Kostic v. Canada

Kostic v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-04-11
Neutral citation
2023 FC 508
File numbers
T-680-20
Decision Content
Date: 20230411
Docket: T-680-20
Citation: 2023 FC 508
Ottawa, Ontario, April 11, 2023
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
LILIANA KOSTIC
Plaintiff
and
HIS MAJESTY THE KING IN RIGHT OF CANADA, AND ALBERTA THE ATTORNEY GENERAL OF CANADA (“CANADA” or “INAC”); THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT CANADA; AND ITS AGENTS
Defendants
and
PIIKANI NATION AND THE BAND NATION AS REPRESENTED BY THE CHIEF AND COUNCIL (“C and C”); ROD NORTH PEIGAN; JANET POTTS; DANIEL NORTH MAN; (TERMS OF THE CHIEF AND COUNCIL 2001-2021 ONWARDS)
Defendants
and
STANLEY GRIER; DOANE K CROWSHOE (“DCS”); ERWIN BASTIEN (“EB”); TROY KNOWLTON; WESLEY CROWSHOE; RIEL PROVOST-HOULE; THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK
Defendants
and
MICHAEL PFLEUGEUR [(“M. PFLEUGEUR”) BAND EMPLOYEE TERM 2010-2017]
Defendants
and
PIIKANI INVESTMENT CORPORATION (“PIC”); AND ITS DIRECTORS ( Directors terms 2003-2021 onwards) And DIRECTORS & ITS LEGAL COUNSEL ( 2003 ON WARDS) CHIEF STANLEY GRIER [(“SG”) SHAREHOLDER TRUSTEE 2015-22]; ERWIN BASTIEN; TROY KNOWLTON; WESLEY CROWSHOE; THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK CHIEF REGGIE CROW SHOE [SHAREHOLDER TRUSTEE 2007-11]; FABIAN NORTH PEIGAN; KAREN CROW SHOE; SAM KHAJEEI; PIERRE-GILLES BETTINA; VERONA WHITE COW; EMILY GRIER & RANA LAW; BLAKE CASSELS & GRAYDON LLP; RICK YELLOW
HORN;DALE MCMULLEN;
Defendants
and
PIIKANI RESOURCE DEVELOPMENT LIMITED (“PRDL”); & ITS DIRECTORS 2008 – ONWARDS PRESIDENT- DOANE K CROW SHOE (“DCS”); CHIEF STANLEY GRIER [(“SG”) SHAREHOLDER TRUSTEES 2015-22]; TROY KNOWLTON; RIEL PROVOST-HOULE; ERWIN BASTIEN (“EB”); THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK; PAUL BLAHA; JASON EDWORTHY; SHAWNA MORNING BULL; MIKE ZUBACH
Defendants
and
CANADIAN IMPERIAL BANK OF COMMERCE (“CIBC”); CIBC TRUST CORPORATION (“CIBC TRUST”) and CIBC WOOD GUNDY/CIBC WORLD MARKETS AND ITS AGENTS (“CIBC WG”)
Defendants
and
JENSEN SHAWA SOLOMON DUGUID HAWKES LLP.; ROBERT HAWKES; GLEN SOLOMON (JSS BARRISTERS, “JSS”)
Defendants
and
BRUCE ALGER (“ALGER”); ALGER & ASSOCIATES INC.; THE GRANT THORNTON GROUP OF COMPANIES; GRANT THORNTON LTD.; GRANT THORNTON INC.; AND ALGER INC.
Defendants
and
CARON AND PARTNERS LLP; RICHARD GILBORN; DANIEL GILBORN (“CP”)
Defendants
and
MILLER THOMPSON LLP; JEFFREY THOM
Defendants
and
GOWLING WLG (CANADA) LLP; CAIREEN HANERT (“CH ”)
Defendants
and
MCLENNAN ROSS LLP; (“MR”)
Defendants
and
JOHN DOES 1-10
Defendants
AND BETWEN
DALE MCMULLEN
Plaintiff by Counterclaim
(Defendant by Counterclaim)
and
CANADIAN IMPERIAL BANK OF COMMERCE, CIBC TRUST CORPORATION, CIBC WORLD MARKETS, and BLAKE CASSELS & GRAYDON LLP
Defendants by Counterclaim
and
PIKANI NATION and PIKANI NATION CHIEF & COUNCIL
Defendants by Counterclaim
ORDER AND REASONS
[1] This is an appeal by Ms. Liliana Kostic, Plaintiff and Defendant by Counterclaim [Kostic], said to be of three Orders of an Associate Judge, dated May 19, 20 and 21, 2021. The appeal is brought pursuant to Rule 51(1) of the Federal Courts Rules SOR/98-106 [Rules].
Procedural Background
[2] The events giving rise to the underlying action [Action] and related matters, both in this Court and in the Court of King’s Bench of Alberta [ACKB], initially occurred nearly 20 years ago. The related claims and litigation have subsequently exponentially evolved.
[3] In a nutshell, according to the Amended Amended Statement of Claim [AASOC] filed by Kostic in this matter, in 2002, Piikani Nation [Piikani], Canada, and Alberta settled litigation by way of a settlement agreement which provided Piikani with settlement funds of $64.3 million. Kostic was appointed by Piikani to manage portions of the settlement funds, which she did until January 2007 when her engagement was terminated. In November 2006, Piikani commenced an action against Kostic in the ACKB (Action No. 0601-13081). The AASOC states that this matter is ongoing, but also states that the fraud allegations against her were dismissed in April 2014. In the ACKB, Kostic initiated a third party claim in Action No. 0601-13081, a wrongful termination claim against Piikani (Action No. 0801-05039), and a wide ranging claim (Action No. 1601-01693) against many of the same parties named in this action.
i. Statement of Claim [4] On June 29, 2020, Kostic initiated this Action by the filing of a 192-page Statement of Claim [SOC] which, as will be discussed below, has subsequently been twice amended. The SOC names some nearly 50 persons and entities including Canada, Piikani, Piikani Chief and Council, law firms, lawyers, a chartered bank, and a trust corporation as defendants. In the AASOC, Kostic asserts some 37 heads of wrongdoing and 24 wrongful acts against the various defendants in various combinations whom she describes as engaging in unlawful means conspiracy and breach of trust, dishonest and knowing assistance in breach of trust, each with their own acts of omission or commission set out to intentionally shift blame and attention to Kostic, to cause damage and injury to her in a scheme to conceal their own wrongdoing. She seeks some $25 million in general, special, exemplary, aggravated and punitive damages.
[5] On June 30, 2020, this Court ordered that the Action would proceed as a specially managed proceeding and, by Order dated July 6, 2020, Associate Judge (Prothonotary) Molgat was assigned as the Case Management Judge [CMJ] for the Action.
[6] A letter dated July 16, 2020, sent by the Attorney General of Canada on behalf of various Defendants, advised the Court that more than 30 defendants represented by legal counsel [Represented Defendants (who consist of: His Majesty the King in Right of Canada, the Attorney General of Canada, the Minister of Indian Affairs and Northern Development Canada, Piikani Nation, Piikani Nation as represented by Chief and Council, Chief Stanley Grier, Erwin Bastien, Troy Knowlton, Wesley Crowshoe, Theodore Provost, Che Little Leaf-Matusiak, Karen Crowshoe, Riel Provost-Houle, Doane K Crow Shoe, Piikani Investment Corporation and its directors (Sam Khajeei, Bettina Pierre-Giles, Verona White Cow), Emily Grier, Rana Law, Blake Cassels & Graydon LLP, Piikani Resource Development Limited and its directors (Doane Crow Shoe, Erwin Bastien, Troy Knowlton, Riel Provost-Houle, Mike Zubach, Jason Edworthy), Canadian Imperial Bank of Commerce, CIBC Trust Corporation, CIBC Wood Gundy/CIBC World Markets, Jensen Shawa Solomon Duguid Hawkes LLP, Robert Hawkes, Glenn Solomon, Bruce Alger, Alger & Associates Inc., Caron and Partners LLP, Richard Gilborn, Daniel Gilborn, Michael Pfleuger, Miller Thomson LLP, Jeffrey Thom, Gowling WLG (Canada) LLP, Caireen Hanert and McLennan Ross LLP)] intended to bring preliminary motions to strike or stay the SOC and sought a case management conference [CMC]. That letter is included in the Represented Defendants’ responding motion record in this appeal.
[7] On September 9, 2020, the CMJ issued an Oral Direction suspending all timelines prescribed by the Rules for the conduct of this Action until the establishment of a timetable by direction or order of the Court.
[8] On October 2, 2020, following a case management conference held on October 1, 2020, the CMJ issued an Oral Direction requiring, among other things, that the Represented Defendants file written confirmation of their intention to defend this Action by October 9, 2020, and that Kostic serve and file her amended SOC by December 1, 2020. This Direction is found in the Represented Defendants’ motion record.
[9] Between October 5 and October 9, 2020, the Represented Defendants filed letters with the Court confirming their intent to defend the Action.
[10] On November 24, 2020, Kostic wrote to the Court requesting an extension of the December 1, 2020 deadline to serve and file an amended SOC to the end of January 2021.
[11] By Oral Direction issued on November 27, 2020, the CMJ directed, since Kostic’s request was not opposed, that the deadline for her to serve and file her amended SOC was extended to January 29, 2021. This Direction is found in the Represented Defendants’ motion record.
[12] On January 27, 2021, Kostic wrote to the Court and requested a further extension of the deadline to serve and file her amended SOC to February 16, 2020.
[13] By Oral Direction dated February 25, 2021, the CMJ directed that the amended SOC could be accepted for filing.
[14] On the same date, Kostic served and filed an Amended Statement of Claim [ASOC], consisting of 211 pages and 1330 paragraphs.
[15] On March 25, 2021, following a CMC held the previous day, the CMJ issued a Direction which, among other things, considered Kostic’s request to have the opportunity to further amend the ASOC to narrow, perfect and reduce the scope of the action and, in that regard, directed that Kostic serve and file her Further Amended Statement of Claim by no later than April 26, 2021 [March 25, 2021 Direction]. The CMJ stated in the Direction that “In view of the Court’s Directions dated October 2, 2020 and November 27, 2020, this date is peremptory on the Plaintiff”. The Direction also scheduled the next CMC in the Action for May 19, 2021, and required the parties to submit a jointly proposed timetable for the next steps in the Action by May 10, 2021. That Direction is found in the Represented Defendants’ appeal motion record.
[16] Kostic served and filed her Amended Amended Statement of Claim [AASOC] on April 26, 2021. It consists of 215 pages and 1322 paragraphs.
[17] The next day, and despite the CMJ’s March 25, 2021 Direction, Kostic requested a further extension of time, to at least June 29, 2021, in order to file a further amended amended amended statement of claim.
[18] On April 28, 2021, counsel for Bruce Alger and Alger & Associates [Alger Defendants], with the concurrence of various other counsel for various other Represented Defendants, wrote to the Court opposing any further extensions of time to amend the AASOC. Kostic responded by letter dated April 28, 2021.
[19] To date, given the pending motions to strike, which are governed by Rule 221, and the suspension of the timelines by the September 9, 2020 Direction, none of the Represented Defendants have filed defences to the AASOC, nor to the prior versions of the claim. Their motions to strike are based, variously, on the lack of jurisdiction of this Court to hear the Action, Kostic’s lack of standing, that the matter is being progressed in another court, the vexatious nature of the proceeding, and abuse of process. Only Mr. Dale McMullen, Defendant and Plaintiff by Counterclaim [McMullen], has filed a Statement of Defence.
[20] On May 7, 2021, the CMJ issued a Direction stating that “[t]o the extent that the Plaintiff has by way of the latest amendment to the Statement of Claim deleted or otherwise removed any Defendant(s), the Plaintiff shall serve and file Notice(s) of Discontinuance with proof of service by no later that May 14, 2021”. This Direction is contained in the Represented Defendants’ responding appeal motion record.
ii. Order of Motions [21] Further to the March 25, 2021 Direction, by letter dated May 10, 2021, the Represented Defendants provided a proposed agenda for the CMC scheduled for May 19, 2021 and their proposed timetable for next steps. The letter noted that Kostic and the unrepresented defendants were provided an opportunity to review the materials but that Kostic had elected to submit her own agenda and the unrepresented defendants had not responded. The Represented Defendants submitted that the proposed motions to strike the AASOC should be prioritized and heard ahead of any other proposed or contemplated motions.
[22] By letter also dated May 10, 2021, Kostic submitted her proposed agenda. In her proposed agenda, Kostic submitted that certain judicial review proceedings brought in this Court, her proposed further amendments to the AASOC, as well as joinder and consolidation motions, should be addressed and scheduled prior to the scheduling and determining of other motions – which would include the proposed motions to strike by the Represented Defendants. Both letters are included in the Represented Defendants’ responding appeal motion record. McMullen also submitted a proposed CMC agenda.
[23] By Direction dated May 18, 2021, the CMJ addressed five items [May 18, 2021 Direction]. One of these items was that Kostic had attempted to file notices of discontinuance which, for the reasons specified in the direction, were defective. A copy of that Direction is attached in Annex A of this Order and was included in the Represented Defendants’ responding appeal motion record.
[24] On May 20, 2021, following a CMC held the previous day, the CMJ issued a Direction [May 20, 2021 Direction], primarily addressing Kostic’s noncompliance with Rule 206, but also addressing other matters arising from the May 19, 2021 CMC, including the motions timeline as submitted on behalf of the Represented Defendants and the addition of new defendants. A copy of the May 20, 2021 Direction is included in Annex A of this Order, and the portions most relevant to this motion are set out below:
5. Regarding the proposed timetable submitted on May 19, 2021 for the motions by any Defendants to strike or stay, the AGC shall prepare a revised timetable to clarify and identify each “group” of represented Defendants that shall file a single joint motion record as proposed, with the exception of the Defendants represented by Emery Jamieson LLP who may file 2 separate motion records. The revised timetable shall be submitted to the Court in .pdf and Word format by no later than May 21, 2021.
…….
7. Issues concerning the addition of Defendants shall be addressed in the context of the proposed motions to strike or stay.
[25] In response to the May 20, 2021 Direction, counsel for the Attorney General of Canada provided a revised timetable on May 20, 2021, which, like the first proposed timeline, prioritized the disposition of the Represented Defendants’ motions to strike ahead of proposed motions by Kostic.
[26] On May 21, 2021, the CMJ ordered that the timelines for the procedural steps pertaining to the defendants’ motions to strike the AASOC or Counterclaim, or to stay the proceedings, would be as specified in that Order [May 21, 2021 Order]. This covered steps up until the filing of written representations and a joint motion record, by no later than December 15, 2021. It also required the parties to provide to the Court, by no later than December 17, 2021, a proposed timeline for service and filing of the responding motion records, and dates and times of common availability for a CMC in mid-December 2021. The May 21, 2021 Order is contained in the Represented Defendants’ responding appeal motion record.
[27] In the May 21, 2021 Order, the CMJ recited and considered the prior procedural events pertaining to the amending of the SOC, the submissions of the parties at and in connection with the May 19, 2021 CMC, and the prioritization of the defendants’ motions to strike. The May 21, 2021 Order is found in Annex A of this Order but is also set out here in whole, as follows:
UPON the Plaintiff having commenced this action by way of a (192-page, 1244 para.) Statement of Claim [Claim] filed June 6, 2020 against some 46 Defendants;
CONSIDERING that by letter from the Attorney General of Canada [Canada] dated July 16, 2020, more than 30 Defendants represented by legal counsel communicated their intention to bring preliminary motions to strike or stay the action;
CONSIDERING the Defence and Counterclaim by Dale McMullen, filed July 29, 2021;
CONSIDERING the Court’s Direction dated September 10, 2020;
CONSIDERING the (211-page, 1330 para.) Amended Claim filed February 25, 2021, and the (215-page, 1322 para.) Amended Amended Claim filed April 26, 2021, both accepted for filing despite their irregularity and without prejudice to the rights of any Defendant to address any irregularities therein;
CONSIDERING that the Plaintiff has, by letter dated April 27, 2021, requested a further extension of time “to at least June 29, 2021” to further amend the Claim to “remove Defendants” and “organize the Defendants into logical groupings” as well as to include further causes of action;
CONSIDERING that the Plaintiff’s request is opposed by some 39 Defendants who are represented by 10 different law firms [Represented Defendants] in view of their proposed motions to strike or stay;
CONSIDERING that the Plaintiff has also proposed to bring a number of interlocutory motions including for a confidentiality order, to examine a trustee in bankruptcy, to freeze funds, for security for costs, to disqualify counsel, for default judgment and to consolidate this proceeding with T-348-21, as well as with T-38-20 (by Dale McMullen) and T-1344-20 (by Brian Jackson);
CONSIDERING that the Defendant/Plaintiff by Counterclaim, Dale McMullen, also wishes to amend his pleading and to bring interlocutory motions including to enforce the terms of indemnity agreements between him and certain Defendants, to disqualify counsel, and for default judgment;
CONSIDERING that the Court is of the view that the stated intention and request by the Represented Defendants to bring motions to strike the Claim and Counterclaim or stay the proceedings constitutes a response to the Claim impacting the right to amend pursuant to Rules 200 and 201 of the Federal Courts Rules;
CONSIDERING the Court’s Directions dated October 2, 2020, November 27, 2020, and March 25, 2021, and that the Plaintiff has already been provided with ample opportunity as requested to amend her Claim to “narrow, perfect and reduce the scope of the action”;
CONSIDERING that the Court is of the view that any further amendments to the Claim or to the Counterclaim may be addressed in response to the motions to strike or stay, and that those motions ought to proceed to determination before any other proposed motions for various interlocutory relief;
CONSIDERING the proposed timetables submitted in accordance with the Court’s Directions dated February 25, 2021 and March 25, 2021 by Canada on behalf of the Represented Defendants;
CONSIDERING that the Plaintiff and self-represented Defendants, including Dale McMullen, did not provide a response to the proposed timetables although invited to do so;
CONSIDERING the submissions of the parties at the case management conference held on May 19, 2021; that evidence pursuant to s.23 of the Canada Evidence Act is contemplated by certain Represented Defendants, and that they are of the view that their motions may be made in writing;
CONSIDERING the Court’s Directions dated May 17, 2021 and May 20, 2021;
AND CONSIDERING Rule 385(1)(a) of the Federal Courts Rules;
THIS COURT ORDERS that the schedule for the motions by Defendants to strike the Statement of Claim or Counterclaim or stay the proceedings shall be as follows:
1. The Defendants shall serve and file their Notices of Motion, together with supporting affidavit(s) or other evidence (if any), [Motions] by no later than June 30, 2021.
2. Cross-examinations on Defendants’ affidavits (if any) shall be completed by no later than July 30, 2021.
3. Respondents to the Motions [Respondents] shall serve and file their affidavits (if any) by no later than September 15, 2021.
4. Cross-examination on Respondents’ affidavits (if any) shall be completed by no later than October 15, 2021.
5. The Defendants shall serve and file their Motion Records, including written representations, by no later than December 15, 2021.
6. Pleadings and evidence shall be contained in a Joint Motion Record filed by the Represented Defendants.
7. With the exception of those represented by Ms. Smith of Emery Jamieson LLP who may file 2 written representations of no more than 30 pages each, written representations by Represented Defendants shall be limited to a maximum of 30 pages for each group of Defendants represented by the same counsel or law firm.
8. The written representations of each Respondent to the Motions shall also be limited to a maximum of 30 pages.
9. The parties shall, by no later than December 17, 2021, discuss and provide the Court with:
(i) a proposed timetable for service and filing of the responding Motion Records by the Respondents, including written representations; and
(ii) dates and times of their common availability for a case management conference.
iii. Kostic appeal of the May 21, 2021 Order
[28] On May 31, 2021, the Registry received an 837-page motion record from Kostic seeking, among other things, to appeal what she describes as the Orders of May 19, 20 and 21. I note here in passing that there are no Orders dated May 19 and 20, 2021. Directions were issued on May 18 and May 20, 2021, as described above. By Direction of Justice Little dated June 10, 2021, the motion record was not accepted for filing because of identified defects. On June 23, 2021, Kostic submitted a 7433-page motion record seeking, among other things, to appeal what she described as Orders dated May 19, 20, and 21, 2021. By Direction dated September 15, 2021, Justice Heneghan directed that, for the reasons set out, the motion record would not be accepted for filing. Kostic resubmitted the appeal motion record on October 7, 2021.
[29] However, it was not until over a year later that the appeal motion was accepted for filing by a Direction dated November 30, 2022 issued by Associate Judge Tabib. In her Direction, Associate Judge Tabib noted the history of the attempts to file the motion and that the Registry had sought directions as to whether Kostic’s motion record, “submitted for filing on October 7, 2021, but inadvertently not referred to the Court for direction until recently, can be accepted for filing”, and directed that:
The Plaintiff’s motion is submitted for filing over five months after the “orders” sought to be appealed, and is, on its face, late. However, the Court notes that the Plaintiff served and submitted for filing her initial motion record within the deadlines for appeal. The discrepancies noted were in respect of the content of the motion record, and not with the Notice of Motion itself, which should have been accepted for filing on its own to preserve the appeal deadlines (Rule 51 requires that the Notice of Motion, and not the record, be served and filed within 10 days of the order on appeal). The Notice of Motion will be deemed to have been filed on May 31, 2021, under reserve of any objection the Defendants may raise as to modifications between the version initially served and the version served on October 7, 2021.
The Notice of Motion also purports to appeal “orders” dated May 19 and 20, 2021, and is out of time for those orders (assuming they even exist). Any issues regarding timeliness and amenability to appeal of these other “orders” should properly be raised on the merit of the motion. The same goes for all other irregularities noted by the Registry: to the extent the record contains inadmissible evidence or materials for which leave should have been but was not sought, that may be raised by the parties in their responding record, or by the Court on its on motion, and be addressed at the hearing of the motion.
[30] In the meantime, on December 17, 2021, counsel for the Attorney General of Canada, on behalf of the Represented Defendants, wrote to the CMJ, as required by the May 21, 2021 Order, proposing that Kostic and McMullen serve and file their motion records responding to the Represented Defendants’ motions to strike by February 15, 2021, and that Kostic and McMullen disagreed with that proposed timetable and would separately write to the Court in that regard. Further, that those parties were available for a CMC on January 24, 2022. Kostic responded on the same date confirming her availability on January 24, 2022, noting her outstanding appeal of the May 21, 2021 Order and, attaching a proposed timetable.
[31] On January 27, 2022, counsel for the Attorney General for Canada wrote to the CMJ, referencing their December 17, 2021 letter and Kostic’s letter in response, and requested that the Court fix a deadline for service and filing of the responding motion records and suggested, as a matter of expediency, that this be done without a CMC. However, if the Court found that a CMC was required, available dates for the Represented Defendants were identified.
[32] Between January 28, 2022 and November 2022, there are few entries in the Court’s record.
[33] On November 18, 2022, counsel for the Alger Defendants, with the concurrence of all of the Represented Defendants, wrote to the CMJ concerning the May 21, 2021 Order and advised that the Represented Defendants had complied with all of the required steps and deadlines, including, prior to December 15, 2021, serving and filing a Joint Motion Record and their respective Written Representations pertaining to the motions to strike the AASOC. The letter also referred to the December 17, 2021 letter submitted by counsel for the Attorney General of Canada on behalf of the Represented Defendants in response to the May 21, 2021 Order, the December 17, 2021 responding letter from Kostic, and the January 27, 2022 letter from counsel for the Attorney General of Canada on behalf of the Represented Defendants. Counsel for the Alger Defendants noted that there had been no response to those letters nor had the Represented Defendants been served with responding motion records of the motion respondents although, in the proposed timeline provided with her December 17, 2021 letter, Kostic had requested until September 2022 to do so. Counsel for the Alger Defendants noted that 11 months had passed since the Represented Defendants had provided their motion to strike materials to the responding parties and repeated the submission made in the January 27, 2022 letter from counsel for the Attorney General of Canada requesting that the Court fix a deadline for the filing and service of responding motion records and written representations by the motion respondents, and a deadline for the filing an service of reply submissions (if any) by the Represented Defendants.
[34] By Order dated November 29, 2022, the CMJ responded to the November 22, 2022 letter and the above referenced proposed timelines. With respect to the motions to strike by the Represented Defendants, she ordered that Kostic and McMullen serve and file their responding motion records, including written representations, by no later than February 15, 2023, and that the Represented Defendants serve and file any written representations in reply by no later than February 28, 2023. A copy of the November 29, 2022 Order is contained in the Represented Defendants’ responding appeal motion record.
[35] And, as noted above, on November 30, 2022, Associate Judge Tabib issued a direction deeming Kostic’s Notice of Motion (which was contained within her motion record) appealing what Kostic described as May 19, 20 and 21, 2023 Orders, to be have been filed on October 7, 2021. This Direction is found in the Represented Defendants’ responding appeal motion record.
[36] On December 19, 2022, Kostic wrote an 8-page letter to the CMJ. With respect to the appeal, she stated, “By way of reminder: I still await my filed Appeal Motion record that was accepted for filing November 30, 2022, so that I can schedule my May 30, 2021, Appeal. I also require a Direction from this Court how to schedule that”. The letter states that her stay of the Action is required to avoid further prejudice pending the determination of related actions. The letter goes on to list various other concerns, comments, positions and arguments.
[37] By Direction dated January 4, 2023, the CMJ directed as follows:
The following correspondence has been referred to the Court: a 4-page letter from the Defendant/Plaintiff by Counterclaim, Dale McMullen, dated December 16, 2022 and an 8- page letter from the Plaintiff/Defendant by Counterclaim, Liliana Kostic, dated December 19, 2022. It is not clear under what Rule, Practice Direction or authority the parties are sending these letters to the Court. These parties are referred to the Consolidated General Practice Guidelines (June 8, 2022), Update #9 and Consolidated COVID-19 Practice Direction (October 24, 2022) as well as the numerous Directions and Orders issued by the Court in these proceedings. Please address the Court only when you seek specific relief which the Court can grant. And do so in a proper way in accordance with the Rules and Practice Directions as well as the Orders and Directions issued. Regarding Mr. McMullen’s letter: Unless the strict requirements of an Informal Request for Interlocutory Relief are met, the Court will not grant any form of relief requested by way of a simple letter. This includes requests for an extension of time. Regarding Ms. Kostic’s letter and “reminder”: The Registry does not routinely provide filed copies of documents. If a party wishes a copy of a filed document, they may obtain same by attending at a Registry Office or by making a written request. This request has been complied with. As to the request for a “Direction” on how to schedule her appeal motion for hearing, the Plaintiff is referred to Federal Courts Rules 34 and 35. The Court declines to address the balance of the Plaintiff’s letter which consists of submissions in reply to communications from other parties. Written submissions will not be entertained by the Court unless they are made in accordance with the Rules, a Direction or Order.
[38] By Direction dated February 6, 2023, I addressed matters pertaining to the transcript of Kostic’s cross-examination of McMullen, which cross-examination was held on July 29, 2021 [Transcript], and the setting down of two appeals of orders of the CMJ. One appeal was brought by McMullen and concerns scheduling deadlines and the availability of the Transcript. The other was the appeal to which this decision corresponds – that is, Kostic’s appeal of the May 21, 2021 Order. My Direction advised that if extensions of time related to the Transcript availability were not sought by McMullen and/or Kostic prior to February 10, 2023, then both appeals would be set down to be heard in Calgary on March 9, 2023.
[39] On February 9, 2023, Kostic filed and served a document entitled “Motion Record of Liliana Kostic for a Stay of Proceedings or Alternate Relief – Pursuant to Memorandum of Judge Strickland in writing or orally” in which she sought to stay the May 21, 2021 Order of the CMJ pending the outcome of her appeal. By Direction dated February 15, 2023, I informed the parties that the stay motion was not responsive to my February 6, 2023 Direction (which sought to have Kostic and McMullen address extensions of time needed with respect to the Transcript) and that Kostic was to inform the Court on or before February 15, 2023 whether she intended for the stay motion to proceed in writing or in person. Kostic advised that she sought an oral hearing of the stay motion which, by my direction of February 20, 2023, was confirmed as proceeding in person in Calgary at 9:30 am on February 28, 2023.
[40] On February 15, 2023, Kostic submitted a 662-page document entitled “Responding Motion of Liliana Kostic”. By Direction dated February 20, 2023, I advised that it was not apparent from this document to what motion it responded, although it might be in response to the November 29, 2022 and the January 5, 2022 Orders requiring Kostic to file responding motion records to the Represented Defendants’ and McMullen’s motions to strike by February 15, 2023. I also pointed out that the document contained written submissions in draft form. I directed that before the document could be considered for filing, Kostic must advise the Registry to which motion(s) the document responds and provide the final form of her written representations. As of the time of the hearing of this appeal, Kostic has not responded to that Direction.
The Appeal [41] In her Notice of Motion, Kostic states that she seeks:
An Order and Declaration:
1. REVERSING the May 19, 20 and 21st, 2021 Order(s) of the Honourable Case Management Prothonotary Madam Sylvie Molgat and replacing it with an Order the Case Management Judge, herein referred to as “the Court” and or the “CMJ ” should have granted, be reversed or varied in whole or in part;
2. Permitting the Applicants proposed AMENDMENTS TO HER STATEMENT OF CLAIM PRIOR TO ANY STRIKING MOTIONS in Action T-680-20 and for this motion to be heard and spoken to on expedited basis and;
3. for Leave to admit NEW EVIDENCE, nunc pro tunc and ADMISSION of the new evidence.
4. that the Applicant was not afforded DUE PROCESS AND PROCEDURAL FAIRNESS
5. permitting the Motion to NOTE DEFENDANTS IN DEFAULT who have not Defended the claim.
6. to POSTPONE and reschedule THE LITIGATION PLAN in this action pending the Appeals and Judicial review in action’s T-1344-20 and T-348-20 and the plaintiff’s proposed Motion to be added as a party in action T-38-20 with the other corollary relief;
7. that The Applicant be awarded the COSTS in a fixed amount of this Motion with three Fees multipliers; Contingency, Public interest Private Attorney General, and Vexatious Behaviour.
8. An Order for Interim costs and/or indemnity under the Plaintiff’s save harmless and indemnity agreement(s).
[Emphasis in original.]
Preliminary Matters i. Request for Adjournment [42] When this appeal was called, Kostic stated that she wished to advise the Court that a serious a matter had arisen which warranted an adjournment of her appeal.
[43] Kostic stated she had recently become aware that information and records of hers had been stolen, including information subject to solicitor-client privilege. Kostic made repeated, very serious allegations as to the theft against Ms. Caireen Hanert, counsel for Piikani [Hanert]. Kostic also alleged that the police had been advised and they had informed her that this was a very serious matter, that search warrants would likely be issued and charges could be laid. She asserted that a letter had very recently been sent by Mr. Bill Clem (possibly meaning William Klym), who she says is counsel representing her in other matters, to Hanert raising these allegations of theft. In Kostic’s view, this event changed the entire complexation of the Action and the appeal before me, which therefore could not proceed.
[44] Kostic also asserted that in order for the appeal to now proceed, she would need to retain counsel given this alleged change of circumstances. And, in any event, that she was too distraught to continue, so the appeal would have to be adjourned, and to do otherwise would be in breach of procedural fairness.
[45] Canada opposed the adjournment given that Kostic had previously been advised by the Court of the clear path that she needed to follow if she intended to retain counsel to represent her at the appeal. Canada further submitted that even if the matter was adjourned, there was no certainty that Kostic would retain counsel, particularly in light of her ongoing breach of the Court’s Order concerning the production of the Transcript. Moreover, the record being relied upon in the appeal was limited to the Court’s Orders and Directions and as such, Kostic would not be prejudiced, as it would not involve consideration of the documents purportedly stolen. Additionally, Kostic’s new allegation of stolen records was made in broad generalities, which did not engage with the substance of the appeal. Finally, Canada submitted that there was a serious risk of indefinite delay if the adjournment were granted on the basis of the alleged theft. The Action was commenced three years ago, yet has still only progressed to the point where the motions to strike have been set down, even though some 30 of the defendants gave notice of their intention to bring those motions on July 16, 2020.
[46] McMullen generally supported an adjournment with appropriate time frames.
[47] Hanert, on behalf of Piikani, also opposed the adjournment. Given the very serious allegations leveled against her by Kostic, I allowed Hanert some latitude in providing background information. She advised that two weeks prior to the hearing of this appeal she had received a letter from Mr. Gabor Zinner [Zinner], who represents Kostic in other matters, raising the theft allegations and that she had responded at that time.
[48] After a brief recess to consider the submissions, I declined to grant the adjournment for the following reasons, which I explained at the hearing.
[49] First, as previously set out in my decision dismissing Kostic’s request for a stay of this Action pending the outcome of this appeal (2023 FC 306), Kostic is a self-represented litigant.
[50] By my Direction dated February 15, 2023, Kostic was informed that, as no notice of solicitor had been filed pursuant to Rules 124(1) or 124(2), there would be no engagement by the Court with communications submitted on her behalf from persons not so appointed. By responding letter of same date, Kostic stated that she intended for Zinner to be retained to provide limited-scope representation and sought “leave pursuant to Rule 124(2)” and also sought “leave to file form 124(d)”. By my Direction dated February 20, 2023, Kostic was informed that that leave was not required under Rule 124(2) and that if she wished to have legal representation with respect to the Action, including with respect to the upcoming stay motion and two appeals of Orders of the CMJ, then she was required to file and serve her notice of limited-scope representation, which notice must be in compliance with Rule 124(2), by February 22, 2023. Further, that leave would not be granted, pursuant to Rule 123(3), to appoint a solicitor to provide limited-scope representation, before serving and filing the notice of limited-scope representation, upon appearance at the three motions set down to be heard on February 28, 2023, and March 9, 2023.
[51] On February 23, 2023, Kostic and Zinner sought to file a Rule 124 Form 124D Notice of Limited-Scope Representation. However, it was not in compliance with Rule 124(2).
[52] By my Direction dated February 23, 2023, I indicated that the Form 124D as served and submitted for filing by Kostic does not indicate what Zinner’s mandate is – only that he may act “should assistance be required and agreed” – and failed to identify any specific motion, appeal or other matter for which Zinner has been retained to provide limited-scope representation. Kostic and Zinner were also reminded that leave would not be granted, pursuant to Rule 123(3), to appoint a solicitor to provide limited-scope representation, before serving and filing a compliant notice of limited-scope representation, upon appearance at the stay motion set down to be heard on February 28, 2023, and the two appeal motions set down to be heard on March 9, 2023. A compliant Notice of Limited-Scope Representation was not submitted for filing.
[53] Regardless, at the hearing of the stay motion, Kostic advised that Zinner was in attendance and sought to participate in the stay motion by speaking to one aspect of her motion– her health. She would otherwise represent herself. She submitted that she and Zinner did not understand the Rules pertaining to limited-scope representation or my Directions above. Given the past clear Directions, I declined to permit Zinner to seek leave to make submissions at the stay motion hearing with respect to one part of Kostic’s intended submissions.
[54] In light of all of this, I agree with Canada that Kostic was given a clear path to follow if she wished to retain counsel for the appeal.
[55] Further, Hanert informed the Court, in response to the adjournment request, that the theft allegation was raised by a letter to her from Zinner two weeks prior to the hearing of this app