COURT FILE NO.
COURT
JUDICIAL CENTRE APPLICANT
RESPONDENTS
DOCUMENT
2001-08937
COURT OF QUEEN'S BENCH OF ALBERTA
CALGARY
JEFFREY BROOKMAN
43060
DIRECTOR OF ENVIRONMENT AND PARKS, KGL CONSTRUCTORS, A PARTNERSHIP and ALBERTA ENVIRONMENTAL APPEALS BOARD
JUDGMENT ROLL
ADDRESS FOR SERVICE AND CONTACT INFORMATION OF
PAm-Y FILING THIS DOCUMENT
McLENNAN ROSS LLP 600 McLennan Ross Building
12220 Stony Plain Road Edmonton, AB T5N 3Y4
Lawyer: Telephone:
Fax: Email; File No.:
Scan D Parker (780) 482-9200
(780) 733-9718 spa rker@m ross. corn 171782
DATE/LOCATION DECISION WAS PRONOUNCED: March 31, 2021 - CALGARY, ALBERTA NAME OF JUSTICE WHO MADE THIS DECISION: JUSTICE NANCY DILTS
UPON this judicial review Application having been heard by this Honourable Court on March 24, 2021; AND UPON having read the materials filed by the Parties; AND UPON having heard the evidence and oral submissions presented by counsel for the Parties; AND UPON having provided written Reasons for Judgment, filed March 31, 2021;
IT IS HEREBY ORDERED AND ADJUDGED THAT:
1. The Applicant's Application for an order;
a. quashing the Environmental Appeals Board's C'Board") reconsideration decision, styled as Brookman and Tulick v. Director, South Saskatchewan Region, Alberta Environment and Parks, re: KGL Constructors, A Partnership (16 October 2020), Appeal Nos. 17-047 and 17-050-CD (A.E.A.B.), 2020 ABEAB 26 ("Reconsideration Decision"), and
b. ordering the costs sought in the Reconsideration Decision to the Applicants or alternatively remitting the matter back to the Board
is denied.
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2. There are no costs awarded for this judicial review Application.
3. This document may be signed in counterpart, and via facsimile or other electronic means.
APPROVED AS TO THE ORDER MADE:
The Hdnodirable Justice Nancy Dilts
WILSON LAYCRAFT
Per:
James B. Laycraft, Q.C. Counsel for the Applicant, Jeffery Brookman
THE SIMS GROUP ^\ Per: Andrew C. L. Sims QC Counsel for the Respondent, the Alberta Environmental Appeals Board
ALBERTA JUSTICE pc, <k ^—^^-Andrea M. Simmonds Counsel for the Respondent, the Director of Environment and Parks
MCLENNAN ROSS LLP
Per:
Sean D. Parker Counsel for the Respondent, KGL Constructors, A Partnership
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2, There are no costs awarded for this judicial review Application.
3, This document may be signed in counterpart, and via facsimile or other electronic means.
APPROVED AS TO THE ORDER MADE:
The Honourable Justice Nancy Dilts
WILSON LAYCRAFT //
Per: <^/^y^. -^ ^-^-;^^7-^5aff)es B. Laycraft, ^^ " // Counsel for the Applicant, Jeffery^fookman
THE SIMS GROUP
Per:
Andrew C, L, Sims QC Counsel for the Respondent, the Alberta Environmental Appeals Board
ALBERTA JUSTICE
Per;
Andrea M. Simmonds Counsel for the Respondent, the Director of Environment and Parks
MCLENNAN ROSS LLP
Per:
Sean D, Parker Counsel for the Respondent, KGL Constructors, A Partnership
Court of Queen's Bench of Alberta
Citation: Brookman v Environment and Parks (Director), 2021 ABQB 249
Between:
Jeffrey Brookman
- and -
Date: Docket: 2001 08937 Registry: Calgary
Applicant
Director of Environment and Parks, KGL Construcfors, a Partnership and Alberta Environmental Appeals Board
Respondents
Decision of the Honourable Madam Justice N. Dilts
Introduction [1] The Applicants seek judicial review of a reconsideration decision of the Alberta Environmental Appeals Board ("Appeals Board" or "Board") dated October 16, 2020 (the "Reconsideration Decision"). The Reconsideration Decision came near the end of the long path to approval of the Southwest Calgary Ring Road. The lengthy history to these proceedings is detailed in the costs decision dated November 7, 2019 (the "Costs Decision") and the briefs of the parties. I do not propose to review that history as this application does not materially engage
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[3] The original costs application included a claim for costs by Mr. Brookman and his coapplicant Ms. Tulick, costs relating to witnesses presented by them at the appeal, and legal costs. In its Costs Decision, the Appeals Board denied all costs claimed by the Applicants, including legal costs. One of its reasons for doing so was the express concern that the Applicants would receive a windfall if awarded costs as their counsel provided services on a pro bono basis. .
[4] The Applicants applied for reconsideration of the Costs Decision. The Board's authority to reconsider a decision lies under s. 101 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12 ("EPEA") which provides that, subject to the principles of natural justice, the Board may reconsider, vary or revoke any decision made by it. [5] The panel of the Appeals Board that decided the reconsideration application (the "Reconsideration Panel") agreed that reconsideration of the issue of an award of legal costs was justified because the Applicants had not been given the opportunity to rebut the Respondents' cost submissions, particularly to explain that the retainer agreement between the Applicants and their counsel made clear that counsel was entitled to retain an award of costs relating to its participation in the hearing, meaning there would be no windfall. The Reconsideration Panel considered this to be pertinent information. It therefore reconsidered the Costs Decision in light of this new evidence and arguments.
[6] The Reconsideration Panel denied the Applicant's request to vary the Costs Decision. It concluded that although the retainer agreement satisfied it that a costs award would not have been a windfall to the Applicants, the concern of there being a windfall was not the primary reason why the Costs Decision was made. The Reconsideration Panel concluded that the Costs Decision was made based on what it called the Board's "foundational principles" regarding an award of costs: i) that parties should bear their own costs on an appeal; and ii) that costs should be awarded based on a party's contribution to the appeal and to the Board's recommendations to the Minister. After weighing the evidence regarding the Applicants' contributions, it concluded that there was no basis to vary the Costs Decision.
[7] The Applicant seeks judicial review of the Reconsideration Decision.
Standard of Review [8] The parties agree that given the Supreme Court of Canada's decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 the standard of review of the Reconsideration Decision is reasonableness. While there are circumstances in which the presumption of reasonableness can be rebutted (including where explicitly provided for in legislation, where the legislation provides a route of appeal to the court, or where questions regarding the rule of law are raised), none of those circumstances are present on this application.
[9] One of the functions of judicial review is to give effect to legislative intent. That principle
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decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference.
Vavilov at para 24 [10] Flowing from that principle is the presumption that an administrative decision will be reviewed on a standard of reasonableness. The reasonableness standard is intended to give effect to the legislature's choice to leave certain matters with administrative decision makers rather than the courts: Vavilov para 33. A review on a standard of reasonableness necessitates a minimum of judicial interference: Vavilov para 24.
[11] In Vavilov, the Supreme Court provided guidance as to the principles a court is to follow in conducting a review of an administrative decision on a standard of reasonableness. A court sitting in a reviewing capacity is to respect the specific expertise of the decision maker; it is to show judicial restraint by not substituting its own decision on the merits; and it is to focus on whether the applicant has demonstrated that the decision made was unreasonable, taking into consideration all of the relevant circumstances. It does so by examining the reasoning process that led to the decision (whether the decision was reached following an unreasonable chain of analysis or whether the decision was reached based on reasoning that is both rational and logical) and the outcome of the decision: Vavilov para 83.
[ 12] The Alberta Court of Appeal in Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 at para 71 described the impact of Vavilov in this way:
The Supreme Court in Vavilov provided suggestions with respect to the proper application of the reasonableness standard, what the standard entails and how it might be applied in practice. The Supreme Court said courts may intervene in quasi-judicial administrative matters where it is necessary to do so to safeguard the legality, the rationality and the fairness of the administrative process. Otherwise, the starting point is one of restraint (respect or deference to the administrative tribunal's decision).
[13] Given the guidance of Vavilov and Normtek, the sole issue on this application is whether the decision of the Reconsideration Panel was reasonable. Reasonableness includes consistency with the text, context and purpose of the governing legislation, and a clear understanding of the facts.
Position of the Applicant [14] The Applicants argue that the Reconsideration Panel's decision was unreasonable for two
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[15] Second, it says the Reconsideration Panel failed to consider the evidence that was before it detailing counsel's contribution to the appeal. It says the Board made a "series of mishaps" and misapprehended the contributions of counsel. It says this misapprehension of the facts regarding counsel's contributions originated in the Costs Decision and carried forward into the Reconsideration Decision. It says the Board focused on the evidence of Mr. Brookman that he did 90% of the research for and writing of the submissions and from there concluded that counsel's role must have been limited. The Applicants argue that the Board failed to consider all of the evidence of counsel's participation in the appeal, including its invoices detailing the extent of counsel's involvement. The Applicants argue that this failure to consider relevant facts renders the ultimate decision unreasonable. It says the Reconsideration Panel had the obligation to look at counsel's invoices to gain an understanding of counsel s contributions to the appeal.
[16] The Applicants say that when counsel's involvement is fairly examined, it shows that counsel was involved in all aspects of the appeal. It is not disputed that counsel expended 309.8 pro bono hours on the appeal. The Applicant says those costs were incurred directly and primarily relating to the matters contained in the notice of appeal, and to prepare and present the Applicants' submissions before the Board. As such, they say they should be reimbursed by the approval holder.
Position of the Respondents [17] As the party from whom the Applicants seeks costs, KGL argues that the Board's foundational principle that each party bears its own costs is not a fettering of the Board's discretion; the Board remains open to the possibility of awarding costs if the circumstances warrant. It says the Board's principled approach to costs has been endorsed by this court in Cabre Exploration Ltd. v Alberta (Environmental Appeal Board), 2001 ABQB 293. It says the starting point as to costs is not by its nature or in its application an inflexible rule where its application precludes the exercise of the discretion the Board has been given.
[18] Further, it says that the reconsideration process is not an opportunity to relitigate the issue and that the original Appeals Board was best situated to detennine the value it received from the contributions of every participant on the appeal. Finally, it disputes the Applicants' suggestion that they were "successful" on the appeal. KGL says the nature of the variations to the approval that were made by the Minister and their scale in context of the overall project suggest otherwise.
[19] Counsel for the Board and counsel for the Director provided helpful materials and, in the case of counsel for the Board, instructive guidance on the statutory framework in which the Board acts, and the jurisprudence and commentary that discusses the judicial review of an administrative tribunal's decision.
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[21] Notably, s. 96 contemplates that the Appeals Board is to determine not only whether costs are payable, but by whom they are paid. That authority is carried forward in the Environmental Appeal Board Regulation, AR 114/1993, s. 20(3). As has been noted by the parties, costs in a hearing under EPEA are not like those awarded in litigation where parties stand on opposite ends of an issue. There are public interest considerations in an appeal before the Appeals Board. [22] Sections 18 and 20 of the Regulation establish the framework within which the Appeals Board can make a cost award. First, under s. 18(2), costs must be reasonable and must be directly and primarily related to the matters contained in the notice of appeal and the preparation and presentations of the party's submissions. If they are not, they are out of scope. For those costs that are within scope, the Board is invited to consider the factors set out in s. 20, including any further criteria the Board considers appropriate. Those factors include whether an oral hearing was held (c), whether the party applying for costs required financial resources to make an adequate submission (e), and whether the submission of the party made a substantial contribution to the appeal (f).
[23] As the backdrop to all of its work, the Board is to be guided by the purpose of the EPEA as set out in s. 2 of the EPEA and, given the nature of this appeal, by the purpose of the Water Act as set out in s 2 of the Water Act. In both statutes, the Board's exercise of its authority is to reflect the recognition that all Albertans share in the responsibility of ensuring the protection, enhancement and wise use of the environment.
Analysis [24] Within this legislative framework, the question to be answered on this application is whether the Reconsideration Decision is reasonable and justifiable in relation to the law and the facts. [25] Under EPEA, a decision whether to award costs is discretionary. As a result, the decision maker is entitled to considerable latitude and deference with whether and to what extent costs are awarded: Pethick v Real Estate Council (Alberta), 2019 ABQB 431 at para 30. The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision maker is given a choice of options within a statutorily imposed set of boundaries: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 at para 52. In Baker at para 53, the Supreme Court provided guidance as to how to approach the review of a discretionary decision: a court is not to lightly interfere with a discretionary decision; however, an administrative board must still exercise its discretion within the "margin of manoeuvre" permitted in its governing legislation, and in accordance with the rule of law, the general principles of administrative law, and the Charter.
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make an award of costs. The criticism of the Reconsideration Panel's decision flows largely from its articulation of and adherence to the "foundational principles" that parties bear their own costs in an appeal and that costs are awarded based on a party's contribution to the hearing and to assisting the Board in making its recommendations. The latter is found in the Regulation at s. 20(2)(f); the former is based on its practice and prior decisions. The question is whether the Board unduly constrained itself by adhering to'its "foundational principle."
[28] The Applicant's argument suggests that broad discretion and respect for a practice established in prior decisions cannot co-exist. I do not agree. As identified in Vavilov at para 129 and as articulated by counsel for the Environmental Appeals Board, administrative decision makers may use guidelines or principles to achieve consistency in decision making provided that they do not apply them rigidly, without consideration of other criteria relevant to the decision including those set out in the governing legislation.
[29] It makes practical sense that the parties who engage with the Board place value in consistency and predictability with respect to decision making, including with respect to the exercise of discretion relating to the award of costs. As observed by Justice Woolley in Pethick at para 31, articulating a general rule governing when costs ought to be awarded is not itself an improper fettering of discretion: "administrative decision-makers may use guidelines and soft law to achieve consistency in decision-making, provided that they do not treat them as governing law." Moreover, it is clear from Demencuik that the idea that parties bear their own costs is the starting point for an analysis, not the end point. Demencuik itself is an example where the starting point was overcome by an assessment of a party's contribution to the appeal.
[30] While the advantages of consistency cannot overtake the requirement of reasonableness in either the decision-making process or the decision, in identifying and applying a starting point to its review of costs, the Board did not improperly fetter its discretion. The Reconsideration Panel considered other factors relevant to an award of costs including the level of involvement of counsel in the hearing process, the contributions of the Applicants, and whether the Applicants' contributions detracted from the focus of the appeal. The Reconsideration Panel's approach to the exercise of its discretion was framed by the governing legislation and fairly accounted for the policy considerations that bear on an award of costs. It acknowledged the need to create a cost environment that encourages participation, that neither rewards nor punishes participation, that deters vexatious participation, and that recognizes the value of relevant contribution. I see no basis in the reasoning to conclude that the foundational principle articulated by the Board, in theory or as applied, unduly constrained the decision-making process, or that the Reconsideration Panel did not remain live to the possibility of awarding costs if the circumstances merited.
[31] The next question is whether the Reconsideration Panel misapprehended the evidence regarding counsel's contribution to the appeal; and specifically whether it did so by echoing the findings of the Appeal Panel that there was "little space" for counsel to have contributed
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[33] I am satisfied on review of the Reconsideration Decision that the Reconsideration Panel was live to the evidence regarding counsel's contribution to the appeal and did not misapprehend it. The Applicants were given the opportunity to direct the Reconsideration Panel to the evidence they thought important regarding counsel's contribution including counsel's invoices. The Applicants invited the Reconsideration Panel to conclude that there was significant value in those contributions. The decision demonstrates the Reconsideration Panel's attention to those submissions and to the evidence regarding counsel's involvement in the appeal: see for example Reconsideration Decision para 17 and footnote 7, paras 61, 66, 93 and footnote 115. The Applicants in essence urge that a different conclusion should have been reached based on that evidence. [34] There is a danger in inviting a subsequent reviewer to engage in an evaluation of the value of the contributions made by the participants in the appeal, particularly with respect to a discretionary decision that turns significantly on evidentiary assessment and lived experience in the proceedings. As expressed in Jane Doe v Alberta, 2016 ABQB 135 at para 105 on an application for judicial review of a discretionary decision, the court is not to engage in a re-weighing of the factors considered by the decision maker. I agree with KGL that no one is better situated than the Appeals Board to assess what and who was of assistance to it and what and who was a detractor. That is not and cannot be the role of a reviewing court. The role I am to play is to examine the reasoning process and the outcome. In that regard, I disagree that the Reconsideration Panel failed to consider counsel's invoices; the decision demonstrates otherwise. In any event, I am not satisfied that either the Appeal Panel or the Reconsideration Panel was required to look at the invoices to evaluate counsel's contributions. The question of hours spent are undoubtedly relevant to the quantum of an award, but to the threshold question of entitlement, when weighing factors like contribution and assistance, the Board can rely on its lived experienced. [35] In that regard, the Reconsideration Panel acknowledge that counsel contributed to the preparation of written submissions and argument on the standard of review and that counsel participated in the hearing by conducting cross examination. It evaluated the relative value of the contributions of counsel both based on Mr. Brookman's evidence that he did 90% of the research and writing of the submission and based on the Board's own assessment of how the evidence unfolded at the hearing. In that regard, it noted that the Appeals Board concluded that the evidence it needed to make its recommendations was elicited by others. The Reconsideration Panel had the invoices, counsel's argument and the Appeals Board's experience in the appeal to inform its conclusion as to whether counsel made a substantial contribution to the appeal.
[36] I am satisfied that the Reconsideration Panel properly directed itself to the issues, the policy considerations and the legislative purpose that inform a decision to award costs. In
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Conclusion [37] The application for an order quashing the Reconsideration Decision and ordering costs to the Applicants or alternatively remitting the matter back to the Board is denied.
[38] KGL sought costs of this application in the event the Applicants were not successful. This Court has broad discretion to award costs. I am satisfied that it is not appropriate to award costs to KGL on this application. Counsel for the Applicants provided their service in the appeal on a pro bono basis and committed significant time in doing so. While counsel has been unsuccessful in recovering any of its costs, its commitment to serving the public interest should not now be discouraged by imposing a cost award against them. Moreover, the issues argued before me were materially the same as those argued before the Reconsideration Panel. In these circumstances, I decline to make an award of costs against the Applicants.
Heard on the 24th day of March, 2021. Dated at the City of Calgary, Alberta this 31st day ofJVtarch, 2021.
Appearances:
James B. Laycraft QC for the Applicant
N. Dilts J.C.Q.B.A.
Andrew Sims QC for the Respondent Alberta Environmental Appeals Board
Sean D. Parker for the Respondent KGL Constmctors, a Partnership
Andrea M. Simmonds for the Respondent the Director of Environment and Parks
2020 ABEAB 26 Appeal Nos. 17-047 and 17-050-RD
ALBERTA ENVIRONMENTAL APPEALS BOARD
Decision
Date of Decision - October 16, 2020
IN THE MATTER OF sections 91, 92, 96, and 101 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, and section 115 of the Water Act, R.S.A. 2000, c. W-3;
-and-
IN THE MATTER OF appeals filed by Jeff Brookman and Allison Tulick with respect to the decision of the Director, South Saskatchewan Region, Alberta Environment and Parks, to issue Water Act Approval No. 00388473-00-00 to KGL Constructors (A Partnership).
BEFORE:
Ms. Anjum Mullick, Panel Chair; Dr. Nick Tywonhik, Panel Member; and Ms. Meg Barker, Panel Member.
SUBMISSIONS BY:
Appellants:
Approval Holders:
Director:
Mr. Jeff Brookman and Ms. Allison Tulick, represented by Mr. Richard Harrison, Wilson Laycraft.
KGL Constructors, A Partnership, represented by Mr. Ron Kruhlak and Mr. Sean Parker, McLennan Ross LLP.
Mr. Kevin Wilkinson, Director, South Saskatchewan Region, Alberta Environment and Parks, represented by Ms. Lisa Semenchuk and Ms. Jodie Hierlmeier, Alberta Justice and Solicitor General.
EXECUTIVE SUMMARY
Alberta Environment and Parks (AEP) issued an Approval under the Water Act to KGL Constmctors, A Partnership (KGL) to permanently disturb 24 wetlands, for a total of 22.07 hectares of wetland loss, and to change the location of water for the purpose of dewatering wetlands. The work allowed under the Approval is part of the construction of the Southwest Calgary Ring Road project.
Mr. Jeff Brookman and Ms. Allison Tulick (the Appellants) appealed the Approval to the Environmental Appeals Board (the Board). After a hearing, the Board recommended the Approval be varied. These recommendations included adding monitoring conditions to address concerns regarding water quality and quantity flowing into a wetland. The Board also recommended the Approval be varied to require an assessment of the wetlands impacted by the project usmg the criteria specified in the 2013 Alberta Wetland Policy. The Minister of Environment and Parks accepted the Board's recommendations to vary the Approval and issued a Ministerial Order, adding a number of her own conditions, over and above those recommended by the Board.
The Appellants and KGL each reserved their right to request costs. After the Minister's decision, the Appellants sought $378,471.67 costs. KGL did not seek costs. The Board reviewed written submissions using the Board's established criteria. It considered the participation of the Appellants in the hearing part of the obligation Albertans have to bring environmental issues forward. Much of the evidence presented by the Appellants and their witnesses addressed issues outside of those set for hearing. Therefore, the Board awarded no costs to the Appellants.
They now seek to reconsider the Board's refusal to award costs. They allege errors in fact and law, and allege new evidence involving the Appellants' retainer agreement with, and invoices
changing its Costs Decision. Specifically, the Board had not provided an opportunity for the Appellants to rebut the response submissions of the other parties during the costs application.
The Board then undertook a reconsideration of the costs application in light of the Appellants' new evidence. It found the new evidence helpful in explaining the relationship between the Appellants and their legal counsel and explaining why they felt costs justified. However, it was insufficient to persuade the Board to order the costs that were requested.
The Appellants provided no exceptional or compelling reason that warranted varying the original Cost Decision, and the Board again denied the request to award legal costs.
TABLE OF CONTENTS
I. INTRODUCTION..................................................................................................!
II. RECONSIDERATION PROCEDURE..................................................................2
III. SHOULD THE BOARD UNDERTAKE RECONSIDERATION? - STEP 1 ...... 3
A. Appellants Submissions - Step 1.................................................................................................... 3
B. Approval Holder Submissions - Step 1 .........................................................................................6
C. Director's Submissions - Step 1................................................................................................... 10
D. Appellants' Rebuttal - Step 1....................................................................................................... 10
IV. ANALYSIS-STEP 1.......................................................................................... 11
V. DECISION- STEP 1............................................................................................ 13
VI. RECONSIDERATION OF LEGAL COSTS - STEP 2....................................... 14
A. Appellants - Step 2........................................................................................................................ 14
B. Approval Holder-Step 2............................................................................................................. 16
C. Director-Step 2............................................................................................................................22
D. Appellants-Step 2........................................................................................................................22
VII. ANALYSIS - STEP 2 ..........................................................................................23
VIII. DECISION-STEP 2............................................................................................30
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I. INTRODUCTION [1] This is the decision of the Environmental Appeals Board (the "Board") on the application by Mr. Jeff Brookman. and Ms. Allison Tulick (the "Appellants) for the Board to reconsider and vary its Costs Decision dated November 7, 2019 (the "Costs Decision") in Appeal Nos.EAB 17-047 and 050.1
[2] This decision relates to appeals filed with respect to Approval No. 00388473-00-00 (the "Approval") issued to KGL Constmctors, A Partnership (the "Approval Holder"). The Director, South Saskatchewan Region, Alberta Environment and Parks (the "Director") issued the Approval under the Water Act, R.S.A. 2000, c, W-3 (the "Water Act'). It allows for the permanent disturbance (m-filling) of 24 wetlands, for a total of 22.07 hectares of wetland loss, and to change the location of water for the purpose of dewatering wetlands. Under the Approval, the Approval Holder will partially fill in 11 wetlands and completely fill in 13 wetlands as a part of the construction of the Southwest Calgary Ring Road ("SWCRR"). The project involves constructing a roadway through a Transportation Utility Corridor located on the west side of the City of Calgary. The project proponent is Alberta Transportation, but the Approval was issued to KGL Constmctors as the contractor hired to complete the construction work.
[3] The Board held a public hearing. After considering the evidence and arguments, written submissions, and Director's record, the Board recommended that the Minister of Environment and Parks (the "Minister") vary the Approval. She accepted the Board's recommendations and issued a Ministerial Order mcorporating the Board's recommendations, plus additional changes of her own.2
[4] On Febmary 27, 2018, the Appellants applied for costs from the Approval Holder in the amount of $378,471.67. They sought costs: (1) for their legal counsel who, it was said, had acted on a pro bono basis, (2) for Mr. Brookman's participation in the hearing, and (3) for Ms. Tulick's costs for her participation in the hearing. The Appellants asked that that Approval
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[5] The Approval Holder did not file a costs application.
[6] No costs have ever been sought by or from the Director.
[7] On November 7, 2019, the Board issued a decision denying costs. It denied costs for the legal counsel acting on a.pro bono basis. Mr. Bookman's evidence was that he personally prepared most of the submissions. The Board denied costs for Mr. Brookman as much of his evidence was unrelated to the issues identified by the Board. The Board was also of the view that Mr. Brookman's evidence did not substantially contribute to the appeal, and reasonable costs are considered to be part of participating in the appeal process. The Board denied the costs claimed by Ms. Tulick, which, though reasonable, the Board also considered to be a part of participating in the appeal process.
[8] On November 27, 2019, the Appellants wrote asking that the Costs Decision be reconsidered on the basis of alleged errors in fact, errors in law, and new evidence; in particular a retainer agreement and invoices that were not previously provided.
[9] The Board received written submissions. The Board identified a potential error in not having provided the Appellants an opportunity to submit rebuttal submissions during the original costs application. Having identified this potential error, the Board proceeded to the second step of the reconsideration process, limited to a reconsideration of the legal costs incurred by the Appellants' coimsel, in light of the new evidence and arguments;
[10] The Board set a process and received submissions from March 6, 2020 to April 3, 2020. Upon reviewing the written submissions, the Board found no compelling reason to change the Costs Decision and denied the Appellants' application for costs.
II. RECONSIDERATION PROCEDURE
[11] Reconsideration mvolves a tvro-step process. The first requires the party requesting reconsideration to demonstrate that there was an error of law, the process was flawed,
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[12] If such matters are established, the Board moves to the second step, which is the actual reconsideration.
[13] The Board received submissions from the Parties on the following issues:
1. Does the reconsideration request meet the requirements for reconsideration, and should the Board reconsider?
2. Whether or not legal costs should be awarded for the Appellants' legal counsel in light of the new evidence provided.
The written submissions at each stage overlapped considerably. To the extent the submissions repeat points already made, or simply repeat the Board's established criteria, they are mentioned in the following summaries only once.
III. SHOULD THE BOARD UNDERTAKE RECONSIDERATION? - STEP 1
A. Appellants Submissions - Step 1
[14] The Appellants submitted that the Board's decision to deny costs for counsel were explained in paragraphs 135 and 154 of the Costs Decision:
"[135] The Board questions the legal costs claimed by the Appellants. Mr. Brookman clearly stated he did 90 percent of the research for and writing of the submissions. This leaves little work required from the Appellants' counsel, yet they claimed 334.3 hours of legal time at approximately $400.00 per hour. In addition, the Appellants had stated their counsel was offering his services ou a pro bono basis. Accordingly, the Board does not see how the Appellants can be requesting costs for legal services they did not have to pay for. This would result in the Appellants receiving a windfall. The intent of costs is not to provide a financial benefit for a party nor to use it to penalize a party. The Board appreciates the Appellants' counsel was responsible for preparing submissions on the issue of standard of review. With respect to the standard of review, the Board is of the view the legal arguments presented by the parties were equally helpful, and therefore it is not appropriate to consider a costs award.
[154] The Appellants' application for an award of costs for legal counsel is
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[15] The Appellants stated that, based on these paragraphs, the Board's decision to deny costs was based this on the following findings of fact:
"1 That Mr. Brookman did 90% of the work related to the Appeal; and 2. That counsel was providing his services pro bono."4
[16] The terms of their retainer agreement with their counsel provided for the work to be performed pro bono, except to the extent to which a costs award may be obtained. This term prevented any "windfall" from a costs award.5
[17] The Appellants argued, there are compelling reasons for reconsideration when the Board erred in finding "... that the extent of the work performed by the Appellants' counsel was related to submissions on standard of review."6 A review of their counsel's invoices indicates that counsel did considerably more work beyond preparing submissions on standard of review. That work also included:
"1. Scheduling; 2. Attendance at the hearing; 3. Preparing witnesses; 4. Examining witnesses in chief; and 5. Cross examining witnesses."
According to the Appellants, without their counsel, the proceedings would have been more
onerous and time consuming.
[18] While the retainer agreement and invoices were available prior to the February 27, 2018, deadline for written submissions9 they did not laiow that the Approval Holder would argue that the Appellants' counsel, having acted as "pro bono counsel," were not entitled to
4 Appellants' Initial Submissions, December 11, 2019, at page 2.
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costs. They did not know the Board would find that significant. As a result, this evidence was not available to the Board prior to its decision, and amounts to new evidence.10
[19] The Appellants drew attention to 1465778 Ontario Inc. v. 1122077 Ontario Ltd.,n paragraph 34, which provides:
"[34] It is clear from the submissions of the amid representing the views of the profession, as well as from the developing case law in this area, and I agree, that in the current costs regime, there should be no prohibition on an award of costs in favour of pro bono counsel in appropriate cases. Although the original concept of acting on a pro bono basis meant that the lawyer was volunteering his or her time with no expectation of any reimbursement, the law now recognizes that costs awards may serve purposes other than indemnity. To be clear, it is neither inappropriate, nor does it derogate from the charitable purpose of volunteerism, for counsel who have agreed to act pro bono to receive some reimbursement for their services from the losing party m the litigation. To the contrary, allowine pro bono Darties to be subject to the ordinary _costs consequences that apply to other parties has two positive consequences: d) it ensures that both the uon-pro bono party and the pro bouo party know that they are not free to abuse the system without fear of the sanction of an award of costs: and (T) it promotes access to iustice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases. Because the potential merit of the case will already factor into whether a lawyer agrees to act pro bono, there is no auticipation that the potential for costs awards will cause lawyers to agree to act only in cases where they anticipate a costs award."12 (Emphasis added by the Appellants.)
[20] According to the Appellants, disentitling a party to costs on the basis of their counsel having acted pro bono has the effect of discouraging legal volunteerism. Deciding against costs discourages settlement, encourages vexatious litigation, and discourages economy and efficiency. There was a significant expenditure of legal fees by their counsel's office to obtain a result for the Appellants.14
[21] The Appellants seek reconsideration on the basis of their being successful in their appeal, the expenditure of legal fees by their counsel, and the entitlement of their counsel to a
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initial costs submission in Febmary of 2018, the Board was likely unaware of the relationship between the Appellants and their counsel. The retainer agreement was new information that
warranted reconsideration.15
B. Approval Holder Submissions - Step 1
[22] Section 101 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 ("EPEA")16 authorizes the Board to reconsider any previously issued decision. A party's
reconsideration request triggers a two-step process:
"The first step in the process is to determine whether there are grounds sufficient enough to warrant a reconsideration. If the Board has been provided sufficient new_evidence or the parties have demonstrated there has been an error in law. then the Board will proceed to the second step, the actual reconsideration of its decision [Emphasis added]."17
[23] The Board's ability to reconsider decisions is an extraordinary power to be used in situations where there are exceptional and compelling reasons to reconsider.18 The Board discussed this point in the decision of Gas Phis Inc. and Handel Transport (Northern) Ltd. v. Director, South Saskatchewan Region, Operations Division, Alberta Environment and Water (Gas Plus).19
[24] The Board has framed the applicable test "...as requiring the applicant to demonstrate that '...there was an error in the Board's interpretation of the law, the process was flawed, or there was an error in fact sufficient to undermine the basis of the Board's decision.'" This means that even where an error or flaw is demonstrated, it did not necessarily "open up a
15 Appellants' Initial Submissions, December 11,2019,at pages 4 and 5. 16 Section 101 of EPEA provides: "Subject to the principles of natural justice, the Board may reconsider, vary or revoke any decision, order, direction, report, recommendation or ruling made by it." 17 Approval Holder's Submissions, December 18, 2019, at paragraphs 5 and 6 citing Tomlinson v. Director, Northern Region, Operations Division, Alberta Environment and Siistamable Resource Development re: Evergreen
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decision for reconsideration." An applicant for reconsideration must demonstrate that the error or flaw undermines the foundations of the Board's decision.20
[25] A reconsideration application is not intended to be a tool for rearguing the same issue a second time. The onus lays with the party making the request to establish exceptional and compelling reasons to reconsider.21
"[FJactors the Board will consider when deciding whether an applicant has discharged this onus include the public interest, delays, the need for finality, whether there was a substantial error of law that would change the result, and whether there is new evidence not reasonably available at the time of the previous decision."22
[26] There is a need for fmality:
"The Board considers finality important in its decision making process and particularly when making recommendations to the Minster. It provides certainty to the approval holders, appellants, and the public that the appeal process is complete and the approval holder or appellant, as m this case, can proceed in accordance with the Minister's order."23
[27] According to the Approval Holder, evidence that was not available at the time the decision was made, or was not practically obtainable by the parties, may be relevant for the purposes of reconsideration. Evidence that was available at the time of the hearing, even if acquired after the decision was made, is not relevant for the purposes of consideration. 4
[28] The information provided now is not unlike the information and reconsideration requests made in both Tomlwson and Dyrholm. In Tomlinson, the Board found that the
w Approval Holder's Submissions, December 18, 2019, at paragraph 9 citing Reconsideration Decision: Dyrhohn v. Director, Central Region, Environmental Management, Alberta Environment re: Resort Development Funding Corporation (23 February 2010), Appeal No. 09-003-RD (A.E.A.B.) (Dyrhohn) at paragraph 25. 21 Approval Holder's Submissions, December 18,2019, at paragraph 11. 22 Approval Holder's Submissions, December 18, 2019, at paragraph 13 citing Tomlinson v. Director, Northern Region, Operations Division, Alberta Environment and Susfamabie Resource Development re: Evergreen
information was available to the applicant at the time of the original submissions, but the applicant did not seek it out or disclose it to the Board. Had the applicant done so, the information would have been brought to the Board's attention and the respondent would have had the opportunity to respond. To allow the applicant to "...claim the information as 'new evidence' would have gone '...against the principles of natural justice."'25
[29] In Dyrholm, the applicant attempted to submit an agreement during the reconsideration process which had been available at the time the initial submissions. The Board held the agreement was not new evidence.26
[30] According to the Approval Holder, the Appellants have not discharged their onus of demonstrating exceptional and compelling reasons to reconsider. Nor have they established that the Costs Decision includes a substantial error of law or fact capable of changing its
outcome.2
[31] The Appellants have failed to submit any new evidence with respect to either the pro bono or the counsel work issues, noting that copies of the Appellants' counsel's invoices were provided to the Board prior to the initial costs hearing and were considered at paragraph 135 of the Decision. The Appellants new reference to the invoices was an attempt to re-argue an issue, contrary to Tomlmson.28
[32] The retainer agreement is dated September 1, 2017, so was available to the Appellants prior to their Febmary 27, 2018 costs submissions. As in the Dyrholm decision, the Appellants had the opportunity to submit that retainer agreement in their original submissions, but failed to do so. No adequate explanation has been given for that failure.29
[33] Not knowing what evidence the Board would find material, or upon which the Approval Holder would rely, does not make the retainer agreement new evidence. It was
25 Approval Holder's Submissions, Dated December 18, 2019, at paragraph 15. The Approval Holder cited
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reasonably foreseeable that the Appellants would need to justify the significant monetary claim for legal fees, particularly when they advised the Board that their counsel was acting pro bono.
[34] The Appellants must also establish that the new evidence, if accepted, would give rise to an error that would undermine the basis of the Board's decision. The invoices and retainer agreement fail to meet this second threshold.31
[35] There is no demonstrated justification for deviating from the Board's well established practice of requiring parties to bear their own costs. This well established and principled approach to costs is a foundational element in the decision. Even if the Appellants' evidence were accepted as new evidence, it would not change the outcome with respect to legal costs in light of the Board's practice.32
[36] If the Board were to depart from its usual practice and revert to the "loser pays" principle used in litigation, the parties in any event had mixed success. The Board rejected the Appellants' position that they had "won the appeal."
[37] The invoices were also inflated.3
[38] The application does not address the Board's longstanding practice that parties as a general rule bear their own costs. The Approval Holder originally argued that "...the work done was not work for which a costs award would be appropriate.. ."35 That was accepted, and
has not changed.
[39] The Appellants have not meet the very high threshold to establish exceptional and compelling reasons for the Board to invoke its extraordinary power to reconsider. Neither the invoices nor the retainer agreement are new evidence and even if they were accepted as such, they do not justify a departure from the Board's well-established practice of requiring the parties
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to bear their own costs. The Appellants failed to discharge the onus of meeting the high threshold for reconsideration and the Appellants' reconsideration request must be dismissed.36
C. Director's Submissions - Step 1
[40] The error at issue relates to the nature of the retainer agreement between Mr. Brookman and Ms. Tulick, and the Appellants' say this new information warrants issuing a new costs decision. This information was available to the Appellants at the time of the original application.37
[41] The portion of the decision rejecting costs against the Director is not an issue on this reconsideration. The written submissions do not take issue with the Board's finding that there was no bad faith on the part of the Director. The Board's decision was in keeping with previous decisions. There is no apparent substantial error of fact or law.
D. Appellants' Rebuttal - Step 1
[42] The Appellants have demonstrated the required error of law or fact. The Board was in error on two facts which the Approval Holder does not contest. The Approval Holder has not contested the submission that counsel, acting pro bono, is entitled to costs.4
[43] Retainer agreements are inherently confidential. It was not reasonable to expect the Appellants to waive the confidential nature of their retainer agreement in the first instance. Section 101 ofEPEA is designed to give the Board the opportunity to correct errors. Without that power, the Courts would be subject to more applications for judicial review. It is a reasonable application of the Board's ability to ensure that it gets the decision right on the facts and law.43
36 Approval Holder's Initial Submissions, December 18, 2019, at paragraphs 37,38,39,and 40. 37 Director's Response Submissions, December 18,2019,at page 1. 38 Director's Response Submissions, December 18,2019,at page 2.
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[44] The Appellants never raised the loser pays principle in their Febmary 27, 2018, submissions: "... at no time was the word 'won' ever used nor was it ever used in Mr. Brookman's submissions." Mr. Broolanan's submissions did not rely on the loser pays principle and only referred to it once.44
[45] Their costs submission is based on their contribution in ensuring that the Approval Holder complied with Alberta's environmental regime. This contribution that merits a costs award. The substantive environmental conditions in the Approval would not have been granted without the Appellants' evidence, submissions, and legal arguments. Legal counsel was instrumental in that contribution. The Board and Minister made numerous amendments to the Approval as sought by the Appellants. It is factually incorrect for the Approval Holder to say the Appellants were only successful on the specific question of the applicable wetland policy.45
[46] The Board should reconsider its decision. It was based on facts and legal analysis not available to the Board, and upon which the Appellants could not predict the Board was going to rely.46
IV. ANALYSIS - STEP 1
[47] Under section 101 of EPEA, "Subject to the principles of natural justice, the Board may reconsider, vary or revoke any decision, order, direction, report, recommendation or ruling made by it."
[48] The power to reconsider "is an extraordinary power to be used m situations where there are exceptional and compelling reasons to reconsider."47 The Board uses this discretion with caution, as it is an exception to the general rule that decisions are intended to be final. Reconsideration is not an opportunity to revisit the issues that arose during a hearing; it is not intended as a tool for participants to reargue the same issues, or to bring evidence forward that
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could have been presented at a hearing. However, there are specific circumstances that warrant reconsidering a decision. The onus is on the party making the request to convince the Board there are exceptional and compelling reasons to reconsider.
[49] The Alberta Court of Appeal:
"[T]he Courts should be sparing their reopening of a pronounced decision, and should not do so simply for the asking. This is not au occasion for the losing party to advance new argument which he or she simply did not think of before. Or worse still, one which he or she held back. If parties are not forced to prove fully their whole case once and for all, then endless wrangling and never-ending rehearings would result."48
Put simply, a reconsideration is not an opportunity to have a second chance to re-argue one's
case.
[50] In deciding whether to reconsider the Board considers various factors including the public interest, delays, the need for finality, whether there was a substantial error of law that would change the result, and whether there is new evidence not reasonably available at the time of the previous decision.49 A new decision from the Courts, not reasonably available at the time of the hearing, might constitite another factor, however, the decision in question must demonstrate an error in law that, once corrected, would change the original result.50
[51] With new evidence, at Step 1 a party must demonstrate that the new evidence, if accepted, could lead to a change in the original decision. There must be a reasonable probability of the original decision being altered.
[52] The Board recognizes that Counsel's retainer agreement and invoices are evidence that the Appellants could have brought forward in the original process. They did not provide this evidence at the time. However, the Board is influenced by the fact that the
48 InAlberfa (Director, Child, Youth & Family Enhancement Act) v. M. (A) 2009 ABCA 258 (Alta. C.A.) at
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Appellants had no opportunity to provide that evidence by way of rebuttal submissions once the pro bono issue was raised.
[53] The Board agrees with the Approval Holder that the retainer agreement and the invoices were available to the Appellants prior to the deadline. They had access to it even prior to their initial application for legal costs. The retainer agreement and invoices are not therefore strictly speaking 'new evidence' as it is normally understood.
[54] However, it is the Board's standard practice to have a submissions and replies for cost applications. The party seeking costs provides their submissions to the Board and the other parties are given an opportunity to respond. In the current case, the Board set this process in its correspondence dated January 29, 2018, and no one objected.
[55] However, after following submissions from the Approval Holder and the Director, the Appellants asked for a chance to provide rebuttal submissions.51 Both the Approval Holder and the Director objected based on the proposition that the established process did not contemplate rebuttal submission. Their own submissions had been responsive to the Appellants' submission without raising new evidence and there was no basis for a rebuttal.52
[56] The Board at the time reviewed the parties' comments, and decided a rebuttal submissions from the Appellants was unnecessary. If the Appellants had been given that opportunity, the Board would have had additional information on which to base its decision, namely, the retainer agreement and the mvoices. It is possible such information could have an impact on the original result.
V. DECISION - STEP 1
[57] The Appellants were not provided an opportunity to submit rebuttal submissions in response to the submissions of the Approval Holder and die Director. That, in retrospect, was a process lapse that denied the Appellants the opportunity to submit, as a rebuttal submission, the
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which to make the Costs Decision. Because of this the Board decided to undertake a reconsideration of its decision to deny legal costs.
VI. RECONSroERATION OF LEGAL COSTS - STEP 2
[58] The parties relied on, and at times, repeated the arguments already presented during Step 1. They also repeated arguments already addressed in the original costs decision. What follows are primarily the new points raised.
A. Appellants - Step 2
[59] The Appellants say the Board's decision to deny costs was based on the following findings of fact:
"1. That Mr. Brookman did 90% of the work related to the Appeal; and 2. That counsel was providing his services pro bono."53
[60] The terms of their retainer agreement include a term that provided for the work to be performed pro bono, except to the extent to which a costs award may be obtained. This prevented any "wmdfall" from a costs award.5
[61] The Board made an error in its finding of fact "... that the extent of the work performed by \he Appellants' counsel was related to submissions on standard of review."55 A review of their counsel's mvoices indicates that counsel did considerably more work beyond preparing submissions on standard of review which included:56
"1. Scheduling; 2. Attendance at the hearing; 3. Preparing witnesses; 4. Examining witnesses in chief; and 5. Cross examining witnesses."57
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According to the Appellants, without counsel, the proceedings would have been more onerous and tune consuming.
[62] The second finding of fact with respect to a prospective windfall to the Appellants was in error as the Appellants' retainer agreement with their counsel specifies that any costs award is due and owing to the Appellants' counsel.
[63] In Imperial Oil,9 the parties sought costs on the basis of the significant contribution made by the legal counsel at the hearing. The Appellants counsel contribution led to a significant decision and understanding as to the current Wetland Policy as well as involvement from the Minister of Environment and Parks.
[64] Awarding costs: (a) Encourages settlement by parties who may be concerned by a costs award if unsuccessful;
(b) Discourages vexatious litigation; and (c) Compensates a party for legal fees expended to obtain a meritorious result. The Appellants were largely successful m their appeal. The Minister's Order shows the Minister concurred with the Appellants' submissions.
[65] Costs should be awarded in a principled manner as they are awarded when proceeding in a matter before a court.62 The Board should consider the Appellants' contribution
and overall success.
58 Appellants' Initial Submissions, March 6,2020,at page 3. 59 Imperial Oil Ltd. and Devon Estates, (8 September 2003) Appeal No. 01-062-CD (A.E.A.B.), 2003 ABEAB 40.
60 Appellants' Initial Submissions, March 6,2020,at page 5. 61 Appellants' Initial Submissions, March 6, 2020, at page 5. The Appellants cited paragraph [22] of the Reasons of the Minister of Alberta Environment and Parks EAB Appeals No. 17-047 and 17-050 and Minister's Order dated January 29, 2018, which provides: "Lastly, I want to thank the Appellants for bringing these appeals forward. These appeals have
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[66] The amount of time spent by Mr. Brookman was irrelevant to the consideration of the non-billed time spent by counsel for the Appellants. Their counsel made significant contributions, having participated at hearings, drafted submissions, examined witnesses in chief, cross examined witnesses, prepared expert reports, and engaged in other tasks. 4
[67] The Appellants submitted during the hearing that the standard of review of the Director's decision ought to have been correctness. They argued that, even if the Approval Holder's submissions on the standard of review were helpful, the Appellants on this issue and should still have their costs awarded as they had to expend time and energy to make the argument.65
B. Approval Holder - Step 2 [68] The Appellants failed to address the flaws in their original costs application and failed to demonstrate a basis for the Board to revisit the Board's prior decision. The Appellants failed to provide a reason why an exception should be made to the Board's general practice that parties bear their own costs.
[69] The Appellants failed to meet any of the criteria set by the Board for an award of final costs. The application should be dismissed for the same fundamental flaws and reasons as the original application which declined an order of costs. Those reasons were:
(a) the Appellants failed to provide justification for deviating from the well-established Board practice of requiring parties to bear their own costs;
(b) the Appellants' arguments are based on the incorrect assumption that the litigation principle of "loser pays" should apply, and that the Appellants were the successful parties, when the success of the Appeal was mixed and the only issues the Appellants were successful on were the standard of review and which wetland policy applied;
(c) the outcome of the appeal was minimally impacted by the determination of the standards of review and which wetland policy applied - a 5% reduction to 1 of the 24 wetlands impacted;
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(e) the manner m which the Appellants pursued the matter made it unnecessarily complicated, protracted and more expensive.67
[70] Further the claim by the Appellants' contained deficiencies:
(a) the amoimt of legal fees sought, which were significant and on a solicitor-client basis, which is contrary to the Board's prior guidance on costs;
(b) the Appellants seek payment of all of their legal costs from the commencement of the matter as opposed to just those necessary for the Appellants' attendance at the hearing;
(c) the Appellants' counsel's role was confined to a single legal issue and some of the work performed was not relevant to the appeal; and
(d) the Appellants are seeking reimbursement of legal costs associated with an application they withdrew and for which a court ordered legal costs against them in favour of the Approval Holder; the Approval Holder has not pursued those costs.68
[71] There is no justification to hold the Approval Holder responsible for the Director's decision as to which Wetland Policy to apply. The Board has consistently required parties to an appeal to bear their own costs absent a compelling reason to the contrary.
[72] Section 18(2) of the Environmental Appeals Board Regulation, stating that the elements contained within "... are not discretionary elements, and any costs awarded by the Board must be directly and primarily related to these elements."7
[73] Demenciuk,7 stated "...when considering the above factors in [section 18(2) of the Environmental Appeals Board Regulation] in the context of the appeal, 'the Board must remain cognizant of the purposes of the Water Act as stated in section 2'".72 An award in costs should be founded on an application that meets the criteria contained in section 20(2) of the
67 Approval Holder's Response Submissions, March 20, at paragraphs 4 and 5. 68 Approval Holder's Response Submissions, March 20, at paragraph 6. 69 Section 18(2) and Section 20 of the Environmental Appeals Board Regulation, Alta. Reg. 114/1993 (the
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Regulation as discussed in Demencnik and should have a direct nexus to reimbursing an appellant for a particular expense.73
[74] The starting point in any appeal is that the parties bear their own costs.74 The critical consideration is the 'degree to which the Parties' contributions to the hearing assisted the Board in developing its recommendations."'75 Costs related to disbursements such as mileage and photocopying are not typically awarded. Costs were denied to the applicant in Demenciuk because they did not relate to the preparation and presentation of submissions for the hearing.76
[75] A party seeking costs must demonstrate that the costs are both reasonable and necessary. "[L]egal fees must be incurred in relation to the hearing of the appeal in order for them to be potentially recoverable"78 and only in "exceptional cases" may solicitor-client costs
"perhaps" be available.79
73 Approval Holder's Response Submissions, March 20, at paragraphs 12 and 13, citing Demencuik and Savifslcy v. Director, South Saskatcfiewan Region, Alberta Environment and Sustainable Resource Development, re: Municipal District of Bighorn No. 8 (07 January 2016), Appeal Nos. 14-003 and 14-004-CD (A.E.A.B.) at paragraph 91, below: ". ..the Board must first ask whether the Parties presented valuable evidence and contributory arguments, and presented suitable witnesses and skilled experts that: (a) substantially contributed to the hearing; (b) directly related to the matters contained in the Notice of Appeal; and (c) made a significant and noteworthy contribution to the goals of the Act. If a Party meets these criteria, the Board may award costs for reasonable and relevant expenses such as out-of-pocket expenses, expert reports and testimony or lost time from work. A costs award may also include amounts for retaining legal counsel or other advisors to prepare for and make presentations at the. Board's hearing." 74 Approval Holder's Response Submissions, March 20, at paragraph 15, citing Demencuik and Savitsky v. Director, South Saskatchewan Region, Alberta Environment and Snsfamable Resource Development, re: Municipal District of Bighorn No. 8 (07 January 2016), Appeal Nos. 14-003 and 14-004-CD (A.E.A.B.) at paragraph 128, citing Costs Decision: Paron etal. (8 February 2002), Appeal Nos. 01-002, 01-003 andOl-005-CD (A.E.A.B.). 75 Approval Holder's Response Submissions, March 20, at paragraphs 16, citing Demencuik and Savitslcy v.
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[76] The Appellants' costs claim can be contrasted with those claimed in Mountain View.90 There, a senior legal counsel ran an entire hearing for his clients and made a substantial contribution to the hearing. The Board's costs award started from 50% of the fees claimed, at the govenmient tariff rate, with adjustments for the circumstances. The Approval Holder submitted that in the current circumstances, where Mr. Brookman advised he did 90% of the research and writing and that the Appellants' coimsel limited his contribution to the standard of review, the appropriate result is to award no legal fees.8
[77] The Board test requires three elements for a fmal costs award as stated in Demencuik and Cabre decisions. The test "... indicates that the Board must ask whether the party seeking costs presented valuable evidence aud contributory arguments, and suitable witnesses and skilled experts, towards three ends:
(a) A substantial contribution to the hearing; (b) The evidence directly related to the matters contained in the Notice of Appeal; and
(c) The evidence made a significant and noteworthy contribution to the goals of the Act."83
[78] The standard of review issue was a dispute largely between the Appellants and the Director, and one in which the Approval Holder was not substantially engaged. It should not have to pay any costs relating to an issue with which it was minimally involved.84
[79] The Appellants' comisel did not engage on evidentiary issues such as cross-examination, only on the legal question of standard of review. The evidence submitted by the Appellants, with Mr. Brookman doing the vast majority of the work of the presentation of evidence and argument, was not of significant assistance, and was presented in a way which led
to delay, expense, and complications.
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[80] The contribution made by the Appellants "... must be seen as heavily outweighed by the sheer volume of irrelevant and extraneous issues which they introduced, unnecessarily complicating the proceeding and making it more protracted and expensive than it needed to." The Appellant further argued that the hearing ended up timing on issues that were different from those raised in the Notices of Appeal and noted if the Board wished to take into account the question of success of the parties, the Appellants were not successful on any issue other than the specific question of which wetland policy to apply and this decision was made by the Director prior to KGL's involvement in the matter.86
[81] The Appellants have still not met the Board's test for costs and that the Appellants' application must be dismissed; "...given the vast amount of irrelevant information,
irrelevant issues, and unnecessarily protracted and expensive process..." that fact that some amount of that material could be tied to the broad goals of EPEA is not sufficient to justify deviation from the Board's standard practice of parties bearing their own costs. Nothing in the reconsideration request changes this.87
[82] It was inappropriate for the Appellants' counsel to claim costs which were not connected to the hearing, including work connected to failed litigation and work performed after the hearing. The Appellants seek costs on a solicitor-client basis, which is inconsistent with the Board's precedents. Mr. Brookman had indicated that he had researched and prepared 90% of the Appellants' submissions; there appears to be no basis for the amount of legal fees claimed.
[83] In light of the retainer agreement between the Appellants and their counsel, there does not appear to be a windfall earned by the Appellants. However, the Appellants counsel made a business decision to appear before the Board on a pro bono basis, where it is well established that parties bear their own costs. The Appellants' counsel acting pro bono should not be a basis for the Board compensating the law firm contrary to its standard practice.
[84] The "... principles that (1) the 'loser pays' is not applied by the Board and (2)
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principle, the Rules of Court, and other factors quite different to the principles established in the Board's jurisprudence.90
[85] Imperial Oil does not support the Appellants' cost application because:
"(a) the facts are distinguishable - the current matter does not involve human health concerns from people living on contaminated lands;
(b) the Appellants' participation did not promote economy and was not efficient or effective in. achieving the objectives stated in the Notices of Appeal; and
(c) the quantum of costs awarded in [Imperial Oil] represent a fraction of what the Appellants are seeking in the present matter."91
[86] The issue is not whether or not the Appellants' counsel worked hard, the issue is whether or not there is basis to deviate from the Board's standard practice that each party bear their own costs and there was no basis to deviate from it.92 A restatement of the "loser pays" principle and arguing to be compensated for expending time and energy to make argument [by the Appellants] "...fails to address why the Board's usual practice with respect to costs should not be followed."93
[87] The Appellants were not entitled to costs because the hearings were more expensive and disproportionate to the limited issues properly addressed. This was a result of the Appellants not respecting the Board's processes and jurisdiction.
[88] With respect to the legal fees that are the focus of the reconsideration request, the Appellants have not demonstrated that the limited additional information they brought forward should defeat the well-established practice of each party bearing their own costs. The Appellants have not shown why any party should be entitled to costs, including a law firm that had taken on the matter on a pro bono basis. The Appellants have failed to meet the requirements of the governing legislation and Board jurispmdence with respect to final costs claims and their application should be dismissed in its entirety.94
C. Director - Step 2
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[89] The Du-ector declined to provide response submissions as no one sought costs against the Director.
D. Appellants - Step 2
[90] The Appellants reemphasized several of their earlier arguments. The Board has previously ".. .determined that in order to meet section 2 of the Water Act that requires Albertaus to bring matters forward, a party who makes a significant contribution is only entitled to 50% of its costs." The Appellants argued further that where the Appellants had made such a contribution, their costs ought to be compensated.
[91] The Approval Holder has tried to minimize the Appellants' contribution impact on the Board's decision. With respect to the decision itself, the Appellants stated that it was significant because it:
(a) con&med the applicability of the correct Wetland Policy; (b) confirmed that standard of review from a Director's decision; and (c) added additional conditions to the impugned Approval.97
[92] The Board ought to award costs in a principled manner. Doing so requires consideration of:
(a) awarding costs to encourage settlement, discourage vexatious litigation and compensate a party for expenditure of legal fees;
(b) a party should not be diseutitled from a costs award by virtue of their counsel having acted pro bono; and
(c) the loser ought to pay a portion of the costs incurred by the successful litigant.
The Approval Holder was not successful on. which Wetland Policy to apply or on the issue of the standard of review.98
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[93] The Appellant stated that of the time entries contained m the invoices, of the 334.3 hours spent by counsel on this matter, only 24.5 were unrelated to the appeal and that those hows were spent appealmg the Board's decision on a stay of enforcement.
[94] The issues presented to the Board were significant as was the scope of the Southwest Calgary Ring Road project. The scope of the project influenced the amount of disclosure that needed to be reviewed. lo°
[95] The Appellants denied that their submissions made the appeal longer or were unrelated to the issues before the Board. A review of the recordmg shows that the Appellants and their comisel recognized that there were only three issues before the Board, put those three issues on the record at the outset, and only made submissions on those three issues.
VII. ANALYSIS - STEP 2
[96] The Appellants have requested the Board reconsider its Costs Decision as it relates to the legal costs award. The Appellants' reconsideration request centres on their view that the Board's findings of fact and decision are found in paragraphs 135 and 154 of the Costs Decision respectively.102 The Appellants object to the findings of fact around the work performed by the Appellant, Mr. Brookman, and Appellants' counsel, as well as the Board's
99 Appellants' Response Submissions, April 3,2020,at page 5 . lao Appellants' Response Submissions, April 3,2020,at page 6. 101 Appellants' Response Submissions, April 3,2020,at page 6. 102 Paragraphs 135 and 154 of the Costs Decision are reproduced below: [135] The Board questions the legal costs claimed by the Appellants. Mr. Brookman clearly stated he did 90 percent of the research for and writing of the submissions. This leaves little work required from the Appellants' counsel, yet they claimed 334.3 hours of legal time at approximately $400.00 per hour. In addition, the Appellants had stated their counsel was offering his services on a pro bono basis. Accordingly, the Board does not see how the Appellants can be requesting costs for legal services they did not have to pay for. This would result iu. the Appellants receiving a
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observations around the implications of Appellants' counsel having worked pro bono to the costs application, contained in paragraph 135.
[97] In support of their reconsideration request, the Appellants have provided their retainer agreement with their counsel. This evidence was not before the Board when it made its Costs Decision in November, 2019. The Appellants have argued that, based on paragraphs 135 and 154 of the Costs Decision, the Board held that the Appellants' counsel were not entitled to costs for the following reasons:
1. the Appellants would receive a windfall if Costs were ordered because coimsel provided their services pro bono;
2. costs are not intended to provide a financial benefit nor to penalize a party; 3. Mr. Brookman stated that he did "90% of the research and writing" and therefore the Appellants' Counsel did "little work"; and
4. counsel's submissions on standard of review were equally helpful, therefore no Costs ought to be awarded to either party on that issue.l
[98] The retainer agreement contains a clause that provides that Appellants' counsel would work pro bono on the matter, "... except to the extent [they] may be able to obtain any amount in a costs award. To the extent that any cost award may be obtained, that amount will be paid to our firm to recover any legal fees."104 The Board agrees with the Appellants that if a costs award had been made, it would not have been a windfall to the Appellants. Under the terms of the retainer agreement between the parties, it appears that any costs award would have been payable to the Appellants' counsel.
[99] Changing the Board's understanding and fmdings around the relationship between the Appellants and their legal counsel does not automatically lead to a change in the results of the Costs Decision. As stated earlier, the Board's findings regarding counsel working pro bono for the Appellants and the possibility of a costs award being a wmdfall to the Appellants were observations the Board made in the course of making the initial Costs Decision. However, they
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[100] The Board looked to additional facts and applied the principles contained m its legislation. The Appellants have objected to two additional facts and another statement in the Costs Decision: the extent of the work performed by Mr. Brookman, the extent and characterization of the work performed by Appellants' counsel in the course of the hearings, and the statement that costs are not intended to provide a fmancial benefit nor penalize a party. In the Board's view, these first two objections are the substance of the reconsideration of the Costs Decision, as the work performed by the Appellants' Counsel and how this contributed to the hearmgs, is one of the primary factors which the Board considers when awarding costs.
[101] As a preliminary matter, the Board notes the Appellants argued that "... in deciding against awarding legal Costs [in the Costs Decision], the [Board] is discouraging settlement, encouraging vexatious litigation and discouraging economy and efficiency." As with their initial costs application in 2018, the Appellants have argued an entitlement to costs on the basis of:
(a) their contribution at the hearings leading to a significant decision and understanding and the current Wetland Policy (2013);
(b) the Appellants being largely successful at the Appeal; and (c) awarding costs on the 'loser pays principle.'106
[102] The Appellants rely on Katch 22,107 and the principles therein, to be followed by a court when deciding a costs application in support of their claim to legal costs, excerpting a paragraph from Katch 22 which states that a court when awarding costs "...must act in a principled manner. A costs inquiry must be conducted within a logical framework."10 In principle, the Board agrees with these statements and arguments of the Appellants. The Board must act m a principled manner and conduct the costs inquiry within a logical framework.
[103] However, as discussed in the origmal Costs Decision, and raised by the Approval Holder in its Response Submissions, there is a significant difference between quasi-judicial
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on the successful outcome of their submissions regarding the standard of review for the Director's decisions. The 'loser pays' principle does not bind the Board to award costs, and in fact, the Board believes that applymg the 'loser pays principle' would discourage appeals. This relationship was explained by the Board in Demencuik.
"In applying these costs provisions [of the legislation], it is important to remember there is a distinct difference between costs associated with civil litigation and costs awarded in quasi-judicial forums such as board hearings or proceedings. As the public interest is part of all hearings before the Board, it must take the public mterest into consideration when making its final decision or recommendation. The outcome is not simply making a determination of a dispute between parties. Therefore, the Board is not bound by the 'loser pays' principle used in civil litigation. The Board will determine whether an award of costs is appropriate considering the public interest generally and the overall purposes listed in section 2 of the Water Act."
[104] The Board takes a principled approach when assessing a costs application. The Board's authority to award costs arises from section 96 ofEPEA, which states: "The Board may award costs of and incidental to any proceedings before it on a final or interim basis and may, in accordance with the regulations, direct by whom and to whom any costs are to be paid."
[ 105] The Environmental Appeal Board Regulation110 expands upon this jurisdiction by describing both limitations upon the costs to be awarded and the criteria the Board should consider when making an award. The relevant sections provide in part:
"18(1) Any party to a proceeding before the Board may make an application to the Board for an award of costs on an interim or final basis.
(2) A party may make an application for all costs that are reasonable and that are directly and primarily related to (a) the matters contained in the notice of appeal, and (b) the preparation and presentation of the party's submission.
20(1) Where an application for an award of final costs is made by a party, it shall be made at the conclusion of the hearmg of the appeal at a time detemiined by the Board.
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(a) whether there was a meeting under section 11 or 13 (a); (b) whether interim costs were awarded; (c) whether an oral hearing was held in the course of the appeal; (d) whether the application for costs was filed with the appropriate information; (e) whether the party applying for costs required financial resources to make an adequate submission;
(f) whether the submission of the party made a substantial contribution to the appeal;
(g) whether the costs were directly related to the matters contained in the notice of appeal and the preparation and presentation of the party's submission;
(h) any further criteria the Board considers appropriate. (3) la an award of final costs the Board may order the costs to be paid in whole or in part by either or both of
(a) any other party to the appeal that the Board may direct; (b) the Board. (4) The Board may make an award of final costs subject to any terms and conditions it considers appropriate."
[106] The Board has a broad discretion. This was noted and affirmed by Mr. Justice Fraser of the Court of Queen's Bench in Cabre: "Under section 88 [(now section 96)] of the Act, however, the Board has the final jurisdiction to order costs 'of and incidental to any proceedings before it...'. The legislation gives the Board broad discretion in deciding whether and how to award costs.111 Further, Mr. Justice Fraser stated:
"I noted that the legislation does not limit the factors that may be considered by the Board in awarding costs. Section 88 [(now section 96)] of the Act states that the Board 'may award costs...' and 'may, in accordance with the regulations, direct to whom and to whom any costs are to be paid...
[107] The criteria in the EPEA and regulation do not operate in isolation. When applying those criteria to the specific facts of an appeal, the Board must look to the applicable legislation and the piupose of that legislation, in this case, section 2 of the Water Act, R.S.A.
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"2 The purpose of this Act is to support and promote the conservation and management of water, including the wise allocation and use of water, while recognizing (a) the need to manage and conserve water resources to sustain our environment and to ensure a healthy environment and high quality of life in the present and the future;
(b) the need for Alberta's economic growth and prosperity; (c) the need for an integrated approach and comprehensive, flexible administration and management systems based on sound planning, regulatory actions and market forces;
(d) the shared responsibility of all residents of Alberta for the conservation and wise use of water and their role in providing advice with respect to water management planning and decision-making;
(e) the importance of working co-operatively with the governments of other jurisdictions with respect to trans-boundary water management;
(f) the important role of comprehensive and responsive action in administering this Act.
[108] As with assessing the original application, when reconsidering, the Board looks to its governing legislation and case law for guiding principles to make an informed decision. Two of those foundational principles remain that the parties bear their own costs in an appeal,113 and that costs are awarded based on the party's receiving those costs contribution to the hearing and assisting the Board in makmg its recommendations. The Board's authority to award costs is a discretionary authority. Whether or not a party is successful at appeal is not determinative of a party receiving costs. While this may be relevant, it is not necessary, nor is it the most important
factor.
[109] The Board disagrees with the Appellants' argument that awarding costs would encourage settlement and discourage vexatious litigation. The Board interprets this argument by the Appellants as a suggestion that a failure to award costs would encourage the opposite to occur; that is, that the Board would be encouraging the filing of vexatious appeals. The Board
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point for assessing costs applications and, in the Board's view, is a sufficient deterrence against vexatious litigation. If a vexations appeal is filed, the Board has legislative authority and processes in place to deal with such appeals.
[110] Moreover, the Board is intended to be accessible to the public. This camiot be achieved if a prospective appellant fears that a failed appeal could automatically result in an expensive legal bill. This may act as a deterrence to legitimate appeals along with 'vexatious appeals'. The 'loser pays' principle, is not therefore, appropriate or relevant to the Board's costs applications. While the Appellants have argued this in both their original costs application and in their reconsideration, the Board does not fmd the arguments on the 'loser pays' principle applicable or persuasive.
[Ill] The Appellants have not introduced new evidence or argued against Mr. Brookman's statement that he performed 90% of the research and writing for the appeal. The Appellants do not appear to dispute the amount of work Mr. Brookman performed for the appeal or the Board's finding relative to his statement regarding the work he performed. Rather, the Appellants argue the amount of work performed by Mr. Brookman is irrelevant to the consideration of the amount of time spent by Appellants' counsel working for the Appellants in relation to the appeal.
[112] The Board disagrees with the Appellants that the amount of work performed by Mr. Brookman is not related to the amount of work performed by the Appellants' counsel. The two issues are interrelated, as Mr. Brookman has stated that he performed much of the work for the submissions himself, including the researching and writing of the submissions. This leaves little space for the Appellants' counsel to have contributed substantially to the hearing. The Board agrees with the Approval Holder that it is not a question of whether or not the Appellants' counsel worked hard, but rather, whether that hard work contributed to the hearing.
[113] Nothing in the retainer agreement suggests that the Board should change its
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Approval Holder argued that it was either "a redundant effort," as Mr. Brookman had performed 90% of the work for the submissions himself, limited to the standard of review, or not related to the Board proceeding at all.
[ 114] The Appellants have not provided any new evidence or arguments to the Board to demonstrate why the Board should vary from its finding in the Costs Decision that Mr. Brookman performed 90% of the research and writing for the submissions. The retainer agreement may explain the relationship between the parties but absent evidence to the contrary does not rebut Mr. Brookman's evidence that he performed 90% of the work for the submissions for the hearing, including the introduction of evidence and argument.
[115] In order to merit an award for costs, the Appellants' counsel must have made a substantial contribution to the hearing, provided evidence directly related to the appeal, and provided evidence that may a significant and noteworthy contribution to the goals of the Water Act. To some extent, this means that the Appellants would have to provide new evidence or arguments regarding Appellants' counsel's contributions and role in the hearings, to meet those
requirements.
[116] The Board acknowledges that the Appellants' counsel provided arguments related to the standard of review, however, as was noted in the Costs Decision, the Appellants' counsel's participation on other aspects of the hearing were limited by Mr. Brookman. Appellants' counsel submissions on the standard of review were of assistance to the Board, but the Approval Holder also provided submissions on this point, which the Board found also found helpful in making its recommendations. The Board notes that while the Appellants' coiuisel has argued that it also participated in cross-examinations, those cross-examinations were limited. The Appellants have not provided any new or additional evidence outside of the retainer agreement.
Vffl. DECISION - STEP 2
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[118] The Appellants have not provided any new evidence or introduced any new arguments for the Board outside of the retainer agreement which explains the legal relationship between the Appellants and their counsel. While the retainer agreement may explain why legal costs were sought when counsel for the Appellants acted pro bono, this information is insufficient to overcome other deficiencies in the Appellants reconsideration application.
[119] The Board denies the Appellants request to vary the Costs Decision for legal
costs.
Dated on October 16,2020 at Edmonton, Alberta.
_ QSx JLL^ Anjum Mullick Panel Chair
^^ 42, ^ Nick Tywoniukt^ Panel Member
Meg Barker Panel Member
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