|
Civil Litigation Dicta - Costs - Costs 'Success'. Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)
In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".
Here the court considers 'success' in a case, for costs purposes:[249] The Town’s grounds of appeal all turn on its argument that the trial judge erred by characterizing Canada as “the successful defendant”. The Town submits that Canada was not “successful” relative to the other defendants on what the Town views as the essential question in this litigation: the location of the eastern boundary of Saugeen’s Reserve.
[250] We do not agree with this submission. The trial judge’s determination that Canada was the successful defendant, relative to the other defendants, is a question of mixed fact and law, and thus entitled to deference on appeal absent an error in principle or palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37. As Newbury J.A. explained in Fraser v. Desmond (1996), 1996 CanLII 1610 (BC CA), 24 R.F.L. (4th) 365 (B.C.C.A.), at para. 7, there is good reason to defer to a trial judge’s assessment of the parties’ relative success:I think it must be acknowledged that a person appealing an order for costs made at the close of detailed Reasons for Judgment faces an uphill battle in attempting to persuade an appellate court that a trial judge failed properly to assess the relative success or failure of each party. The trial court has before it not only the pleadings and final result of the case, but is able to assess as well how the evidence went in, who was responsible for any prolongation or shortening of the trial, the reasonableness of the positions taken by the parties, and what the “real issues” turned out to be. In my opinion, we should accord a good degree of respect to such an assessment and should not require a trial judge to list in detail the many factors behind it. [251] It was open to the trial judge to conclude that Canada was the successful party relative to the Town. In assessing success, courts look to the overall outcome of the proceeding, rather than conduct an issue-by-issue analysis: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381, at para. 10; Aurora (Town) v. Lepp, 2020 ONCA 528, 5 M.P.L.R. (6th) 8, at para. 24. Here, the trial judge concluded that the central issue was the location of the Reserve’s eastern boundary and that Canada was successful on that issue.
[252] The Town argues that Canada was not the successful defendant because the trial judge rejected Canada’s (and Saugeen’s) position that Rankin was able to draw a boundary on dry land to lot 31; she found instead that Rankin confronted a latent ambiguity due to the coastline’s concavity, and wrongly exercised his discretion to move the Reserve’s northern terminus to a spot further south. In other words, the trial judge did not accept Canada’s position that Rankin’s survey reserved the Disputed Beach, but instead concluded that his survey wrongly excluded the Disputed Beach.
[253] While the Town is right in that the trial judge rejected Canada’s theory about what Rankin did, the trial judge agreed with Canada’s overarching argument, which is that the Disputed Beach is part of the Reserve. Put another way, despite her rejection of Canada’s theory about Rankin’s approach, the trial judge found that Canada was the successful defendant because she accepted its position on the central question she had to answer: whether the Reserve includes the Disputed Beach.
[254] We acknowledge that another judge might have, on this record, arrived at a different conclusion, especially since this litigation arose from the Crown’s breaches of the duties it owed Saugeen. But that alone is not a basis on which to grant leave. The Town has not displaced the deference owed to the trial judge’s determination that Canada was the successful defendant.
|
