The Ontario Superior Court of Justice recently issued two significant decisions, Nootchtai v. Nahwegahbow Corbiere Genoodmagejig, 2024 ONSC 6088 and Nootchtai v. Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, 2025 ONSC 6071, which provide important guidance on the assessment of legal feels within the context of large scale settlements.
Background
These court cases trace back to the Robinson Huron Treaty which was signed in 1850. That agreement included an “augmentation clause” promising that annuity payments to First Nations would go up if the lands they ceded brought in enough money. Despite this promise, the annual payment stayed at just $4 per person for more than a century.
In 2010, 21 First Nations created the Robinson Huron Treaty Litigation Fund (“RHTLF”) to push for fair compensation through negotiations or court action. They launched a lawsuit in 2014, arguing that Canada and Ontario had failed to uphold their treaty obligations, fiduciary duties and rights protected by section 35 of the Constitution Act, 1982. The Court agreed, ruling that the Crown had a responsibility to raise annuities.
After this decision, the RHTLF entered negotiations with Canada and Ontario. In January 2024, the parties reached a historic $10‑billion settlement, split evenly between the two governments, to compensate for past breaches of the treaty. The court later approved the Settlement Agreement, marking a major milestone in recognizing treaty rights and advancing reconciliation.
The legal team representing the RHTLF had been retained under a Partial Contingency Fee Agreement, which provided for a contingent success fee of 15% on the first $100 million and 5% on any amounts above $100 million. Following the settlement, the legal team sought payment of $510 million in fees. The legal team later offered to share $255 million of those fees with the Fund for specified communal purposes. These cases revolve around whether the court would allow such a large amount of legal fees to be paid.
The Right to Assessment:
Nootchtai v. Nahwegahbow Corbiere Genoodmagejig, 2024 ONSC 6088
On April 22, 2024, the Chiefs and trustees of the RHTLF met to review and vote on the proposed legal fees connected to the Robinson Huron Treaty settlement. At the meeting, 67% of Chiefs and 71% of trustees in attendance voted in favour of approving $510 million in legal fees. These fees were then paid out around May 3, 2024, from the $10‑billion settlement fund.
Following this, Gimaa (Chief) Craig Nootchtai of Atikameksheng Anishnawbek, and Ogimaa Kwe (Chief) Karen Bell and Councillor Chester Langille of Garden River First Nation asked the court to asses the legal fees that had been approved and paid.
The first question before the court was whether it had the authority to order such an assessment. Relying on section 9(4) of the Solicitors Act, the court confirmed its power to send the lawyer’s bill for assessment. It ultimately ordered that both the Partial Contingency Fee Agreement and the legal fees themselves were to be formally assessed.
The Assessment of Fees:
Nootchtai v. Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, 2025 ONSC 6071.
The second decision focused on the assessment itself. The court acknowledged that contingency fees are a legitimate form of lawyer remuneration in Ontario, often calculated as a percentage of a client’s recovery, and play an important role in ensuring access to justice. However, the court emphasized that lawyers are not entitled to a percentage of a client’s recovery that amounts to a windfall, meaning a sum disproportionate to the value of the professional services rendered. If the sum amounts to this disproportionate windfall, it would be champerty. Champerty is roughly described as buying a piece of a lawsuit without a legitimate interest in the case. In other words, lawyers in Ontario are entitled to fair and reasonable fees but not a ‘piece of the action.’ Champerty has long been prohibited in common law jurisdictions, with roots tracing back centuries in English law. It remains illegal in Ontario.
In cases involving “mega-fund” settlements, such as the $10 billion settlement in the Robinson Huron Treaty litigation, the court highlighted the importance of maintaining proportionality between lawyers’ fees and the settlement amount. The court found that the legal team’s contingent success fee of $510 million was neither fair nor reasonable.
The court determined that the Partial Contingency Fee Agreement, signed in 2011, was not fair when it was made. The clients, representing the First Nations, did not receive independent legal advice before entering the agreement. They did not fully understand the nature and risks of the agreement, including the financial obligations it entailed and whether a percentage-based fee was appropriate for a potential mega-fund case.
The court also concluded that the agreement was not reasonable at the time of the hearing. The resulting fee was found to be disproportionate to the time spent, the value of the services, the success achieved, and the actual risks undertaken by the legal team. The legal team’s financial risk was limited because the Fund paid most legal fees and all disbursements, and the legal team even helped the Fund secure financing for legal fees. For context, total billable fees at normal rates amounted to approximately $23 million before disbursements, against which the $510 million sought represented a multiplier of more than 20 times.
Consequently, the court declared the Partial Contingency Fee Agreement unenforceable. With the contingency fee agreement unenforceable, the court proceeded to assess the value of the legal team’s services on a quantum meruit basis. Quantum meruit means “as much as deserved” and involves determining a fair and reasonable amount for services rendered. In this assessment, the court considered various factors, including the complexity of the case, the responsibility assumed, the skill demonstrated, and the significant results achieved.
The court determined that doubling the legal team’s billable fees was an appropriate and deserved recognition of their work. This calculation resulted in a fair and reasonable fee of approximately $40 million for the legal team. As a result, the court ordered the legal team to refund $232 million to the Fund, representing the excess amount paid over the approved fee.
Conclusion
The Nootchtai v. Nahwegahbow Corbiere Genoodmagejig decisions represent how courts supervise legal fee arrangements, particularly in large-scale settlements involving Indigenous communities. These rulings affirm the courts’ commitment to ensuring that legal fees are fair, reasonable, and proportionate to the work performed and the risks undertaken. Contingency fee agreements need to be transparent so that clients truly understand the nature of the agreement and what they are signing.
By declaring the contingency fee agreement unenforceable and assessing fees on a quantum meruit basis, the Court reinforced its role as a safeguard against unjust outcomes, ensuring lawyers are compensated appropriately without exploiting clients or undermining broader principles of justice.
How Barriston Law Can Help
Barriston Law’s Indigenous Legal Department has extensive experience advising First Nations and Indigenous organizations on a wide range of legal matters, including the negotiation and review of legal retainer agreements, specific claims and treaty rights litigation, and governance structures. The Nootchtai decisions underscore the importance of proper legal guidance when entering into complex fee arrangements, particularly in high-value litigation involving Indigenous communities. Our team is committed to ensuring that First Nations clients understand their rights and obligations at every stage of the legal process.
Contact Barriston Law
To learn more about how Barriston Law can support your community or organization, visit barristonlaw.com or contact our Indigenous Legal Department directly.
Written by Garnik Martirosov and Wyatt Shipley
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Every community’s circumstances are unique. Before pursuing any legal fee assessment, retainer arrangement, or related matter, readers should obtain independent legal advice tailored to their specific situation.
The Restoule litigation centers on the Robinson‑Huron and Robinson‑Superior Treaties of 1850, in which the Anishinaabe of the Upper Great Lakes ceded more than 100,000 km² of land to the Crown in exchange for lump‑sum payments, perpetual annuities, hunting and fishing rights, and reserve lands. Crucially, these treaties included an Augmentation Clause, requiring that annuities “shall be augmented from time to time” if revenues from the ceded territory allowed the Crown to do so “without incurring loss.”
The annuity increased once, in 1875, to $4 per person. It never increased again, despite extensive resource development across the treaty territory. Over time, litigation emerged as First Nations sought a declaration that the Crown had failed to implement the Augmentation Clause and owed compensation.
Two major claims were filed: the Superior plaintiffs (2001) and the Huron plaintiffs (2014). These actions were heard together in three stages: treaty interpretation, limitations and Crown immunity, and damages.
Lower Court Decisions
Ontario Superior Court of Justice
Regarding Stage One the trial judge held that the Crown had a mandatory and reviewable obligation to increase annuities when economic conditions permitted an increase “without incurring loss.” She concluded the Augmentation Clause created both a collective entitlement and an individual entitlement, with the $4 figure acting only as an individual cap and not a cap on the collective payment. The trial judge also found that although no sui generis fiduciary duty existed, the honour of the Crown and an ad hoc fiduciary duty required diligent implementation.
In Stage Two the Court rejected Ontario’s defences of Crown immunity and statutory limitation periods, concluding that limitations legislation did not bar treaty breach claims.
Ontario Court of Appeal
The Court of Appeal agreed that the Crown’s obligation to consider augmentation was mandatory and reviewable, and that the $4 amount served as a soft cap, but it rejected the trial judge’s finding that the treaties guaranteed a “fair share” of Crown revenues.
The Court also held there was no fiduciary duty, but confirmed the duty of diligent implementation arising from the honour of the Crown. It unanimously confirmed that limitations legislation did not extinguish the claims.
Before the Supreme Court of Canada appeal, the Huron plaintiffs settled with Ontario and Canada for $10 billion, an agreement finalized and court‑approved on February 26, 2024.
Supreme Court of Canada Decision
In its unanimous ruling, the Supreme Court of Canada determined that both Canada and Ontario had failed to diligently uphold the treaty promises set out in the Robinson‑Huron and Robinson‑Superior Treaties. The Court then articulated several important conclusions concerning the scope of the Crown’s obligations and related interpretive issues.
Limitations and Crown Immunity
On the limitations issue, the SCC confirmed the lower courts’ conclusion that the claims were not statute‑barred. Treaty obligations are constitutional in nature rather than private law claims, and the Treaties cannot be reduced to common‑law categories such as “actions on the case” or “actions of account.”
Because Ontario’s historic limitations legislation did not apply to constitutional treaty claims (and it is generally understood that the modern 2002 Limitations Act expressly excludes Aboriginal rights), the claims were properly before the courts.
Treaty Interpretation and the Standard of Review
The Supreme Court held firmly that treaty interpretation is a question of law reviewed for correctness, rejecting the idea, accepted in some quarters since Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 that appellate courts should defer to lower‑court treaty interpretations as mixed questions of fact and law.
The Court emphasized that because historic treaties are constitutional instruments, their interpretation requires national consistency, and appellate courts cannot simply defer to a trial judge’s reading of their meaning. Questions about the language of the treaties, the intention of the parties, and the legal consequences of historical context fall squarely within a court’s legal expertise and therefore demand a correctness standard. Historical fact‑finding, however, remains subject to palpable and overriding error.
The Augmentation Clause
The Court clarified that the Treaties establish one unified annuity, payable to the “Chiefs and their Tribes,” rather than a dual structure divided into collective and individual components. It further held that the historic $4 figure operates as a soft cap, obliging the Crown to raise the annuity when circumstances permit, while permitting but not requiring increases beyond it.
The Honour of the Crown and the Duty of Diligent Implementation
Although the Court rejected the trial judge’s finding of a specific ad hoc or sui generis fiduciary duty, it reaffirmed a powerful constraint on Crown conduct: the duty of diligent implementation, which flows from the honour of the Crown. The duty requires the Crown to periodically consider whether annuity augmentation is possible and to make decisions governed by honourable conduct rather than administrative convenience or political preference. The Court concluded that the Crown’s century‑and‑a‑half failure to revisit the annuity level violated this constitutional duty.
The Court emphasized that while the honour of the Crown is not itself a cause of action, it informs and shapes the Crown’s obligations under the Treaties. If the Crown neglects those obligations, the resulting breach is a breach of the Treaties themselves.
Remedy
After finding a longstanding breach of the Robinson Treaties, the Supreme Court concluded that declaratory relief alone would be inadequate. Instead, it ordered a structured remedial process aimed at implementing the treaty promise rather than merely describing it.
The Court directed the Crown to engage meaningfully and honourably with the Robinson‑Superior plaintiffs to attempt to negotiate compensation for past breaches. If no agreement is reached, the Crown must, within six months of the decision, exercise its discretion to determine a compensation amount itself. The Court’s structured remedial framework reflects its expectation that the Crown’s determination of compensation must be “just and honourable,” and that any subsequent judicial review would assess both the process followed and the substance of the amount determined.
The Court specified if negotiations fail and the Crown sets an amount, the Superior plaintiffs may seek judicial review of both the process followed and the substance of the determination.
Conclusion
The SCC’s decision in Restoule reshapes Canadian treaty law on multiple fronts: it elevates the standard of review, clarifies the structure of treaty obligations, rejects the notion of unfettered Crown discretion, and introduces a new model for enforcing treaty promises. By grounding its analysis in correctness review, the honour of the Crown, and a structured remedial framework, the Court has provided a decision that will guide treaty litigation for decades.
How Barriston Law Can Help
Barriston Law’s Indigenous Legal Department has experience advising First Nations communities on treaty rights, specific claims, and the evolving legal framework governing Crown-Indigenous relationships. Whether your community is assessing the implications of Restoule for existing treaty obligations, evaluating potential claims, or navigating negotiations with the Crown, we are available to assist.
Contact Barriston Law
To learn more about how Barriston Law can support your community or organization, visit barristonlaw.com or contact our Indigenous Legal Department directly.
Written by Garnik Martirosov and Bennett Marshall
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. The information presented reflects the authors’ summary of a judicial decision and is not a substitute for independent legal advice. Every community’s circumstances are unique. Readers should obtain legal advice tailored to their specific situation before taking any action in reliance on the matters discussed in this article.