Piikani Nation v Raymond James Ltd, 2017 ABQB 112

Court of Queen’s Bench of Alberta Citation: Piikani Nation v Raymond James Ltd, 2017 ABQB 112 Date: 20170216 Docket: 0601 13081 Registry: Calgary Between: Piikani Nation Plaintiff - and - Raymond James Ltd., Liliana Kostic, Peter Strikes With a Gun, Rod North Peigan, Brian Jackson, Daniel Northman, Janet Potts, Dexter Junior Smith, Neil Sharp Adze, deceased, Ron S. Maurice, and Dale S. Szakacs of the Law Firm, Maurice Law Defendants - and – CIBC Trust Corporation and CIBC World Markets Inc.

Third Party Defendants _______________________________________________________ Memorandum of Decision of the Honourable Associate Chief Justice J.D.

Rooke, on Leave Application of Piikani Nation of January 20, 2017 to Strike Kostic’s Notice to Admit Facts _______________________________________________________ [ 1 ] For reasons known to the parties, which don’t need to be explained herein (other than to reference my Order of February 5, 2013 in Action No. 1201-15897, and as discussed in the transcript of a multitude of Piikani proceedings on February 19, 2013, at p. 24, lines 1 - 30), the direction I have given in this action (and other Piikani Nation related actions), as Case Management Justice (CMJ), is

that no party can, inter alia , bring an application without my leave as CMJ. [ 2 ] It is in this context that Piikani Nation, through its Counsel, Mr. Solomon (hereinafter, I will use last names for all persons, without any pejorative intent) sought leave to bring this Leave Application. [ 3 ] The purpose of this Memorandum of Decision is to provide (very briefly): the nature of the leave sought in this Leave Application; the Respondent’s response; the decision as to whether leave is granted or denied; and the brief reasons for my decision as to the Leave Application.

I reserve the right to provide further and supplementary reasons should I deem it necessary. [ 4 ] The context in which the within Leave Application is being considered should be noted. After a number of years of litigation, without enough procedural progress, often caused by delays resulting from proceedings within, or tangential to, the main litigation, with some consent by the parties and some direction by the CMJ, an Amended Amended Litigation Plan (AALP), effective October 17, 2016, was approved by me, as CMJ, under date of December 12, 2016.

The AALP provided for, inter alia : (para. 5(b)) recognized “collateral applications, meaning applications that are not a normal part of litigation” as delineated therein, would proceed on a “parallel track(s)” to the AALP for the main litigation; and, as agreed by the parties (specifically not directed by the CMJ) (para. 6(a) (

b) and (c)), set the procedures for Leave Applications, including Leave Application, respondent(

s) response, and CMJ decision, without the applicant having a rebuttal response. A.

Leave Application to Strike Kostic’s Notice to Admit Facts [ 5 ] This Memorandum of Decision is in respect of the Nation’s Leave Application herein dated January 20, 2017 (referencing and subsuming a previous similar application dated November 3, 2016), relying only on the pleadings, and (implicitly) the contents of the impugned Notice to Admit Facts (NTA), and the response of Zinner, on behalf of Kostic, on January 25, 2017. [ 6 ] Leave Application - The Leave Application seeks leave to seek to strike Kostic’s NTA filed on March 10, 2016 and served on the Nation on March 11, 2016.

The Nation asserted that on March 30, 2016, it gave Kostic notice that the Nation would be seeking to set aside the NTA, and the application was adjourned on June 22, 2016 pending an application to strike Kostic’s affidavits (recently the subject of leave granted by me on February 15, 2017 in Piikani Nation v Raymond James Ltd , 2017 ABQB 102 (Leave Decision #4). [ 7 ] Solomon relied on, inter alia , Rules 1 .2 and 3.68(2) respectively as to when a Fiat should be refused - if “it does not go to resolving a real issue in dispute or facilitate the quickest means of resolving the claim at least expense”, and “if the application discloses no reasonable likelihood of success or is otherwise frivolous, irrelevant, improper or an abuse of process”.

Solomon also relied on Rule 6.3 7(8) which expressly allows a motion to set aside a NTA. [ 8 ] Solomon argued that the NTA was improper, and attempting to respond to an improper NTA would not advance the action, and would result in a considerable waste of resources. While acknowledging that “a very small proportion of the requests for admissions may be proper”, the grounds proffered for the claim that the admissions sought in the NTA are “overall ... improper and an abuse of process, such that the NTA should be set aside in its entirety”.

The allegations of impropriety including (I have given each a number): 1. the admissions sought are prolix and an abuse of the Court’s processes; 2. some admissions sought are irrelevant as they do not relate to issues in the action; 3. some admissions sought contain argument and legal conclusions; 4. some admissions are “not proper fact admissions, but require legal

interpretation of documents; 5. some admissions sought are from persons who are no longer parties to the action, or persons who will not be bound by any admission of the Nation; 6. some admissions sought are of frivolous or trivial facts, which will not resolve issues in the action; 7. some admissions sought relate to privileged information; and 8. some admissions sought are on procedural steps, not facts. [ 9 ] Response - Zinner, on behalf of Kostic, responded, inter alia : (

a) as to the purpose of a NTA under the Rules and the appropriateness of Kostic using this procedure; (

b) argued that 169 specific requests in the NTA are not prolix; (

c) to the right of the Nation to deny a request; (

d) that “an exemption from the obligation to comply with the Rules for reasons of convenience ... should not be available to the Nation”; (

e) that, rather than arguing that the NTA is improper, it would be “much quicker and economic for the Nation to simply respond to the admissions sought and to accompany any denial with the applicable ground enumerated on page 2 of Mr. Solomon’s letter”, which are the allegations as to why the NTA is alleged by the Nation to be improper; and

(

f) relied on two cases - Andriuk v. Merill Lynch Canada Ltd. , 2011 ABQB 59 (S. Martin J.), at para. 22 and Krieter v. Alberta , 2014 ABQB 349 (Master Hanebury), at para. 20 - that set out the tests for striking a NTA. [ 10 ] Decision - Leave is granted. [ 11 ] Brief Reasons - First, as to the merits of the Nations proposed application and the grounds it advances, whether the NTA, or any part of it, is improper, under the tests at law applicable to the admissions sought, can and will be determined, and costs will follow the event.

The Court cannot completely determine the matter without doing now, what the merits of the application would require at the hearing sought — so the hearing is authorized. Suffice it to say, I do not find that success by the Nation is hopeless. [ 12 ] As to the arguments advanced by Zinner, I will respond to each: (

a) The use of the Rule, and its importance to the objectives of the foundational rules, is neither challenged by the Nation, nor the Court. The Nation challenges the alleged improper way that the NTA has been advanced, and, as Andriuk sets out at para. 22 , “[t]here will need to be a good reason[s] ... before a [NTA] will be struck”. (b) 169 admissions sought may not be too prolix or unfair (“a long Notice” - Andriuk , at para. 22 ), or it may be prolix and unfair - that will be an issue on the hearing. (

c) While the Nation can deny a request for an admission, it should not have to answer one if it is improper in the first place - no more than a witness needs to answer an unfair question - the starting point is that the request, as the question, must be proper and fair, and one cannot skip over that requirement and say “just answer it, even if it is unfair”. Moreover, if a request is denied, it cannot be a deemed admission (which it appears in this argument is what Kostic may be seeking) because of the alleged unfairness, and then one would get into an argument at trial, which would not be procedurally fair at that time to anyone. The answer is to determine these issues now. (

d) Inconvenience to answer proper requests for admission or inconvenience to re-request admissions that are otherwise improper (if so found) is not an excuse - “even if it involved significant work”: Andriuk , at para. 22 . (

e) See the answer in (c). (

f) These cases go to the substance of the alleged impropriety of the admission requests and will set the legal tests against which the individual (and collective) admission requests must be measured, but do not assist much, if any, in determining the Leave Application. B. Consequential [ 13 ] A procedural order setting out the steps and deadlines for the hearing of the Application will be required, as a collateral matter to the main action. C. Costs [ 14 ] Costs shall be in the cause of the determination of this collateral application. Dated at the City of Edmonton, Alberta this 16 th day of February 2017. J.D.

Rooke J.C.Q.B.A. Appearances: G.S. Solomon, QC for the Plaintiff Gabor Zinner for Liliana Kostic

Dan Gilborn for Grant Thornton LLP (Not a Party to this Application) V.P. Lalonde for Raymond James Ltd. (Not a Party to this Application) D. Tupper for CIBC (Not a Party to this Application)