Nation J

1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
13.38: Judge’s fiat

Case Summary

The Defendant, Liliana Kostic (“Kostic”), applied for a Fiat to obtain leave to file an Application in which Kostic sought an Order declaring that the Respondent, the Piikani Nation (“Piikani”), was contractually obligation to defend and hold harmless Kostic against any and all legal proceedings arising out of threatened or actual legal action.

The Piikani argued that the Fiat should be refused pursuant to Rules 1.2 and 3.68(2) because, among other things: (1) the indemnity provisions within the contract did not apply; (2) the Court is functus officio as the prior Case Management Justice had already dealt with the issue in an earlier proceeding; and (3) the existence of a limitations argument. The Piikani argued further that Kostic’s Application would not lead to a resolution of the real issue in dispute or facilitate the quickest means of resolving the claim at the least expense pursuant to Rule 1.2.

Nation J. noted that a Fiat should not be granted if the Application had no chance of success. Justice Nation concluded, following a review of the contractual terms between the parties, that Kostic’s argument that the Piikani had a duty to defend and so should be subject to a declaration to pay for Kostic’s counsel had no chance of success. The Application for a Fiat was dismissed.

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