|
Indigenous - Costs. 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. . Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan
In Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan (SCC, 2024) the Supreme Court of Canada dismissed a Quebec Crown appeal, that from an allowing by the Federal Court of Appeal, and that from a dismissal of the action at the Federal Court - the action being grounded in the allegation that "Canada and Quebec were in breach of good faith, the obligations flowing from the honour of the Crown or any fiduciary obligation" over a contract whereby the band provided it's own police service and the governments funded it.
The court considered a solicitor-client costs request, grounded in the other side's behaviour. This was declined it as it was not behaviour occuring during the course of the various litigation proceedings, but misbehaviour occuring in the course of the events themselves:[239] The respondent also asked this Court to award costs against Quebec on a solicitor‑client basis. It argues that the appeal represents an exceptional circumstance because it had to [translation] “prolong legal proceedings to have the Appellant’s failure . . . sanctioned despite the fact that the Intervener [the Attorney General of Canada] did not seek to appeal the judgment sanctioning their concerted actions” (R.F., at para. 159). It says that following the usual rule would be contrary to the purposes of reconciliation.
[240] I cannot accept those arguments. In my opinion, this case does not involve exceptional circumstances within the meaning of the case law on costs. In exercising its discretion, the Court awards costs on a solicitor‑client basis where a party has displayed “reprehensible, scandalous or outrageous” conduct or where an appeal raises issues of general importance that go beyond the particular case of the successful party in the appeal (see, e.g., Montréal (City) v. Octane Stratégie inc., 2019 SCC 57, [2019] 4 S.C.R. 138, at para. 95). Here, there are no such circumstances that would justify exercising our discretion. There is nothing to suggest that Quebec acted in a reprehensible, scandalous or outrageous manner in connection with these judicial proceedings. Likewise, Pekuakamiulnuatsh Takuhikan has not shown that it has “no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds” or “that it would not have been possible to effectively pursue the litigation in question with private funding” (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 140; see also Anderson v. Alberta, 2022 SCC 6, at para. 73). I would not depart from the usual rule on awarding costs.
|
