Morin v TransAlta Utilities Corporation, 2017 ABQB 409

Court of Queen’s Bench of Alberta Citation: Morin v TransAlta Utilities Corporation, 2017 ABQB 409 Date: 20170627 Docket: 1403 06722 Registry: Edmonton Between: David Keeneth Morin, Lorna Karen Morin, Donna Elaine Morin, Percy Joseph Morin, Julian Edward Morin, Romeo Morin, Rita Gordon, Charles Cowan and Alex Peter Morin Plaintiffs / Appellants - and - TransAlta Utilities Corporation, AltaLink Partnership, Alberta Utilities Commission, the Attorney General in Right of Alberta, Aboriginal Affairs and Northern Development Canada and Minister John Duncan Defendants / Respondents Corrected judgment: A corrigendum was issued on July 28, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Robert A. Graesser _______________________________________________________

Introduction [ 1 ] The underlying matter before me was an appeal from Master Smart’s decision dated July 18, 2016 in which he dismissed the claims of seven of the nine plaintiffs.

With respect to a further plaintiff, he gave plaintiffs’ counsel the opportunity to file evidence that this plaintiff had authorized the commencement of the lawsuit on her behalf, and had resiled from a settlement arrangement that had resulted in her providing the defendants with a discontinuance of action. [ 2 ] The action is a claim advanced against the defendants alleging, amongst other things, that the defendants were trespassing on lands owned by the Enoch Cree Nation (the “Nation”) in relation to electrical transmission lines. The action was initially commenced by Mr.

Willier at a time when he was in-house counsel for the Nation. [ 3 ] The named plaintiffs were the Nation, and the Chief and Council of the Nation suing for damages to Nation Lands and interests, and nine individually named plaintiffs on whose lands transmission towers or other facilities had been built. These plaintiffs were the holders of certificates of occupancy for the parcel of land they lived on recognizing possessory rights but not land ownership rights. [ 4 ] After the action was commenced, an election removed the Chief and Council. Mr.

Willier was no longer retained as in-house counsel, and the Nation and the new Chief and Council retained new lawyers to represent them. A notice of change of solicitors was filed on behalf of the Chief and Council and the Nation, leaving Mr. Willier as solicitor of record for the named certificate of occupancy holders. Shortly after these changes, the litigation by the Nation and Chief and Counsel was settled. [ 5 ] The defendants each brought applications to strike the remaining plaintiffs’ claims as against them.

Before the applications to strike were heard by Master Smart in July 2016, the Nation procured discontinuances of action from plaintiffs Peter Alex Morin and Donna Elaine Morin (Nielson), as well as releases. Peter Alex Morin was paid $20,000 by the Nation for signing the discontinuance and the release. It is not in evidence what, if anything, Donna Elaine Morin (Nielson) was paid. [ 6 ] Before the application before Master Smart, Peter Alex Morin resiled from the settlement, and Mr. Willier advised Master Smart that he acted for Peter Alex Morin.

There was some uncertainty as to the status of his representation of Donna Elaine Morin (Nielson). [ 7 ] The basis for Master Smart’s decision was that when the action was commenced, five of the plaintiffs were deceased.

The uncontradicted evidence before him from Michelle Wilsdon, one of the Nation’s current counsellors, was that the representatives of the estates of these former certificate of possession holders had not authorized the commencement of the action. [ 8 ] Two of the named plaintiffs were not, at the time the action was commenced, holders of certificates of possession, and the uncontradicted evidence before Master Smart through Ms.

Wilsdon was that these former certificate of possession holders had not authorized the action to be brought in their names. [ 9 ] The Government of Canada had previously served a notice to admit on Mr. Willier to the effect that five of the nine plaintiffs were dead at the time the action was commenced and that two other plaintiffs were not certificate of possession holders at the time the action was commenced.

There had been no response to the notice to admit, such that at the time of the application, its contents were deemed to be true, pursuant to Rule 6.37(3). [ 10 ] Since no information was filed by or on behalf of Donna Elaine Morin (Nielson) by August 15, 2016 (the time limit imposed by Master Smart), her claim too was struck by the operation of Master Smart’s decision. [ 11 ] On August 19, 2017, Mr. Willier filed a notice of appeal on the whole of Master Smart’s decision. The notice of appeal seeks a stay pending appeal, but nothing was done to apply for a stay. The appeal was set for October 14, 2017.

At that time, Mr. Willier had agents appear to speak to an adjournment. An adjournment was granted, with costs to the defendants. [ 12 ] The appeal proceeded before me on June 22, 2017. At the outset of the appeal, Mr. Willier abandoned the appeal and cited difficulties obtaining instructions from Peter Alex Morin. The defendants, other than the Alberta Utilities Commission and the Government of Alberta, seek costs in relation to the appeal. [ 13 ] AltaLink and TransAlta seek enhanced costs from Mr.

Willier personally, on the basis of Rule 10.49 as well as relying on common law principles relating to costs against lawyers personally. The Government of Canada seeks costs of the appeal, but not against Mr. Willier personally. [ 14 ] The Alberta Utilities Commission and the Government of Alberta seek no costs of the appeal. Positions [ 15 ] AltaLink cites the following authorities: Ward Estate v Olds Aviation Ltd. , [1996] A.J. No. 1048 (ABCA) ; Quebec v Jodoin , 2017 SCC 26 ; Yonge v Toynbee , [1909] 1 KB 215 (UK CA) ; Fricker v Van Grutten , [1895] 2 Ch. 649 (UK CA) ;

Trang v Alberta (Edmonton Remand Centre) , 2007 ABCA 267 ; and Pollock v Liberty Technical Services Ltd. , [1997] A.J. No. 488 (ABQB) . [ 16 ] AltaLink argues that the appeal from the Master’s decision was inappropriate and falls within Rule 10.49. Additionally, it argues that Rule 10.50 is engaged, as it characterizes Mr.

Willier’s actions in pursuing the appeal as “serious misconduct.” [ 17 ] AltaLink also argues that costs should be awarded on a full indemnity basis against a solicitor who has commenced proceedings without authority. [ 18 ] It seeks “penalty” costs of $10,000 in relation to the appeal. [ 19 ] TransAlta adopts the AltaLink submissions, and seeks costs in the amount of $15,000 in relation to the appeal. [ 20 ] Mr. Willier recognized that there would be a cost order relating to the abandonment of the appeal, but offered no suggestion as to who should be responsible for the costs.

He indicated that he had been instructed by former Chief and Council to include the nine named certificate of possession holders in the action he commenced while he was in-house counsel for Enoch. [ 21 ] Counsel for AltaLink noted that Mr. Willier had essentially consented to the application relating to the deceased plaintiffs. Having reviewed the transcript, I do not see any express admission to that effect. Mr. Willier did not provide any information confirming that he had been retained by any of the certificate of possession holders other than Peter Alex Morin.

He suggested that he might have been retained by the four plaintiffs who were alive, but wanted to have the striking application dealt with at the same time as his application to amend the statement of claim. [ 22 ] In any event, a notice of appeal was filed with respect to the entire decision. Analysis [ 23 ] It is trite law that a lawsuit may not be commenced on behalf of a party without that party’s consent.

If the party is unable to provide an informed consent, a litigation representative may be appointed. [ 24 ] It is also clear from cases such as those cited by AltaLink that a solicitor who commences proceedings without proper authority may be liable for the defendant’s costs. [ 25 ] The information on the application and before me indicates that Peter Alex Morin had instructed Mr. Willier to commence the action.

The uncontradicted evidence of Michelle Wilsdon was that she had spoken to three of the four plaintiffs who were still alive, and that each of David Kenneth Morin, Lorna Karen Morin and Donna Elaine Morin (Nielson) told her that they had not instructed Mr. Willier to name them as plaintiffs in the action. [ 26 ] This information was presumptively inadmissible on the application as it is hearsay, and this is an application for a final order (dismissal of the claims).

That was not raised before the Master, nor before me. [ 27 ] In any event, I am satisfied that once a solicitor’s authority to represent someone is called into question, there is an onus on the solicitor to demonstrate that he or she has such authority: Ward Estate v Olds Aviation Ltd . [ 28 ] Despite being provided with ample opportunity to do so relating to Donna Elaine Morin (Nielson) and on the appeal with respect to any or all of the other plaintiffs, Mr.

Willier did not do so. [ 29 ] In the absence of any evidence of authority (other than with respect to Peter Alex Morin), the application before Master Smart was bound to succeed and the appeal was bound to fail. [ 30 ] Because of well-established authority that a solicitor who commences proceedings without authority becomes liable for costs in the matter, the issue before me is really not whether Mr. Willier should pay costs to the defendants who seek them but rather, the amount of such costs. [ 31 ] Commencing proceedings without proper authority is a serious matter.

Doing so exposes the commencing party to liability for costs, amongst other harms including reputational and relationship harms. [ 32 ] Lawyers who commence proceedings warrant that they have the authority to do so. When authority is absent, there is no obvious reason why the lawyer should not have to indemnify the defendants for their reasonable costs in defending themselves. The lawyer may also expose himself to other claims. [ 33 ] There may be situations where a lawyer genuinely but mistakenly believes he has authority from someone to represent them. There must, however, be a reasonable basis for that.

Lawyers must be deemed to know that dead people cannot sue, and lawyers cannot commence an action on behalf of someone without capacity or an unrepresented estate without following the Rules of Court regarding litigation representatives. [ 34 ] Similarly, lawyers must be deemed to know that authority must come from the person him or herself, and not someone else (such as Chief and Council) telling the lawyer to sue on someone’s behalf. There is no information before me that Chief and Council can authorize proceedings to be brought in individual Band member’s names. [ 35 ] In the face of this, Mr.

Willier resisted the application to strike the claim against people who cannot have given him the necessary authority to sue (the deceased ones) and three others for whom there is no evidence of any such authority. Master Smart

reserved his decision on the costs of the application before him, understanding that there would be a further striking application relating to Peter Alex Morin’s claim (and potentially Donna Elaine Morin (Nielson)’s claim if proof of authority had been provided by August 15, 2016). That application is proceeding on June 28, 2017 so it is not necessary for me to deal with costs of anything other than the appeal. [ 36 ] The Rules of Court are clear that costs follow the event unless otherwise ordered. Successful parties should be able to get costs from the party or parties opposing them.

The losing parties are, in the absence of any direction by the Court to the contrary, jointly and severally responsible for costs ordered against them. The successful party can collect from whomever he or she chooses, leaving it to the unsuccessful parties to sort out ultimate responsibility amongst themselves and their lawyer(s). [ 37 ] Here, Peter Alex Morin is the only plaintiff left standing. But it would be unfair for him to bear the costs relating to the striking of the claims of his co-plaintiffs.

Presumably Peter Alex Morin is unaware of the absence of authority to commence the lawsuit for his co-plaintiffs. There is no suggestion that he has done anything in relation to this appeal, and the result of the appeal (indeed the result of the application before Master Smart) does not affect his position in the lawsuit. [ 38 ] It would be possible to award costs against the plaintiffs who were struck and leave them to claim indemnity from Mr. Willier, but that would encourage the commencement or maintenance of other proceedings that are unnecessary.

Such an order would be contrary to the spirit of the new Rules of Court. [ 39 ] The only fair thing to do here is to award costs against Mr. Willier personally. The recent Supreme Court decision of Quebec v Jodoin is interesting but does not create a remedy that was not already there in the Rules of Court or at common law in civil proceedings.

Although Jodoin is a criminal law case, the principles expressed in paragraph 29 are helpful: [29] In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate.

Thus, a lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner. [ 40 ] I do not see those principles as limiting the power of the Court in civil matters to follow its own rules of procedure in awarding costs in appropriate circumstances. The imperative of advising the lawyer in advance that a personal cost remedy will be sought, and affording the lawyer the opportunity to respond to the claim, is simple procedural fairness.

The nature and timing of the notice may well depend on the circumstances of the individual case, and the request for such costs and argument on it may well proceed during an application itself. [ 41 ] Here, both TransAlta and AltaLink gave notice on this appeal that they would be seeking costs against Mr. Willier personally, so any notice requirements were amply met here in any event. [ 42 ] TransAlta and AltaLink complain that they should have been advised sooner that Mr. Willier was not going to proceed with the appeal.

That would have been courteous, and may have avoided some of the costs involved, but is not a factor that I would consider to be aggravating here. [ 43 ] Nor is the absence of filing any materials on the appeal. Appeals from the Master do not require new materials to be filed by any party; the only mandatory filing is the transcript of the proceedings before the Master. That was done; albeit late. [ 44 ] The appeal was adjourned at Mr. Willier’s request in October; Verville J awarded costs of the adjournment to the defendants, without making any finding as to which defendant should be responsible.

There is frankly no plaintiff that should be made responsible for the costs of the appeal, so the costs ordered by Verville J should be paid personally by Mr. Willier. [ 45 ] The Alberta Utilities Commission seeks no costs in relation to the appeal, so this order does not affect them. Canada does not seek costs against Mr. Willier personally, so I vacate the costs awarded to them on the adjournment application, as it would be unfair for them to collect those costs from anyone other than Mr. Willier. [ 46 ] Alberta takes the same position.

Since they do not seek costs on the appeal, the cost award in Alberta’s favour arising from the adjournment is vacated. [ 47 ] That leaves TransAlta and AltaLink. Rule 10.49 states: 10.49(1) The Court may order a party, lawyer or other person to pay to the court clerk a penalty in an amount determined by the Court if (

a) the party, lawyer or other person contravenes or fails to comply with these rules or a practice note or direction of the Court without adequate excuse, and (

b) the contravention or failure to comply, in the Court’s opinion, has interfered with or may interfere with the proper or efficient administration of justice.

(2) The order applies despite (

a) a settlement of the action, or (

b) an agreement to the contrary by the parties. [ 48 ] Rule 10.50 states:

10.50 If a lawyer for a party engages in serious misconduct, the Court may order the lawyer to pay a costs award with respect to a person named in the order. [ 49 ] Penalty costs imposed under Rule 10.49 go to the Court, not the litigants. The measure of costs to be awarded to the parties is always in the discretion of the courts. The English cases cited by AltaLink support solicitor client or indemnity costs in these situations. Such an award is not an absolute. Both AltaLink and TransAlta seek fixed amounts of costs. [ 50 ] Here, Mr.

Willier should not have commenced this action on behalf of the eight plaintiffs whose claims have been struck. He should not have resisted the application to strike against those plaintiffs. He should not have appealed Master Smart’s decision; indeed he had no authority from anyone with the ability to authorize him to file the appeal. The appeal should not have been pursued. Once Mr. Willier determined that he was going to abandon the appeal, he should have notified other counsel immediately so they would have at least been spared the expense of preparation.

I do not think an appearance would have been avoided, but it would have related only to costs and not the merits of the appeal. [ 51 ] Mr. Willier’s conduct here was both unauthorized and discourteous. I am satisfied that this is one of those situations described in Jodoin where he has interfered with the administration of justice. He has also interfered with the administration of justice by ignoring the rules relating to litigation representatives. In doing so, there was a considerable waste of court resources.

It is appropriate that he pay a penalty to the Court of Queen’s Bench in the amount of $1,000. [ 52 ] Costs under Rule 10.50 are subsumed within the costs otherwise ordered under

Schedule C; if there is a tariff item a multiplier might be used; if there is no tariff item then the Court should come up with an appropriate amount. I do not see that costs under Rule 10.50 are an add-on in themselves, to be imposed in addition to

Schedule C. [ 53 ] Solicitor and client costs have not been sought. Under

Schedule C, Column 1 is the appropriate column as there is no specified amount in the statement of claim. An old rule of thumb was that

Schedule C costs represented approximately a third of what might be the reasonable solicitor and client costs of the proceedings. The Rules of Court costs are out of date.

Treble Column C costs have been used in cases where fraud has been alleged and not proven, and in other cases where the Court determined it was appropriate to send a message to the losing party. [ 54 ] The appropriate measure of costs here, in my view, is to use four times Column 1 to recognize an inflationary factor to the tariff that was set some 20 years ago. [ 55 ] I do not want to put the parties to the cost or time of preparing bills of costs or arguing over disbursements. No travel costs would be appropriate in any event. [ 56 ] Therefore, each of TransAlta and AltaLink are awarded costs based on

Schedule 1: $150 for the contested adjournment plus $1,000 for the application. Even though Mr. Willier abandoned the appeal at the hearing, that was too late for him to benefit from the reduction for abandoning the application specified in

Schedule C item 7(3). The amount of $1,150 is thus quadrupled. I set disbursements for the appeal at $250 per party. [ 57 ] Accordingly, each of TransAlta and AltaLink is awarded $4,850 in costs against Mr. Willier personally. Heard on the 22 nd day of June, 2017. Dated at the City of Edmonton, Alberta, this 27 th day of June, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Will Willier Willier & Company for the Plaintiffs /Appellants

Gavin S. Fitch, Q.C. McLennan Ross LLP for the Defendant / Respondent TransAlta Utilities Corporation Karen Wyke Fasken Maritneau DuMoulin LLP for the Defendant / Respondent AltaLink Partnership J.P.

Mousseau Alberta Utilities Commission for the Defendant / Respondent Alberta Utilities Commission Angela Croteau Alberta Department of Justice for the Defendant / Respondent Attorney General in Right of Alberta Alethea LeBlanc and Linda Maj Department of Justice Canada for the Defendants / Respondents Aboriginal Affairs and Northern Development Canada and Minister John Duncan _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ The following paragraphs have been changed as follows: [12] The appeal proceeded before me on June 22, 2017. At the outset of the appeal, Mr. Willier abandoned the appeal and cited difficulties obtaining instructions from Peter Alex Morin. The defendants, other than the Alberta Utilities Commission and the Government of Alberta, seek costs in relation to the appeal. [13] AltaLink and TransAlta seek enhanced costs from Mr.

Willier personally, on the basis of Rule 10.49 as well as relying on common law principles relating to costs against lawyers personally. The Government of Canada seeks costs of the appeal, but not against

Mr. Willier personally. [14] The Alberta Utilities Commission and the Government of Alberta seek no costs of the appeal. [46] Alberta takes the same position. Since they do not seek costs on the appeal, the cost award in Alberta’s favour arising from the adjournment is vacated.