Gauchier v. Cunningham, 2012 ABQB 514

Court of Queen ’ s Bench of Alberta Citation: Gauchier v. Cunningham, 2012 ABQB 514 Date: 20120810 Docket: 1103 12719, 1103 15013 Registry: Edmonton Between: Joseph Iner Gauchier Applicant - and - John Kenneth Cunningham, also known as Kenny Cunningham Jr. Respondent And between: Docket: 1103 15013 Joseph Iner Gauchier Applicant - and - Registrar, Metis Settlements Land Registry, Peavine Metis Settlement and Peavine Metis Settlement Council Respondent

Corrected judgment: A corrigendum was issued on August 13, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Overview [ 1 ] The Respondents Peavine Metis Settlement and Pevine Metis Settlement Council, ( “ Peavine ” ) seek costs relative to their appearance before Nielsen J. in morning Chambers on October 31, 2011.

At the conclusion of the October 31, 2011 appearance, Nielsen J. directed that the issue of costs could be addressed once there had been a determination of whether or not this matter should be directed to case management. [ 2 ] On November 18, 2011, Associate Chief Justice Rooke granted the application for case management. At the initial case management meeting held on March 22, 2012, the Court directed that the outstanding issue of costs should be dealt with by way of written submissions.

The Applicant, Joseph Iner Gauchier ( “ Gauchier ” ) was directed to deliver written submissions on or before May 11, 2011, and Peavine was directed to deliver written submissions on or before May 18, 2012. Gauchier was given leave to file response written submissions relative to any new issues raised in Peavine ’ s written submissions on or before May 25, 2012. [ 3 ] For the reasons which follow, Peavine ’ s application for costs is granted. Costs are awarded in the sum of $750.00.

Background [ 4 ] The Applicant commenced this Action by way of an Originating Applications filed August 9, 2011, and September 22, 2011, respectively. The August 9 th Application seeks an Order declaring the Respondent John Kenneth Cunningham ( “ Cunningham ” ) disqualified from continuing to serve as a Councillor on the Peavine Metis Settlement Council on the basis that his status as a member of the Peavine Metis Settlement has terminated ( “ the Cunningham application ” ).

The September 22 nd Application also names the Registrar, Metis Settlement Land Registry (the “ Registrar ” ) and Peavine and seeks an order in the nature of Mandamus to compel the Registrar to remove the names of 8 persons from the Settlement Membership List of Peavine so as to give effect to the judgment of the Supreme Court of Canada issued July 21, 2011, as well as ss. 96(3), 75(1), and 90(2) of the Metis Settlement Act ( “ the Peavine Application ” ). [ 5 ] On October 31, 2011, the parties appeared before Nielsen J. in morning Chambers.

A review of the transcript reveals that counsel for Gauchier advised the Court that he was there to set the Cunningham and Gauchier Applications down for hearing in Special Chambers. He took the position that the applications were simple and straight-forward and could be dealt with as a Special Chambers application. He proposed a date of December 2, 2010.

He also advised that counsel for Cunningham wished to cross-examine Gauchier on his affidavit. [ 6 ] Counsel for Peavine argued that the matters were neither simple, nor straight-forward and advanced the position, previously conveyed to all other counsel that he was seeking the appointment of a Case Management Justice. He also advised the Court of the history of communication between counsel for the various parties and indicated that there were a number of preliminary issues to be addressed, before proceeding to the merits of the two applications.

[7] The preliminary issues were identified by counsel for Peavine as:

a) Gauchier’s standing to bring the action as against the Registrar;

b) the possible consolidation of the two actions;

c) the content of the Gauchier affidavit and whether or not certain portions should be struck;

d) whether or not the 8 individuals named in the Originating Notice (aside from Cunningham) had been provided with notice of theapplication. Peavine concedes that Associate Chief Justice Rooke had not been approached regarding the appointment of a Case Management Justiceand that no formal action had been taken to bring any of these preliminary issues to court for resolution.

The Court was, however, advised that a consent order for Case Management had been submitted to counsel for Gauchier who insisted on the October 31st Chambers application before the Court. [8] Counsel for the Registrar concurred in need for the matter to be placed in case management. However, he took the positionthat there was no need for consolidation of the actions as the Registrar was not named in the Cunningham Application and had nointention of participating in that proceeding.

He agreed that the issue of standing had to be addressed and that he had been incommunication with counsel for Gauchier on this issue. [9] Counsel for Cunningham agreed that case management was appropriate in this instance and disagreed that the matters weresimple and straight-forward.

He took the position that consolidation of the two actions was not necessary as a determination of thePeavine Application would determine whether or not Cunningham was a member of the Peavine Settlement, and possibly render mootthe Cunningham Application relative to his eligibility to serve as a councillor on the Peavine Metis Settlement Council. [10] Nielsen J. directed the parties to apply for case management “so that someone can take control of this” (p. 15, l. 39-40). Assuch, he directed counsel for Peavine to prepare a formal order by November 4, 2011, so that the matter could be dealt withexpeditiously.

He rejected the notion advanced by Mr. Beaver that the matters were straightforward, or that there was an urgency in resolving the matter on December 2nd (the date proposed by Gauchier for the Special Chambers Applications). Indeed, he stated that hebelieved it would be a mistake to proceed on that date. Finally, Nielsen J. declined to make an order with respect to costs and determinedthat this could be resolved after the case management issue had been addressed.

Position of the Parties [11] In his written submissions, Gauchier takes the position that the October 31, 2011 Chambers application was made to obtainthe advice and directions of the Court in a situation where the parties were unable to resolve outstanding preliminary matters themselves.He draws the Court’s attention to the fact that Peavine took no action in terms of bringing any motions or applications to advance itsposition that preliminary issues needed to be addressed prior to a hearing on the merits.

He further states that this is public interestlitigation and that the Court has discretion to depart from the normal rule that costs follow the event. Alternatively, he says that costs canbe delayed until the end of the cause. Finally, he says that the awarding of solicitor-client costs is not appropriate in this instance giventhe direction of the Supreme Court in Young v.

Young, (SCC), [1993] 4 S.C.R. 3, at p. 134 that “Solicitor-client costsare generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.” [12] Peavine takes the position that the October 31, 2011, proceeding was unnecessary and could have been avoided if Gauchierhad agreed to case management as previously proposed. He further states that case management had been proposed to addresspreliminary issues that needed to be resolved prior to dealing with the applications on the merits.

Peavine further contends that theseapplications cannot properly be characterized as public interest litigation and that Gauchier’s reliance on the Court of Appeal’s decisionin Pauli v. ACE INA Insurance Co. [2004] ABCA 253, relates to class action litigation and, as such, is clearly distinguishable from thewithin matter. Finally, Peavine seeks costs from Gauchier on a solicitor-client basis saying that Gauchier was on notice that Peavine

would seek costs on this basis if Gauchier insisted on this matter proceeding to Court on the October 31st. Analysis [13] I accept Gauchier’s argument that he has at all times been anxious to have these matters resolved as quickly as possible.However, I also agree with Nielsen J. that these matters are neither urgent nor straightforward.

Moreover, it must have been clear to Gauchier from the extensive communication between counsel in the weeks leading up to the October 31st court appearance, that therewere three, possibly four, preliminary issues that needed to be resolved before the applications could be determined on the merits. Assuch, insisting on setting the matters down for special chambers hearings in such circumstances was ill-advised and, ultimately,unproductive.

I am also of the view that it was unrealistic to believe, as Gauchier seems to have believed, that the Chambers Judge sitting in court on October 31st was going to be able to resolve these preliminary issues in an evidentiary vacuum in ordinary morningChambers. [14] I accept Peavine’s position that the October 31, 2011 chambers hearing was unnecessary and that the need for casemanagement should have been as plain and obvious to Gauchier as it was to the other parties. I also agree with Gauchier that the Court isa proper place to seek advice and direction when parties are unable to agree on how to proceed.

However, I take the view that counselhave an obligation to try and agree and, generally, to cooperate with one another. Seeking court intervention, where required, shouldfollow reasonable efforts to move a matter forward. [15] I agree with Peavine that the Court of Appeal’s decision in Pauli, supra, is factually distinguishable and that the legalprinciples addressed therein relate to class action proceedings. [16] I have serious reservations whether the Cunningham or Peavine Applications meet the test for public interest litigation setforth by the Court of Appeal in Vriend v.

Alberta (1996), 1996 ABCA 274 , 184 A.R. 351, adopted in Pauli, supra., wherein the Court quoted with approval Orkin, The Law of Costs, (2nd ed., 1995) at pp. 2-37-2-38: An action or motion may be disposed of without costs when the questions involved is a new one, not previously decided by the courts onthe theory that there is a public benefit in having the court give a decision; or where it involves the

interpretation of a new or ambiguousstatute; or a new or uncertain or unsettled point of practice; or where there was no previous authoritative rulings by the courts; or decidedcases on point; or where the application concerned a matter of public interest and both parties acted in good faith...or where the actionwas a test case; or where it was desirable to resolve a conflict in the case law. [17] It will be for the Court which ultimately hears these applications on the merits to determine whether or not these applicationsmeet the criteria for public interest litigation.

At this stage of the proceedings, I am not persuaded that Gauchier has demonstrated thatthese proceedings raise issues beyond the specific interests of the parties. Likewise, I am not persuaded that these applications eitherraise novel points of law relative to a new or uncertain or unsettled point of practice or a new or ambiguous statute. Moreover, I do notsee these applications as seeking clarity in an area of law devoid of authoritative rulings by courts.

I would simply add that I do notbelieve it is appropriate in any event to allow Gauchier to clothe this unnecessary Court application in the mantle of public interestlitigation. [18] I accept the argument advanced by Gauchier that this is not an appropriate case for the awarding of costs on a solicitor-clientbasis. [19] Costs are awarded to Peavine in the amount of $750.00 plus taxable disbursements. Dated at Edmonton, Alberta this 9th day of August, 2012.

M. David Gates J.C.Q.B.A. Appearances: Shawn Beaver Beaver Leebody Franc Simic for the Applicant Ryan Martin McLennan Ross for John Kenneth Cunningham Robert Normey Alberta Justice for the Registrar Sandeep K. Dhir & Katherine E. Palmer Field LLP for Peavine Metis Settlement Council _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice M. David Gates _______________________________________________________

Katherine E. Palmer has been added in the appearances as an additional representative of Peavine Metis Settlement Council.