The Ontario Superior Court refused to grant the Crown its costs because the case was public interest litigation and also raised important and novel issues about how to litigate Aboriginal rights claims.

The decision of Justice Perell of the Ontario Superior Court was released on 26 February 2013: Kelly v. Canada (Attorney General), 2013 ONSC 1220, summarized in our e-Newsletter of 27 March 2013.

Three motions were argued together before Justice Perell: (i) the Plaintiffs sought to substitute Grand Chief White for Grand Chief Kelly as a co-Plaintiff, and to substitute the newly-elected chiefs of two other First Nations as co-Plaintiffs; (ii) the Plaintiffs sought an order that Grand Chief White be authorized to bring the action as a representation action on behalf of all Treaty 3 beneficiaries pursuant to Rule 12.08 of Ontario Rules of Civil Procedure; and, (iii) Canada sought to strike the action on the basis that it is non-justiciable pursuant to Rule 21 of the Ontario Rules of Civil Procedure.  The Crown did not oppose the various substitutions of co-Plaintiffs.

Justice Perell of the Ontario Superior Court dismissed the Plaintiffs motion for a representation order and granted the Crown`s motion and dismissed the action without prejudice to the Plaintiffs commencing a properly constituted and justiciable action for the breach of Treaty 3.

The Crown sought its costs on a partial indemnity basis in the amount of $30,000 for fees and $1,244.85 for disbursements.

The Plaintiffs argued that it was an appropriate case for the Court to exercise its discretion and not award costs because the litigation was a public interest litigation and because the case involved novel and emerging issues of law. Alternatively, the Plaintiffs argued that the amount claimed by the Crown was excessive and should be reduced.

Justice Perell agreed with the Plaintiffs that is was an appropriate case for the Court to exercise its discretion not to award but did not agree with the Plaintiffs’ alternative submission even though it was not necessary to address it, stating:

Had the case at bar not involved matters in the public interest and novel and emerging issues about the civil procedure for claims involving aboriginal rights, I would have awarded the Crown its costs as requested.

Justice Perell concluded the matter was public interest litigation and also raised important and novel issues about how to litigate Aboriginal rights claims.  He cited the discussion of costs and public interest litigation in his co-authored text on Civil Procedure:

The traditional principles about costs were designed primarily for disputes between litigants motivated by self-interest who would weigh the prospects of receiving or paying costs as a factor in deciding whether to prosecute or defend a claim. Courts have come to appreciate, however, that the traditional principles may need to be altered in cases where individual litigants or intervenors seek to enforce their constitutional rights or raise matters of consequence to the public.

In public interest litigation, courts have the discretion not to follow the traditional principle that costs follow the event to ensure that constitutional law, the Canadian Charter of Rights and Freedoms, and other public interest litigation is not beyond the reach of the citizen of ordinary means. An unsuccessful litigant who raises a legal issue of public importance may be relieved of the burden of paying costs to a successful government or public authority litigant.

[Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario (Markham: LexisNexis, 2010) at p. 666 (footnotes omitted)]

Therefore, Justice Perell refused to grant the Crown its costs.


Scott Kerwin


Aboriginal Law