Fontaine v. Canada (Attorney General)

Fontaine v. Canada (Attorney General) Collection Decisions of the Court of Appeal Date 2021-01-29 Neutral citation 2021 ONCA 66 Docket numbers C68407 Judges Fairburn, J. Michal; Rouleau, Paul S.; Miller, Bradley Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA 66 DATE: 20210129 DOCKET: C68407 Fairburn A.C.J.O., Rouleau and Miller JJ.A. BETWEEN Larry Philip Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee Plaintiffs (Appellants) and The Attorney General of Canada, The Presbyterian Church In Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of The United Church of Canada, The Women’s Missionary Society of The Presbyterian Church, The Baptist Church In Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of The Synod of Cariboo, The Foreign Mission of The Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as The Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of The Anglican Church of the Diocese of Quebec, The Synod of The Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of The Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women’s Missionary Society of the United Church of Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Saint Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale Catholique Romaine de la Baie d’Hudson-The Roman Catholic Episcopal Corporation of Hudson’s Bay, Missionary Oblates-Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate-St. Peter’s Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver-The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc. Defendants (Respondent) Fay K. Brunning and Michael Swinwood, for the appellants Edmund Metatawabin, St. Anne’s IAP Claimant T-00185, St. Anne’s IAP Claimant S-20774, and St. Anne’s IAP Claimant S-16753 Catherine Coughlan and Brent Thompson, for the respondent Attorney General of Canada Stuart Wuttke, for the respondent Assembly First Nations David Schulze, for the respondent Independent Counsel Evatt Merchant, for the respondent Merchant Law Group Estée Garfin, for the intervener Attorney General of Ontario Heard: September 21, 2020 by video conference On appeal from the order of Justice Paul M. Perell of the Ontario Superior Court of Justice, dated June 5, 2020, with reasons reported at 2020 ONSC 3497. COSTS ENDORSEMENT [1] Four participants in this appeal seek nearly $190,000 in costs. The respondent, the Attorney General of Canada (“Canada”), has already agreed to pay $53,543.53 in costs to the appellants but opposes the costs requested by the three other participants, that is: the Assembly of First Nations’ request for $10,550; the Merchant Law Group’s request for $70,818.89; and the request of Independent Counsel for $54,542.50. These three additional participants seek costs on a full indemnity basis. [2] Canada maintains that, unlike the appellants, these three other participants were not directly impacted by the order under appeal and neither Independent Counsel nor the Merchant Law Group represents a discernible client interest. Further, Canada argues that the issue on appeal was a straightforward interpretative issue. The arguments of the three requesting parties’ submissions on the appeal were unnecessarily duplicative and were largely covered by the appellants. Therefore, Canada indicates that this is not an appropriate case to award costs to the three other participants. [3] The three requesting parties argue that costs should follow the result. They maintain that they raised arguments on which the court ultimately relied in allowing the appeal. They submit that the issues were complex and of national significance and the amounts they request are reasonable and proportionate in the circumstances. [4] In our view, it is appropriate that the three requesting parties be awarded costs. They were entitled to participate in support of the appellants and, in that sense, were successful parties on appeal. However, we consider the amount sought to be excessive in the circumstances. While the issues raised on the appeal were not simple, they were nonetheless straightforward issues of interpretation. [5] While we do not question the time each of the three additional participants devoted to this matter, it is clear to us that much of the work carried out by the requesting parties was duplicative of the work done by the appellants and by each other. We see little purpose in carrying out a line by line analysis of each of the bill of costs with a view to identifying and eliminating selected entries. [6] In our view, it is unreasonable to require Canada to reimburse each of the participants on a full indemnity basis for all of the time being claimed. We consider the amount sought by the Assembly of First Nations to be generally reasonable, and we award it $10,000 in costs. The amount sought by the Merchant Law Group is, however, excessive in the circumstances, and we award it $20,000 in costs. The amount sought by Independent Counsel is considerably less than the amount sought by the Merchant Law Group, but we nonetheless consider it excessive in the circumstances. We note that Independent Counsel participated and made submissions on the stay motion and, as a result, should be awarded an amount somewhat higher than the amount awarded to the Merchant Law Group. We therefore award Independent Counsel $27,000 in costs. [7] All amounts are inclusive of applicable taxes and disbursements. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “B.W. Miller J.A.”