PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
GERALDINE M. WILLISTON
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
AS REPRESENTED BY THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT
and
THE CHIPPEWAS OF RAMA INDIAN BAND
(aka THE CHIPPEWAS OF MNJIKANING FIRST NATION)
Defendants
[1] On June 10, 2005, I dismissed the plaintiff's action. I allowed the parties time to file submissions regarding costs. I have received, reviewed and considered those submissions. These reasons relate to the issue of the costs to be awarded.
[2] The plaintiff submits, although unsuccessful on all issues, that this is a proper case for each party to bear her or its own costs. This, according to the plaintiff, is because the case raised a number of novel and important legal issues and because the plaintiff is of limited financial means while the defendants are well positioned to bear the costs of litigation. Alternatively, the plaintiff says that any costs awarded in favour of the defendants should be on a limited basis.
[3] Costs are within the discretion of the court: Federal Courts Rules, 1998, Rule 400(1). The non-exhaustive list of factors that may be considered in awarding costs are delineated in Rule 400(3). The general rule is that costs follow the event and absent exceptional circumstances should be awarded to the successful litigant on a party and party basis. I am not persuaded that deviation from that norm is warranted here.
[4] The fundamental principle is that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party: Apotex Inc. v. Wellcome Foundation Ltd. (1988), 159 F.T.R. 233 (T.D.) aff'd. (2001), 199 F.T.R. 320 (C.A.). In this instance, the plaintiff was unsuccessful on all fronts and her action was dismissed in its entirety. However, it was largely due to the plaintiff's efforts that the action proceeded, for the most part on an agreed statement of facts and on agreed documents, thereby resulting in a substantial reduction of the time required for trial.
[5] The issues were novel and multiple, but circuitous. They were not, when distilled, legally complex.
[6] All parties required leave to amend their respective pleadings at trial. Second counsel fees are not warranted at any stage of the proceeding nor are extended hours of preparation for discovery or conference.
[7] The plaintiff cast part of her action as a public interest issue and claims that reduced costs are thus warranted. However, there exists no legal basis upon which to characterize the action in that manner.
[8] The defendant Crown made a written offer to settle that was not revoked prior to trial and was not accepted by the plaintiff. Thus, Rule 420(2)(b) is engaged in relation to Her Majesty.
[9] Of particular significance is the fact that the two defendants were aligned and reaped the benefit of collaboration and shared responsibility for submissions.
[10] Recognizing that an award of costs is not an exact science and considering the submissions and the factors to which I have referred, I conclude that each of the defendants is entitled to costs which I fix in the all inclusive sum of $12,000 with respect to the defendant Crown and $8,000 with respect to the defendant band.
ORDER
IT IS HEREBY ORDERED THAT:
The plaintiff will pay costs to the defendant, Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development, in the fixed amount of $12,000, inclusive of disbursements, and the plaintiff will pay costs to the defendant, The Chippewas of Rama Indian Band (aka The Chippewas of Mnjikaning First Nation), in the fixed amount of $8,000, inclusive of disbursements.
JUDGE