



COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2018 ONCA
    693

DATE: 20180823

DOCKET: C63804

Hoy A.C.J.O., Juriansz and Miller JJ.A.

BETWEEN

Larry Philip Fontaine, et al.

Plaintiffs

and

The Attorney General of Canada, et al.

Defendants/Respondents

In the Matter of the Request for Directions by
IAP Claimant H-15019
Pertaining to St. Annes Indian Residential School

Requestor/Appellant

In the Matter of the Request for Directions by
Edmund Metatawabin
and by IAP Claimant K-10106
Pertaining to St. Annes Indian Residential School

Requestors/Appellants

Proceedings under the
Class Proceedings Act
,
    1992, S.O. 1992, C.6

Margaret L. Waddell and Fay K. Brunning, for the
    appellants Claimant H15019, Claimant K-10106 and Edmund Metatawabin

Catherine A. Coughlan and Brent Thompson, for the
    respondent Attorney General of Canada

Peter C. Wardle, for the intervenor

Diane Soroka, David Schulze and Maryse Décarie-Daigneault,
    for the Independent Counsel

Heard: March 13, 2018

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated April 24, 2017.

COSTS ENDORSEMENT

[1]

We have received and reviewed the submissions of the parties and
    Independent Counsel regarding the costs of the appeal.

[2]

Canada, which was successful on the appeal, does not seek costs against
    the appellants. Further, it has dropped its prior request that appellants
    counsel be ordered to pay costs personally.

[3]

Although unsuccessful on the appeal, the appellants seek costs against
    Canada on a partial indemnity scale. The appellants argue that costs are
    warranted given what they characterize as the unique circumstances of, and
    public interest underlying, the case.

[4]

Independent Counsel supported the appellants position on appeal. They
    submit that they should also be entitled to costs. They argue that they
    provided the court with helpful background information on the Indian
    Residential Schools Settlement Agreement (2006) and made different submissions
    than the appellants.

[5]

Canada opposes the award of costs to the appellants and Independent
    Counsel. They submit that costs are not appropriate in this case because the
    issues on appeal were predominantly procedural, the issues were largely settled
    in earlier litigation in which several of the litigants were involved, and the
    conduct of the appellants counsel is incongruous with a costs award.

[6]

This court upheld the order of the administrative judge. He dismissed
    the appellants Requests for Directions
without costs
.
    We see no reason why a different costs disposition should prevail on appeal.
    The nature of the issues raised on this appeal do not warrant a costs award in
    favour of the appellants or Independent Counsel.

[7]

Accordingly, there shall be no costs of the appeal.

Alexandra Hoy A.C.J.O.

R.G. Juriansz J.A.

B.W. Miller J.A.


