Update on Court Application Challenging $510 Million RHT Legal Fee – November 4, 2024
Press Release
On July 30, 2024, the court challenge by Atikameksheng Anishnawbek and Garden River First Nation against the Litigation Management Committee (the “LMC”) of the Robinson Huron Treaty Litigation Fund (the “RHTLF”) and the Lawyers acting for the RHTLF (the “Lawyers”) was heard by Justice Steele of the Ontario Superior Court of Justice in Toronto. On October 30, Justice Steele issued her decision on the case. This update summarizes her decision.
Background:
- Atikameksheng and Garden River asked that the court order the $510M legal fees be assessed under the Solicitors Act or the Trustees Act.
- Atikameksheng and Garden River First Nation are asking the Court to order that the legal fees be significantly reduced, resulting in more funds being returned to all 21 RHT First Nations.
- The LMC brought its own application seeking a declaration that the $10 billion settlement funds were not assets of the RHTLF.
- The LMC and the Lawyers resisted the request to provide notice to the RHT Anishinaabeg, but the Court ordered the LMC to provide notice.
- The Lawyers did not recommend that the RHTLF obtain independent legal advice before approving the largest contingency fee in history, and the RHTLF did not obtain any independent legal advice.
- Many members of the RHT Anishinaabeg attended the hearing of the application in person on July 30 and more than 1,000 people joined online.
- Justice Steele reserved her decision at the end of the hearing on July 30, meaning that her written decision would follow.
- At the end of the hearing, she told the courtroom that her decision should not delay any planned distribution of the settlement, which proceeded as scheduled.
- See here for the CBC’s story on the court hearing.
Decision:
In summary, Justice Steele has ruled in favour of Atikameksheng and Garden River’s application and has ordered that the legal fees be assessed. Justice Steele has directed that the
Court will conduct the assessment rather than referring the matter to an assessment officer. This is a huge victory for all RHT Anishinaabeg because the assessment will seek a significant reduction in the legal fees, resulting in more settlement funds being distributed to the 21 RHT Nations. Additionally, Justice Steele refused the relief requested by the LMC and determined that the settlement funds were assets of the RHTLF.
Justice Steele’s decision is reported at Nootchtai et al v. Nahwegahbow Corbiere Genoodmagejig et al, 2024 ONSC 6088 and is attached to this update.
Justice Steele’s decision holds as follows:
- For the reasons set out below, I am directing an assessment of the Partial Contingency Fee Agreement (defined below) and the Legal Fees. In addition, I am satisfied that the Settlement Proceeds are Assets of the Trust.”
In reaching this conclusion, Justice Steele rejected the argument advanced by the LMC and the
Lawyers that Atikameksheng and Garden River were not properly before the Court:
“[56] I agree with the Applicants’ submission that the means of ascertaining the consent of the band council is an internal matter for each First Nation. In the instant case the duly elected Chiefs of Atikameksheng and Garden River have given sworn evidence that they have their respective band’s authority to commence this application on behalf of their First Nation. This is compelling evidence that authorization was sought in conformity with the internal practices of the respective First Nations bands. I am satisfied that Atikameksheng and Garden River are parties to the application”
Ultimately, Justice Steele concluded that Atikameksheng and Garden River have standing to compel an assessment. Upon her review of the evidence, she concludes that Sections 9(1) and 9(4) of the Solicitors Act apply to compel an assessment of the legal fees. As such, it was not necessary to consider Atikameksheng and Garden River’s additional arguments. Justice Steele also concluded that “there are special circumstances of this case that appear to require an assessment” despite the legal fees already having been paid.
Even if the Solicitors Act did not require an assessment of the legal fees, Justice Steele would have exercised the inherent jurisdiction of the Court to order one:
“[91] I am concerned that given the significant number of beneficiaries under the trust who are impacted by the LMC and majority of the RHTLF trustee decision to pay the sizeable partial contingency fee without any independent legal advice on the reasonableness of the fee, failure to have the Legal Fees reviewed by the Court may erode confidence in the administration of justice”
This important statement affirms Atikameksheng and Garden River’s belief that the fees needed to be assessed in order to ensure that they are fair and reasonable.
Next Steps:
- Justice Steele will convene a case conference with the parties on November 6, 2024, to schedule next steps to begin the assessment process.
- Atikameksheng and Garden River will continue to work with the Court to ensure that the fees are assessed in a thorough and timely manner.
- Atikameksheng and Garden River will continue to inform and update their Debendaagziwaad on the case as it progresses through the assessment process.
Closing Remarks:
We feel gratified by the Court’s decision in favour of Atikameksheng Anishnawbek and Garden River First Nation. With this decision, we are relieved and feel vindicated. Throughout this legal process, Atikameksheng and Garden River have always asked for transparency and accountability and today, we feel that justice has been served and will continue to be served.
We will maintain our transparency and accountability in our fight for a reduction in the legal fees, which we hope will result in settlement funds being returned to the RHTLF and ultimately to all 21 RHT Nations. We look forward to the next steps of this process and as always, we will keep our Debendaagziwaad updated on our progress.
We also want to thank our legal counsel Michael Rosenberg and Alana Robert of McCarthy Tetrault LLP, for representing us so well during this legal action, and for visiting our communities to engage with our Debendaagziwaad to explain the process and answer questions. Without your legal expertise, we would not have been successful in our court application.
Lastly, Atikameksheng Anishnawbek and Garden River First Nation thank all the RHT Anishinaabeg, our colleagues, our families, and our friends who have supported us throughout this process. We felt your presence when you came to watch the legal proceedings in person and online, and we are forever grateful for your kindness and for your words of encouragement.
Miigwetch.
IBF4
