Fontaine et al. v. Canada (Attorney Date:, 2015 MBCA 41

Citation: Fontaine et al. v. Canada (Attorney Date: 20150424 General) et al., 2015 MBCA 41 Docket: AI13-30-08093 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : FRED KELLY ) ) (Plaintiff) Respondent ) J. L. Brooks and ) G. I. Soonarane - and - ) for the Appellant ) THE ATTORNEY GENERAL OF CANADA ) ) K. E. Mahoney and (Defendant) Appellant ) M. W. Mulholland ) for the Respondent - and - ) F. Kelly ) LES OBLATS DE MARIE IMMACULÉ

E) DU MANITOBA ) No appearance ) for the Respondent (Defendant) Respondent ) Les Oblats de Marie ) Immaculée du - and - ) Manitoba ) LARRY PHILIP FONTAINE, in his ) personal capacity and in his capacity as ) Appeal heard: the Executor of the Estate of Agnes Mary ) April 23, 2014 Fontaine, deceased, MICHELLINE AMMAQ, ) PERCY ARCHIE, CHARLES BAXTER ) SR., ELIJAH BAXTER, EVELYN ) Judgment delivered: BAXTER, DONALD BELCOURT, NORA ) October 9, 2014 BERNARD, JOHN BOSUM, JANET ) BREWSTER, RHONDA BUFFALO, ) ERNESTINE CAIBAIOSAI-GIDMARK, ) Supplemental reasons MICHAEL CARPAN, BRENDA CYR, ) delivered: DEANNA CYR, MALCOLM DAWSON, ) April 24, 2015 ANN DENE, BENNY DOCTOR, LUCY ) DOCTOR, JAMES FONTAINE, in his ) personal capacity and in his capacity as the ) Executor of the Estate of Agnes Mary ) Fontaine, deceased, VINCENT BRADLEY ) FONTAINE, DANA EVA MARIE ) FRANCEY, PEGGY GOOD, FRED KELLY, ) ROSEMARIE KUPTANA, ELIZABETH ) KUSIAK, THERESA LAROCQUE, JANE ) MCCULLUM, CORNELIUS MCCOMBER, ) VERONICA MARTEN, STANLEY ) THOMAS NEPETAYPO, FLORA ) NORTHWEST, NORMAN PAUCHEY, ) CAMBLE QUATELL, ALVIN BARNEY ) SAULTEAUX, CHRISTINE SEMPLE, ) DENNIS SMOKEYDAY, KENNETH ) SPARVIER, EDWARD TAPIATIC, ) HELEN WINDERMAN and ADRIAN )

YELLOWKNEE ) ) (Plaintiffs) ) ) - and - ) ) THE ATTORNEY GENERAL OF ) CANADA, THE PRESBYTERIAN ) CHURCH IN CANADA, THE GENERAL ) SYNOD OF THE ANGLICAN CHURCH ) OF CANADA, THE UNITED CHURCH ) OF CANADA, THE BOARD OF HOME ) MISSIONS OF THE UNITED CHURCH ) OF CANADA, THE WOMEN’

S) MISSIONARY SOCIETY OF THE ) PRESBYTERIAN CHURCH, THE ) BAPTIST CHURCH IN CANADA, BOARD ) OF HOME MISSIONS AND SOCIAL ) SERVICES OF THE PRESBYTERIAN ) CHURCH IN BAY, THE CANADA ) IMPACT NORTH MINISTRIES OF THE ) COMPANY FOR THE PROPAGATION ) OF THE GOSPEL IN NEW ENGLAND ) (also known as THE NEW ENGLAND ) COMPANY), THE DIOCESE OF ) SASKATCHEWAN, THE DIOCESE OF ) THE SYNOD OF CARIBOO, THE ) FOREIGN MISSION OF THE ) PRESBYTERIAN CHURCH IN CANADA, ) THE INCORPORATED SYNOD OF THE ) DIOCESE OF HURON, THE ) METHODIST CHURCH OF CANADA, ) THE MISSIONARY SOCIETY OF THE ) ANGLICAN CHURCH OF CANADA, ) THE MISSIONARY SOCIETY OF THE ) METHODIST CHURCH OF CANADA ) (also known as THE METHODIST ) MISSIONARY SOCIETY OF CANADA), ) THE INCORPORATED SYNOD OF THE ) DIOCESE OF ALGOMA, THE SYNOD ) OF THE ANGLICAN CHURCH OF THE ) DIOCESE OF QUEBEC, THE SYNOD ) OF THE DIOCESE OF ATHABASCA, ) THE SYNOD OF THE DIOCESE OF ) BRANDON, THE ANGLICAN SYNOD ) OF THE DIOCESE OF BRITISH ) COLUMBIA, THE SYNOD OF THE ) DIOCESE OF CALGARY, THE SYNOD ) OF THE DIOCESE OF KEEWATIN, THE ) SYNOD OF THE DIOCESE OF ) QU’APPELLE, THE SYNOD OF THE ) DIOCESE OF NEW WESTMINISTER, ) THE SYNOD OF THE DIOCESE OF ) YUKON, THE TRUSTEE BOARD OF ) THE PRESBYTERIAN CHURCH IN ) CANADA, THE BOARD OF HOME ) MISSIONS AND SOCIAL SERVICE OF ) THE PRESBYTERIAN CHURCH OF ) CANADA, THE WOMEN’S MISSIONARY ) SOCIETY OF THE UNITED CHURCH ) OF CANADA, SISTERS OF CHARITY, ) A BODY CORPORATE also known as ) SISTERS OF CHARITY OF ST.

VINCENT ) DE PAUL, HALIFAX, also known as ) SISTERS OF CHARITY HALIFAX, ) ROMAN CATHOLIC EPISCOPAL ) CORPORATION OF HALIFAX, LES ) SOEURS DE NOTRE DAME- ) AUXILIATRICE, LES SOEURS DE ) ST. FRANCOIS D’ASSISE, INSITUT DES ) SOEURS DU BON CONSEIL, LES )

SOEURS DE SAINT-JOSEPH DE SAINT- ) HYANCITHE, LES SOEURS DE JESUS- ) MARIE, LES SOEURS DE L’ASSOMPTION ) DE LA SAINTE VIERGE, LES SOEURS ) DE L’ASSOMPTION DE LA SAINT ) VIERGE DE L’ALBERTA, LES SOEURS ) DE LA CHARITE DE ST.-HYACINTHE, ) LES OEUVRES OBLATES DE ) L’ONTARIO, LES RESIDENCES ) OBLATES DU QUEBEC, LA ) CORPORATION EPISCOPALE ) CATHOLIQUE ROMAINE DE LA BAIE ) JAMES (THE ROMAN CATHOLIC ) EPISCOPAL CORPORATION OF ) JAMES BAY), THE CATHOLIC ) DIOCESE OF MOOSONEE, SOEURS ) GRISES DE MONTREAL/GREY NUNS ) OF MONTREAL, SISTERS OF CHARITY ) (GREY NUNS) OF ALBERTA, LES ) SOEURS DE LA CHARITE DES T.N.O., ) HOTEL-DIEU DE NICOLET, THE GREY ) NUNS OF MANITOBA INC.-LES SOEURS ) GRISES DU MANITOBA INC., LA ) CORPORATION EPISCOPALE ) CATHOLIQUE ROMAINE DE LA BAIE ) D’HUDSON-THE ROMAN CATHOLIC ) EPISCOPAL CORPORATION OF ) HUDSON’S BAY, MISSIONARY ) OBLATES-GRANDIN PROVINCE, LES ) OBLATES DE MARIE IMMACULÉE DU ) MANITOBA, THE ARCHIEPISCOPAL ) CORPORATION OF REGINA, THE ) SISTERS OF THE PRESENTATION, ) THE SISTERS OF ST.

JOSEPH OF ) SAULT ST. MARIE, SISTERS OF ) CHARITY OF OTTAWA, OBLATES OF ) MARY IMMACULATE-ST. PETER’

S) PROVINCE, THE SISTERS OF SAINT ) ANN, SISTERS OF INSTRUCTION OF ) THE CHILD JESUS, THE BENEDICTINE ) SISTERS OF MT.

ANGEL OREGON, LES ) PERES MONTFORTAINS, THE ROMAN ) CATHOLIC BISHOP OF KAMLOOPS ) CORPORATION SOLE, THE BISHOP OF ) VICTORIA, CORPORATION SOLE, THE ) ROMAN CATHOLIC BISHOP OF ) NELSON, CORORATION SOLE, ORDER ) OF THE OBLATES OF MARY ) IMMACULATE IN THE PROVINCE OF ) BRITISH COLUMBIA, THE SISTERS OF ) CHARITY OF PROVIDENCE OF ) WESTERN CANADA, LA CORPORATION ) EPISCOPALE CATHOLIQUE ROMAINE ) DE GROUARD, ROMAN CATHOLIC ) EPISCOPAL CORPORATION OF ) KEEWATIN, LA CORPORATION ) ARCHIÉPISCOPALE CATHOLIQUE ) ROMAINE DE ST. BONIFACE, LES ) MISSIONNAIRES OBLATES SISTERS DE ) ST.

BONIFACE-THE MISSIONARY ) OBLATES SISTERS OF ST. BONIFACE, ) ROMAN CATHOLIC ARCHIEPISCOPAL ) CORPORATION OF WINNIPEG, LA ) CORPORATION EPISCOPALE ) CATHOLIQUE ROMAINE DE PRINCE ) ALBERT, THE ROMAN CATHOLIC ) BISHOP OF THUNDER BAY, ) IMMACULATE HEART COMMUNITY OF ) LOS ANGELES CA, ARCHDIOCESE OF ) VANCOUVER-THE ROMAN CATHOLIC ) ARCHBISHOP OF VANCOUVER, ) ROMAN CATHOLIC DIOCESE OF )

WHITEHORSE, THE CATHOLIC ) EPISCOPALE CORPORATION OF ) MACKENZIE-FORT SMITH, THE ) ROMAN CATHOLIC EPISCOPAL ) CORPORATION OF PRINCE RUPERT, ) EPISCOPAL CORPORATION OF ) SASKATOON, OMI LACOMBE CANADA ) INC. and MT. ANGEL ABBEY INC. ) ) (Defendants) ) CAMERON J.A. [ 1 ] This is a request for costs by Mr. Kelly (the respondent) with respect to the proceedings in Fontaine et al. v.

Canada (Attorney General) et al. , 2014 MBCA 93 , 310 Man.R. (2d) 162. [ 2 ] In that case, in response to The Attorney General of Canada’s (Canada) appeal of the decision of the supervising judge, this court determined that the respondent, a person with a claim resulting from physical or sexual abuse suffered while attending an Indian residential school that exceeded the maximum amount that could be ordered by an adjudicator pursuant to the “Indian Residential Schools Settlement Agreement” (8 May 2006), online: <www.residentialschoolsettlement.ca/IRS%20Settlement%20Agreement-%20ENGLISH.pdf> (the Agreement), did not fully and finally exit the Independent Assessment Process (the IAP) of the Agreement by choosing to access the court process in order to pursue the full amount of his claim. [ 3 ] At the conclusion of that decision, the court observed that the respondent had requested an opportunity to argue costs should he be largely successful in the appeal.

In response, the court allowed for written submissions as to costs and directed that the parties address the issue of which jurisdiction’s law the court should apply in reaching its conclusion. [ 4 ] The reason for the request regarding jurisdiction was grounded in art. 18.03 of the Agreement, which provides: 18.03 Applicable Law This Agreement will be governed by the law of Ontario. [ 5 ] In response, the parties noted, and agreed in their written submissions, that the court’s authority to order costs in this case is grounded in The Court of Appeal Act , C.C.S.M., c.

C240, and is to be exercised by consideration of the factors found in Rule 47 of the Court of Appeal Rules, Man. Reg. 555/88R . Therefore, the law of Manitoba will be applied in the determination of costs. [ 6 ] In addition to the costs of the appeal, the respondent requested costs for the request for direction (RFD) hearing before supervising judge in the Court of Queen’s Bench that was the subject of this appeal. [ 7 ] I would dismiss his request for costs for the RFD, based on the history of the proceedings.

I agree with Canada that there exists an assumption in law that silence as to costs amounts to an order of no costs. [ 8 ] Briefly, this matter arose as a result of the respondent’s request for access to the courts pursuant to the IAP. In granting access, the chief adjudicator held that his claim was to be determined by the court. Next, the respondent brought the RFD before the supervising judge.

While largely successful in that proceeding, and despite his request for costs in his notice of motion, the final decision of the supervising judge was silent as to costs, thereby engaging the assumption as to an order of no costs. See Eremko v. Friesen , 2004 MBQB 160 at paras. 12-16 (QL); and Mark M. Orkin, The Law of Costs , 2nd ed. (Toronto: Canada Law Book, 2014) (loose-leaf update 2014, release 49) at § 105.7. [ 9 ] Next, in response to the appellant’s unsuccessful motion to stay the RFD pending appeal, the supervising judge specifically denied the respondent’s request for costs.

In my view, the latter ruling reinforced the supervising judge’s intention not to order costs for the RFD hearing. [ 10 ] The respondent has not appealed any aspect of the RFD or order as to costs. Therefore, the judgment of the supervising judge stands in this regard. [ 11 ] Regarding this appeal, the respondent requests full indemnity costs in the amount of $80,225.60 plus taxes for legal fees and $5,996.39 for disbursements. In the alternative, he requests substantial indemnity and in the further alternative, costs on tariff.

Canada requests an order of no costs or alternatively, costs on tariff. [ 12 ] The terms used by the respondent to describe costs awards are those found in other jurisdictions, including Ontario. In Manitoba, substantial indemnity costs are known as solicitor-client costs. Indeed, the Manitoba Law Reform Commission, Report No. 111, Costs Awards in Civil Litigation (2005), at. p. 46 et seq , specifically recommended that Manitoba not incorporate the phrase “substantial indemnity costs” in its court rules. [ 13 ] Partial indemnity costs are known in Manitoba as party-and-party costs.

Manitoba Court of Appeal Rule 47(2)

provides: 47(2) Party/party costs shall be taxed on the basis of Tariff “A”, “B”, “C” or “D” in

Schedule A.1, except where, having regard to theresult, the issues in dispute, the complexity of the proceeding and the conduct of the parties, the court or a judge otherwise orders. [14] Solicitor-client costs are only to be awarded in exceptional cases, usually where there has been “reprehensible,scandalous or outrageous conduct on the part of one of the parties,” Young v. Young, (SCC), [1993] 4 S.C.R. 3 at 134. See also West v. West, 2007 MBCA 62; Fouillard v. Ellice (Rural Municipality), 2007 MBCA 108, 220 Man.R. (2d) 113, leave to appealto S.C.C. denied, [2007] S.C.C.A.

No. 555 (QL). [15] At the outset it is important to state that, contrary to the respondent’s position, there has been no improper conduct byCanada in the proceedings leading up to and including this appeal. Therefore, I would not allow costs on this basis. [16] On the other hand, the respondent was the successful party on this appeal. Thus, the issue is quantum of costs. [17] I agree with the respondent that the matters in dispute were significant and had precedential value.

As he noted in hiswritten submission, other individuals with claims pursuant to the IAP will be directly affected by the outcome of the decision and itprovides clarity for those other claimants. Thus, the proceedings partially involved public interest issues which can elevate an order ofcosts. [18] I also agree that, while the proceedings involved the

interpretation of a contract, the uniqueness of that contract elevatedthe complexity of the proceedings. It cannot be said that the Agreement is an ordinary contract. [19] In the recent case of Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court of Canada considered theissue of special costs on a full indemnity basis in a case involving public interest litigants, stating (at para. 140): …. First, the case must involve matters of public interest that are truly exceptional.

It is not enough that the issues raised have notpreviously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant andwidespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigationthat would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectivelypursue the litigation in question with private funding.

In those rare cases, it will be contrary to the interests of justice to ask theindividual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim. [20] While the issues in this case satisfy the first prong of the test, it is important to remember that the respondent does havea direct pecuniary interest in these proceedings. [21] Therefore, balancing all of the above, I would fix his legal fees at $45,000 plus taxes, a rate higher than tariff but lowerthan that requested by the respondent.

In reaching this figure I have considered and declined his request for reimbursement for thearticling student who worked on the file. I would also decline his request for the legal fees of John Phillips, which were notparticularized or justified, especially in light of the fact that two other lawyers were responsible for the conduct of the file. Furthermore,I would not reimburse the second lawyer on the file a full hourly wage on the basis that that the Court of Queen’s Bench Tariff onlyallows for compensation for a second counsel at two-thirds of the fee allowed for the first lawyer.

In my view, compensation limited totwo counsel is appropriate. [22] I have also considered the direction in Carter that, even where special costs are ordered, this “does not give thesuccessful litigant the right to burden the defendant with any and all expenses accrued during the course of the litigation” and that “costsawards are meant to ‘encourage the reasonable and efficient conduct of litigation’” and “only those costs that are shown to be reasonableand prudent will be covered by the award” (at para. 142). [23] The respondent also asks for disbursements in the amount of $5,996.39.

Of that amount he asks for $3,308.52 forprocess server and filing fees, 1,713.51 travel expenses (inclusive of both counsel and the articling student) and $974.36 photocopyingfees. [24] Regarding the process server and filing fees, on the face of it the amount appears to be excessive and there is nodocumentation supporting such an amount. First, because he was a respondent, there were no filing fees payable to the court.

While Iunderstand that an agent would be required to physically file the documents and serve a copy on the other parties (two lawyers), withoutdocumentation justifying the amount, I would set the filing fees at $1,000.00. [25] I would allow travel expenses for two counsel and set them at $1,142.91. [26] As for the photocopying expenses, Guideline 9 of the Manitoba Courtof Appeal Guidelines (July 2003), online: <http://www.manitobacourts.mb.ca/site/assets/files/1139/practice_guidelines.pdf>, fixes therate at a maximum fee of $100.

While, there is discretion to vary this amount, the respondent has not justified the amount he claims. Therefore, I would set photocopying expenses at the guideline rate. [27] In conclusion, I would order legal fees fixed in the amount of $45,000 plus applicable taxes and disbursements fixed in

the amount of $2,242.91 inclusive of applicable taxes. J.A. I agree: J.A. I agree: J.A.