DALE W. MCMULLEN Plaintiff v. THE ATTORNEY GENERAL OF CANADA, CANADIAN IMPERIAL BANK OF COMMERCE AND CIBC TRUST, 2021 FC 516

Date: 20210601 Docket: T-38-20 Citation: 2021 FC 516 Ottawa, Ontario, June 1, 2021 PRESENT: Madam Justice Pallotta BETWEEN: DALE W.

MCMULLEN Plaintiff and THE ATTORNEY GENERAL OF CANADA, CANADIAN IMPERIAL BANK OF COMMERCE AND CIBC TRUST CORPORATION, BLAKE CASSELS & GRAYDON LLP, PIIKANI NATION AND PIIKANI NATION CHIEF AND COUNCIL, STANLEY GRIER, ERWIN BASTIEN, BRIAN JACKSON, WESLEY CROW SHOE, CHE LITTLE LEAF- MATUSIAK, RIEL PROVOST-HOULE, DOANE CROW SHOE, TROY KNOWLTON AND THEODORE PROVOST, JENSEN SHAWA SOLOMON DUGUID HAWKES LLP AND GLENN SOLOMON, ROBERT HAWKES AND CARSTEN JENSEN, PEACOCK LINDER HALT & MACK LLP AND PERRY MACK Defendants ORDER AND REASONS [ 1 ] These are my reasons and order regarding costs of Mr.

McMullen’s motion to appeal the July 24, 2020 direction of Case Management Judge (CMJ) Molgat. A. The parties’ positions [ 2 ] The defendants were successful on the motion and seek an award of costs at the high end of column IV of the Tariff B table, in the total amount of $7,350.00 plus GST, payable forthwith and in any event of the cause. [ 3 ] The defendants submit that the motion lacked merit, as an appeal of a direction should not be entertained. They argue that although he is self-represented, Mr.

McMullen is a sophisticated litigant, and that he ought to have abandoned the motion after receiving the defendants’ submissions. The defendants argue a cost award should be made in their favour and payable forthwith as they were wholly successful, Mr. McMullen had no justification or reasonable excuse for his position, and the motion should not have been brought: Pfizer Canada Inc. v Novopharm Limited , 2010 FC 668 at para 58 ; Tursunbayev v Canada (Public Safety and Emergency Preparedness) , 2019 FC 457 at paras 51-52 . [ 4 ] The defendants submit that Mr.

McMullen unnecessarily complicated the motion and brought forward baseless and irrelevant accusations against the defendants. They argue that costs may be awarded in any event of the cause, as the motion raised discrete issues regarding the sequence and procedural steps of interlocutory motions, which will not be decided at trial. [ 5 ] The defendants submit the following factors under Rule 400(3) (a), (c), (g), (i), (k), and (

m) of the Federal Courts Rules , SOR/98-106 [ Rules ] are relevant to the determination of the appropriate costs of the motion: the defendants were unambiguously successful; CMJ Molgat’s direction regarding the sequence of the parties’ proposed motions was important because the defendants’ motions to strike could effectively resolve the action, and should be heard first; Mr. McMullen’s conduct unnecessarily increased the work involved in responding to the motion, as he introduced new evidence, raised new issues, and relied on extraneous grounds having no bearing on the merits of the appeal; Mr.

McMullen made accusations of fraud against certain defendants and their counsel that were improper, vexatious, and unnecessary; and the defendants’ efforts to coordinate the written and oral submissions of five groups of 21 defendants— who are represented by the Department of Justice and four law firms—simplified and shortened the motion. [ 6 ] Mr.

McMullen submits that no costs should be awarded, in view of the following: he is self-represented and should not be penalized for bringing a motion that was not improper and raised an issue that is unclear from the Rules , particularly in view of the flexible procedures recognized under the Court’s Practice Guidelines for Aboriginal Law Proceedings ; he has been ensnared in litigation with certain defendants, which affected his ability to work as an accountant, and has been unemployed since 2009; he has been denied the benefit of legal counsel under an indemnity agreement that certain defendants refuse to honour; he is a Status Indian and a member of a vulnerable group; the defendants were not unambiguously successful, and there was mixed success on the motion, as conflict of interest and indemnity issues required clarification, and Mr.

McMullen " “was successful in ensuring that he can raise conflict of interest and/or indemnity issues” " against certain defendants; the issues raised on the motion were not discrete issues, but will be relevant to the proceedings, including on the defendants’ motions to strike out the statement of claim; it would not be appropriate to award costs on this motion separate from and in advance of the defendants’ motions to strike; and the motion raised public interest issues. [ 7 ] Alternatively, Mr.

McMullen submits that the costs requested at the high end of column IV are excessive, both on an individual and collective basis. The defendants have provided 5 bills of costs that are indiscernible in terms of the actual work completed. Mr. McMullen submits that no relief was sought against several defendants, and the bulk of the work to respond to the motion was done by a salaried employee of the Department of Justice. Mr. McMullen submits that if costs are awarded, the amount should be a small lump sum.

He relies on Whalen v Fort McMurray No. 468 First Nation , 2019 FC 1119 at para 11 [ Whalen ], where the Court recognized that lump sum awards have been used as a way of limiting a party’s liability for costs below what the tariff would entail, usually in cases

where an individual with limited means was unsuccessful in a lawsuit against the government. B. Analysis [ 8 ] Costs are in the full discretion of the Court, and governed by Rules 400-422 of the Rules . Rule 400(3) sets out a list of factors that the Court may consider in exercising discretion. [ 9 ] Generally, costs are awarded to the successful party, and costs are often assessed according to Tariff B of the Rules . Unless the Court orders otherwise, costs are assessed in accordance with column III of the table to Tariff B: Rule 407. [ 10 ] I am not persuaded that I should decline to award costs.

The result of the motion was not mixed, the motion did not raise public interest issues, and the motion related to an appeal of a procedural direction and did not decide conflict of interest or indemnity issues. There is no evidence that Mr. McMullen is financially unable to pay an award of costs. I have considered the fact that Mr. McMullen is a self-represented individual in determining the amount of the cost award.

In my view, the general rule of costs in favour of the successful party should apply. [ 11 ] With respect to the amount, a cost award assessed under Tariff B usually results in an award that is much lower than actual costs incurred. I acknowledge that the defendants’ efforts streamlined the motion, and their efforts were helpful to the Court. While the amounts calculated in the defendants’ bills of costs are reasonable in view of the work involved to defend the motion, in my view, costs of the motion are more appropriately assessed under column III of Tariff B. I agree with the defendants that Mr.

McMullen complicated the motion unnecessarily, including by introducing new evidence, raising new issues, and relying on extraneous grounds. However, this was a procedural motion, and I am mindful that Mr. McMullen is a self-represented individual. In my view, it is appropriate to award costs based on the middle of column III for the written argument and the low end of column III for attendance at the oral hearing. [ 12 ] Each of the 5 bills of costs accounts for the defendants’ joint motion record by claiming one fifth of the unit value for item 5 (preparing and filing a contested motion).

It was reasonable for the defendants to have their counsel attend the hearing of the motion, and I would award the unit value for a two-hour hearing under item 6, for each of the 5 sets of defendants. Adjusting the bills of costs to reflect an assessment under low to mid column III as noted above, rather than the high end of column IV, results in a cost award of $2,362.50 inclusive of GST, in respect of all defendants. [ 13 ] Rule 401(2) does not require that the award be made payable forthwith, as I am not satisfied that the motion should not have been brought.

The fact that the motion was dismissed based on the defendants’ primary position that an appeal of a direction should not be entertained does not mean that the motion should not have been brought—indeed, the defendants devoted more paragraphs of their written submissions to their alternative argument. In my view there was some uncertainty regarding the issues on the motion. Further, I am not satisfied that I should exercise discretion to order costs payable forthwith. Costs shall be payable in any event of the cause. ORDER in T-38-20 THIS COURT ORDERS that : 1 .

The defendants are awarded costs of the motion in the amount of $2,362.50 inclusive of GST, in any event of the cause. "Christine M. Pallotta" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-38-20 STYLE OF CAUSE: DALE W.

MCMULLEN v THE ATTORNEY GENERAL OF CANADA, CANADIAN IMPERIAL BANK OF COMMERCE AND CIBC TRUST CORPORATION, BLAKE CASSELS & GRAYDON LLP, PIIKANI NATION AND PIIKANI NATION CHIEF AND COUNCIL, STANLEY GRIER, ERWIN BASTIEN, BRIAN JACKSON, WESLEY CROW SHOE, CHE LITTLE LEAF- MATUSIAK, RIEL PROVOST-HOULE, DOANE CROW SHOE, TROY KNOWLTON AND THEODORE PROVOST, JENSEN SHAWA SOLOMON DUGUID HAWKES LLP AND GLENN SOLOMON, ROBERT HAWKES AND CARSTEN JENSEN, PEACOCK LINDER HALT & MACK LLP AND PERRY MACK SUBMISSIONS ON COSTS CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO THIS COURT’S ORDER AND REASONS IN 2020 FC 1081

ORDER AND REASONS: PALLOTTA J. DATED: JUNE 1, 2021 WRITTEN SUBMISSIONS BY : Dale W. McMullen For The PLAINTIFFS Jordan Milne and Amy Reperto for the Defendant attorney general of canada David Wachowich, QC for the Defendants BLAKE CASSESSLS & GRAYDON LLP, PEACOCK LINDER HALT & MACK LLP AND PERRY MACK Ian J. Breneman FOR THE DEFENDANts CANADIAN IMPERIAL BANK OF COMMERCE AND CIBC TRUST CORPORATION Caireen E.

Hanert for the Defendants PIIKANI NATION, PIIKANI NATION CHIEF AND COUNCIL, STANLEY GRIER, ERWIN BASTIEN, BRIAN JACKSON, WESLEY CROW SHOE, CHE LITTLE LEAF-MATUSIAK, RIEL PROVOST-HOULE, DOANE CROW SHOE, TROY KNOWLTON AND THEODORE PROVOST Ken Fitz for the Defendants JENSEN SAWA SOLOMON DUGUID HAWKES LLP AND GLENN SOLOMON, ROBERT HAWKES, CARSTEN JENSEN SOLICITORS OF RECORD : Attorney General of Canada Calgary, Alberta for the Defendant ATTORNEY GENERAL OF CANADA Rose LLP Barristers and Solicitors Calgary, Alberta for the Defendants BLAKE CASSESSLS & GRAYDON LLP, PEACOCK LINDER HALT & MACK LLP AND PERRY MACK Blake Cassels & Graydon LLP Barristers and Solicitors Calgary, Alberta for the Defendants CANADIAN IMPERIAL BANK OF COMMERCE AND CIBC TRUST CORPORATION Gowling WLG (Canada) LLP Barristers and Solicitors Calgary, Alberta for the Defendants PIIKANI NATION, PIIKANI NATION CHIEF AND COUNCIL, STANLEY GRIER, ERWIN BASTIEN, BRIAN JACKSON, WESLEY CROW SHOE, CHE LITTLE LEAF-MATUSIAK, RIEL PROVOST-HOULE, DOANE CROW SHOE, TROY KNOWLTON AND THEODORE PROVOST

McLennan Ross LLP Barristers and Solicitors Edmonton, Alberta for the Defendants JENSEN SAWA SOLOMON DUGUID HAWKES LLP AND GLENN SOLOMON, ROBERT HAWKES, CARSTEN JENSEN