Knebush v. Maygard et al., (2014) 471 F.T.R. 150 (FC)

• Judge: Mandamin, J.
• Court: Federal Court (Canada)
• Case Date: December 19, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 471 F.T.R. 150 (FC);2014 FC 1247

Knebush v. Maygard (2014), 471 F.T.R. 150 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. AP.001

Cynthia Knebush (applicant) v. Ruth Maygard, Clarissa McArthur, Gaylene McArthur and Kathleen McArthur, in their personal capacities and in their capacity as the Band Council of the Pheasant Rump Nakota First Nation and the Pheasant Rump Nakota First Nation (respondents)

(T-378-14; 2014 FC 1247)

Indexed As: Knebush v. Maygard et al.

Federal Court

Mandamin, J.

December 19, 2014.

Summary:

The respondent First Nation was governed by its own custom electoral system, which required a by-election for chief within two months of a vacancy in the chief's office. The chief resigned in August 2013. In February 2014, Knebush applied for mandamus, compelling the respondent band councillors to hold a by-election. Knebush was represented by counsel. Three of the respondent councillors jointly retained counsel. McArthur, a respondent who was at odds with the other respondents, retained separate counsel. The parties reached a settlement that called for a general election in June 2014. Knebush sought costs of $10,000 from the respondents personally, except McArthur. McArthur sought "full solicitor client costs".

The Federal Court awarded Knebush costs of $10,000 and McArthur costs of $1,500, payable by the First Nation.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - [See both Practice - Topic 9871 ].

Practice - Topic 6

General principles and definitions - Application of practice rules - [See second Practice - Topic 9871 ].

Practice - Topic 7019

Costs - Party and party costs - Entitlement to party and party costs - General principles - [See second Practice - Topic 9871 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See second Practice - Topic 9871 ].

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - [See second Practice - Topic 9871 ].

Practice - Topic 9871

Settlements - Costs - The respondent First Nation was governed by its own custom electoral system, which required a by-election for chief within two months of a vacancy in the chief's office - The chief resigned in August 2013 - In February 2014, Knebush applied for mandamus, compelling the respondent band councillors to hold a by-election - The parties reached a settlement that called for a general election in June 2014 - At issue was costs - The Federal Court discussed the principles regarding the awarding of costs following settlement in the context of First Nation governance issues - The court concluded that the consideration of costs was appropriate in settlements of First Nation judicial review applications, rather than merely being an exception to the general practice of not awarding costs in settlements - See paragraphs 23 to 61.

Practice - Topic 9871

Settlements - Costs - The respondent First Nation was governed by its own custom electoral system, which required a by-election for chief within two months of a vacancy in the chief's office - The chief resigned in August 2013 - In February 2014, Knebush applied for mandamus, compelling the respondent band councillors to hold a by-election - Knebush was represented by counsel - Three of the respondent councillors jointly retained counsel - McArthur, a respondent who was at odds with the other respondents, retained separate counsel - The parties reached a settlement that called for a general election in June 2014 - Knebush sought costs of $10,000 from the respondents personally, except McArthur - McArthur sought "full solicitor client costs" - The Federal Court awarded Knebush costs of $10,000 and McArthur costs of $1,500, payable by the First Nation - The rules applied to costs awards following settlements - Knebush had achieved her objective of scheduling an earlier general election date - McArthur's involvement was minimal - Important considerations included promoting compliance with First Nation governance law and restoring relationships - The parties' conduct in achieving resolution was a significant factor - The respondents had immediately entered settlement discussions and came to a resolution that involved giving up their own terms - The presumption that their legal costs were covered by the First Nation had not been displaced - Finally, solicitor and client costs were reserved for cases of reprehensible, scandalous conduct and for cases that gave rise to matters of important public interest - See paragraphs 62 to 69.

Cases Noticed:

Francosteel Canada Inc. v. Ship African Cape et al. (2003), 301 N.R. 313; 2003 FCA 119, refd to. [para. 23].

Merck & Co. et al. v. Novopharm Ltd. et al. (1998), 152 F.T.R. 74 (T.D.), refd to. [para. 24].

RCP Inc. v. Minister of National Revenue, [1986] 1 F.C. 485 (T.D.), refd to. [para. 26].

Mohawk Council of Akwesasne v. Canada (Minister of Human Resources and Social Development), [2010] F.T.R. Uned. 476; 2010 FC 754, refd to. [para. 26].

Commandant et al. v. Hay et al., [2014] F.T.R. Uned. 74; 2014 FC 213, refd to. [para. 28].

Randall et al. v. Caldwell First Nation of Point Pelee et al., [2006] F.T.R. Uned. 642; 2006 FC 1054, refd to. [para. 32].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 38].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Roseau River Anishinabe First Nation Custom Council v. Nelson et al. (2013), 428 F.T.R. 136; 2013 FC 180, refd to. [para. 39].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 41].

Ratt et al. v. Matchewan et al. (2010), 362 F.T.R. 285; 2010 FC 160, refd to. [para. 44].

Elders of Mitchikinabikok Inik v. Algonquins of Barriere Lake Customary Council - see Ratt et al. v. Matchewan et al.

Gamblin v. Norway House Cree Nation Band Council et al. (2012), 424 F.T.R. 125; 2012 FC 1536, refd to. [para. 45].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 53].

Bellegarde v. Poitras et al., [2009] F.T.R. Uned. 771; 2009 FC 1212, refd to. [para. 58].

Counsel:

Sacha R. Paul, for the applicant, Cynthia Knebush;

Michael P. Hudec, for the respondents, Ruth Maygard, Gaylene McArthur and Kathleen McArthur, in their personal capacities and in their capacity as the Band Council of the Pheasant Rump Nakota First Nations;

Kirk Goodtrack, for the respondent, Clarissa McArthur.

Solicitors of Record:

Thompson Dorfman Sweatman LLP, Winnipeg, Manitoba, for the applicant, Cynthia Knebush;

Hudec Law Office, North Battleford, Saskatchewan, for the respondents, Ruth Maygard, Gaylene McArthur and Kathleen McArthur, in their personal capacities and in their capacity as the Band Council of the Pheasant Rump Nakota First Nations;

Goodtrack Law, Regina, Saskatchewan, for the respondent, Clarissa McArthur.

Submissions with respect to costs in this matter were considered at Ottawa, Ontario, by Mandamin, J., of the Federal Court, who delivered the following reasons for order on December 19, 2014.