2023 FC, 2023 FC 1492

Date: 20231108 Dockets: T-800-21 T-808-21 Citation: 2023 FC 1492 Ottawa, Ontario, November 8, 2023 PRESENT: The Honourable Mr. Justice Favel BETWEEN: KAREN MCCARTHY AND LORNA JACKSON-LITTLEWOLFE Applicants and WHITEFISH LAKE FIRST NATION #128 Respondent SUPPLEMENTAL ORDER AND REASONS I. Overview [ 1 ] In McCarthy v Whitefish Lake First Nation #128 , 2023 FC 220 , I granted Ms.

McCarthy’s application for judicial review of the Whitefish Lake First Nation [WLFN] Band Council’s decision to exclude certain women and their descendants from voting and running as candidates in WLFN’s elections pursuant to the Bill C-31 Prohibition. I also granted Ms. Jackson-Littlewolfe’s application for judicial review challenging the WLFN’s decision to exclude her from running as a candidate in the WLN election because of the Common Law Marriage Prohibition. [ 2 ] I also ordered counsel to provide costs submissions. These Supplemental Order and Reasons address the issue of costs. II. Parties’ Submissions A.

Ms. McCarthy [ 3 ] Ms. McCarthy seeks an order for a lump sum cost award of $45,000, inclusive of an outstanding $750 order for the Respondent’s unsuccessful attempt to convert the application into an action. Alternatively, she seeks taxable costs in accordance with Tariff B, pursuant to a draft bill of costs. Ms. McCarthy points to the factors set out in Rule 400(3) of the Federal Courts Rules , SOR/98-106 [ Rules ]. [ 4 ] Ms. McCarthy submits that the award should be higher than the Tariff for several reasons.

First, this was a public interest case as there are significant members affected by the discriminatory Bill C-31 Prohibition. The matter was complex involving the rare application of sections 25 and 28 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. [ 5 ] Second, there is a resource imbalance between herself and the WLFN, as she had to use her own funds to bring the proceeding whereas WLFN can use band funds to defend against the proceeding ( Whalen v Fort McMurray No 468 First Nation , 2019 FC 1119 at para 27 [ Whalen ]). [ 6 ] Third, when a proceeding results in clarification of governance issues for the First Nation, as this case did, it often warrants a higher level of costs for the individual applicant ( Shirt v Saddle Lake Cree Nation , 2022 FC 321 at para 105-106 [ Shirt 2022 ]). [ 7 ] Fourth, Ms.

McCarthy had offered to settle for costs of $10,000 while the parties engaged in unsuccessful settlement discussions. Ms. McCarthy’s offer also requested a new election, even though the Court did not grant this remedy. At worst, Ms. McCarthy’s offer is a neutral factor, and at best, it supports her request for elevated costs. [ 8 ] Fifth, the Respondent did not concede any points until their written argument and they added the unnecessary step of trying to convert this application into an action.

The Respondent also sought extensions for the completion of steps in the proceeding, did not provide dates of their availability for a hearing in a timely manner, and attempted to include new evidence and arguments without leave of the Court or notice to Ms. McCarthy. [ 9 ] Sixth, while Ms. McCarthy did not receive all of the remedies she sought, it does not disentitle her to costs ( Bertrand v Acho Dene Koe First Nation , 2021 FC 525 at paras 10-15 [ Bertrand ]).

Not obtaining all of the remedies sought does not mean she was unsuccessful in the matter nor does it mean that this is a matter of divided success. [ 10 ] The draft bill of costs provide a Column III amount of $13,475 and a Column V amount of $20,515 while counsel estimates that they expended $85,000 in time. In light of the ranges, a lump sum costs award is appropriate ( Shirt 2022 at para 105).

B. Ms. Jackson-Littlewolfe [ 11 ] Ms. Jackson-Littlewolfe seeks an order for a lump sum cost award in the amount of $25,000 based on other cases involving governance matters ( Whalen ; Bertrand ; Shirt 2022 ). She also acknowledges that Rule 400 sets out factors for the Court’s exercise of discretion. Proof of actual legal costs is not necessary for a Court to exercise its discretion in awarding costs. Reference to Bills of Costs based on Columns III and V of Tariff B can appropriately ensure that a lump sum award is not plucked from thin air ( Shirt 2022 at para 107). [ 12 ] First, Ms.

Jackson-Littlewolfe was entirely successful in challenging the Common Law Marriage Prohibition and the Courts have recognized that costs are awarded to a successful party ( Whalen at para 2 ). Although the Court, in this case, denied the remedy of ordering a new election, this does not impact the Applicant’s success on all substantive issues that were before the Court. [ 13 ] Second, the issues in the matters were important and complex as the Court addressed long-standing discriminatory practices and the application of the Charter , including the consideration of

section 25 . [ 14 ] Third, the proceeding involved a strong public interest component, since many WLFN members were not only affected by the Common Law Marriage Prohibition, but were also opposed to this discriminatory provision. The members also lacked the financial resources to challenge the provisions and feared bullying if they did. [ 15 ] Fourth, there is a major resource imbalance between Ms. Jackson-Littlewolfe and WLFN ( Whalen at paras 21, 32 ). Ms.

Jackson- Littlewolfe’s successful challenge of a decades-long discriminatory practice warrants elevated lump sum costs. [ 16 ] Lastly, the Court should consider other factors such as WLFN’s pre-litigation conduct. Specifically, she brought the case of Shirt v Saddle Lake Cree Nation , 2017 FC 364 to WLFN’s attention, where the Court, in obiter, commented on the discriminatory nature of the Common Law Marriage Prohibition, but WLFN refused to change its position. [ 17 ] Ms.

Jackson-Littlewolfe notes that the Tariff would bring costs in the rage of $6,820 at Column III to $11,200 at Column V, which is insufficient to cover her actual legal costs. Accordingly, a lump sum costs award of $25,000 is sufficient bearing in mind Rule 400(3) and the prudent exercise of discretion ( Nova Chemicals Corporation v Dow Chemical Company , 2017 FCA 25 at para 19 [ Nova ]). C. WLFN [ 18 ] WLFN submits that each party should bear their own costs.

Alternatively, an award of costs for each Applicant should be calculated at the mid-point of Column III of the Tariff pursuant to the factors in Rule 400(3) as no party filed any evidence of costs they actually incurred. [ 19 ] In support of their submission that each party should bear their own costs, WLFN points to the split success, the offer it made that mirrored the Court’s judgment, and that the

section 25 Charter issue was a necessary legal consideration and that this should militate in favour of not making a punitive costs award. [ 20 ] There is also insufficient evidence for a lump sum cost award ( Nova at para 18 ). Ms. McCarthy claims that legal fees were at $85,000 but provides no evidence of this. Similarly, Ms. Jackson-Littlewolfe provides no evidence relating to her actual costs.

The cases relied on by the Applicants had some evidence of direct legal costs, unlike in this matter. [ 21 ] As for a power imbalance, there is no law directing that a special costs regime exists for governance disputes that justifies an award of elevated costs. [ 22 ] If the Court determines that costs will be awarded, they should be assessed at the middle of Column III of Tariff B. Some of the items claims by Ms. McCarthy are not recoverable based on the Tariff.

There is also no basis for the Court to allow the maximum number of units allowed under Column III for the preparation for and attendance at case management conferences or the preparation of costs submissions, as these are not complicated or complex steps. Because of these issues, no more than $4,000 can be justified on the materials submitted, or alternatively, the matter of costs should be referred to an Assessment Officer. III. Analysis [ 23 ] Rule 400(1) of the Rules states that the trial judge has full discretion when awarding costs. This discretion must be exercised judicially.

The exercise of awarding costs involves an inescapable risk of arbitrariness and roughness on the part of the Court ( Eurocopter v Bell Helicopter Textron Canada Limit é e, 2012 FC 842 , aff’d 2013 FCA 220 at para 9 ). This risk is tempered by the applicable legal principles . [ 24 ] The parties have all pointed to the applicable legal authorities and Rule 400(3) but the Applicants and Respondent disagree on how the Court should exercise its authority. [ 25 ] It is true that the default mechanism for awarding costs is a tariff ( Whalen at para 8 ).

However, p ursuant to Rule 400(4) of the Rules , “[t]he Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.” In Whalen , Justice Grammond explained that lump sum awards may exceed or fall below the Tariff amount (at para 11). " [ " " 26 " " ] " A lump sum amount must not be " “plucked from thin air” ( " " Whalen " " at para " " 33 " " , " " citing " " Nova " " at para " " 15 " " ). Such awards usually fall within a range of 25% to 50% of the actual legal costs of the successful party ( " " Whalen " " at para " " 33 " " ,

" " citing " " Nova " " at para " " 17 " " ). Therefore, “the successful party must give evidence of its legal costs to support a request for a lump sum” ( " " Whalen " " at para " " 34 " " ). " " " [ 27 ] Rule 400(3) lists various factors for the Court to consider when exercising its discretion under Rule 400(1) of the Rules . As a general rule, costs should be awarded to the successful party. In this case, the Applicants, despite not receiving the remedy of a new election, were successful on all substantive points. This does not mean that this is a situation of split success.

This factor favours the Applicants. [ 28 ] I also note the unique nature of proceedings involving First Nation members looking to challenge decisions of decision-making bodies of a First Nation. It is fair to suggest that an individual member of a First Nation who seeks to challenge such a decision-maker’s decision or law does so using the member’s own financial means. Correspondingly, it is also fair to state that the decision-making body, or the First Nation itself, in the absence of evidence to the contrary, typically has their legal fees paid or reimbursed by the First Nation.

I agree with the Applicants that these circumstances give rise to a power imbalance, as arises in this case. [ 29 ] I acknowledge the parties’ submissions about the complicated nature of the proceedings, involving Charter submissions and unique submissions related to

section 25 of the Charter , which has not received much judicial commentary. I find that this is a neutral factor, as the parties’ submissions and the Court’s judgment will likely provide for additional judicial commentary on future cases considering

section 25 of the Charter . Irrespective of the merits of the Respondent’s position, I agree with the Respondent that the issues being considered do not warrant making a punitive costs award. [ 30 ] I agree with the parties that this matter involved a consideration of the public interest in addressing consequences related to the Bill C-31 Prohibition and the Common Law Marriage Prohibition. I also agree with the Applicants that these discriminatory provisions impacted many members of WLFN, so the application was necessary.

Overall, I find that this consideration favours the Applicants. [ 31 ] Finally, I do not view WLFN’s conduct as warranting a higher than normal costs award. WLFN made strategic decisions it is entitled to make and did not unduly delay this matter being heard. [ 32 ] As for the evidence required for awarding lumps sum costs awards, I note that my colleague in Shirt 2022 did not have evidence of the Applicant’s actual legal costs, yet awarded costs that were also not “plucked from thin air” (at para 107, citing Whalen at para 33 and Nova at para 15 ).

The costs awarded were the all-inclusive sum of $20,000 based on elevated costs of Column III and Column V bill of costs calculations. I am in agreement with this rationale for awarding costs, subject to my discretion in the matter. [ 33 ] Taking into account the legal principles set out above, the submissions of the parties, including the draft Bill of Costs submitted by the parties, and the discretion afforded to me by Rule 400, I order that WLFN pay lump sum costs to each of the Applicants in the sum of $25,000, exclusive of disbursements and taxes as may be claimed by the respective Applicants.

This is a reasonable amount when considering all of the circumstances of this matter as set out above. This amount is to be paid forthwith. IV. Conclusion [ 34 ] In light of the above, I am exercising my discretion to award lump sum costs to each of the Applicants. ORDER in T-800-21 and T-808-21 THIS COURT ORDERS that lump sum costs are awarded to each of the Applicants, payable forthwith by the Respondent, in the amount of $25,000, exclusive of disbursements and taxes.

"Paul Favel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: T-800-21 and T-808-21 STYLE OF CAUSE: KAREN MCCARTHY AND LORNA JACKSON-LITTLEWOLFE v WHITEFISH LAKE FIRST NATION #128 IN WRITING: WRITTEN COSTS SUBMISSIONS BY PARTIES SUPPLEMENTAL ORDER AND REASONS: FAVEL J.

DATED: NOVEMBER 8, 2023 WRITTEN COSTS SUBMISSIONS BY : SHARON ROBERTS For The Applicant, KARENT MCCARTHY MARTY MOORE FOR THE APPLICANT, LORNA JACKSON-LITTLEWOLFE IAN BAILEY For The Respondent SOLICITORS OF RECORD : ROBERTS O’KELLY LAW EDMONTON, AB For The Applicant, KARENT MCCARTHY MOORE JUSTICE LAW CALGARY, AB FOR THE APPLICANT, LORNA JACKSON-LITTLEWOLFE BAILEY, WADDEN & DUFFY LLP EDMONTON, AB For The Respondent