Focus On

CIVIL PROCEDURE - Actions - Case management

Friday, November 20, 2020 @ 6:35 AM  

Lexis Advance® Quicklaw®
Appeals and applications in respect of case management orders made in litigation involving McMullen and the Piikani Nation. For the past 10 years, the parties were involved in litigation related to McMullen’s time as a board member and director of the Piikani Investment Corporation. McMullen also sued several law firms representing various parties, including himself, involved in the multiple related actions. In 2012, the litigation was brought into case management. In 2013, the judge ordered all parties must obtain leave before filing any applications. The case management judge made various decisions setting out timelines, directing the sequence in which various applications were to be heard, denying leave for McMullen to bring various applications to disqualify counsel, or for recusal of the case management judge, and granting leave to other parties to bring applications. McMullen appealed the orders. In addition, McMullen applied for disqualification of counsel for the respondent, full indemnity costs, and to stay various aspects of the case management order.

HELD: Appeals and applications dismissed. Some of the appeals and applications involved direct or indirect attacks on procedural and discretionary scheduling orders with the effect of considerably delaying the progress of the litigation. Some of McMullen’s requests for relief were not properly before the court, as they did not correspond to the orders below. At best, the requests were premature, and at worst they were disruptive and sought to circumvent the case management process as collateral attacks. The applications to disqualify counsel were previously made and dismissed and were therefore res judicata. With respect to the merits of the appeals, McMullen failed to show any error in principle nor that the orders are clearly unreasonable in setting out timelines or the scheduling or the sequence for hearings. The refusal of leave to apply for recusal did not involve unfairness or an error in application of the test for leave. The refusal of leave to file additional applications based on findings of abuse of process or an absence of a reasonable prospect of success did not involve reviewable errors.

Piikani Nation v. McMullen, [2020] A.J. No. 1110, Alberta Court of Appeal, J. Watson, T.W. Wakeling and J. Antonio JJ.A., October 19, 2020. Digest No. TLD-November162020009