1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 530

Court of Queen’s Bench of Alberta Citation: 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 530 Date: 20170831 Docket: 1103 14112 Registry: Edmonton In the Matter of the Trustee Act , RSA 2000, c T-8, as amended And in the matter of the Sawridge Band, Inter Vivos Settlement, created by Chief Walter Patrick Twinn, of the Sawridge Indian Band, No. 19, now known as Sawridge First Nation, on April 15, 1985 (the "1985 Sawridge Trust") Between: Maurice Felix Stoney and His Brothers and Sisters Applicants Roland Twinn, Catherine Twinn, Walter Felix Twin, Bertha L’Hirondelle and Clara Midbo, As Trustees for the 1985 Sawridge Trust (the “1985 Sawridge Trustees” or “Trustees”) Respondents (Original Applicants) - and – Public Trustee of Alberta (“OPTG”) Respondent - and – The Sawridge Band Intervenor _______________________________________________________ Case Management Costs Decision re Lawyer Priscilla Kennedy (Sawridge #7) of the

Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I Introduction . 3 II Background . 4 III Evidence and Submissions at the July 28 Hearing . 4 A. Priscilla Kennedy . 5 B. Sawridge Band . 6 C. Sawridge Trustees . 6 IV. Court Costs Awards vs Lawyers . 7 A. The Shifting Orientation of Litigation in Canada, Court Jurisdiction, and Control of Lawyers 8 B. Costs Awards Against Lawyers . 11 1. The Court’s Jurisdiction to Control Litigation and Lawyers . 11 2. The Nuremberg Defence - I Was Just Following Orders . 13 3. No Constitutional Right to Abusive Litigation . 15 4.

An Exceptional Step . 16 5. Abuse of the Court 17 6. Knowledge and Persistence . 19 7. Examples of Lawyer Misconduct that Usually Warrant Costs . 19 a. Futile Actions and Applications . 19 b. Breaches of Duty . 20 c. Special Forms of Litigation Abuse . 21 d. Delay . 22 C. Conclusion . 22 V. Priscilla Kennedy’s Litigation Misconduct 23 A. Futile Litigation . 23 B. Representing Non-Clients . 24 C. Aggravating Chutskoff v Bonora “Indicia” and other Aggravating Factors . 25 D. Conclusion . 26 E. Quantum of the Costs Award . 27 VI.

Conclusion . 27 I Introduction [ 1 ] On July 12, 2017 I issued 1985 Sawridge Trust v Alberta (Public Trustee) , 2017 ABQB 436 [“ Sawridge #6 ”] where I denied an application by Maurice Felix Stoney “and his 10 living brothers and sisters” to be added as interveners or parties to a proceeding intended to settle and distribute the assets of the 1985 Sawridge Trust, a trust set up by the Sawridge Band on behalf of its members. [ 2 ] In brief, Maurice Stoney had claimed he was in fact and law a member of the Sawridge Band, had been improperly denied that status, and therefore is a beneficiary of the Trust, and had standing to participate in this Action. [ 3 ] I denied that application on the basis (para 48) that:

1. Maurice Stoney is estopped from making this argument via his concession in Huzar v Canada , [2000] FCJ 873 (QL), 258 NR 246 (FCA) that this argument has no legal basis. 2. Maurice Stoney made this same argument in Stoney v Sawridge First Nation , 2013 FC 509 , 432 FTR 253, where it was rejected. Since Mr. Stoney did not choose to challenge that decision, that finding of fact and law has ‘crystallized’. 3.

In 1985 Sawridge Trust v Alberta (Public Trustee) , 2015 ABQB 799 at para 35 , time extension denied 2016 ABCA 51 , 616 AR 176, I concluded the question of Band membership should be reviewed in the Federal Court, and not in the Advice and Direction Application by the 1985 Sawridge Trustees. 4.

In any case I accept and adopt the reasoning of Stoney v Sawridge First Nation , as correct, though I was not obligated to do so. [ 4 ] I made no findings in relation to Maurice Stoney’s “10 living brothers and sisters” because I had no evidence they were actually voluntary participants in the application: Sawridge #6 at paras 8-12 . [ 5 ] At the conclusion of Sawridge #6 , I ordered solicitor and own indemnity costs against Maurice Stoney (paras 67-68), and that he make written submissions on whether he should be subject to court access restrictions, and, if so, what those court access restrictions should be (paras 53-66).

These steps were taken in response to what is clearly abusive litigation misconduct. Also at paras 71-81, I concluded that the activities of Maurice Stoney’s lawyer, Ms.

Priscilla Kennedy [“Kennedy”], required review. [ 6 ] I therefore ordered that Kennedy appear before me on July 28, 2017 and that the 1985 Sawridge Trust Trustees and the Sawridge Band could enter certain restricted evidence that is potentially relevant to whether she should be personally responsible for some or all of her client’s costs penalty. [ 7 ] Prior to the July 28, 2017, hearing the Court received three affidavits relating to whether Maurice Stoney had obtained consent from his siblings to represent them in this litigation. At the hearing itself, Mr.

Donald Wilson of DLA Piper represented Kennedy, who is also a lawyer with that firm. Mr. Wilson submitted that a costs award against Kennedy was unnecessary.

Counsel for the Trust and the Sawridge Band argued costs were appropriate either vs Kennedy personally, or against Kennedy and Maurice Stoney on a joint and several basis. [ 8 ] At the July 28, 2017 hearing the issue arose of whether two siblings of Maurice Stoney who had provided affidavit evidence that they authorized Maurice Stoney to act on their behalf should also be subject to the solicitor and own client indemnity costs award which I had ordered in Sawridge #6 at para 67 .

I rejected that possibility in light of the limited and after-the-fact evidence and the question of informed consent. [ 9 ] I reserved my decision at the end of that hearing concerning Kennedy’s potentially paying costs, with reasons to follow. These are those reasons. II Background [ 10 ] This Action was commenced by Originating Notice, filed on June 12, 2011 by the 1985 Sawridge Trustees and is sometimes referred to as the “Advice and Direction Application”.

In brief, this litigation involves the Court providing directions on how the property held in an aboriginally-owned trust may be equitably distributed to its beneficiaries, members of the Sawridge Band. [ 11 ] The history of the Advice and Direction Application is set out in previous decisions (including the Orders taken out in relation thereto) reported as 1985 Sawridge Trust v Alberta (Public Trustee) , 2012 ABQB 365 , 543 AR 90 (“ Sawridge #1 ”), aff’d 2013 ABCA 226 , 543 AR 90 (“ Sawridge #2 ”), 1985 Sawridge Trust v Alberta (Public Trustee) , 2015 ABQB 799 (“ Sawridge #3 ”), time extension denied 2016 ABCA 51 , 616 AR 176; 1985 Sawridge Trust (Trustee for) v Sawridge First Nation , 2017 ABQB 299 (“ Sawridge #4 ”).

A separate attempt by three other third parties to inject themselves into this litigation was rejected on July 5, 2017, and that decision is reported as 1985 Sawridge Trust v Alberta (Public Trustee) , 2017 ABQB 377 (“ Sawridge #5 ”). Collectively, these are the “ Sawridge Decisions ”. [ 12 ] Some of the terms used in this decision (“ Sawridge #7 ”) are also defined in the earlier Sawridge Decisions .

III Evidence and Submissions at the July 28 Hearing [ 13 ] Sawridge #6 provides detailed reasons on why I denied Maurice Stoney’s application (paras 32-54) and concluded that Maurice Stoney’s siblings should not be captured by the potential consequences of that application (paras 8-12). [ 14 ] I also concluded that the Maurice Stoney application exhibited three of the characteristic indicia of abusive litigation, as reviewed in Chutskoff v Bonora , 2014 ABQB 389 at para 92 , 590 AR 288, aff’d 2014 ABCA 444 , 588 AR 503: 1.

Collateral attack that attempts to revisit an issue that has already been determined by a court of competent jurisdiction, to circumvent the effect of a court or tribunal decision, using previously raised grounds and issues. 2. Bringing hopeless proceedings that cannot succeed, here in both the present application and the Sawridge #3 appeal where Maurice Stoney was an uninvolved third party. 3. Initiating “busybody” lawsuits to enforce the rights of third parties, here the recruited participation of Maurice Stoney’s “10 living brothers and sisters.”

[ 15 ] This is the litigation misconduct that may potentially attract court sanction for Kennedy as she was the lawyer who represented Maurice Stoney when he engaged in this abusive litigation. A. Priscilla Kennedy [ 16 ] As noted above, Ms. Kennedy was represented at the July 28, 2017 hearing by Donald Wilson, a partner at the law firm where Kennedy is employed. He acknowledged that a lawyer’s conduct is governed by Rule 1.2, and that the question of Maurice Stoney’s status had been the subject of judicial determination prior to the August 12, 2016 application. [ 17 ] Nevertheless, Mr.

Wilson argued that Kennedy should not be sanctioned because Kennedy “... litigates with her heart.” She had been influenced by a perceived injustice against Maurice Stoney, and Maurice Stoney’s intention to be a member of the Sawridge Band, which “... goes to the totality of his being.” If Kennedy is guilty of anything, it is that she “... is seeing a wrong and persistently tried to right that wrong.” [ 18 ] Nevertheless, Mr. Wilson did acknowledge that the August 12, 2016 application was “a bridge too far” and should not have occurred.

He advised the Court that he had discussed the Sawridge Advice and Direction Application with Kennedy, and concluded Maurice Stoney had exhausted his remedies. The August 12, 2016 application was not made with a bad motive or the intent to abuse court processes, but, nevertheless, “... it absolutely had that effect ...”. [ 19 ] As for the “busybody” aspect of this litigation, Mr. Wilson argued that Morin v TransAlta Utilities Corporation , 2017 ABQB 409 involved a different scenario, since in that instance certain purported litigants were dead.

The short timeline for this application had meant it was difficult to assemble evidence that Maurice Stoney was authorized to represent his siblings. These individuals were “a little older” and “[s]ome are not in the best of health.” [ 20 ] The Court received three affidavits that relate to whether Maurice Stoney was authorized to represent his other siblings in the Sawridge Advice and Direction Application: 1. Shelley Stoney, dated July 20, 2017, saying she is the daughter of Bill Stoney and the niece of Maurice Stoney.

She is responsible “for driving my father and uncles who are all suffering health problems and elderly.” Shelley Stoney attests “... from discussions among my father and his brothers and sisters” that Maurice Stoney was authorized to bring the August 12, 2016 application on their behalf. 2. Bill Stoney, brother of Maurice Stoney, dated July 20, 2017, saying he authorized Maurice Stoney to make the August 12, 2016 application on his behalf in the spring of 2016. 3.

Gail Stoney, sister of Maurice Stoney, dated July 20, 2017, saying she authorized Maurice Stoney to make the August 12, 2016 application on his behalf in the spring of 2016. None of these affidavits attach any documentary evidence to support these statements. Kennedy has not provided any documentary evidence to support a relationship with these individuals or Maurice Stoney’s other siblings. [ 21 ] Mr.

Wilson acknowledged the limited value of this largely hearsay evidence. [ 22 ] Kennedy’s counsel argued that in the end no costs award against Kennedy personally is necessary because she has already had the seriousness of her conduct “driven home” by the Sawridge #6 decision and the presence of reporters in the courtroom. He said that is equally as effective as an order of contempt or a referral to the Law Society. B. Sawridge Band [ 23 ] Mr. Molstad Q.C., counsel for the Sawridge Band, stressed that what had occurred was serious litigation misconduct.

Kennedy had conducted a collateral attack with full knowledge of the prior unsuccessful litigation on this topic. She at the latest knew this claim was futile during the 2013 Federal Court judicial review that confirmed Maurice Stoney would not be admitted into the Sawridge Band. It is unknown whether Kennedy had any role in the subsequent unsuccessful 2014 Canadian Human Rights Commission challenge to the Sawridge Band’s denying him membership, but she did know that application had occurred. [ 24 ] Kennedy had acted in an obstructionist manner during cross-examination of Maurice Stoney.

She made false statements in her written submissions. [ 25 ] As in Morin v TransAlta Utilities Corporation , Kennedy acted without instructions from the persons she purported to represent. Informed consent is a critical factor in proper legal representation. Where that informed consent is absent then a lawyer who acts without authority should solely be responsible for the subsequent litigation costs. [ 26 ] The affidavit evidence does not established Kennedy was authorized to act on behalf of Maurice Stoney’s siblings.

If these persons were participants in this litigation they could be subject to unfavourable costs awards. [ 27 ] The Sawridge Band again confirmed that the Stoney v Sawridge First Nation , 2013 FC 509 , 432 FTR 253 costs order against Maurice Stoney remained unpaid. The costs awarded against Maurice Stoney in Stoney v 1985 Sawridge Trust , 2016 ABCA 51 , 616 AR 176 also remain unpaid. Kennedy in her written submissions indicated that Maurice Stoney and his siblings have limited funds.

Kennedy should be made personally liable for litigation costs so that the Sawridge Band and Trustees can recover the expenses that flowed from this meritless action. C. Sawridge Trustees

[ 28 ] The Sawridge Trustees adopted the submissions of the Sawridge Band. The question of Maurice Stoney’s status had been decided prior to the August 12, 2016 application. [ 29 ] Counsel for the Trustees stressed that the Court should review the transcript of the cross-examination of Maurice Stoney’s affidavit. During that process Kennedy objected to questions concerning whether Maurice Stoney had read certain court decisions, and Kennedy said Maurice Stoney did not understand what those decisions meant.

That transcript also illustrated that Kennedy was “... the one holding the reins.” [ 30 ] This meritless litigation was effectively conducted on the backs of the Sawridge Band community and dissipated the Trust. The only appropriate remedy is a full indemnity costs order vs Kennedy. IV. Court Costs Awards vs Lawyers [ 31 ] Sawridge #6 at paras 69-77 reviews the subject of when a court should make a lawyer personally liable for costs awarded against their client.

Rule 10.50 of the Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ”, or individually a “ Rule ”] authorizes the Court to order a lawyer pay for their client’s costs obligations where that lawyer has engaged in “serious misconduct”: 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. [ 32 ] The Supreme Court of Canada in Quebec (Director of Criminal and Penal Prosecutions) v Jodoin , 2017 SCC 26 at para 29 , 408 DLR (4th) 581 [“ Jodoin ”] has also very recently commented on costs awards against lawyers, and identified two scenarios where these kinds of awards are appropriate, either: 1. “an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer”, or 2. “dishonest or malicious misconduct on his or her part, that is deliberate”. [ 33 ] Alberta trial courts have often referenced the judgment of Robertson v Edmonton (City) Police Service , 2005 ABQB 499 , 385 AR 325 as providing the test for when a lawyer’s activities have reached a threshold that warrants a personal award of costs.

In that decision Slatter J (as he then was) surveyed contemporary jurisprudence and concluded at para 21: ... The conduct of the barrister must demonstrate or approach bad faith, or deliberate misconduct, or patently unjustified actions, although a formal finding of contempt is not needed ... [ 34 ] I conclude this is no longer the entire test. Jodoin indicates a new two branch analysis. “[D]ishonest or malicious misconduct on his or her part, that is deliberate” is the category identified in Robertson v Edmonton (City) Police Service .

The second branch, “unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system”, is a new basis on which to order costs against a lawyer. [ 35 ] I believe this is a useful point at which to look further into what is “serious abuse” that warrants a costs penalty vs a lawyer, following the first of the two branches of this analysis. I consider the language in Rule 10.50 (“serious misconduct”) and Jodion (“serious abuse”) to be equivalent.

I use the Supreme Court of Canada’s language in the analysis that follows. [ 36 ] In Sawridge #6 at para 78 I indicated five elements that contributed to what I concluded was potentially “serious abuse”: 1. the nature of interests in question; 2. this litigation was by a third party attempting to intrude into an aboriginal community which has sui generis characteristics; 3. that the applicant sought to indemnify himself via a costs claim that would dissipate the resources of aboriginal community trust property; 4. the application was obviously futile on multiple bases; and 5. the attempts to involve other third parties on a “busybody” basis, with potential serious implications to those persons’ rights. [ 37 ] Ms.

Kennedy’s litigation conduct is a useful test example to evaluate whether her actions represent “serious abuse”, and then should result in her being liable, in whole or in part, for litigation costs ordered against her client. A.

The Shifting Orientation of Litigation in Canada, Court Jurisdiction, and Control of Lawyers [ 38 ] Before proceeding to review the law on costs awards vs lawyers I believe it is helpful to step back and look more generally at how court processes in Canada are undergoing a fundamental shift away from blind adherence to procedure and formality, and towards a court apparatus that focuses on function and proportional response. This transformation of the operation of front-line trial courts has not simply been encouraged by the Supreme Court of Canada.

Implementing this new reality is an obligation for the courts, but also for lawyers. [ 39 ] This has been called a “culture shift” (for example, Hryniak v Mauldin , 2014 SCC 7 at para 2 , [2014] 1 SCR 87), but this transformation is, in reality, more substantial than that. Court litigation, like any process, needs rules. The common law aims to develop rules that provide predictable results. That has several parts. One category of rules establishes functional principles of law, so that

persons may structure their activities so that they conform with the law. A second category of rules aims to guarantee what is typicallycalled “procedural fairness”. Procedural fairness sets guidelines for how information is presented to the court and tested, how partiesstructure and order their arguments, that parties know and may respond to the case against them, and how decision-makers explain thereasoning and conclusions that were the basis to reach a decision. Much of these guidelines have been codified in legislation, such as theRules.

Other elements are captured as principles of fundamental justice, as developed in relation to Charter, s 7. [40] There is little dispute that litigation in Canada is now a very complex process, particularly in the superior courts such as theAlberta Court of Queen’s Bench. Justice Karakatsanis in Hryniak v Mauldin at para 1 observed that meaningful access to justice is now“the greatest challenge to the rule of law in Canada today.” What is the obstacle? “Trials have become expensive and protracted.”Canadians can no longer afford to sue or defend themselves. That strikes at the rule of law itself.

Justice Karkatsanis continues to explainthat historic over-emphasis on procedural rights and exhaustive formality has made civil litigation impractical and inaccessible (para 2): ... The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that newmodels of adjudication can be fair and just. [41] Thus, the “culture shift” is a movement away from rigid formality to procedures that are proportionate and lead to results thatare “fair and just”.

The Supreme Court of Canada in Hryniak v Mauldin called for better ways to control litigation to ensure courtprocesses serve their actual function - resolving disputes between persons - and to reflect economic realities. [42] More recently the Supreme Court has in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 and R v Cody, 2017 SCC 31 stressed itis time for trial courts to develop and deploy effective and timely processes “to improve efficiency in the conduct of legitimateapplications and motions” (R v Cody, at para 39).

In R v Cody the Supreme Court at para 38 instructs that trial judges test criminal lawapplications on whether they have “a reasonable prospect of success” [emphasis added], and if not, they should be dismissed summarily.That is in the context of criminal litigation, with its elevated procedural safeguards that protect an accused’s rights to make full answerand defence. Both R v Jordan and R v Cody stress all court participants in the criminal justice process - the Crown, defence counsel, andjudges - have an obligation to make trial processes more efficient and timely.

This too is part of the “culture shift”, and a rejection of “aculture of complacency”. [43] The increasingly frequent appearance of self-represented litigants in Canadian courts illustrates how the court’s renewedresponsibility to achieve “fair and just” but “proportionate and effective” results is not simply limited to ‘streamlining’ processes.

ChiefJustice McLachlin has instructed that the “culture shift” extends to all court proceedings, but “especially those involving self-representedparties”: Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 110, [2014] 3SCR 31. [44] As I have illustrated, a key aspect of the “culture shift” means reconsidering how procedural formalities can be an obstacle to“fair and just” litigation.

Very recently in Pintea v Johns, 2017 SCC 23 the Supreme Court of Canada endorsed the Canadian JudicialCounsel Statement of Principles on Self-represented Litigants and Accused Persons (2006) [“Statement of Principles”].

That documentand its Principles are important as they illustrate how the traditional formal rules of procedure and evidence bend to the new reality facedby trial courts, and what is required to provide a “fair and just” result for self-represented litigants: Principle 2 on page 5: Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. Principle 3 on page 8: Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

I note these and other instructions to trial judges in the “Statement of Principles” are not permissive, but mandatory. See for example:Gray v Gray, (Ont Sup Ct J); Young v Noble, 2017 NLCA 48; Moore v Apollo Health & Beauty Care, 2017 ONCA383; R v Tossounian, 2017 ONCA 618. [45] Read plain, this is a substantial rejection by the Supreme Court of Canada of the traditional approach, that rules of procedureand evidence apply the same to everyone who appears before a Canadian court. The reason for that is obvious to anyone who hasobserved a self-represented person in court.

They face a complex apparatus, whose workings are at times both arcane and unwritten. [46] These objectives are all relevant to how the gate of “access to justice” swings both open and closed. The Statement ofPrinciples is not simply a licence for self-represented persons to engage the courts as an exception to the rules. They also haveresponsibilities: Clark v Pezzente, 2017 ABCA 220 at para 13.

What is particularly pertinent to the discussion that follows is how theStatement of Principles at p 10 indicate that self-represented litigants should also adhere to standards expected of legal professionals,such as politeness, and not abusing the courts personnel, processes, and resources: Self-represented persons are required to be respectful of the court process and the officials within it.

Vexatious litigants will not bepermitted to abuse the process. [47] Similarly, the Statement of Principles in its commentary at p 5 emphasizes that abusive litigation is not excused becausesomeone is self-represented: Self-represented persons, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings andprocedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants wherethe administration of justice requires it.

The ability of judges to promote access may be affected by the actions of self-representedlitigants themselves. [48] That objective of controlling litigation abuse is a critical facet of the “new reality”. This is reflected in recent jurisprudence of

this Court. One mechanism to achieve this “culture shift” is interdiction of abusive litigation, for example via vexatious litigant ordersissued under this Court’s inherent jurisdiction (surveyed in Hok v Alberta, 2016 ABQB 651 at paras 14-25, 273 ACWS (3d) 533, leavedenied 2017 ABCA 63, leave to the SCC requested, 37624 (12 April 2017)).

Recent Alberta jurisprudence in this strategic direction hasstressed how “fair and just” litigant control responses are ones that tackle both caused and anticipated injuries, for example: 1. identifying litigation abuse that warrants intervention in a prospective manner, by investigating what is the plausible futuremisconduct by an abusive litigant, rather than a rote and reflex response where the Court only restricts forms of abuse that have alreadyoccurred (Hok v Alberta, at paras 35-37; Thompson v International Union of Operating Engineers Local No. 955, 2017 ABQB 210 atpara 61, leave denied 2017 ABCA 193; Ewanchuk v Canada (Attorney General), 2017 ABQB 237 at para 160-164; Chisan v Fielding,2017 ABQB 233 at paras 52-54); 2. recognition that certain kinds of litigation abuse warrant a stricter response given their disproportionate harm to court processes(Ewanchuk v Canada (Attorney General) at paras 170-187); and 3. taking special additional steps where an abusive litigant defies simple control in his or her attacks on the Court, its personnel, andother persons (Re Boisjoli, 2015 ABQB 629, 29 Alta LR (6th) 334; Re Boisjoli, 2015 ABQB 690). [49] In many ways none of this should be new.

The Alberta Rules of Court, Rule 1.2 statements of purpose and intention stressboth the Court and parties who appear before it are expected to resolve disputes in a timely, cost-effective manner that respects theresources of the Court. [50] What is new are the implications that can be drawn from a lawyer’s actions and inactions. They, too, must be part of the“culture shift”. If their actions, directly or by implication, indicate that a lawyer is not a part of that process, then that is an indication ofintent.

The future operation of this and other trial courts will depend in no small way on the manner in which lawyers conductthemselves. If they elect to misuse court procedures then negative consequences may follow. B. Costs Awards Against Lawyers 1. The Court’s Jurisdiction to Control Litigation and Lawyers [51] Recent jurisprudence, and particularly Jodoin, has clarified the court’s supervisory function in relation to lawyers.

This is afacet of the inherent jurisdiction of a court to manage and control its own proceedings, which is reviewed in the often-cited paper by I HJacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg Probs 23.

The management and control power is a common lawauthority possessed by both statutory and inherent jurisdiction courts (Jodoin at para 17), that: ... flows the right and duty of the courts to supervise the conduct of the lawyers who appear before them and to note, and sometimespenalize, any conduct of such a nature as to frustrate or interfere with the administration of justice ... [Citations omitted.] (Jodoin at para 18.) [52] Jodoin at paras 21, 24 discusses two separate court-mediated lawyer discipline mechanisms, contempt of court vs awards ofcosts.

While “the criteria ... are comparable”, these two processes are distinguished in a functional sense by the degree of proof, thepossibility of detention, and the implications of a sanction on a lawyer’s career: ... Contempt of court is strictly a matter of law and can result in harsh sanctions, including imprisonment. In addition, the rules ofevidence that apply in a contempt proceeding are more exacting than those that apply to an award of costs against a lawyer personally, ascontempt of court must be proved beyond a reasonable doubt.

Because of the special status of lawyers as officers of the court, a courtmay therefore opt in a given situation to award costs against a lawyer personally rather than citing him or her for contempt ... ... In most cases ... the implications for a lawyer of being ordered personally to pay costs are less serious than [a finding of contempt or lawsociety discipline].

A conviction for contempt of court or an entry in a lawyer’s disciplinary record generally has more significant andmore lasting consequences than a one-time order to pay costs. ... [53] Of course, lawyers are also potentially subject to professional discipline by their supervising Law Society.

Gascon J in Jodoinat paras 20, 22, citing R v Cunningham, 2010 SCC 10 at para 35, [2010] 1 SCR 331, is careful to distinguish how professional disciplineand court sanction for lawyer misconduct are distinct processes with separate purposes: The power to control abuse of process and the judicial process by awarding costs against a lawyer personally applies in parallel with thepower of the courts to punish by way of convictions for contempt of court and that of law societies to sanction unethical conduct by theirmembers. ...

As for law societies, the role they play in this regard is different from, but sometimes complementary to, that of the courts. They have, ofcourse, an important responsibility in overseeing and sanctioning lawyers’ conduct, which derives from their primary mission ofprotecting the public ... However, the judicial powers of the courts and the disciplinary powers of law societies in this area can bedistinguished, as this Court has explained as follows: The court’s authority is preventative — to protect the administration of justice and ensure trial fairness. The disciplinary role of the lawsociety is reactive.

Both roles are necessary to ensure effective regulation of the profession and protect the process of the court. [54] The Canadian courts’ inherent jurisdiction extends to review of lawyers’ fees (Mealey (Litigation guardian of) v Godin(1999), (NB CA), 179 DLR (4th) 231 at para 20, 221 NBR (2d) 372 (NBCA)).

[55] Inherent jurisdiction provides the authority for a court to scrutinize and restrict persons who attempt to act as a litigationrepresentative. This usually emerges in relation to problematic layperson representatives. For example, in R v Dick, 2002 BCCA 27, 163BCAC 62, the British Columbia Court of Appeal evaluated whether an agent with a history of abusive litigation activities should bepermitted to act as a representative.

The British Columbia Court of Appeal concluded courts have a responsibility to ensure persons whoappear before the court are properly represented, and more generally to maintain the integrity of the court process: para 7. Permission toact as an agent is a privilege subject solely to the court’s discretion: para 6. A person who is dishonest, shows lack of respect for the law,or who engaged in litigation abuse is not an appropriate agent.

Similar results were ordered in Gauthier v Starr, 2016 ABQB 213, 86CPC (7th) 348; Peddle v Alberta Treasury Branches, 2004 ABQB 608, 133 ACWS (3d) 253; R v Maleki, 2007 ONCJ 430, 74 WCB(2d) 816; R v Reddick, 2002 SKCA 89, 54 WCB (2d) 646; The Law Society of B.C. v Dempsey, 2005 BCSC 1277, 142 ACWS (3d) 346,affirmed 2006 BCCA 161, 149 ACWS (3d) 735. [56] It seems to me that the same should be true for lawyers.

Appellate jurisprudence is clear that courts possess an inherentjurisdiction to remove a lawyer from the record, though this usually occurs in the context of a conflict of interest, see for exampleMacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235 at 1245, 77 DLR (4th) 249. I see no reason why a Canadiancourt cannot intervene to remove a lawyer if that lawyer is not an appropriate court representative. While that is undoubtedly an unusualstep, rogue lawyers are not unknown.

For example, the Law Society of Upper Canada has recently on an interim basis restricted theaccess of a lawyer, Glenn Patrick Bogue, who was advancing abusive and vexatious Organized Pseudolegal Commercial Argument[“OPCA”] concepts (Meads v Meads, 2012 ABQB 571, 543 AR 215) in a number of court proceedings across Canada: Law Society ofUpper Canada v Bogue, 2017 ONLSTH 119.

It is disturbing that this vexatious litigation had been going on for over a year. [57] In relation to control of problematic lawyers I note that the Judicature Act, s 23.1(5) indicates that what are commonly called“vexatious litigant orders” cannot be used to restrict court access by a lawyer or other authorized person, provided they are acting as therepresentative of an abusive and vexatious litigant: An order under subsection (1) or (4) may not be made against a member of The Law Society of Alberta or a person authorized undersection 48 of the Legal Profession Act when acting as legal counsel for another person. [58] Arguably,

section 23.1(5) is intended to extinguish this Court’s inherent jurisdiction to impose some supervisory orpreliminary review element to a lawyer’s court filings. While I will not continue to investigate the operation of this provision, I questionwhether Judicature Act, s 23.1(5) is constitutionally valid, since it purports to extinguish an element of the Alberta superior court’sinherent jurisdiction to control its own processes, but does not provide for an alternative agency or tribunal that can take steps of thiskind.

Any argument that the Legislature has delegated that task to the Law Society of Alberta fails to acknowledge the distinct andseparate court-mediated lawyer-control functionality identified by the Supreme Court of Canada in Jodoin and its predecessorjudgments. 2. The Nuremberg Defence - I Was Just Following Orders [59] Lawyers are subject to a number of different forms of legal duties and responsibilities. They are employees of their client, andare bound by the terms of that contract.

But a lawyer’s allegiance is not solely to whoever pays their bills. [60] When lawyers are admitted to the Alberta Bar a lawyer swears an oath of office that includes this statement: That I will as a Barrister and Solicitor conduct all causes and matters faithfully and to the best of my ability. I will not seek to destroyanyone’s property. I will not promote suits upon frivolous pretences. I will not pervert the law to favor or prejudice anyone, but in allthings will conduct myself truly and with integrity.

I will uphold and maintain the Sovereign’s interest and that of my fellow citizensaccording to the law in force in Alberta. [Emphasis added.] This is not some empty ceremony, but instead these words are directly relevant to a lawyer’s duties, and the standard expected of him orher by the courts: Osborne v Pinno (1997), (AB KB), 208 AR 363 at para 22, 56 Alta LR (3d) 404 (Alta QB);Collins v Collins, 1999 ABQB 707 at para 26, 180 DLR (4th) 361. [61] This duty is also reflected in the Law Society of Alberta Code of Conduct.

Though that document largely focuses on lawyers’duty to their clients and interactions with the Law Society, the Code of Conduct also requires that a lawyer operate “... honourably withinthe limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.”:

Chapter 5.1-1. The Code of Conduct thencontinues in

Chapter 5.1-2 to identify prohibitions, including that a lawyer may not: • abuse a tribunal by proceedings that are motivated by malice and conducted to injure the other party (Chapter 5.1-2(a)); • “take any step ... that is clearly without merit” (Chapter 5.1-2(b)); • “unreasonably delay the process of the tribunal” (Chapter 5.1-2(c)); • knowingly attempt to deceive the court by offering false evidence, misstating facts or law, or relying on false or deceptiveaffidavits (Chapter 5.1-2(g)); • knowingly misstate legislation (Chapter 5.1-2(h)); • advancing facts that cannot reasonably be true (Chapter 5.1-2(i)); and • failure to disclose relevant adverse authorities (Chapter 5.1-2(n)). [62] The Code of Conduct

chapter citations above are to the replacement Code of Conduct that came into force on November 1,2011. Interestingly, I was only able to locate one reported post-2011 Law Society of Alberta Hearing Committee decision that referencesChapter 5.1-1 or the 5.1-2 subsections, Law Society of Alberta v Botan, 2016 ABLS 8, where lawyer’s abuse of court processes led to a

one-day suspension. [63] Regardless, there is no question that lawyers have a separate, distinct, and direct obligation to the Court. As Justice Gasconrecently stated in Jodoin at para 18: ... As officers of the court, lawyers have a duty to respect the court’s authority.

If they fail to act in a manner consistent with their status,the court may be required to deal with them by punishing their misconduct ... [64] Similarly Law Society of British Columbia v Mangat, 2001 SCC 67 at para 45, [2001] 3 SCR 113, states that lawyer’s statusas officers of the court means: … they have the obligation of upholding the various attributes of the administration of justice such as judicial impartiality andindependence, as well as professional honesty and loyalty. [65] Gavin MacKenzie in a paper titled “The Ethics of Advocacy” (

(2008) The Advocates Society Journal 26) observed that alawyers duty to his or her client vs the court “... are given equal prominence ...”. [66] The Alberta Court of Appeal has repeatedly indicated that the lawyers who appear in Alberta courts have an independent andseparate duty to those institutions. For example, in R v Creasser, 1996 ABCA 303 at para 13, 187 AR 279, the Court stressed: ... the lawyer who would practise his profession of counsel before a Court owes duties to that Court quite apart from any duty he oweshis client or his profession or, indeed, the public.

That these duties are sometimes expressed as an ethical responsibility does not detractfrom the reality that the duties are owed to the Court, and the Court can demand performance of them. The expression “officer of theCourt” is a common if flowery way to emphasize that special relationship. In Canada, unlike some other common law jurisdictions, theCourts do not license lawyers who practise before them, and do not suspend those licences when duties are breached.

But that restraintdoes not contradict the fact that special duties exist. ... [Emphasis added.] [67] The professional standards expected of a lawyer as an officer of the court equally apply when a lawyer represents themselves.“[t]he lawyer as Plaintiff stands in a different position than a layman as Plaintiff.”: Botan (Botan Law Office) v St. Amand, 2012 ABQB260 at paras 72-77, 538 AR 307, aff’d 2013 ABCA 227, 553 AR 333.

As Rooke J (as he then was) explained in Partridge Homes Ltd vAnglin, [1996] AJ No 768 at para 33 (QL), 1996 CarswellAlta 1136 (Alta QB): ... it is significant that he is a member of the Law Society of Alberta. If he were not, one could apply the standard of conduct of anordinary citizen, and excuse some conduct for which an ordinary citizen might be ignorant or from which he or she would be otherwiseexcused.

In my view such is not the case for an active practising member of the Law Society of Alberta, who has a standard to meet,regardless of his technical capacity of appearance, merely by virtue of that membership ... [68] Having countervailing obligations means that a lawyer’s obligations to his or her client vs the Court may conflict, and judgeshave long recognized that fact. This is the reason why courts are cautious about applying potential sanctions again lawyers.

AsMcLachlin J (as she then was) observed in Young v Young, (SCC), [1993] 4 SCR 3 at 136, 108 DLR (4th) 193, a courtshould be mindful that sanctions directed to a lawyer may interfere with that lawyer’s execution of his or her duties: ... courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guardconfidentiality of instructions and to bring forward with courage even unpopular causes.

A lawyer should not be placed in a situationwhere his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling. [69] What this does not mean, however, is that a lawyer can simply point at a client and say abuse of the court is the client’s fault,and I am just doing my job. In LC v Alberta, 2015 ABQB 84 at para 248, 605 AR 1 my colleague Graesser J captured this principle in acolourful but accurate manner: “I was just following orders” does not work as a defence for lawyers any more than it worked for the Watergate burglars or atNuremburg.

Lawyers also owe a duty of candour to their opponents and have duties to the court regarding appropriate professionalpractices. [70] I agree. There are kinds of litigation misconduct where responsibility falls not just on the client, but also the lawyer whorepresents and advocates for that client. This judgment will explore that and chiefly investigate the award of costs against a lawyer on thebasis of “unfounded, frivolous, dilatory or vexatious proceeding[s]”, rather than the deliberate dishonest or malicious misconductalternative branch, identified in Jodoin at para 29. 3.

No Constitutional Right to Abusive Litigation [71] Though there should not have been any doubt on this point, McLachlin CJC has recently in Trial Lawyers Association ofBritish Columbia v British Columbia (Attorney General) at para 47 confirmed that: ... There is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increaseefficiency and overall access to justice. [Emphasis added.] [72] I cannot see how this principle would apply differently for a self-represented litigant, or a person represented by a lawyer.

Alawyer is a mechanism through which a client interacts with the Court and other court participants. However, a lawyer is not anautomaton that does only what the client instructs. The preceding review explicitly indicates lawyers have duties to more than just theirclients. They are not required to do whatever they are told. [73] I stress - there is no right to engage in this kind of litigation. Abusive litigation may be blocked, and actions may be taken topunish and control court participants who engage in this kind of litigation misconduct. Steps of that kind are appropriate to enhance

access to justice and protect badly over-taxed court resources. Lawyers have a clear obligation not to promote abuse of court processes. [ 74 ] I therefore conclude any lawyer who acts on behalf of a client who engages in frivolous, vexatious, or abusive litigation is potentially personally subject to a costs award. A lawyer who is the mechanism to conduct frivolous, vexatious, or abusive litigation is not merely acting contrary of his or her obligations to the courts and other litigants. This is also a breach of a lawyer’s obligations to his or her own client .

By facilitating that misconduct the lawyer ‘digs a grave for two.’ [ 75 ] Restating this point: 1. clients have no right to engage in abusive litigation; 2. lawyers have obligations as professionals and as officers of the court to not misuse court resources and processes. Combined, lawyers who advance litigation that is an abuse of court have no right to do so. Instead, that is a breach of the lawyer’s obligations. Any lawyer who does so is an accessory to their client’s misconduct. 4.

An Exceptional Step [ 76 ] Appellate jurisprudence that discusses costs awards against lawyers sometimes describes that step as “exceptional”, or “rare”. For example, in Jodoin , at para 29 , Gascon J writes: ... 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. ...

See also R v 974649 Ontario Inc. , 2001 SCC 81 at para 85 , [2001] 3 SCR 575. [ 77 ] What these decisions are trying to capture is the fact that most of the time lawyers conduct themselves properly. Costs awards are presumptively awarded in civil litigation anytime a party is unsuccessful in an action or application ( Rule 10.29(1)), but a lack of success does not necessarily mean actual bad litigation. An additional characteristic, abuse of the court and its processes, is what transforms a simple litigation failure into misconduct that may attract a costs award against a lawyer, personally.

Fortunately, that ‘added layer’ is not a common occurrence. Most lawyers are responsible and responsive to their obligations. [ 78 ] In my opinion this language does not mean that lawyers are subject to a different and reduced standard from other persons who interact with the courts. Saying a costs award against a lawyer personally is “exceptional” does not mean that a lawyer can say that he or she is immune to a costs award because that lawyer may have abused court processes, but that abuse was not “exceptional”. Abuse is abuse. [ 79 ] Jodoin , in fact, makes that clear.

Paragraph 29 continues to make that point explicit: ... 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 ... [Emphasis added.] [ 80 ] What constitutes “serious abuse” is a separate question. However Alberta courts have been developing guidelines and principles to test when court intervention is warranted to control litigant activities. This jurisprudence is also helpful to test when a lawyer has engaged in “serious abuse”. 5.

Abuse of the Court [ 81 ] Alberta decisions have collected and categorized types of litigation misconduct which are a basis on which to conclude that a litigant is “vexatious”. These “indicia” are then each a potential basis to restrict a litigant’s access to court.

Put another way, these “indicia” are a basis to potentially conclude that a litigant is not a ‘fair dealer’, and so his or her activity needs to be monitored and controlled. [ 82 ] Chutskoff v Bonora , 2014 ABQB 389 at para 92 , 590 AR 288, aff’d 2014 ABCA 444 is the leading Alberta authority on the elements and activities that define abusive litigation. That decision identifies eleven categories of litigation misconduct which can trigger court intervention in litigation activities.

These “indicia” are described in detail in Chutskoff v Bonora , however for this discussion it is useful to briefly outline those categories: 1. collateral attacks, 2. hopeless proceedings, 3. escalating proceedings, 4. bringing proceedings for improper purposes, 5. conducting “busybody” lawsuits to enforce alleged rights of third parties, 6. failure to honour court-ordered obligations, 7. persistently taking unsuccessful appeals from judicial decisions, 8. persistently engaging in inappropriate courtroom behaviour,

9. unsubstantiated allegations of conspiracy, fraud, and misconduct, 10. scandalous or inflammatory language in pleadings or before the court, and 11. advancing OPCA strategies. [ 83 ] Subsequent jurisprudence has identified two other categories of litigation misconduct that warrant court intervention to control court access: 1. using court processes to further a criminal scheme ( Re Boisjoli , 2015 ABQB 629 at paras 98-103 ), and 2. attempts to replace or bypass the judge hearing or assigned to a matter, commonly called “judge shopping” ( McCargar v Canada , 2017 ABQB 416 at para 112 ). [ 84 ] While each of these “indicia” is a basis to restrict court access, reported judgments that apply the Chutskoff v Bonora have instead reviewed the degree of misconduct in each category to assess its seriousness.

For example, in 644036 Alberta Ltd v Morbank Financial Inc , 2014 ABQB 681 at paras 71 , 85, 26 Alta LR (6th) 153; Ewanchuk v Canada (Attorney General) at para 136 ; Re Boisjoli , 2015 ABQB 629 at para 89 the presence of some “indicia” was not, alone, a basis to make a vexatious litigant order.

These were, instead, “aggravating” factors. [ 85 ] Similarly, vexatious litigant judgments frequently conclude that the presence of multiple Chutskoff v Bonora “indicia” cumulatively strengthen the foundation on which to conclude court intervention is warranted in response to abusive litigation conduct: Ewanchuk v Canada (Attorney General) at para 159 ; Chutskoff v Bonora at para 131 ; Re Boisjoli , 2015 ABQB 629 at para 104 ; Hok v Alberta at para 39; 644036 Alberta Ltd v Morbank Financial Inc at para 91 . [ 86 ] In R v Eddy , 2014 ABQB 391 at para 48 , 583 AR 268, Marceau J awarded costs against a self-represented litigant in a criminal matter, and used the Chutskoff v Bonora “indicia” as a way to help test the seriousness of the litigation abuse.

These were “aggravating” factors: I conclude that the characteristics of vexatious litigation, including those as identified in Judicature Act, s 23(2) and the common law authorities recently and comprehensively reviewed in Chutskoff v Bonora, 2014 ABQB 389 are ‘aggravating’ factors that favour a cost award against a criminal accused.

These indicia form a matrix of traits that are shared by the kind of litigation misconduct that calls for court response and deterrence . [Emphasis added.] I note R v Eddy applies a costs award analysis developed in Fearn v Canada Customs , 2014 ABQB 114 , 586 AR 23, which is cited with approval in Jodoin at paras 25, 27 . [ 87 ] Similarly, Master Smart in Lymer (Re) , 2014 ABQB 674 at paras 34-35 , 9 Alta LR (6th) 57 applied the Chutskoff v Bonora “indicia” as a way to evaluate whether a litigant had acted in contempt of court.

In Kavanagh v Kavanagh , 2016 ABQB 107 at para 99 , Shelley J concluded the presence of Chutskoff v Bonora “indicia” meant she should take additional steps to protect the interests of a potentially vulnerable third party to litigation. [ 88 ] I see the Chutskoff v Bonora “indicia” as a useful tool to test whether a lawyer’s conduct is “serious abuse” warranting that costs be ordered against that lawyer.

Each individual abusive conduct category is potentially relevant, and together these factors may operate in a cumulative manner. [ 89 ] In this discussion of the potential application of the Chutskoff v Bonora “indicia” I acknowledge that Gascon J in Jodoin is explicit that when a court examines whether a costs award should be made against a lawyer that the court’s attention should focus on the specific conduct that has attracted court scrutiny.

Justice Gascon stresses that an investigation of a particular instance of potential litigation misconduct should be restricted to the specific identified litigation misconduct and not put the lawyer’s “career[,] on trial”: para 33. A lawyer costs award analysis is not a review of the lawyer’s “entire body of work”, though external facts may be relevant in certain circumstances: paras 33-34. [ 90 ] This means for the purposes of a Jodoin lawyer costs analysis the Chutskoff v Bonora “indicia” will need to be adapted to the specific context.

For example, a history of persistent through futile appeals is only relevant to a potential order of costs against a lawyer where the alleged abusive litigation is a persistent abusive appeal. Other Chutskoff v Bonora “indicia” have broader implications.

An action where there is no prospect for success may not, in itself, illustrate a “serious abuse” of the court, but where the action also features scandalous or inflammatory language that may lead a judge to conclude the lawyer is deliberately acting in breach of his or her duties. [ 91 ] I will later discuss how certain kinds of litigation misconduct will, on their own, in most cases represent a basis to order costs against a lawyer. However, first, it is important to consider whether litigation misconduct is deliberate. 6. Knowledge and Persistence [ 92 ] Lawyers make mistakes.

They sometimes get the law wrong, miss a key authority, overlook a critical fact, or simply become confused. [ 93 ] What Jodoin and other decisions indicate is that a misstep such as a “mere mistake or error of judgment” is not a basis, in itself, for an order of costs against a lawyer. Something higher is necessary, for example gross negligence (para 27) or deliberate misconduct (para 29).

One way of satisfying a higher standard of proof, even to “beyond a reasonable doubt”, is where a court concludes an actor is “willfully blind” to the fact their actions are wrong. [ 94 ] A mistake, in itself, is therefore not often likely to be a basis to order costs against a lawyer, though the presence of Chutskoff

v Bonora “indicia” may lead to a conclusion that a purported mistake was not honest, but instead a stratagem.

What is more damning,however, is when a lawyer advances frivolous, vexatious, or abusive litigation in the face of warnings of exactly that. [95] For example, a costs award would rarely be warranted against a lawyer if: 1. a lawyer had made an argument, application, or proceeding based on a false statement of law, an invalid authority, or othermistake; 2. that error was identified by another party or the court; and 3. the lawyer then acknowledged the error and abandoned the argument, application, or proceeding.

Of course, party and party costs would still be presumptively due against the litigant (Rule 10.29(1)), but at least the lawyer had takensteps to conduct ‘damage control’, and that should be encouraged and respected. [96] However, where a lawyer persists despite being warned or alerted, then a court may apply the often stated rule that a personmay be presumed to intend the natural consequence of their actions: Starr v Houlden, (SCC), [1990] 1 SCR 1366, 68DLR (4th) 641. In that context a court may conclude that a lawyer who is breaking the rules knows what the rules are, but has proceededand broken them anyway.

That will create a strong presumption that a costs award is appropriate for a lawyer who engaged in what is,effectively, deliberate misconduct. 7. Examples of Lawyer Misconduct that Usually Warrant Costs [97] With that foundation in place, I believe it is useful to provide a non-exclusive set of scenarios where a lawyer will likely be apotential valid target for a personal costs award. Again, I stress that anytime a court considers whether to make a costs award of this kindthe analysis should be contextual. Exceptional circumstances are no doubt possible.

That said, there are some ground rules that anyreasonable lawyer would be expected to know and follow. Some of these examples will overlap with the Chutskoff v Bonora “indicia”because, naturally, neither a lawyer nor litigant should expect a court to stand by and tolerate certain abusive behaviour. a.

Futile Actions and Applications [98] Conducting a futile action or application is a potential basis for an award of costs against a lawyer, particularly where thecourt concludes the lawyer has advanced this litigation knowing that it is hopeless, or being willfully blind as to that fact. [99] A key category of futile action that warrants court sanction is a collateral attack. This is where litigation seeks to undo orchallenge the outcome of another court case.

A collateral attack is a breach of a cornerstone of the English tradition common law - theprinciple of res judicata - that once a court has made a decision and the appeal period has ended, then that decision is final. This is abasic principle of law taught to every lawyer. Collateral attacks are serious litigation misconduct because they waste court and litigantresources. A collateral attack inevitably fails in the face of res judicata. [100] Similarly, litigation conducted in the face of a binding authority may render that action futile.

A court literally cannot ignorestare decisis, and any lawyer should know that. Defying identified binding authority leads to the presumption that the lawyer isintending the natural consequence. That said, this does not mean that a lawyer should automatically be subject to a potential costs awardif that lawyer has advanced a basis for why an established rule is incorrect, or should be modified, or how this case is somehow factuallyor legally different. However, simply telling the trial judge to ignore a court of appeal or Supreme Court of Canada decision indicates abad litigation objective.

Similarly, claims to distinguish binding jurisprudence on an arbitrary basis that is unrelated to the principle(

s) inplay implies an attempt to circumvent stare decisis. [101] Other examples of futile litigation are litigation in the wrong venue, premature appeals or judicial reviews, or actions that seekimpossible or grossly disproportionate remedies. A lawyer who seeks general damages near the Andrews v Grand & Toy Alberta Ltd., (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 maximum for a modest injury raises the presumption that the lawyerintended this breach of an obvious and well-established legal rule; overstating the damages claimed was deliberate. That is doubly so ifthe maximum were exceeded.

Courts are permitted to read between the lines and, in the context of the “culture shift”, inquire what itmeans when a client and his or her lawyer advance a dubious, overstated claim. [102] An application made outside a limitations period and without any explanation is another example of a futile action which putsthe lawyer’s motivation in doubt. [103] All of these prior examples should be examined in context. Knowledge (obvious or implied) of the critical defect will often bean important factor.

Again, a lawyer who makes a misstep but then corrects it will usually not be liable for litigation costs, personally.The Chutskoff v Bonora “indicia” may, however, tip the balance. b. Breaches of Duty [104] Another category of litigation conduct which will usually attract a costs award against a lawyer is where a lawyer has breacheda basic aspect of their responsibility to the courts and clients.

As I have previously indicated, the Court’s supervisory function includesscrutinizing whether an in-court representative is qualified for that task. [105] For example, Morin v TransAlta Utilities Corporation, 2017 ABQB 409 involved a lawyer who had conducted litigation onbehalf of persons who were not his clients. He had no authority to represent them. Graesser J concluded, and I agree, that this kind ofmisconduct would almost always warrant costs paid personally by that lawyer.

This is a form of “busybody” litigation, one of theChutskoff v Bonora “indicia”, but for a lawyer this action is in clear violation of both their professional duties and is a basic andprofound abuse of how courts trust lawyers to speak in court on behalf of others.

[106] Similarly, a lawyer who is aware of but does not disclose relevant unfavourable jurisprudence or legislation runs the risk ofbeing subject to a personal costs penalty, particularly if the concealed item is a binding authority. This disclosure requirement is anobligation under the Law Society of Alberta Code of Conduct, but is even more critically an aspect of a lawyer’s role and duties as anofficer of the court. The simple fact is that judges rely on lawyers to assist in understanding the law.

Intentionally omitting unfavourablecase law has no excuse, and does nothing but cause unnecessary appeals, unjust results, and the waste of critical resources. [107] The same is true for a lawyer who does not discharge their duty to provide full disclosure during an ex parte proceeding. It istoo easy for a monologue to lead to spurious and unfair results. A judge has no way to test evidence in that context. This scenario createsa special and elevated obligation on a lawyer as an officer of the court, see Botan (Botan Law Office) v St. Amand. c.

Special Forms of Litigation Abuse [108] Certain kinds of litigation abuse will attract special court scrutiny because of their character and implications. [109] For example, habeas corpus is an unusual civil application that has a priority ‘fast track’ in Alberta courts. As I explained inEwanchuk v Canada (Attorney General) at paras 170-187, abuse of this procedure has a cascading negative effect on court function.Further, the potential basis and remedy for habeas corpus is extremely specific and specialized. Habeas corpus may only be used tochallenge a decision to restrict a person’s liberty.

The only remedy that may result is release. A lawyer who makes a habeas corpusapplication which does not meet those criteria can expect the possibility of a personal costs award. This kind of application is “seriousabuse” because of how it damages the court’s effective and efficient functioning. [110] OPCA strategies, a category of vexatious and abusive litigation that was reviewed by Rooke ACJ in Meads v Meads, areanother special form of litigation abuse that will almost certainly be a basis for a costs award against a lawyer.

In brief, these are legal-sounding concepts that are intended to subvert the operation of courts and the rule of law. These ideas are so obviously false anddiscounted that simply employing these concepts is a basis to conclude a party who argues OPCA motifs intends to abuse the courts andother parties for an ulterior purpose: Fiander v Mills, 2015 NLCA 31, 368 Nfld & PEI R 80.

The same is true for a lawyer who invokesOPCA concepts. [111] Another special category of litigation abuse that may attract a costs award against a lawyer personally is the practice of bookinga hearing or an application in a time period that is obviously inadequate for the issues and materials involved. For example, a lawyer mayappear in Chambers and attempt to jam in an application that obviously requires a full or half day, rather than the 30 minute time slotallotted.

The end result will either be an incomplete application, an application that goes overtime and disrupts the conduct of theChambers session, or that the judge who received the application simply orders it re-scheduled to a future appearance with theappropriate duration. [112] In criticizing this practice I understand why it happens. The Alberta Court of Queen’s Bench is no longer able to respond tolitigants in a timely manner due to the now notorious failure of governments to maintain an adequate judicial complement, facilities, andsupporting staff.

In Ewanchuk v Canada (Attorney General), at para 178 I reported how long persons must wait to access this court, forexample waiting over a year to conduct a one-day special chambers hearing. While preparing this judgment I checked to see if thingshave improved. They haven’t. [113] When people attempt to ‘game the system’, and jump the que, that simply makes things worse. Again, in saying this, I am notdenying that I understand the reason why this happens. It is just this ship is riding low in the water, if not sinking.

Placing unanticipatedpressures on this institution only makes things worse. [114] Lawyers have a special responsibility in the efficient management and allocation of limited court resources. They are the oneswho are best positioned to accurately estimate the time needed for a court procedure, a hearing, or a trial. Lawyers cause great andcascading harm when they try to squeeze large pegs into small holes. The result is the surrounding wood shatters. A lawyer should notbe surprised if this Court concludes the lawyer should personally face costs for this pernicious practice. It must stop.

In one sense oranother, we are all on the same (sinking) ship. Don’t make it capsize. d. Delay [115] Delay is an increasing issue in both civil and criminal proceedings in Canada. R v Jordan and R v Cody challenge the “cultureof complacency” which has led to long and unacceptable pre-trial delays. These two decisions demand all court actors take steps toensure ‘justice delayed is not justice denied.’ [116] Jodoin also makes explicit that when a lawyer represents a client, delays in a civil proceeding may be a basis to order costs arepaid by the lawyer.

In Pacific Mobile Corporation v Hunter Douglas Canada Ltd., (SCC), [1979] 1 SCR 842, 26 NR453 unnecessary repeated adjournments were one of the bases that Pigeon J identified for the award of costs against lawyers, personally.In Jodoin at para 29 Gascon J identifies “dilatory” proceedings as a basis for targeting a lawyer for costs: ... lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderlyconduct of the judicial process in a calculated manner. ... [117] Avoiding delay is clearly a priority in the new post-“culture shift” civil litigation environment, but since this particular factor isnot in play in the current costs proceeding I will not comment further on this basis for a potential costs award against a lawyer.

Thiscomplex subject is better explored in the context of a fact scenario that involves potentially unnecessary or unexplained adjournments,and other questionable procedures that caused delay. C. Conclusion

[118] The Supreme Court of Canada has now provided clear guidance that Canada’s legal apparatus can only operate, provide “accessto justice”, by refocussing the operation of courts to achieve “fair and just” results, but in a manner that is proportionate to the issues andinterests involved. I have reviewed some of the aspects of this “culture shift”. [119] This objective involves many actors. Parliament and the legislatures should design procedures and rules that better align withthis objective.

Some kinds of disputes, such as family law matters that involve children, are poor matches for the adversarial courtcontext. Judges and courts should develop new approaches, both formal and informal, to better triage, investigate, and resolve disputes.Judicial review and appeal courts should be mindful to limit their intrusion into the operation of subordinate tribunals. [120] Litigants and their lawyers have a

part in this. Hryniak v Mauldin, R v Jordan, R v Cody, and now Jodoin indicate that inCanada being in court is a right that comes with responsibilities. Lawyers are a critical interface between the courts and the lay public.Their conduct will be scrutinized in this new reality. The door of “access to justice” swings open or drops like a portcullis depending onhow the courts and their resources are used. Personal court costs awards against lawyers are simply a tool to help the court apparatusfunction, and ultimately that is to everyone’s benefit. V.

Priscilla Kennedy’s Litigation Misconduct [121] I reject that ‘litigating from one’s heart’ is any defence to a potential costs award vs a lawyer, or for that matter from any othersanction potentially faced by a lawyer. Lawyers are not actors, orators, or musicians, whose task is to convey and elicit emotions. Theyare highly trained technicians within a domain called law. A perceived injustice is no basis to abuse the court, breach one’s oath ofoffice, or your duties as a court officer. [122] When a lawyer participates in abusive litigation that lawyer is not an empty vessel, but an accessory to that abuse.

Persons aresubject to sanctions including imprisonment where they engage in misconduct but are willfully blind to that wrongdoing. Lawyers haveresponsibilities and are held to a standard that flows from their education and training, and it is on that basis that Canadian courts givethem a special trusted status. Abuse of that trust will have consequences. [123] Turning to Stoney’s lawyer, Priscilla Kennedy, there are two main bases on which Ms. Kennedy may be liable for a court-ordered costs award against her, personally. A.

Futile Litigation [124] First, the August 12, 2016 application filed by Kennedy on behalf of Stoney was clearly an example of futile litigation. This isdetailed in Sawridge #6 at paras 38-52. [125] The August 12, 2016 application seeks to have Stoney added as a beneficiary of Sawridge 1985 Trust because he says he is infact and law a member of the Sawridge Band. Stoney was refused membership in the Sawridge Band and challenged that result inFederal Court by judicial review, where his application was rejected: Stoney v Sawridge First Nation, 2013 FC 509, 432 FTR 253. TheFederal Court decision was not appealed.

Kennedy was Stoney’s lawyer in this proceeding. I concluded in Sawridge #6 that the August12, 2016 application was a collateral attack on the Federal Court’s decision and authority. It is “... an attack made in proceedings otherthan those whose specific object is the reversal, variation, or nullification of the order or judgment.”: Wilson v The Queen, (SCC), [1983] 2 SCR 594 at 599, 4 DLR (4th) 577. [126] I have previously commented on how a collateral attack is a very serious form of litigation misconduct that is a basis for courtintervention and response.

Kennedy was perfectly aware of the result in Stoney v Sawridge First Nation. She was Stoney’s lawyer inthat proceeding. Further, the arguments made against Stoney by the Sawridge Band and the Sawridge 1985 Trust Trustees made clearthat Kennedy was attempting to re-litigate on the same ultimate subject. [127] My review of Stoney’s submissions in Sawridge #6 and the reported Stoney v Sawridge First Nation arguments illustrates thatKennedy’s arguments in these two proceedings are effectively the same. Kennedy brought nothing novel to the Sawridge #6 dispute. [128] It gets worse.

Not only was Stoney v Sawridge First Nation judicial review unsuccessful, but in that decision Justice Barnes atpara 16 observed that Maurice Stoney had raised the same claim years earlier, in Huzar v Canada, [2000] FCJ 873, 258 NR 246 (FCA),and in that action at para 4 had acknowledged that Stoney had abandoned that aspect of the appeal because that claim “discloses noreasonable cause of action”.

Justice Barnes therefore at para 17 concluded (and I agree) that the result in Stoney v Sawridge First Nationwas already barred by issue estoppel - Stoney was attempting to “... relitigate the same issue that was conclusively determined in anearlier proceeding.” [129] Kennedy therefore did not merely engage in a hopeless proceeding before me. The Stoney v Sawridge First Nation judicialreview was also doomed from the start. Both actions were abuse of the courts.

Neither Stoney nor Kennedy had any right to waste courtand respondent resources in these actions. [130] Kennedy’s counsel admitted this is true, that the August 12, 2016 application was hopeless from the start, and an abuse of courtprocesses. [131] Acting to advance a futile action such as a collateral attack which proceeds in the face of objections on that ground is a clearbasis to find a lawyer has engaged in serious abuse of judicial processes, and to then order costs against the lawyer, personally. TheSawridge #6 application was an unfounded, frivolous, and vexatious proceeding.

This was a serious abuse not only because of thecharacter of the misconduct (a futile action), but that misconduct is aggravated because Kennedy had done the same thing with the sameclient before. There is a pattern here, and one that should be sharply discouraged. [132] This is the first basis on which I conclude that Priscilla Kennedy should be personally liable for litigation costs in the Sawridge

#6 application. B. Representing Non-Clients [ 133 ] The three affidavits presented by Kennedy do not establish that Maurice Stoney was authorized to represent his siblings. Even at the most generous, these affidavits only indicate that Bill and Gail Stoney gave some kind of oral sanction for Maurice Stoney to act on their behalf. I put no weight on the affidavit of Shelley Stoney.

It is hearsay, and presumptively inadmissible. [ 134 ] I note that none of these affidavits were supported by any form of documentation, either evidence or records of communications between Maurice Stoney and his siblings, or between Kennedy and her purported clients. [ 135 ] I make an adverse inference from the absence of any documentary evidence of the latter.

The fact that no documentation to support that Kennedy and the Stoney siblings communicated in any manner, let alone gave Kennedy authority to act on their behalf, means none exists. [ 136 ] There is no documentation to establish that Maurice Stoney applied to become a litigation representative or was appointed a litigation representative, per Rules 2.11-2.21. This is not a class action scenario where Maurice Stoney is a representative applicant.

While Kennedy has argued that Maurice Stoney’s siblings are elderly and unable to conduct litigation, then that is not simply a basis to arbitrarily add their names to court filing. Instead, a person who lacks the capacity to represent themselves ( Rule 2.11(c-d)) may have a self-appointed litigation representative ( Rule 2.14), but only after filing appropriate documentation ( Rule 2.14(4)).

That did not occur. [ 137 ] I therefore conclude on a balance of probabilities that Kennedy did not have instructions or a legal basis to file the August 12, 2016 application on behalf of “Maurice Felix Stoney and his brothers and sisters”. [ 138 ] I adopt the reasoning of Graesser J in Morin v TransAlta Utilities Corporation that a costs award against a lawyer is appropriate where that lawyer engages in unauthorized “busybody litigation”.

This is a deep and fundamental breach of a lawyer’s professional, contractual, and court-related obligations. [ 139 ] While at the July 28, 2017 hearing I concluded that no potential costs liability should be placed on Bill and Gail Stoney, I stress the potential deleterious consequences to these individuals for them being gathered into this Action in an uncertain and ill-defined manner.

The Sawridge Band and Trustees stressed the importance of informed consent, and I have no confidence that sort of consent was obtained for either Bill or Gail Stoney, let alone the other siblings of Maurice Stoney. [ 140 ] In any case, I order costs against Kennedy on the basis of her “busybody litigation”, but I believe that the submissions received in this costs application are a further aggravating factor given the potential of putting persons who are operationally non-clients at risk of court-imposed sanctions. This is a second independent basis that I find Kennedy should be liable to pay costs. C.

The Presence of Chutskoff v Bonora “Indicia” and other Aggravating Factors [ 141 ] As previously indicated, the presence of Chutskoff v Bonora “indicia” may assist the court in determining whether or not a lawyer has engaged in abusive litigation that is “serious abuse”. [ 142 ] A point that was in dispute at the Sawridge #6 application was whether or not Stoney had outstanding unpaid costs orders. This is a well-established indicium of vexatious litigation: Chutskoff v Bonora at para 92 .

This is a useful point to illustrate how, in my opinion, Jodoin instructs how a court ‘quarantines’ relevant vs extraneous evidence when the court evaluates a lawyer’s potential liability due to litigation abuse. One of the allegations that emerged was that Stoney had not paid the costs awarded against him in Stoney v Sawridge First Nation . If so, then that fact aggravates the fact Kennedy then conducted a collateral attack on the judicial review’s outcome.

Similarly, Maurice Stoney’s failure to pay costs in relation to the Stoney v 1985 Sawridge Trust appeal of Sawridge #3 is related to the August 12, 2016 application by both subject matter and as it occurred in the same overall litigation.

However, if Stoney had, hypothetically, not paid costs awarded in other actions where he was represented by Kennedy then that is of little relevance to this specific decision and the question of whether Kennedy should be liable for the Sawridge #6 costs award. [ 143 ] I conclude that the fact that Kennedy proceeded with the August 12, 2016 application while there were outstanding costs orders in relation to Stoney v Sawridge First Nation and Stoney v 1985 Sawridge Trust is an aggravating factor but not, in itself, a basis to order costs against Kennedy. [ 144 ] The Trustees and Band indicated I should consider Kennedy’s conduct during cross-examination of her client on his affidavit.

While I have reviewed that material I do not think it is germane to my analysis because Kennedy’s obstructionist conduct is distinct from the main bases for my award of costs against Kennedy. Similarly, the degree to which Kennedy was “holding the reins” of this litigation is not actually directly relevant to my analysis. What is critical is that the August 12, 2016 application had no merit.

Kennedy’s misconduct is essentially the same no matter whether she ‘was just following orders’, or ‘the person behind the wheel’. [ 145 ] Another factor which I conclude is relevant and aggravating is that the Stoney August 12, 2016 application attempts to off-load litigation costs on the 1985 Sawridge Trust. Stoney’s application seeks to have his entire litigation costs paid from the Trust. I would consider it a significant indication of good faith litigation intent if Stoney had acknowledged his litigation was ‘a long shot’, and acknowledged a willingness to cover the consequences to other involved parties.

Instead Stoney resisted an application by the Sawridge Band that he pay security for costs. [ 146 ] The attempted ‘offloading’ of litigation costs in this instance is not in itself a basis to conclude that Kennedy should be liable to pay her client’s court costs, but it favours that result. Stoney, whether he won or lost, sought to have the beneficiaries of an aboriginally owned trust pay for his (and his lawyer’

s) expenses.

[ 147 ] Another aggravating factor is that in Sawridge #2 I concluded at para 35 that this Court would not take jurisdiction to review the Sawridge Band membership process. That was the jurisdiction of the Federal Courts. Stoney and Kennedy ignored that instruction by advancing the Sawridge #6 application. [ 148 ] Last, I note that Stoney’s application has a special aggravating element. The intended relief was that Stoney be added as a member of an Indian Band.

There is no need to review and detail the extensive jurisprudence on the special sui generis character of aboriginal title, how aboriginal property is held in a collective and community-based manner, and the unique fiduciary relationship between the Crown and Canada’s aboriginal peoples. Suffice to say that membership i

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