Northland Material Handling Inc. v. Parkland (County), 2012 ABQB 586

Court of Queen ’ s Bench of Alberta Citation: Northland Material Handling Inc. v. Parkland (County), 2012 ABQB 586 Date: 20120927 Docket: 1203 05480 Registry: Edmonton Between: Northland Material Handling Inc. and Northland Recycling Inc. Applicants - and - Parkland County and the Council of Parkland County Respondents _______________________________________________________ Memorandum of Decision re Costs of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Relying on Northland ’ s unsuccessful pleading that the Council of Parkland County acted without good faith and for an improper purpose in making zoning decisions, the respondents County and Council ask for an indemnity of costs. In the alternative, alleging that the application for judicial review was complex, the County and Council ask for tariff costs to be awarded on a higher column than column 1; it proposes 5 times Column 5 of

Schedule C of the Rules of Court. [ 2 ] The County and Council ’ s request for an indemnity of costs is denied. An unproven allegation of fraud typically attracts a solicitor and own client or indemnity award of costs at least in part because an allegation of fraud in pleadings is privileged; an indemnity of costs ensures that such privileged allegations are not made lightly. An unproven allegation of lack of good faith should not typically attract an indemnity of costs because even bad faith is not an otherwise separately actionable cause of action.

Moreover, nothing else in the circumstances here places these proceedings in the exceptional category where an indemnity of costs is justified. In particular, Northland ’ s perception that the Council ’ s decision was based on a gift of land which it had received from Northland ’ s competitor was not outrageous since such a gift had in fact been made; in those circumstances, Northland is entitled to advance its own perception of the

Council’s actions. [3] The County and Council’s request for an award of costs in excess of the default scale is granted. The choice of column is lessa matter of principle than one of assessment of the circumstances of each specific case. Here, Northland itself recognizes that a columnbeyond Column 1 is appropriate: it proposes Column 4.

Among the facts and circumstances which are relevant to the choice of a columnin this case, the court notes that the financial interest at stake for Northland can easily be justified under Column 4 and that therespondents were also justified in vigorously defending a claim which required an assessment of the rights and responsibilities of electedmunicipal councils. Among the facts and circumstances which are relevant to the choice of a multiple of the column, the court notes thecomplexity of the proceedings including both the factual and the legal complexity.

Cases and authority cited [4] By Parkland County and Council: College of Physicians and Surgeons of the Province of Alberta v. J.R., 2009 ABQB48; Dove Homes

(1999) Ltd v. Fountain Creek Estates Ltd., 2012 ABQB 497; Louw v. Hamelin-Chandler, 2012 ABQB 52; WasteManagement of Canada Corporation v. Thorhild (County), 2009 ABQB 157; International Association of Machinists and AerospaceWorkers, Local Lodge No. 99 v. Finning International Inc., 2006 ABQB 594. [5] By Northland: Alberta Rules of Court, Alta Reg 124/2010,

Schedule C; Fitzpatrick v Industrial Incomes Ltd. (1994), (AB KB), 164 AR 139; Jackson v Trimac Industries (1993), (AB KB), 138 AR 161 (ABQB);Hamilton v Open Window Bakery Ltd., 2004 SCC 9 , [2004] 1 SCR 303; Davis v 850015 Alberta Ltd. (2003), AR 24 172 (PC);Wilson v K.P.

Manufacturers (Calgary) Ltd., (1998), (AB KB), 60 Alta LR (3d) 333 (QB); Ip v Insurance Corp. ofBritish Columbia (1994), 89 BCLR (2d) 251 (SC); R&S Industries Inc. v Hildebrand Industries Ltd., 2002 ABQB 1107; Buchanan vLamoureux, 2011 ABQB 256; Albert Bloom Ltd. v Bentinck (Township) Chief Building Official (1996), (ON SC),29 OR(3d) 681 (ON CJ(GD)); Louw v Hamelin-Chandler, 2012 ABQB 52; International Association of Machinists and AerospaceWorkers, Local Lodge No. 99 v Finning International Inc., 2006 ABQB 594; Waste Management of Canada Corporation v Thorhild(County), 2009 ABQB 157; Pagliaro v College of Psychologists (Alberta) (1998), (AB KB), 214 AR 217 at 226(AB QB); Canada Lands Company CLC Limited v Alberta (Municipal Government Board), 2008 ABQB 51. [6] By the court: Northland Material Handling Inc. v Parkland (County) 2012 ABQB 407; Recovery Production EquipmentLtd. v.

McKinney Machine Co. (1998) 1998 ABCA 239 , 223 A.R. 24 (Alta. C.A.) at p. 46; Parkridge Homes Ltd. v Anglin[1996] A.J. No. 768 (Q.B.); Alberta v Elder Advocates of Alberta Society 2011 SCC 24; Sidorsky v CFCN Communications Ltd. 1999ABCA 140; General Scrap Iron & Metals Ltd. v Woloshin 1998 ABCA 91 1. Background [7] The substantive decision, cited above, sets out the general background to the costs application. [8] In its originating application, Northland wrote: Basis for this claim: . . . 2.

The Resolution aforesaid adopted by the Council of the Respondent County was adopted for an improper purpose, to wit, to promotethe interests of a competing landfill and recycling operation on nearly lands in which the County has an interest. 3. The Resolution aforesaid dated February 14, 2012 was not adopted in good faith by the Council of the County.

[ 9 ] In an affidavit in support of its application, a representative of Northland stated that the County had received a “ gift ” of land from Northland ’ s competitor and suggested that this gift was the reason why the competitor had been treated more generously than Northland. It is true that the County had received a gift of land from Northland ’ s competitor; indeed, that gift of land was publicly known.

Northland made no allegation that any individual councillor received any gift or that any particular individual either on the Council or in the County administration received any benefit from the contested zoning decision. [ 10 ] Counsel for the applicants County and Council indicates that Parkland incurred approximately $60,000.00 in legal fees in defending Northland ’ s claims. The plain wording of

Schedule C would require that costs in these proceedings be calculated under Column 1 because the originating notice did not request monetary relief. Column 4 is stated to be for claims over $500,000 up to an including $1.5 million. Column 5 is stated to be for claims over $1.5 million. Fees based on column 1 of the tariff would total $3,500.00, or approximately 6% of the actual legal fees. Costs on column 4 would total $7,625.00 or approximately 13% of the actual legal fees. Costs on the basis of 5 times Column 5 would total approximately $47,500.00, which would be approximately 80% of the actual legal fees. 2.

General costs principles on unproven fraud or dishonesty ; General costs principles on unproven lack of good faith [ 11 ] As the wording of Rule 10.31 of the Rules of Court emphasizes, a court has discretion in the award of costs. Naturally, that discretion must be exercised judicially. In this context, judicial exercise means, in part, that a judge who determines that in a particular situation something other than the “ usual ” costs award is appropriate will give reasons for the choice.

The “ usual ” award is determined either by the Rules of Court , e.g. the winner gets costs and the loser pays them forthwith - Rule 10.29(1), or by the weight of authority, e.g. the default costs regime is party/party costs as set out in

Schedule C of the Rules. [ 12 ] In determining the appropriate costs award here, it is useful to review the case law setting out some general cost principles..

a) Fraud [ 13 ] Ordinarily, an unsuccessful pleading of fraud or similar impropriety attracts an obligation to indemnify the wronged party in costs, or at least an obligation to pay heavy costs. Indeed, it makes eminent sense that it should be so: an allegation of fraud in a pleading is privileged and therefore immune from the usual discipline of libel proceedings.

The quid pro quo for that immunity is a heavy penalty in costs for abusing the immunity. [ 14 ] When our Court of Appeal stated in Walsh that solicitor-client costs are only awarded where there had been reprehensible, scandalous or outrageous conduct “ during the course of the litigation ” , it should not be understood to have struck down the long established case law holding that, where fraud is pleaded but not proved, no matter how correctly the litigation itself has been conducted, the defendant will typically be entitled to an indemnity of costs.

Indeed, the authority which the Court of Appeal was citing in support of its conclusion, the Supreme Court of Canada decision in Young, noted that solicitor-client costs are “ generally awarded ” in a specific type of litigation; in other words, the SCC was articulating a general principle, not an inviolable one. Specifically, it was not saying that solicitor-client costs could only be awarded where there had been “ reprehensible, scandalous or outrageous conduct during the course of the litigation ” .

Recovery Production Equipment Ltd. is only one example of a decision in which our Court of Appeal has effectively recognized the long standing principle that an indemnity of costs is generally awarded against a litigant who has unsuccessfully pleaded fraud or similar impropriety: Courts have often visited heavy costs on Plaintiffs making serious allegations of impropriety which are not proved. [ 15 ] There are, of course, some situations in which an unsuccessful pleading of fraud will not attract heavier costs.

Although Northland invokes Kwiatkowski as authority for the principle that a plea of fraud, carried through to trial unsuccessfully, might not attract a punitive costs award, it is important to note that any comments in the judgment cited to that effect are obiter since, in the case itself, the trial judge awarded what he described as “ contemptuous costs ” . The facts in Kwiatkowski were unusual. There, the allegation of fraudulent misrepresentation was withdrawn very early in the proceedings.

More unusually, the trial judge found as a fact that the allegation of fraudulent misrepresentation had been inserted into the pleadings by a lawyer without the client ’ s knowledge or instruction. In light of that situation, Grotski J. provisionally imposed an order of costs against the lawyer personally, which is, of course, highly

unusual. Having given the lawyer the opportunity of arguing against personal liability for costs, the trial judge made this decision: Conclusion On Issue Of Liability 35 I am of the view that the respondent solicitor has failed to persuade me, on a preponderance of evidence, that the applicant bank has not, on a preponderance of evidence, established her liability for, in the particular circumstances, special costs. The law presumes that solicitors act upon instructions from their clients.

That, pleadings are drafted reflecting in appropriate language the client's concerns, positions, complaints, if there be such complaints, and instructions. Where, as here, as determined at the conclusion of the trial Royal Bank v.

Kwiatkowski , supra, the impugned pleading of "fraudulent misrepresentation" was an unauthorized and uninstructed plea, and the solicitor has "in effect" refused, certainly failed to come in pursuant to leave granted to her for the purpose and meet the prima facie finding of liability under the guise of solicitor/client privilege, which for the reasons enunciated, supra, I am satisfied do not exist in the present circumstances so as to prevent her from so doing, I am prepared to draw the inference, and do, that if the respondent solicitor, by way of viva voce evidence, or otherwise, had come in, her evidence would probably not have assisted her in the matter. 36 In the circumstances, reaffirming the principles enunciated in the numerous authorities referred to by me at pages 575 and 576 of Royal Bank v.

Kwiatkowski , supra, and reiterating again that it is most improper for a solicitor, without any foundation or instructions therefor, to allege fraudulent misrepresentation, and thereby place the bank in the position of having its counsel prepare therefor, and thereby lengthened this trial, and caused this application, such a plea must, in the particular circumstances be categorized as, inter alia , a gross dereliction of the respondent solicitor's duty to the litigants, particularly the applicant bank, and the court. 37 The prima facie finding of liability in the respondent solicitor made earlier will now be, as it is, confirmed. 38 Having determined that the respondent solicitor ought to be fixed personally with special costs, the issue raised by this determination is: What is an appropriate amount to be awarded against the solicitor?

Facts Relative To The Issue Of Quantum 39 Counsel for the applicant bank has suggested that an appropriate amount would be $3,000.00. In part, this submission is founded upon counsel's submission that it is common practice for the respondent solicitor to make the same, or similar, allegations against his client, the applicant bank. In support of this submission counsel for the applicant has filed an affidavit deposed to by one James Mack, a loans manager with the applicant bank.

Exhibited to this affidavit are copies of a number of statements of defence and counterclaims which it is alleged, and indeed appear to have been prepared by the respondent solicitor on behalf of the defendants therein to actions commenced against them by The Royal Bank of Canada, the applicant bank.

In each pleading, allegations of either "and/or fraud", or "fraudulent misrepresentation", or "practiced fraud upon him", or "false or fraudulent", or "constituted fraudulent misrepresentation", or "constitutes fraud", or "by fraud" are asserted on behalf of those persons represented by the respondent solicitor. 40 Counsel for the applicant bank submits that the respondent solicitor has embarked upon a deliberate and improper course of conduct as against the applicant bank.

That such conduct ought now to be punished as sought. 41 While I am generally in agreement with the applicant's submission through counsel that the respondent solicitor ought to be personally visited with costs for her unauthorized, uninstructed and unsupported pleading in Royal Bank v. Kwiatkowski , I am not prepared to go so far as I have been invited to do and find that the respondent solicitor, because of the pleadings exhibited to Mr. Mack's affidavit, supra, has, as alleged, embarked upon a deliberate and improper course of conduct as against the applicant bank. As observed by Mr.

Mack in his affidavit, the actions represented by the pleadings exhibited thereto have still to be tried and determined. There is no evidence that the allegations in those pleadings were, as here, uninstructed and unauthorized. Until it is otherwise shown, it is, in my view, to be presumed that, as earlier noted, solicitors act upon instructions.

That the pleadings drafted, finalized, served and filed on behalf of those clients represent, in a mixture of law and legal language, the respondent solicitor's clients' complaints, concerns and instructions. 42 It may well be that at the examination for discovery stage, such a plea, because of intervening events, or further information received by the solicitor, or by a combination of both, the solicitor may conclude and recommend the withdrawal or abandonment of a

plea. Such a plea, if in fact originally authorized, and in the opinion of the solicitor a factual or legal foundation was perceived or believed to exist therefor, if made, will probably not be found by a court to be subject to condemnation. It may well be that a plea, such as is here impugned, may be maintained to and throughout the trial without ultimate success.

Such a plea too, if authorized and instructed and in the view of the solicitor employed to draft the plea and carry it through to trial, there is a factual or legal foundation therefor, even if ultimately it fails, may not be subject to condemnation. 43 Here, the distinction lies in the fact that the impugned plea, as found, was never authorized or instructed. Ms. Brent has made no attempt whatsoever to support her action in advancing the impugned pleading.

Not having been authorized or instructed, it ought not to have been put forward unless in the course of preparing the clients' statement of defence, and/or other pleading(s), matters came to the attention of the solicitor, which following their verification with the clients, or otherwise, or at least an inquiry which reasonably led to the conclusion that the plea was warranted, compelled the solicitor to plead as she did.

Absent such evidence from any source, in view of the only evidence before me, I have, as noted, come to the conclusion that I have. 44 I have included my foregoing observations so as to make it abundantly clear that not all failed pleas, if authorized and instructed, and in the view of the solicitor have some factual or legal merit and basis, are condemnable. 45 In determining the amount of costs to be visited upon the respondent, personally, notwithstanding this liability in her is founded upon an isolated incident, I have taken into account, the withdrawal of the impugned plea at the commencement of the examination for discovery, and, inter alia , the following factors: 1.

The impugned plea was unauthorized and uninstructed; 2. The respondent is a senior solicitor at the bar; 3. The respondent is an officer of the court; 4. As an officer of the court she had a duty to the court to maintain the integrity of the profession, and in concert therewith, to maintain and encourage public respect for the administration of justice; 5. The respondent had a duty not to assert that for which there was no reasonable basis in evidence or the admissibility of which should first have been established before advancing the impugned plea; 6.

I am particularly aware of the fact that this finding of liability in the solicitor is in itself, I am reasonably satisfied, a punishment which will alert her against similar future conduct; 7. This is not an action by the bank, or an application, for damages. It is an application for special costs. On such an application the significant factor must be the time the impugned plea involved the bank's solicitor prior to its abandonment, and at trial, and thereafter on this application, in costs.

As well, in my view, on this application the court may include in its award a sum by way of "contemptuous costs" to reflect its view of such an unauthorized, uninstructed and unsupported pleading and to, as is hereafter observed, act as a cautionary guide to others. 46 The allegation of "fraudulent misrepresentation" is a serious imputation to be made against anyone. It is particularly serious when made in the form and context in which it was made, against a visible lending institution such as the applicant bank.

The costs which are, therefore, to be assessed against the respondent must be such as to not only deter her from such future conduct, but, must act as a deterrent to others who may be of like mind.

The costs imposed must also reflect the court's concern for the continued respect by the public, of which the applicant bank through its numerous branches throughout Saskatchewan and Canada is a significant member, and plays a significant role, for the administration of justice. 47 In these circumstances, being of the view that the finding of liability in the respondent will of itself represent a significant, and meaningful, punishment to her, and will I am satisfied deter her from any like reoccurrence, and, having regard for the other factors enunciated by me, I am of the view that an assessment of "contemptuous" costs, to include the costs of and incidental to this application, in the sum of $ 1,500.00 will be sufficient to meet the ends of justice. 48 There, will, therefore, be an order that the respondent solicitor pay to the applicant bank, as costs, the sum of $ 1,500.00. [ 16 ] If anything, therefore, Kwiatkowski establishes that the usual standard of costs for an unproven allegation of fraud or related impropriety is an indemnity of costs.

[17] However, Northland correctly states that, because costs are a matter of discretion, the mere fact that fraud was unsuccessfullypleaded will not necessarily lead to an award of accelerated costs; Grotski J. made that point in Kwiatkowski.

Rooke J., as he then was,summarized the applicable jurisprudence in Parkridge Homes: 20 While different in form from the Jackson case, I find that he was "guilty of positive misconduct" in pursuing at trial allegations ofconspiracy and fraud (perhaps somewhat more legitimate for pursuit at discovery (if there had been, as I have found there was not, anymerit to it at all), where the rules are broader, even if it was in the form of a "fishing trip"), for which there was not a scintilla ofevidence.

There is ample authority that failure to prove allegations of fraud or conspiracy may merit costs in excess of normalparty-and-party costs: Husky Oil Operations Ltd. v. Forest Oil Corporation, (AB KB), [1990] 4 W.W.R. 381 (Q.B. -Mason, J.), at 383-4; Modern Livestock Ltd. v. Elgersma, at 396-7; Orkin, at 2-17, 2-19 & 2-20 (205.2(2)(

b) and (c)) (October 1990);A.G. Man. v. Campbell, (MB CA), [1985] 4 W.W.R. 334 (Man. C.A.), at 345; and Van-Hil Realty Ltd. v. TurnerDevs.

Ltd. (1978), (NB KB), 20 N.B.R. (2d) 52, 34 A.P.R. 52 (Q.B.). 21 In the exercise of the Court's discretion, non-glaring, non-reckless, non-malicious, or explainable conduct (including that motivatedby a "real, if unjustified, sense of grievance") in alleging conspiracy or fraud not "likely to injure the reputation of the party againstwhom it is alleged", and that is "more or less technical and not seriously reprehensible form the moral point of view," may relieve a partyof the resulting penalty - see: Husky Oil Operations Ltd. v.

Forest Oil Corporation, at 384, where it was found that the mere allegationdid "put into issue the integrity of Husky", causing "unfairness" sufficient to cause the Court, in "exercising [its] discretion" (at 384), toreduce the costs to the other party to 50%; Banque Indosuez v. Canadian Overseas Airlines Ltd. (1990), 40 C.P.C. (2d) 33 (B.C.S.C.);Owen v. Wickens (1980), (BC SC), 19 B.C.L.R. 320 (S.C.), although a higher award of costs (less than solicitor-client)was awarded because the allegations were "unwarranted"; Pax Management Ltd. v.

C.I.B.C., (BC CA), [1991] 1W.W.R. 74 (B.C.C.A.); and Orkin, 2-13 and 2-20 (205.1)(October 1990). [18] In

summary, an unproven allegation of fraud or similar wrongdoing will generally, but not necessarily, attract an indemnity ofcosts.

b) Lack of good faith [19] The specific pleading here alleges a lack of good faith. In the case law, we observe that a lack of good faith is sometimesequated with bad faith. [20] Northland relies upon Albert Bloom Ltd. for the proposition that, in administrative law, the term “bad faith” does not havethe same implications that it has elsewhere: 10 Mr. Finlay submitted that in administrative law the term bad faith does not imply personal corruption, which was disavowed in thepresent case.

Rather what was argued was a partiality to Bentan; the lack of an even hand in dealing with the provision of informationand in the enactment of the by-law. "Bad faith" in this sense is a necessary allegation in many administrative law contexts and does notattract solicitor-client costs when not proved. Such a standard would be too high: it would have a chilling effect upon persons consideringattacking questionable municipal or administrative acts where such an allegation is required.

An award of solicitor-client costs does notautomatically follow from an unsuccessful allegation even of fraud; all the circumstances must be considered: Bank of Montreal v.Ewing (1986), 59 C.B.R. (N.S.) 156 (Ont. C.A.). Of particular importance in such a case is whether the allegations were advancedrecklessly or with an improper motive: Banque Indosuez v.

Canadian Overseas Airlines Ltd. (1990), 40 C.P.C. (2d) 33 (B.C.S.C.). 11 While in retrospect the bringing of the motion to quash may well have been unnecessary, it was not outrageous, improper orreckless to have done so, nor is there evidence that the motive was to embarrass the council or the staff of the Township. The applicants'motive throughout was to attempt to protect their economic interest by preventing the construction of a competing plaza within a fewhundred metres of their own which was not an improper motive.

From the perspective of the applicants at the outset at least, they feltthey had not been treated fairly because council preferred to have the development rather than not have it. Unfairness of this sort is partof what is encompassed in "bad faith" in administrative law terms. While I have found against them on the facts, there being no basis forsuch a finding in the evidence as it developed, it was neither reckless nor outrageous for them to have held the view they did and for theircounsel, having disavowed actual corruption, to have pressed the matter to judgment on the partiality ground.

The case is not one ofthose rare ones to justify a punitive award.

[ 21 ] Another reason why unproven allegations of bad faith might be treated differently from unproven allegations of fraud can be found in the recent decision of the Supreme Court of Canada in Elder Society of Alberta where the Supreme Court noted: 78 The law does not recognize a stand-alone action for bad faith. As the certification judge noted, at para. 408, the bad faith exercise of discretion by a government authority is properly a ground for judicial review of administrative action. In tort, it is an element of misfeasance in public office and, in employment law, relevant to the manner of dismissal.

The simple fact of bad faith is not independently actionable. [ 22 ] In other words, from the perspective of the underlying rationale for the granting of an indemnity of costs as compensation for an abuse of immunity, because a claim of bad faith is not independently actionable, no costs quid pro quo is necessary to compensate for such an unproven claim. 3 .

Are the Council and County entitled to an indemnity of costs based on Northland ’ s failure to prove lack of good faith and/or improper motive? [ 23 ] Northland ’ s failure to prove a lack of good faith on the part of the Council of Parkland County does not justify an indemnity of costs in favour of the respondents. [ 24 ] In coming to that conclusion, I have taken the following into account: - the allegation of lack of good faith, although maintained throughout, was never made in relation to any individual nor could it have been reasonably interpreted by anyone as casting aspersions of inappropriate financial gain against any individual. - by making its claim that the Council did not act in good faith in a pleading, Northland did not attract any legal shield for its allegations. - in making a claim that Council was motivated by a gift that the County had received from Northland ’ s competitor, Northland was not making an outrageous claim.

The County had in fact received an important gift from Northland ’ s competitor and Northland ’ s perception of unfairness in its treatment by the Council stemming from the County ’ s receipt of this gift is a position which Northland was entitled to advance. 4.

General principles relating to higher columns and multiples of columns [ 25 ] Not surprisingly, it is impossible to discern a principle relating to the circumstances in which a higher column than the column which is facially applicable is appropriate or to the circumstances in which a multiple of a column - other than for inflation - might be appropriate: if a single guiding principle could be discerned, presumably it would have been incorporated into

Schedule C. [ 26 ] Rather than one principle, the weight of the case law establishes that the facts and circumstances of each particular case must be assessed to determine whether a higher column or a multiple of a column is appropriate in that case: see , for example, Sidorsky . [ 27 ] Some of the potentially pertinent facts and circumstances were reviewed by our Court of Appeal in General Scrap Iron & Metals Ltd. : 17 In our view, the case was hard-fought, long, difficult and complex. The two parties were agreed on only one thing, and that was the

great importance of the lawsuit to each of them. We cannot say that indirectly there was no amount in issue. The plaintiff right through the end of trial sought an injunction for three years over much of Alberta covering the scrap metal business. Under all of these circumstances we cannot say that there was no substantial amount in issue, or that it was a small amount. Therefore, it seems to us that as a matter of principle, Column 2 or something in that neighbourhood cannot be justified.

We have no recorded reasons for the choice of column. [ 28 ] As was noted in Waste Management of Canada Corp. , our Court of Appeal has emphasized the objective of the fair apportioning of the costs of the proceedings in Eggertson where it noted: In our view, there are three factors which justify an award of party and party costs in excess of the default scale:

(1) The appellant was required to defend her professional reputation in lengthy internal disciplinary proceedings involving written and oral submissions to the Hearing Committee and the PCAC. She was ultimately vindicated in the position she took in the internal disciplinary proceedings.

(2) In our view, the issue on which the appellant ultimately succeeded is important to both parties ...

(3) The appellant has incurred significant liability for legal counsel. In our view, the retention of competent counsel was justified at all four levels. The scale of costs we propose to award will not indemnify the appellant for her actual costs, however we believe it will provide a fair apportioning of the costs of the proceedings. [ 29 ] In

summary on this issue, it is not possible to articulate a general principle about when higher costs columns and multiples of cost columns are appropriate; each case must be assessed on its own circumstances. 5. Which column should be used here?

Should a multiple be used? [ 30 ] I have concluded that a fair apportioning of the costs of these proceedings is achieved by awarding the Council and County costs on the scale of 4 times Column 4. [ 31 ] The parties agree, and I agree with them, that this is not a situation which can fairly be dealt with through the application of the nominally correct column, i.e. column 1 of the tariff. [ 32 ] In coming to the conclusion that a multiple of column 4 should be used, I have taken the following into account: - in choosing the column, the importance of the proceedings to each of the parties and to the community is the main factor.

Both parties had a lot at stake in these proceedings. Northland was obviously fighting for an important part of its economic life since the result of the Council ’ s decision is that Northland ’ s current operations on at the site in question will have to be shut down. Even without such operations, Northland retains an extremely valuable interest in the property - the evidence establishes that there is a major residential building development adjoining Northland ’ s eastern border which is also the limit of the City of Edmonton.

Therefore, when Northland suggests the use of column 4 of the tariff, by implication it is stating that the value of the claim of the operation on its site was between $500,000 and $1.5 million; such a valuation is certainly reasonable in the circumstances. In addition to this method of ascertaining the correct column, I note that there it was legitimate for the Council and County to treat Northland ’ s claim as important since the claim raised fundamental questions concerning the rights and responsibilities of elected municipal councils.

In that sense, although these proceedings focus on the facts identified by each of the parties, the outcome of the proceedings is of some interest to other business taxpayers and other municipal councils.

- in choosing the multiple within the column, the complexity of the proceedings is the main factor. In order to adequately defend themselves against the claims made by Northland, in order to establish a factual matrix for the hearing, it was necessary for the respondents to review many years of dealings between themselves and Northland. Moreover, it was necessary for the respondents to review many years of dealings between Northland and the provincial environmental authorities.

In addition, the legal issues raised by Northland were complex: they dealt not only with the standard of review of decisions made by elected municipal councils, but also with the relationship between provincial legislation and municipal regulation where those standards apply to the same property. Evidence of the complexity of the issues is provided by Northland ’ s own use of a second counsel for these proceedings. - in testing the overall fairness of the allocation of fees, I note that 4 times Column 4 will result in an award of $30,500.00 for fees, which is approximately half of the actual fees expended.

Both the litigants themselves, and the court, have been well served by the efforts of the law firms on behalf of their respective clients. The court is aware, however, that not all business taxpayers and not even all municipalities for that matter, could afford the quality of representation that was evident here.

Therefore, while a difference of 15% might otherwise be expected between the total fees claimed on a party/party basis and the fees claimed on an indemnity basis, awarding the successful respondents 80% or 85% of their legal fees would not, in my estimation, be a fair apportionment of fees in the circumstances here because it would assume this level of costs to be representative. 6. Costs of the costs hearing [ 33 ] Because there was divided success on the costs hearing, each party will bear their own costs of that hearing. Heard on the 12 th day of September, 2012.

Dated at the City of Edmonton, Alberta this 26 th day of September, 2012. J.B. Veit J.C.Q.B.A. Appearances: Sheila C. McNaughtan, Q.C. and Kelsey L. Becker Brookes, Reynolds Mirth Richards & Farmer LLP for the Council and County of Parkland K.D. Wakefield, Q.C., and Andrea Simmonds, Student-at-Law Fraser Milner Casgrain LLP for Northland