Court of Queen ’ s Bench of Alberta Citation: A.B. v. K.B., 2011 ABQB 765 Date: 20111207 Docket: FL04 01236 Registry: Grande Prairie Between: A. B. Applicant - and - K. B. and Her Majesty the Queen in Right of Alberta as represented by the Director of Child, Youth and Family Services Respondents Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act .

See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary

[1] A.B. asked the Director of the Child, Youth and Family Enhancement Act for access to the departmental file which led to the apprehension of her child; the Director advised her of the form of order he required, but refusedconsent to the order, stating instead that he would take no position on her application.

A.B. now asks for costs for the required courtappearance to obtain the Court’s approval to the release of information. [2] A.B. is entitled to an award of costs, on a tariff basis, against the Director. [3] The general rule of costs is that costs are awarded to a successful applicant for the costs required to start an application:R.10.31(1)(a). Here, the only respondent on A.B.’s motion was the Director. The Director’s failure to consent to A.B.’s request requireda court appearance by A.B. The Director’s stance of taking no position on the application essentially ensured that the application wouldbe granted.

A.B. was in fact successful; the Director should therefore pay her costs for the court appearance. Cases and authority cited [4] By the court: Vause v Spectra Energy Midstream Corporation 2009 BCSC 916; SNC-SNAM v Opron MaritimeConstruction Ltd. (N.B.C.A.); Abonyi v Oxford (County) (Ont. Sup.Ct. J.)at para. 18; Loney vLoney (Ont. Sup.

Ct.) at para. 10; Murphy v British Columbia (Finance) 1981 252 (B.C.S.C.) at para. 12;Oppenheim v Canada (Attorney General) (B.C.S.C.); Lafferty v Colborne (Township) (ONSC)at para. 29; Construction & Specialized Workers’ Union, Local 1611 v British Columbia Labour Relations Board 2009 BCSC 701 atparas. 134, 161; Lowe v Redding 2003 BCSC 356, at paras. 23,24. 1. Background [5] A.B.’s child was apprehended by the Director of Child Services. A.B. wishes to contest that apprehension and, for thatpurpose, asked for access to the department’s file on the apprehension.

It took several months of consistent effort on A.B.’s part to locatethe branch of the department that had authority to grant access to the apprehension file. After the branch which had authority to grantaccess was identified, the department officials approved a form of order for access which provided certain safeguards on which theyinsisted, for example giving to the officials the right to redact the file before access was exercised, but stated that they would take noposition on A.B.’s application. A.B. was therefore required to attend in Court to apply for an access order.

As it happened, an agent ofthe Director was available at the Court hearing to provide information about the way in which the draft order was eventually crafted andto argue against the award of costs. [6] K.B. was not involved in this application. 2. Entitlement to costs [7] The analysis of the applicant’s entitlement to costs begins with the commonplace that a court has discretion in the awardingof costs; it is just as clear that judicial discretion in the matter of costs must be exercised judicially.

There is little case law on the specificauthority of the court to award costs against a party which has taken no position on an application. [8] Indeed, what authority there is does not award costs against a litigant who takes no position: see decisions cited above.However, what is noteworthy about those decisions is that, in each of those situations, other than Loney, the party taking no position wasonly one of two or more respondents on the motion.

In other words, the party requesting some relief had to come to court independentlyof the party who took no position. [9] In Loney, the applicant requested the right to be represented by someone other than a lawyer. Because the right of audiencebefore a court is a matter solely within the court’s jurisdiction, that was an application to which the respondent could not consent.Therefore, it was reasonable that no costs should be awarded against the respondent.

[ 10 ] The only situation described in the above decisions in which costs were awarded against a litigant who took no position is Lowe . In that case, a defendant made a settlement offer for $0, but took no position on the defamation action; the plaintiff took the offer. The defendant then argued that the settlement brought the claim within the jurisdiction of the Provincial Court where no costs would be awarded.

Once the Supreme Court found that the claim fell outside the jurisdiction of the Provincial Court, it awarded costs to the plaintiff, notwithstanding that the defendant had taken no position on the plaintiff’s claim. [ 11 ] In Alberta, the new Rules of Court provide assistance in answering the applicant’s request. Rule 10.31(1)(

a) states that the Court may award (

a) the reasonable and proper costs that a party incurred to file an application , to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action. (Emphasis added) [ 12 ] Here, because the Director was the only respondent on A.B.’s application, it is obvious that A.B. was required to file an application because the Director refused to consent to the request for access. Therefore, the plaintiff is entitled to costs against the Director. [ 13 ] Nor is this result unfair.

In a situation such as this one, where the Director takes no position, a court might refuse the application; the reality is, however, that without an argument from the Director about why access should be denied, the court is almost certain to grant the order, especially after it has been informed that the Director has vetted the proposed form of order.

The Director may well take the position that his obligation is to protect the confidentiality of the apprehension files; nevertheless, if the Director is aware that the Court is likely to grant access, it could consent to what it may perceive as an inevitable order after having insisted on what it believes are acceptable safeguards.

If the Director chooses not to give consent, but not to argue against the Court’s granting of the order, then forcing an applicant to come to court is just another cost which the Director must accept as part of the discharge of his duties. [ 14 ] In the result, A.B. is entitled to $500.00 in costs for the appearance on November 28, 2011. Heard on the 28 th day of November, 2011. Dated at the City of Grande Prairie, Alberta this 6 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances:

Glenn A. Taylor Taylor & Company (Grande Prairie) for A.B. Amy K. Murphy Harcourt Law Group (Peace River) for the Director of Family Services