Gladue v. Alberta (Attorney General), 2012 ABQB 5

Court of Queen ’ s Bench of Alberta Citation: Gladue v. Alberta (Attorney General), 2012 ABQB 5 Date: 20120105 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 and Michael J. Boyd, Chief of Police of the Edmonton Police Service Respondents _______________________________________________________ Memorandum of Decision on an Issue of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I.

Preliminary Application [ 1 ] This application was scheduled to deal with costs. [ 2 ] Without prior notice to opposing counsel or this court and without making a written application, Ms. Kennedy, counsel for Mr. Gladue, asked at the beginning of the costs hearing that I vacate my decision of October 26, 2011 ( 2011 ABQB 651 ) in this matter [Decision]. The ground she raised was bias. Ms. Kennedy indicated that she had learned just that weekend that, prior to my appointment to the Alberta Court of Queen’s Bench approximately five years ago, I had been Chair of the Alberta Law Enforcement Review Board [LERB].

[ 3 ] The LERB is an independent civilian tribunal established under the Alberta Police Act , RSA 2000, c. P-17 . Members of the LERB are appointed by the Lieutenant Governor in Council. As explained by the Alberta Court of Appeal in Newton v Criminal Trial Lawyers' Assn , 2010 ABCA 399 at para 60 , 493 AR 89, the LERB has a dual role: (

a) It has the usual appellate mandate to review the decisions of presiding officers for fairness in result, and compliance with the acceptable range of outcomes having regard to the standard of review, and (

b) It has a mandate to provide civilian oversight of: (

i) the police disciplinary process, and (ii) acceptable standards of police conduct. [ 4 ] The LERB is an independent and impartial review body. Ms. Kennedy did not explain why or in what way my involvement with the LERB would lead to a reasonable apprehension of bias, other than to suggest that I may have become subconsciously aligned with the Edmonton Police Service [EPS] as a result of my role.

As noted by the Supreme Court of Canada in Wewaykum Indian Band v Canada , [2003] 2 SCR 259 at para 59 , 2003 SCC 45 , “... the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.” The Applicant has not discharged that burden. Given the independence of the LERB, and the lack of any allegation that I was involved in this case in my role as a member or Chair of the LERB, I reject the suggestion that any reasonable apprehension of bias could arise.

Similar to the situation in Wewaykum , my past status as Chair of the LERB is by itself insufficient to justify my disqualification. [ 5 ] As my Decision was entered, ordinarily I would be functus officio except in terms of the two issues which I excluded and over which I reserved jurisdiction, being the market value of the blanket and costs. Dean Bryden, in his

article “Legal Principles Governing Disqualification of Judges” (2003), 82 Can Bar Rev 55 at 589, suggests that an allegation of bias after a judgment has been rendered is a matter for appeal. Even if I am not functus officio and can rule on the bias issue on the basis that bias voids a decision, I would dismiss Mr. Gladue’s application that I vacate the Decision. To the extent that he impliedly asked that I recuse myself from hearing the remaining issues, I deny that application as well. [ 6 ] Ms.

Kennedy conceded that she learned about my involvement with the LERB the weekend before the costs application hearing. She easily could have provided at least one day’s notice to opposing counsel and this Court of her application that I vacate the Decision. In my view, it was unprofessional and discourteous for Ms. Kennedy to fail to do so. II. Costs Application A. Background [ 7 ] My Decision related to the trial of an issue before me between Mr. Gladue and Michael J. Boyd, Chief of Police of the EPS as to the value of a Hudson’s Bay blanket belonging to Mr. Gladue which the EPS mistakenly had destroyed.

The evidence led by Mr. Gladue was directed at the blanket’s ceremonial value and personal value to him. Having no evidence before me as to the blanket’s monetary value, but a suggestion by counsel for the EPS that it might have a value of $100 to $500, depending on its size, condition and whether it was new or vintage, I held that Mr. Gladue was entitled to the market value or replacement cost of the blanket.

I indicated that the parties were to notify me within two weeks of my decision if they were unable to agree on such value and on costs. [ 8 ] The parties subsequently agreed that the replacement cost of the blanket is $375. They have not been able to agree on costs. B. Issues

[ 9 ] The issues to be decided on this application are:

a) who is entitled to costs of the trial of the issue; and

b) in what amount? C. Analysis [ 10 ] The general rule in Alberta is that the successful party to an application, proceeding or action is entitled to costs against the unsuccessful party: Alberta Rules of Court , AR 124/2010, R 10.29. [ 11 ] That rule is subject to judicial discretion under Rule 10.31 and particular rules governing who is to pay in particular circumstances: Rule 10.29(

a) and (c). [ 12 ] The trial of the issue before me was to determine the value of the blanket. There was no dispute that it had been improperly disposed of by the EPS. The EPS did not contest that it was liable to Mr. Gladue for the market value or replacement cost of the blanket. [ 13 ] Based on the parties’ agreement on the value of the blanket, Mr. Gladue will receive $375 and interest. Does that mean that he is entitled to his costs of the trial? Although the stated issue to be decided at the trial was the value of the blanket, Mr. Gladue failed to present any evidence of its monetary value.

He focused on its ceremonial and cultural value and its sentimental or personal value to him. For the reasons stated in the Decision, I rejected that basis for calculating the blanket’s value. I also rejected Mr. Gladue’s claim for punitive damages due to the alleged egregious behaviour of the EPS, enhanced damages based on the blanket’s cultural or ceremonial significance, damages for mental distress as a result of the destruction of the blanket, and damages under s 24 of the Charter .

In my view, the EPS was the successful party at the trial of the issue. [ 14 ] I agree with the EPS that it is entitled to its costs of the trial of the issue based on column 1 of

Schedule C, which ordinarily would be $4,143.25 (single costs). [ 15 ] On May 18, 2011, the EPS served Mr.

Gladue with a formal offer to settle the action against it, offering to pay him $4,000 inclusive of damages, interest and costs of the action, including the trial of the issue. [ 16 ] Pursuant to Rule 4.29, if a defendant makes a formal offer to settle which is not accepted, and the judgment made in the action is equal to or more favourable to the defendant than the offer, the defendant is entitled to costs for all steps in the action taken after service of the offer. [ 17 ] On August 31, 2011, Veit J ordered costs payable by the EPS in favour of Mr. Gladue (with an increase in fees by a factor of 1.2).

These costs have not yet been set. The draft Bill of Costs prepared by Mr. Gladue and sent to the EPS for its approval in relation to the proceedings before Veit J is in the amount of $8,130.31. The Respondent contests a number of the items included in the draft Bill of Costs. Its calculation of the costs properly owing to Mr.

Gladue for the main action is $5,985.99. [ 18 ] Until the costs of the main action have been determined, it is not possible to be certain whether the judgment in the action as a whole is equal to or more favourable to the EPS than its offer, given Rule 10.31(4) which allows the court to adjust the amount payable by way of deduction or set-off if the party that is liable to pay a costs award is also entitled to receive an amount under a costs award. [ 19 ] The EPS submits that the situation in the present case is analogous to that described in Rule 4.29(3), whereby a defendant is entitled to double the costs provided for in Rule 4.29(2), excluding disbursements, if the action that was the subject of the formal offer is dismissed.

It notes that its liability for the market value of the blanket was admitted and, therefore, not an issue at the trial of the issue before me. The issue for trial was the value of the blanket, including what that value was and whether damages should be for more than the market value or replacement cost. [ 20 ] I agree with the EPS that, since I dismissed Mr. Gladue’s claim that damages should be assessed as anything more than

market value and as he did not present any evidence of that value at the trial of the issue, the EPS should receive double the costs of the trial of the issue after service of its offer if it is determined that the judgment in the action as a whole is equal to or more favourable to the EPS than its offer. [ 21 ] The EPS is entitled to single costs of the present application, based on column 1. Heard on November 22, 2011. Dated at the City of Edmonton, Alberta this 5 th day of January, 2012. D.L. Shelley J.C.Q.B.A. Appearances: Priscilla Kennedy Davis, LLP for the Applicant Christine J. Pratt Field LLP for the Respondent