Docket: T-1284-13
Citation:
2015 FC 195
Ottawa, Ontario, February 17, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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WILLIAM LOUISON
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Applicant
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and
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OCHAPOWACE FIRST NATION,
312050 SASKATCHEWAN LTD., AND MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT CANADA
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Respondents
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REASONS ON COSTS AND JUDGMENT
[1]
In Reasons dated January 19, 2015, I dismissed
William Louison’s application for judicial review seeking to quash a Notice to
Vacate that had been served on him by the Ochapowace First Nation. Mr. Louison
argued that the lands in question were rightfully possessed by him as a
descendant of the original holders of the land, and as a member of the
Kahkewistahaw First Nation.
[2]
Mr. Louison admitted before me that he was
essentially trying to assert Aboriginal title to the lands in question.
However, the Saskatchewan Court of Queen’s Bench has already determined in
other proceedings between these parties that Mr. Louison did not have
standing to assert Aboriginal title on behalf of the Kahkewistahaw First
Nation. The Saskatchewan Court of Appeal upheld this finding, and the Supreme
Court of Canada denied leave to appeal that decision: Louison v. Ochapowace
Indian Band #71, 2011 SKQB 87, 369 Sask.R. 258, aff’d by 2011 SKCA 119, 377
Sask.R. 19, leave to appeal refused [2011] S.C.C.A. No. 533, C.S.C.R. no. 533.
[3]
I therefore concluded that Mr. Louison was
attempting to re-litigate a legal issue that had already been finally
determined against him by the Saskatchewan Courts, and that he did not have
standing to assert a claim for Aboriginal title to those lands on behalf of the
Kahkewistahaw First Nation. As a consequence, his application for judicial
review was dismissed. What remains to be determined is the question of costs.
[4]
The respondents submit that they should be
entitled to their costs fixed at $5,000. While recognizing that this may be at
the upper end of the scale of costs ordinarily awarded against an individual
litigant in an Aboriginal matter, the respondents say that such an award is
justified in this case, given the manifest lack of merit of Mr. Louison’s
application and the fact that he has derived a substantial benefit from his
lengthy and unlawful occupation of the lands in question.
[5]
Mr. Louison says that I should consider his
financial circumstances, and the fact that Prothonotary Lafrenière awarded him
costs in the cause with respect to the respondents’ unsuccessful motion to
strike his Notice of Application. Mr. Louison also denies that he has derived
as great a benefit from his occupation of the lands in dispute as the
respondents contend.
[6]
I have concluded that the respondents are
entitled to the costs that they seek fixed in amount of $5,000, inclusive of
disbursements.
[7]
There is conflicting evidence before me as to
the extent of the benefit that Mr. Louison has enjoyed as a result of his
occupation of the property in question. I do, however, understand him to
concede that he has enjoyed the occupation of a house, the use of a workshop,
and that he has been able to graze horses and harvest hay on at least a portion
of the disputed lands.
[8]
I do not have to resolve the conflict in
evidence on this point. I agree with Mr. Louison that his application
concerned the respondents’ authority over the lands in question, and was not a
claim by the respondents for damages arising out of his unauthorized use of the
property. The question of what benefit Mr. Louison may have been derived
from his use of the disputed lands is, in my view, better addressed in the context
of the eviction proceedings currently before the Saskatchewan Court of Queen’s
Bench than in relation to the question of costs in this proceeding. That said,
even if I were to accept Mr. Louison’s evidence on this issue, there are
other reasons why a substantial order of costs is nevertheless appropriate in
this case.
[9]
I attach little weight to the settlement offer
that Mr. Louison made in November of 2013. The offer was open for only one
day, and required the respondents to abandon other claims that they may have
had against Mr. Louison for previous costs awards and an accounting of
profits. The offer would, moreover, have allowed Mr. Louison to remain in
possession of the property for an additional seven months after the date of the
offer.
[10]
Insofar as Prothonotary Lafrenière’s costs order
is concerned, I do not agree that Mr. Louison should receive a credit for
the costs of that motion. Prothonotary Lafrenière determined that
Mr. Louison was entitled to his costs of the motion, in the cause, and not
in any event of the cause. The effect of an award of costs of an interlocutory
proceeding to a party in the cause is that the party will be entitled to his
costs of the interlocutory proceeding, but only if he is ultimately successful
in the underlying application: Turner v. Canada, [1989] F.C.J. No. 343.
That is not the case here.
[11]
As to Mr. Louison’s financial
circumstances, I understand him to now concede that his impecuniosity is not a
relevant factor in the determination of the question of costs. I agree: see Leuthold
v. Canadian Broadcasting Corp., 2014 FCA 174, at para. 12, 462 N.R. 191.
[12]
The factor to which I attached the greatest
weight is the manifest lack of merit of Mr. Louison’s application, and the
fact that he was admittedly trying to re-litigate an issue that the
Saskatchewan Courts have already finally determined against him.
[13]
One purpose of an award of costs is to
discourage unmeritorious litigation: Apotex Inc. v. Syntex Pharmaceuticals
International Ltd. (1999), 176 F.T.R. 142 at para. 2, [1999] F.C.J. No. 1465,
rev’d on other grounds 2001 FCA 137, [2001] F.C.J. No. 727. In this
case, a full day was set aside for Mr. Louison’s application, and it is
evident from the Court record that the respondents were put to considerable
expense in preparing for a hearing that was manifestly unmeritorious. In the
circumstances, an award of $5,000 in costs is warranted.
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