This was an Appeal of a substantial Costs award made against a lawyer personally. The Appellant, Kennedy, represented her client in an Application for intervenor status in a further Application for Advice and Direction. The Application for Advice and Direction was in regards to whether the definition of “beneficiary” for a trust for the members of the Sawridge First Nation (SFN) should be changed.

The Case Management Justice found Kennedy’s Application for intervenor status on behalf of her client was a collateral attack and an abuse of process. Kennedy’s band member status had already been decided in previous cases. Moreover, Kennedy had brought the Application for intervenor status on behalf of her client as well as his “brothers and sisters,” even though there was no evidence that Kennedy had been retained or instructed by these other people.

The Court confirmed that Rule 10.50 allows the Court to grant Costs against a lawyer personally if the lawyer has engaged in serious misconduct. However, this is an exceptional remedy that will only be granted in rare cases where the lawyer’s actions have seriously undermined the Court’s authority or seriously interfered with the administration of justice.

The Panel did not agree with the Case Management Justice’s finding that the Application for intervenor status constituted a collateral attack or serious misconduct as contemplated in Rule 10.50. The Application was not specifically to have the client’s status as a band member determined or reconsidered, and therefore the Application was not necessarily a collateral attack on the previous decisions that addressed the status issue. Moreover, the Panel noted that Rule 2.10 allows the Court to grant an Applicant intervenor status subject to any terms specified by the Court. Therefore, it would have been open for the Court to consider Kennedy’s client’s Application based on factors apart from the status question.

In regards to Kennedy’s apparent acting without instructions from her client’s brothers and sisters, Kennedy submitted that the Application was a representative motion pursuant to Rule 2.6. That Rule states that where numerous individuals have a common interest in a claim, one or more of those individuals may make the claim or be authorized by the Court to make the claim on behalf of the group. The Court rejected this argument as there was no evidence in the Application itself or in the prior proceedings that Kennedy’s client was pursuing a representative motion. The evidence suggested that Kennedy’s acting without instructions was much more likely in error or the result of negligence. However, the Court did not find that this amounted to “gross neglect or inaccuracy” that would justify a personal award of Costs under Rule 10.50.

The Panel granted the Appeal, reiterating again that a personal award of Costs against a lawyer is only justifiable in exceptional circumstances.