Date: 20000113
Dockets: T-2953-93
T-2954-93
T-2022-89
T-1254-92
T-57-99
T-61-99
T-2953-93
BETWEEN:
THE LOUIS BULL BAND AND CHIEF HERMAN ROASTING,
HENRY RAINE, JONATHAN BULL, THERESA BULL,
CLYDE ROASTING, DONNA TWINS, WINNIE BULL,
SOLOMON BULL, GEORGE DESCHAMPS, the Chief and
Councillors of the Louis Bull Band suing on
their own behalf and on behalf of all other
members of the Louis Bull Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
- and -
BETWEEN:
T-2954-93
THE MONTANA BAND AND CHIEF LEO CATTLEMAN,
LAWRENCE STANDING-ON-THE-ROAD,
CARL RABBIT, REMA RABBIT, EUNICE LOUIS,
the Chief and Councillors of the Montana Band
suing on their own behalf and on behalf of
all the other members of the Montana Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
- and -
BETWEEN:
T-2022-89
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band and the SAMSON INDIAN BAND AND NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, AND THE MINISTER OF FINANCE
Defendants
- and -
BETWEEN:
T-1254-92
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CURTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
- and -
T-57-99
BETWEEN:
THE LOUIS BULL BAND and CHIEF HELEN BULL,
HENRY RAINE, NORMAN DESCHAMPS,
SIMON THREEFINGERS, SOLOMON BULL,
THERESA BULL, TERENCE RAIN, ELAINE ROASTING and
JOSEPH DESCHAMPS, the Chief and Councillors
of the Louis Bull Band suing on their own behalf
and on behalf of all the other members of the Louis Bull Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
- and -
T-61-99
BETWEEN:
THE MONTANA BAND and CHIEF LEO CATTLEMAN,
REMA RABBIT, DARRELL STRONGMAN,
CARL RABBIT and COADY RABBIT, the Chief
and Councillors of the Montana Band suing on their
behalf and on behalf of all other members
of the Montana Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
An Order Concerning Costs
MacKAY, J.:
[1] On August 31 and September 1, 1999 in Calgary I heard a motion for directions on behalf of the defendant Her Majesty the Queen (the "Crown") in Court files T-2953-93 and T-57-99 in which the Louis Bull Band et al. are plaintiffs and T-2954-93 and T-61-99 in which the Montana Band et al. are plaintiffs.
[2] The application was heard on an urgent basis with relatively short notice on dates earlier scheduled for a case management conference involving Court actions T-2022-89, in which the Samson Band et al. are plaintiffs, and T-1254-92 in which the Ermineskin Band et al. are plaintiffs. Both of the latter Bands had notice from the Crown of its motion for directions and both sought to intervene in any hearing of that motion.
[3] All four of the Bands named, i.e., Louis Bull, Montana, Samson and Ermineskin, share interests in Pigeon Lake Reserve, which is centred at Hobbema, in Alberta, and in oil and gas production and revenues derived thereby from the resources of the shared Reserve. Each of the Court actions referred to herein claims against the Crown in regard to alleged breaches of fiduciary duties, and duties arising under statute, treaty or the Constitution, in the management of the resources of the shared Reserve and of the revenues arising from the exploitation of those resources. The Crown's motion for directions related to the basis for distribution, among the Bands concerned, of royalties derived from resource production at the Reserve, and notice had earlier been given to each of the four Bands that the annual distribution in 1999 among them of revenues, ordinarily done in August, would not be made pending directions from the Court. All four Bands had an interest in being heard in any consideration of the Crown's motion for directions.
[4] Despite their interests in the matter, consent to an order permitting Samson and Ermineskin plaintiffs to be intervenors in this matter was not given on behalf of the Louis Bull and Montana Bands in advance of the hearing. Though consent to the intervention of Samson and Ermineskin was granted at the commencement of the hearing of the Crown's motion on August 31, all parties, particularly the Samson and Ermineskin Bands, had necessarily prepared, prior to the hearing, for argument on motions to intervene brought by those two Bands but ultimately not argued when their intervention was ordered, on consent.
[5] After many years of distributing revenues from royalties to the four Bands on a per capita basis, reflecting each Band's population as a share of the total population of the four Bands, the Crown's motion for directions was brought following changes in the claims raised in the Louis Bull and Montana actions. In their 1993 actions, T-2953-93 and T-2954-93 respectively, each of these Bands filed in 1999 an amendment to their statements of claim, and each filed new actions T-57-99 and T-61-99 respectively, in which, in effect, in the two actions initiated by each Band each claimed entitlement to 25 per cent of the resources, and the revenues derived from them, of the Pigeon Lake Reserve. That share is greater than each qualified for on a per capita basis, and the shares of the other two Bands would be reduced if the Louis Bull and Montana claims are to be recognized.
[6] After hearing from counsel for each of the four Bands and for the Crown, including discussion of possible terms of an order responding to the Crown's motion for directions, the Court issued an order on September 3, 1999. The terms of that Order were not objected to by any of the parties. It directed in part that royalties held by the Crown in respect of the Pigeon Lake Reserve No. 138A, ordinarily paid out annually to the four Bands, shall be paid, as in previous years, on a per capita basis, forthwith, without prejudice to any claim that any of the four Bands has against the Crown.
[7] Before conclusion of the hearing on September 1, 1999, counsel for the plaintiff Bands made oral representations seeking consideration of an award of exemplary or punitive damages against the Crown, and for solicitor-client costs to be awarded to them. The Court took those representations under reserve, indicating that it would seek written representations from counsel in relation to both exemplary damages and solicitor and client costs with reference to certain jurisprudence relating to such awards. Following the hearing written representations were submitted on behalf of both the Samson and the Ermineskin Bands, which were supported by counsel for the Louis Bull and Montana Bands.
[8] None of the parties made written representations in support of consideration of exemplary damages. In my opinion there is no basis for considering exemplary damages. The proceedings here heard are not in themselves an action for tort, rather they are interlocutory proceedings for directions by the Crown, which seeks directions that will assist it in meeting fiduciary or trust obligations to the Bands concerned. They are not proceedings for an award of damages, whether exemplary or compensatory. Any claim the Bands may have for loss or injury arising from delay in payment of annual shares of royalties, are not here established by evidence and are not here recoverable.
[9] The bases for the claim by the Bands to costs on a solicitor and client basis, as stated on behalf of Samson, are said to be that the Crown created unnecessary complexity in the issue before the Court, did not place full documentation before the Court that was necessary to make a determination, appears to have declined to agree to a consent order to resolve the issue before the Court and to have chosen timing unrelated to the needs of the First Nations involved. In the result it is urged the application or the length of its hearing was unnecessary. All of these allegations are said to have caused substantial and unnecessary difficulty or expense for the four Bands, and that the step of applying for directions, which resulted in an order that the Crown continue past practice, was unnecessary.
[10] For Ermineskin, the principle for solicitor and client costs is supported, since it is urged the expenses incurred by it were essentially unnecessary. (See: Bhatnager v. M.E.I., [1985] 2 F.C. 315 at 318 (F.C.T.D.); Twinn v. Canada (No. 3) (1987), 12 F.T.R. 136 at 137-8; A.G. Canada v. Information Commissioner, [1998] 1 F.C. 337 at 372-374 (F.C.T.D.)). Further, it is urged that in the circumstances of this case, the respondent Bands simply ought not to be put to any expense for costs. That factor was adopted by Mr. Justice Brulé of the Tax Court, following the Ontario Court (General Division). In Canderel Ltd. v. Canada, [1994] T.C.J. No. 224, Brulé, T.C.J. adopted the statement of Henry J. in Apotex Inc. v. Egis Pharmaceuticals and Novopharm Ltd. (1991), 4 O.R. (3d) 321 at 325:
| ...while the award of costs between parties on the solicitor and client scale has traditionally been reserved for cases where the Court wishes to show its disapproval of conduct that is oppressive or contumelious, there is also a factor that frequently underlies the award, that is not necessarily expressed, that the successful party should not be put to any expense for costs in the circumstances. That is a factor in my decision in this case. |
[11] Finally, for Ermineskin it is urged that in the alternative, if solicitor and client costs are not awarded, costs ought to be awarded to that Band at a higher scale, approaching indemnity of its costs on this motion.
[12] In my opinion, there is no basis for an award of costs against the Crown on a solicitor and client basis. The application for directions was not brought without cause in light of the revised claims advanced by the Louis Bull and Montana Bands with regard to their respective shares of the annual payment of royalties. The timing was unfortunate but apparently was the result of efforts by the Crown to seek agreement from each of the Bands for proposed allocation of revenues to them in 1999.
[13] While the Crown's application was not required, and thus not necessary in that sense, it cannot be said to have been imprudent in light of the claims raised in the various actions in which the four Bands have raised substantial claims based on alleged breach of trust and of fiduciary duties, as well as statutory, treaty and constitutional responsibilities. Nevertheless, in my opinion, the circumstances are such that the four Bands should be substantially reimbursed for the costs incurred in representations in respect of the Crown's motion. Those costs should not be considered solicitor and client costs but costs on a party and party basis at the highest level of column 4 under the Court's tariff of fees, and with all reasonable disbursements reimbursed including travel and accommodation costs for attendance of counsel in Calgary. The circumstances are such that while the Crown was not acting in any way frivolously in making its application, the application should not result in any significant costs, for legal advice and services, in responding to the Crown's motion on the part of the four Bands concerned.
[14] Costs should be considered awarded once in relation to counsel who served both Louis Bull and Montana Bands, and once each in relation to counsel for the Samson Band, and to counsel for the Ermineskin Band.
[15] The Order now issued provides that a copy shall be filed in each of the Court files included in the style of cause to these Reasons.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
January 13, 2000.