ORDER AND REASONS

[1] On August 21, 2025, I rendered a decision granting Cassandra Kaysaywaysemat’s application for judicial review and requested submissions from the parties on costs: Kaysaywaysemat v Rainy River First Nations, 2025 FC 1397. This is my decision on costs.

[2] The Applicant seeks costs on a solicitor client basis, in the amount of $33,184.74 inclusive of disbursements and H.S.T. In the alternative, she seeks a lump sum award based on 80% of her actual costs. In the further alternative, she seeks an award in the amount of $11,058.77 pursuant to Column V of Tariff B.

[3] The Respondents submit a lump sum award of costs in the amount of $3,500 is justified, or in the alternative, $5,000. The Respondents base these amounts on the range in Column III of Tarriff B. They argue this is within the typical range of cost awards in First Nations governance disputes.

[4] For the reasons that follow, I order costs in favour of the Applicant in the amount of $8,744.37, which is equivalent to 30% of the Applicant’s eligible legal costs.

I. Analysis

[5] The Court has broad but not unfettered discretion in determining costs awards. The Court may take into account a list of non-exhaustive factors set out in Rule 400(3) of the Federal Courts Rules, SOR/98-106, as well as the objectives that underlie costs awards generally: Nova at para 19 (appeal dismissed on different grounds, 2022 SCC 43). Costs awards have several objectives: (1) indemnifying the successful party; (2) incentivizing the rational use of scarce judicial resources; and (3) facilitating access to justice: Whalen v Fort McMurray No 468 First Nation, 2019 FC 1119 at paras 3-5 [Whalen].

[6] The contemporary trend favours lump sum costs awards “wherever possible.” This saves the parties form having to take additional steps to have their costs formally assessed under Tarriff B: Jahazi v Canada (Citizenship and Immigration), 2024 FC 2072 at para 30.

[7] Typically, lump sum costs awards range between 25% to 33% of actual costs, but there may be circumstances that warrant something outside this range: Apotex at para 22. The upper end of costs awards is generally 50%: Metis Settlements General Council v Canada (Crown-Indigenous Relations), 2024 FC 919 at para 12.

[8] Justice Grammond summarized the costs principles in First Nations governance cases as follows:

1. In First Nations governance cases, as in other cases, an award of costs is in the trial judge’s discretion, which must be exercised after taking all relevant factors into consideration;.

2. The imbalance between the financial resources of an applicant and those of the First Nation, or a party whose legal fees are paid by the First Nation, is a relevant factor;

3. Taken in isolation, however, the resource imbalance is not a sufficient factor to justify an award of costs on a solicitor-client basis;

4. The fact that an application contributed to clarify the interpretation of a First Nation’s laws or governance framework may be taken into account when making a costs award; but not every application falls in that category.

(Whalen at para 27)

[9] In light of the above, I find that a lump sum award of 30% of the Applicant’s eligible legal costs is justified in the circumstances. I have taken the following factors into consideration:

• The success of the Applicant;

• The application was of average complexity;

• The decision on the judicial review may be of assistance to Rainy River First Nations in interpreting and applying its law;

• There is an imbalance of resources between the parties; and

• There is no basis to find that the Respondents’ behaviour was of the type that would attract an award of solicitor-client costs. I disagree with the Applicant’s assertion that the Respondents’ argument challenging this Court’s jurisdiction was improper or vexatious.

[10] The Applicant provided a breakdown of her legal costs. The itemized costs include fees for legal assistants, in the amount of $4,039.84, including HST, which the Respondents challenge. The Applicant provided no authority or justification for including fees for non-lawyers in the costs award. Accordingly, I have removed this amount from the total in calculating the lump sum award.

THIS COURT’S ORDER is that the Respondents pay the Applicant costs in the amount of $8,744.37, all inclusive.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: