The Sawridge First Nation (“Band”), within the context of Case Management, sought a Cost Award for an abandoned Rule 5.13 Application as against the Public Trustee who was brought into the proceedings to represent the interests of potential beneficiaries of a trust, which was set up by the Band in 1985 (“Trust”). The Band was not a party to the Action.

The Band argued that in 2015 it had successfully obtained an adjournment to certain Applications which the Public Trustee opposed. The Band argued further that the Public Trustee abandoned their Rule 5.13 Application after the Band had disclosed its records. The Band argued that it was forced to prepare written materials in response to the Application, and maintained that Costs were justified as Rule 5.13(2) amounts to an obligation of the Public Trustee to pay for records produced under Rule 5.13. Ultimately, the Band argued that based on Rules 1.1, 1.2 and 10.29, the Court should use Costs to “encourage efficient litigation”, and that a successful party should receive Costs.

Thomas J. noted that Rule 10.29(1) creates a “presumption” that the successful party in an application will receive Costs, and the Court has “exceptionally broad authority to make cost orders as they see fit”, in accordance with Rules 10.31 and 10.33. Thomas J. reviewed the Public Trustee’s actions “in a global sense”, and noted that the Court’s approach should be “consistent with the general purpose served by cost awards”. Noting that the overarching litigation was not adversarial, but rather intended to protect the rights of the beneficiaries of the Trust, Justice Thomas denied the Cost Award against the Public Trustee.

Justice Thomas noted that the purpose of Rule 5.13(2) is to limit the financial burden imposed on a party who has been ordered to produce documents pursuant to a Court order. In this case, the Trust was going to indemnify the Band for its involvement in the Action. Thomas J. held that it was unnecessary to order payment to the Band pursuant to Rule 5.13(2).