jerke j

10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The Defendant alleged that the Plaintiff failed to obtain a band council resolution authorizing the commencement of the Action and so the Action should be dismissed. At Questioning the Defendant obtained an Undertaking from the Plaintiff that any resolution authorizing commencement of the Action be identified. The Undertaking was not answered and a series of Court Applications, including Contempt Hearings, ensued. At a Special Chambers Hearing, the Plaintiff claimed that there was a band council resolution, so Jerke J. directed the Plaintiff’s counsel to provide it by the next morning. The Plaintiff’s counsel did provide it, but claimed privilege on the document so it was sealed. At the continuation of the Special Chambers Hearing, Plaintiff’s counsel disclosed for the first time that there was no resolution as at the date the Action was commenced. The Defendant immediately sought Costs on a full indemnity, solicitor-client basis.

Justice Jerke observed that Rule 10.31 permits the Courts to order one party to pay another party Costs in accordance with the Rules of Court. Consideration is first given to the factors in Rule 10.33. Solicitor-client Costs are appropriate where misconduct occurs during a legal proceeding. There is much discretion afforded to the Court when awarding full indemnity Costs on the basis of party misconduct; however, such awards are reserved for rare and exceptional or unusual circumstances. Justice Jerke found the conduct of the Plaintiff reprehensible, an attempt to delay or hinder the proceedings, or an attempt to deceive or defeat justice. The failure to answer the Undertaking was an effort to conceal material information, and in the face of a finding of contempt the Plaintiff provided a misleading answer. Justice Jerke found this to be one of the rare, exceptional, or unusual cases where an award of Costs on a full indemnity basis was warranted.

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