PIIKANI NATION v MCMULLEN

The Court considered a Security for Costs Application by the Piikani Nation in response to an Appeal by the Respondent, Dale McMullen (“Mr. McMullen”), of a Case Management Judge’s endorsement.

The endorsement at issue addressed the handling of the “Navigant Report,” which had been previously sealed by Court Order but was subsequently distributed by another party in its Court materials. The Case Management Judge ordered that the Court’s electronic copy be sealed, all other Court copies destroyed, and all copies held by recipients likewise destroyed (the “Endorsement”).

Mr. McMullen sought to appeal the Endorsement, alleging that the Case Management Judge had improperly addressed the distribution of the report. In response, the Piikani Nation applied for Security for Costs.

Mr. McMullen provided no written submissions opposing the Security for Costs Application. In oral argument he focused on the United Nations Declaration on the Rights of Indigenous Peoples and the financial impact of the litigation on him to date. He did not address the legal test for Security for Costs. In a prior proceeding Mr. McMullen had acknowledged that he was impecunious. He had no assets in Alberta apart from his personal residence, which was subject to a mortgage and numerous writs.

Justice Feehan applied the test for Security for Costs under Rules 4.22 and 14.67, confirming that the Applicant bore the burden of establishing that Mr. McMullen was unable to pay a potential Costs Award. The Court determined that the Piikani Nation had met this test and that it was unlikely that any Costs Award could be enforced against Mr. McMullen, that he lacked the ability to pay, and that his Appeal did not appear to have merit.

Security for Costs was ordered in the amount of $7,000, payable within four weeks. If the security was not paid within that time, the Appeal would be deemed abandoned pursuant to Rule 14.67(2).