Case information

Charter of Rights — Civil procedure — Costs — Advance costs — Applicant seeking advance costs from respondent to defend herself in actions — Is law unsettled and lacking in uniformity in interpretation of save harmless clauses across Canada? — Does the lack of uniformity in interpretation of save harmless clauses create discrimination and offend against ss. 6(2) and 6(3) of Charter? — Is a revisitation of Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49 required? — Whether Court of Appeal erred in finding that case management judge conducted a trial within trial, resulting in findings of fact that predetermined issues to be determined by trial judge

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2002, the Piikani Nation received $64 million from the Governments of Alberta and Canada in settlement of various land and water disputes. The Piikani Nation engaged CIBC Trust Corporation as its trustee to hold in trust those settlement funds. At Piikani Nation’s direction, CIBC entered into various account agreements with CIBC Wood Gundy, and later with Raymond James Inc. regarding the trust funds. Ms. Kostic was the investment advisor with Wood Gundy responsible for the Nation’s accounts at Wood Gundy and then Raymond James. In 2006, the Piikani Nation sued Ms. Kostic and Raymond James and other parties, alleging negligence, breach of fiduciary duty, conspiracy, and breach of the Piikani Trust Agreement (“2006 Action”). Raymond James and Ms. Kostic defended the action and filed a third party notices against CIBC and Wood Gundy, claiming indemnity pursuant to account agreements between CIBC and Wood Gundy and account agreements between CIBC and Raymond James. The 2006 Action and various other related actions were under case management. Ms. Kostic commenced an originating application in 2017, seeking declarations that CIBC was in breach of the Wood Gundy and Raymond James account agreements, and had an immediate and ongoing obligation to defend and save her harmless for her defence cots.


The application judge allowed her application with respect to the Raymond James agreements but dismissed her application with respect to the Wood Gundy agreements. The Court of Appeal allowed CIBC’s appeal and Ms. Kostic’s appeal in part.