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Civil Litigation Dicta - Costs - Public Interest Litigation (2). Shanks v. Salt River First Nation #195
In Shanks v. Salt River First Nation #195 (Fed CA, 2025) the Federal Court of Appeal allowed a costs appeal, here regarding a public interest matter:[7] I have not been persuaded that the Court erred in law in dismissing the claim for costs calculated on a solicitor-client basis. In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 the Court considered when an award of special costs on a full indemnity basis may be available in public interest litigation. At paragraphs 140 and 141 the Court wrote:[140] In our view, with appropriate modifications, this test serves as a useful guide to the exercise of a judge’s discretion on a motion for special costs in a case involving public interest litigants. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. In those rare cases, it will be contrary to the interests of justice to ask the individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim.
[141] Where these criteria are met, a court will have the discretion to depart from the usual rule on costs and award special costs.
[Emphasis added.] [8] The Federal Court, at paragraph 15 of its reasons, stated that for an award of solicitor-client costs to be made the case "“must also have a significant and widespread societal impact”". In my view, on the evidentiary record before the Court, it was open to the Federal Court to decline to exercise its discretion to award costs on a full indemnity basis.
[9] Turning to Mr. Shanks’ alternate claim for elevated costs on a lump sum basis, the Court in its analysis did not specifically advert to this claim. At paragraph 16 of the Court’s reasons the Court declined to "“characterize the issues raised by Mr. Shanks as being solely in the public interest, as he also had a direct personal interest in the outcome”" but cited this as a further reason for declining to award costs on a solicitor-client basis. No other reason was given for dismissing Mr. Shanks’ claim to elevated lump sum costs.
[10] In Carter, in the passage quoted above, the Supreme Court was clear that not every pecuniary interest disentitles a litigant to enhanced costs. Rather, disentitlement flows from a personal or pecuniary interest that would justify bringing the proceedings on economic grounds. This principle has been recognized and applied in the jurisprudence of the Federal Court. See, for example, MacKinnon v. Canada (Attorney General), 2025 FC 422 at paragraph 311.
[11] In my view, the Federal Court erred in law in finding that Mr. Shanks was not entitled to enhanced costs because he had a direct personal interest in the outcome of the litigation. Rather, the Federal Court was obliged to consider whether his pecuniary interest in having annual per capita payments reinstated to him justified bringing the application on economic grounds.
[12] The evidentiary record before the Federal Court on this point was not extensive. However, had the Federal Court considered the nature of Mr. Shanks’ pecuniary interest, it would have found that in 2021 the amount of the per capita distribution paid was $800 per person (affidavit of Levi MacDonald, paragraph 12 and Exhibit C). In the absence of any evidence to the contrary, assuming the per capita distributions to approximate $800 per year, it would take in the order of 40 years for Mr. Shanks to be reimbursed for payment of his fees and disbursements. In my view, had the Court properly considered this evidence it could not have reasonably concluded that Mr. Shanks’ own pecuniary interest warranted pursuing litigation so as to disentitle him from receiving enhanced costs.
[13] Mr. Shanks asks that if this Court finds error on the part of the Federal Court, the issue of costs not be remitted to the Federal Court. He submits that the issue of the assessment of costs is neither factually complex nor factually voluminous and there are no issues of credibility. Further, a referral back to the Federal Court will incur the expenditure of additional legal fees and delay. I agree. Sending the assessment of costs back to the Federal Court is neither proportionate nor an appropriate allocation of further Court resources.
[14] On the basis of Mr. Shanks’ unchallenged evidence, I am satisfied that the proceeding raised an issue of importance that extended beyond the immediate interests of Mr. Shanks and the First Nation and clarified the First Nation’s governance framework and the entitlement of members to annual per capita distribution payments. Mr. Shanks’ interest in bringing the application did not justify the costs of bringing it and the issue had not previously been determined. The First Nation has a superior capacity to bear the costs of the proceeding and Mr. Shanks’ conduct has not been vexatious, frivolous or abusive. He is entitled to elevated costs to be awarded on a lump sum basis.
[15] In Nova Chemicals Corporation v. The Dow Chemical Company, 2017 FCA 25, this Court wrote that increased costs in the form of lump sum awards tend to range between 25% and 50% of actual fees.
[16] In oral argument, counsel for Mr. Shanks conceded that the bill of costs put before the Federal Court erroneously claimed costs for a second day of hearing when in fact the matter was concluded in a day. The bill of costs also claimed fees for a second counsel that in my view was not warranted by the complexity of this case. Mr. Shanks’ costs calculated on the basis of Tariff B would be in the order of $5,780 plus disbursements. An award of 25% of his actual fees would result in an award of costs in the order of $6,818.25, which is not materially higher than the result obtained by application of Tariff B. Accordingly, in my view an award based on 50% of the fees or $13,636.50 would provide appropriate compensation and reflect the public interest nature of the litigation.
[17] Accordingly, I would allow the appeal, set aside the judgment of the Federal Court and substitute in its stead an order that the First Nation pay to Mr. Shanks costs in the lump sum amount of $13,636.50, plus disbursements in the amount of $1,900.44, plus all applicable taxes. I would also award Mr. Shanks the costs of this appeal. . Waterhen Lake First Nation v. Canada
In Waterhen Lake First Nation v. Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here challenging the striking of a Specific Claims Tribunal claim dealing with 'traditional harvesting'.
Here the court denies that the applicant first nation was a 'public interest litigant', but declines to award costs to the successful Crown regardless:[131] The Applicant argues that the Claim and this application for judicial review represent "“a ‘test case’ regarding the Crown’s unlawful conduct in expropriating Treaty commercial rights to hunt, fish and trap without compensation”" whose importance extends beyond the interests to the parties to the litigation. It claims that it has not engaged in vexatious, frivolous or abusive conduct and that the Crown has superior capacity to bear the costs of the proceeding. Accordingly, the Applicant submits that, according to the factors set out by the Federal Court in Doherty v. Canada (Attorney General), 2021 FC 695 at para. 8, 2021 CarswellNat 3124 [Doherty], the Court should find that it is a public interest litigant and that no costs should be awarded against it.
[132] I do not agree with the Applicant that it is a public interest litigant. One of the indicia listed by the Federal Court in Doherty to identify public interest litigants is that "“[t]he party requesting relief has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if they have an interest, it clearly does not justify the proceeding economically”": Doherty at para. 8. That indicium is clearly not met in this case. As observed by the Supreme Court in Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 76, [2003] 3 S.C.R. 263:It is difficult to regard the plaintiff who is seeking several million dollars in damages as a public interest litigant. The fact that the actions involve public authorities and raise issues of public interest is insufficient to alter the essential nature of the litigation. [133] Rule 400(1) of the Federal Courts Rules, SOR/98-106 establishes the basic principle that costs are at the complete discretion of this Court as to issues of entitlement, amount and allocation and are, in that sense, "“quintessentially discretionary”": Haynes v. Canada (Attorney General), 2023 FCA 244 at para. 13, [2023] F.C.J. No. 2289 (Q.L.), citing Canada (Attorney General) v. Rapiscan Systems Inc., 2015 FCA 97 at para. 10, [2015] F.C.J. No. 511 (Q.L.), and Nolan v. Kerry (Canada) Inc., 2009 SCC 39 at para. 126, [2009] 2 S.C.R. 678.
[134] For the following reasons, I would exercise my discretion to depart from the general rule that the successful party is entitled to costs.
[135] The Applicant has been advancing its claim for compensation for the abrogation of its treaty harvesting rights, in one form or another, since 1975. In the half century since the Applicant first filed a claim with the federal government’s Office of Native Claims, the federal government has declined to negotiate the Claim and the Applicant has been unable to secure a final adjudication of the merits of the Claim by an independent tribunal.
[136] In 2007, the Minister of Indian Affairs and Northern Development and the National Chief of the AFN concluded a Political Agreement on specific claims reform. It accompanied the draft bill that was jointly developed by the federal government and the AFN and introduced into Parliament as Bill C-30, culminating in the Act. In the Political Agreement, the parties agreed that it was "“a legal and moral imperative… to address the Specific Land Claims in a just and timely manner.”" Indeed, the Preamble of the Act recognizes that "“resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations.”" The parties also specifically contemplated that there would be claims excluded by the statutory claim limit of $150 million "“or other provisions”" of the Act, and expressed their commitment to work in partnership to address these matters and develop "“approaches to claims that are outside the specific claims policy and the scope of the [Act]”": House of Commons, Standing Committee on Aboriginal Affirs and Norther Development, Evidence, Evidence, 39-2, No 12 (6 February 2008) at 15:45 (Chuck Strahl, introduction of Bill C-30).
[137] In light of the Applicant’s longstanding claims and the fact that they are still awaiting resolution close to 18 years following the Political Agreement and the introduction to Parliament of Bill C-30, the Applicant cannot be faulted for filing the Claim and seeking access to a specialized tribunal designed to adjudicate specific claims in a just and timely manner. Nor can the Applicant be faulted for seeking judicial review of a decision by the Tribunal on the scope of its jurisdiction under the Act which would deny the Applicant access to this mechanism, particularly since, to the Court’s knowledge, this was the first time the Tribunal was called on to interpret the scope of paragraph 15(1)(g) of the Act.
[138] For these reasons, I conclude that it would be fair and appropriate not to order costs against the Applicant in the circumstances of this case. . Society of Composers, Authors and Music Publishers of Canada v. Sirius XM Canada Inc.
In Society of Composers, Authors and Music Publishers of Canada v. Sirius XM Canada Inc. (Fed CA, 2024) the Federal Court of Appeal considered 'public interest' costs:[12] The respondent seeks elevated costs equal to 50% of its expenses. It says the lack of arguable merit in the application warrants an adverse costs consequence. We disagree to this extent: this was not just a rerun of SOCAN (2010). Important and arguably somewhat unclear issues of practice and procedure before administrative decision-makers were also involved. As well, this Court does not want to create a disincentive against judicial reviews of administrative decisions of public interest. Therefore, in our discretion, we will fix the respondent’s costs in the all-inclusive amount of $15,000. . Ontario Place for All Inc. v. Ontario Ministry of Infrastructure
In Ontario Place for All Inc. v. Ontario Ministry of Infrastructure (Div Court, 2024) the Divisional Court considers public interest costs:Costs
[26] Ontario Place for All is a public interest litigant with no personal interest in this litigation. Its goal was to conserve the natural environment and hold the government accountable for environmental requirements when redeveloping important public lands. I agree with its position that, if unsuccessful on the motion, it should not be required to pay costs. . Ramsay v. Waterloo Region District School Board
In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers public interest costs, here in an unsuccessful JR against a school board trustee disciplinary decision:[64] Although the issues dealt with on this application may be of some public interest, I do not consider the magnitude of same to be great enough to affect the usual determination of costs in an application of this nature. The decision under review primarily affects an interest that is specific to Ramsay, being the negative finding that he breached the WRDSB’s Code of Conduct. I consider that the public interest is better served by directing that Ramsay, as the unsuccessful party, pay to the WRDSB, the publicly-supported successful party, a contribution toward its costs of responding to this application.
[65] Accordingly, costs of the application, fixed in the amount of $7,500 inclusive of all disbursements and applicable taxes, shall be paid to WRDSB by Ramsay, if demanded. . Carolyn Burjoski v. Waterloo Region District School Board
In Carolyn Burjoski v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers a JR against a school board decision to stop a "presentation to a Committee of the Whole Meeting". Here the courts considers the JR applicant's 'public interest' costs argument after dismissal:Costs
46. The WRSDB has been successful in its response to this application and seeks its costs as a result.
47. Burjoski submits that the WRDSB should not receive any award of costs. Instead, she submits that the issue she has raised is of such public interest that no costs should be ordered.
48. I see no compelling reason why the usual approach as to awarding costs to the successful party should be departed from in this case. Although Burjoski’s perspective on what students should and should not read may be shared by others, it is not of such a nature as to operate to insulate her from an order that she contribute to the costs of the opposing party when she initiates a court proceeding.
49. Costs fixed at $5000, inclusive of disbursements and applicable taxes, shall be paid by Burjoski to the WRDSB if demanded. . South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al.
In South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al. (Div Court, 2023) the Divisional Court considered a costs issue, here in a leave to appeal motion:[5] The moving party submits that it should be considered a public interest litigant, that it has no assets, and that, if unsuccessful, no costs should be awarded against it.
[6] I am not persuaded that the moving party is a public interest litigant in accordance with the test set out in CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (Div. Ct.), at para 164. The moving party is a neighbourhood association opposing development applications in its neighbourhood. Its members are directly impacted by the proposed development. While stating it is raising important planning issues, it also acknowledges in its factum that it is essentially arguing “not in our backyard.”
[7] That said, I accept that, as a neighbourhood association, it has little to no assets. This is a relevant factor in my assessment and will reduce the quantum of costs ordered.
[8] Overall, I find costs of $10,000 to be appropriate. Therefore, the moving party shall pay costs of $10,000 to the Kingsett responding parties. No costs are ordered for or against the City of Toronto, which did not make any submissions on the motions.
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