Court of Appeal Decision of the Week

The Test for Rearguing an Appeal

Case: Piikani Nation v Kostic, 2018 ABCA 275 (CanLII)

Keywords: Application to Reargue Appeal; Oldman River Dam Settlement Agreement; Trust Fund; Investments; Fraud

Synopsis:

Piikani Nation agrees to allow a portion of its lands to be used for the development of the Oldman River Dam, including a hydro-electric power plant. In exchange, Piikani Nation receives $64.3M, settled in the Piikani Trust. The trust agreement contemplates investment of the funds. Piikani selects CIBC, who allow Piikani Nation to appoint the broker and additional advisors. Ms. Kostic is selected by the Piikani Nation.

In November of 2006, Piikani Nation provides Ms. Kostic notice of termination of their business agreement. The Piikani Nation and Piikani Investment Corporation commence an action against Ms. Kostic and others alleging,

  • negligence;
  • breach of fiduciary duty; and
  • conspiracy

The action also alleges irregularities in the appointment of individuals who dealt with the trust funds, that Ms. Kostic was not qualified to be appointed, and that funds were placed in unauthorized investments. Specifically, the action pleads fraud and other misconduct on the part of Ms. Kostic and some band councillors.

In response, Ms. Kostic commences separate litigation against Piikani Nation for wrongful termination and against CIBC claiming full indemnity in the negligence action. Due to “…the complexity and intensity of the litigation” (See Piikani Nation v Kostic, 2018 ABCA 234 (CanLII) at para. 9) a case management judge is appointed.

Six appeals arise from the case management process. Ms. Kostic is unsuccessful. She applies to reargue portions of the appeal, and for a stay. The Court of Appeal dismisses her application to reargue.

Importance:

Citing WestJet v ELS Marketing Inc., 2014 ABCA 372 (CanLII), the Court of Appeal described the reargument of appeals as “…an extraordinary remedy that is rarely granted.” (See para. 2). Appeals may be reargued, but only in exceptional circumstances. As stated in WestJet, the purpose of reargument is to address situations in which the Court has been misled, where it appears the Court misapprehended the evidence, or where there are patent errors in the decision.

The Court of Appeal noted that the limited scope of the reargument remedy had been pointed out “…in this very litigation: Kostic v Piikani Nation, 2017 ABCA 263 (CanLII)” (See para. 2). As such, the Court of Appeal rejected the application to reargue the appeal:

Ms. Kostic has not even come close to justifying a reargument of the six appeals. This application is without merit, and is a classic example of how these sorts of applications can lead to “endless wrangling and never-ending rehearings”: Alberta (Child, Youth and Family Enhancement, Director) v B.M., 2009 ABCA 258 (CanLII) at para. 11, 9 Alta LR (5th) 225, 460 AR 188. The application to reargue the six appeals is dismissed. (See para. 9).

Counsel for the Respondent Piikani Nation: Robert Hawkes, Q.C. and Sarah Lulman (Jensen Shawa Solomon Duguid Hawkes LLPCalgary)

Appellant Liliana Kostic, in person

Counsel for the Respondents Bruce Alger, Grant Thornton Limited, and Grant Thornton Alger Inc.: Richard Gilborn (Caron & Partners LLP, Calgary)

Counsel for the Respondents CIBC Trust Corporation and CIBC World Markets Inc.: David Tupper and Ian Breneman (Blake, Cassels & Graydon LLP, Calgary)

Discuss on CanLii Connects

Posted: Tuesday, August 28, 2018