30 July 2013

The Cabana Cases #nlpoli

For those who want to read them, here are two decisions related to Brad Cabana’s recent Muskrat Falls case.

The first is the decision on his application to have the judge remove herself from the case:

Cabana v. Newfoundland and Labrador, 2013 NLTD(G)36

[61] Accommodating the shortcomings of a self-represented litigant does not extend to permit the Court to apply a different set of principles to the adjudication of the merits of the case or any part thereof.  I conclude that Mr. Cabana has not established that informed, reasonable and right-minded people could conclude in the circumstances that there was a reasonable apprehension of bias on my part in continuing to hear this matter.

[62] In light of my conclusion on the objective test, I believe that withdrawing would represent an unnecessary recusal and one that could tend to bring the administration of justice into disrepute.  I remain disinterested in the outcome of this matter and open to persuasion by the evidence and submissions of all parties.

[63] The Applicant’s request that I recuse myself from these proceedings is denied.  The Interlocutory Application shall resume on dates to be established by the Applications Registry following consultation with Mr. Cabana and counsel for the First, Second and Third Respondents.

[64] On this discrete issue, the Respondents shall be entitled to their party and party costs (restricted to one counsel each) to be taxed on Column 3 of the Scale of Costs of the Rules of Supreme Court, 1986, Rule 55, but I would order that payment be postponed until the completion of this Interlocutory Application and any appeal therefrom.

The second is the decision on Cabana’s application for an injunction to halt the project:

Cabana v. Newfoundland and Labrador, 2013 NLTD(G)15

[117] The Applicant has failed to establish either of the three components required for the exercise of the Court’s discretion in granting interim declaratory relief prior to trial.  On a preliminary assessment, I conclude that Mr. Cabana has not established either a serious legal issue to be tried, that he would suffer irreparable harm without a cessation of work on the Project, or that the balance of convenience favours him in granting such a declaration.

[118] Mr. Cabana is not without remedy, but I agree with counsel for Nalcor that his remedy is political and not legal.

[119] Costs generally follow the cause and the Applicant has been wholly unsuccessful.

[120] I appreciate that he is self-represented; however, any individual pursuing a claim that is without merit has to understand that there are cost consequences.  Each of the Respondents has been required to retain and instruct counsel on a complicated matter warranting considerable time and expense.  

[121] The First and Second Respondents shall have their costs to be taxed on a party and party basis, Column 3, two counsel.  The Third Respondent shall have its costs to be taxed on a party and party basis, Column 3, one counsel.

Assessing costs is a normal part of hearings of this type.  In setting the rules, the judge relied on the Rules of the Supreme Court, specifically  Rule 33.