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CIVIL PROCEDURE - Parties - Class or representative actions - Procedure - Costs - Particular orders - Special orders - Appeal costs - Appeals - Leave to appeal

Friday, May 26, 2017 @ 8:32 AM  


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Parties - Class or representative actions - Procedure - Costs - Particular orders - Special orders - Appeal costs - Appeals - Leave to appeal
Application by the province for permission to appeal from a decision advancing costs to EMP, the representative plaintiff in a class action against the province relating to temporary guardianship orders and interim custody orders. EMP represented the class of children who were held in the custody of the province without lawful authority, after their temporary and interim orders became void. LC represented the class of family members of those children. EMP was awarded advance costs for the certification motion. The Court found that EMP was impecunious, that the case to be litigated was prima facie meritorious, and that the issues the case raised transcended her individual interests and had not been previously resolved. LC did not participate in the application for advance costs, but in the present application, along with EMP, sought advance costs to respond to Alberta’s appeal from the certification order.

HELD: Application by the province dismissed; application for advance costs by EMP and LC to respond to the province’s certification appeal allowed. EMP, a minor with no assets to fund the litigation individually, met the impecuniosity criterion for advance costs. Given that the other class members were unidentifiable minors as well, they could not be called upon to fund the litigation. The contingency agreement with class counsel provided that counsel would cease to act if advance costs were denied. The judge’s finding that the proposed action raised a matter of public importance was reasonable, and was not based solely on the fact that the province was the defendant. Alberta failed to show that its appeal from the advance costs order had any merit. LC, like EMP, met the criterion for impecuniosity and made a reasonable proposal to be represented by the same counsel as EMP for $20,000 on the certification appeal.

L.C. v. Alberta, [2017] A.J. No. 428, Alberta Court of Appeal, S.J. Greckol J.A., May 1, 2017. Digest No. TLD-May222017009