



COURT OF APPEAL FOR ONTARIO

CITATION:

Herold Estate v. Canada
    (Attorney General), 2021 ONCA
883

DATE: 20211209

DOCKET:
C68393 &
    C68467

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

DOCKET: C68393

The Estate of William Albin Herold, deceased

Applicant (Respondent)

and

Attorney General of Canada
,
Curve Lake First Nation, Hiawatha First Nation and
Mississaugas of Scugog Island First Nation

Respondents (
Respondent
/
Appellants
)

AND BETWEEN

DOCKET: C68467

The Estate of William Albin Herold, deceased

Applicant (Respondent)

and

Attorney General of Canada
,
Curve Lake
    First Nation, Hiawatha First Nation and
Mississaugas of Scugog Island First Nation

Respondent (
Appellant
/
Respondents
)

Robert Janes, Candice S. Metallic, and
    Aubrey Charette, for the appellants (C68393)/respondents (C68467) Curve Lake
    First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First
    Nation

Daniel E. Luxat, for the appellant
    (C68467)/respondent (C68393) Attorney General of Canada

D. Jared Brown, for the respondent
    (C68393/C68467) Estate of William Albin Herold

Heard: March 2, 2021 by video conference

On appeal from the order of Justice Clyde
    Smith of the Superior Court of Justice, dated February 28, 2020, with reasons
    reported at 2020 ONSC 1202.

COSTS ENDORSEMENT

[1]

By reasons dated August 24, 2021, we allowed the
    appeals and set aside the orders of the application judge:
Herold Estate v. Canada (Attorney General)
,
2021 ONCA 579, 461 D.L.R. (4th) 683.

[2]

In our reasons, we awarded costs of the appeals to
    the appellants in the total sum of $43,000, divided equally between the
    appellant First Nations and the appellant Attorney General of Canada. We did
    not address the costs of the proceedings below.

[3]

In correspondence dated December 3, 2021, counsel
    have advised that the parties had reached certain agreements relating to costs,
    reflected in a letter to the court dated March 11, 2021. That letter did not
    previously come to the panels attention.

[4]

In accordance with the agreement reflected in the
    March 11, 2021 letter, we fix the costs below at $154,530.76. The letter states
    that the appellant First Nations seek those costs if successful on the appeal,
    and given their success, those costs are awarded to the First Nations. The
    appellant Attorney General of Canada does not seek costs in the court below.

[5]

The March 11, 2021 letter also provides that the
    parties agree that $43,000 is the appropriate amount for costs of the appeal,
    but that no costs are sought on the appeal by the Attorney General of Canada.
    We interpret the letter to mean that the amount is appropriate for the
    successful party or parties on the appeal who are seeking costs. We therefore
    vary the costs award of the appeal so that $43,000 inclusive of disbursements
    and applicable taxes is awarded to the appellant First Nations, and no costs
    are awarded to the Attorney General of Canada.

Fairburn
    A.C.J.O.

B.W.
    Miller J.A.

B.
    Zarnett J.A.


