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ABORIGINAL STATUS AND RIGHTS - Practice and procedure - Costs

Friday, July 19, 2019 @ 6:31 AM  

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Appeal by a lawyer, Kennedy, from an award of costs payable by her personally. In 1985, the Sawridge Trust was established by the Sawridge First Nation for the benefit of its members. The Trust was created in anticipation of an increase in the number of Band members following amendments to make the Indian Act compliant with the Charter by addressing gender discrimination in provisions governing membership. Extensive litigation immediately ensued over who was entitled to be a member of the Sawridge First Nation. In 2011, the Trustees sought advice and directions over potential amendments to the Trust due to concerns that the existing definition of "beneficiary" was discriminatory. During the litigation, Stoney and his "brothers and sisters" sought to be added as intervenors or parties to the action. The case management judge dismissed the application as an unfounded and frivolous collateral attack and serious abuse of process that was without merit. The judge found no evidence that Stoney's living siblings were voluntary participants in the application. Stoney was subsequently declared a vexatious litigant. The judge ordered Stoney's counsel, the appellant, to personally pay the costs of the Nation and the Trustees on a solicitor and client basis. Kennedy appealed.

HELD: Appeal allowed. The case management judge failed to correctly apply the legal criteria for a costs award against the appellant personally. Viewing Stoney's application through the lens of the broader action for advice and directions, counsel's involvement was not serious misconduct that undermined the courts or seriously interfered with the administration of justice. Stoney sought participation in the underlying action, in which it remained to be seen whether Trust beneficiary status would be limited to Nation members. Although he argued membership, Stoney also sought participatory status based on his prior historical connection to the Nation. There was a rationale for the application given the uncertainty as to whether Nation membership was at issue in the underlying proceeding. The second independent basis for the costs sanction, namely that the appellant did not have instructions to act on behalf of Stoney's siblings, was not sustainable, as it did not amount to serious misconduct given that it was not determined whether Stoney's application constituted a representative proceeding. The costs award against the appellant was set aside.

Stoney v. 1985 Sawridge Trust, [2019] A.J. No. 788, Alberta Court of Appeal, B.K. O'Ferrall, F.L. Schutz and J. Strekaf JJ.A., June 13, 2019. Digest No. TLD-July152019012