14.5: Appeals only with permission

Case Summary

The Applicant lawyers were counsel for the Plaintiff in the underlying Action against Alberta and Canada. Costs were awarded against the Applicant lawyers, personally, in the amount of $153,976.75 (the “Costs Award”), representing 75% of the Costs awarded in favour of Canada on two stay Applications (the “Stay Applications”) and 25% in favour of Canada on a strike/summarily dismiss Application (the “Strike Application”).

The Applicant lawyers applied for permission to Appeal the Costs Award. Their Application was denied.

The Stay Applications arose from an Order requiring the Plaintiff to answer Undertakings related to legal advice received prior to entering into a Treaty Land Agreement in 1990. The Plaintiff exhausted all Appeal routes and was ultimately unsuccessful in setting aside the Order. As a result, it continued to bring various Stay Applications. The Stay Applications were found to be “unfounded, frivolous, and vexatious”, and the conduct of the Applicant lawyers was deemed a “marked and unacceptable departure from reasonable conduct”.

The Strike Application was brought by Canada and Alberta to strike or summarily dismiss portions of the Plaintiff’s claim. The Strike Application was successful, affirmed by the Court of Appeal, and refused leave to Appeal by the Supreme Court of Canada. The Costs Award reflected the Applicant lawyers’ behaviour in the lower Court, which showed “a pattern of obstruction, delay, and misdirection”, which included the late filing of hearsay Affidavits, re-arguing settled points, and raising new Applications and issues. This conduct was deemed by the Chambers Judge as “unreasonable, persistent, and disruptive”.

Rule 14.5(1) states that a Costs Decision can be appealed to the Court of Appeal only with permission. Permission is granted if the following four criteria are met: (a) the Applicant identifies a good, arguable case with enough merit to warrant scrutiny by the Court; (b) the issues are important both to the parties and in general; (c) the Appeal has practical utility; and (d) the Court considers the effect of proceedings delay caused by the Appeal. All four must be established.

Madam Justice Antonio found that Costs Awards are accorded deference, even when granted against counsel. The Applicant lawyers failed to establish that they had a good, arguable case. They also failed to establish the second element since the proposed Appeal did not involve issues of general importance. Accordingly, permission to Appeal was denied.

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