1.3: General authority of the Court to provide remedies
1.4: Procedural orders
1.5: Rule contravention, non-compliance and irregularities
4.14: Authority of case management judge
5.3: Modification or waiver of this Part
13.5: Variation of time periods

Case Summary

The Appellant, Kostic, appealed six Decisions of the Case Management Justice. One of the Appeals was an Appeal of a procedural Order (the “Order”) made by the Case Management Justice. The Piikani Nation (the “Nation”) was a Respondent in all six Appeals.

In one of the six Appeals, Kostic claimed that the Case Management process was unfair and that the litigation plan was not scrupulously followed.

The Court of Appeal discussed the reasons given by the Case Management Justice during a Case Management Meeting on August 26, 2016. It determined that based on the Case Management Justice’s comments, it was clear that the parties and the Court were not in a position to deal with substantive issues at the Case Management Meeting wherein the Order was granted. The Order, which arose from the August 26, 2016 Case Management Meeting, was finalized and entered in October of 2017. Among other things, the Order required that the parties prepare a revised litigation plan. Kostic argued that the Case Management Justice should not have directed the preparation of the revised litigation plan without leave of the Court, and without bringing a formal application to do so. Kostic claimed that the Case Management Justice should have rigidly and strictly complied with litigation protocol, regardless of the circumstances and the ultimate objective of Case Management.

The Court of Appeal held that Case Management requires a strong element of flexibility. Litigation under Case Management is still governed by the Rules, but the Rules themselves, are to some extent, flexible. In support of this rationale, the Court of Appeal cited Rules 1.4(2)(c) and 1.4(2)(d), which give the Court authority to make procedural orders, and Rule 4.14, which sets out the authority of a Case Management Justice.

On the contrary, Kostic’s arguments relied on procedural irregularities, which are governed by Rule 1.5. Rule 1.5 implies that variations from a litigation plan or a litigation protocol can be cured, so long as there is no prejudice rising out of the irregularity or non-compliance.

In addition, Kostic had obtained a Fiat from a Justice other than the Case Management Justice that gave her leave to bring a Summary Dismissal Application at the August 26, 2016 Case Management Meeting. Under Rule 4.14(2) and 1.4(2)(h), the Case Management Justice was within her powers to treat the Fiat as being of no effect.

Kostic also argued that because the Respondent had not produced expert evidence pursuant to a previously set deadline, that the Respondent was now forever precluded from bringing forward expert evidence. The Court of Appeal held that deadlines in Orders can always be extended under Rule 13.5, which governs the variation of time periods.

In another of the six Appeals, Kostic argued that a document that was sealed under litigation privilege by the Nation should be produced. Kostic claimed that the litigation privilege had been waived pursuant to Rule 5.3, which allows the Court to waive or modify disclosure requirements, since the privileged document had been widely distributed to the Nation’s Council Members, who then provided copies to Band Members. While the Court acknowledged that the privileged document may no longer be secret, the privilege attached to the document still prevented its use in Court. The Court of Appeal concluded that Rule 5.3 does not extend so far as to allow a Court to override a valid claim of privilege.

In yet another of the six Appeals, Kostic appealed an Order made by the Case Management Justice that denied Kostic leave to bring an Application for indemnification from the Nation.

The Court of Appeal noted that Kostic did not claim indemnity from the Nation in any of her pleadings. Kostic relied on Rule 1.3(2), which governs the general authority of the Court, to claim that a remedy may be granted despite her having failed to claim indemnity. The Court of Appeal held that Rule 1.3(2) does not allow the Court to grant a remedy for a cause of action that has not been pleaded.

All six of Kostic’s Appeals were dismissed.

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