



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 Womens 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 Quappelle,
    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 Womens
    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
    dAssise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de
    Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de lAssomption de la
    Sainte Vierge, Les Soeurs de lAssomption de la Saint Vierge de lAlberta, Les
    Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de lOntario, 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 dHudson-The Roman Catholic Episcopal Corporation of Hudsons 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. Peters 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. Annes IAP Claimant T-00185, St. Annes IAP Claimant
    S-20774, and St. Annes 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 Groups 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.


