Date:
20130128
Docket:
T-139-08
Citation:
2013 FC 86
Toronto, Ontario, January 28, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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LONG PLAIN FIRST NATION, PEGUIS
FIRST
NATION, ROSEAU RIVER ANISHINABE
FIRST NATION, SAGKEENG FIRST
NATION,
SANDY BAY OJIBWAY FIRST NATION,
SWAN LAKE FIRST NATION,
COLLECTIVELY BEING SIGNATORIES
TO
TREATY NO.1 AND KNOWN AS
"TREATY
ONE FIRST NATIONS"
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Applicants
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and
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HER MAJESTY THE QUEEN,
REPRESENTED
BY THE ATTORNEY GENERAL OF
CANADA, THE HON. CHUCK STRAHL IN
HIS CAPACITY AS MINISTER OF
INDIAN
AFFAIRS AND NORTHERN
DEVELOPMENT,
THE HON. VIC TOEWS IN HIS
CAPACITY AS
PRESIDENT OF TREASURY BOARD,
THE
HON. PETER MACKAY IN HIS
CAPACITY
AS MINISTER OF NATIONAL
DEFENCE,
THE HON LAWRENCE CANNON IN HIS
CAPACITY AS MINISTER
RESPONSIBLE
FOR CANADA LANDS COMPANY
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Respondents
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REASONS AND
ORDER AS TO COSTS
[1]
On
December 13, 2012, I issued Reasons and a Judgment herein, as amended December
20, 2012; in which I allowed the Application of some, but not all, of the
Applicants. I concluded by requesting submissions as to costs, which I have now
received from each of the successful Applicants and the Respondents. These
Reasons and Order deal with the matter of costs arising out of my Judgment
herein.
[2]
As
a preliminary matter, I must deal with certain submissions made on behalf of
the Applicant Peguis First Nation, as supported by an Affidavit of Judi Snook,
a legal assistant in the offices of Peguis’ solicitors, sworn January 15, 2013.
That affidavit deals essentially with two things. One is statements purportedly
made by Counsel for the Respondent to the Federal Court of Appeal during the
hearing of the appeal from the decision of Justice Campbell, and whether those
statements were a misrepresentation. The second is the purported conduct of the
Respondent following the release of my Judgment herein.
[3]
I
will not permit the affidavit of Snook to be filed and will disregard any
representations as to costs made on behalf of Peguis in respect of any matter
raised in the Snook affidavit. Whether a misrepresentation was or was not made
to the Federal Court of Appeal is not a matter for consideration by me in
respect of costs. The conduct or alleged misconduct of a party after I have
given Judgment is not a matter for consideration in respect of costs.
[4]
Turning
to relevant matters: the Judgment of Justice Campbell, 2009 FC 982, determined
“…costs to the Applicant First Nations”. The Federal Court of Appeal in its
unanimous reasons, 2011 FCA 148 concluded that it would”…allow the appeal with
costs, set aside the (Trial) Judge’s decision…refer the matter back…for
redetermination of the issues…”
[5]
My
understanding of the Federal Court of Appeal’s decision is that:
•
costs
of the appeal were awarded to the Applicants (the Respondents before
me). It appears that they have yet to be taxed. I will not deal with those
costs in any way, by set-off or otherwise, in my Order here. I consider them to
be a separate matter.
•
the
Order of Justice Campbell has been set aside; I view this as setting aside the
Order as to costs made by him, as well as any other disposition made in his
Judgment.
[6]
At
the hearing before me, reference was made to evidence that was in evidence
before Justice Campbell, as well as to further evidence that was placed in the
record at a time after the Court of Appeal released its decision. Therefore, it
is appropriate that costs shall extend to costs related to the evidence placed
in the record in the hearing before Justice Campbell, as well as the additional
evidence added to the record in the hearing before me. However, given the
disposition of the Court of Appeal, I find that it is not appropriate to award
costs related to the preparation for or attendance at the hearing before
Justice Campbell, or any services thereafter prior to the filing of the Notice
of Appeal from his decision.
[7]
The
Applicants Long Plain, Peguis, Roseau River and Swan Lake have been successful
in this Application. It is appropriate that they be awarded costs. The matter
was a protracted and difficult one. The Respondents did not make the major
concession that it had a duty to consult until their Counsel made that
concession in its submissions before me. Had that concession been made earlier,
substantial effort and evidence could have been saved. The Respondents failed
to make full and candid disclosure of the documents relating to the decision at
issue. This made the argument and decision difficult. Taking all of this into
consideration, I find that each of the successful Applicants is entitled to
costs, to be assessed at the middle of Column V, together with reasonable
disbursements and applicable tax, if any.
[8]
It
would be preferable if the parties could each agree as to a lump sum, rather
than tax the matter. If they choose to tax costs, that may be done by a taxing
officer or directly to me.
ORDER
FOR
THE REASONS PROVIDED:
THIS
COURT THEREFORE ORDERS that:
1.
The
affidavit of Snook should not be received into evidence, and any submissions
made on behalf of Peguis based on what is set out in that affidavit will be
ignored;
2.
Each
of the Applicants Long Plain, Peguis, Roseau River and Swan Lake is entitled to costs to be assessed at the middle level of Column V, in accordance with
these Reasons, together with reasonable disbursements and applicable tax, if
any.
"Roger T.
Hughes"
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