Lameman v. Alberta, 2011 ABQB 532

Court of Queen ’ s Bench of Alberta Citation: Lameman v. Alberta, 2011 ABQB 532 Date: 20110831 Docket: 0803 06718 Registry: Edmonton Between: Alphonse Lameman on His Own Behalf and on Behalf of All Other Beaver Lake Cree Nation Beneficiaries of Treaty No. 6, and Beaver Lake Cree Nation Plaintiffs - and - Her Majesty the Queen In Right of the Province of Alberta and the Attorney General of Canada Defendants _______________________________________________________ Reasons for the Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] These are this Court’s reasons for its decision concerning costs that arise out of the adjournment of the applications of Her Majesty the Queen In Right of the Province of Alberta [“Alberta”] and the Attorney General of Canada [“Canada”] to strike the Plaintiffs’ pleadings [“Applications to Strike”]. This Court will refer to Alberta and Canada together as the “Defendants” in these reasons.

II. Background [ 2 ] This Court has outlined the procedural history concerning this specific matter at paras. 13-23 of its decision, Lameman v. Alberta , 2011 ABQB 40 [“ Lameman January Decision”]. This Court invited the parties to submit briefs as part of this application.

For ease of reference, this Court is taking the liberty of attaching as Appendix “A” to this decision, the procedural history of this matter, which was appended to Alberta’s brief. [ 3 ] The Plaintiffs, in their brief, made further submissions concerning the procedural history, but this Court’s recitation of the procedural history is amply set out in the Lameman January Decision and there would be no useful purpose in rehashing those findings at this stage.

Suffice it to say that this Court is not so much concerned with what happened before June 21, 2010, when it set down the Applications to Strike for hearing during the week of December 6, 2010. It is concerned with what happened after that. III. Issues [ 4 ] The issues this Court intends to address in these reasons are whether the Defendants are entitled to their “thrown-away” costs for the written briefs they filed in preparation for the Applications to Strike to be heard during the week of December 6, 2010, and whether they are entitled to their costs in relation to the Plaintiffs’ adjournment application. IV.

Legislation [ 5 ] The Alberta Rules of Court , Alta. Reg. 124/2010 [“ Rules ”] provide this Court with discretion when it considers whether it will award costs in favour of a party. The Rules provide: 10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action, subject to (

a) the Court's general discretion under rule 10.31… 10.30(1) Unless the Court otherwise orders or these rules otherwise provide, a costs award may be made (

a) in respect of an application or proceeding of which a party had notice, after the application has been decided… 10.31(1) After considering the matters described in rule 10.33, the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or

(

b) any amount that the Court considers to be appropriate in the circumstances, including, without limitation, (

i) an indemnity to a party for that party's lawyer's charges, or (ii) a lump sum instead of or in addition to assessed costs.

(2) Reasonable and proper costs under subrule (1)(a) (

a) include the reasonable and proper costs that a party incurred to bring an action; (

b) unless the Court otherwise orders, include costs incurred by a party (

i) in an assessment of costs before the Court, or (ii) in an assessment of costs before an assessment officer…

(3) In making a costs award under subrule (1)(a), the Court may order any one or more of the following: (

a) one party to pay to another all or part of the reasonable and proper costs with or without reference to

Schedule C; (

b) one party to pay to another an amount equal to a multiple, proportion or fraction of an amount set out in any column of the tariff in Division 2 of

Schedule C or an amount based on one column of the tariff, and to pay to another party or parties an amount based on amounts set out in the same or another column; (

c) one party to pay to another party all or part of the reasonable and proper costs with respect to a particular issue, application or proceeding or part of an action; (

d) one party to pay to another a percentage of assessed costs, or assessed costs up to or from a particular point in an action. … 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action;

(

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party's denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarilyseparated that party's defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. V. Case Law [6] It is clear from the foregoing that this Court has discretionary authority to award costs. This discretion is not absolute. Acourt must exercise its discretion judicially and in accordance with established principles: Pharand Ski Corp. v. Alberta (1991), (AB KB), 81 Alta. L.R. (2d) 304 (Q.B.); 642718 Alberta Ltd. v. Alberta (Minister of Public Works, Supply & Services),2005 ABQB 810, 56 Alta. L.R. (4th) 192 at para. 10; Jamieson v. Denman, 2004 ABQB 693, 34 Alta.

L.R. (4th) 162 at para. 19. [7] Justice Slatter, as he then was, discussed “thrown-away costs” in Koppe v. Garneau Lofts Inc., 2005 ABQB 727, 385 A.R.265, describing them as being those costs “that a party would not have incurred save for the actions of the other party”: Koppe at para.17; see also Armstrong v. Foxridge Homes Ltd. (1992), (AB KB), 136 A.R. 243, [1992] A.J. No. 959 (Q.B.). Acourt may award such costs for wasted preparation where a late adjournment is granted.

His Lordship, however, noted that, practicallyspeaking, not all preparation will be completely lost. [8] His Lordship drew a distinction between the effort that will be wasted if there is an adjournment, and the dispute over theright to an adjournment. Overall, if the adjournment is the result of some fault of the applicant, the applicant may be ordered to pay thecosts of the successful adjournment application: Koppe at para. 21.

[9] The Alberta Court of Appeal in Michel v. Lafrentz, 1998 ABCA 224, 216 A.R. 317, summarizes the award of costs in a lastminute adjournment application as follows: 12 The usual reason for giving last-minute adjournments where there has been neglect to get ready, is on the theory that the prejudiceto the person denied the adjournment would be greater than the prejudice to the person who is forced to accept an adjournment. Thetheory is that, just as with amending pleadings, any request, no matter how late or careless, should be allowed unless it producesirreparable prejudice.

Any prejudice compensable in costs is reparable, not irreparable. The corollary of that is that the costs must bepayable, and they must be meaningful. ... 14 It seems to me that some of the preparation time will have been wasted, and some of it will not have been. Mr. Dunlop will have togo over things again when the matter reserved comes up again, but on the other hand, he will not have to completely duplicate all hisefforts. [10] Finally, in D'Amico v.

Weimkin, 2008 ABQB 129, 451 A.R. 338, the court stated that the general rule in respect ofthrown-away costs is that they are paid by the party whose actions caused or necessitated the adjournment. VI. Analysis [11] The Defendants have provided this Court with their estimated calculations of their wasted preparation in the view of the lateadjournment application that the Plaintiffs made. In the case of Alberta, this estimate was 30% of their outside solicitor and client costs.Canada estimated these to be 50% . These amounts, although explained by the Defendants, are arbitrary at this stage.

We will not knowthe full amount of the wasted preparation until they file their final briefs. In other words, not all preparation will be completely lost. Thecourt that ultimately hears the Applications to Strike will be in a better position to deal with this issue once it hears argument concerningthe substantive matter. [12] However, the Defendants are entitled to their costs of the adjournment application, which by their nature, include certain coststhat one could classify as “thrown-away.” The Plaintiffs ask that this Court not depart from the general rule that the successful party isentitled to its costs.

In other words the Plaintiffs, seek their costs for their successful application. In the view of the findings in theLameman January Decision, this Court finds that argument to be preposterous. [13] What are the costs for which the Plaintiffs are responsible for the adjournment application? The Plaintiffs correctly argue thatthey claim no particular amount in this action and it is “impossible to calculate the potential monetary result of the [Applications] toStrike”: Plaintiffs’ Brief, April 14, 2011, para. 28. Accordingly, they argue that Rules

Schedule C Column 1 apply. In Freyberg v.Fletcher Challenge Oil and Gas, 2006 ABCA 260, 397 A.R. 235 at para. 14, the court said that “Where there is no amount involved, orit is impossible to calculate, Column I,

Schedule C applies unless the court orders an enhanced scale” [emphasis added]. In D’Amico v.Weimkin, Wittmann A.C.J., as he then was, said: 19 In [Lines v. Brink (1994), (AB KB), 24 Alta. L.R. (3d) 227 (Q.B.)], Veit J. held, at para. 6, that costs for theadjournment should be awarded on the basis of the applicable tariff unless exceptional circumstances exist. However, where fault for theadjournment can be attributed entirely to deficiencies or failures of one side, exceptional circumstances will frequently be found.

Because of the findings this Court made the Lameman January Decision, exceptional circumstances exist in this case and therefore, itorders costs to be payable on an enhanced scale. Accordingly, the Plaintiffs are responsible for the Defendants costs on the basis of theRules

Schedule C, Column III, plus all the disbursements the Defendants incurred in their preparation and filing of their briefs inanticipation of the Applications to Strike and for the adjournment application. [14] The Plaintiffs argue that they should not be required to pay these costs immediately, because of their alleged impecuniosity:566320 Alberta Ltd. v. Lethbridge (City of), 2005 ABCA 244, 371 A.R. 270 at para. 10; J.S. Saville Holdings Inc. (c.o.b. GuelphSuzuki) v. Suzuki Canada Inc., [1995] O.J. No. 3758, 59 A.C.W.S. (3d) 387 (Gen. Div.); Tanner v. Clark (2002),

(ON SCDC), 164 O.A.C. 228, [2002] O.J. No. 3702 (Sup. Ct. Just. (Div. Ct.)), aff’d (2003), (ON CA), 224 D.L.R. (4th) 635, [2003] O.J. No. 677 (CA), leave to appeal refused 230 D.L.R. (4th) vi. [15] Because of the procedural history of this matter and, in particular, the fact that the Defendants have been stalled considerablyin having this Court deal with the substantive aspects of their Applications to Strike, this Court will not exercise its discretion to defer thepayment of these costs. The Plaintiffs will pay these costs immediately to the Defendants.

Dated at the City of Edmonton, Alberta this 31st, day of August, 2011. K.D. Yamauchi J.C.Q.B.A. Appearances: Jack Woodward, Woodward & Company for the Plaintiffs Everett L. Bunnell, Q.C., MacLeod Dixon LLP Donald N. Kruk, Alberta Justice for the Defendant, Her Majesty the Queen in Right of the Province of Alberta Kathleen Kohlman/Sukhi Sidhu Cynthia Dickens, Department of Justice Canada for the Defendant, Attorney General of Canada Appendix A to the Reasons for the Decision of the Honourable Mr. Justice K.D. Yamauchi Dated August 31, 2011 Procedural History*

May 14, 2008: The Plaintiffs filed a Statement of Claim against Alberta and Canada. They alleged violations of various rights, including constitutional rights, to hunt, trap and fish in certain lands and waters in Alberta and Saskatchewan. The Statement of Claim, as later particularized, asserted a constitutional right to hunt, fish and trap for purposes of sale and trade. May 29, 2009: Canada filed a Notice of Motion to strike out all or part of the Statement of Claim. June 1, 2009: Alberta filed a Notice of Motion to strike out all of part of the Statement of Claim. June 4, 2009: In a case management meeting, the parties agreed to

schedule the hearing of the striking motions for five consecutive days when the Court's

schedule would allow. The trial coordinator originally scheduled the hearing for the week of January 25, 2010. A deadline of September 30, 2009 was set for the filing of Affidavits by the Plaintiffs and Canada. Deadlines for any Reply Affidavits and Briefs were to be addressed at the October 8, 2009 case management meeting. (The striking motions were later adjourned to accommodate a Judges' Education Seminar.) August 18, 2009: The striking motions were scheduled for March 15-19, 2010.

September 9 and 28, 2009: Canada and Alberta, respectively, consented to an extension of the deadline for the filing of Affidavits by the Plaintiffs. The deadline was extended to October 8, 2009. October 8, 2009: Your Lordship granted a Consent Order pursuant to which the deadline for the Plaintiffs to file Affidavits was extended to October 8, 2009. October 23, 2009: The Plaintiffs filed an Amended Statement of Claim. December 3, 2009: During a case management meeting, the Court granted a further extension of the Plaintiffs' deadline for filing Affidavits to January 19, 2010.

It was directed by your Lordship that a further case management meeting would be scheduled in January 2010 to discuss the likelihood of proceeding with the striking motions in March. January 19, 2010: The Plaintiffs filed six Affidavits. January 21, 2010: At a case management meeting, Alberta and Canada expressed their intention to cross-examine certain Affiants. It was determined that, as a result of prior delays and these cross-examinations, the striking motions could not be heard in March. March 17, 2010: Jamie Zyla was cross-examined by Alberta and Canada.

March 18, 2010: Nicole O'Byrne was cross-examined by Alberta and Canada. June 21, 2010: The parties and your Lordship agreed, during a case management meeting, to re-schedule the hearing of the striking motions for December 6-10, 2010. The Briefs of Alberta and Canada were scheduled for filing on or before August 30, 2010; the Brief of the Plaintiffs was scheduled for filing on or before November 1, 2010; and any reply Briefs were scheduled for filing on or before November 30, 2010. August 30, 2010: Alberta and Canada filed extensive written Briefs.

September 8, 2010: A case management meeting was held. The Plaintiffs did not mention the possibility of further adjournments. October 19, 2010: The Plaintiffs filed and served a motion to adjourn the striking motions and extend their deadline for filing a Brief. The motion was supported by an Affidavit of Gerald Whitford. The Plaintiffs contended that they could not afford the cost of filing a Brief or having counsel attend for the striking motions. Mr. Whitford's Affidavit made mention of pro bono assistance that had been offered by an unidentified law firm. October 21, 2010: Mr.

Whitford was cross-examined by Alberta and Canada. He identified Tooks Chambers of London, England as the law firm that had offered pro bono assistance. October 27, 2010: A case management meeting was held. Alberta and Canada opposed the proposed adjournment on the basis of insufficient evidence. Your Lordship extended the deadline for filing the Brief of the Plaintiffs until the date of the next case management meeting: November 8, 2010. Your Lordship also directed the Plaintiffs to file further evidence in support of their adjournment application.

November 4, 2010: The Plaintiffs filed an Affidavit of Garry Benson, Q.C. which described the role of Took Chambers as assisting Woodward & Company with "research and writing on the [striking motions] and on other aspects of the legal action." November 5, 2010: The Plaintiffs filed an Affidavit of Susan Smitten which described certain fund raising efforts by the Plaintiffs and, specifically, by Chief Lameman. November 8, 2010: The Brief of the Plaintiffs was not filed as directed on October 27, 2010.

A case management meeting was held during which Alberta and Canada expressed concern about the sufficiency of the evidence of the Plaintiffs and, in particular, over certain assertions of privilege. The Plaintiffs asserted, for the first time, that an adjournment of the striking motions was also needed to accommodate further amendments to the pleadings. Your Lordship declined to grant the adjournment but further extended the deadline for filing the Plaintiffs' Brief to December 10, 2010. November 22, 2010: The Plaintiffs filed a Further Amended Statement of Claim.

December 10, 2010: The Brief of the Plaintiffs was not filed as directed on November 8, 2010. At a case management meeting, the Plaintiffs explained how the new amendments had entirely removed all allegations of a right to hunt, trap or fish for purposes of sale or trade. Your Lordship reserved your decision on the adjournment. January 28, 2010: Your Lordship issued a written decision pursuant to which an adjournment of the striking motions was granted in favour of the Plaintiffs. The hearing of the striking motions was adjourned to a date uncertain.

In your reasons, your Lordship stated that the interests of Alberta and Canada "can be addressed by costs…" * Taken verbatim from the Her Majesty the Queen in Right of the Province of Alberta’s brief submitted on March 18, 2011, and filed on March 18, 2011.