Gendre v Fort Macleod (Town), 2016 ABQB 111

Court of Queen ’ s Bench of Alberta Citation: Gendre v Fort Macleod (Town), 2016 ABQB 111 Date: 20160224 Docket: 1406 00984 Registry: Lethbridge Between: Rene Gendre Applicant - and - Council of the Town of Fort Macleod and Town of Fort Macleod Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.D. Nixon _______________________________________________________ [ 1 ] These reasons address costs following dismissal of a judicial review application. Introduction [ 2 ] Mr.

Rene Gendre, the Mayor of Fort Macleod, sought to set aside bylaws and resolutions passed by the Council of the Town of Fort Macleod (“Council”) removing his powers as Mayor. His application was dismissed: Gendre v Fort Macleod (Town), 2015 ABQB 623 .

Schedule C of the Rules of Court provides that Column 1 is the default column for costs where no money amount is sought.

Council seeks costs on an elevated scale. Specifically, it seeks five times Column 5 costs. Costs on this scale would reimburse Council for half the legal fees it incurred. [ 3 ] The Mayor does not dispute Council’s entitlement to costs, but does dispute its entitlement to costs on the elevated scale it seeks. He submits that double Column 1 is the appropriate scale of costs. [ 4 ] Costs are in the discretion of the Court: rule 10.31.

The factors to be considered in awarding costs are set out in rule 10.33. [ 5 ] Council submits that the complexity of the proceedings, the importance of the decision to the community, the amount of work required, and the legal fees it incurred justify costs at five times Column 5. It relies on the Northland Material Handling Inc v Parkland (County) , 2012 ABQB 586 . [ 6 ] In Northland, a county council denied Northland’s application to extend its sand extraction and dry landfill operations on county land.

Northland sought judicial review alleging that the council acted without good faith and for an improper purse. Its application was dismissed. [ 7 ] Madam Justice Veit held that the failure to prove lack of good faith on the part of the county did not justify an indemnity of costs. She did, however, award costs on an elevated scale of four times Column 4.

She noted that “[r]ather 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 for that case”. [ 8 ] The main factor in choosing the appropriate column, stated Justice Veit, was the importance of the proceeding to each of the parties and to the community. She noted that Northland was “fighting for an important part of its economic life” and had an “extremely valuable interest” in the property.

In her view, it was legitimate for the council and the county to treat the claim as important because it “... raised fundamental questions concerning the rights and responsibilities of elected municipal councils.” The decision was, therefore, of interest to other business taxpayers and other municipal councils. Given the importance of the claim not only to the parties but to other parties as well, she determined that Column 4 was the appropriate column. [ 9 ] In determining whether a multiple of a Column is warranted and, if so, the appropriate multiple, the complexity of the proceedings is the main factor.

Justice Veit identified the following primary factors in support of her decision to award four times Column 4:

a) In order to establish a factual matrix to defend itself against Northland’s claim, it was necessary for the respondents to review many years of dealings between themselves and Northland and between Northland and the provincial environmental authorities.

b) The legal issues were complex as they dealt not only with the standard of review of decisions of elected municipal councils but also with the relationship between provincial legislation and municipal regulations. [ 10 ] The applicant’s claim in Northland was valued between $500,000 and $1.5 million. Not only were the legal issues complex, but many years of proceedings between the parties were reviewed. [ 11 ] Justice Veit tested the overall fairness of her award by reference to the legal fees paid.

The costs award was half the fees expended. [ 12 ] Council submits that just as elevated costs were warranted in Northland, so are they warranted in this case considering the importance of the issues, not only to the parties, but also to the community at large. [ 13 ] Council also cites in support of its request for enhanced costs, Waste Management of Canada Corp v Thorhild (County) , 2009 ABQB 157 . In Waste Management, the Court awarded elevated costs to a county councillor following dismissal of a judicial review of a vote taken by council regarding a rezoning application.

Waste Management had alleged bias on the councillor’s part. The parties agreed to Column 1 costs payable to the county and to council. The councillor, who was alleged to have been biased, however, sought costs on a solicitor and client basis. [ 14 ] The Court declined to award solicitor and client costs but did award costs of three times Column 5.

The Court gave the following rationale for enhanced costs: 1. the councillor was justified in participating to defend his own reputation and the interests of the voters who elected him; 2. the issues on which the councillor succeeded were important not only to him but also to the community at large, and the matter before the Court was of great public interest in the county; 3. the councillors incurred a significant liability to retain legal counsel, a liability which could deter him and others from participating in municipal politics; and 4. the scale of costs awarded would provide a fair apportionment of the costs of the application. [ 15 ] The Mayor submits that the judicial review fell within the realm of public interest litigation.

He relies on the decision of Mr. Justice Graesser in Lum v Council of the Alberta Dental Association , 2015 ABQB 276 . In that case, the Court ordered costs of double Column 1 to the respondent following dismissal of judicial review of its decision to deny registration to the applicant dentist. [ 16 ] In considering costs, Justice Graesser described the criteria to be considered when an order of no costs is sought on the basis of public interest litigation.

These criteria were outlined in Harris v Canada , 2001 FCT 1408 at para 222 : 1. the proceedings involve issues of importance beyond the interests of the immediate parties;

2. the person has no or limited personal interest in the outcome; 3. the issues have not been previously determined by a court in a proceeding against the same defendant; 4. the defendant has a superior ability to pay; and 5. the plaintiff has not engaged in vexations, frivolous or abusive conduct. [17] This test was cited by the Alberta Court of Appeal in Pauli v ACE INA Insurance Co., 2004 ABCA 253, at para 24 whendetermining a costs award. [18] Typically, public interest litigation involves proceedings which raise a novel issue of public importance commenced by aparty who has no personal, economic or proprietary interest in the outcome.

The Mayor’s judicial review application was not a test caseor representative action. He did not have an economic or proprietary interest in the outcome, but he had a significant personal interest.Although the Mayor submits that he pursued the judicial review for the principles of democracy and was motivated by his commitmentto and respect for the voters who elected him, the challenge was fundamentally about his conduct and the response by Council inremoving his powers as Mayor. The judicial review was of great importance to the Mayor as the dispute went to the very core of hisauthority as Mayor.

The judicial review involved the application of established principles of bad faith and statutory

interpretation to aunique fact situation.

However, it did not involve truly novel points of law albeit there was no prior case law addressing the particularissues in this case. [19] Although it is reasonable to conclude that Council has a superior ability to that of the Mayor to pay the costs and there was novexatious, frivolous or abusive conduct on the part of either party, these do not, on their own, make the judicial review public interestlitigation. [20] Although the Mayor’s conduct was motivated by his interest in representing his constituency, the challenge wasfundamentally about his conduct and whether Council’s response was appropriate.

It was not public interest litigation. There is someoverlap, however, between factors to be considered when an order for no costs is sought on the basis of public interest litigation andfactors to consider in awarding costs in other litigation. [21] The factors to be considered generally in awarding costs were set out by Justice Graesser, in Lum, as articulated in PharandSki Corp v Alberta (1991), (AB KB), 80 Alta LR (2d) 216 (ABQB). This test was cited by the Alberta Court ofAppeal in Eggertson v Alberta Teachers’ Association, 2003 ABCA 101, at para 13 when determining a costs award.

My analysis ofthose factor is as follows: 1. Difficulty and complexity As Justice Graesser stated in Lum, it would be a rare judicial review application where complexity was not made out. The standard ofreview, which is often the most difficult issue in judicial review applications, was not in issue in this case. However, as noted bycounsel for the Respondent, significant work was required to canvass arguments in an area with limited, pre-existing case law. 2.

Importance of the case between the parties and the community at large This matter was of great importance not only to the parties but also to the community. Disputes between the parties compromised thefunctioning of the Town of Fort Macleod and Council. Although no individual councillor was named or singled out, the Mayor allegedthat the members of Council, as a whole, acted to punish and silence him and to suppress his political views. Council was justified intaking the allegations seriously. At its core, Council’s ability to govern and its authority to do so were at stake.

Council incurredsignificant legal costs in its defence. The decision may have some importance to other municipal councils in Alberta, but this is likely limited as the dispute was unique tothese parties. 3. Length The Application took two half days. This would not be characterized as lengthy. 4. Positions, relationship and conduct There was nothing out of the ordinary in how the parties conducted themselves in the litigation. 5.

Other factors The Mayor submits that costs awarded against him should not be at the level to discourage prospective applicants from future judicialreview applications that are reasonably meritorious but where there is a risk of failure: Reese v Alberta (Ministry of Forestry, Lands andWildlife) (1992), (AB KB), 133 AR 127 (ABQB). The Court acknowledges that the Mayor had a genuine belief thathis actions were for the benefit of his constituents and for the Town as a whole. [22] The default Column 1 for non-monetary claims would not fairly compensate Council for its costs.

It retained two counsel andincurred substantial legal fees. In addition to written briefs and submissions at the hearing, Council was required to review and prepare anextensive Record of Proceedings. Costs on the scale ordered in Lum are too low for the circumstances of this case. On the other hand,costs on the scale awarded in Northland and Waste Management are too high. [23] Taking into account all of the above factors, I am of the view that three times Column 3 is an appropriate apportionment ofthe costs.

This results in a costs award to the Respondents in the amount of $9,750.00, for items 3(1) for Disclosure of Records and item8(1) for the two half day applications where a brief is required, plus disbursements, other charges and GST as agreed between the parties

or as approved on taxation. Heard on the 27 th day of June, 2015. Dated at the City of Calgary, Alberta this 24 th day of February, 2016. K.D. Nixon J.C.Q.B.A. Appearances: Marc Matras Gowling Lafleur Henderson LLP for the Applicant Derek J. King Brownlee LLP for the Respondents