Executive Summary: Key Legal and Evidentiary Issues

• Multiple Fiat Requests were addressed concerning permission to bring applications in several related actions involving Piikani Nation, Liliana Kostic, Raymond James Ltd. (RJL), CIBC Trust Corporation, and others.

• Kostic’s application to strike portions of the Amended Statement of Claim (ASOC) in the 0601 Action was denied as an abuse of process, issue estoppel, and collateral attack, since the ASOC had been previously approved by a 2018 court order.

• Permission was granted to Kostic to seek leave to file a late notice to co-defendant against RJL, with the court noting that the application should not be prejudged and should proceed to address relevant factors.

• Kostic’s request to file a summary dismissal application in the 0601 Action was denied, with the court finding the grounds hopeless and that genuine issues require a trial, especially regarding fiduciary duty, personal liability, and limitations.

• The court refused to allow Kostic to revisit indemnity and “save harmless” relief against CIBC Trust already decided by the Court of Appeal, but permitted her to consider amendments related to aggravated or punitive damages for alleged litigation conduct.

• Discovery and procedural disputes were managed with directions for more precise applications and amendments, with the court aiming to move the long-standing litigation toward trial.

Background and facts of the case

This decision arises from a set of actions under case management before the Honourable Justice M.A. Marion in the Court of King’s Bench of Alberta, involving Piikani Nation, Liliana Kostic, Raymond James Ltd. (RJL), CIBC Trust Corporation, and others. The actions include: 0601-13081 (0601 Action), 1601-01693 (Kostic-CIBC Trust Action #1), 1701-01341 (Kostic-CIBC Trust Action #2), and possibly 0801-05039 (0801 Action). The background to these actions is well-known to the parties and has been the subject of numerous reported decisions; the court did not repeat the detailed background in these reasons.

Fiat Process and procedural context

A Fiat Process was established requiring parties to obtain permission (Fiat) from the case management judge before bringing applications in these actions. The reasons address multiple Fiat Requests, including those by Kostic and other parties, relating to striking pleadings, filing notices to co-defendant, summary dismissal, amendments, service validation, and discovery.

Key applications and court findings

• Striking the ASOC: Kostic sought to strike various paragraphs of the March 1, 2018, ASOC in the 0601 Action, claiming unauthorized changes. The court found the ASOC was approved by a February 9, 2018, order of CMJ Nation (the “2018 Order”) and that Kostic’s application was an attempt to relitigate settled matters. The application was denied as barred by issue estoppel, abuse of process, and as a collateral attack on a final order. The court also addressed typographical errors (“Typos”) in the ASOC, finding them non-material and not warranting further amendment unless all parties consented.

• Notice to co-defendant: Kostic was granted permission to file an application and affidavit seeking leave to file a late notice to co-defendant against RJL in the 0601 Action. The court noted that while the Fiat Request was procedurally deficient, sufficient issues were raised to warrant the application proceeding, including the statute of limitations, delay, and potential prejudice.

• Summary dismissal: Kostic’s request to file a summary dismissal application in the 0601 Action was denied. The court found that the grounds advanced—including non-discretionary accounts, no fiduciary duty, no concurrent personal liability, limitations, contractual limitations, and offsetting gains—did not establish that there was no merit to the claims against her or that there was no genuine issue requiring a trial. The court found the application hopeless and inconsistent with rule 1.2.

• Amendments to CIBC Trust claims: Kostic sought to amend her originating application in Kostic-CIBC Trust Action #1 to revisit “immediate save harmless relief” against CIBC Trust, based on recent admissions about the nature of accounts and damages claimed. The court refused to allow her to revisit issues already decided by the Court of Appeal in 2018 ABCA 355, but permitted her to consider amendments solely for aggravated or punitive damages relating to alleged litigation conduct, subject to further directions.

• CIBC Trust Action #2: CIBC Trust was granted permission to proceed with an application to strike or dismiss Kostic-CIBC Trust Action #2, and Kostic was permitted to file an application to amend her claim, with the hearing of CIBC Trust’s application to proceed first.

• Service validation and Potts application: Piikani Nation was permitted to file an application to validate service of the statement of claim on Janet Potts, and Potts was permitted to seek to set aside her noting in default and to strike the claim against her for improper service and “no cause.” The court found that other relief sought by Potts should not proceed at this time.

• Discovery and particulars: The court addressed ongoing disputes over discovery, particulars, and production of records in the 0601 Action. Directions were given for more precise applications, including detailed appendices specifying outstanding undertakings and interrogatories, and for limiting affidavits to factual evidence relevant to the applications.

Policy terms and clauses at issue

The litigation involved interpretation of the Piikani Trust Agreement, Investment Management Agreements, and account agreements with CIBC Wood Gundy and Raymond James Ltd. Issues included whether Kostic and RJL met the qualifications required under the trust documents, the nature of the accounts (discretionary or non-discretionary), and the effect of limitation of liability clauses in the relevant agreements.

Outcome and costs

The court vacated certain procedural deadlines and directed the parties to attempt to agree on a revised litigation plan to accommodate the permitted applications and move the actions toward trial. Costs were awarded on a prima facie basis to the substantially successful parties on each application, with further written submissions to be provided if costs could not be agreed. No specific monetary amounts were determined in this decision.

In conclusion, the court’s decision resolved numerous procedural disputes, clarified which applications could proceed, and emphasized the need to move these long-standing actions toward trial. The successful parties on each application were awarded costs, but the exact amounts were not specified in this decision. The litigation remains ongoing, with further steps to be scheduled as directed by the court.