Louis Bull Band v. Canada
T-2953-93 / T-2954-93 / T-2022-89 / T-1254-92 / T-57-99 / T-61-99
MacKay J.
13/1/00
9 pp.
Solicitor and client-Bands claiming costs on solicitor and client basis with respect to Crown's motion for directions in four different files-Application heard on urgent basis-Main actions against Crown for alleged breaches of fiduciary duty, and duties arising under statute, treaty or Constitution, in management of resources (oil and gas) of shared reserve and of revenues arising from exploitation of resources-Crown sought directions as to basis for distribution, among four Bands concerned, of royalties derived from resource production at reserve-Bands alleging Crown created unnecessary complexity in issue before Court, did not place full documentation before Court necessary to make determination, appears to have declined to agree to consent order to resolve issue before Court and to have chosen timing unrelated to needs of First Nations involved-Bands urging that in circumstances of case, Bands simply ought not to be put to any expense for costs-In Canderel Ltd. v. Canada, [1994] 1 C.T.C. 2853, Tax Court Judge adopted Henry J.'s statement in Apotex Inc. v. Egis Pharmaceuticals (1991), 4 O.R. (3d) 321 (Gen. Div.) to effect while award of costs between parties on solicitor and client scale traditionally reserved for cases where Court wishing to show its disapproval of oppressive or contumelious conduct, other factor frequently underlying award, not necessarily expressed, that successful party should not be put to any expense for costs in circumstances-Band urging that, in alternative, costs ought to be awarded to Band on higher scale, approaching indemnity of its costs on this motion-No basis for award of costs against Crown on solicitor and client basis-Application for directions not brought without cause in light of revised claims advanced by Louis Bull and Montana Bands with regard to their respective shares of annual payment (one quarter for each band instead of per capita)-While Crown's application not required, thus not necessary in that sense, cannot be said to have been imprudent in light of claims raised in various actions in which 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, circumstances herein such that four Bands should be substantially reimbursed for costs incurred in representations in respect of Crown's motion-Those costs should not be considered solicitor and client costs but costs on party and party basis at highest level of Column 4 under Court's tariff of fees, and with reasonable disbursements reimbursed including travel and accommodation costs for attendance of counsel in Calgary-While Crown not acting in any way frivolously in making its application, application should not result in any significant costs to Bands in responding to Crown's motion.