Parties could have been spared cost of litigation had sensible course of action been taken

APPLICATION OF PROVINCIAL LAW

Parties could have been spared cost of litigation had sensible course of action been taken

Determination of costs following successful application for judicial review. Court had found that applicants were deprived of their voting rights and denied procedural fairness by respondents in violation of First Nation custom. In granting judgment court set aside decision of former Chief and Council to extend their terms of office, removed Chief and Council from office and ordered that election be held within 60 days. Applicants sought lump sum award giving them full indemnity on solicitor client basis for legal fees in amount of $258,850. Respondents contended that applicants should not be entitled to elevated costs as conduct of respondents or their counsel had not been reprehensible, scandalous or outrageous such as to justify exceptional award of solicitor-and-client costs. Respondents contended that issues were needlessly complicated in this proceeding by fact that applicants raised grounds from Canadian Charter of Rights and Freedoms when it was clear that such grounds had no foundation in law or facts. Relevant factors were that application was brought in interests of all of members of community, issues were complex and included conflicting evidence as to what constituted First Nation custom, conduct of respondent Chief and Councilors and their legal counsel tended to unnecessarily lengthen duration of proceedings, steps taken by respondent Chief and Councilors in proceeding were improper, vexatious or unnecessary, amount of work required to prepare for hearing, that written offer to settle was disregarded and that application was wholly successful. Applicants awarded costs on solicitor-client basis for application and for matters relating to this order for costs, fixed at a total of $285,000. Proceeding would not have been necessary had Chief and Council of First Nation put question of extension of their terms of office to membership as part of scheduled December 2010 election. All of parties could have been spared expense of costly litigation had that sensible course of action been taken. Failure of respondents to do so was blatant attempt to remain in power.

Shotclose v. Stoney First Nation (Sep. 7, 2011, F.C., Mosley J., File No. T-2085-10) 206 A.C.W.S. (3d) 445 (11 pp.).