Case: Kostic v Piikani Nation, 2017 ABCA 263 (CanLII)

Keywords: Contracts; Enforceability; Misapprehension of Evidence; Test for Re-Arguing an Appeal


Following the Court of Appeal’s decision in Kostic v Piikani Nation, 2017 ABCA 53 (CanLII), the Applicant, Piikani Nation, seeks leave to re-argue the appeal on the basis the court is misled with respect to the evidence, and misapprehended/overlooked critical evidence.

At the first appeal, the issue to be determined is enforceability of business agreements executed by the parties. The Applicant’s argument is that the agreements are not enforceable as they are not supported by consideration. The Respondent successfully appeals the Trial Judge’s declaration the agreements are unenforceable; the Court of Appeal concludes the business agreements are both supported by consideration and enforceable.

The Court of Appeal dismisses the Applicant’s application for leave to re-argue the appeal. The Court of Appeal concludes that arguments advanced by the Applicant in support of re-arguing the case are collateral to the decision made on enforceability.


Citing Equitable Trust Company v Lougheed Block Inc, 2012 ABCA 171 (CanLII) at para 3, the Court of Appeal noted that leave to re-argue an appeal is only granted in exceptional circumstances:

The test for leave to re-argue requires exceptional, special or unusual circumstances and it is understood that the practice is to be discouraged: Strichen v Stewart, 2005 ABCA 201 (CanLII) at para 5, 367 AR 188, citing Portage Credit Union Ltd v DER Auctions Ltd (#2) (1994), 1994 ABCA 50 (CanLII), 18 Alta LR (3d) 185. When it is alleged that a court overlooked or misapprehended the evidence, the applicant must show that the overlooked or misapprehended evidence would have affected the outcome: Arrowhead Auto and Truck Parts Ltd v Calgary (City), 1997 ABCA 77 (CanLII), 196 AR 57. The applicant must provide support for the allegation that the court misled itself or was misled having regard to the record or the issues raised: Greater Montreal Protestant School Board v Quebec (Attorney General), 1989 CanLII 76 (SCC), [1989] 2 SCR 167, 97 NR 143. Disagreement by the appellant with certain findings does not warrant leave to re-argue. (See para. 4, citing para. 3 in Equitable Trust Company v Lougheed Block Inc, 2012 ABCA 171 (CanLII)).

The Applicant argued the Court of Appeal overlooked/misapprehended the evidence in two ways:

  • by finding the second agreement had a seven-year term, and
  • by finding significance in a reference to a Band Council Resolution contained in the Investment Management Agreement with Raymond James, which purported to direct the appointment of the respondent as an investment advisor to the institutional investment counsellor (Raymond James) named by the applicant to manage certain of the applicant’s trust funds.

The Court of Appeal found that none of the alleged misapprehensions challenged the ratio of its previous decision. That being said, the Court was prepared to accept that it misstated certain factual elements. For example, with respect to the seven-year term,

The panel thought the term of the contract was limited to five years; but erroneously stated that it was seven. In so doing, the panel did not intend to make a binding statement one way or the other on the duration of the arrangement. Any statement the panel made about the duration of the contract was clearly obiter and ought not to affect the assessment of damages, if any. The length of the contracted arrangement is a matter best left to be addressed by the court below in assessing damages. The panel’s reasons make it abundantly clear that it was not in a position to assess damages. Its decision went only to enforceability. (See para. 9).

Ultimately when assessing both of the Applicant’s concerns the Court of Appeal concluded that its past interpretation of the evidence, faulty or not, did not impact its determination of the issue of enforceability of the business agreement executed between the parties. (See para. 11).

Counsel for the Respondent: William Klym (William S. Klym Professional Corporation, Calgary)

Counsel for the Applicant: Robert Hawkes, Q.C., and Sarah Lulman (Jensen Shawa Solomon Duguid Hawkes LLP, Calgary)

Discuss on CanLii Connects (to be linked Tom!)