Ho Lem v Piikani Nation, 2017 ABQB 164

Court of Queen’s Bench of Alberta Citation: Ho Lem v Piikani Nation, 2017 ABQB 164 Date: 20170308 Docket: 1401 00460 Registry: Calgary Between: Stephanie Ho Lem Plaintiff - and - Piikani Nation, Piikani Nation Chief and Council Defendants Corrected judgment: A corrigendum was issued on April 19, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] The Plaintiff, Stephanie Ho Lem (Ho Lem), on January 27, 2017, submitted a Leave Application [1] to file an “Amended Amended Originating Application”. The Nation responded (Response) with submissions by its Counsel, Ms. Hanert (Hanert), on February 17, and Ho Lem filed her rebuttal (Rebuttal) to that Response on February 24, 2017. Most of the letter relates not to the issue of Leave, but the substance of the indemnity allegations (substantively, most of pages 5 – 16 of her Rebuttal, to which I shall not refer).

All submissions were filed with me as Case Manager within the directed timelines. [ 2 ] In fact, I do not believe the Application [2] originally filed in this Action No. 1401-00460 (#460) on February 12, 2014, has been amended before, so this purported application should be referenced as an “Amended Application” (AA).

[ 3 ] Even more confusing, #460 is, at best, not even an Action to which Ho Lem is a party. Rather, it is an Action commenced by Shelly Small Legs (Small Legs) by way of an Originating Application, filed on February 27, 2014, seeking similar indemnity relief. There is no basis in law for Ho Lem to bring any application, never mind the AA, in #460.

In her Rebuttal, to try to solve this problem, Ho Lem seeks to file a stand-alone action for such relief, but that is not necessary – as I hold herein, all the issues are raised in her Counterclaim in Action No. 1001 10326 (#326), and no application for the same relief sought will be allowed before the trial of #326, and, therefore, there is no need to further clutter the matter with a further Action.

That, however, does not prevent her from bringing a Leave Application to amend her Counterclaim in #326, if that is required at law. [ 4 ] In any event of the above, the AA claims 5 individual applications for relief. [ 5 ] Leave to file is denied for a number of reasons. [ 6 ] The primary reason that Leave is denied is that the AA is an abuse of process, because, in part, it is a collateral attack [3] on the Case Management Order (CMO) of October 17, 2014 (perfected by Order of January 3, 2017 and filed February 16, 2017), which adjourned the Ho Lem Counterclaim in #326 and the Application within this Action #460 to the trial of the #326 Action (consistent with the rationale in Rule 1.2), which CMO was issued by the consent of Ho Lem and was not appealed.

Moreover, much of the relief sought in the AA is substantially the same as the Ho Lem Counterclaim in #326 (filed November 30, 2012, with the Nation’s Defence filed January 15, 2013) – indeed, the February 12, 2014 Application attaches the Counterclaim and sought “5. Granting relief to the Applicant in accordance with the Counterclaim attached as EXHIBIT “B”, which it specifically attaches. All relate to an alleged indemnity agreement between Ho Lem and the Nation, dated November 29, 2004. Thus, pursuing the AA, at this time and in this way, is an abuse of process, contrary to Rule 3.68(2): Toronto (City) v.

CUPE, Local 79 , 2003 SCR 63, at paras 35 and 37. It is a further abuse of process that one of the grounds of relief is to stay and delay #326, clearly contrary to both Rules 1.2 and 3.68(2) – here one party, on one issue, seeks to a stay and delay of an Action pertaining to a number of other parties and issues.

It would be the “tail wagging the dog” and the very reason that, in the Amended Amended Litigation Plan of December 12, 2016 in another Piikani action, Piikani Nation v Paymond James et al , Action No. 0601 13081 (#081 Action), I ordered that such collateral matters must not be permitted to delay the #081 Action. [ 7 ] In her “Grounds” for the AA, Ho Lem now seeks to make a distinction between “indemnity” and “saving harmless” (including retaining legal counsel), and in her Response argued that it was only the indemnity issues that were to be adjourned to trial.

However, the allegations in the Counterclaim in #326 make no reference to “save harmless”. Nevertheless, both remedies, if and to the extent available, follow out of the same alleged agreement of November 29, 2004, which was the underlying document for the matters therein to be adjourned to the #326 trial (which Ho Lem acknowledges at the bottom of p. 1 and the top of p. 2 of her Rebuttal).

It is clear that the adjournment styled as the “indemnity” claim was to adjourn all matters relating to that agreement, not just some. [ 8 ] To be clear, none of my reasons herein go to the question of the Nation’s potential liability under the alleged indemnity agreement of November 2004, to hold harmless and/or indemnify.

Those issues will be determined at the #326 trial, and the payment or repayment of costs and liabilities incurred, will follow, if so found against the Nation [4] . [ 9 ] Ho Lem, in her AA, now raises new alleged obligations of the alleged requirement of the Piikani Investment Corporation (PIC) to obtain and maintain directors and officers insurance, and the alleged requirement of the Nation to ensure it did so. However, PIC is not a party to any of these Actions, and, moreover, has gone through a bankruptcy, and a Court accepted Proposal, which presumptively resolved all of its obligations.

Additionally, these new alleged issues may be statute barred by applicable limitation dates.

Nevertheless, whatever the issues that arise in this context pertaining to the Nation, they are bound up in the indemnity and related allegations which have been adjourned to be determined at the trial in #326, with Ho Lem’s consent, and without appeal therefrom. [ 10 ] Further, in her Grounds, Ho Lem raises certain collateral matters, not referenced in the relief she seeks in the AA. [ 11 ] First, she makes reference to an allegation that the Plaintiff, Adam North Peigan, failed to provide his Affidavit of Records (presumably in #326, because he is not a party in #460) within the time allotted, and contempt is sought.

That is not a matter to be dealt with in #460. If it has any validity, it is a matter to pursue in #326, on an appropriate Leave Application, at risk of costs. [ 12 ] Second, she references an alleged failure of Counsel for the Nation to provide a copy of the Consent Order striking a Third Party Claim against her. However, as framed, that is not a justiciable issue in #460, or, perhaps, at all. If it is, it would be a Leave Application within #326, again at risk of costs. [ 13 ] The decision and reasons above demonstrate that there is no merit to the Leave Application of Ho Lem brought herein.

Responding to the Leave Application has caused the Nation costs in Counsel fees, and the Nation is entitled to a reward of costs, in any event of the main litigation. I award Column 3, of

Schedule C, for item 8(1) of a contested application with written brief, of $1,500, payable forthwith, in any event of the cause, with leave to the both Ho Lem and the Nation, within 30 days, to seek a right to orally argue for a review of same as they did not have an opportunity to advance arguments before these costs were imposed. However, that will not prevent the requirement for payment of the costs in trust in the interval, but may only affect the ultimate outcome.

Thus, notwithstanding the right to review, “payable forthwith” means not only what the law implies, but also that Ho Lem will not be permitted to bring any other Leave Applications from this date forward until she has provided the CMJ with proof that the costs are paid into trust, again subject of any review launched within 30 days. Dated at the City of Edmonton, Alberta this 8 th day of March 2017.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Stephanie Ho Lem for the Self-Represented Litigant Caireen Hanert for the Defendants _______________________________________________________ Corrigendum of the Memorandum of Decision of The Associate Chief Justice J.D.

Rooke _______________________________________________________ Paragraph 6 was changed as follows: The primary reason that Leave is denied is that the AA is an abuse of process, because, in part, it is a collateral attack 3 on the Case Management Order (CMO) of October 17, 2014 (perfected by Order of January 3, 2017 and filed February 16, 2017), which adjourned the Ho Lem Counterclaim in #326 and the Application within this Action #460 to the trial of the #326 Action (consistent with the rationale in Rule 1.2), which CMO was issued by the consent of Ho Lem and was not appealed.

Moreover, much of the relief sought in the AA is substantially the same as the Ho Lem Counterclaim in #326 (filed November 30, 2012, with the Nation’s Defence filed January 15, 2013) – indeed, the February 12, 2014 Application attaches the Counterclaim and sought “5. Granting relief to the Applicant in accordance with the Counterclaim attached as EXHIBIT “B”, which it specifically attaches. All relate to an alleged indemnity agreement between Ho Lem and the Nation, dated November 29, 2004. Thus, pursuing the AA, at this time and in this way, is an abuse of process, contrary to Rule 3.68(2): Toronto (City) v.

CUPE, Local 79 , 2003 SCR 63, at paras 35 and 37. It is a further abuse of process that one of the grounds of relief is to stay and delay #326, clearly contrary to both Rules 1.2 and 3.68(2) – here one party, on one issue, seeks to a stay and delay of an Action pertaining to a number of other parties and issues.

It would be the “tail wagging the dog” and the very reason that, in the Amended Amended Litigation Plan of December 12, 2016 in another Piikani action, Piikani Nation v Paymond James et al , Action No. 0601 13081 (#081 Action), I ordered that such collateral matters must not be permitted to delay the #081 Action.