2018 QCCA 1171, 2018 QCCA 1171

Corneau c. Procureure générale du Québec 2018 QCCA 1171 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC Nos.: 200-09-008957-158 , 200-09-008958-156, 200-09-008959-154, 200-09-008960-152, 200-09-008961-150, 200-09-008962-158, 200-09-008963-156, 200-09-008964-154, 200-09-008965-151, 200-09-008966-159 (150-05-002108-001) (150-05-003511-088) (150-17-000584-034) (150-05-003517-085) (150-05-003514-082) (150-05-003497-080) (150-05-003498-088) (150-05-003513-084) (150-05-003508-084) (150-05-003495-084) DATE: July 18, 2018 CORAM: THE HONOURABLE LORNE GIROUX, J.A. JEAN BOUCHARD J.A. MARIE ST-PIERRE, J.A.

No: 200-09-008957-158 (150-05-002108-001) GHISLAIN CORNEAU APPELLANT – Respondent v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY Mashteuiatsh First Nation INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008958-156 (150-05-003511-088) MIVILLE CORNEAU APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE

IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008959-154 (150-17-000584-034) STÉPHANE CORNEAU APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008960-152 (150-05-003517-085) MARTIN PELLETIER APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and RCM LE FJORD-DU-SAGUENAY MUNICIPALITY OF SAINT-FULGENCE IMPLEADED PARTIES – Impleaded parties and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008961-150 (150-05-003514-082) JEAN-MARIE GAGNÉ GABRIELLE SIMARD APPELLANTS – Defendants v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER

No: 200-09-008962-158 (150-05-003497-080) ANDRÉ LALANCETTE APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008963-156 (150-05-003498-088) CLÉMENT LALANCETTE APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008964-154 (150-05-003513-084) RICHARD RIVERIN APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER No: 200-09-008965-151 (150-05-003508-084) GABRIEL JEAN APPELLANT – Defendant v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER

No: 200-09-008966-159 (150-05-003495-084) MARC SIMARD APPELLANT – Defendant v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Plaintiff and DOMAINE DU ROY AND MINGAN SEIGNORY METIS COMMUNITY MASHTEUIATSH FIRST NATION INNU ESSIPIT FIRST NATION NUTASHKUAN FIRST NATION IMPLEADED PARTIES – Interveners and MÉTIS NATIONAL COUNCIL INTERVENER JUDGMENT [ 1 ] In a judgment rendered on the same date as this one, the Court dismissed the appellants’ appeals from ten judgments rendered on February 10, 2015, by the Superior Court, District of Chicoutimi (the Honourable Roger Banford), [1] granting the applications for dispossession instituted by the respondent, the Attorney General of Quebec, under ss. 54 , 60 , and 61 of the Act respecting the lands in the domain of the State . [2] [ 2 ] In these appeals, the appellants ask for a provision for costs, submitting that they are entitled to it according to the test set out by the Supreme Court in Okanagan . [3] They claim $166,864.33. [ 3 ] While it does not question the Court’s jurisdiction to grant such a provision, the respondent argues that the test developed in Okanagan has not been met and that the Court should therefore refuse to grant the provision for costs requested. [ 4 ] The respondent is correct. [ 5 ] As will be explained, the appellants have failed to discharge their burden of proving that the application for a provision for costs meets the requirements that alone give rise to such a provision.

Given that a provision for costs can only be granted in proven exceptional circumstances, which is not the case here, the Court has no choice but to dismiss the application. [ 6 ] The reasons are as follows.

Appeal files [ 7 ] The impugned trial judgments were rendered on February 10, 2015, and the records were opened at the Court on March 12, 2015, after the notice of appeals were served and filed. [ 8 ] As early as May 2015, due to the number of appeals and the length of the trial hearing (37 days), the files were assigned to case management, namely for the purpose of setting the dates for disclosing and filing the briefs for the appellants, the respondent and the impleaded parties. [ 9 ] The briefs were therefore disclosed and filed at Court on the following dates: • Appellants’ brief: August 13, 2015 • Respondent’s brief: November 16, 2015 • Impleaded parties’ brief: November 18, 2015 [ 10 ] The declaration of readiness for the appeals was filed on November 19, 2015. [ 11 ] The files were then referred to the master of the rolls to set the hearing dates. [ 12 ] On September 27, 2016, the Court sent the parties a first notice of hearing for the appeals to be heard on December 12 and 13, 2016. [ 13 ] Since the appeal records were opened, until November 25, 2016, the appellants were represented by Mtre Daniel Côté of the firm Aubin Girard Côté (their counsel at trial). [ 14 ] On November 25, 2016, the Ontario firm of Westaway Law Group served and filed in the Court records a representation statement as legal counsel for the appellants. [ 15 ] Due to a labour conflict between Crown prosecutors and the Government of Quebec, the hearing scheduled for December 12 and 13, 2016, was postponed first to February 27 and 28, 2017, and then again to May 15 and 16, 2017.

[ 16 ] The appellants only filed their application for a provision for costs on appeal on January 20, 2017. The conclusions in their application, supported by a sworn statement by René Tremblay, president of the board of directors of the Domaine du Roy and Mingan Seignory Metis Community (the “DRMSMC”), read as follows: 35. The Applicants respectfully request that this Court make the following orders: 1. An Order for legal costs to fund the action in advance and in any event of cause. 2. That the Province pays all of the Applicant’s legal fees and related disbursements in the present appeal before the Court; 3.

That the Province pay $ 166,864.33 within 60 days of making an Order to pay all of the Applicant’s legal fees and related disbursements in the present appeal before the Court; 4. That the Province assumes the costs or its own legal fees and disbursements in any event of the cause; 5.

Any other Order as counsel may advise and this Honourable Court may permit. [ 17 ] The amount claimed represents the following fees and disbursements that have been or will be invoiced: Mtre Daniel Côté [4] (invoiced to November 3, 2016) Fees 367.75 hours at $110/hour [5] $40,452.50 GST $2,022.63 QST $4,035.14 Disbursements (taxes included) Court fee (appeal) $324.00 Stenographers’ fees $942.00 USB memory key $100.93 Service by bailiff $83.94 Photocopies and bindings $1,856.00 Mail and courier $90.07 TOTAL $49,907.21 [6] Westaway Law Group (Mtre Westaway and Mtre Korell) [7] (invoiced to October 31, 2016) Fees Total fees (before breakdown) $49,777.50 HST $6,471.08 Disbursements Travel and other expenses $5,565.29 HST $486.05 TOTAL $62,299.92 For Mtre Côté and legal counsel Westaway and Korell [8] (Assessment - to be invoiced from November 1, 2016, until the hearing) Fees and disbursements (Nov. 2016) 23.5 hours at $300/hour (Mtre Westaway) $7,050 66 hours at $225/hour (Mtre Korell) $14,850 Fees and disbursements (Application for provision for costs) 10.1 hours at $300/hour (Mtre Westaway) $3,030 8.8 hours at $225/hour (Mtre Korell) $1,980 Fees and disbursements (Preparation for the hearing) 7 hours at $300/hour (Mtre Côté) $2,100 7 hours at $300/hour (Mtre Westaway) $2,100 7 hours at $225/hour (Mtre Korell) $1,575 Fees and disbursements (Hearing) 21 hours at $300/hour (Mtre Côté) $6,300 21 hours at $300/hour (Mtre Westaway) $6,300 21 hours at $225/hour (Mtre Korell) $4,725 Taxes $6,667.20 TOTAL $56,677.20 GRAND TOTAL $168,884.33 [9] [ 18 ] Below is a

summary of the highlights revealed by the sworn statement attached to the application for a provision for costs (the only evidence in the record), signed by Mr. René Tremblay, president of the DRMSMC Board of Directors, and the attached documentation: a.

Mtre Daniel Côté is the counsel responsible for the appellants’ case and that of the DRMSMC, both at trial and on appeal, under a mandate granted by the DRMSMC in October 2005 concerning the appellant Ghislain Corneau’s file and subsequent mandates. [ translation ] “On October 26, 2005, the DRMSMC agreed to defend, assist and support Ghislain Corneau, one of its members, in this proceeding (the action instituted by the Crown against Corneau resulting in the principal judgment a quo ) to the extent permitted by its

minimal financial means.” b. Founded on January 4, 2005, the DRMSMC is a non-profit organization whose purpose [ translation ] “is to identify and represent Métis on the territory of Domaine du Roy and the Mingan Seigneury and assert and defend their rights.” c. The DRMSMC receives no public funding, other than a subsidy from the Ville de Saguenay in the form of [ translation ] “office space ... provided at no charge”. The financial resources at its disposal come from dues paid by its members. The financial report dated November 1, 2016, describes its position as follows: I.

Dues paid of $64,752 in 2015 and of $99,998 in 2016. II. A defence fund of $67,791 in 2015 and $65,194 in 2016. III. Total [ translation ] “revenues” of $149,903 in 2015 and $177,257 in 2016. IV. Total [ translation ] “expenses” of $138,493 in 2015 and $126,974 in 2016. V. An excess of revenues over expenses of $11,410 in 2015 and $50,283 in 2016. VI. A description of the variations in the defence fund in 2015 and 2016 in note 6 of the financial statements, entitled [ translation ] “deferred contributions to the defence fund”.

Title 2016 2015 Initial balance $124,660 $161,217 Members’ dues to the defence fund $29,642 $31,233 Public grant ———- $6,786 $154,302 $199,236 Expert and professional fees ———- ($6,786) Travel expenses, meals and allowance ———- ($2,451) Lawyers' fees ($60,194) ($56,928) Research fees ———- ($8,411) Out-of-court settlement ($5,000) ———- ($65,194) ($74,576) Balance at the end $89,108 $124,660 As stated in note 3, an additional amount of $25,000 was also allocated to the defence fund by the Organization’s directors. VII.

The following text in note 7 of the financial statements entitled [ translation ] “Contingencies” [ translation ] The legal proceedings instituted by the Community in the Corneau case ( for the purpose of defending Métis rights on part of the territory of Quebec ) ended on September 15, 2014. An unfavourable judgment was rendered on February 10, 2015. Following that judgment, the Organization decided to appeal. The case should be heard on December 12, 2016. The Organization believes its defence will succeed before the courts.

In the opinion of its counsel, it is currently impossible to foresee the outcome of this appeal. Consequently, no provision appears in the financial statements. Any amount that the Community might have to pay will be considered as an expense for the fiscal period. [Emphasis added] d. All the appellants are members of the DRMSMC, which was impleaded as a party at trial on March 12, 2008, and throughout the appeal. e. [ translation ] “Since the notice of appeal was filed .... the applicants have relied entirely on financial support from the DRMSMC, paid out of its designated defence fund, to pursue the dispute.” f.

Ghislain Corneau’s annual income for 2015 was $15,969.91.

As for the other appellants, [ translation ] “most of them have a modest income” and [ translation ] “their personal ability to borrow is insufficient to cover the costs of this dispute.” [ translation ] “Their financial situation has not changed since the first application in 2009.” g. [ translation ] “The money in the Defence Fund is not only used to defend the 11 applicants in this case.” h. [ translation ] “The DRMSMC would like to use the money in the Defence Fund to participate in negotiations with the government or for current natural resource development projects that interfere with its members’ traditional hunting and fishing rights.” i.

The DRMSMC must consider the possibility of an appeal to the Supreme Court and its associated costs. j. In 2016, the DRMSMC withdrew $65,194 from the Defence Fund for the appeal, while it withdrew $74,575 in 2015. k. On June 2, 2016, the appellants and the DRMSMC retained the services of Mtre Cynthia Westaway, of the Westaway Law Group, to

work with Mtre Côté as legal counsel. l. From February 10, 2015, until November 9, 2016, the appellants and the DRMSMC incurred $110,187.13 in legal fees and disbursements, [ translation ] “in particular to file the notice of appeal, prepare the pleadings and arguments, for legal research and various meetings with the clients.” m. As at November 3, 2016, Mtre Côté had invoiced a total of $49,907.21, or 367.75 hours at an hourly rate of $110 plus taxes and disbursements. n.

For the period starting when the mandate was granted (in June 2016) to October 31, 2016, Westaway Law Group invoiced DRMSMC a total of $62,299.92, including $49,777.50 for fees before taxes, for services rendered and described as follows: All correspondence, telephone calls and Videoconferences with client and M. Coté Travel to Chicoutimi for meetings with client and M. Coté Drafting supplementary argument Preparation, service and filing of Books of Authorities All communications with counsel for Intervenor, Railliement National des Métis o.

The additional amount to disburse for the professional services of Mtre Côté and Westaway Law Group, for the period from November 1, 2016, to February 27, 2017, is estimated at $56,677.20, taking into account the following premises: • Two lawyers from the Westaway Law Group acting as legal counsel, Mtre Westaway, whose hourly rate is $300, and Mtre Korell, whose hourly rate is $225. • Mtre Côté remains counsel responsible for the file, but his hourly rate is increased to $300. • The work to be done requires a total of 192.4 hours, or 28 hours by Mtre Côté, 61.6 hours by Mtre Westaway, and 102.8 hours by Mtre Korell.

These hours are necessary to prepare the book of authorities and the hearing before the Court of Appeal, to attend and to plead the case. p.

The appellants [ translation ] “were unable to solicit or obtain funding from any legal aid program”, or [ translation ] “any departmental funds, including Indigenous and Northern Affairs Canada.” q. [ translation ] “The lawyers’ services were not retained based on a contingency fee agreement.” Trial judgment [ 19 ] At trial, the appellants obtained a provision for costs following two judgments: the first, rendered on February 10, 2010, [10] on the right to such a provision for costs and the second, rendered on February 14, 2011, [11] on the quantum of these costs. [ 20 ] In the February 10, 2010, judgment, the judge concluded as follows: [ translation ] [79] In short, the circumstances of this case are special, as evidenced by the nature and significance of the rights in issue, the number of people involved, the foreseeable repercussions of the case on the population of Quebec as a whole, the disproportionate means of the parties, the impecuniosity of the respondents and the amount of resources invested by the AGQ to counter the alleged grounds of defence. [80] Therefore, the Court finds that the safeguard of the respondents’ rights lies in the recognition of their applications for a safeguard order to obtain a provision for costs, as authorized, according to Hétu, by art. 46 C.C.P. [81] The value of the rights claimed remains to be determined.

Indeed, the Court is not giving the respondents free rein as such by recognizing that they are entitled to a provision for costs . It even suggests that they might have to relinquish some control over the litigation, or even agree to limit their expenses, given that they will be using funds received from another party, as prescribed by the Supreme Court of Canada: 77. To proceed in this way is consistent with the principle stated above that an applicant must be willing to relinquish some control over the litigation to benefit from an advance costs award.

Since a litigant who has been awarded advance costs is proceeding with the aid of funds received from another party, the litigant must accept certain limitations. These may be strictly financial — e.g., caps on spending — but they may also go more directly to the litigant’s litigation strategy. For instance, spending limits will mean that litigants proceeding with the aid of advance costs awards may be limited in their choice and in the number of counsel and experts.

Also, the court awarding advance costs must consider whether the litigant’s chosen method of proceeding at trial is compatible with the notion of advance costs being a last resort and may thus need to establish a framework for the conduct of the planned litigation. [References omitted, emphasis added.] [ 21 ] In the February 14, 2011, judgment, the judge set out the applicable legal principles:

2. APPLICABLE PRINCIPLES [translation] [10] While the case under review is based on very different legal principles, the rules set out in the wake of Régina v.

Rowbotham andOkanagan serve as a reference for the parties when it comes time to balance a litigant’s need for financial support with the public interestrepresented by the payer state, as in this case. [11] As the excerpt from Little Sisters, reproduced in the February 10, 2010, judgment suggests, the party who is recognized asentitled to a provision for costs cannot expect to be fully compensated for all expenses it believes useful to incur to win its case. [12] The discretionary power of the courts in this respect includes limitations as described by the Honourable Justice LeBel inOkanagan: 41. […] If all three conditions are established, courts have a narrow jurisdiction to order that the impecunious party’s costs be paidprospectively.

Such orders should be carefully fashioned and reviewed over the course of the proceedings to ensure that concerns aboutaccess to justice are balanced against the need to encourage the reasonable and efficient conduct of litigation, which is also one of thepurposes of costs awards. When making these decisions courts must also be mindful of the position of defendants. The award of interimcosts must not impose an unfair burden on them.

In the context of public interest litigation judges must be particularly sensitive to theposition of private litigants who may, in some ways, be caught in the crossfire of disputes which, essentially, involve the relationshipbetween the claimants and certain public authorities, or the effect of laws of general application. (Emphasis added) … 47. The conditions attached to the costs order by Newbury J.A. ensure that the parties will be encouraged to resolve the matter throughnegotiation, which remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown (see Delgamuukwv.

British Columbia, (SCC), [1997] 3 S.C.R. 1010, at para. 186), and also that there will be no temptation for the Bandsto drag out the process unnecessarily and to throw away costs paid by the appellant. I would uphold her disposition of the case. [13] Therefore, the order to be made in this case must fairly balance concerns about access to justice against the need to ensure thereasonable and efficient conduct of litigation.

In practical terms, this means that the Court has to establish a sufficient financialframework to allow the party with limited means to pursue its case in a suitable manner without unjustly burdening the public purse. [14] Thus, in Little Sisters, cited above, Bastarache and Lebel JJ, writing on behalf of the Supreme Court of Canada, stated: 42. Finally, the granting of an advance costs order does not mean that the litigant has free rein.

On the contrary, when the public purse— or another private party — takes on the burden of an advance costs award, the litigant must relinquish some manner of control overhow the litigation proceeds. The litigant cannot spend the opposing party’s money without scrutiny. The benefit of such funding does notimply that a party can, at will, multiply hours of preparation, add expert witnesses, engage in every available proceeding, or lodge everyconceivable argument.

A definite structure must be imposed or approved by the court itself, as it alone bears the responsibility forensuring that the award is workable. (Emphasis added) 43. For example, the court should set limits on the chargeable rates and hours of legal work, closely monitor the parties’ adherence to itsdictates, and cap the advance costs award at an appropriate global amount. It should also be sensitive to the reality that work oftenexpands to fit the available resources and that the “maximum” amounts contemplated by a court will almost certainly be reached.

Aswell, the possibility of setting the advance costs award off against damages actually collected at the end of the trial should becontemplated. In determining the quantum of the award, the court should remain aware that the purpose of these orders is to restore somebalance between litigants, not to create perfect equality between the parties. Legislated schemes like legal aid and other programsdesigned to assist various groups in taking legal action do not purport to create equality among litigants, and there is no justification foradvance costs awards placing successful applicants in a more favourable position.

An advance costs award is meant to provide a basiclevel of assistance necessary for the case to proceed. (Emphasis added) [15] In short, it is best to consider a provision for costs as a last-resort measure rather than the jackpot in a lottery. It does notguarantee that the party will have equal financial means or be fully compensated for lawyers’ fees, as certain decisions sometimes limitcost orders to taxable costs alone. A judgment of the Superior Court of Ontario specifically mentioned this as follows: 110. As Mr.

Janes points out, the plaintiffs do not seek a costs order covering 100% of their litigation costs, nor are advance cost ordersgenerally meant to achieve this. In Okanagan, the British Colombia Supreme Court made an advance costs order of 50% of special costs(the British Columbia equivalent of substantial indemnity costs). (Emphasis added) [16] Last, as the Attorney General emphatically noted, the Supreme Court in Little Sister set out the principle whereby the party thatcannot afford all costs of the litigation but is not, however, impecunious, must contribute financially to the case: 40.

Second, the advance costs award must be an exceptional measure; it must be in the interests of justice that it be awarded. Therefore,

the applicant must explore all other possible funding options. These include, but are not limited to, public funding options like legal aid and other programs designed to assist various groups in taking legal action. An advance costs award is neither a substitute for, nor a supplement to, these programs. An applicant must also be able to demonstrate that an attempt, albeit unsuccessful, has been made to obtain private funding through fundraising campaigns, loan applications, contingency fee agreements and any other available options.

If the applicant cannot afford all costs of the litigation, but is not impecunious, the applicant must commit to making a contribution to the litigation. Finally, different kinds of costs mechanisms, like adverse costs immunity, should also be considered. In doing so, courts must be careful not to assume that a creative costs award is merited in every case; such an award is an exceptional one, to be granted in special circumstances. Courts should remain mindful of all options when they are called upon to craft appropriate orders in such circumstances.

Also, they should not assume that the litigants who qualify for these awards must benefit from them absolutely. In the United Kingdom, where costs immunity (or “protective orders”) can be ordered in specified circumstances, the order may be given with the caveat that the successful applicant cannot collect anything more than modest costs from the other party at the end of the trial: see R. (Corner House Research) v. Secretary of State for Trade and Industry , [2005] 1 W.L.R. 2600, [2005] EWCA Civ 192, at para. 76 .

We agree with this nuanced approach. (Emphasis added) [References omitted; emphasis in the original] [ 22 ] On the strength of these teachings, the judge analysed the applications presented, in particular the number of lawyers and their rates.

Below are excerpts of what he wrote on the subject: [ translation ] 3.7 Lawyers’ fees 3.7.1 Number of counsel [111] The respondents believe that for their interest to be adequately represented at the hearing, two lawyers must be present throughout most of the duration of the trial, which the applicant denies. [112] With due respect for the contrary opinion expressed by the Attorney General, the Court does not see how one lawyer alone can handle the preparation and hearing of a relatively complex case, with abundant documentary evidence, numerous expert reports and on behalf of 15 parties.

It would not be reasonable or realistic to impose such a burden on one single person, however competent. [113] Due to the statement made by the respondent’s lead counsel, the Court recognizes his right to be assisted by legal counsel throughout the duration of the hearing, except on days during which he will examine the respondents themselves. 3.7.2 Rates [114] In this case, the lead counsel on the record, Mtre Côté, who has been a member of the Barreau for over ten years, like his colleague, Mtre Montour, set his hourly rate at $200, while that of the legal counsel will be $110 an hour.

Moreover, the claim, Exhibit R-16, establishes a proportion of three days of preparation per day of hearing. … [117] It should be recalled that for the purposes of the case, respondents’ counsel entered into a fee agreement with DRMSMC, Exhibit R-15. Under that contract, the lawyer is entitled to an hourly rate of $100 for preparation and representation when he acts in the case. For the hearing on the merits, the rate is $200. [118] Consequently, the rate of $200 an hour for preparation, as stated in Exhibit R-16, cannot be justified. The rate for lawyer Côté should be limited to $100.

As for lawyer Montour, given that the proposal indicates that there is a difference between the fee he can claim compared to that of the lead counsel, a rate of $80 seems reasonable. [119] The rate claimed for the hearing warrants some discussion. [120] As the advance provision for costs is not intended to fully compensate lawyers’ fees, but to ensure that the party in need may advance its case with the help of a lawyer on terms that are fair for the parties, while being realistic, the Court is not bound by the parties’ agreement. [121] There are not many parameters in Quebec to guide the Court in such matters.

The Attorney General suggests that the Court base itself on examples drawn in the case law involving Rowbotham orders, applicable in Quebec. [122] While the legal basis justifying this type of order, i.e., the constitutional right of an impecunious accused to be represented at public expense, differs from that in this case, it nevertheless remains that the conditions for its exercise, including the remuneration of counsel, are based on similar concerns, to find the reasonable appropriate remuneration. [123] It should be noted, however, that all the cases submitted by the Attorney General are criminal and penal cases that involve litigants represented by counsel alleging that the legal aid rate is ill-suited to their specific situation. [124] Nonetheless, it is of interest to bear in mind that, even where the courts agree to set aside the basic legal aid tariffs, they do not necessarily apply the usual tariffs claimed by lawyers. [125] In Lacas , the Honourable Côté summarized the proper approach to adopt: [ translation ]

[11] When assessing the reasonableness of the offer filed by the State, the Court must ask itself if that offer of remuneration is sufficient to permit the accused to retain the services of reasonably competent counsel. These are not the fees required to recruit the best counsel. In fact, when determining the special fees granted under s. 8 of the legal aid tariff, the courts consider the criteria related to the complexity of the case rather than the counsel’s personal qualities. Thus, in Paquin c.

Centre communautaire juridique de l’Abitibi- Témiscamingue , [2006] Q.C.C.Q. 13473, the Honourable Normand Bonin wrote: [ translation ] 14 The basic remuneration is established based on the tariff agreed between the Barreau and the government. Counsel’s fees can exceed the tariff agreed by the Barreau and recognized by decree only where the mandate is, objectively not subjectively, of an exceptional nature owing to the circumstances of the work or the complexity of the case.

This means that the elements relating to counsel’s personal traits, such as experience, competence, and reputation, should not be considered as those factors are strictly subjective. [12] The Court believes that it is useful to draw from such an approach, with the necessary adjustments. The Court does not have to consider the rates normally claimed by counsel chosen by the accused.

It must confine itself to what it considers satisfactory for reasonably competent counsel acting in a case of an exceptional nature. [126] Therefore, the Court believes that it must find the appropriate tariff so that the respondents can retain the services of reasonably competent counsel to handle a case of an exceptional nature. [127] Based on a review of the case law submitted, it appears that a reasonable rate varies between $75 and $150 an hour.

A regulation even sets the hourly rate at $100 for counsel with over ten years’ experience to carry out a mandate entrusted to him or her by the government. [128] In this case, the respondents’ case requires the presence of reasonably competent experienced counsel, prepared to be absent from their firm for 50 to 70 working days, to handle voluminous and complex evidence, and to adequately represent 19 clients in 15 different cases. [129] If we refer to the legal aid tariff, an advocate is entitled to be paid $215 per half-day in court, of about 3 actual hours, or $430 per day, for a trial before a judge alone, which amounts to an hourly rate of barely $71 (s. 33 of the Regulation ). [130] An advocate, however, who represents several people may have the remuneration increased by up to 200% when working for 5 or more people (s. 13), and may even present a request for special consideration due to the exceptional nature or complexity of the case (s. 14).

In such circumstances, the advocate’s hourly rate will be slightly above $200. [131] In this case, to retain the services of advocates Côté and Montour for the hearing, the Court considers it reasonable to set the fees for the lead counsel, Mtre Côté, at $150 an hour and those of legal counsel, Mtre Montour, at $100 an hour for a maximum of 6.5 hours per day of hearing. [132] A more reasonable base than the one claimed must be set for the time required to prepare the case.

Positions of the parties Appellants [ 23 ] For the following reasons, the appellants submit that they meet the three cumulative criteria they must establish to obtain a provision for costs: • They do not have the means to pay the fees incurred because they have very modest incomes; • they have no public funding likely to help them; • the DRMSMC should not have to devote all of its available financial resources to this dispute to the detriment of all the other urgent needs and priorities (community, social and economic) of the community and its members; • the appeals are worth being heard; it would be contrary to the interests of justice should the appellants have to abandon their appeals due to lack of financial means; • the issues raised by the appeals, namely that of the existence of a historical Métis community in the Domaine du Roy and the Seigneurie de Mingan, are new, extend beyond the particular interests of the appellants, and are of public importance. [ 24 ] They seek an order for a provision covering the costs of all past and future fees and disbursements related to the appeal.

They ask the Court to declare that the respondent must pay them $166,864.33 within 60 days of any order issued, to compel the respondent to assume all legal costs regardless of the outcome of these appeals and, last, to render any other appropriate conclusion. Respondent [ 25 ] The respondent does not deny that the case is of public interest (third criterion set out in Okanagan ). It nonetheless submits that the Court should not grant the advance provision for costs in this case because: • the appellants have not discharged the burden of proving that they are impecunious (first criterion set out in Okanagan );

• a provision for costs must be used to pay for a future service, to provide the minimum assistance needed so that the case can proceed.

Here, almost all the sums claimed concern past services rendered, while the case has effectively reached the hearing stage (first criterion set out in Okanagan ); • a court must be able to review the relevance and fairness of the costs contemplated before granting a provision for costs, with the result that any claim based on facts that have already occurred is inadmissible (first criterion set out in Okanagan ); • the situation in appeal is separate from the one at trial (second criterion set out in Okanagan ). • last, the quantum proposed (or the bases on which it is established) is clearly exaggerated, even excessive. [ 26 ] That being said, counsel for the respondent further stated at the hearing that they are mandated to waive any order the Court might render in favour of the respondent with respect to legal costs should the appeals be dismissed, echoing the following comments of LeBel J. in Okanagan : In special cases where individual litigants of limited means seek to enforce their constitutional rights, courts often exercise their discretion on costs so as to avoid the harshness that might result from adherence to the traditional principles.

This helps to ensure that ordinary citizens have access to the justice system when they seek to resolve matters of consequence to the community as a whole. [12] Analysis [ 27 ] According to the teachings of the Supreme Court in Okanagan , “[t]he criteria that must be present to justify an award of interim costs” during proceedings of public interest, as is the case here, are as follows: 1.

The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made . 2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means . 3.

The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases . [13] [Emphasis added] [ 28 ] In Little Sisters , Bastarache and Lebel JJ, writing on behalf of the majority, recalled that “[a]n exceptional order such as this can be made only in special circumstances , like those in Okanagan , subject to stringent conditions and to the appropriate procedural controls . ” [14] The Court wrote that its ratio in Okanagan “applies only to those few situations where a court would be participating in an injustice — against the litigant personally and against the public generally — if it did not order advance costs to allow the litigant to proceed.” [15] [ 29 ] Further on, it states that: In other words, though now permissible, public interest advance costs orders are to remain special and, as a result, exceptional .

These orders must be granted with caution, as a last resort, in circumstances where the need for them is clearly established. … The foregoing principles could not yield any other result. If litigants raising public interest issues will not always avoid adverse costs awards at the conclusion of their trials, it can only be rarer still that they could benefit from advance costs awards.

An application for advance costs may be entertained only if a litigant establishes that it is impossible to proceed with the trial and await its conclusion, and if the court is in a position to allocate the financial burden of the litigation fairly between the parties. [Emphasis added] [ 30 ] Here, the appellants have failed to discharge the burden of proving that they meet these three criteria. [ 31 ] First , the purpose of the application for a provision for costs is not to enable the appeals to proceed, but instead to be reimbursed for fees incurred and past expenses so that the cost of exercising the right to appeal would be zero. [ 32 ] The appellants were able to pursue their appeals up to the hearing without any advance costs order.

It was only after the legal counsel intervened and once the hearing dates had been scheduled that the appellants turned to the Court for the first time for this purpose. In the meantime, the appeals were instituted, the case management conferences held, the briefs drafted and filed, as well as the declaration of readiness. [ 33 ] Second , the appellants only filed their application for a provision for costs with the Court in January 2017, after having conducted their cases as they saw fit.

In so doing, they deprived the Crown (debtor, where applicable, of any provision) of the opportunity to make representations [ translation ] “beforehand” and the Court of the power to exercise the proper control over the real needs (in particular as to the number of intervenors) and the costs. [ 34 ] Their claim is based on “facts that have already occurred“ which they have placed before the Crown and the Court, in particular with respect to Mtre Côté’s increased hourly rate (from $100 or $150 [16] to $300) and the hiring of another law firm, when the appeal case was already proceeding (they used the services of two lawyers from that firm, whose respective hourly rates were $300 and $225), disregarding the known teachings set out in the trial judgments, lengthy excerpts of which were reproduced by the Court in paras. [20], [21,] and [22] of this judgment.

[ 35 ] Third , due to the debate at trial on their application for a provision for costs and the content of both judgments rendered, the appellants had to have known about the strict conditions for granting any such application. Yet they did not consider themselves subject to these conditions. [ 36 ] Fourth , the evidence established that the appellants had sufficient financial resources to assert their rights before the Court, without it being necessary to grant a provision for costs. In this regard, the Court refers to the

summary in para. [18] of this judgment, which supports this finding (in particular sub-para. (

c) on the financial statements). [ 37 ] The evidence does not establish impecuniosity, quite the contrary. Indeed, the Court finds nothing in the DRMSMC president’s sworn statement confirming impecuniosity, other than a description of the many various needs that exist given the limited financial resources that it would like to allocate to uses other than the current legal debate. [ 38 ] It should be noted that the Court does not question the legitimacy of the community’s other projects or its stated desire to assign its financial resources to them first. Its desire to replenish its coffers is comprehensible.

That being said, as commendable as these desires and projects are, it nevertheless remains that the analysis of the application for a provision for costs remains subject to an examination of the criteria set out by the Supreme Court regarding an exceptional measure that is granted in rare cases and subject to stringent controls. [ 39 ] Fifth , to grant the appellants what they claim would be tantamount to condoning an [ translation ] “open bar” or “free rein” approach, which is unacceptable and what the trial judge warned them against (in para. 81 of his reasons for judgment of February 10, 2010, reproduced in para. [20] of this judgment).

To do so would be inappropriate, taking into account the guidelines set out by the trial judge that the appellants had to have known about, especially since, in the circumstances, the amounts claimed are not justified or are at the very least exaggerated. [ 40 ] In para. [17] of this judgment, the Court reproduced the breakdown provided of the amount claimed. Not only has a large part of that sum already been paid, but what remains to be paid cannot give rise to a provision for costs. [ 41 ] The Court does not deny that the DRMSMC is entitled to retain the professional services of as many lawyers as it wishes.

It must, however, alone bear the consequences of such a decision. As revealed by the appeal record, all the work required to ready the appeal had already been long done (see para. [9] of this judgment) when the DRMSMC opted to grant Westaway Law Group a mandate. Mtre Côté, the lawyer who pleaded the cases at trial and was present throughout the 37 days of the hearing, had already written, served and filed the appellants’ brief (the one he used during the hearing) nearly a year earlier.

Due to incomplete knowledge of how appeals work or for other reasons, Westaway Law Group prepared a “supplemental argument”, likely spending many hours familiarizing itself with the facts of the case and claiming substantial fees for that purpose, while the production and filing of such a document was not authorized under the Code of Civil Procedure , the Rules of Practice of the Court, or by any other judge of the Court.

The document was therefore quite rightly refused by the clerk when it was filed. [17] These were useless costs, which the Crown should not have to bear. [ 42 ] Without addressing the appropriateness of the hourly rates allegedly charged, the Court finds that what is being claimed represents nearly three times, or over twice, as the case may be, the hourly rate considered reasonable and acceptable by the trial judge ($300 or $225 an hour compared to $80 or $100 an hour for preparation and $100 or $150 an hour for the hearing.) [18] [ 43 ] The number of hours claimed for the services of Westaway Law Group (164.4 hours in total) starting in November 2016 is surprising when compared to the number for Mtre Côté (28 hours in total) for the same period (see para. [18] (

o) of these reasons). The difference is probably explained by the fact that the two lawyers from that firm reviewed a file that, to that point, they had no knowledge of, or almost none, concerning a trial that lasted 37 days. Mtre Côté’s situation was very different, as noted during the hearing, because he had a thorough understanding of all the facts. In his case, the hours claimed represent useful time spent considering and preparing. [ 44 ] Here, the presence of the Westaway Law Group lawyers added no value to the case that would explain or justify any part whatever being assumed by the Crown.

Moreover, the presence of two professionals from that firm with a combined hourly rate of $525 is clearly exaggerated. [ 45 ] Finally , the Court has no hesitation in stating that the claim presented is excessive, the appellants have been, and continue to be, able to pursue the appeal without a provision for costs, and the Okanagan test has not been met. CONCLUSION FOR THESE REASONS, THE COURT: [ 46 ] DISMISSES the application for a provision for costs; [ 47 ] Without costs on appeal. LORNE GIROUX, J.A. JEAN BOUCHARD J.A. MARIE ST-PIERRE, J.A.

Mtre Daniel Côté JUSTITIA CABINET D’AVOCATS Mtre Cynthia Westaway Mtre Darryl Korell WESTAWAY LAW GROUP Legal Counsel For the appellants Mtre Leandro Steinmander Mtre Daniel Benghozi BERNARD, ROY For the respondent Mtre Richard Bergeron Mtre Nancy Fillion CAIN, LAMARRE For the impleaded parties Mashteuiatsh First Nation, Innu Essipit First Nation and Nutashkuan First Nation Mtre David P. Taylor Mtre Caroline Magnan JURISTES POWER For the intervener Dates of hearing: May 15 and 16, 2017