An Alberta judge has ordered a lawyer to explain why she should not be held personally responsible for costs against her client after advancing a “futile application” on his behalf.
Court of Queen’s Bench Justice Denny Thomas is considering potential costs personally against Priscilla Kennedy, of DLA Piper (Canada) LLP, for advancing litigation that is “abusive and vexatious nature” and could potentially be a “serious abuse” of the judicial system.
Kennedy’s client, Maurice Stoney, brought an application in 1985 Sawridge Trust v Alberta (Public Trustee), 2017 to be added as a beneficiary of a trust set up for members of the Sawridge Band along with 10 other brothers and sisters. Stoney is the son of parents who had been members of the Sawridge First Nation at one point, but gave up their status for an enfranchisement payment.
Thomas found that the courts had already decided the issue in Stoney v. Sawridge First Nation and that Stoney’s argument had already been rejected.
Thomas noted that Stoney did not pursue all available appeals in the earlier proceedings, but he cannot now “attempt to slip into the Sawridge Band and 1985 Sawridge Trust beneficiaries pool ‘though the backdoor’.”
“…This application is a collateral attack which attempts to subvert an unappealed and crystallized judgment of a Canadian court which has already addressed and rejected the applicant’s claims and arguments,” Thomas said.
“This is serious misconduct, which will have costs implications for Maurice Stoney and also potentially his lawyer Priscilla Kennedy.”
Paul Paton, the Dean of Law at the University of Alberta, says that while this is an interim decision, the judge is sending a clear signal as to what the courts’ expectations are for lawyers’ conduct.
“Lawyers play a critically important role in the administration of justice and are often caught between a rock and a hard place,” Paton says.
“You’ve got your responsibilities to your client and you’ve got your responsibilities to the court.”
Paton says that costs are rarely awarded against lawyers personally and that this decision shows courts are looking to take control of their process.
The Supreme Court of Canada recently upheld costs awarded against a criminal defence lawyer personally in Quebec (Criminal and Penal Prosecutions) v. Jodoin.
Whether or not Kennedy will avoid costs could largely hinge on whether she is able to argue that something new was being litigated in this proceeding, Paton says.
“It’s got to be anchored in the good faith argument that there actually was a case to be made here and that’s where… there is a bit of back and forth about which previous decisions either apply or bind the court,” Paton says.
Another issue that could affect the outcome is the fact that Thomas had limited the scope of the application to Stoney alone, as there was no evidence before him that the “10 living brothers or sisters” named had taken any steps to be involved in the litigation.
While Thomas found that Stoney’s application had no merit and was “abusive in a manner that exhibits the hallmark characteristic of vexatious litigation,” Stoney has not been declared a vexatious litigant yet.
Thomas will determine that at a later date, and he has invited Stoney to make written submissions by Aug. 4 as to whether his access to courts should be restricted.
In the meantime, Thomas has prohibited Stoney from filing any material in Alberta courts without the permission of the chief justice, associate chief justice or chief judge.
Paton says it is too early to say whether this matter could create a chill on lawyers accepting difficult cases, but that lawyers should pay close attention to the proceedings.
“It’s a stay tuned message, but with some really important signals for lawyers and the bar,” he says.
Kennedy, who did not respond to requests for comment, is set to appear before the court to make her submissions on July 28.
Doris Bonora, one of the lawyers representing the trustees of the trust set up for the members of the Sawridge Band, did not respond to requests for comment.