Kostic v Piikani Nation, 2024 ABKB 40

Court of King’s Bench of Alberta Citation: Kostic v Piikani Nation, 2024 ABKB 40 Date: 20240123 Docket: 0801 05039 Registry: Calgary Between: Liliana Kostic Plaintiff - and - Piikani Nation, as represented by its Chief in Council Defendant _______________________________________________________ Decision on Application of the Honourable Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Ms. Kostic seeks to have the damage assessment directed by the Alberta Court of Appeal in Kostic v Piikani Nation in 2017 ABCA 53 set down for hearing.

Background [ 2 ] In the decision cited above, the Court of Appeal stated at paragraphs 19 and 20: [19] The Nation agreed with Ms. Kostic that she would be the Nation’s investment advisor for a term of seven years. The Nation terminated that agreement prior to the expiration of the term. As a consequence Ms. Kostic was unable to earn that income. Typically, a plaintiff’s inability to earn income as a result of another’s breach of contract gives rise to a damage claim, but this is a matter for a trial court to assess. And in conducting that assessment, Ms.

Kostic’s claim to damages for the manner in which the Nation terminated the business agreement should also be considered. It was not dealt with by the trial judge. [20] In conclusion, we would allow the appeal and order that the court below consider whether or not the appellant is entitled to damages in accordance with these reasons, and if so, in what quantum. [ 3 ] That decision was in an appeal from Justice Anderson’s decision filed May 11, 2015 dismissing Ms. Kostic’s claims against the Nation in this action.

The Nation had applied to the case management judge, ACJ Rooke, seeking to have the claims dismissed on the basis that the investment management agreement between Ms. Kostic and the Nation (the “Agreement”) was void because there was no consideration, and in any event because Ms. Kostic had suffered no damages as a result of the termination of the Agreement. [ 4 ] Leave to bring a

summary dismissal application by the Nation was granted by ACJ Rooke and was heard by Justice Anderson 2015. [ 5 ] The only two issues before the Court of Appeal (at least from their decisions) would appear to be consideration and damages. Those were the issues considered by Justice Anderson in her decision. Whether the Nation had broken its obligations under the Agreement by terminating it was not obviously before either Justice Anderson or the Court of Appeal.

I acknowledge that there is a fundamental disagreement between the parties as to the effect of the Court of Appeal decision and whether there has been some binding determination that the investment management agreement had been breached by the Nation. [ 6 ] Ms. Kostic appealed Justice Anderson’s decision and was successful. It is the Court of Appeal’s comments above that Ms.

Kostic relies on to seek to have a damage assessment scheduled ahead of the trial of the action itself. [ 7 ] By correspondence to the Registrar of the Court of Appeal, the Nation sought to have the Court of Appeal make changes to its decision. Ms. Kostic sought costs on an enhanced basis. The Court of Appeal responded to the parties by letter from the Registrar on March 16, 2017: The Panel has reviewed your correspondences and advised the following: The panel sees no need for a corrigendum. There is nothing to correct.

Whatever outstanding issues remain to be tried, the parties and the case management judge know what they are. The Court does not. The Court was asked to rule on the validity and enforceability of a contract. It did so. It found the contract valid and enforceable. The Court was also asked to rule on whether the plaintiff suffered any damages. It was unable to rule on that question, except to say there could be damages arising out of what appeared to be a premature termination of the contract. The panel referred the matter of damages back to the trial court.

If the defendants have other defences to the plaintiffs claim which have yet to be litigated, that is not something the panel was aware of or factored into its judgment. (emphasis added) As far as the plaintiffs request that the panel award costs in accordance with an indemnity provision in the contract, the Court declines to do so. A trial court would first have to find that the provision is operative. That determination has not made yet.

If the defendants have the defences to the plaintiffs damage claims which they plead in their Statement of Defence, it may be that they also have defences to the plaintiff's full indemnity ("save harmless") costs claim. Cost will be awarded in accordance with our usual rules. [ 8 ] After that, the Nation applied to have the panel reconsider its decision. In the Court of Appeal’s subsequent decision, 2017 ABCA 263 , they stated at para 7: [7] We see no merit in the applicant’s argument.

The court’s initial reference to the health related damages was set out in a brief articulation of what had occurred before the case management judge prior to the

summary trial. The panel’s later suggestion that the trial court might consider the manner in which the Nation terminated the management agreement in assessing damages was nothing more than a suggestion that the court below consider whether general damages for breach of contract, as set out in Fidler v Sun Life Assurance Co of Canada, 2006 SCC 30 at paras 53-55 , [2006] 2 SCR 3, and Honda Canada Inc v Keays , 2008 SCC 39 at para 55 , [2008] 2 SCR 362, are available. If Ms. Kostic is not actually seeking such damages, so be it.

There is nothing in our judgment prohibiting the applicant from arguing at any subsequent trial that any damage claim is precluded by the pleadings or by prior admissions or concessions. But, the alleged error, if there was one, could not have affected our determination of the enforceability issue. In related proceedings, the Court of Appeal subsequently commented on this issue in Piikani Nation v Kostic , 2018 ABCA 234 at para 66 : The Business Agreement was found to be prima facie enforceable: Kostic v Piikani Nation , 2017 ABCA 53 , 48 Alta LR (6th) 310.

There has not, however, been a final determination as to whether there have been any potential breaches of that agreement, or whether it would provide the indemnity presently claimed by Ms. Kostic.

[ 9 ] Following the Court of Appeal decision allowing Ms. Kostic’s appeal, Justice Nation assumed case management of this action. She met with the parties on August 9, 2019 and a hearing was set up for April 7, 2020. Unfortunately, that hearing had to be cancelled because of the COVID-19 pandemic. [ 10 ] The matter of assessing Ms. Kostic’s damages in this action was raised by Mr. Klym in my first case management meeting in late June 2023, and Mr. Klym wrote me on July 26, 2023 with Ms. Kostic’s position on the assessment. Mr. Hawkes wrote me on August 30 with the Nation’s position.

I am unaware of any proceedings involving Justice Nation after April, 2020, or with Justice De Wit when he case managed this action between the fall of 2022 and April 2023 when I assumed case management. Positions [ 11 ] Ms. Kostic wants to have a damage assessment against the Nation set down for hearing as soon as possible. It appears that Ms. Kostic believes that any assessment of damages in this Court will result in an enforceable judgment in her favour. If she is under that impression, she may be mistaken.

I know she takes the position that the Court of Appeal held that the Nation was liable to her in damages and that all that remains in this action is for the Court to quantify her damages. The Nation disputes that

interpretation and maintains that their liability to Ms. Kostic on any basis has not been decided by the Court of Appeal and there are serious issues to be tried in that regard. [ 12 ] It is unclear how the difference between the parties can be resolved short of an application to determine the point, which would undoubtedly be taken up to the Court of Appeal, regardless of any decision in King’s Bench. That will be a time-consuming process. [ 13 ] If Ms.

Kostic’s position is incorrect, any assessment will only quantify what the Nation would be liable to her for if they did not have cause to terminate the contract with her, and that she is thus entitled to a damage award. There will still have to be a trial on the merits of the Nation’s defences to her allegations. There may have been no judicial determination by the Court of Appeal that she was wrongfully terminated. That was not something decided by the

summary trial judge, whose decision gave rise to the Court of Appeal decision in the first place. [ 14 ] The Nation says that liability and damages issues should be tried together, and that neither aspect of the lawsuit is yet ready to be tried. That seems to be at odds with the Court of Appeal decision. [ 15 ] I wrote the parties on October 21 inquiring as to whether or not Ms. Kostic is seeking “ Wallace ” damages, and for both parties’ comments on whether the damage assessment sought by Ms. Kostic should include other parties in other lawsuits against whom she is seeking damages. [ 16 ] Mr.

Hawkes responded for the Nation on November 7, advising that Ms. Kostic has not yet particularized her damages in this action and that she has refused to provide information as to what she earned while working for Wood Gundy and then from Raymond James when working for them. He submitted that the damage assessment should be conducted after liability had been determined, or during the same trial. He did not comment on whether any damage assessment should include parties in the various related lawsuits who might be impacted by a damage assessment in this action. [ 17 ] Ms. Kostic responded through Mr.

Klym, who is apparently now acting for her again in this matter. By letter dated January 17, 2024, Mr. Klym strongly argued that the Court of Appeal decision determined liability. He submits that the fact that ACJ Rooke granted an order in Piikani Nation v Raymond James Limited and Kostic, Action 0601 13081 (“Action 13081”) striking various fraud allegations against Ms. Kostic, removes any defence the Nation has to Ms. Kostic’s allegation that the investment management agreement with her was wrongly terminated.

I assume his argument will be that any defences based on the struck pleadings in Action 0601 are now res judicata . The Nation has not commented on that position (I did not request that they do so and did not anticipate that they would do so). That position is not obvious from ACJ Rooke’s Order striking various portions of the Nation’s Statement of Claim. It may be an overstatement as to the effect of the amendment of the pleadings, especially as the Nation advanced other bases for claims against Ms. Kostic in addition to fraud and conspiracy. [ 18 ] Mr. Klym made it clear that Ms.

Kostic intends to seek “ Wallace ” damages from the Nation having regard to the manner of her termination. Those types of damages would likely be unique to this action as they are unique to employment termination situations. [ 19 ] Mr. Klym did not comment on whether damages claimed in this action may overlap with damages claimed by Ms. Kostic in the many other actions where she seeks damages for the consequences of the termination of her employment, and indeed, he did not make it clear as to the nature of the damages Ms. Kostic is claiming against the Nation in this action.

It does appear that she has been substantially unemployed since the termination occurred in 2007, and I assume that Ms. Kostic intends to seek any and all losses that can be connected to the termination of her agreement with the Nation in this action. [ 20 ] Mr. Hawkes advised in his reply to my inquiry that Ms. Kostic has yet to particularize her damage claim and Mr. Klym’s recent letter is of no assistance in that regard. Analysis [ 21 ] I do not interpret the Court of Appeal’s initial decision, as clarified by its subsequent decisions, to clearly direct that the damage assessment sought by Ms.

Kostic be heard apart from a trial on liability, or that there need not be any further proceedings regarding liability. The Court of Appeal has traditionally been slow to permit the bifurcation of lawsuits. If their decision at 2017 ABCA 53 leaves any scope for the Nation to raise defences to Ms. Kostic’s wrongful termination claim a trial of all issues would appear to be the most efficient process as well as the normal process.

[ 22 ] However, in the circumstances of this overall case management process, I believe that a damage assessment of Ms. Kostic’s damages, both pecuniary and non-pecuniary, should be done sooner rather than later, and in advance of any of the many lawsuits in which Ms. Kostic seeks damages. [ 23 ] Ms. Kostic appears to have recognized this when in her application to have her treating physician examined de bene esse in her lawsuit against Jeff Thom and Miller Thomson LLP, Action 1501-11111, she suggested that counsel in other actions may wish to attend the de bene esse application and potentially participate in it.

I do not know, but assume, that Ms. Kostic may want to introduce such evidence in all of her other actions. [ 24 ] Ms. Kostic clearly seeks damages from the Nation going back to the date of the termination of the Agreement in early 2007. That damage claim is based on allegations of breach of contract. She seeks damages from Mr. Thom and Miller Thomson on the basis of solicitor’s negligence.

In general, the damages she seeks in that action are based on her claim that Thom and Miller Thomson should have taken certain steps to have the Nation’s claim against her in Action 0601 dismissed and their failure to do so has caused her significant harm because she has been subjected to litigation by the Nation for so long. [ 25 ] Ms. Kostic’s claim against Scott Venturo Rudakoff LLP, Action 1901-06457, seeks damages based on similar allegations to those in the Thom and Miller Thomson action. [ 26 ] Ms.

Kostic has counterclaimed against AIG Insurance Company of Canada, Action 1701-06258, seeking damages based on the negligence of their lawyers and their refusal after 2017 to defend her against various claims made against her by the Nation and others. [ 27 ] She has defended Bridgepoint Financial Inc’s action against her and William Klym, Action 2101-06435 and counterclaimed for indemnification and damages against Mr. Thom, Miller Thomson and Scott Venturo Rudakoff. I assume that the damages sought in that action are similar to or will overlap with those claimed in this action. [ 28 ] Ms.

Kostic’s damage claims are complicated. The claims against the Nation are based on breach of contract; the other claims are based in negligence. [ 29 ] A plaintiff is not allowed double recovery, and the trial judge hearing any of these various matters will have to apportion Ms. Kostic’s damages amongst the various defendants or defendants by counterclaim. Without consolidating the various actions in some fashion, it will be extremely challenging for a trial judge to make the necessary apportionments.

Any consolidation would however, in my view, unnecessarily delay the matter and complicate the liability trials, as a consolidation would likely require significant amendments to pleadings to allow notices of contribution and indemnity amongst the defendants. [ 30 ] My conclusion is that the damages claimed against all defendants by Ms. Kostic should be quantified in one damage trial. I expect that there will be considerable efficiency, as apart from liability experts and witnesses, all of Ms.

Kostic’s damage claims will relate to her loss of future income from the Nation, her future loss of earnings beyond that because the Nation wrongfully alleged fraud and other misdeeds which effectively ended her career as a financial consultant/investment advisor, and her personal injury damages for the decline in her health, her psychological pain and her suffering. [ 31 ] As identified by the Court of Appeal and Mr. Klym, she is claiming “ Wallace ” damages pursuant to Honda Canada Inc v Keays , 2008 SCC 39 , which may be the only head of damages unique to this action.

All other heads would appear to have some commonality and overlap. [ 32 ] Pre-determination of damages will allow for an appropriate apportionment of damages if Ms. Kostic is successful against any of the Defendants or Defendants by Counterclaim. Additionally, an assessment will be of considerable assistance to all of the parties for settlement purposes.

It may be extremely difficult for any of the Defendants or Defendants by Counterclaim to estimate the potential scope of any damages that might be awarded against them. [ 33 ] To the best of my knowledge, there have been no processes initiated that will satisfy the mandatory ADR requirements in the Rules of Court , and an appreciation of the scope of damages will undoubtedly be of assistance to all parties. [ 34 ] All of the Defendants and Defendants by Counterclaim in these various actions have a common interest in arguing against the quantum of any of Ms. Kostic’s damages.

In particular, the Nation is potentially exposed to all of the damages claimed by Ms. Kostic from 2007 until the date of the assessment. Other parties are potentially exposed to some but not all of Ms. Kostic’s overall general damage claims. [ 35 ] My impression is that her damage claims are similar to those of a plaintiff who has been sequentially injured in multiple motor vehicle accidents, with each successive incident aggravating the injuries sustained in the previous accidents and potentially causing new ones.

One way that type of scenario is managed is to have the various lawsuits tried together. [ 36 ] I recognize that it would be inappropriate for me to decide this process without input from the parties in the other lawsuits. I will canvas dates from all affected parties for their comments on this process, and their availability for at least a two-week damages trial, which I expect could be scheduled for early 2025.

I see no prospect that trial time can be found any earlier than that, even if all of these actions were already in a position to be set for trial without further production of records, questioning, undertaking responses, and expert reports. [ 37 ] These matters are all in case management. I recognize that there may be many pre-trial processes that need to be completed before trial. That is the advantage of case management. Working backwards from trial allows for a litigation plan that ensures that the parties will complete all necessary steps to be ready for trial.

Parties who fail to complete any required tasks will likely face an adverse inference rather than a successful application for an adjournment of the trial.

Conclusion [ 38 ] The assessment of damages for Ms. Kostic’s claims against the Nation should be set for trial ahead of any liability trials involving damage claims by Ms. Kostic. It makes no sense to have Ms. Kostic’s damages be assessed in each trial by potentially different trial judges and at different times. There are many good reasons why all Defendants will benefit from an assessment of damages ahead of their respective liability trials. I do not see any prejudice to Ms.

Kostic as the trial will allow all of the liability trials to be settled without separate damages proceedings. [ 39 ] I will have the Case Management Coordinator canvas all parties for their availability for a case management conference to discuss scheduling of this trial and preparation of a litigation plan. The parties and counsel should also be prepared to address trial availability for February, March, and April of 2025, which I believe to be the earliest a damage assessment can reasonably be set down. [ 40 ] I note that ACJ Rooke established a detailed Case Plan in his Order of October 17, 2016.

It appears that there were numerous tasks to be accomplished by all parties. For the next case management meeting, I would ask each party to update me in advance as to what steps they consider necessary for trial readiness purposes. Once we have scheduled a case management hearing date, I will set a deadline for receipt of this information. Heard by way of written submissions . Dated at the City of Calgary, Alberta this 23 rd day of January, 2024. Robert A. Graesser J.C.K.B.A.

Appearances: Liliana Kostic Self-Represented Litigant for the Plaintiff William Klym DD West LLP Limited retainer counsel for the Plaintiff Robert Hawkes, KC JSS Barristers for the Defendant