Gladue v. Alberta (Attorney General), 2011 ABQB 535

Court of Queen ’ s Bench of Alberta Citation: Gladue v. Alberta (Attorney General), 2011 ABQB 535 Date: 20110901 Docket: 1003 10248 Registry: Edmonton Between: Brian Kurtis Gladue Applicant - and - Her Majesty the Queen in Right of Alberta as represented by The Attorney General of Alberta, Michael J. Boyd, Chief of Police of Edmonton Police Service, Brenda St. Germain, and the Attorney General of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] The Edmonton Police Service seized a long gun, and the blanket in which it was wrapped, from a vehicle operated by Mr. Gladue, and subsequently seized additional long guns from the residence occupied by Mr. Gladue and his partner. After the charges against Mr. Gladue had been withdrawn, Mr. Gladue asked for the return of the firearms; the EPS refused because of Mr. Gladue ’ s stated intention to not register those firearms in the long-gun registry, claiming the legislation violated treaty rights. Mr. Gladue ’ s partner, Ms.

Germaine, claimed ownership of some of the long guns and undertook to register them; her guns were returned to her. By way of Originating Notice, Mr. Gladue then claimed replevin of his long guns from the EPS. He also sued both the Attorney General (Alberta)

and the Attorney General (Canada), on constitutional grounds, claiming that the federal gun registry legislation was an unconstitutionalbreach of treaty and aboriginal rights, and claiming that Alberta had legal responsibility for the actions of the Edmonton Police service.Relying on the amnesty affecting the long gun registry, the court ordered the EPS to return his long guns to Mr. Gladue, concluded thatthe Attorney General (Alberta) was not responsible for the actions of the EPS, and declined to consider Mr. Gladue’s treaty andaboriginal rights argument: Gladue. Mr.

Gladue now claims costs against each of the EPS, Attorney General (Alberta) and AttorneyGeneral (Canada). [2] Mr. Gladue’s claim for an indemnity of costs is denied: although costs may, in exceptional circumstances, be awarded as apenalty imposed for a substantive wrong, costs are typically awarded only for procedural issues. In other words, a punitive award of costswould generally be restricted to a situation in which the costs debtor has committed some abuse of process. The one year delay inreturning Mr.

Gladue’s firearms to him is no reason for imposing a punitive costs award: that delay was not a procedural and the delaywas in fact caused, at least in part, because of the constitutional issues raised by Mr. Gladue. [3] Mr. Gladue’s claim for a multiplier of

Schedule C costs is denied: replevin, which is an extraordinary interlocutory remedy,requires only minimal procedural steps. It does not meet the test of complex, lengthy, litigation which characterizes a multiplier award:Marathon Canada. [4] The only acceleration over the

Schedule C to which Mr. Gladue is entitled is an inflation factor of 1.2: Eaton. [5] Mr. Gladue’s claim for costs against the EPS is allowed: Mr. Gladue was successful in his claim for the return of hisfirearms. Mr. Gladue had notified the EPS about the long gun registry amnesty; therefore, the EPS could, and should, have made its ownassessment of the effect of the amnesty on its obligation to return the long guns to Mr. Gladue. The EPS was not bound either to awaitthe outcome of constitutional litigation or to be governed by the position of the federal government.

Moreover, the EPS did not takeinterpleader proceedings to clarify its position. [6] The Attorney General (Alberta)’s claim for costs against Mr. Gladue is allowed. Mr. Gladue was not successful in his claimagainst Alberta; in principle, therefore, he should pay costs to Alberta. This was not the type of public interest litigation where thegovernment pays costs even though it is successful. [7] Mr. Gladue’s claim for costs against the Attorney General (Canada) is denied: Mr.

Gladue was not successful in establishingthat the legislation requiring registration of long guns is unconstitutional - that issue was not decided by the court so the presumptionremains that the legislation is valid. Canada is not asking for costs against Mr. Gladue. While there are situations where costs areawarded against the government even when the government is successful, those situations typically involve exceptional circumstances:Okanagan Indian Band. Mr. Gladue has not established such circumstances here. [8] In the circumstances here, Mr.

Gladue is not entitled to either a Sanderson or a Bullock order against the only unsuccessfulrespondent, the EPS, relating to the costs which Mr. Gladue owes to Alberta. In the circumstances here is no reason to prefer a Bullock toa Sanderson costs order: obviously, each of the respondents is able and willing to satisfy any costs order made against it. Mr. Gladue hassatisfied the first test for the granting of a recovery costs order - that his adding the Attorney General (Alberta) to the proceedings wasreasonable in the circumstances. However, he has not satisfied the second test: it was not reasonable for Mr.

Gladue to keep Alberta inthe lawsuit for as long as he did. Nor has Mr. Gladue satisfied the third test: he has not established that it would be fair and just to requirethe EPS to pay the costs that Mr. Gladue owes to Alberta since the EPS did nothing to encourage Mr. Gladue to keep Alberta in thelawsuit for as long as he did or to maintain his constitutional claim. Cases and authority cited [9] By Mr. Gladue: Marathon Canada Limited v. Enron Canada Corp., 2008 ABQB 770, paras. 30-6; Eaton v. HMSFinancial Inc., 2010 ABQB 364, para 13; Trizec Equities Ltd. v.

Ellis-Don Management Services Ltd., 1999 ABQB 801, para. 22;British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, para. 39; R. v. Caron,2011 SCC 5, paras. 36-9; Alberta Public School Boards’ Assn. v. Alberta (Attorney General), 1998 ABCA 238, paras. 18-22; LouisBull Band v. Canada, (FC), para 13; Dhingra v. Pham, 2004 ABQB 973; Wainwright (Town) v. 876947 OntarioLtd., 2010 ABCA 23, paras. 17-9.

[ 10 ] By Attorney General (Alberta): Bank of Montreal v Cochrane 2010 ABQB 808 ;. [ 11 ] By the court: Gladue v Alberta (Attorney General) 2011 ABQB 183 , 2011 A.J. No. 330 ; R. v Raponi 2004 SCC 50 , [2004] S.C.J. No. 48 , Brooks-Martin v Martin 2011 BCCA 357 , [2011] B.C.J. No. 1601 ; Alberta Rules of Court, R. 6.49. 1. Background [ 12 ] The circumstances of the litigation out of which this costs hearing arises are described in the earlier written judgment cited above. [ 13 ] Criminal charges which had been laid against Mr.

Gladue were withdrawn at the end of March, 2010. [ 14 ] It was the Edmonton Police Service that clarified the issue around the ownership of the long guns, and established that Ms. Germaine was entitled to certain of those firearms, including the one that was wrapped in a blanket and seized from the vehicle operated by Mr. Gladue. [ 15 ] Mr. Gladue identified the long gun amnesty in both his original and in his second set of materials. [ 16 ] The Edmonton Police Service agreed that it should have returned the blanket that was seized from Mr. Gladue to him, but that it had wrongfully destroyed that blanket.

A trial will be held in September, 2011 to determine the monetary value of the blanket. [ 17 ] Since the replevin and constitutional declaration actions were not for monetary relief, the column of the Costs tariff that would normally be applied is column 1. Those costs are $1,000.00 for filing the originating document and $1,500.00 for the full day application. Mr. Gladue asserts that those costs are approximately 1/10 of the costs actually incurred for those sets, excluding the costs of the constitutional argument. In other words, Mr. Gladue asserts that the costs of the replevin issue alone are $25,000.00.

In addition, he states that the costs of the constitutional issues - notices, special chambers written argument and responding to the application brought by the Attorney General of Canada - total $20,400.00. An indemnity of Mr. Gladue ’ s costs for this special chambers application, including the pre-hearing adjournment, would therefore somewhat exceed $45,000.00. 2. Is Mr. Gladue entitled to more than tariff costs? [ 18 ] The only increase to

Schedule C column 1 to which Mr. Gladue is entitled is an inflation factor of 1.2; he is not entitled to either an indemnity of costs or to a multiplier of column 1. [ 19 ] A column multiplier is appropriate where a court considers that the tariff would provide an inadequate level of costs recovery. Mr. Gladue states that the proceedings here were lengthy, complex and involved. With respect, I disagree. [ 20 ] Mr. Gladue asserts that his replevin motion was dictated by comments from the Supreme Court of Canada in Raponi .

Given that the SCC was dealing, in that case, with an Alberta appeal, and given Alberta ’ s Rules of Court concerning the nature of replevin (which incidentally appear to mirror the contemporary approach to replevin in other Canadian jurisdictions), the SCC comments may not have distinguished adequately between the contemporary interlocutory remedy provided by replevin which is related to the cause of action in detinue on the one hand, and the historical common law cause of action in replevin on the other.

What has been made abundantly clear in these proceedings is that the interlocutory remedy of replevin has been fully adequate in the circumstances here to provide relief to Mr. Gladue in relation to his firearms; he will not be required to proceed with a detinue trial. Case law establishes that replevin is an extraordinary pre-trial remedy, extraordinary both because it allows the return of personal property to the person who claims ownership or entitlement to possession before that issue is decided, and extraordinary because the level of proof required to obtain an order in replevin is relatively low.

I do not doubt that Mr. Gladue ’ s law firm expended the time claimed in this costs application; I merely observe that, given the direction by the SCC and the facts of this case as they pertain to the ownership of the long guns and to the amnesty, only a minimal amount of material was technically required to obtain an order for replevin. As can be seen from the

interpretations of former Alberta Rule 428, now Rule 6.49, an order for replevin can even be granted ex parte . Replevin orders can be obtained quickly, cheaply and with a minimum of fuss. [ 21 ] Mr. Gladue argues however that he didn ’ t want a minimum of fuss, that there is no appropriate mechanism in our legal system to deal with the

interpretation of treaty rights and that it is understandable that he would take whatever opportunity presented itself to attempt to advance the

interpretation of treaty rights in Canadian law. Even if he is correct in that assertion because actions for declaration are unavailable or inadequate and that references are unavailable, the issue before me is whether it is fair for Mr. Gladue to impose on others the obligation to pay for legal research which is not necessary to the resolution of the specific issue before the court. In my respectful view, it would be unfair to make the litigants in this matter pay for what Mr. Gladue believes is a systemic problem requiring a political solution. [ 22 ] Mr.

Gladue relies on Marathon Canada at least with respect to the principle that complex litigation may attract a multiplier although my understanding is that he acknowledges, correctly in my view, that the proceedings here were not at all as complex and convoluted as the proceedings there. In the result, the principle enunciated in Marathon Canada has no application here. [ 23 ] An indemnity of costs would provide an even higher level of recovery than a mere multiplier. An indemnity of costs is appropriate only where factors other than complexity and duration make recovery of mere tariff costs unfair.

Typically, such factors relate to wrongdoing in the process; presumably substantive wrongdoing is dealt with in the substantive award, not in the costs award, and it would be unfair to impose a double sanction. Mr. Gladue argues that the Alberta Public School Boards ’ Association and Louis Bull situations are somewhat analogous to the proceedings here.

However, it must be noted that our Court of Appeal stated in the first of those decisions that an award of costs against a successful party was exceptional and underscored the fact that the litigation in that case appeared to have achieved a legislative success which made the proceedings themselves somewhat redundant. Thus, the litigant achieved success even though the success was not achieved in the law suit; an award of costs to the apparent loser - who was in fact the substantive winner - could therefore in that case be justified on the usual basis that the winner is entitled to costs.

In the Louis Bull decision the court agreed that the actions of the government in that case were not required and thus not necessary even though the actions were not imprudent; nevertheless, presumably because the non-necessity of proceedings were considered an abuse of process, the court ordered costs against the successful government. If anything, that decision goes directly against Mr. Gladue: in the circumstances here, it is Mr. Gladue who brought unnecessary arguments relating to treaty rights into play. Based on the Louis Bull analysis, it is therefore appropriate for Mr.

Gladue to pay the costs of the proceedings relating to treaty rights. [ 24 ] Although he is not entitled either to a multiplier or to an indemnity, for the reasons set out in the case law cited by him - relating essentially to the passage of time since

Schedule C was last amended - Mr. Gladue is entitled to the application of an inflationary factor to the items in

Schedule C: Eaton . 3. Is Mr. Gladue entitled to costs from the EPS? [ 25 ] Mr. Gladue is entitled to

Schedule C costs from the EPS: he was successful in his application against the Edmonton Police for the return of his firearms. [ 26 ] Mr. Gladue brought an application for the interlocutory relief of recovery of his long guns against the EPS and was successful. Ordinarily, then, he would be entitled to costs; this is one of the situations where the ordinary result is the correct result. [ 27 ] The EPS argues that it didn ’ t have a competing ownership argument against Mr. Gladue and that it was just waiting for a court to tell it whether it was obliged to return the firearms to Mr. Gladue.

With respect, that is precisely why the EPS must pay costs: it put Mr. Gladue to the expense of having to prove that he was the owner of the firearms in question and that the EPS no longer had the right to detain them. The EPS must now pay Mr. Gladue ’ s tariff costs. [ 28 ] The EPS may perhaps have avoided costs if, as soon as it became aware of the replevin proceedings, it had taken interpleader proceedings.

When the SCC indicated in Raponi that the Criminal Code did not deal with all of the recovery issues after police seizures and that, in some cases, individuals had to revert to civil proceedings such as replevin, it was a logical inference that the SCC was also warning police services that they may have to have recourse to civil proceedings if they did not want to become embroiled in costly proceedings.

[ 29 ] Having not taken advantage of interpleader proceedings, the EPS then had to make its own decision about whether the amnesty changed the argument on which the EPS was relying, which was that it would be inconceivable that a police service should have to in some way facilitate a crime by turning over property to a person who would thereby be in apparent breach of federal legislation.

The EPS argues that “ we could not go against the feds ” ; however, that is patently wrong - the EPS could, and should, make its own assessment of the legal landscape. [ 30 ] At the same time, it must also be said that the EPS did not hinder any of the constitutionality arguments because it did not participate in them. Moreover, the EPS helped to ensure a fair replevin resort by serving Ms. St. Germaine with notice of Mr. Gladue ’ s notice thereby ensuring that Ms. Germaine recovered her own property. Therefore, there is no basis on which costs greater than tariff costs should be awarded to Mr.

Gladue against the EPS. 4. Is Attorney General (Alberta) entitled to costs against Mr. Gladue? [ 31 ] The Attorney General (Alberta) is entitled to costs against Mr. Gladue: [ 32 ] Even if it was initially necessary in order for Mr. Gladue to sue Alberta in order to pursue his constitutional and treaty actions against Canada, it should quickly have become obvious to Mr. Gladue that Alberta has no real place in these proceedings: the long gun registry legislation is federal legislation and the treaty obligations invoked by Mr. Gladue are the responsibility of the federal government.

Moreover, in the context here, Alberta has no legal responsibility for the actions of the EPS. Therefore, Alberta is entitled to costs against Mr. Gladue. 5. Is Mr. Gladue entitled to costs against Attorney General (Canada)? [ 33 ] Mr. Gladue is not entitled to costs against Attorney General (Canada): the issue against Canada was whether the long gun registry constituted a breach of constitutional and treaty rights. The court declined to hear that issue; therefore, the status of the legislation remains as it was prior to the institution of these proceedings, i.e. the legislation is presumed valid and Mr.

Gladue was not successful against Canada. Moreover, this is not a situation in which the government, although successful in the litigation, is nevertheless required to pay costs. [ 34 ] In Okanagan Indian Band , the Supreme Court of Canada was dealing with an award of interim costs, that is costs that would be allowed before the litigation was concluded and before it was known whether the applicant would be successful. Technically speaking, therefore, that decision has no application here because the replevin/detinue action is concluded.

In that case, the Supreme Court made the following comments about the award of costs to a person, like Mr. Gladue, who is unsuccessful: Indeed, as the B. (R.) case demonstrates, it is possible (although still unusual) for costs to be awarded in favour of the unsuccessful party if the court considers that this is necessary to ensure that ordinary citizens will not be deterred from bringing important constitutional arguments before the courts. (Emphasis in original) Similar comments were made in Caron . [ 35 ] The first reason why Mr.

Gladue ’ s claim for costs against the successful government respondent must fail is that Mr. Gladue has not proved that he did not otherwise have the means to litigate the constitutional issue. On the contrary, Mr. Gladue asserts that he is in some way representing the interests of the Beaver Creek Cree Nation and its Chief and of the Chiefs and Headmen of Treaty No. 6. Yet, Mr. Gladue provides no evidence concerning the ability and interest of those persons to financially support his litigation. In other words, Mr.

Gladue has not established that the issue he identified could not be litigated without the costs award that he seeks.

[ 36 ] However, the more important reason why Mr. Gladue ’ s claim for costs against the successful governments must fail is that, in the court ’ s respectful view, the factual matrix in which the constitutional argument was raised was not conducive to the raising of constitutional issues. Here, the constant public position of the minority Conservative government was that it would, if elected, abolish the long gun registry and, as an earnest of that position, that government was responsible for an ongoing amnesty with respect to the failure to register long guns.

In those circumstances, the issue of whether the creation of that registry breached constitutional and treaty rights became, essentially, moot. Courts do not encourage the litigation of issues that are moot. Therefore, in the specific circumstances here, the constitutional issue that Mr. Gladue wishes to raise cannot be considered “ important ” . 6. Is Mr. Gladue entitled to a Bullock or Sanderson order against the EPS? [ 37 ] Mr. Gladue is not entitled to a Bullock or Sanderson order against the EPS: Mr.

Gladue has satisfied the first test for the granting of a costs recovery order - that his adding the Attorney General (Alberta) to the proceedings was reasonable in the circumstances. However, he has not satisfied the second test: it was not reasonable for Mr. Gladue to keep Alberta in the lawsuit for as long as he did. Nor has Mr. Gladue satisfied the third test: he has not established that it would be fair and just to require the EPS to pay the costs that Mr. Gladue owes to Alberta since the EPS did nothing to encourage Mr.

Gladue to keep Alberta in the lawsuit for as long as he did. [ 38 ] Before commencing the analysis of whether Mr. Gladue is entitled to a costs recovery order, the court observes that, in the circumstances here, it is not necessary to choose between a Bullock and a Sanderson order; in other words, it is not necessary to determine whether the unsuccessful defendant should pay the costs of the successful respondent either direct to that respondent, or to the plaintiff who would then forward the costs to the successful respondent.

Here, the only unsuccessful respondent - the EPS - obviously has both the financial capacity and the institutional will to pay any costs that would be ordered by this court. [ 39 ] In Alberta, the courts have articulated a three stage test for determining whether a costs recovery order - either a Bullock or a Sanderson order - is appropriate: was it reasonable for the plaintiff to add the successful defendant to the litigation, was it reasonable for the plaintiff to keep the successful defendant in the litigation, and is it fair and just to require the unsuccessful defendant to pay the costs of the successful defendant.

In other jurisdictions, the test is formulated somewhat differently, often including only two parts dealing with the reasonableness of the place of the successful litigant in the litigation, and determining whether the unsuccessful litigant did something to justify an additional award of costs. The latter form of articulation of the standard is exemplified by a recent decision of the British Columbia Court of Appeal: Brooks-Martin .

In my view, although the tests are expressed somewhat differently, that is the form of the tests is somewhat different, the substance of the tests is the same: Alberta ’ s test makes it somewhat clearer that a litigant has a obligation to not only begin, but to maintain, reasonable conduct of litigation, and leaves the discretion of the judge who must determine costs untrammelled other than the usual obligation to exercise the discretion in a judicial way. [ 40 ] Mr. Gladue asserts that he was required to add the Attorney General (Alberta) to this litigation.

As I understand the proceedings prior to the hearing of the special chambers application, there was indeed an order of this court requiring Mr. Gladue to add Alberta to the proceedings. That order was clearly motivated by a concern that Alberta may have some interest in the constitutional challenge opened by Mr. Gladue. By adding Alberta to the litigation, Mr. Gladue was therefore acting reasonably; he therefore satisfies the first step in the three-step Bullock/Sanderson analysis. [ 41 ] However, Mr.

Gladue does not satisfy the second of the Alberta tests: he did not act reasonably in keeping Alberta in the litigation for as long as he did. It should have become quickly apparent to Mr. Gladue that Alberta was not taking a position on the constitutional arguments raised in the litigation; nor should that have surprised Mr. Gladue since the legislation that was referenced was federal legislation and treaty rights are a federal responsibility. Very quickly, then, Mr. Gladue should have removed Alberta from the litigation. By failing to do so, Mr.

Gladue has failed to meet the pre-requisite to a costs recovery order. It is therefore unnecessary for the court to determine whether it should exercise its discretion to grant a costs recovery order. [ 42 ] In any event, if it were necessary for the court to exercise its discretion, the court would conclude that, in the circumstances here, Mr. Gladue has also failed to meet the third of the Alberta steps: he has failed to establish that the EPS in any way induced him to maintain his suit against Alberta and to maintain his constitutional claims. As Mr.

Gladue ’ s own position makes clear, he had a strong interest in pursuing a constitutional claim; he did not need, and was not abetted in any way by, the EPS in advancing that constitutional claim. While it is true that the EPS stated that it would await the outcome of the constitutional issue, it did nothing to promote the need to have that issue resolved. Therefore, in the circumstances here, had Mr. Gladue satisfied the second of the three-part Alberta test, the court would have declined to exercise its jurisdiction to make a costs recovery award.

7. Costs of the costs hearing [ 43 ] Mr. Gladue has been successful on this costs hearing against the EPS; therefore, he shall have

Schedule C column 1 costs for this hearing against that respondent. The Attorney General (Alberta) has been successful against Mr. Gladue on the costs issue; therefore, it shall have

Schedule C column 1 costs for this hearing against him. There is no basis for making a Sanderson or Bullock order against the EPS in relation to the costs of the costs hearing. The Attorney General (Canada) was successful at the costs hearing; however, I assume that it maintains its hearing position that it does not seek costs against Mr. Gladue, so none are awarded. Heard on the 20 th day of June, 2011. Dated at the City of Edmonton, Alberta this 31 st day of August, 2011. J.B. Veit J.C.Q.B.A. Appearances: Priscilla Kennedy, Davis LLP for Mr.

Gladue Martine Sallaberry for Edmonton Police Service Robert Drummond, Justice Canda for Attorney General (Canada) Lisa Farion, Alberta Justice for Attorney General (Alberta)