MORIN v TRANSALTA UTILITIES CORPORATION, 2017 ABQB 409
6.37: Notice to admit
10.49: Penalty for contravening rules
10.50: Costs imposed on lawyer
The Plaintiffs claimed against the Defendants for trespassing on certain lands owned by the Enoch Cree Nation. The Plaintiffs appealed the Decision of a Master which dismissed the claims of seven of the Plaintiffs in the Action, as there was evidence that five of them were deceased at the time the Action commenced and that the estates of those deceased Plaintiffs had not authorized the commencement of the Action. There was further evidence that two of the named Plaintiffs were not holders of the relevant land certificates. As a result of the Master’s Decision, only one named Plaintiff, Mr. Morin, remained. One of the Defendants had served a Notice to Admit on all of the Plaintiffs seeking an admission that five of the nine Plaintiffs were deceased and that two of the Plaintiffs were not certificate holders. The Plaintiffs did not deny the facts set out in the Notice to Admit nor did they state an objection to the Notice to Admit pursuant to Rule 6.37(3). Therefore, at the time of the Application before the Master, the contents of the Notice to Admit were deemed to be true.
The Plaintiffs filed a Notice of Appeal, seeking a stay pending the Appeal. However, no Stay was pursued. The Plaintiff then abandoned the Appeal at the outset of the Appeal before Justice Graesser. A number of the Defendants sought Costs of the Appeal, and AltaLink sought Costs against the Plaintiffs’ counsel personally pursuant to Rules 10.49 and 10.50. Justice Graesser noted that Rule 10.49 provides that a Court may order a party, lawyer or other person to pay the Court a penalty if that party, lawyer or other person fails to comply with the Rules of Court, Practice Note or a direction of the Court; or has interfered with or may interfere with the proper or efficient administration of justice. The Defendants argued that Plaintiffs’ counsel had engaged in “serious misconduct”, and had commenced proceedings without authority. Plaintiffs’ counsel provided no information that he had been retained by any of the other Plaintiffs other than one, but the Appeal had been filed on behalf of all of the Plaintiffs.
Graesser J. determined that the evidence showed that Mr. Morin had instructed the Plaintiffs’ counsel to commence the Action but that Plaintiffs’ counsel had not shown that he had authority to act for the other Plaintiffs besides Mr. Morin. In addition to acting without authority, counsel had acted discourteously. Justice Graesser determined that, in the circumstances, it was fair to award Costs against Plaintiffs’ counsel personally, but observed that:
Costs under Rule 10.50 are subsumed within the costs otherwise ordered under Schedule C; if there is a tariff item a multiplier might be used; if there is no tariff item then the Court should come up with an appropriate amount. I do not see that costs under Rule 10.50 are an add-on in themselves, to be imposed in addition to Schedule C.
Graesser J. held that Plaintiffs’ counsel was to pay $1,000 into Court for his contravention of the Rules of Court, and His Lordship ordered that counsel pay Schedule C costs of four times Column 1 to the Defendants who sought Costs against him, pursuant to Rule 10.50.View CanLII Details