Keller v. Municipal District of Bighorn No. 8, 2013 ABQB 374

Court of Queen ’ s Bench of Alberta Citation: Keller v. Municipal District of Bighorn No. 8, 2013 ABQB 374 Date: 20130628 Docket: 0701 09911 Registry: Calgary Between: Rod Keller Applicant - and - Municipal District of Bighorn No. 8 and Wild Buffalo Ranching Ltd. Respondents _______________________________________________________ Costs Decision of the Honourable Madam Justice Sandra L.

Hunt McDonald _______________________________________________________ Background [ 1 ] This Court gave a decision on May 27, 2010 regarding a Judicial Review requested by the Applicant of three bylaws enacted by Municipal District of Bighorn (“MD”) in June and August 2007. [ 2 ] The Applicant had alleged that the combined effect of the bylaws permitted the Respondent Wild Buffalo Ranching Ltd. (“Wild Buffalo”) to transfer “density credits” from one parcel of land owned by Wild Buffalo to another to enable it to proceed with a proposed residential development called Carraig Ridge.

[ 3 ] The site proposed for Carraig Ridge is directly adjacent to lands owned and maintained as a nature preserve by the Applicant, Rod Keller. [ 4 ] The Court in its judgment held that bylaws 06/07, 07/07 and 08-Z/07 were intra vires , reasonable, and passed after the Municipal District of Bighorn followed the proper procedures, and are therefore valid. The application to declare the bylaws invalid was dismissed. [ 5 ] As the parties have been unable to agree on costs, this decision is in respect of written submissions that I have received from all parties represented at the judicial review.

Respondents ’ Positions [ 6 ] The Respondent MD submits that as a result of the “without prejudice” negotiations that took place in April 2008, the MD made an informal offer to resolve matters with the Applicant which would have given him a better outcome than he received in the judicial review decision. The informal offer was rejected by the Applicant, resulting in the judicial review hearing in March 2010 at which the Applicant’s entire application was dismissed.

The MD submits that an increased costs award for all proceedings following the date of the offer is appropriate in these circumstances. [ 7 ] The MD left the April 10, 2008 meeting with the understanding that the Applicant would consider the informal proposal offer and provide his position.

The Applicant’s ultimate response to the proposal was to file a new affidavit on February 17, 2009 and seek full day special dates for the application to proceed. [ 8 ] Accordingly, the MD requests this Court grant an increased level of costs and proposes a Bill of Costs totalling $45,037.57 inclusive of $37,300.00 in fees and $4,792.92 in disbursements. [ 9 ] Although the “without prejudice” meeting took place with only counsel for the MD and the Applicant in attendance, the Affidavit of Martin Buckley of the MD dated August 5, 2011 confirms that the MD’s counsel had discussed the proposal with the Respondent Wild Buffalo prior to the April 2008 meeting with the Applicant, and at that time the proposal was supported by Wild Buffalo. [ 10 ] Mr.

Buckley’s Affidavit also exhibits a confirming e-mail sent to Wild Buffalo’s counsel dated April 23, 2008 confirming their previous discussions with respect to the informal proposal and indicating that counsel was awaiting a response from the Applicant’s lawyer. [ 11 ] The Respondent Wild Buffalo has also applied for increased costs in respect of their participation in the judicial review proceedings initiated by the Applicant. They request the Court to consider awarding costs against the Applicant on a solicitor/client basis or, alternatively, on a multiple of Column 5 of

Schedule C of the Rules of Court , Alta Reg 124/2010 . [ 12 ] The basis of Wild Buffalo’s claim is that the nature and complexity of the issues before the Court led to extensive briefs and days of argument. The issues were substantive and involved new complex legislation, namely the Alberta Land Stewardship Act, SA 2009, c A-26.8, which had previously been uncontested before the Courts. [ 13 ] In fact, Wild Buffalo submits that the judicial review motion was far more akin to a trial of a very complex set of issues, and was made unnecessarily complex by the Applicant.

[ 14 ] I held that the Alberta Land Stewardship Act does not retroactively invalidate the bylaws and, in any event, the Act provides that only the Stewardship Commissioner may challenge the bylaws on the basis of inconsistency. [ 15 ] Accordingly, Wild Buffalo proposes a fee not unlike that proposed by the MD, supplemented by an additional amount to address the costs of cross-examination of Mr. Keller, the Applicant, on two occasions, and an attendance upon Mr. McGregor when he was cross-examined. Single Column 5 for each attendance would be $1,500.00 together with taxable disbursements and GST.

Applicant ’s Position [ 16 ] The Applicant resists the application for enhanced costs on the basis that following the April 10, 2008 meeting, the Respondent MD withdrew its offer. [ 17 ] Counsel for the MD answers that the offer was never formally withdrawn. Rather, it is the MD’s submission that the offer was implicitly rejected by Mr.

Keller, on February 17, 2009 when he served a further Affidavit and correspondence listing dates for a full day special chambers hearing of his judicial review application. [ 18 ] Submissions from the Applicant regarding costs were not received by the Court until the first part of December 2011. It took some time to receive responses by other parties. [ 19 ] The Applicant raises several arguments against having to pay costs to the Respondents.

These arguments bear a resemblance to the factors put forth by the Court of Appeal​albeit in the context of class action lawsuits—in Pauli v ACE INA Insurance , 2004 ABCA 253 , 354 AR 348, to be examined when determining whether to deviate from the general rule that costs are awarded to the successful parties. The Court of Appeal identified these factors as:

a) Public interest;

b) novel point of law;

c) test case;

d) access to justice. [ 20 ] The Applicant indicates he was acting in the public interest as he was joined by other concerned citizens at public hearings regarding the bylaws. He did concede that he was the most seriously affected of all the potentially impacted parties attending hearings. However, the Applicant submits that the issues were serious, that he had a genuine interest in the proceedings, and that environmental concerns are in the public interest.

He argues that by meeting these criteria, as set out in the case Friends of the Calgary General Hospital Society v Calgary , 2001 ABCA 162 , 286 AR 128 (“ Friends ”), he has demonstrated that the Court should deviate from the customary rule of awarding costs to the successful parties. [ 21 ] Further, he submits that he did not claim for any monetary amount and accordingly that the Alberta Rules of Court ,

Schedule C, states the “unless the Court otherwise orders, matters which have no monetary amounts, for example, injunctions, will be dealt with under Column 1". Based on that, the Applicant submits that it would be disproportionate and needlessly punitive for the Court to award costs on Column 5 or any multiple thereof as he had acted in his capacity as a concerned member of the community. [ 22 ] This Court notes that submissions made on behalf of the Applicant were made after the time that his previous counsel, Mr.

Staroszik, Q.C. had left the firm that was acting on his behalf at the time of the judicial review. Accordingly, some matters that were put in the brief are not borne out on the facts because another member of the firm made the costs submissions on behalf of the Applicant. [ 23 ] This was particularly true in respect of two matters:

(1) The costs submissions Brief said that the matter was argued in less than a day. In fact, the matter was argued over a period of three days.

(2) Further, new counsel submitted that the Applicant only proceeded with his application after the Respondent MD (concurrent with Wild Buffalo) withdrew the offer it had made to the Applicant during the April 10, 2008 meeting. Findings

a. Complexity [24] The Respondents argue that one of the factors weighing in favour of increased costs is the complexity of the case. TheRespondent MD points to Dix v Canada (Attorney General), 2002 ABQB 768 at para 23, 315 AR 139, as authority that “[i]n someinstances when the action is of considerable magnitude and complexity, the practice in Alberta contemplates that the court may order theunsuccessful party to pay a multiple of the fees that are fixed by

Schedule C.” As discussed in International Association of Machinistsand Aerospace Workers, Local Lodge No. 99 v.

Finning International Inc, 2006 ABQB 594 at para 15, (“Finning”), the complexity of acase before the Court continues to have cost implications even in instances of judicial review: It is not unusual for this Court to award party and party costs beyond the default scale in judicial review applications and otherproceedings where matters at issue are particularly complex or involve matters of general importance to the public. [25] The Respondents also rely on Eggertson v ATA, 2003 ABCA 101 at para 13, 327 AR 92, which quotes with approval severalfactors enumerated in Pharand Ski Corp v Alberta (1991), (AB KB), 122 AR 395, that should be regarded whenreasonably apportioning costs on a party and party scale.

These factors are: (

a) the difficulty and complexity of the issues, (

b) the importance of the case between the parties and/or the community at large, (

c) the length of the trial, (

d) the positions and relationships of the parties and their conduct prior to and during the course of the trial, and (

e) other factors that may affect the fairness of an award of costs. [26] While a complex case may lead to an increased cost award, I must determine whether this is such a case. The Dix case wasconsidered sufficiently complex to warrant an increased cost award for a variety of reasons. Ritter, J. said at para 24: Interplay of several causes of action was placed in question and facts to support those causes had to be adduced. Novel causes of actionwere raised and novel defences were proffered. Sixty days of evidence was heard, and thousands of pages of documents were filed asevidence.

If this trial was not complex, no trial ever will be. [27] Clearly, the case at bar is not as complex as Dix. However, complexity played a role in an increased cost award in Finning aswell. That case involved a two day judicial review of a complicated specialized tribunal decision. The judicial review also involved theanalysis of a variety of evidence. In Finning the Court applied the Pharand factors and determined that costs beyond the scale wereappropriate. The similarities between the proceedings in that case and the one at bar suggests that the same conclusion may beappropriate here. b.

Test Case [28] The Applicant argues that this was a test case, and therefore the Court should exercise its discretion and award no costs forthis reason. The Applicant provides Dickason v University of Alberta, (SCC), [1992] 2 SCR 1103 (“Dickason”), asauthority for no costs being awarded in a test case. [29] The case at bar is not a test case. Though the Supreme Court of Canada chose not to award costs in Dickason, the decisiondoes not contain any discussion of the nature of test cases. Fortunately, other decisions of the Supreme Court have provided clarity onthis point.

In Canada (Attorney General) v Mavi, 2011 SCC 30 at para 80, 2 SCR 504 the Court characterized the proceedings before itas test cases as they were brought to “resolve certain legal issues of public importance”. In Kerr v Danier Leather Inc., 2007 SCC 44 atpara 65, 3 SCR 331, the Supreme Court refused to classify the proceedings before it as a test case, noting:

It has not been established that this is a “test case” in the conventional sense of a case selected to resolve a legal issue applicable to otherpending or anticipated litigation. Nor have the appellants raised a “novel point of law”. As we have seen, the heart of the case is simply ashareholder dispute over a lot of money requiring the application of well-settled principles of statutory

interpretation to particularlegislative provisions. [30] Test cases traditionally occur in situations where there are several parties with potentially similar causes of action and one isselected to determine whether there is any chance of success for the others, situations where the precedential value of the judgment is ofgreater concern to the parties involved than the individual impacts of the judgment on the parties, or situations that involve a novel legalargument that, if successful, could potentially affect the legal rights and standing of others; see Papaschase Indian Band (Descendantsof) v Canada (Attorney General), 2004 ABQB 913 at para 35, 365 AR 88 (“Papaschase”).

These considerations are not found in the caseat bar. Mr. Keller is an individual litigant in this matter who stands alone before the Court. His originating notice was filed because hebelieved he would be negatively impacted by the bylaws. [31] Though the case at bar can be considered a complex case and it did involve

interpretation of new legislation, suchinterpretation was in fact quite straightforward. It clearly showed that only the Stewardship Commissioner may challenge the bylaws forinconsistency under the Alberta Land Stewardship Act, not an individual like Mr. Keller. In Papaschase this Court noted at para 32, that“[e]very decision is to some extent ‘novel’, because if nothing else it applies established legal principles to a particular set of facts. Inorder to avoid costs consequences, the novelty of the matter must extend beyond that.” Accordingly, Mr.

Keller’s application should notbe considered a test case, nor does it raise sufficient novel points of law to effect a costs award. c. Public Interest Standing [32] The Applicant further argues that the application was made in the public interest, that he should be given public intereststanding and therefore should not be responsible for paying costs. The Applicant relies upon Friends to establish the requirements forpublic interest standing.

In that case, the Court of Appeal disagreed with the chambers judge’s decision that there were no grounds uponwhich to deviate from the standard rule of awarding costs to the successful party. At para 8 the Court of Appeal noted several factors thatjustified deviating from a standard costs award: She held that the issues were serious, that the appellants had a genuine interest in raising those issues and there was no other party in aposition to apply to the court for the relief sought.

When those findings are coupled with the underlying public interest in the utilizationof health care resources, it was demonstrably wrong to conclude that there was no reason to deviate from the customary rule. Severalreasons for deviation are apparent in the findings of the chambers judge. [33] In Urban Development Institute v Rocky View (M.D. No.44), 2002 ABQB 651 at para 33, 321 AR 253 (Urban Development),this Court enumerated the test for public interest standing from Friends: The party seeking status must show that: (1) the issue before the Court is justiciable;

(2) The issue is serious;

(3) The Applicant is directly affected by the issue or has a genuine interest therein as a citizen; and

(4) There is no other reasonable and effective manner for the issue to be brought before the Court. [34] Though the Applicant likely meets the first three parts of this test, the fourth factor demonstrates that public interest standingis inappropriate in these circumstances.

In the leading case on public interest standing, Canadian Council of Churches v Canada(Minister of Employment and Immigration, (SCC), [1992] 1 SCR 236 at 252, the Supreme Court of Canada discussedthe philosophy behind the granting of public interest standing and the contexts in which such a granting is appropriate: The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting ofpublic interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a

private litigant . [Emphasis added.] [ 35 ] Here it is clear that public interest standing is intended to allow those who may not otherwise be able to bring an action to do so in the public interest. This usually takes the form of a group or organization who brings the action in the place of those who would be unable to do so on their own. Indeed, even in Urban Development public interest standing was being sought by an umbrella group on behalf of four developers who would have been unable to bring the action themselves, not by an individual as in the case at bar. [ 36 ] Mr.

Keller should be considered a private litigant. Though his position as the person most affected by the bylaws does not necessarily exclude him from public interest standing, such a finding would be out of place in these circumstances. Others brought concerns along with Mr. Keller regarding the bylaws to the public hearings held by the MD, but none of these individuals sought to join Mr. Keller in his application and there is no substantive indication that the Applicant made his application as anything but an individual who stood to be impacted if the bylaws passed. Public interest standing is inappropriate here.

It is clear that the bylaws were open to challenge by an individual litigant, which is indeed what occurred. d. The Rules of Court [ 37 ] Turning now to the offer, it may be true that it was eventually withdrawn, but certainly not before the Applicant took further steps, including filing an affidavit in February 2009 and canvassing trial dates for the judicial review hearing. This fact was confirmed by the Applicant’s previous counsel, Mr. Staroszik, in his letter dated December 21, 2011 to Mr. Docken, Q.C. of his previous law firm. In that letter, Mr.

Staroszik indicated that on October 16, 2009, he was advised by Ms. Klauer acting for the MD that the offer rescinding the Land Use Bylaw and the Area Structure Plan was no longer on the table because of Wild Buffalo’s requirements. [ 38 ] I note that this was long after further actions were taken by the Applicant proceeding on with his application and only a short time prior to the matter actually being heard at trial. [ 39 ] Certainly, the April 8, 2008 informal offer was not withdrawn shortly after it was made.

The Applicant had plenty of opportunity to respond and did so by proceeding on with litigation rather than replying substantively one way or the other to the offer. [ 40 ] The Court notes that although the informal offer certainly does not meet the criteria set out in the new Rules of Court , as an informal offer, it fulfilled the requirements of Rule 601(1) of the previous Rules of Court , Alta Reg 390/1968 , in effect at the time of the hearing, particularly subsection (e): When deciding on costs the Court may consider the result in the proceedings and... (

e) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceedings. [ 41 ] This raises the question, however, of which Rules of Court apply to the case at bar. As mentioned above, judgment was granted in this matter in May 2010 and the new Rules of Court did not come into force until November of the same year. According to Rule 15.2, the new Rules apply to every existing proceeding, except where otherwise enacted.

Rule 15.1 defines an existing action as “a court proceeding commenced but not concluded under the former rules.” [ 42 ] By this definition the case at bar would appear to be an existing proceeding, meaning that the new Rules should govern ( Boers v Real Estate Council of Alberta , 2010 ABQB 774 , 498 AR 190) and that, in order to have cost consequences, the informal offer would have had to met the criteria of a formal offer under rule 4.24. The Courts, however, have recognized the difficulty this situation can create in circumstances such as the one at bar.

In Chappel v Canadian Pacific Railway Company , 2011 ABQB 74 at para 4 , 504 AR 361 Erb, J. said:

It is reasonable to conclude that where an application has been both made and heard, then the former Rules apply to the extent that the new Rules introduce a new test, provide a new criteria or provide an additional ground. This seems only fair since it would be inappropriate to render a decision based on criteria not addressed by the parties.” [ 43 ] This reasoning was adopted in Rubin v Gendemann , 2011 ABQB 466 at para 24 , 518 AR 128, and in Paniccia Estate v Toal , 2012 ABQB 367 at para 31 .

Similarly, in Meehan v Holt, 2011 ABQB 110 at para 14 , 506 AR 208, Sullivan, J. wrote: Were I to find that a difference arose between the new and former Rules that was relevant to my decision and that created a “difficulty, injustice or impossibility”, the operation of Rule 15.6 would allow me to substitute one or more of the former Rules for the new Rules . The purpose of the Rules is to “provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way:” new Rules , s.1.2(1).

In this case, if there was a difference between the Rules that affected my decision, it would be in the interests of fairness, timeliness, and cost-effectiveness to decide under the former Rules , as the parties argued this matter under the former Rules.

However, I have not found that a difficulty or injustice arises here as between the former Rules and the new Rules , and accordingly I consider the matter under both sets of Rules . [ 44 ] There is nothing to suggest that the offer was not genuine ( Allen (Next Friend of) v Mueller , 2006 ABCA 101 at para 13 , 384 AR 23 (“ Allen ”)) or that it did not contain an element of compromise on behalf of the Respondents ( Allen at para 15 ). It is my view that the Applicant’s failure seriously to consider the MD’s offer certainly lengthened the time to come to a decision that, in the end, was not as favourable.

I think it not appropriate to discuss provisions in the new Rules of Court , or require that a formal offer need be made in order for the Court to exercise its discretion with respect to costs, though in keeping with Meehan doing so would be acceptable in any case as there is no real difficulty or injustice that would arise in considering both sets of rules. Disposition [ 45 ] It is appropriate that the costs be awarded to both the MD and Wild Buffalo for double the amount of costs (excluding disbursements)

Schedule C, Column 5 that they would otherwise have recovered for all steps in relation to the defence after the informal offer was made on April 10, 2008. [ 46 ] I request parties to calculate such sums and prepare a Bill of Costs based on my analysis of the costs that should be awarded in these circumstances. Heard on this 9 th , 10 th and 12 th day of March, 2010. Dated at the City of Calgary, Alberta this 28 th day of June, 2013. Sandra L. Hunt McDonald J.C.Q.B.A. Appearances: K. L. Johnston, Docken & Company

for the Applicant L. M. Sali, QC, Borden Ladner LLP for the Respondent, Wild Buffalo Ranching Ltd. D. J. King, Brownlee LLP for the Respondents, Municipal District of Bighorn