Supreme Court

Metis Nation et al v. North Slave Metis Alliance, 1999 NWTSC 23

Date:
Docket:


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

METIS NATION LOCAL 66 and
METIS NATION LOCAL 64

Plaintiffs

-and-

NORTH SLAVE METIS ALLIANCE

Defendant

MEMORANDUM OF JUDGMENT


[1] The defendant seeks costs of these proceedings on a solicitor-and-client, or an increased party-and-party, scale.


[2] The plaintiffs commenced these proceedings in December, 1998, seeking a declaration as to the validity of the defendant s governing authority and seeking injunctive relief preventing the defendant from carrying on its activities.  The defendant is a society established for the purpose of representing the indigenous Metis population of the North Slave region.  In particular, the defendant s objective was to negotiate and implement a land claim and self-government agreement for its members.  The plaintiffs are two Metis organizations specifically representing Metis in the Yellowknife and Rae-Edzo areas respectively.  The plaintiffs alleged that members of their organizations were unlawfully excluded from membership in the defendant organization.  Some may view this controversy as an internal power struggle but it has drawn a great deal of attention, both in the public media and among the Metis people.

[3] The plaintiffs brought an application for an interim injunction.  That was adjourned several times.  The defendant brought an application to strike certain parts of the Statement of Claim.  Extensive affidavits were filed.  On February 22, 1999, my colleague Richard J. issued an order, after argument in chambers, striking out a paragraph of the Statement of Claim.  He also awarded costs of that motion to the defendant  in any event of the cause and payable at the conclusion of the application for the interim injunction .  The defendant then brought an application to strike out the Statement of Claim in its entirety due to the incapacity of the corporate plaintiffs to maintain this action.  That was due to the fact that only individuals can be members of the defendant organization and the relief sought can only be claimed by members.  The motion was set for a contested hearing.  On June 21, 1999, in chambers before me, the parties announced that, at the last minute, they had worked out an agreement whereby the Statement of Claim was struck out but without prejudice to certain individuals to file a new Statement of Claim in their personal capacities.  Costs were left to be spoken to.  Since then, the particular individuals (William Enge and Robert Sholto Douglas) have commenced a new action.  A provision in my order of June 21st allows the application of evidence, taken in this proceeding, to the new action.  The plaintiffs  interim injunction application was never heard.

[4] The defendant now seeks solicitor-and-client costs on three grounds: (i) the plaintiffs in essence abandoned the original action; (ii) the plaintiffs put a great deal of offensive material in their affidavits filed on the various motions; and, (iii) the plaintiffs conducted themselves inappropriately by making public statements about the litigation in the media.  The point about offensive affidavit material was the subject-matter of a separate application by the defendant to strike portions of affidavits. That was denied by Richard J. on February 22nd but not without some strong and adverse comment by him as to the propriety of some parts of the affidavits.  He felt, however, that complaints about the affidavits could be better addressed after cross-examinations on them and before the judge hearing the injunction application.

[5] The defendant has set forth its solicitor-and-client costs totalling $29,697.45.  This would be a complete indemnification of its costs.  In addition, defendant s counsel has prepared two different Bills of Costs, one calculating party-and-party costs on the basis of Column 2 totalling $2,984.31 (inclusive of disbursements) and one on the basis of Column 6 totalling $6,304.31.

[6] On the issue of solicitor-and-client costs, counsel are agreed on the general principle that such costs should not be awarded unless special grounds exist to justify departure from the party-and-party scale: Foulis v. Robinson (1978), 8 C.P.C. 198 (Ont. C.A.).   I need do no more than repeat something I said in Beamish v. Miltenberger, [1997] N.W.T.J.  No. 54 (at para.2):

Most of the cases presented to me reveal facts and circumstances peculiar to each case.  Hence there is little guidance from precedent other than to say that costs are in the discretion of the court.  That discretion is to be exercised judiciously and judicially.  With respect to solicitor-and-client costs, however, I believe the guiding principle, absent special considerations, is that enunciated in Reform Party of Canada v. Canada, [1993] 3 W.W.R. 171 (Alta. Q.B.), affirmed at [1995] 10 W.W.R. 764 (Alta. C.A.), at page 173:

While the Court clearly has a discretion to award costs on a solicitor-client basis, such discretion is exercised on relatively rare occasions and most usually in cases where there has been misconduct on the part of one of the litigants.  It is more common to find in the authorities the exercise of the Court s jurisdiction to award costs on a higher party-and-party scale in appropriate circumstances.

See also the comment of deWeerdt J. in Meek v. Northwest Territories (1992), 14 C.P.C. (3d) 360 (N.W.T.S.C.), at p.361:  An award of costs on the solicitor-and-client scale is ordered only in rare and exceptional instances to mark the court s disapproval of the conduct of a party in litigation.

[7] I am not satisfied that the circumstances of this case meet the  rare and exceptional  standard stipulated by the authorities.  The action was no doubt extremely important to the defendant but it is, in essence, not resolved yet since there is still the new action to deal with.  This first action was  abandoned  by the plaintiffs but no determination was made as to the merits of the cause of action.  The action was abandoned due to the lack of standing by these plaintiffs.  That lack of standing led to extra work but not of such a degree as to warrant the exceptional award of full indemnification.  The allegedly improper and scandalous contents of the affidavit material are to be deplored.  Many of the comments are nothing more than statements of opinion, argument or allegations of ulterior motives.  This, however, can be addressed by some increased costs.  Finally, the complaints about the plaintiffs conducting this litigation in the press do not alter my view of the overall circumstances.  Press interviews in the midst of litigation are dangerous practices but they may be unavoidable in cases that draw public interest.

[8] Plaintiffs s counsel argued that any decision on costs for this action should be deferred until the ultimate outcome of the new action.  She submitted that there was yet to be a decision on the merits of the case and, since evidence from this first proceeding can be applied to the new one, there should be few extra costs.  Defendant s counsel argued, however, that these plaintiffs brought this action incorrectly, thereby resulting in extra work and expense, not all of which will be useful in the new action.  Thus they seek costs from these plaintiffs, something that cannot be done in the new action.  I agree with these comments.

[9] The only other peculiarity on this application is the inclusion of the costs award made by Richard J. on February 22nd.  He ordered costs in any event of the cause.   He did not specify the scale or the type.  The general rule is that, if a judge does not specify otherwise, a simple reference to  costs  means the usual party-and-party costs on the applicable tariff.  Here, since no specific monetary claim was advanced, the tariff would be Column 2.  I do not think I have jurisdiction to, in effect, amend the direction by Richard J. and order something else.  Based on Column 2, as noted from the defendant s draft Bill of Costs, the costs for the February 22nd hearing total $898.35 (inclusive of disbursements).

[10] With respect to costs for the proceedings before and after the February 22nd hearing, I have concluded that an award of increased party-and-party costs is warranted.  I fix those costs at $4,000.00 (inclusive of disbursements).  The total costs recoverable by the defendant are therefore fixed at $4,898.35 (inclusive of disbursements).

[11] Dated this 21st day of December, 1999.




       J. Z. Vertes
            J.S.C.


Counsel for the Plaintiffs:  Sarah A. E. Kay
Counsel for the Defendant:  Austin F. Marshall