Date: 20230304

Docket: T-680-20

Citation: 2023 FC 306

Ottawa, Ontario, March 4, 2023

PRESENT: The Honourable Madam Justice Strickland

BETWEEN:

LILIANA KOSTIC

Plaintiff

and

HIS MAJESTY THE KING IN RIGHT OF CANADA, AND ALBERTA THE ATTORNEY GENERAL OF CANADA (“CANADA” or “INAC”); THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT CANADA; AND ITS AGENTS

Defendants

and

PIIKANI NATION AND THE BAND NATION AS REPRESENTED BY THE CHIEF AND COUNCIL (“C and C”); ROD NORTH PEIGAN; JANET POTTS; DANIEL NORTH MAN; (TERMS OF THE CHIEF AND COUNCIL 2001-2021 ONWARDS)

Defendants

and

STANLEY GRIER; DOANE K CROWSHOE (“DCS”); ERWIN BASTIEN (“EB”); TROY KNOWLTON; WESLEY CROWSHOE; RIEL PROVOST-HOULE; THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK

Defendants

and

MICHAEL PFLEUGEUR [(“M. PFLEUGEUR”) BAND EMPLOYEE TERM 2010-2017]

Defendants

and

PIIKANI INVESTMENT CORPORATION (“PIC”); AND ITS DIRECTORS ( Directors terms 2003-2021 onwards) And DIRECTORS & ITS LEGAL COUNSEL ( 2003 ON WARDS) CHIEF STANLEY GRIER [(“SG”) SHAREHOLDER TRUSTEE 2015-22]; ERWIN BASTIEN; TROY KNOWLTON; WESLEY CROWSHOE; THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK CHIEF REGGIE CROW SHOE [SHAREHOLDER TRUSTEE 2007-11]; FABIAN NORTH PEIGAN; KAREN CROW SHOE; SAM KHAJEEI; PIERRE-GILLES BETTINA; VERONA WHITE COW; EMILY GRIER & RANA LAW; BLAKE CASSELS & GRAYDON LLP; RICK YELLOW

HORN~~;DALE MCMULLEN~~;

Defendants

and

PIIKANI RESOURCE DEVELOPMENT LIMITED (“PRDL”); & ITS DIRECTORS 2008 – ONWARDS PRESIDENT- DOANE K CROW SHOE (“DCS”); CHIEF STANLEY GRIER [(“SG”) SHAREHOLDER TRUSTEES 2015-22]; TROY KNOWLTON; RIEL PROVOST-HOULE; ERWIN BASTIEN (“EB”); THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK; PAUL BLAHA; JASON EDWORTHY; SHAWNA MORNING BULL; MIKE ZUBACH

Defendants

and

CANADIAN IMPERIAL BANK OF COMMERCE (“CIBC”); CIBC TRUST CORPORATION (“CIBC TRUST”) and CIBC WOOD GUNDY/CIBC WORLD MARKETS AND ITS AGENTS (“CIBC WG”)

Defendants

and

JENSEN SHAWA SOLOMON DUGUID HAWKES LLP.; ROBERT HAWKES; GLEN SOLOMON (JSS BARRISTERS, “JSS”)

Defendants

and

BRUCE ALGER (“ALGER”); ALGER & ASSOCIATES INC.; THE GRANT THORNTON GROUP OF COMPANIES; GRANT THORNTON LTD.; GRANT THORNTON INC.; AND ALGER INC.

Defendants

and

CARON AND PARTNERS LLP; RICHARD GILBORN; DANIEL GILBORN (“CP”)

Defendants

and

MILLER THOMPSON LLP; JEFFREY THOM

Defendants

and

GOWLING WLG (CANADA) LLP; CAIREEN HANERT (“CH ”)

Defendants

and

MCLENNAN ROSS LLP; (“MR”)

Defendants

and

JOHN DOES 1-10

Defendants

ORDER AND REASONS

[1] The Plaintiff, Ms. Liliana Kostic [Kostic], brings this motion seeking an order staying the proceeding and all steps in the proceeding in this action until her appeal of an Order dated May 21, 2021 [Appeal], issued by the Case Management Judge, has been heard and decided on its merits. Alternatively, she seeks an order granting an extension of time to file her responding motion to the motions to strike filed in this action, pending the outcome of her appeal.

Procedural Background

[2] The events giving rise to this action and related matters, both in this Court and in the Alberta Court of Kings Bench, initially occurred nearly 20 years ago, the related claims and litigation have subsequently exponentially evolved. While it is not necessary for the purpose of this motion to delve into the particulars of these matters, some procedural background to this action is required to provide context for this motion for a stay. The summary that follows is extracted from the Court’s record, it does not purport to address all of the many entries found in that record, only those most relevant to the motion now before me.

i. Representation at the motion

[3] Kostic is a self-represented litigant. While it appears that she has engaged counsel to represent her in other proceedings, she has not to do so in this action or to provide limited scope representation in this motion.

[4] In that regard, by my Direction dated February 15, 2023, Kostic was informed that, as no notice of solicitor had been filed pursuant to Rules 124(1) or 124(2) of the Federal Courts Rules, SOR/98-106 [Rules], there would be no engagement by the Court with communications submitted on her behalf from persons not so appointed. By responding letter of same date, Kostic stated that she intended for Mr. Gabor Zinner [Zinner] to be retained to provide limited scope representation and sought “leave pursuant to Rule 124(2). We also seek leave to file form 124(d)”. By my Direction dated February 20, 2023, Kostic was informed that that leave was not required under Rule 124(2) and that if she wished to have representation with respect to this matter, including with respect to this and two other upcoming motions, she was required to file and serve her notice of limited representation, which notice must be in compliance with Rule 124(2), by February 22, 2023. Further, that leave would not be granted, pursuant to Rule 123(3), to appoint a solicitor to provide limited scope representation, before serving and filing the notice of limited representation, upon appearance at the motions set down to be heard on February 28, 2023, and March 9, 2023.

[5] On February 23, 2023, Kostic and Zinner sought to file a Rule 124 Form 124D Notice of Limited Representation. However, it was not in compliance with Rule 124(2).

[6] By my Direction dated February 23, 2023, I indicated that the Form 124D as served and submitted for filing by Kostic does not indicate what Zinner’s mandate is – only that he may act “should assistance be required and agreed” – and failed to identify any specific motion, appeal or other matter for which Zinner has been retained to provide limited scope representation. Kostic and Zinner were also reminded that leave would not be granted, pursuant to Rule 123(3), to appoint a solicitor to provide limited scope representation, before serving and filing a compliant notice of limited representation, upon appearance at the stay motion set down to be heard on February 28, 2023, and the two appeal motions set down to be heard on March 9, 2023. A compliant Notice of Limited Representation was not submitted for filing.

[7] Regardless, at the hearing of this stay motion, Kostic advised that Zinner was in attendance and sought to participate in the stay motion by speaking to one aspect of her motion, her health. She would otherwise represent herself. She submitted that she and Zinner did not understand the Rules pertaining to limited scope representation or my Directions above.

[8] Given the past clear Directions, I declined to permit Zinner to seek leave to make submissions at the stay motion hearing with respect to one part of Kostic’s intended submissions.

[9] Kostic also sought to submit, at the stay hearing, a document that she said was a medical record to support her claim of irreparable harm, which she also wanted to submit as a confidential, sealed document. Counsel for the Represented Defendants opposed this admission and request, which was raised at the hearing for the first time. At the hearing, I advised Kostic that I was making no finding at that time as to the admissibility of the document. Having now considered her request, I am declining to admit it. No reason was offered by Kostic as to why a motion for a confidentiality order, pursuant to Rule 151, could not have been addressed with the submissions made in support of the stay motion. Further, the Defendants would be prejudiced by a submission, at the hearing, which they have not had the opportunity to review or assess with respect to the claim for confidentiality or its content.

ii. Statement of Claim

[10] Kostic commenced the underlying action by way of Statement of Claim [SOC] filed on June 29, 2020. The SOC was 192 pages and 1244 paragraphs long, named some nearly 50 persons and entities as defendants and asserted numerous and wide-ranging allegations and claims for relief [Action].

[11] On June 30, 2020, this Court ordered that the Action would proceed as a specially managed proceeding and, by Order dated July 6, 2020, Associate Judge (then Prothonotary) Molgat was assigned as the Case Management Judge [CMJ] for the Action.

[12] A letter dated July 16, 2020, sent by the Attorney General of Canada on behalf of various Defendants, advised the Court that more than 30 Defendants represented by legal counsel [Represented Defendants] intended to bring preliminary motions to strike or stay the SOC and sought a case management conference [CMC].

[13] On September 9, 2020, the CMJ issued an Oral Direction suspending all timelines prescribed by the Rules for the conduct of this Action until the establishment of a timetable by direction or order of the Court.

[14] On October 2, 2020, following a case management conference held on October 1, 2020, the CMJ issued an Oral Direction requiring, among other things, that the Represented Defendants file written confirmation of their intention to defend this Action by October 9, 2020, and that Kostic serve and file her amended SOC by December 1, 2020.

[15] Between October 5 and October 9, 2020, the Represented Defendants filed letters with the Court confirming their intent to defend the Action.

[16] On November 24, 2020, Kostic wrote to the Court requesting an extension of the December 1, 2020 deadline to serve and file an amended SOC to the end of January 2021.

[17] By Oral Direction issued on November 27, 2020, the CMJ directed, since Kostic’s request was not opposed, that the deadline for her to serve and file her amended SOC was extended to January 29, 2021.

[18] On January 27, 2021, Kostic wrote to the Court and requested a further extension of the deadline to serve and file her amended SOC to February 16, 2020.

[19] By Oral Direction dated February 25, 2021, the CMJ directed that the amended SOC could be accepted for filing.

[20] On the same date, Kostic served and filed an Amended Statement of Claim [ASOC], consisting of 211 pages and 1330 paragraphs.

[21] On March 25, 2021, following a CMC held the previous day, the CMJ issued a Direction which, among other things, considered Kostic’s request to have the opportunity to further amend the ASOC to narrow, perfect and reduce the scope of the action and, in that regard, directed that Kostic serve and file her Further Amended Statement of Claim by no later than April 26, 2021. The CMJ stated in the Direction that “In view of the Court’s Directions dated October 2, 2020 and November 27, 2020, this date is peremptory on the Plaintiff”. The Direction also scheduled the next CMC in the Action for May 19, 2021, and required the parties to submit a jointly proposed timetable for the next steps in the Action by May 10, 2021.

[22] Kostic served and filed her Amended Amended Statement of Claim [AASOC] on April 26, 2021. It consists of 215 pages and 1322 paragraphs.

[23] The next day, and despite the CMJ’s March 25, 2021 Direction, Kostic requested a further extension of time, to at least June 29, 2021, in order to file a further amended amended amended statement of claim.

[24] On April 28, 2021, counsel for Bruce Alger and Alger & Associates [Alger Defendants], with the concurrence of various other counsel for various other Represented Defendants, wrote to the Court opposing any further extensions of time to amend the AASOC. Kostic responded by letter dated April 28, 2021.

[25] To date, given the pending motions to strike, which are governed by Rule 221, and the suspension of the timelines by the September 9, 2020 Direction, none of the Represented Defendants have filed defences to the AASOC, nor to the prior versions of the claim. Their motions to strike are based, variously, on the lack of jurisdiction of this Court to hear the Action, Kostic’s lack of standing, that the matter is being progressed in another court, the vexatious nature of the proceeding, and abuse of process. Only the Defendant Dale McMullen [McMullen] has filed a Statement of Defence.

iii. Order of Motions

[26] On May 18, 2021 the CMJ issued an Oral Direction [May 18, 2021 Direction] which, among other things, and as will be discussed further below, addressed notices of discontinuance that Kostic sought to file. A copy of that Direction is attached in Annex A of this Order.

[27] Prior to the May 19, 2021 CMC, and in response to the March 25, 2021 Direction, Kostic, Canada, on behalf of the Represented Defendants, and McMullen submitted proposed CMC agendas. In her proposed agenda, Kostic submitted that certain judicial review proceedings brought in this Court, her proposed further amendments to the AASOC, as well as joinder and consolidation motions, should be addressed and scheduled prior to the scheduling and determining of other motions – which would include the proposed motions to strike by the Represented Defendants. The Represented Defendants, through counsel for the Attorney General of Canada, submitted a proposed timetable and submitted that the proposed motions to strike out the AASOC should be prioritized and heard ahead of any other proposed or contemplated motions.

[28] On May 20, 2021, following a CMC held the previous day, the CMJ issued a Direction [May 20, 2021 Direction], primarily addressing Kostic’s noncompliance with Rule 206, but also addressing other matters arising from the May 19, 2021 CMC, including the motions timeline as submitted on behalf of the Represented Defendants and the addition of new defendants. A copy of the May 20, 2021 Direction is included in Annex A of this Order, and the portions most relevant to this motion are set out below:

5. Regarding the proposed timetable submitted on May 19, 2021 for the motions by any Defendants to strike or stay, the AGC shall prepare a revised timetable to clarify and identify each “group” of represented Defendants that shall file a single joint motion record as proposed, with the exception of the Defendants represented by Emery Jamieson LLP who may file 2 separate motion records. The revised timetable shall be submitted to the Court in .pdf and Word format by no later than May 21, 2021.

6. Issues concerning the addition of Defendants shall be addressed in the context of the proposed motions to strike or stay.

[29] In response to the May 20, 2021 Direction, counsel for the Attorney General of Canada provided a revised timetable on May 20, 2021, which, like the first proposed timeline, prioritized the disposition of the Represented Defendants’ motions to strike ahead of proposed motions by Kostic.

[30] On May 21, 2021, the CMJ ordered [May 21, 2021 Order] that the timelines for the procedural steps pertaining to the motions by the Defendants to strike the AASOC or Counterclaim, or to stay the proceedings, would be as specified in that Order. This covered steps up until the filing of written representations and a joint motion record, by no later than December 15, 2021. It also required the parties to provide to the Court, by no later than December 17, 2021, a proposed timeline for service and filing of the responding motion records, and dates and times of common availability for a CMC in mid-December 2021.

[31] Because the May 21, 2021 Order is the subject of the Appeal by Kostic, and this stay motion is concerned with a stay of proceedings until that Appeal has been heard and decided, it is significant to note that in the May 21, 2021 Order, the CMJ recited and considered the prior procedural events pertaining to the amending of the SOC, the submissions of the parties at and in connection with the May 19, 2021 CMC, and the prioritization of the Defendants’ motions to strike. The May 21, 2021 Order is found in Annex A of this Order but is also set out here in whole, as follows:

UPON the Plaintiff having commenced this action by way of a (192-page, 1244 para.) Statement of Claim [Claim] filed June 6, 2020 against some 46 Defendants;

CONSIDERING that by letter from the Attorney General of Canada [Canada] dated July 16, 2020, more than 30 Defendants represented by legal counsel communicated their intention to bring preliminary motions to strike or stay the action;

CONSIDERING the Defence and Counterclaim by Dale McMullen, filed July 29, 2021;

CONSIDERING the Court’s Direction dated September 10, 2020;

CONSIDERING the (211-page, 1330 para.) Amended Claim filed February 25, 2021, and the (215-page, 1322 para.) Amended Amended Claim filed April 26, 2021, both accepted for filing despite their irregularity and without prejudice to the rights of any Defendant to address any irregularities therein;

CONSIDERING that the Plaintiff has, by letter dated April 27, 2021, requested a further extension of time “to at least June 29, 2021” to further amend the Claim to “remove Defendants” and “organize the Defendants into logical groupings” as well as to include further causes of action;

CONSIDERING that the Plaintiff’s request is opposed by some 39 Defendants who are represented by 10 different law firms [Represented Defendants] in view of their proposed motions to strike or stay;

CONSIDERING that the Plaintiff has also proposed to bring a number of interlocutory motions including for a confidentiality order, to examine a trustee in bankruptcy, to freeze funds, for security for costs, to disqualify counsel, for default judgment and to consolidate this proceeding with T-348-21, as well as with T-38-20 (by Dale McMullen) and T-1344-20 (by Brian Jackson);

CONSIDERING that the Defendant/Plaintiff by Counterclaim, Dale McMullen, also wishes to amend his pleading and to bring interlocutory motions including to enforce the terms of indemnity agreements between him and certain Defendants, to disqualify counsel, and for default judgment;

CONSIDERING that the Court is of the view that the stated intention and request by the Represented Defendants to bring motions to strike the Claim and Counterclaim or stay the proceedings constitutes a response to the Claim impacting the right to amend pursuant to Rules 200 and 201 of the Federal Courts Rules;

CONSIDERING the Court’s Directions dated October 2, 2020, November 27, 2020, and March 25, 2021, and that the Plaintiff has already been provided with ample opportunity as requested to amend her Claim to “narrow, perfect and reduce the scope of the action”;

CONSIDERING that the Court is of the view that any further amendments to the Claim or to the Counterclaim may be addressed in response to the motions to strike or stay, and that those motions ought to proceed to determination before any other proposed motions for various interlocutory relief;

CONSIDERING the proposed timetables submitted in accordance with the Court’s Directions dated February 25, 2021 and March 25, 2021 by Canada on behalf of the Represented Defendants;

CONSIDERING that the Plaintiff and self-represented Defendants, including Dale McMullen, did not provide a response to the proposed timetables although invited to do so;

CONSIDERING the submissions of the parties at the case management conference held on May 19, 2021; that evidence pursuant to s.23 of the Canada Evidence Act is contemplated by certain Represented Defendants, and that they are of the view that their motions may be made in writing;

CONSIDERING the Court’s Directions dated May 17, 2021 and May 20, 2021;

AND CONSIDERING Rule 385(1)(a) of the Federal Courts Rules;

THIS COURT ORDERS that the schedule for the motions by Defendants to strike the Statement of Claim or Counterclaim or stay the proceedings shall be as follows:

1. The Defendants shall serve and file their Notices of Motion, together with supporting affidavit(s) or other evidence (if any), [Motions] by no later than June 30, 2021.

2. Cross-examinations on Defendants’ affidavits (if any) shall be completed by no later than July 30, 2021.

3. Respondents to the Motions [Respondents] shall serve and file their affidavits (if any) by no later than September 15, 2021.

4. Cross-examination on Respondents’ affidavits (if any) shall be completed by no later than October 15, 2021.

5. The Defendants shall serve and file their Motion Records, including written representations, by no later than December 15, 2021.

6. Pleadings and evidence shall be contained in a Joint Motion Record filed by the Represented Defendants.

7. With the exception of those represented by Ms. Smith of Emery Jamieson LLP who may file 2 written representations of no more than 30 pages each, written representations by Represented Defendants shall be limited to a maximum of 30 pages for each group of Defendants represented by the same counsel or law firm.

8. The written representations of each Respondent to the Motions shall also be limited to a maximum of 30 pages.

9. The parties shall, by no later than December 17, 2021, discuss and provide the Court with:

(i) a proposed timetable for service and filing of the responding Motion Records by the Respondents, including written representations; and

(ii) dates and times of their common availability for a case management conference.

iv. Kostic appeal of the May 21, 2021 Order

[32] On May 31, 2021, the Registry received an 837-page motion record from Kostic seeking, among other things, to appeal what she describes as the Orders of May 19, 20 and 21 (I note here in passing that there are no Orders dated May 19 and 20, 2021. Directions were issued on May 18 and May 20, 2021, as described above). By Direction of Justice Little dated June 10, 2021, the motion record was not accepted for filing because of identified defects. On June 23, 2021, Kostic submitted a 7433-page motion record seeking, among other things, to appeal what she described as Orders dated May 19, 20, and 21, 2021. By Direction dated September 15, 2021, Justice Heneghan directed that, for the reasons set out, the Kostic motion would not be accepted for filing. Kostic resubmitted the appeal motion on October 7, 2021.

[33] However, it was not until over a year later and by a Direction dated November 30, 2022, issued by Associate Judge Tabib, that the appeal motion was accepted for filing. In her Direction, Associate Judge Tabib noted the history of the attempts to file the motion and that the Registry had sought directions as to whether Kostic’s motion record, “submitted for filing on October 7, 2021, but inadvertently not referred to the Court for direction until recently, can be accepted for filing”, and directed that:

The Plaintiff’s motion is submitted for filing over five months after the “orders” sought to be appealed, and is, on its face, late. However, the Court notes that the Plaintiff served and submitted for filing her initial motion record within the deadlines for appeal. The discrepancies noted were in respect of the content of the motion record, and not with the Notice of Motion itself, which should have been accepted for filing on its own to preserve the appeal deadlines (Rule 51 requires that the Notice of Motion, and not the record, be served and filed within 10 days of the order on appeal). The Notice of Motion will be deemed to have been filed on May 31, 2021, under reserve of any objection the Defendants may raise as to modifications between the version initially served and the version served on October 7, 2021.

The Notice of Motion also purports to appeal “orders” dated May 19 and 20, 2021, and is out of time for those orders (assuming they even exist). Any issues regarding timeliness and amenability to appeal of these other “orders” should properly be raised on the merit of the motion. The same goes for all other irregularities noted by the Registry: to the extent the record contains inadmissible evidence or materials for which leave should have been but was not sought, that may be raised by the parties in their responding record, or by the Court on its on motion, and be addressed at the hearing of the motion.

[34] In the meantime, on December 17, 2021, counsel for the Attorney General of Canada, on behalf of the Represented Defendants, wrote to the CMJ, as required by the May 21, 2021 Order, proposing that Kostic and McMullen serve and file their motion records responding to the Represented Defendants’ motions to strike by February 15, 2021, and that Kostic and McMullen disagreed with that proposed timetable and would separately write to the Court in that regard. Further, that those parties were available for a CMC on January 24, 2022. Kostic responded on the same date confirming her availability on January 24, 2022, noting her outstanding appeal of the May 21, 2021 Order and attaching a proposed timetable.

[35] On January 27, 2022, counsel for the Attorney General for Canada wrote to the CMJ, referencing their December 17, 2021 letter and Kostic’s letter in response, and requested that the Court fix a deadline for service and filing of the responding motion records and suggested, as a matter of expediency, that this be done without a CMC. However, if the Court found that a CMC was required, available dates for the Represented Defendants were identified.

[36] Between January 28, 2022 and November 2022, there are few entries in the Court’s record.

[37] On November 18, 2022, counsel for Alger Defendants, with the concurrence of all of the Represented Defendants, wrote to the CMJ concerning the May 21, 2021 Order and advised that the Represented Defendants had complied with all of the required steps and deadlines, including, prior to December 15, 2021, serving and filing a Joint Motion Record and their respective Written Representations pertaining to the motions to strike the AASOC. The letter also referred to the December 17, 2021 letter submitted by counsel for the Attorney General of Canada on behalf of the Represented Defendants in response to the May 21, 2021 Order, the December 17, 2021 responding letter from Kostic, and the January 27, 2022 letter from counsel for the Attorney General of Canada on behalf of the Represented Defendants. Counsel for the Alger Defendants noted that there had been no response to those letters nor had the Represented Defendants been served with responding motion records of the motion respondents although, in the proposed timeline provided with her December 17, 2021 letter, Kostic had requested until September 2022 to do so. Counsel for the Alger Defendants noted that 11 months had passed since the Represented Defendants had provided their motion to strike materials to the responding parties and repeated the submission made in the January 27, 2022 letter from counsel for the Attorney General of Canada requesting that the Court fix a deadline for the filing and service of responding motion records and written representations by the motion respondents, and a deadline for the filing an service of reply submissions (if any) by the Represented Defendants.

[38] By Order dated November 29, 2022, the CMJ responded to the November 22, 2022 letter and the above referenced proposed timelines. With respect to the motions to strike by the Represented Defendants, she ordered that Kostic and McMullen serve and file their responding motion records, including written representations, by no later than February 15, 2023, and that the Represented Defendants serve and file any written representations in reply by no later than February 28, 2023.

[39] And, as noted above, on November 30, 2022 Associate Judge Tabib issued a direction deeming the Notice of Motion (which was contained within the motion record) to be have been filed on October 7, 2021.

[40] On December 19, 2022, Kostic wrote an 8-page letter to the CMJ. With respect to the Appeal, she states that she reminds the CJM that she “still await my filed Appeal Motion record that was accepted for filing November 30, 2022, so that I can schedule my May 30, 2021, Appeal. I also required a Direction from this Court how to schedule that”. The letter states that her stay of the Action is required to avoid further prejudice pending the determination of related actions. The letter goes on to listing various other concerns, comments, positions and arguments.

By Direction dated January 4, 2023, the CMJ directed as follows:

The following correspondence has been referred to the Court: a 4-page letter from the Defendant/Plaintiff by Counterclaim, Dale McMullen, dated December 16, 2022 and an 8- page letter from the Plaintiff/Defendant by Counterclaim, Liliana Kostic, dated December 19, 2022. It is not clear under what Rule, Practice Direction or authority the parties are sending these letters to the Court. These parties are referred to the Consolidated General Practice Guidelines (June 8, 2022), Update #9 and Consolidated COVID-19 Practice Direction (October 24, 2022) as well as the numerous Directions and Orders issued by the Court in these proceedings. Please address the Court only when you seek specific relief which the Court can grant. And do so in a proper way in accordance with the Rules and Practice Directions as well as the Orders and Directions issued. Regarding Mr. McMullen’s letter: Unless the strict requirements of an Informal Request for Interlocutory Relief are met, the Court will not grant any form of relief requested by way of a simple letter. This includes requests for an extension of time. Regarding Ms. Kostic’s letter and “reminder”: The Registry does not routinely provide filed copies of documents. If a party wishes a copy of a filed document, they may obtain same by attending at a Registry Office or by making a written request. This request has been complied with. As to the request for a “Direction” on how to schedule her appeal motion for hearing, the Plaintiff is referred to Federal Courts Rules 34 and 35. The Court declines to address the balance of the Plaintiff’s letter which consists of submissions in reply to communications from other parties. Written submissions will not be entertained by the Court unless they are made in accordance with the Rules, a Direction or Order.

[41] By Direction dated February 6, 2023, I addressed matters pertaining to the transcript of the cross-examination of McMullen, held on July 29, 2021 [Transcript], and the setting down of two appeals of orders of the CMJ. One appeal was brought by McMullen and concerns scheduling deadlines and the availability of the Transcript. The other was the Kostic Appeal of the May 21, 2021 Order. My Direction advised that if extensions of time related to the Transcript availability were not sought by McMullen and/or Kostic prior to February 10, 2023, then both appeals would be set down to be heard in Calgary on March 9, 2023.

[42] On February 9, 2023, Kostic filed and served a document entitled “Motion Record of Liliana Kostic for a Stay of Proceedings or Alternate Relief – Pursuant to Memorandum of Judge Strickland in writing or orally”. By Direction dated February 15, 2023, I informed the parties that the stay motion was not responsive to my February 6, 2023 Direction (which sought to have Kostic and McMullen address extensions of time needed with respect to the Transcript) and that Kostic was to inform the Court on or before February 15, 2023 whether she intended for the stay motion to proceed in writing or in person. Kostic advised that she sought an oral hearing of the stay motion which, by my direction of February 20, 2023, was confirmed as proceeding in person in Calgary at 9:30 am on February 28, 2023.

[43] On February 15, 2023, Kostic submitted a 662-page document entitled “Responding Motion of Liliana Kostic”. By Direction dated February 20, 2023, I advised that it was not apparent from this document to what motion it responded, although it might be in response to the November 29, 2022 and the January 5, 2022 Orders requiring Kostic to file responding motion records to the Represented Defendants’ and to the McMullen motions to strike by February 15, 2023. I also pointed out that the document contained written submissions in draft form. I directed that before the document could be considered for filing, Kostic must advise the Registry to which motion(s) the document responds and provide the final form of her written representations. As of the time of the hearing of this stay motion, Kostic had not responded to that Direction.

Stay Motion

[44] The Notice of Motion filed by Kostic requesting a stay states that it seeks:

1. An Order ordering a Stay of Proceedings and staying any all steps until Kostic’s Appeal, submitted May 31, 2021 and filed October 7, 2021 is heard and decided upon its merits, or in the alternative, granting an extension of time to file a responding motion to the striking motions pending the final outcome of the appeal.

2. For any and all costs, charges, and expenses on a full indemnity basis, as contractually set out in the Indemnity Agreement between Kostic and Respondent RJL.

3. A Declaration that Kostic’s indemnitors: CIBC, Piikani and Raymond James are obligated to save her harmless and indemnify her in respect to any and all defence in respect of her reply materials in respect of Dale McMullen’s alleged counterclaim for February 15, 2023, for past, and future defence costs, expenses, liability, damages, including defence costs retroactively as a disclosed agent and employee to disclosed principals.

4. For such further and other relief as this Honourable Court deems just and appropriate in the circumstances.

5. Kostic relies on her previous materials in this action, appeal and Application and Affidavit filed concurrently herewith in support of the submissions contained herein.

[45] Section 50(1)(b) of the Federal Courts Act, RSC, 1985, c F-7 [Federal Courts Act] addresses when a stay of proceeding may be granted:

50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter

(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or

(b) where for any other reason it is in the interest of justice that the proceedings be stayed.

[46] Rule 51(1) of the Rules states that an order of a prothonotary (now associate judge) may be appealed by a motion to a judge of the Federal Court.

[47] Rule 398(1) concerns the staying of orders:

398 (1) On the motion of a person against whom an order has been made,

(a) where the order has not been appealed, the court that made the order may order that it be stayed; or

(b) where a notice of appeal of the order has been issued, a judge of the court that is to hear the appeal may order that it be stayed.

Accordingly, this Court has jurisdiction to address Kostic’s stay motion in light of her Appeal which she has, presumably, brought pursuant to Rule 51(1)(b).

Test for a Stay

[48] As to the test for a stay, Kostic refers to Dallin v Montgomery, 2010 ABQB 700 which held that the test to be applied to a stay of enforcement is the same tripartite test used in the context of interlocutory injunction applications, being the test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 [RJR-McDonald]. Specifically, that the party bringing the motion must establish that i) is there a serious issue to be tried on appeal; ii) they will suffer irreparable harm if the stay is refused; and iii) the balance of convenience is in their favour. She makes her submissions on that basis.

[49] However in Viterra Inc v Grain Workers' Union (International Longshoreman's Warehousemen's Union, Local 333), 2021 FCA 41, the Federal Court of Appeal held:

23 As the parties both recognize, the test for this Court to grant a stay of one of its own proceedings, as opposed to a proceeding in another forum, is less demanding than the RJR test: it is "whether, in all of the circumstances, the interests of justice support the appeal being delayed": . However, in considering the interests of justice, the Court may take into account some of the same considerations as those referred to in RJR : Clayton v Canada (Attorney General), 2018 FCA 1 at para. 26. The Court will also be guided by the principle set out in rule 3 of the Federal Courts Rules, SOR/98-106: that of securing "the just, most expeditious and least expensive determination of every proceeding on its merits": Coote v. Lawyers' Professional Indemnity Company, 2013 FCA 143 at para. 12.

[50] And, in Clayton v. Canada (Attorney General), 2018 FCA 1, the Federal Court of Appeal held:

24To begin, it is important to distinguish between “a court staying other bodies’ proceedings pending an appeal or other matter, or for an injunction” and a stay that is, in reality, “a long-term adjournment”: Epicept Corp. v. Canada (Minister of Health), 2011 FCA 209 at para. 14, 425 N.R. 353. Building on this distinction, in Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312, 426 N.R. 167 (Mylan), this Court set out an “interest of justice” test governing whether the Court should stay its own proceedings. In that case, Justice Stratas held, at paragraph 5, that:

5… This Court deciding not to exercise its jurisdiction until some time later. When we do this, we are exercising a jurisdiction that is not unlike scheduling or adjourning a matter. Broad discretionary considerations come to bear in decisions such as these. There is a public interest consideration – the need for proceedings to move fairly and with due dispatch – but this is qualitatively different from the public interest considerations that apply when we forbid another body from doing what Parliament says it can do. As a result, the demanding tests prescribed in RJR-MacDonald do not apply here. This is not to say that this Court will lightly delay a matter. It all depends on the factual circumstances presented to the Court. In some cases, it will take much to convince the Court, for example where a long period of delay is requested or where the requested delay will cause harsh effects upon a party or the public. In other cases, it may take less. (emphasis in original)

[51] Given this, the interest of justice test is to be applied in this matter as Kostic seeks this Court to stay the May 20, 2021 Order issued by the CMJ, that is, its own proceeding (see also ArcelorMittal Exploitation minière Canada SENC c Canada (Procureur général), 2021 FC 998 at para 2 [Arcelor]; Jackson v Piikani First Nation, 2021 FC 246 at para 11).

[52] In Arcelor Justice McHaffie described some of the considerations that come into play when applying the interest of justice test:

19For motions of this type, “broad discretionary considerations” and the factual circumstances presented to the Court come to bear in the Court’s decision (Mylan at para 5; Coote v Lawyers’ Professional Indemnity Company, 2013 FCA 143 at paras 11–12). These considerations include the public interest in having proceedings move fairly and with due dispatch; the general principle of applying the Rules to secure a just, expeditious and cost-effective determination of a proceeding; the length of the stay being sought; the reason for seeking the stay; the potential for wasting resources; and the prejudice or inconvenience to the parties should the stay be granted or refused (Mylan at para 5; Coote at paras 12–13; Clayton v Canada (Attorney General), 2018 FCA 1 at paras 7, 28; Federal Courts Rules, s 3).

Analysis

[53] In her written submissions, Kostic submits that a “triable issue” arises in her Appeal because:

• She asserted in her motion for an Appeal that she should be permitted to further amend the AASOC before the motions to strike are heard and that her Appeal be heard on an expedited basis;

• The motions to strike will become moot if she is permitted to further amend the AASOC as she intends to amend and remove “some” of the parties who have brought motions to strike “thereby eliminating the need for the hearing proper”;

• She has brought this stay motion;

• She has sought an extension of page limitations to respond to various motions to strike;

• She sought to have her Appeal heard on an expedited basis but only received confirmation that her Appeal motion had been filed until November 2022, over one year later; and

• “The several serious questions of law such as jurisdiction should be or should have been scheduled first”.

[54] I will address below each of Kostic’s submissions.

a) Page limits

[55] As to the CMJ’s determination that the Represented Defendants in their motions to strike and Kostic and McMullen in responding to those motions must all limit their written submissions to 30 pages, being the limit prescribed by Rule 70(4), I am not persuaded that the fact that Kostic seeks to appeal the page limitation pertaining to her responding motion gives rise to a concern with respect to the interests of justice or, as Kostic submits, a serious issue that would support the staying of the Action pending determination at the Appeal.

[56] It is important to keep in mind that Kostic seeks to stay the Action pending the hearing of her Appeal of the May 21, 2021 Order. That Order is a scheduling order issued as part of the CMJ’s case management of the Action which, short of a palpable and overriding error (Housen v Nikolaisen, 2002 SCC 33), is to be afforded deference (Hospira Healthcare Corp v Kennedy Institute of Rheumatology, 2016 FCA 215; Rovi Guides, Inc v BCE Inc, 2022 FC 979 at para 24 citing Hughes v Canada (Human Rights Commission), 2020 FC 986 at para 67, Sawridge Band v R, 2001 FCA 338 at para 11, and Merck & Co v Apotex, 2003 FCA 438, at para 12)

[57] Case management judges are most familiar with the cases that they are managing and declining to expand the page limits imposed by the Rules is a purely discretionary determination made in that context. Kostic merely disagrees with this determination.

b) Stay motion

[58] Nor does the fact that Kostic has now brought this motion seeking a stay give rise to concern with respect to the interests of justice or, as Kostic submits, a serious issue to be dealt with in the Appeal. The stay motion will have been dealt with prior to the hearing of the Appeal.

c) Potential mootness of the motions to strike by amendment of the AASOC

[59] As to Kostic’s submission that a serious issue arises because the motions to strike will, if she is permitted to further amend the AASOC, become moot, as she intends to amend and remove “some” of the parties who have brought motions to strike “thereby eliminating the need for the hearing proper”, this is without merit. Over 30 defendants seek to strike the AASOC, removing “some” unidentified number of them will not render the motions to strike of those remaining moot.

[60] Further, the record indicates that Kostic has previously attempted to file notices of discontinuance that were defective. She was directed to correct, serve, and file proper notices of discontinuance by May 25, 2021, if this was her intent (Direction of May 18, 2021). In the May 20, 2021 Direction, the CMJ stated that, further to her Direction dated May 17, 2021, Kostic was “only required to serve and file a Notice of Discontinuance in respect of any Defendant(s) against whom she is in fact wholly discontinuing the action. To the extent that the Plaintiff appears to have merely crossed out the name of certain Defendants from the style of cause without removing, deleting or otherwise abandoning her claims against those persons, they remain party Defendants in the action”. The Court’s record does not indicate that Kostic has filed any compliant notices of discontinuance. Had she done so, then clearly the motions to strike of those defendants would be rendered moot. Further, she need not amend her AASOC to accomplish that goal; she can file notices of discontinuance in the appropriate manner.

[61] And, significantly, the CMJ expressed the view that any further amendments to the claim or counterclaim could be addressed in response to the motions to strike, which motions ought to proceed to determination before any other proposed motions for various interlocutory relief. In other words, the CMJ’s Order did not prohibit the further amending of the AASOC, but expressly indicated that the route available to Kostic to do so was to address this issue in response to the motions to strike. Given this, even if the CMJ’s considerations as set out in her recitals are viewed as the subject of the May 21, 2021 Order – rather than just the actual steps and related filing deadlines ordered – a remedy was afforded and is available to Kostic. This militates against granting the stay.

d) Timing of Appeal

[62] Much of Kostic’s submissions are concerned with the fact that she initially submitted her Appeal of the May 21, 2021 Order on May 31, 2021, which was ultimately filed October 7, 2021, when the deficiencies were rectified, but that her Appeal was not set down to be heard until February 9, 2023.

[63] In that regard, she submits that she sent seven letters to the Court between June 3, 2021 and December 19, 2021, concerning the scheduling of her Appeal, which letters she has provided as exhibits to her affidavit sworn on February 9, 2023, and filed in support of her stay motion [Kostic Affidavit] and are also found in the Court’s record. I note that prior to October 7, 2021 (being the effective date for filing per the November 20, 2022 Direction of Associate Judge Tabib), the Appeal was not perfected and could therefore not have been scheduled. After October 7, 2021, Kostic sent only the December 17, 2021 letter referenced above. The next letter from Kostic concerning the Appeal scheduling is dated December 19, 2022.

[64] In the December 17, 2021 letter, Kostic noted that she was still awaiting scheduling of her Appeal of the May 21, 2021 Order “and a Direction from this Court” and asserted that she suffered unspecified prejudice and was being denied her right to be heard and that “My stay of this action is required to avoid further prejudice inter alia pending the final determinations in the related actions T-348-21; T-1344-20; T-1224-21; the July 7, 2021 Piikani Removal Appeal Board (RAB) Decision and now T-1850-21)”. I note, however, that no stay motion had been filed at that time. And, while Kostic suggested in other correspondence to the Court that her Appeal included a stay of all steps in this Action (her letters of September 21, 2021, December 19, 2022 and January 5, 2023), the Notice of Motion of Appeal does not explicitly seek a stay of proceedings. That said, the relief that it requests (among other things) does include that the litigation plan be postponed and rescheduled pending “the Appeals and Judicial review in action’s T-1344-20 and T-348-20 and the plaintiff’s proposed Motion to be added as a party in action T-38-20 with other corollary relief”. I would also note, however, that in a June 3, 2021 letter sent to the Court, Kostic acknowledged that her Appeal (not then filed due to deficiencies) did not serve to stay the order under appeal.

[65] In any event, as to the timing of the scheduling of the Appeal, Kostic states in the Notice of Motion filed with respect to this stay that she only received confirmation that the Appeal had been filed “after Judge Molgat issued her order regarding deadlines notwithstanding my appeal was accepted and filed on October 2021” (emphasis in original) and that she was denied procedural fairness and due process.

[66] The May 21, 2021 Order, which is the subject of the Appeal was, of course, issued prior to the Appeal being filed.

[67] What Kostic appears to take issue with is the November 29, 2022 Order requiring her and McMullen to file their motion records responding to the Represented Defendants motions to strike by February 15, 2023, because that date was set before her Appeal was scheduled. She has not appealed that Order.

[68] In January 2023, Kostic commenced communications with the Registry seeking available hearing dates to hear the Appeal, prior to February 15, 2023, as she was required to file responding materials by that date. Kostic seems to have been under the incorrect impression that she needed a direction or leave from the CMJ in that regard or that the CMJ schedules appeals of her own orders.

[69] At the same time, it is also not apparent to me that the outstanding request for scheduling the Appeal was a live issue within, and why it was not addressed sooner by, the Court. In any event, the stay has been heard prior to the Appeal, which has been scheduled to be heard before me on March 9, 2023.

[70] The Represented Defendants raise a number of issues in response to the stay motion, including whether the May 21, 2021 and the November 29, 2022 Orders are spent, rendering the stay moot, and whether Kostic meets the interest of justice or the RJR-MacDonald tests.

[71] The Represented Defendants’ primary position that it is not open to Kostic to stay the May 21, 2021 Order. They submit that this is because all of the steps required by that Order were fully performed by the Represented Defendants by December 17, 2021, thereby rendering the stay motion moot. The Represented Defendants note that the determination of mootness involves a two-step process as set out by the Supreme Court of Canada in Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1SCR 342 [Borowski] and summarized in Right to Life Association of Toronto v Canada (Attorney General), 2022 FCA 220 at para 20.

[72] This requires that the Court must first determine whether a live controversy which affects the rights of the parties continues to exist at the time the Court is called on to make a decision in the case. If not, the Court should decline to hear the matter altogether, unless it nevertheless decides to exercises its discretion to hear the case, based on the following Borowski factors:

i. the absence or presence of an adversarial context;

ii. whether there is any practical utility in deciding the matter or if it is a waste of judicial resources; and

iii. whether the Court would be exceeding its proper role by making law in the abstract, a task that is reserved for Parliament.

[73] The Represented Defendants submit that there is no “adversarial context” because all the deadlines in the May 21, 2021 Order have been met. Accordingly, there is nothing left in the Order that will affect the rights of the parties and Kostic’s request for stay relief is rendered moot. In sum, that the Order has been complied with and is spent, there is nothing to stay (citing Canada (Public Safety and Emergency Preparedness) v Asante, 2019 FC 905 at para 24).

Given that the Order is spent, they submit that there is also no practical utility in deciding the stay motion and it is a waste of judicial resources to hear the matter which could also open the floodgates for stays of other scheduling orders that have already been fully complied with, simply because a party disagrees with them. Further, appealing or staying spent procedural deadlines does not raise any unique legal questions of public importance. The deadlines under the Scheduling Order apply only to the parties in this Action and have no specific application to the broader community, militating against exercising the Court’s discretion to hear this Motion.

[74] The Responding Defendants also submit that Kostic similarly cannot stay the subsequent scheduling order, being the November 29, 2022 Order, because it too will be moot by the time Kostic’s stay motion is heard. Further, that Kostic has not appealed that Order and the time for doing so has expired.

[75] They submit that for the same reasons the stay is moot, so too is the Appeal.

[76] The Represented Defendants also submit that under the doctrine of laches, Kostic was required to pursue her claim without undue day. When the May 21, 2021 Order was fully complied with, the Represented Defendants wrote to the Court on January 27, 2022 requesting a deadline be set of the filing of the responding motion materials. This was followed by nearly 10 months of silence from Kostic during which she did not seek to advance the Action or pursue the equitable relief she now seeks in the Appeal or stay. Rather, she participated in steps set out in both scheduling orders including submitting an affidavit, cross-examining McMullen and submitting a responding motion record to the motions to strike. Thus, by her actions, either through delay or participation, she acquiesced to the Orders.

[77] I agree with the Represented Defendants that all of the procedural steps in the May 21, 2021 Order have been met. Kostic does not contest this. What she challenges is not the procedural steps required by the Order but, essentially, the CMJ case management determination underlying the designation of those steps. Specifically, that it is procedurally preferable that any further amendments to the AASOC be addressed in response to the motions to strike and that the motions to strike should proceed ahead of the various motions and matters proposed by Kostic. Significantly, and as discussed above, the CMJ’s Order did not prohibit the further amending of the AASOC, but expressly indicated that the route available to Kostic was to address this issue in response to the motions to strike. Given this, even if the CMJ’s consideration as set out in her recitals – as opposed to purely the procedural steps set out in the Order – is viewed as the subject of the May 21, 2021 Order (and I make no finding in that regard), with respect to the amending of the AASOC, a remedy was afforded and is available to Kostic by the Order.

[78] Similarly, I note that the November 30, 2022 Order of Associate Justice Tabib states that any issues regarding the timeliness and amenability to appeal of the May 19and 20, 2021 “orders” are properly raised on the merits of the Appeal along with other irregularities specified.

[79] Accordingly, in my view, the following questions are better addressed on the merits of the Appeal: whether it is open to Kostic to appeal the reasoning behind the May 21, 2021 Order; whether that Order is now exhausted and the Appeal therefore moot; whether the November 29, 2022 Order is subject to the Appeal and was also exhausted and moot prior to the Appeal being heard – which is disputed by Kostic who has not complied with the November 29, 2022 Order filing deadline of February 15, 2023 or my Direction in that regard dated February 20, 2023 – and whether the May 19 (possibly meaning May 18) and 2021 directions (referred to by Kostic as orders) are subject to appeal.

[80] The Represented Defendants also submit that the CMJ’s discretionary decisions are entitled to significant deference and that motions to strike ought to ordinarily be heard in priority, referencing Onischuk v Canada (Revenue Agency), 2021 FC 486 at paragraph 18. They submit that given the jurisdictional concerns, hearing Kostic’s motions before the motions to strike would waste years and significant resources only for it to be potentially later determined that the entire claim, or large portions of it, cannot be heard by this Court. Further, that the CMJ did not err in what they describe as her May 20, 2021 direction and that no serious issue arises. Further, that the CMJ did not err by not permitting Kostic to further amend the AASOC, particularly express preservation of rights that the Plaintiff could propose further amendments in her response to the motions to strike.

[81] In my view, these are all valid issues which go to the merits of the Appeal and are to be addressed in that venue along with the matters discussed above as to mootness and the impact, if any, of the scheduling of the Appeal.

[82] That said, Kostic has not demonstrated, in the circumstances of this matter, that it is in the interest of justice to grant a stay until the Appeal is determined. Or to speak to her submission, she has failed to establish irreparable harm, which I note is described by the Federal Court of Appeal in Artic Cat, Inc v Bombardier Recreational Products Inc., 2020 FCA 116 at paras 18-20 and Canada (Health) v. Glaxosmithkline Biologicals S.A., 2020 FCA 135 at paras 14-16).

[83] Kostic submits that irreparable harm will be incurred if the stay is not granted and her Appeal is successful, “because the subject matter of her Appeal will be moot”. In that regard, she indicates that one such issue is the scheduling of her Appeal. To the extent that Kostic is addressing the Represented Defendants’ submission on mootness in this stay, as indicated above, the issue of mootness will be dealt with on the merits at the Appeal. I am making no decision on the mootness of her Appeal in this stay motion and, accordingly, there is no risk of irreparable harm or any prejudice to Kostic in that regard if the stay is not granted.

[84] Along the same lines, Kostic submits that she could not have known that “after obtaining her filed materials in December 9 her may 31, 2021 [sic] Appeal Motion that she would be denied scheduling of her appeal in advance of the Feb 15/23 steps and despite the court’s own order that she could schedule her appeal at a general sitting”.

[85] As a preliminary point, and contrary to this submission, the Court’s record does not contain an order permitting Kostic to schedule her appeal at a general sitting. General sittings matters are generally restricted to a duration of two hours. Matters exceeding two hours are otherwise scheduled.

[86] Further, Kostic’s Appeal is concerned with the May 21, 2021 Order. That Order concerns filing deadlines for the Represented Defendants with respect to their motion to strike the AASOC. The Notice of Motion with respect to the Appeal seeks an order permitting Kostic to amend the AASOC prior to the motions to strike being heard. Whether or not the stay is granted, the Appeal will proceed on March 9, 2023. The subject matter of her Appeal will be unaffected. Accordingly, and contrary to her submission, irreparable harm is not established. Ultimately, it is possible that, because all of the procedural steps outlined in the May 21, 2021 Order were met before the Appeal, the Order could be found to be spent and Appeal could be found to be moot, but this would not be the result of the stay not being granted. Indeed, the stay was not sought until after all of the procedural steps were or should have been completed – although I recognize that Kostic asserts that had the Appeal been scheduled in a timely manner then the risk of mootness would not have arisen. In my view, that issue goes to the merits of the Appeal and does not give rise to irreparable harm in this this stay motion as Kostic submits.

[87] Significantly, and as discussed above, the May 21, 2021 Order explicitly contemplated that Kostic could raise in her responding motion to the Represented Defendants’ motions to strike her desire to further amend her AASOC. This means that the Judge who determines the motions to strike will also take into consideration Kostic’s position into consideration when deciding whether or not to grant those motions. Whether or not the stay is granted has no impact on this.

[88] Kostic points to no other prejudice that she will suffer if the stay is not granted. If, for example, the stay were not granted and she succeeded on her Appeal and she was permitted to amend the AASOC before the motions to strike were heard, then the only impact would be that the Represented Defendants would likely have to file amended motion to strike records after the AASOC amendments were made, to which Kostic would likely file a revised responding record. While this would impact the Represented Defendants, who have spent time and effort in submitting their many motions to strike and could delay the progress of the Action, it is difficult to see how this outcome would prejudice Kostic or, amount to irreparable harm to her, as she submits.

[89] Similarly, if a stay were not granted and Kostic were successful on her Appeal and the priority of the determination of the motions were varied permitting her matters to proceed ahead of the motions to strike, in the absence of any suggestion that her motions and matters will be proceeding between the time of the issuance of a stay and when the Appeal is determined, this does not support the granting of a stay.

[90] Nor has Kostic suggested that she has already been prejudiced by the Action, or other matters, proceeding prior to the stay and the Appeal being heard. And, even if that were so, this is harm already incurred, not irreparable harm or detriment to Kostic that will be incurred between the granting of a stay in this motion and the determination of her Appeal. She points to no imminent steps that may occur during that period potentially giving rise detriment or harm.

[91] At the hearing of this motion, Kostic placed great emphasis on her view that if the stay is not granted, then she will not have the benefit of contractual indemnity agreements that she asserts exist and would should provide her with benefits, such as counsel, when the Appeal (and other matters) are heard. However, as indicated below, this stay motion is not the venue for determining the status of those agreements.

[92] I also understand Kostic to submit she will be prejudiced because the McMullen Appeal will be heard ahead of and on the same day as her Appeal. I note, however, that the McMullen Appeal is concerned with the January 5, 2023 Order by which the CMJ set deadlines with respect to the McMullen notice to strike (not the Represented Defendants motions to strike). McMullen was required to file his complete motion record by January 13, 2023. He did so, but noted that pursuant to a December 22, 2022 Order of the CMJ, Kostic was required by January 31, 2023 to order, pay for and send to McMullen a copy of the transcript of Kostic’s s cross-examination of him. In his appeal, he submits that because the CMJ ordered the transcript to be provided on a date that was after the date that she ordered him to submit this motion record, that she erred and he was prejudiced as he could not include the transcript in the motion record (I note that Kostic still has not submitted the transcript). McMullen’s appeal is ultimately concerned with the content of his motion to strike record. Again, it is unclear to me how hearing his appeal on the same day as Kostic’s Appeal results in any detriment to Kostic.

[93] Kostic also submits that she has been certified as disabled as a result of 17 years of litigation in related matters. In her motion record she includes a Canada Pension Plan T4A(P) for the 2019 taxation year indicating 12 months of disability. However, this document does not establish that her disability at that time was caused by the ongoing litigation. She also provided a form filed in the Alberta Queens Bench in July 2021 by Dr. Adel Gabriel affirming that he has provided psychiatric treatment to Kostic since 2007 and providing appended records (which are not included in the motion record). However, this does not establish that Kostic’s health will be differently impacted if the stay motion is not granted, or amount to irreparable harm, as she submits.

[94] The Represented Defendants, in applying the RJR-MacDonald test with respect to irreparable harm, rely on their mootness argument and submit that there cannot be irreparable harm where there is nothing left to stay. They submit that both the May 21, 2021 and November 29, 2022 Orders that the Plaintiff seeks to stay will be fully performed by the time this stay motion is heard on February 28, 2023. Therefore, no irreparable harm or any will result if a stay is not granted. The Represented Defendants also submit that Kostic cannot argue that denial of the stay will render her Appeal moot because any stay granted will take effect after both the May 21, 2021 and November 29, 2022 Orders are spent. Accordingly, Kostic’s Appeal will be moot regardless of whether this Court grants a stay or not and any harm that Kostic argues regarding mootness of her Appeal has already occurred.

[95] Ultimately, and leaving aside the mootness argument for purposes of this stay motion, I agree that Kostic has not established that she will suffer material prejudice or irreparable harm if the stay is not granted.

[96] Kostic’s main submission with respect to the balance of convenience, the third branch of the RJR-MacDonald test is, as I understand it, that she has been denied due process and that the Represented Defendants will not be inconvenienced by a stay. As discussed above, Kostic has not established that she will be denied due process if the stay is not granted. Nor has she established that she will be prejudiced by any steps taken between the hearing of this stay and the determination of her Appeal. Accordingly, she has not established, as she submits, that the balance of convenience is in her favour.

Submissions of Other Parties

McMullen

[97] McMullen filed a motion record responding to Kostic’s stay motion. However, in his written submissions he states that in he seeks a stay pursuant to s 50 of the Federal Courts Act, although he has not brought a motion in that regard, stating (among many other things) that:

…..there is clear judicial, legal officer and State misconduct by Canada and her agents Gowlings, Blakes and the DoJ/Milne in collusion to, inter alia, cover-up a criminal breach of trust and return mattes [sic] to the ABKB where they have been swept under the rug and/or argued to be matters exclusive to the jurisdiction of the Federal Court, thereby gaming the fairness of the trial and impugning the integrity of the justice system, amongst many other issues noted in the accompanying McMullen Affidavits, this in addition to the misconduct of the Plaintiff and Defendant by Counterclaim CIBC WM Employee Kostic noted above.

[98] He also takes issue with Zinner’s involvement on behalf of Kostic, asserting a serious conflict of interest. Again, that would have to be the subject of a separate motion brought by McMullen.

[99] McMullen emphasises the issue of the outstanding Transcript. However, this is the subject of his appeal to be heard on March 9, 2023. He makes no clear connection between this and his response to Kostic’s stay motion, beyond indicating that the stay would impact her meeting her obligations in that regard.

[100] In sum, McMullen’s main submission – clarified when he appeared before me – was that he intends to seek a global stay of the Action after the issue of the Transcript has been resolved. Overall, I find that his submissions do not directly engage with whether Kostic has met the test of a stay in this motion.

Jackson

[101] Brian Jackson also filed a motion record in response to Kostic’s stay motion. For the sake of accuracy, it was Kostic who served and filed Jackson’s responding record. Following my Direction dated February 22, 2023, Jackson confirmed directly to the Registry that he sought to file the response that the response was being filed in the Kostic stay motion.

[102] Jackson’s written submissions take issue with Canada’s motion to strike the AASOC and also indicate that Canada and other defendants seek an order to stay proceedings pending the outcome of related litigation before the Alberta Courts and states that the “interest of justice does not favour a stay in this case”. The written representations identify as issues matters other than the Kostic stay motion. The relief sought includes that the Defendants submission should all be struck; several pending (unspecified) judicial reviews must be determined before any other steps occur; any amendments (unspecified) must be permitted to include all recent relevant and materials facts and causes of action including the addition of parties; McMullen’s materials must be struck and records turned over to the police; defences should be filed and further delay avoided; an order be issued that this Court has exclusive jurisdiction to “determine all these issues”; and, a retroactive save harmless and indemnity of a 2015-2022 agreement.

[103] When appearing before me, Jackson expressed general support for Kostic’s stay motion indicating that this and related litigation has been ongoing for more that 18 years and has taken a toll on her health. When asked, why, given that he is a named defendant in the Action, he was supporting the Kostic stay motion, he indicated that he was not a defendant in the Action. Following prompting by Kostic, he confirmed that he is a named defendant.

[104] Jackson’s main submission was that there are indemnity and save harmless agreements and other matters that should be heard before the motions to strike. He did not directly address why granting a stay is warranted.

Conclusion

[105] While Kostic makes many other assertions and submissions, including that: self-represented litigants are treated in a lesser fashion by Courts, including by the CMJ and this Court more generally, and are held to a different set of rules (relying an online article and an unspecified 2021 statute); that she was treated differently than McMullen; that while Directions cannot be appealed, in this case the May 19 and May 20, 2021 Directions “reverse” or are entwined with the May 21, 2021 Order; that the Represented Defendants failed to file affidavit evidence; that the CMJ could not make case management scheduling determinations on differing proposed timelines without motions being filed; and, that the Represented Defendants raced to file their motion to strike records before she could have her Appeal set down to be heard (although the date for doing so was set out in the Order), in my view, these submissions need not be addressed in this stay motion.

[106] Based on the record before the Court and considering and balancing all of the relevant factors, for the above reasons, I conclude that the interests of justice weigh against staying the May 21, 2021 Order. In particular, given the short time between the hearing and determination of this stay motion and the hearing and determination of the Appeal and the lack of any demonstrated prejudice to Kostic, I find that the stay should not be granted.

[107] Further, what is very apparent from a review of the Court’s record is that this Action is at real risk of becoming bogged down in ever expanding assertions, motions and related matters and that every effort must be made to quickly resolve validly raised issues and move the matter forward so as to avoid unnecessary process and wasted resources of all concerned.

Other Relief

[108] The Represented Defendants submit that Kostic has already sought an interlocutory motion for costs or costs indemnity and, as part of her Appeal, has sought to have that motion brought in priority to the Represented Defendants motions to strike. They submit that to grant Kostic’s requested relief for cost indemnity in the stay motion would pre-determine the pending Appeal. Alternatively, it would permit Kostic to successfully collaterally attack the orders and directions she already seeks to reverse on Appeal.

[109] I agree with the Represented Defendants and also add that nothing in the motion record filed by Kostic with respect to this stay supports her bare request for this relief. Accordingly, the Court is in no position to grant this relief, which is properly dealt with whenever the motion for costs and indemnity is heard.

[110] As to Kostic’s request for alternate relief, I note that the McMullen appeal is also concerned with an extension of time. I will not grant the alternate relief sought in this stay motion but will consider it further when the McMullen appeal and Kostic’s Appeal are heard on the merits.

ORDER

THIS COURT ORDERS that the motion is denied.

"Cecily Y. Strickland"

Judge

ANNEX A

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-680-20

STYLE OF CAUSE:

LILIANA KOSTIC v HIS MAJESTY THE KING IN RIGHT OF CANADA, AND ALBERTA THE ATTORNEY GENERAL OF CANADA (“CANADA” or “INAC”); THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT CANADA; AND ITS AGENTS and PIIKANI NATION AND THE BAND NATION AS REPRESENTED BY THE CHIEF AND COUNCIL (“C and C”); ROD NORTH PEIGAN; JANET POTTS; DANIEL NORTH MAN; (TERMS OF THE CHIEF AND COUNCIL 2001-2021 ONWARDS) and STANLEY GRIER; DOANE K CROWSHOE (“DCS”); ERWIN BASTIEN (“EB”); TROY KNOWLTON; WESLEY CROWSHOE; RIEL PROVOST-HOULE; THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK and MICHAEL PFLEUGEUR [(“M. PFLEUGEUR”) BAND EMPLOYEE TERM 2010-2017]

PIIKANI INVESTMENT CORPORATION (“PIC”); AND ITS DIRECTORS ( Directors terms 2003-2021 onwards) And DIRECTORS & ITS LEGAL COUNSEL ( 2003 ON WARDS) CHIEF STANLEY GRIER [(“SG”) SHAREHOLDER TRUSTEE 2015-22]; ERWIN BASTIEN; TROY KNOWLTON; WESLEY CROWSHOE; THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK CHIEF REGGIE CROW SHOE [SHAREHOLDER TRUSTEE 2007-11]; FABIAN NORTH PEIGAN; KAREN CROW SHOE; SAM KHAJEEI; PIERRE-GILLES BETTINA; VERONA WHITE COW; EMILY GRIER & RANA LAW; BLAKE CASSELS & GRAYDON LLP; RICK YELLOW

HORN;DALE MCMULLEN and PIIKANI RESOURCE DEVELOPMENT LIMITED (“PRDL”); & ITS DIRECTORS 2008 – ONWARDS PRESIDENT- DOANE K CROW SHOE (“DCS”); CHIEF STANLEY GRIER [(“SG”) SHAREHOLDER TRUSTEES 2015-22]; TROY KNOWLTON; RIEL PROVOST-HOULE; ERWIN BASTIEN (“EB”); THEODORE PROVOST; CHE LITTLE LEAF-MATUSIAK; PAUL BLAHA; JASON EDWORTHY; SHAWNA MORNING BULL; MIKE ZUBACH and CANADIAN IMPERIAL BANK OF COMMERCE (“CIBC”); CIBC TRUST CORPORATION (“CIBC TRUST”) and CIBC WOOD GUNDY/CIBC WORLD MARKETS AND ITS AGENTS (“CIBC WG”) and JENSEN SHAWA SOLOMON DUGUID HAWKES LLP.; ROBERT HAWKES; GLEN SOLOMON (JSS BARRISTERS, “JSS”) and BRUCE ALGER (“ALGER”); ALGER & ASSOCIATES INC.; THE GRANT THORNTON GROUP OF COMPANIES; GRANT THORNTON LTD.; GRANT THORNTON INC.; AND ALGER INC. and CARON AND PARTNERS LLP; RICHARD GILBORN; DANIEL GILBORN (“CP”) and

MILLER THOMPSON LLP; JEFFREY THOM and

GOWLING WLG (CANADA) LLP; CAIREEN HANERT (“CH ”) and MCLENNAN ROSS LLP; (“MR”) and JOHN DOES 1-10

PLACE OF HEARING:

Calgary, Alberta

DATE OF HEARING:

February 28, 2023

ORDER AND REASONS:

STRICKLAND J.

DATED:

MARCH 4, 2023

APPEARANCES:

Liliana Kostic

FOR LILIANA KOSTIC

(ON HER OWN BEHALF)

Daniel Gilborn

For The DEFENDANTS

(BRUCE ALGER, ALGER & ASSOCIATES, GRANT THORNTON GROUP OF COMPANIES, GRANT THORNTON LTD., GRANT THORNTO INC., AND ALGER INC.)

Dale McMullen

For DALE MCMULLEN

(ON HIS OWN BEHALF)

Brian Jackson

For BRIAN JACKSON

(ON HIS OWN BEHALF)

SOLICITORS OF RECORD:

Department of Justice

Edmonton, AB

FOR THE DEFENDANTS

(His Majesty the King in Right of Canada, Attorney General of Canada, and Minister of Indian Affairs and Northern Development Canada)

Gowling Wlg (Canada) Llp

Calgary, AB

FOR THE DEFENDANTS

(PIIKANI NATION AND ACTING AGENT FOR EMILY GRIER WHO IS SOLICITOR FOR PIIKANI RESOURCE DEVELOPMENT LIMITED ET AL.)

Caron & Partners LLP

Calgary, AB

For The DEFENDANTS

(BRUCE ALGER, ALGER & ASSOCIATES, GRANT THORNTON GROUP OF COMPANIES, GRANT THORNTON LTD., GRANT THORNTON INC., AND ALGER INC.)

K.C., Rose LLP

Calgary, AB

FOR THE DEFENDANTS

(CARON & PARTNERS LLP, RICHARD J. GILBORN, DANIEL GILBORN AND MICHAEL PFLUEGER)

Witten LLP

Edmonton, AB

For The DEFENDANTS

(Blake Cassels & Graydon LLP.)

Rana Law

Calgary, AB

FOR THE DEFENDANTS

(Piikani Investment Corporation, Sam Khajeei, Bettina Pierre-Giles, and Verona White Cow)

McLennan Ross LLP

Calgary, AB

For The DEFENDANTS

(JSS Barristers LLP, Robert Hawkes and Glenn Solomon)

Emery Jamieson LLP

Edmonton, AB

For The DEFENDANTS

(Jeff Thom, Miller Thomson LLP, Rana Law, Emily Grier, Gowling WLG and Caireen Hanert)

Emery Jamieson LLP

Edmonton, AB

For The DEFENDANTS

(Jeff Thom, Miller Thomson LLP, Rana Law, Emily Grier, Gowling WLG and Caireen Hanert)

Blake, Cassels & Graydon LLP

Calgary, AB

For The DEFENDANTS

(Canadian Imperial Bank of Commerce, CIBC Trust Corporation, and CIBC World Markets Inc.)