Nunavut judge throws out 'improper,' 'inadmissible' affidavits from Adlair Aviation
Justice Paul Bychok orders Adlair and its lawyer to cover $10K in Nunavut government legal fees
The Nunavut Court of Justice is ordering Adlair Aviation and its lawyer to cover $10,000 in Government of Nunavut legal fees after a judge threw out two affidavits they filed with the court in an ongoing civil suit over the awarding of a 2011 medevac contract for the Kitikmeot region.
Adlair Aviation is suing the Commissioner of Nunavut, the Government of Nunavut and Mark McCulloch, the territory's senior manager of procurement and logistics, for $31.5 million after the contract was awarded to Aqsaqniq Airways Ltd., a partner of Yellowknife-based Air Tindi.
Nunavut Justice Paul Bychok struck two affidavits filed last October from the court's record and ordered the company and its lawyer, Ed Brogden, to split the territory's legal bill for hiring a lawyer to argue against their contents.
The affidavits included a sworn statement from an aviation consultant for Adlair Aviation, who wrote it appeared likely the medevac contract was awarded to Aqsaqniq Airways in order to settle a lawsuit between another Air Tindi partner, Kivallingmiut Aviation, and the Government of Nunavut.
In that separate civil suit, Kivallingmiut Aviation Inc. and Medic North Nunavut sued the same parties named in Adlair's lawsuit for more than $6 million in general and punitive damages after it was passed over for a medevac contract in the Kivalliq region.
An access to information disclosure showed four days after Aqsaqniq Airways was awarded the Kitikmeot contract in August 2012, a letter from a lawyer representing Kivallingmiut Aviation advised that the suit was being discontinued.
The affidavits also allege the Nunavut government treated applications for the Kitikmeot medevac contract by Adlair Aviation and Aqsaqniq Airways differently: Aqsaqniq was allowed followup questions from the evaluation committee while Adlair's application was treated as a final bid.
It also alleged two of five evaluation members for the contract who were from the the Kitikmeot region were left out of the final decision to award the contract.
"I ruled that the affidavits were based almost entirely on improper argument, inadmissible hearsay, and speculation," read a decision from Bychok released last Wednesday.
Legal fees
The territory claimed $21,320 in legal fees and an additional $3,031 in travel and lodging expenses for hiring Ottawa-based lawyer Vincent DeRose.
In civil court, a successful party is generally reimbursed by the losing party for the costs it incurred.
But the judge noted while the territory is entitled to hire any lawyer it chooses, they are not entitled to claim extra costs associated with hiring a senior civil litigator from out of town "when there are any number of qualified lawyers who live in Iqaluit who could have handled the application."
Bychok adjusted the cost to reflect the $10,000 a junior lawyer residing in Iqaluit would have charged to do the work.
The judge noted civil action costs are generally awarded against the losing party, and not its lawyer. However, he ordered the two split the bill.
"I found in this case that the affidavits filed by Mr. Brogden were so flawed that it failed entirely to follow the straight forward Rules of Court and laws of evidence," Bychock wrote.
"By defending the indefensible, Mr. Brogden not only wasted valuable court time and resources, he put the respondents to unnecessary effort and expense. He also delayed unnecessarily the progress of his client's action."
Considering a response
Bychok allowed Brogden 10 days to respond to his ruling to argue against why he shouldn't be on the hook for the bill.
When contacted, Brodgen said he is considering a response.
Adlair Aviation president Rene Laserich released a statement Sunday, noting his astonishment about the ruling while throwing his support behind his lawyer.
"Mr. Brogden continues to have our total confidence and support, because he fights and cares for all of us in the Kitikmeot and throughout Nunavut," Laserich wrote.
New affidavits have been filed with the court in the ongoing civil suit.
"It is a matter of the lives of 'the people,' much more than it is a matter of business for us," Laserich wrote.
"We have been fighting for the people of the Arctic for more than 50 years in the face of government persons who know little about the real Arctic."