Judicial Reviews

NOV 65 2003 15 15 FR Court of Queen's Bench of Alberta Citation: Coart v. Alberta Enviroomeotal Appeal $card,2 Q03 A.BQB 912

Between: Linda J. Court CLERK ~F ThE C,pUl~T Applicant - at~d -N~V C 5 2R3J Alberta EnvironmentAl Appeal B C oard ALGARY,ALB~RTA Respondent

Memorandum of Decision of the Honourable Mr. Justice P.~. NYclntyre

Introduction [1j The Applicant successfully challenged two decisions oft he Alberta Environmental Appeal Board (Boazd)r efusing lter standing for the pwpose ofa ppealing the eavimnmental approval issued for a gavel pit operating near her residence. Stye now seeks increased party-party costs ofh er judicial review application. Facts and Arguments Applicant [2] In pursuing her appeal before the Board, the Applicant incurred legal and expert fees and disbursements totalling $148,299.34. Her applicarion tv the Board foram award. of costs under

TO 917804236813 .-Date: 20031105 Docket: 0201 17759 Registry: Calgary

NOV 05 2003 15 16 FR TO 917804236813 P.63i09 Page: 2 s. 96 oft he Environmental Protection and Enha~cernent Act, RS.A.2 000, c. E-1 2( Act), has yet to be decided.

[3J The Applicant estimates the legal fees incurred ire p►usuing her judicial review application, excluding disbursements, to be in excess of $50,000.00, fot which applicarion she sceks increased party-party costs. Specifically, she claims double Column S casts from the $oard and Lafarge Canada Inc. (Lafarge), with disbursements to be borne equally, or, in the alternative. douhle Column 5 costs from the Board plus single Column S costs from Lafarge and the Director (Alberta Environment) (Director), with disbursements to be borne equally. The Applicant calculates the taxable Column 5 costs of her judicial review application, excluding disbursements, tv be $9,750.00 plus GST of $1,032.50, totalling $10,782.50,

[4] The Applicant concedes that, under Rule 605(6) of the Alberta Rules oJCour~, she is limited to Column 1 costs, unless otherwise ordered, plus disbursements. She calculates the taxable Column 1 costs of her judicial review application, excluding disbursements, to be X3,750.00 plus GST of $262.50, totalling $4,012.50. However, the Applicant argues that the sought award of increased party-party costs is reasonable in all tha circumstances, having regard

to the history of the proceedings and the necessity of counsel, the complexity of the proceedings and issues, the importance of the issues and case, the necessity of the judicial review application,

the res~ilt of the judicial review application and the relative financial resources of the parties.

[S] The Applicant fiuther argues that it is in the Court's discretion to award costs against the Board, Lafarge and the Director. She notes that, with her consent, Lafarge and the Director were added as parties to the judicial review application and submits that, as such, costs can be awarded to or against them. She also notes that Lafarge filed detailed and lengthy written submissions and made oral arguments challenging her directly affected status before the Board and opposing the judicial review application. Board [b] The Board argues that no award of costs should be made against it, given that it linnited its submissions to issues of its jurisdiction in the judicial review application and that it did not act capriciously, arbitrarily, in bad faith or contrary to the principles of procedural fairness ar natural justice in the proccedings under review. Director [7] The Director argues that no award of costs should be made against the Director, given that the Director's only involvement in the judicial review application was to make submissions on the issue of standard of review applicable to the Board's decisions, on which issue the Director was successful.

h~V 05 2003 15:16 FR TO 917804236813 P.64i09 Page: 3 Lafarge [8j Lafarge argues that, in the absence of evidence that the Applicant herself has paid or will pay the incwred legal aad expert fees and disbwrsements, she should reccive no casts. In the alternative, Lafarge argues that no award of costs should be made against it for several reasons: the Applicant is only now seeking costs from Lafarge; there is no authority supportive of an awazd of costs against a party not initially named as a party to a judicial review application; Lafarge's questioning oft he Applicant's standing is not an appropriate basis on which to award costs against Lafarge; Lafarge acted reasonably in making submissions defending its approval before the Board and in the judicial review application; and the Applicant's success in the judicial review application was in relation to the actions oft he Board alone. If, however,t here is an award ofc osts made against it, Lafarge argues that the Applicant, having been only partially successful in the judicial review application, is enritled to only $ portion of her costs calculated according to Coluum 1. The circumstances, Lafarge says, da not warrant increased Pazh'•P~Y costs. Analysis Rules and General Costa Principles [9) Rule 605(6) states that, "[u]nless otherwise ordered", when non-monetary reiiefis given byj udgment, casts are to be taxed accordwg to Column 1 ofS chedule C. j 10] Rule 601(1)f wther states that," [n]atwithgtanding anything in Rules 602 to 612", costs, as to amount and payer, are in the Court's discretion, and, when deciding on costs, the Court may consider the result in the proceeding and: (a)t he amounts claimed end the amounts recovered, (b)t he importaace of the issues, (c)t he complexity of the proceedings, (d)t he apportionment of liability, (e)t he conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding, (fl a party's denial of or refusal to admit anything that should have been adutitted, (~ whether any step or stage in the proceedings was (i)i mproper, vexatious or unnocessary, or {ii) taken thmu~ negligence, mistake or excessive caution, (h) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a party unnecessarily separated their defence from another party, and (i) any other matter relevant to the question of costs.

~ 11] In identifying several factors that maybe considered in deciding the scale of costs in Eggertson v. Alberta Teachers'A ssn.( 2003),3 27 A.R. 92, 2003 ABCA 101, the Cows

NOU 05 2003 15 16 FR TO 917804236813 P.05i09 Page; 4 approved the ruling of Mason J. in Pharand Ski Corp. v A~erta (1.992), 122 A.lt. 395 at para. 19{ Q.B.): [I]n principle, costs on a party and party scale are awarded on the basis of a reasonable apportioning oft he litigation expenses incurred by the successful party, havfng regard to such factors as: (a)t he difficulty and complexity of the issues; (b}the importance of the case between the parties and/or the community at large; (c)t he length of the trial; (d)t he position and relationship of the parties aad their conduct prior to and during the course of the trial; and (e)o ther factors winch may affect the fairness of an award ofc osts. Costs against Board and Director { 12) There are costs principles speci5c to administrative decision-malceis, principles on which the Board and the ]director rely and to which the Applicant does not advert. ~'he costs principles specific to administrative decision-makers are summarized by Donald J.M. Brown and the Honourable John M.E vans in Judicial Review ofA drninistrotive Actiop i►r Canada, looseleaf (Toronto: Canvasback, 2003) at pares 5:2560: Crenelally, an administrative tribunal will neitbcr be catitled t~ nor be ordered to pay costs, at least where there has been no misconduct or lack of procedural fairness nn its pazt.... However, costs have been awarded against an administrative tribunal where it cast itself in an adversarial position, acted capriciously in ignoring a clear legal duty, made a questionable exercise of state power, e~ec~iv~ely split the case so as to generate unnecessary litigation, manifested a notable lack of diligencey ar was the initiator of the litigation in question, or where bias among tribunal members had necessitated a new hearing. [Foomntes omitted. and by the Honourable William A. Stevenson anti the Honourable Jean E. Cote in Civil Procedr~re L~'ncyclopedia (Edmonton: Jwilib~r, 2003} at 79-56: A court may decline to award costs against a trib~m~l where it has acted is good faith, thcne was no suggestion of malice, and the enabling legislation is unclear; or if it made no submissions, except on jurisdiction.... Costs do not necessarily follow the event. 'Whey aze awarded against tribunals in unusual or exceptional circumstances such as capricious or arbitrary conduct or a lack of good faith or circumstances otherwise contrary w rules of natural justice. [Footnotes omitted_]

NOU 05 2003 15 17 FR TO 917804236813 P.06i09 Page: 5 [13] So,c osts are genezally not awarded to or against an administrative decision-maker that, on judicial review ofi ts decision, limits its submissions to issues of its jurisdiction and makes no submissions on the merits. In R x Ontario (Labour Relations Board),[ 1 969]2 O.R. 116 ai 120 (H.C.J.), af~'d [1469)2 O,R. 501 (C.A.), Oder J. held: Following the usual practice, when counsel for the $oard confines himself to the question of the Board's jurisdiciian and makes no submissions on the merits of its position, there will be no costs for or against the Board. [14] Although costs maybe awarded against administrative decision-makers, they aze to be awarded only in unusual or exceptional cases end then only with caution. In S~ Ptters Estates I,td v Prince Edward Island( Land Use Conl~nission)( 1991),9 3 Nfld. & P.E.I.R 45 at pares. 6-7, 1415( P.E.LS.C.( T.D.)), McQuaid J. rule:

The Commission is a quasij udicial tribunal, and as such it is without funds, per se. However,t he Goverment oft he day, in creating it ss as instrument of government, gave it the power to sue and be sued. inherent in tlris power must be deemed to be the capacity to be awarded costs, or alternatively, to have costs awarded against i~ Otherwise, such a tribunal could engage in litigation, Willy-niily, without regard to the consequences, which would be judicially intolerable. Indeed, the courts oft his Province have recognized this principle, implicitly, by awarding cysts on oc~asioq against such an administrative tribunal. It has been reeogaized by these same courts, however,t hat, contrary to the nom►aI practise, costs do not necessarily follow the event where administrative or quasi judicial fi'bunals are concerned. They maybe awarded only in unusual or exceptional cases, and then only with caution....

I would conclude, on the basis of these few cases in which ow courts have considered the matter, ... that costs will gnat be, and should not be, awarded against such a tribunal, by reason only of a loss of jurisdiction on its part. Where, however, that loss of jurisdiction resulted from conduct vn the part of the tn~~mal which can be held to be ca~nicious, arbittary, lacl~in8 in good faith,. or otherwise funning contrary to the rules of natural justice, then unquestionably, costs should be awarded against it. In addition to the above enumerated factors, there may well be others of the same or similar ilk which may result in as adverse award of costs. Using a broad brush, at might be said that where the tribunal has acted in good faith and conscientiously throughout, albeit resulting in eimr, the reviewing tribunal will not ordinarily impose costs. Qn the other hand, where these charactexistics have not been clearly evident, the wurt will cast a caustic eye upon it which will nornially result in costs being awarded against it.

NOV 05 2003 15 17 FR TO 917804236813 P.07i09 Page: 6 (15] Having regard to the costs principles specific to administrative decision-makers, I agree with the Board that there should be no award of costs made a~inst it. In the judicial t~eview application, the Board limited its submissions to issues of its jurisdiction and made no submissions on the merits. Moreover, there are no unusual or exceptional circumstances jusrifying an award of costs against the Boazd.

j 16] Extrapolating fiom the costs principles specific to administrative decision-makers, i also agree with the Director that there should be no award of costs made against the Director. In the judicial review application, the Director did not take an adversarial position, making submissions solely on the issue of standard of review applicable to the Board's decisions, on which issue the IJirector was succe5SfU1.

Costs against Lafarge [ 17] Lafarge's arguments do not persuade me that them should be no award of costs against it. [ 1$j Lafarge first argues that, in the absence of evidence that the Applicant herself has paid or will pay the incun~ci legal and expert fees and disbursements, she should receive no costs. However, the Applicant is presumed to be answerable for those fees and disbursements, which presumption Lafarge has failed to rebut. See Calverley x Lambe( 1908),11 O.W.R. 398 at 401, aff'd (1908), 11 O.W.It 474( Aiv. Ct.); Plasway v Abralia~ (1993),( 1994]4 W.W.R_ 368 (B.C.S.C.); Jacobi v. Newel!N o.4 ( Coue~~y)( 1994),153 A.R 241 at pates. 19-25 (Q.B.); Lir~err v Strarsberg,[ 1994) Q.J. No. 2732 at paz~s. 3-7( Gen. Div.); and tTaracb v. S~liuber~[ 1999] 12 w.w.R. 273 at pares. 38-42, 1999 SKQB ~9.

(19] Second, Lafarge argues that no award of costs should be made against it becazase the Applicant is only now seeking costs from Lafarge. I disagree, giv~a the absence of a claim for costs against Lafarge, as apposed to an eycpress denial ofs uch a claim, and Rule 120, which reads:

120 Ia any pleading costs need not.be claimed and it is not necessary to ask for general or other relief, both of which may always be given to the same extent as if

they had been asked far.

[20] Third, Lafarge argues that there is no authority s~ppoctive of an award ofc osts against a party, such as itself, nvt initially named as a party to a judicial review application. Specifically, it contends that Reese v. Alberta (Minister ofF orestry, Lw~ds and Wildlife)( 1992),133 A.R. l 27 (Q.B.), on which the Applicant relies, is supportive ofc osts being awarded to, not ao~inc~, a party added to a judicial review application. While it is true that in Reese costs were awarded to a party added to a judicial review application, there is nothitlg in that case precluding, on principle, costs being awarded ag~t such a party.

[21] Finally, Lafarge argues that its questioning oft he Applicant's standing is not an appropriate basis on which to award costs against it, the# it acted reasonably in malting

y0U 05 2003 1518 FR TO 917804236813 P.08i09 Page: 7 submissions defending its approval before the Board end in the judicial re~+iew application and that the Applicant's success in the judicial review application was in relation to the actions of the Board alone. However,t he Applicant is here seeking costs of hetj udicial review application, and, in the judicial review applicatioa, Lafarge carried the argumcnt supportive oft he Board's decisions refusing standing, for which decisions Lafarge had forcefully advocated beforc the Board. Yn the circwnstances, I do not dispute the reasonableness of Lafarge's vigorous resistance of the Applicant's judicial review application, but, in general, unsuccessful resistance, albeit reasonab]e. has consequences in costs.

j22] As to quantum, Lafarge argues that the Applicant, having been only partially successful in fire judicial review application, is entitled to only a portion of her costs calculated according to Column 1, the default scale far judicial review applications. In my opuuon, split•issue or selective costs are not appropriate. Although, in the judicial review applica~on, the Applicant tmsuccessfully argued for a con~eclness standard of review,h er ultimate position was that the Board's decisions on standing could not survive sc~vtiny on aay standard.

[Z3] Qn the other hand, the Applicant argues for increased party-party costs of hGc judicial review application having regard to the history of the proceedings and the necessity ofc ounsel, the complexity of the proceedings and issues, the importance of the issues and case. the necessity oft he judicial review application, the result oft he judicial review application and the relative

finaacial resources of the parties.

[24] In arguing for increased party party vests based on the history oft he proceedings and the nccessity ofc ounsel, the Applicant relies on Eggertsor~. In that case, in awarding casts to the appellant in excess oft he default scale for the judicial proceedings, the Court took into account the history oft he proceedings and the necessity of counsel tb~roughout, noting that the adminis~tive decision-makers were not empowered to award costs of the administrative proccedings to the appellant. I decline to order increased Partyparty costs on that basis, given that the Board is empowered to award costs ofi ts proceedings to a party, successful ox not, and the Applicant has applied to the Board for au award ofc osts.

[25] As to the wm}~lexity oft he proceedings and issues justifj►iug increa.~ed PAYP AY ~~~ I agree with Lafarge that "the complex nature of the evidence and submissions was because the hearing [before the Board] included a full heating on the merits of the Appeal, not just the issue of standing, which was the only issue reviewed by this Caws' (Lafarge's Brief at pars. 52).

[26] The Applicant azgues for increased party-party costs based on the necessity of the judicial review application and her ultimate vindication, apparently equating her success with the ultimate vindication justifying an increased costs award in Eggertson.I a gree with Lafarge that success, in and of itself, is no basis for as increased costs award. Moreover, there is,I b elieve, a qualitative difference between the Applicant's success and the ultimate vindication in EggeKson, a defence of professional reputation that failed three times before succeeding before the Court of Appeal.

~IOV 05 2003 15 18 FR . TO ~` 917804236913 P.09i09 Page: 8 [~7] Furthermore, I decline w order increased pazty-party costs based on the relative financial resources of the pafies, where the Applicant does not argue and there is no indication #fat Lafarge used its superior resources to" ~"t he Applicant To that end,I agree with the d reasoning ofN ewbury J. in Brit~'sh Colrrrmb~a (Milk Marketing Board) v. Bari Cheese Lt (1993), 23 C.P.C.( 3d)3 82 at pars. 7( B.C.S.C.), aff'd (1996),[ 1997] 2 W.W.R 342( B.C.C.A.): [T]he fact one pazty to litigation has "deeper pockets" than the other should not lead a court to award increased cosu against that party more readily than it otherwise would. But ... where the wealthier party has used its superior resources to "grind" the other, a court may take notice. In my opinion, however, one factor, namely,t he importance oft he issues and case, does (28] justify as award ofc osts in excess of the default scale. The caso is legitimately charscteaized as one of genera! pubic importance, relating as it does to public participation in the environmental review process. The Ad,a t ss. 2(~ and 2(g), envisages a participatory role for Alberta citiztns, sad the case clarifies, for rho benefit of Alberta citizens, hnw standing, is achieved under the Act. [29] I, therefore, award the Applicant double Column 5 costs, plus all masonable disbursements, as against Lafarge.

Written Submissions received in June, July and September 2003. Dated at tk~e City ofC algary, Alberta this S~ day of Novcm~r,2 003.

Counsel: Grant Stapon and Bradley Crilmaur for the Applicant

Andrew Sims, Q.C. for the Respondent

Charlene Crrahan~ for the Directar( Alberta Environment)

lames Sullivan and 7aniee Walton fur Lafarge Canada Inc.

~ TOTAL PA[~,g 9 **

~~ P.J. McIntyre J.C.Q$.A.

.~ A,CTTQN NO. 0201-17759 AV COURT OF QUEEN'S BENCH OF ALBERTA JUAICJA.~. AISTRICT OF CALGARY BE"I'~?VEEN': it, Z;1 r~~~•~ ~ M a~ LINDA J. COY3RT ~1 --~" > Applicant s+e ° .~ C~ -and -. n ~ ~„ ~C ~ ~ ~e ' ~aT ALBERTA ENVIRONMENTAL APPEAL BOARD

Respondent BEFORE T~iE HO~IOCTRABT.E ) At the Courthouse, in the City of Calgary, in the MR.J [~STYC~ p.J. McAVTYRE ) ~ro~ince of Alberta,„ on Wednesday, the 5 day of ~ November,2 003. JUDGMENT RO~,L UPON 'THIS application for judicial review coming on ~ for hearing on February 27 ǹ, 2003; AND UPON a~ decision of Mr. justice PJ. McTntyre having been rendered on May 16 x̀, 2003; AND UPON the Applicant, Despondent, the Director (AIbarta Environment), and Lafarge Canada Inc., being given leave to make submissions with respect to costs; AND UPON written submissions with respect to costs of the application for judicial review having been submitted counsel for the Applicant, Respondent, Lafarge Canada Inc., and the I~ireC[Or (Alberta Environment); AND UPON this Honourable Court having reserved judgment and delivering a Memorandum of Decision dated November S d̀,2 003;

~'I S HE~BX O~tDEREb AND ADJUDGED THAT:

-2-.~ r 1. The Applicant is awarded costs of the judicial z~eview application as against Lafarge Canada Inc. on the scale of Double Column 5 of Schedule C of the Alberta Rules of Court, plus all reasonable disbursements,

2. The Applicant's request for costs as against the Respondent, the A,Ibezta Environmental Appeal Board, and as against the Director, Bow Region, Regional Services, Alberta Environment, is dismissed. APP#t0'V~D as being the judgment granted: APP1tOVED as being the Judgment granted; BENNE~'T JUNES LLP

Per: Gtant N.S tapon Andrew C.L. Sims, Q.C. Soliciwrs for the Applicant Solicitozs for the Respondent, AIberca Environmental Appeal Board

APPROVF~A as being the Judgment granted: APPROV~A as being the Judgment granted: BLAKE CASSELS GRAYDON LLl'

Per; James Sharlene Graham Solicitors for the Lafarge Canada Tnc. Solicitors for the birector (Alberta Ettvironment)

ENTF~LED his~ d ay of ~~GL'~ {2003. 1 ~r Clerk of the Court A~

.~~ ~,. lerk of the Court ~

,. r --3-NT N. ST.APON, Solicitor for the Applicant, Ianda 7, Cam do hereby certify that X, GRA the disbursements listed above were necess$ry to this adios snd,were actu~]ly paid. The above Bill of Costs has been b gthis a~ Calgary, A~bert~ ANJ~ ALLOWED AT: ~ RATED at the City of Calgary, in the Province of Albezta, this _day of December, 2403.

~x~rr rr. s~r~ar~ the Applicant, Linda 7_ • • e _.,~,~~• ~SII1C6~ ~O~1.C7tOI6 ~Or' L~1~ Re~pandc~t ~,afarge Ca~aaa8 Ir~c. . fiAk~~ wii~r~ouT

aax~s ,~NI' N, STAPON, soll~ti Applicant, I.inds J. Court day of December, 2003, at l/. y/ COL11~T ~iOSC~KA ~,►,x, Clerk afthe Court

for ~►, Pu `r i~ .................................. Olerk K ~ Court ..:~..~

acT~ar~ rro: ozo~-~~~s9 IN THL COURT OF QUEENS BENCH ~F ALBERTA JUDICIAL] 7ISTRXCT OF CALGARY

BETWI~~EN: I,INAA J~. COiJRT Applicant - and -

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