An Alberta Queens Bench judge has made a very rare cost order on full indemnity, solicitor-own-client basis after finding the plaintiffs in a matter deceived the court. The cost award scheme is reserved for the most flagrant cases of misconduct.
“It is regrettable when litigation descends to these depths. Perhaps this ruling will serve as a reminder to litigants, and their counsel, of the seriousness and importance of their role in the administration of justice and our adjudication process,” said Justice Rodney Jerke.
In a condo development dispute case, Enoch Cree Nation v. Prue, the plaintiffs, a First Nations group, required a band council resolution in order to launch the action. The defendants obtained an undertaking requiring the plaintiffs to identify the resolution authorizing the commencement of the action.
At first, the plaintiffs “ignored” a court order to answer the undertaking, according to Jerke. Later, they said in special chambers meeting with the judge that there had been a band council resolution when in fact there hadn’t been.
When he asked the plaintiffs to provide him with the resolution, Enoch’s counsel “did so,” wrote Jerke. “I have sealed it on the court file as the plaintiffs claim privilege on the document and a ruling may be required.”
But during a second meeting with the judge almost two months later, “Enoch’s counsel disclosed for the first time that there was no resolution as of the date the action was commenced,” Jerke wrote.
If it wasn’t the required resolution, it is unclear what documents Enoch’s counsel Amber Nickel submitted after the first meeting. Nickel tells Legal Feeds she’s unable to comment on the case as she has not obtained authorization to speak from her clients.
Said Jerke: “Thus, most glaring, the plaintiffs ignored the first court order to answer the undertaking; then alleged in court that the undertaking had been answered when it had not; and then attempted to avoid a second court order directing them to answer the undertaking by claiming privilege. All this was done in relation to a resolution which did not exist.”
He added the case is “one of those rare, exceptional, or unusual cases where an award of costs on a full indemnity basis is warranted.”
The developer Skyrider Holdings Ltd.’s counsel Allan Garber was unavailable to speak to Legal Feeds.
Jerke said it is up to lawyers to remind litigants to honour their duties in litigation.
“It is too easy for litigants to forget that their actions, focused as they are on advancing their own interests, are seen by the public through the lens of confidence in the administration of justice. Everyone accepts that privilege must be respected, but honesty, fair play, and candid disclosure are also expected,” he said.
The decision doesn’t provide for any actual cost amount but Jerke noted: “This award is part of the contempt proceedings against Enoch and its litigation representative. They may purge their contempt by payment of Skyrider’s solicitor and own client full indemnity costs. If the parties cannot agree on the amount, the matter of the lawyer’s charges shall be reviewed by a review officer.”