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: Slaw.ca

Solicitor Client Costs Awarded Against the Crown

By Shaunna Mireau

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I was browsing Alberta case law posted to CanLII today using their funky RSS feeds and an interesting tidbit caught my eye. In Alberta (Justice and Attorney General) v. Yousif, 2010 ABQB 478, solicitor and client costs were awarded against the Minister.

[8] This matter was instigated by the Minister who was the principal architect of the legislation under which the action was taken. As I indicated in the last judgment, the objective of the legislation is that proceeds and instruments of crime may be used for the benefit of victims of crime. It gives the Minister broad rights to take action on an ex parte basis and can result in citizens losing their property. In this case I did not need to consider the constitutional aspects of Ms. Thomson?s application because I found that the Minister did not comply with the legislation. Ms. Thomson?s property was not used as an instrument of illegal activity and there was no basis upon which one could conclude that it was. Not only was Ms. Thomson?s property rights infringed upon but her right to silence was violated because she was compelled to file an affidavit and submit to a cross-examination.

[9] In these circumstances I believe it is fair that Ms. Thomson should be indemnified for her costs because her rights were violated. When I say that her rights were violated I mean that the Minister, her servants or agents, took action against her property when the Minister had no right to do so except under the Act. The Act permits intrusive action on an ex parte basis but certain fundamental questions need to be addressed by the Minister or her agents who administer the Act. They were not properly addressed which resulted in action taken which I have found violated the Act.

No bad faith on the part of the Minister or her agents was found, yet the property owner’s costs, including associated disbursements for legal research as well as legal costs associated with her mortgage were also included in the indemnity.

The case is an interesting read.

Full post as published by Slaw.ca on July 22, 2010 (boomark / email).