Sawridge Indian Band v. Canada, 2006 FC 656

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: May 30, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 656;(2006), 293 F.T.R. 175 (FC)

Sawridge Indian Band v. Can. (2006), 293 F.T.R. 175 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. JN.032

Sawridge Band (plaintiff) v. Her Majesty the Queen (defendant) and Native Council of Canada, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta, Native Women's Association of Canada (interveners) and Tsuu T'ina First Nation (plaintiff) and Her Majesty the Queen (defendant) and Native Council of Canada, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta, Native Women's Association of Canada (interveners)

(T-66-86A&B; 2006 FC 656)

Indexed As: Sawridge Indian Band v. Canada

Federal Court

Russell, J.

May 30, 2006.

Summary:

In 1986, the Sawridge Indian Band and the Tsuu T'ina First Nation (formerly Sarcee Indian Band) (the plaintiffs) sued the Crown seeking a declaration that the 1985 amendments to the Indian Act (Bill C-31) respecting the rights of Indian bands to control membership lists were unconstitutional. The original trial decision by Muldoon, J. ((1995), 97 F.T.R. 161), was quashed on appeal on the grounds of reasonable apprehension of bias by the trial judge ((1997), 215 N.R. 133). A new trial was ordered. In June 1997, a case management judge, Hugessen, J., was assigned to the case. Hugessen, J., experienced difficulties in moving the proceedings to trial, but on March 26, 2004, issued an order that "provided a comprehensive road map to take the matter to trial on January 10, 2005". In late March 2004, Russell, J., was appointed trial judge and thereafter, Hugessen, J., ceased to have any further involvement with the proceedings. Several pre-trial matters arose, including issues relating to will-say statements, pleadings, scope of matters to be decided at trial and relevance. On November 25, 2004, Russell, J., gave instructions as to how these issues should be dealt with and adjourned the trial. The plaintiffs appealed that order, but in the meantime, moved to have Russell, J., recuse himself from the proceedings on the basis of a reasonable apprehension of bias even though the trial had not yet started. The plaintiffs argued further that the Federal Court itself demonstrated a pattern of apprehended bias toward them that required either a transfer of proceedings to the Alberta Court of Queen's Bench or the appointment of a Federal Court judge acceptable to both parties.

The Federal Court, in a decision reported 205 F.T.R. 1, dismissed the motion. The court stated that a reasonable person, fully informed, would see this motion as a groundless and unwarranted proceeding, which had impeded the progress towards trial by almost four months. The matter of costs was left open for submissions. The plaintiffs and the Crown reached an agreement on costs of the bias motion, but the plaintiffs and interveners were unable to agree.

The Federal Court dealt with the remaining costs issues accordingly, including awarding costs of the motion to each of the four interveners, with one intervener being awarded costs on a solicitor and client basis.

Practice - Topic 7036

Costs - Party and party costs - Entitlement - Intervenant - For ten years, two Indian Bands (the plaintiffs), had been pursuing litigation against the Crown for a declaration that the Indian Act provisions relating to control of membership lists were unconstitutional - Four interested parties intervened - Ultimately, Russell, J., of the Federal Court was appointed trial judge - At the pre-trial stage, plaintiffs' counsel moved to have him recused for bias - Russell, J., dismissed the motion as groundless and unwarranted - Costs of the motion as between the plaintiffs and interveners became an issue - The Federal Court discussed the deplorable nature of the conduct of the plaintiffs' counsel on the bias motion which included unfounded allegations of bias, misconduct and collusion against opposing counsel and the court; misrepresenting what a legal authority said and the implications of other court decisions; re-arguing issues; unnecessarily lengthening proceedings and wasting time, etc. - The court held that the interveners were entitled to costs in addition to those claimed by the Crown, without regard to whatever test fee arrangements were in place and without the constraints of the indemnity principle - The court stated that it was reprehensible, scandalous and outrageous for the plaintiffs to put the interveners to the trouble of defending their interests in a motion that was groundless and unwarranted - The court awarded one intervener solicitor and client costs, two interveners costs calculated at 1.5 times the upper end of Column V of Tariff B of the Federal Court Rules and the other intervener costs calculated under column III of Tariff B.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Practice - Topic 7036 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7036 ].

Practice - Topic 7462

Costs - Solicitor and client costs - Entitlement - Unproven allegations of bias against judge - [See Practice - Topic 7036 ].

Practice - Topic 7470.19

Costs - Solicitor and client costs - Entitlement - Interveners - [See Practice - Topic 7036 ].

Practice - Topic 7470.19

Costs - Solicitor and client costs - Entitlement - Interveners - The Federal Court stated that it saw no principal or persuasive authority to prevent the court from following the guidance of the Supreme Court of Canada in British Columbia v. Okanagan Indian Band (2003) concerning the use of costs as a sanction, even when considering an intervener's costs - (i.e., the court could award solicitor and client costs to interveners where warranted) - See paragraphs 52 to 69.

Cases Noticed:

Lynnview Residents' Action Committee v. Imperial Oil - see Imperial Oil Ltd. et al. v. Alberta (Minister of Environment) et al.

Imperial Oil Ltd. et al. v. Alberta (Minister of Environment) et al. (2005), 376 A.R. 381; 360 W.A.C. 381; 2005 ABCA 375, refd to. [para. 40].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 24 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 52].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 52].

Fellowes, McNeil v. Kansa General International Insurance Co. et al. (1997), 49 O.T.C. 339; 37 O.R.(3d) 464 (Gen. Div.), refd to. [para. 57].

Chin v. Salvation Army Scarborough Grace General Hospital (1988), 28 O.A.C. 388 (Div. Ct.), refd to. [para. 70].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L.(4th) 157; 122 D.L.R.(4th) 1, refd to. [para. 10].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re.

Rohani v. Rohani et al., [2003] B.C.T.C. 1500; 2003 BCSC 1500 (Registrar), refd to. [para. 78].

S.R. v. M.R. et al., [2002] O.T.C. 854; 62 O.R.(3d) 107 (Sup. Ct.), refd to. [para. 78].

Rogers v. Administrator of Ontario Works for Greater Sudbury (City) et al., [2001] O.T.C. 630; 57 O.R.(3d) 467 (Sup. Ct.), refd to. [para. 78].

Young v. Toronto Star Newspapers Ltd. et al., [2003] O.T.C. 1102 (Sup. Ct.), refd to. [para. 78].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 24 W.A.C. 284; 74 B.C.L.R.(2d) 311; 12 C.P.C.(3d) 319 (C.A.), refd to. [para. 78].

Skidmore et al. v. Blackmore, [1995] 4 W.W.R. 524; 55 B.C.A.C. 191; 90 W.A.C. 191; 2 B.C.L.R.(3d) 201; 122 D.L.R.(4th) 330; 35 C.P.C.(3d) 28; 27 C.R.R.(2d) 77 (C.A.), refd to. [para. 78].

Lawyers' Professional Indemnity Co. et al. v. Geto Investments Ltd., [2002] O.T.C. 78 (Sup. Ct.), refd to. [para. 81].

TransCanada Pipelines Ltd. v. Potter Station Power Limited Partnership et al. (2003), 172 O.A.C. 379 (C.A.), refd to. [para. 81].

Stellarbridge Management Inc. v. Magna International (Canada) Inc. et al. (2004), 187 O.A.C. 78 (C.A.), refd to. [para. 81].

Ross et al. v. Welsh, [2003] O.T.C. 737 (Sup. Ct.), refd to. [para. 81].

Byers Transportation v. Kosanovich, [1996] F.C.J. No. 760 (Tax. Off.), refd to. [para. 83].

Lavigne v. Ontario Public Service Employees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241; 81 D.L.R.(4th) 545, refd to. [para. 111].

Doe v. Information and Privacy Commissioner (Ont.) (1991), 53 O.A.C. 236; 87 D.L.R.(4th) 348 (Div. Ct.), refd to. [para. 111].

Counsel:

Catherine Twinn, for the plaintiffs;

Edward H. Molstad, Q.C., and Nathan Whitling, for the plaintiffs;

Dale Slaferek, for the defendant;

Mary Eberts, for the intervener, Native Women Association of Canada;

Derek Cranna and Karen Scott, for the intervener, Native Council of Canada (Alberta);

Michael Donaldson and Laura Snowball, for the intervener, Non-status Indian Association of Alberta;

Janet Hutchison, for the intervener, Native Council of Canada;

Ryan Flewelling, for the intervener, Native Council of Canada.

Solicitors of Record:

Twinn, Barristers and Solicitors, Slave Lake, Alberta, for the plaintiffs;

Parlee McLaws LLP, Edmonton, Alberta, for the plaintiffs;

John H. Sims, Q.C., Deputy Attorney General of Canada , Ottawa, Ontario, for the defendants;

Law Office of Mary Eberts, Toronto, Ontario, for the intervener, Native Women Association of Canada;

Field LLP, Edmonton, Alberta, for the intervener, Native Council of Canada (Alberta);

Burnet Duckworth & Palmer LLP, Calgary, Alberta, for the intervener, Non-Status Indian Association of Alberta;

Chamberlain Hutchison, Edmonton, Alberta, for the intervener, Native Council of Canada;

Barrister & Solicitor, Ottawa, Ontario, for intervener, Native Council of Canada.

This matter was heard at Edmonton, Alberta, on February 8 and 9, 2006, before Russell, J., of the Federal Court, who delivered the following decision on May 30, 2006.