Legal fees and other costs are an important consideration when deciding if (and how) to advance litigation or pursue settlement. Recently, the Federal Court confirmed the key principles it will consider when assessing costs in First Nation governance disputes.
In Johnny v. Dease River First Nation, 2024 CanLii 106413 (FC), the Federal Court confirmed that cost awards in First Nation governance disputes will be decided based on the following factors:
- Judge’s Discretion: In First Nation governance cases, as in other cases, an award of costs is in the trial judge’s discretion, which must be exercised after taking all relevant factors into consideration.
- Imbalance: The imbalance between the financial resources of an applicant and those of the First Nation, or a party whose legal fees are paid by the First Nation, is a relevant factor. Taken in isolation, however, the resource imbalance is not a sufficient factor to justify an award of costs on a solicitor-client basis.
- Impact: The fact that an application contributed to clarify the interpretation of a First Nation’s laws or governance framework may be taken into account when making a costs award. However, not every application will fall into that category.
In connection/addition to the above, the Federal Court also considered:
- Whether the applicant was wholly, or only partially successful;
- Whether the case raised “novel” or “complex” issues”; and
- What, if any, evidence there was to indicate that the applicants’ concerns were shared by other members of the First Nation.
First Nations involved in Federal Court litigation can and should consider these factors, especially when negotiating or applying for costs (or elevated costs).
Woodward & Company offers comprehensive advice and representation to First Nations involved in all stages of governance disputes and litigation. Contact our Lands and Governance Practice Group Chair, Jessica Proudfoot, or Peter Jones for advice specific to your issue.