Edmonton Flying Club v. Edmonton Regional Airports Authority, 2012 ABQB 784

Court of Queen ’ s Bench of Alberta Citation: Edmonton Flying Club v. Edmonton Regional Airports Authority, 2012 ABQB 784 Date: 20121220 Docket: 1103 11120, 0903 16530, 1003 00819, 1103 06357, 1103 12234, Registry: Edmonton Between: 1103 11120 Edmonton Flying Club and 1222663 Alberta Ltd. Plaintiffs - and - Edmonton Regional Airports Authority and the City of Edmonton Defendants and Between: 0903 16530 Airco Aircraft Charters Ltd.

Plaintiff -and- Edmonton Regional Airports Authority and the City of Edmonton Defendants and Between: 1003 00819 Edmonton Flying Club Plaintiff -and- Edmonton Regional Airports Authority and Edmonton Airports Inc. Defendants and Between: 1103 06357 Edmonton Flying Club Plaintiff - and - Edmonton Regional Airports Authority and the City of Edmonton Defendants and Between: 1103 12234

Morningstar Air Express Inc., Morningstar Partners Ltd. and Morningstar Air Corporation Plaintiffs - and - Edmonton Regional Airports Authority, the City of Edmonton, Shell Canada Limited and Shell Canada OP Inc. Defendants _______________________________________________________ Endorsement of the Honourable Madam Justice J.B.

Veit _______________________________________________________ [ 1 ] After anxious consideration caused by acknowledging the difficulty of effectively putting oneself in the position of a reasonable, informed person assessing one ’ s own conduct, I have concluded that such a person would have no reasonable apprehension of bias in my continuing as case manager of the proceedings between the Edmonton Flying Club and the City of Edmonton. [ 2 ] In coming to that conclusion, I begin by noting that there is no disagreement amongst the parties concerning the principles that underlie judicial recusal including the assertion that these principles apply to case management judges just as they do to trial and sentencing judges, even though the role of a case management judge, as articulated in Rules 4.14 and 4.15, for example, may be more limited than that of a trial judge.

Also, I note that reference was made during the order settlement application to the utility of case management and the City did not object in principle to either case management or my appointment as case manager, but did, naturally, reserve its right to appeal my decisions.

In some situations, as we know, the reversal by an appeal court of a chambers judge ’ s decisions may precipitate a change in the case manager. [ 3 ] Next, I have considered the history of the proceedings as discussed in the applications before me but, more particularly, the transcripts of the specific special chambers application brought by Edmonton Flying Club for severance of its claim for injunctive relief from its claim for damages and the application brought by the City to vary the order arising out of the special chambers application so as to reflect the institution, subsequent to my written decision allowing severance, by the City of expropriation proceedings against the Flying Club.

From the beginning of the proceedings over which I presided, when I granted the City an additional month to respond to the Flying Club ’ s submissions, to the end of the appearances before me, when I indicated that the City was entitled to bring a special chambers application to consider whether the passing of a Council vote on expropriation was a material change of circumstance and whether such a change would result in a re-assessment of the Flying Club ’ s right to proceed with its claim for injunctive relief, it appears to me that I have dealt with the City in a fair, frank and unbiased way. [ 4 ] More specifically, in relation to my use of the expression of the City ’ s “ deep pockets ” in exploring what might be a disproportionate burden of the cost of litigation on the two main litigants, I am of the view that a reasonable person would accept that effective access to justice is a topic which a court is entitled to explore, and perhaps even required to explore, given the wording of foundational Rule 1.2 and Alberta jurisprudence on severance.

My resolution of the issue of the cost and burden of litigation, as outlined in paras. 41 to 53 of my decision - 2012 ABQB 563 - is summarized in para. 53 where I concluded that severance will minimize litigation expense for all parties does not, in my respectful view, demonstrate bias against the City or raise an apprehension of bias. [ 5 ] The City ’ s other specific concerns relate to comments I made during its application to settle the terms of the order arising out of the earlier special chambers application.

The City asked me to vary or set aside my earlier decision because of the City ’ s institution - by way of City Council vote on October 3, 2012 of expropriation proceedings, i.e. after I issued my decision on the severance application. The City argues that my use of the word “ trump ” to describe the City ’ s expropriation proceedings betrays bias.

According to the Compact Edition of the Oxford English Dictionary, “ trump ” means “ a playing-card of that suit which for the time being ranks above the other three so that any one such card can “ take ” any card of another suit ” . During the hearing, the City referred to its expropriation proceedings as making the lands, once expropriated, free and clear of all prior interests: p. 85 T., lines 32-35.

With respect, I am of the view that the City ’ s position was that the expropriation proceedings were, in effect, a trump card. [ 6 ] In this same context, the City acknowledged that the Rules allowing a judge to set aside or vary an interlocutory order imposed some limit on that authority, i.e. “ because information arose or was discovered after the order was made ” : Rule 9.15(4), see p. 78 T., lines 27-38. I inquired of the City whether the expropriation could be said to have arisen after the special chambers hearing.

The City took the position that there was no expropriation until City Council passed an expropriation resolution and that, even if there had been steps taken by the City in support of a process of expropriation prior to the Council decision, the City was not obliged to disclose those steps to the court. The City may be correct in its

interpretation of the Rule; nonetheless, I am of the view that the issue of when information arose was a proper topic for exploration, and one which does not, by the mere fact of being raised, cause an apprehension of bias. [ 7 ] Finally, in this same context, and in particular connection with the City and ERAA ’ s claim that expropriation would be quick and inevitable, I asked questions at the order settlement hearing about whether the City was legally committed to all expropriation payments once expropriation had been approved or whether the expropriating authority, in this case a municipality, might change its mind about its ability to pay expropriation expenditures or about its political decision.

I also questioned the City ’ s argument that it wanted to move quickly to finalize expropriation in light of its decision not to disclose, during the severance hearing, steps taken to prepare the way for formal expropriation.

In my decision on the City ’ s application to vary, 2012 ABQB 664 , I indicated that the argument that expropriation proceedings would be quick might have to take into account the potential extension of proceedings by having to consider legal arguments about whether it was appropriate for the City to use its expropriation power to protect itself - to “ free itself ” - from its contractual obligations. In that discussion, I used the word “ propriety ” in an unfortunately clumsy attempt to distinguish legal authority from the impermissible use of that authority in a specific situation.

However, in my respectful view, neither questioning the speed and inevitability of expropriation proceedings nor the language used to describe those concerns, would be characterized by a reasonable person as creating a reasonable apprehension of bias. [ 8 ] Even viewed cumulatively, I conclude that the above concerns do not warrant my recusal as the case manager. Heard on the 18 th day of December, 2012. Dated at the City of Edmonton, Alberta this 19 th day of December , 2012. J.B. Veit J.C.Q.B.A. Appearances: Thomas H.

Ferguson Q.C., Fasten Martineau Tumoulin LLP, and Kim Fallis-Howell, City of Edmonton Law Branch for the City of Edmonton

Fred Kozak, Q.C., Reynolds Mirth Richards & Farmer LLP for Airco Aircraft Charters Ltd. Jack N. Agrios, Q.C. for Edmonton Flying Club and 1222663 Alberta Ltd., Morningstar Air Express Inc., Morningstar Partners Ltd. and Morningstar Air Corporation