T-1628-78
The Hamlet of Baker Lake, Baker Lake Hunters
and Trappers Association, Inuit Tapirisat of
Canada, Matthew Kunungnat, Simon Tookoome,
Harold Qarlitsaq, Paul Uta'naaq, Elizabeth
Alooq, Titus Alluq, Jonah Amitnak, Francis Kalu-
raq, John Killulark, Martha Tickie, Edwin Eve,
Norman Attungala, William Noah, Marion Pat-
tunguyaq, Silas Kenalogak, Gideon Kuuk, Ovid
Kinnowatner, Steven Niego, Matthew Innakatsik,
Alex Iglookyouak, Titus Niego, Debra Niego, Ste-
phen Kakimat, Thomas Anirngniq, Margaret
Amarook, James Ukpaqaq, Jimmy Taipanak,
Michael Amarook, Angela Krashudluaq, Margaret
Narkjanerk, John Narkjanerk, Elizabeth Tunnuq,
Marjorie Tarraq, Hanna Killulark, William K.
Scottie, Edwin Niego, Martha Talerook, Mary
Iksiktaaryuk, Barnabas Oosuaq, Nancy Sevoqa,
Janet Ikuutaq, Marjorie Tuttannuaq, Luke Tung-
naq, James Kingaq, Madge Kingaq, Lucy Tun-
guaq, Hattie Amitnak, Magdalene Ukpatiky, Wil-
liam Ukpatiku, Paul Ookowt, Louis Oklaga, H.
Avatituuq, Luk Arngna'naaq, Mary Kakimat,
Samson Arnauyok, Effie Arnaluak, Thomas Kaki-
mat, Mathew Nanauq, John Nukik, Bill Martee,
Martha Nukik, Silas Puturiraqtuq, David
Mannik, Thomas Iksiraq, Robert Inukpak, Joedee
Joedee, John Auaala, Hugh Tulurialik, Thomas
N. Mannik, Silas Qiynk, Barnabus Peryouar,
Betty Peryouar, Joan Scottie, Olive Innakatsik,
Sarah Amitnak, Alex Amitnak, Vera Auaala,
George Tataniq, Mary Tagoona, James Teriqa-
niak, John Iqsakituq, Silas Kalluk, Hannah Kuuk,
Hugh Ungungai, Celina Uta'naaq, Moses
Nagyugalik, Mary Iqaat, Louis Tapatai, Harold
Etegoyok, Sally Iglookyouak, Marjorie Aqigaaq,
Matthew Aqigaaq, Mona Qiyuaryuk, Winnie
Owingayak, Samson Quinangnaq, Elizabeth Qui-
nangnaq, Hattie Attutuvaa, Paul Attutuvaa,
Marion Anguhalluq, Luk Anguhalluq, Ruth
Tulurialik, Irene Kaluraq, Charlie Toolooktook,
Thomas Tapatai, Elizabeth Tapatai, B. Scottie,
Mary Kutticq, Jacob Marriq, Lucy Kownak, A.
Tagoona, Charles Tarraq, Vivien Joedee (Plain-
tiffs)
v.
Minister of Indian Affairs and Northern Develop
ment, the Engineer designated by the Minister of
Indian Affairs and Northern Development pursu-
ant to section 4 of the Territorial Land Use
Regulations, SOR/77-210, as amended, the
Director, Northern Non-Renewable Resources
Branch of the Department of Indian Affairs and
Northern Development, the Mining Recorder and
the Deputy Mining Recorder for the Arctic and
Hudson Bay Mining District, the Attorney Gener
al of Canada, Urangesellschaft Canada Limited,
Noranda Exploration Company Limited, Pan
Ocean Oil Ltd., Cominco Ltd., Western Mines
Limited and Essex Minerals Company Limited
(Defendants)
Trial Division, Mahoney J.—Toronto, December
11; Ottawa, December 18, 1979.
Practice — Costs — Motion by plaintiffs that costs be
awarded to them and that special directions concerning costs
be made increasing amounts payable for the services of solici
tors and counsel over those provided in Tariff B — Defendants
did not dispute existence of plaintiffs' aboriginal title, and
plaintiffs' claim for injunctive relief was not well-founded —
Plaintiffs were successful in arguing that aboriginal title sub
sisted — Whether special circumstu„s.,,, calling for an
increase in taxable costs, exist here — Motion allowed in part
— Federal Court Rules 344(7), 346(1), Tariffs A and B.
Aladdin Industries Inc. v. Canadian Thermos Products
Ltd. [1973] F.C. 942, applied. Smerchanski v. Minister of
National Revenue [1979] 1 F.C. 801, distinguished.
Crabbe v. Minister of Transport [1973] F.C. 1091,
referred to.
MOTION.
COUNSEL:
Aubrey E. Golden and David Estrin for
plaintiffs.
D. T. Sgayias for government defendants.
SOLICITORS:
Golden, Levinson, Toronto, for plaintiffs.
Deputy Attorney General of Canada for gov
ernment defendants.
Fasken & Calvin, Toronto, for defendants
Pan Ocean Oil Ltd., Cominco Ltd. and West
ern Mines Limited.
McCarthy & McCarthy, Toronto, for defend
ants Urangesellschaft Canada Limited and
Noranda Exploration Company Limited.
Campbell, Godfrey & Lewtas, Toronto, for
defendant Essex Minerals Company Limited.
The following are the reasons for order ren
dered in English by
MAHONEY J.: When I gave reasons for my
judgment herein [[1980] 1 F.C. 518], I left open
the opportunity to the plaintiffs and the govern
ment defendants to make representations on the
question of costs. The plaintiffs have moved that
costs be awarded to them and that, pursuant to
Rule 346(1) or, alternatively, Rule 344(7), special
directions concerning costs be made increasing the
amounts payable for the services of solicitors and
counsel over those provided in Tariff B, paragraph
2(1). The parties are in agreement that, at the very
least, costs should be taxed on the basis of this
having been a Class III action throughout rather
than a Class II action, which it is by virtue of
Tariff A, paragraph 1(3)(b), no ascertained
amount having been sought.
I should mention certain facts, which, while not
relevant to my decision, are perhaps necessary to
demonstrate that this is not merely an academic
exercise. I apprehend that there is a popular belief
that the federal government provides a measure of
funding to assist aborigines in the assertion of their
aboriginal rights. Whatever the validity of that
belief in other circumstances, it does not pertain in
this case. The plaintiff Hamlet of Baker Lake
appropriated municipal funds to help finance this
litigation. The government of the Northwest Terri
tories determined that that was an improper use of
municipal funds and reduced its subsequent grants
to the hamlet in a like amount. The contract under
which the plaintiff Inuit Tapirisat of Canada is
provided funding by the federal government
expressly prohibits the use of any such funds for
litigation. As stated, I mention this only to demon
strate that this is not merely an exercise that will
lead to a transfer of expenditures from one account
to another on the books of the government of
Canada.
The principle to be applied was stated by Mr.
Justice Kerr in Aladdin Industries Incorporated v.
Canadian Thermos Products Limited.'
It is a generally accepted principle that party and party costs
are awarded as an indemnity or partial indemnity to the
successful litigant against costs reasonably incurred, subject to
the express provisions of any applicable statutes and the tariffs
and rules of the court concerned.
The amounts provided in section 2 of Tariff B for services of
solicitors and counsel are intended to be appropriate in the
general run of cases coming before this Court. The amounts
may be increased or decreased by direction of the Court, and in
exercising its discretion to increase the amounts the Court will,
I should think, have due regard to any special circumstances,
including the complexity, value and importance to the litigants
of the proceedings and the time and work reasonably involved
in the services. In the present case there are such special
circumstances, and I think that increased amounts are warrant
ed in respect of some of the items. I also think that the amounts
in section 2 for the general run of cases may be taken and used
as a guide or yardstick in fixing commensurate increases.
The ratio decidendi of the decision of Chief Jus
tice Jackett in Smerchanski v. M.N.R., 2 based on
Crabbe v. Minister of Transport, 3 a decision of the
Federal Court of Appeal, is that such an order
ought to be made in rendering judgment and
cannot be made on an appeal from the taxing
officer. The Crabbe decision was rendered some
months after the Aladdin decision but a careful
reading of the latter shows clearly that Mr. Justice
Kerr saw the possibility of a procedural objection
being successfully raised to his making the order
sought. His outline of the appropriate substantive
considerations remains valid. Special circum
stances, calling for an increase in taxable costs,
exist here.
There were three broad issues before the Court
in this action: firstly, whether an Inuit aboriginal
title had ever existed in respect of the territory in
issue; secondly, whether that title subsists today
and, thirdly, if that title subsists, whether the
defendants should be enjoined from doing what the
mining laws purported to authorize them to do.
The defendant mining companies were joined on
an order that they would be neither entitled to nor
liable for costs with a single exception immaterial
to the present question. They agreed to pay the
' [1973] F.C. 942 at 948.
2 [ 1979] 1 F.C. 801.
3 [1973] F.C. 1091.
disbursements to permit one of the plaintiffs' coun
sel to attend their examination for discovery of the
plaintiffs at Baker Lake, N.W.T.
The matter of whether an aboriginal title had
ever existed was not in issue between the plaintiffs
and the government defendants. The government
defendants, in pleading, made all the admissions
necessary to permit the Court to determine that
issue in favour of the plaintiffs. The matter was
put in dispute by the defendant mining companies.
There was undoubtedly considerable preparation
involved on the plaintiffs' behalf in respect of it
but I have some difficulty believing that the prepa
ration was largely undertaken after the defendant
mining companies were joined and put the issue in
dispute. In any case, I see no justice in making the
government defendants liable for costs incurred in
respect of this issue.
The second major issue, the subsistence of that
aboriginal title, was in dispute throughout between
the plaintiffs and government defendants. Again
there was a good deal of preparation involved on
all sides but I cannot see that the addition of the
mining companies as defendants would have had
any significant effect on the costs reasonably
incurred by either the plaintiffs or government
defendants in respect of this issue.
To succeed in the third issue, obtaining injunc-
tive relief, the plaintiffs had to succeed in the first
two, which they did, and then establish that the
rights stemming from their subsisting aboriginal
title were paramount over the mining laws.
Numerous recent decisions of the Supreme Court
of Canada were fatal to their success as, with
respect, must have been apparent to all the parties
at an early stage of preparation. No effort was
made by way of a preliminary determination of a
question of law or otherwise to achieve an
economical resolution of the issue of entitlement to
injunctive relief. Instead, the plaintiffs called con
siderable evidence as to past and prospective
impairment of the Inuit's right to hunt caribou by
activities authorized by the mining laws and the
government defendants called considerable evi
dence in reply. All that added to the costs of
preparation. While I can only speculate on their
respective reasons for pursuing the third issue in
the way they did, both plaintiffs and government
defendants acquiesced in a course of action that
considerably lengthened the trial and added to the
costs of the action. As between them, the results of
this course of conduct ought to be neutral as it
bears on the apportionment of costs.
Prior to the addition of the defendant mining
companies, the position in this action, had the
parties been interested in its economical resolution,
was that the original existence of the plaintiffs'
aboriginal title was admitted and the claim for
injunctive relief was clearly not well founded. The
real issue to be tried, as between the plaintiffs and
government defendants, was whether the plaintiffs'
aboriginal title had been extinguished, and, in that
respect, the plaintiffs were successful. Costs
should, ordinarily, follow the event, as argued by
the government defendants. I accept the plaintiffs'
argument that it would be a practical impossibility
to allocate the costs taxable to the three separate
areas with any precision. It is my intention that
each party bear its own costs with respect to the
first and third issues and that the plaintiffs recover
their costs with respect to the second. As a practi
cal way of achieving that result I propose to order
that the plaintiffs recover, from the government
defendants, one-half of their taxed costs of the
action.
This was a case where the services of second
counsel were reasonably necessary throughout the
trial. The amounts provided under Tariff B for
preparation for and conduct of the hearing are
inadequate in the circumstances and should be
increased. I propose to order that costs be taxed on
the basis of this having been a Class III action
throughout, that the plaintiffs' costs of preparation
for the trial be taxed at $7,500 in lieu of the
amount provided under paragraph 2(1)(d) and
that the amounts taxable under paragraph 2(1)(e)
be doubled.
The plaintiffs are entitled to costs of this
application. Recognizing an obvious practical
problem, I propose to order that costs payable to
plaintiffs be paid to their solicitors.
I wish to take this opportunity to correct an
error in the reasons for judgment filed
November 15. In defining the area subject of the
plaintiffs' aboriginal title, in the penultimate sen
tence on page 563, I referred to the confluence of
the Kazan and Kunwak Rivers. Those rivers do
not, in fact, conflow. Both enter the west end of
Thirty Mile Lake but at points a few kilometers
apart. I wish, therefore, to correct the reasons by
deleting the words "confluence of the Kazan and
Kunwak Rivers" and substituting the words "inlet
of the Kazan River into Thirty Mile Lake".
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.