Papaschase First Nation v McLeod, 2021 ABQB 698

Court of Queen’s Bench of Alberta Citation: Papaschase First Nation v McLeod , 2021 ABQB 698 Date: 20210831 Docket: 1903 21547 Registry: Edmonton Between: Chief Calvin Bruneau and Papaschase First Nation Plaintiffs - and - Sandra Larocque McLeod, Shaun Gearing, Delmar Lapratt, Elaine Ashley, Darlene St. Jean, George Quinn Jr., Debbie Lynn Metz and Frances Doreen Wabasca Defendants _______________________________________________________ Reasons for Decision on Costs of the Honourable Madam Justice Susan L.

Bercov _______________________________________________________ Introduction [ 1 ] The Defendants seek costs of this action after successfully applying to strike the action: Papaschase First Nation v McLeod, 2021 ABQB 415 . I struck the action because the Plaintiffs lacked legal capacity to sue and the Statement of Claim did not properly disclose a cause of action in favour of the named Plaintiffs.

[2] The Defendants ask for costs on an indemnity basis, $54,950.00 plus GST and disbursements, against the Plaintiffs’ lawyer,Mr. Wilfred Willier. [3] The Defendants argue that I should award costs against Mr. Wilfred Willier because the named Plaintiffs are fictitious andsuing in the names of fictious plaintiffs is contemptuous conduct. The Defendants seek full indemnity because of alleged improperconduct during the action and the hearing. [4] Despite being given several opportunities to respond to the Defendants written cost submission, Mr.

Willier did not respondto the cost submissions or my emails asking when he would respond. [5] The issues I must address in this cost decision are: a. Are the Defendants entitled to costs and, if so, against who? b. If the Defendants are entitled to costs, what is the appropriate compensation? [6] For the reasons that follow I conclude: a. The Defendants are entitled to costs against Calvin Bruneau; and b. The Defendants who are represented by Darlene Misik are entitled to one set of party-party costs for the action underColumn 4 of

Schedule C of the Alberta Rules of Court plus allowable disbursements and GST. a. Are the Defendants Entitled to Costs and, if so, against who? [7] The Defendants were successful in their application to strike the Statement of Claim. [8] The presumption in the Rules is that the successful party is entitled to costs. Exceptions can be made in appropriate cases:Elder Advocates of Alberta Society v Alberta Health Services, 2021 ABCA 67.

In determining a proper cost award, r 10.33 of theAlberta Rules of Court provides guidance on the factors to consider. [9] There are no factors in r 10.33, or otherwise, that justify departing from the presumptive rule that the successful party isentitled to costs. The real issue is who should pay the costs. [10] The Defendants argue that Mr. Willier, Plaintiffs’ counsel, should be responsible for costs because he sued in the names offictitious plaintiffs and he was put on notice in the filed Application that the Defendants were seeking costs against him personally.

TheDefendants note that there can be no enforcement against the named Plaintiffs because they are not legal entities. Accordingly, costsmust be awarded as against their solicitor. [11] In my decision granting the Defendants application to strike the action I directed that if the parties were unable to agree oncosts, they could submit a brief argument on costs within 60 days of May 27, 2021. On July 26, 2021 I received written cost submissionsfrom Defendants’ counsel. [12] I emailed Mr. Willier on July 28, 2021 asking him to advise when I could expect his response.

His assistant emailed that daystating that she would speak to Mr. Willier the next day and get back to me with a date. I did not hear again from Mr. Willier or hisassistant. On August 16, 2021, I again emailed Mr. Willier asking him to provide his cost submissions by August 23, 2021 or indicate byAugust 23 when he will be in a position to respond. I told Mr. Willier that if I did not hear from him by August 23, I would proceed withmy cost decision. I have not heard from Mr. Willier. While it would be helpful to know the positions of Mr.

Willier and the Plaintiffs, theDefendants are entitled to resolution of the cost issues. Where counsel does not respond to emails of the Court, the Court must proceed todetermine the issues. Analysis [13] An award of costs against a lawyer should only be granted in exceptional cases where there is a serious abuse of the judicialsystem by the lawyer that is deliberate: Morin v TransAlta Utilities, 2017 ABQB 409.

Lawyers must be free to vigorously advance theirclient’s rights without fear of reprisal if they are unsuccessful. [14] While the Defendants rely on Morin, the situation in Morin is distinguishable from this case. In Morin the evidence was clearthat Mr. Willier took steps in the action without any lawful authority. He did not have instructions to take the steps he did. In thatsituation it is only fair that he pays the costs. In this case there is no evidence that Mr.

Willier did not have instructions to sue on behalfof the named Plaintiffs. [15] The Defendants also rely on Jackson v Trimac Industries Ltd. (1993) (AB KB), 138 AR 161, varied onother grounds, 1994 ABCA 199, arguing that suing in the names of fictitious plaintiffs is contempt of court. I did not conclude in mydecision striking the action that the Plaintiffs were fictitious. I decided that the Plaintiffs lacked legal capacity to sue. The Plaintiffs wereoffered the chance to amend the Statement of Claim to sue on behalf of legal entities. They declined to do so.

It is not clear why theydeclined to substitute plaintiffs. In any event, I am not satisfied that suing on behalf of non-legal entities rises to the level of misconductrequired to award costs against a lawyer personally. [16] The Defendants have a right to pursue costs against a legal entity. I am satisfied that Mr. Bruneau is the driving force behind the action. Mr. Bruneau swore the Affidavits and attended questioning. At the application Mr.Willier argued that there is no difference between Calvin Bruneau and Chief Calvin Bruneau. Although I did not accept this argument, areasonable inference is that Mr.

Willier informed Mr. Bruneau that he faced liability for costs if the Defendants succeeded in the

application. In these circumstances I conclude that it is fair and appropriate to award costs against Calvin Bruneau. b. What Amount of Costs is Appropriate? [ 17 ] The Defendants seek to be indemnified for their costs in defending the action and bringing the application. The amount they seek is $54,950.00 plus GST and disbursements. [ 18 ] In support of their position, the Defendants rely on Jackson .

The Defendants argue they are entitled to solicitor-client costs, or alternatively, enhanced costs because of misrepresentations made at the hearing, a new legal argument made at the hearing and the necessity to make written submissions on costs. Analysis [ 19 ] Party-party costs is the presumptive rule for the successful party. While there is discretion to depart from party-party costs, the discretion should be exercised in rare and exceptional circumstances: Jackson .

Examples of the types of circumstances justifying a departure from party-party costs are set out in Jackson at para 28. [ 20 ] I am not satisfied that the conduct the Defendants rely on justifies a departure from party-party costs. The misrepresentation make to the court is about whether Defendants’ counsel “kicked out” the Plaintiffs from Questioning. Having read the transcript from the Questioning, it is not clear that the Plaintiffs made a misrepresentation to the Court. The new legal argument the Defendants rely on is Mr.

Willier’s statement during the hearing that the purpose of using the named Plaintiffs was to prevent “a free for all”. I do not consider this a new argument. Lastly, being required to make written submissions on costs is not a rare or exceptional circumstance. [ 21 ] In

summary, I am not persuaded that the Plaintiffs’ conduct amounts to the type of abusive conduct that warrants costs on an enhanced basis or on an indemnity basis. Conclusion [ 22 ] I conclude that the Defendants who retained Darlene Misik to represent them are entitled to recover one set of party-party costs for the action under Column 4 of

Schedule C of the Rules of Court plus allowable GST and disbursements against Calvin Bruneau. [ 23 ] If the parties cannot agree on a bill of costs, the Defendants should proceed to taxation. Heard on the 24 th day of March, 2021. Dated at the City of Edmonton, Alberta thi s 31st day of August, 2021. Susan L. Bercov J.C.Q.B.A. Appearances: Wilfred Willier of Willier and Company for the Plaintiffs Darlene M St. Jean (now known as Darlene M. Misik) of St. Paul Legal Services for the Respondents Sandra Larocque McLeod, Darlene St. Jean, George Quinn Jr. Delmar Lapratt

Self-represented