrid motion seeking to determine an issue of law before trial, amend its statement of claim to increase damages to $2 billion and add particulars regarding the 'Headlands Issue', and compel answers to questions refused during discovery.

The defendants opposed the amendments, arguing they asserted a new, statute-barred cause of action, lacked a necessary party (Canada), and constituted an abuse of process.

The court dismissed the motion to determine an issue of law, finding the factual record was disputed.

The court granted leave to amend the statement of claim, holding it was not plain and obvious that the claims were statute-barred or doomed to fail without Canada, but required the plaintiff to deliver a technically compliant pleading.

The refusals motion was largely dismissed, with only four questions ordered to be answered.