Alberta Health Services v, 2016 ABQB 308

Court of Queen ’ s Bench of Alberta Citation: Alberta Health Services v 1443028 Alberta Ltd (Home Placement Systems), 2016 ABQB 308 Date: 20160601 Docket: 1503 14579 Registry: Edmonton Between: Alberta Health Services Respondent - and - 1443028 Alberta Ltd. operating as Home Placement Systems, Gohar Tasneem, Sarah Fassman, and Gohar (Carmen) Pervez Applicants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers hearing, the applicants/respondents apply to set aside the court’s interim order of September 29, 2015 in these proceedings under the Public Health Act , and for costs. While it agrees that a QB enforcement order is no longer necessary, Alberta Health Services applies for solicitor and his own client, or full indemnity, costs for all steps it has taken in these proceedings. [ 2 ] The respondents’ substantive position that a QB enforcement order is no longer necessary is adopted; however, in the court’s

view, that does not equate to a decision that the September 29, 2015 decision should be set aside: the latter decision was appropriate atthe time it was made. [3] This order does not, of course, deal with the parties’ costs before the Public Health Board. AHS’s application for anindemnity of costs is denied; however, AHS is awarded party and party, or tariff, costs of the September 29, 2015, interim QB order.

Therespondents are awarded party and party costs of the November 20, 2015 hearing and of the January 13, 2016 questioning of the AHSofficial. [4] Costs are a mechanism to promote reasonableness in litigation. Where public authorities are involved in litigation, the usualsymmetry of costs principles – winners get costs, losers pay costs – may not apply: where a public authority has acted reasonably, costsmay not be ordered against it when it is unsuccessful. A public authority may be indemnified in costs when it had no option but to haveresort to the court system.

However, even a public authority, which has a mandate to enforce legislation, must act reasonably. Therefore,when a public authority is successful in litigation, it is not entitled, as of right, to an indemnity for all steps taken in the litigation; rather,the circumstances of each situation must be examined in order to determine a fair assessment of costs. [5] Here, bringing an application for an enforcement order in the Court of Queen’s Bench was within the range of possiblereasonable actions by AHS.

It was not, however, a situation in which AHS had no option but to obtain a QB enforcement order: theapplicants/respondents were not substantively refusing to comply with the AHS order issued in August, 2015. Therefore, the appropriatelevel of costs for the September 29, 2015 interim enforcement hearing is party and party, or tariff, costs to AHS. [6] The application to this court on November 20, 2015, was not necessary: evidence now establishes that the respondents hadsatisfied the AHS order by October 2, 2015 when the Unfit for Human Habitation Order, issued in August 2015, was rescinded by AHS.

Compliance with the August, 2015 AHS order was not made clear until the applicant/respondents questioned AHS’s executive officer inJanuary, 2016. Actions by AHS after October 2, 2015 to enforce the August 2015 order were unnecessary; the applicants/respondentsare therefore entitled to

Schedule C, or tariff, costs for dealing with those actions, which include the November 20, 2015 hearing and theJanuary 2016 questioning. [7] While it is true that AHS gave very late notice to the applicants/respondents that it was not contesting the fact that a QBenforcement order was no longer necessary, the only real preparation for the May 4 2016 special chambers hearing was the January 2016questioning of the AHS officer; costs have been awarded for that step.

The remainder of the special chambers hearing dealt with costs;costs for that hearing will therefore presumably be dealt with on normal costs principles. Cases and authority cited: [8] By the applicants/respondents: C.C.S. v L.M.A. 1999 ABQB 760 [9] By AHS: Tsuu T’ina Nation v Frasier 2009 ABCA 140; Wong v Alberta Health Services 2015 ABCA 102; SonnenbergInc. v Stewart, Smith (Canada) Ltd. [1986] A.J. No. 1725; FIC Real Estate Fund Ltd. v Lennie 2014 ABQB 105 [10] By the court: B.W. v Child and Family Services of Winnipeg, 2009 MBCA 95, at para 72; Hamilton v Open WindowBakery 2004 SCC 9 , 2004 SCC9; Moreira v.

Ontario Lottery and Gaming Corp. 2012 ONSC 2903, at para. 18; Alberta(Director of Maintenance & Recovery) v T.D. 1991 ABCA 325 , [1991] A.J. No. 1069 (C.A.); Hryniak v Mauldin 2014 SCC 7 Appendix A: Extract from the decision of the Public Health Board, January 9, 2016. Appendix B: Extract from questioning in January, 2016 of AHS official on the characterization of the rescinding order of October 2,2015 Appendix C: List of orders in which AHS was granted an indemnity of costs without explicit reasons 1.

Background [11] On August 14, 2015, Alberta Health Services received a sewer back-up complaint from a residential tenant in the premisesowned and managed by the respondents. The tenant indicated that he had been advised by the media to contact AHS. On August 18,2015, the same tenant advised AHS that there was a flood on the upper level of the premises.

On August 18, 2015, AHS and theEdmonton Police Service conducted an inspection of the premises; it is not clear why the police attended. [12] During the inspection, AHS observed multiple violations of the Public Health Act, the Housing Regulation, the Nuisance andGeneral Sanitation Regulation, and the Minimum Housing and Health Standards, including: - the ceiling height was measured at 5 feet 8 inches in some locations’ - sewage appeared to be backing up into the basement and an odour of sewage was noted throughout the premises; - liquid sewage with toilet paper was noted in the furnace area stemming from under the kitchen/living room elevated floor; - the north basement bedroom window was too small for emergency egress; - the south basement bedroom window was cracked; and, - insect screens were absent from numerous windows.

[ 13 ] While the inspection was going on, the resident of the upstairs suite asked AHS to inspect her suite as she could smell the odour of sewage throughout. The inspection of that suite also disclosed multiple violations of the Act and regulations. [ 14 ] AHS guidelines state: In most situations , the executive officer notifies the person of the violation; advises that person of the public health effective noncompliance; and, within the given time periods (here 60 days) allows him/her to correct the problem without any further management action being taken.

This practice normally addresses the public health concern and motivates a person to change unacceptable practices and behaviour. (Emphasis added) [ 15 ] The options open to AHS upon observing violations of the Act or of its regulations include giving a written notice to the owner to repair, issuing a letter of warning, and issuing an order to repair the property. Another potential option was to order that the property was closed for rental accommodation.

AHS was of the view that, because of its previous dealings with the applicants, none of those lesser mechanisms were appropriate in the circumstances here and that an order declaring the premises unfit for human habitation was the proper course of action; AHS was of the view that these particular respondents would not voluntarily comply with a request from AHS to remedy deficiencies. [ 16 ] AHS guidelines state that “critical” is the correct designation of a situation or condition where injury or illness is likely to occur. [ 17 ] On August 27, 2015, without taking any of the potential alternative lesser steps, an executive officer of AHS issued an Unfit for Human Habitation Order/Order to Vacate.

The order required the occupants to vacate the premises by September 11, 2015 and required the owner of the premises to do several things, including: - retain the services of an environmental consultant who would, amongst other duties, “ensure that any additional renovation work, including painting, reinstallation of drywall and laying of new flooring and/or sub floors does not occur until suitable air sample results are” approved by AHS; - investigate the cause of the sewage backup and conduct any necessary repairs. Remove all sewage and water damaged materials, including drywall, flooring and subfloor.

Provide all related records to AHS. Leave the areas open for further assessment by AHS prior to conducting further repairs; - clean and sanitize all affected areas. Provide all related records to AHS; - remove and replace the water damaged basement bathroom ceiling. Leave the areas open for further assessment by AHS. [ 18 ] No distinction was made in the order between violations considered critical and those that were not. [ 19 ] Because it was a health hazard order, the Unfit for Human Habitation Order issued on August 27, 2015 was registered against the title to the property.

This, of course, had serious implications for the owner of the premises. [ 20 ] On September 15 and 17, 2015, AHS attended at the premises and found that there were deficiencies in the applicants’ compliance with the Unfit for Human Habitation Order. [ 21 ] On September 21, 2015, the respondents sought a stay of the Unfit for Human Habitation Order from the Public Health Appeal Board; on September 24, 2015, the Board denied the stay. [ 22 ] The respondents appealed the Unfit for Human Habitation Order to the Public Health Appeal Board.

On September 29, 2015, an appeal hearing date was set for October 20, 2015. [ 23 ] On September 29, 2015, AHS applied for, and obtained, a Queen’s Bench interim Enforcement order. The court granted the substantive provisions of the order requested, including a requirement that the respondents provide AHS with a detailed report describing the repairs and renovations that had been undertaken on the premises between August 27, 2015 and September 29, 2015.

The order also gave leave to the parties to later argue whether the order should be varied or set aside and to address the issue of costs. [ 24 ] In the morning of October 2, 2015, the respondents questioned the AHS official who had issued the original Unfit for Human Habitation Order. [ 25 ] On October 2, 2015, AHS rescinded the Unfit for Human Habitation Order. [ 26 ] On October 19, 2015, AHS took the position that the appeal hearing should not proceed on October 20, 2015, as the order had been rescinded. [ 27 ] On October 20, 2015, the Public Health Board advised the parties that it would hear AHS’s application regarding the appeal being moot, and then hear the appeal.

The Board would decide the preliminary application after hearing both matters and if it found that the issue was not moot, it would make a decision on the appeal. [ 28 ] On October 26, 2015, AHS took the position before the Board that AHS had rescinded the Unfit for Human Habitation Order only because the interim QB order made the Unfit for Human Habitation Order “unnecessary and duplicitous, and not because AHS is no longer interested in the property from a public health perspective”. [ 29 ] On November 20, 2015, this court ordered the respondents to provide the report described in paragraph 3 of the September 29, 2015 order and further ordered AHS to promptly review that report, and indicate, within 14 days of receipt, whether any additional

information or steps were required from the respondents. The order also provided that if AHS did not require any additional informationor action, the parties could enter into a consent order setting aside paragraphs 2 and 3 of the September 29, 2015 QB order. Theoutstanding issues, including the issue of costs and the issue of whether the September 29, 2015 QB order should be set aside wereadjourned to a special chambers hearing. [30] On January 9, 2016, the Public Health Board issued a decision holding that the dispute about the Unfit for Human HabitationOrder was not moot and confirmed that order.

Extracts from that decision are set out in Appendix A. [31] On January 13, 2016, the respondents questioned the same official from AHS they had earlier questioned in October of theprevious year. One area of questioning related to her understanding of the rescinding order of October 2, 2015. During that questioning,the official indicated that, on October 2, 2015, when she rescinded the August 27, 2015 order, she was satisfied that all of AHS’ concernsabout the premises had been satisfied.

An extract from that questioning is set out in Appendix B. [32] In response to the respondents’ special chambers brief, AHS advised the respondents that it now agreed that the interim QBorder could be set aside. [33] At the hearing, while the respondents maintained a position that the QB interim order was not “necessary”, as required by thestatute, the respondents’ main concern related to the costs claimed by AHS. 2.

General principles with respect to public authorities and costs [34] The overall principle in respect of costs is, of course, that costs are discretionary and that the court’s discretion must beexercised judicially. [35] Nonetheless, there are some generally accepted approaches to costs award. For example, in application of the objective ofcosts awards to encourage reasonableness in litigation, winners generally receive a partial indemnity of their costs and losers generallypay those costs.

This is sometimes referred to as the “two-way” costs principle. [36] The focus on this application is whether there is a general principle that a public authority which has a statutory or similarduty to take court action is generally awarded a full indemnity of its costs for doing so. [37] There may well be a “one-way” costs principle relating to public authorities: generally, they are entitled to costs if they aresuccessful, but, again generally, such agencies don’t pay costs if they are unsuccessful.

For example, in B.W., the Manitoba Court ofAppeal suggests that costs are rarely awarded against a public authority which is acting within its authority for the public good: Costs are rarely awarded against an agency because it is performing its public duties.

In Child and Family Services of Winnipeg v.A.M.H. et al. (2002), (MB CA), 163 Man.R. (2d) 69; 269 W.A.C. 69; 2002 MBCA 8, Huband, J.A., in setting asidean award of costs against an agency, wrote that (at para.12): "So long as the Agency acts reasonably and in good faith, it should not have costs assessed against it regardless of the ultimate result ofthe litigation. ..." [38] In contemporary practice, the mere fact that a litigant exercises public duties does not appear to result in an inevitableindemnity of costs.

For example, in Moreira, the Alcohol and Gaming Commission of Ontario, AGCO – which asserted that it hadlegislated public duties - asked only for a partial indemnity of costs, being $132,523.00, and was awarded only $60,000.00 in costs. [39] In this context, my decision in C.C.S., in which I ordered costs against a public agency, represents an example of a situation inwhich specific circumstances justified an award of costs even against an government agency.

I referred to a decision of our Court ofAppeal, which decision is now known by the citation set out above as T.P, in which our Court of Appeal approved an earlier decision ofMcFadyen J., as she then was, in which she had held: The position of the Director is different from that of either of the two parties in view of the Director's responsibility to insure that theinterests of the public and of the child are protected.

While I am satisfied that "the Court has the power to award costs against theDirector, I am of the view that this award should not be routinely made but should be made only in cases of special and unusualcircumstances. The Court of Appeal decision emphasizes that a court can make an order of costs against a public agency, but warns that such an ordercan only be made in special circumstances.

The Court of Appeal did not suggest that the appropriate level of costs where a public agencywas entitled to costs was an indemnity of costs; here again, the specific circumstances of the situation must be addressed. [40] For two reasons, I agree with the respondents that it would be wrong to take too much from the Court of Appeal decision inWong: first, an appeal court can only interfere with a costs decision, which is a discretionary, if the costs decision is clearly wrong -Open Window Bakery - and second, the Court of Appeal did not itself award an indemnity of appeal costs, but awarded merely appealcosts based on the tariff.

Moreover, although there is little reference to the underlying facts in the Wong decision, the reference by theCourt of Appeal to Mr.

Wong’s own conduct suggests that this was a situation where s. 63 of the Public Health Act applied, i.e. onewhere the Public Health Authority was required itself to undertake remedial work and was statutorily entitled to reimbursement for thecost of doing that work [41] Nor is it possible to discern a principle from the list of cases, set out in Appendix B, in which AHS has been granted anindemnity of costs: the circumstances of those proceedings obviously justified the granting of a costs indemnity. [42] Overall, then, I conclude that Alberta’ position on costs awards where public agencies are litigants is this:

- where public agencies are required to access the court system to enforce the legislation as part of their mandate, they are likely to be indemnified in costs: - although public agencies may be awarded costs if they are successful in the litigation, costs should not be routinely awarded against them when they are unsuccessful unless there are special circumstances justifying a departure from the general approach; - where public agencies are not required to access the court system to enforce their mandate, or where there are other special circumstances, a court must examine the agency’s actions to determine what costs award is reasonable and fair in the circumstances. 3.

Application of the general principles here [ 43 ] The costs analysis begins with an assessment of AHS’s recourse to this court. [ 44 ] The Public Health Board, which hears appeals from Unfit for Human Habitation Orders, confirmed the original order of August 27, 2015. In doing so, it noted that although there was no sewage back-up as originally feared, “given the odour and the liquid pooled in the basement” it was reasonable for AHS to suspect a sewage leak.

The fact that AHS allowed the tenants to remain in the premises for two weeks after it issued the Unfit for Human Habitation Order was not seen by the Board as contradictory to the exercise by AHS’s executive officer of her professional discretion to issue an Unfit for Human Habitation Order in light of the four serious contraventions mentioned in the order: sewer back-up, low head clearance, a basement bedroom window that did not meet egress requirements and water infiltration in the basement bathroom ceiling.

When it applied for a QB enforcement order in September, 2015, AHS relied on an affidavit from the executive officer who had issued the original order in which the officer indicated that, although the applicants/respondents had done work in compliance with the August, 2015 AHS order, there remained concerns about the possibility of asbestos containing materials, a requirement that a qualified contractor conduct all necessary plumbing repairs, that sanitizing should be done in all affected areas and that the water damaged basement bathroom ceiling be replaced.

The latter instruction was perhaps unclear Remove and replace the water damaged basement bathroom ceiling. Leave the areas open for further assessment . . . prior to conducting further repairs. [ 45 ] Therefore, as of the date of the application for the QB enforcement order, it was clear that the respondents had been working to comply with the AHS order. Indeed, given the fact that the order had been registered against the title to the property, they had no practical option but to comply with the order.

By the date on which the application was made for a QB enforcement order, the applicants/respondents had even removed laminate flooring and subfloor which they had installed after having made repairs, but before AHS had had the opportunity of examining the areas which the respondents had repaired. [ 46 ] The court’s jurisdiction in proceedings of this type is set out in s. 66.2 of the Public Health Act: Court enforcement 66.2(1) The Court of Queen’s Bench may, on application by the Minister, a regional health authority or, in the case of

section 59, 60 or 61, an executive officer, make any order it considers necessary to enforce this Act . (Emphasis added) [ 47 ] In

summary then, while the respondents were working to comply with the AHS order, as of the date of the application to this court, there was still a need for asbestos clearance and a need for an inspection of the premises. Because the respondents had appealed the AHS order, because the respondents had initially covered up areas which should have been left uncovered for AHS inspection, and because the respondents had removed the Unfit for Human Habitation placards at the premises, AHS may have felt it was necessary to obtain a court order to enforce its August 2015 order.

Indeed, as the question from the Public Health Board indicated, (see para. 11 of the Rebecca Johnson affidavit of November 18, 2015) it was not clear to the Board why AHS found it “necessary” to obtain a QB order in the circumstances here.

In the event, this court was not satisfied, on September 29, 2015, that an order was required: the QB order specifically stated, in para. 11 of its order, that the issue of whether the order should be varied or set aside was adjourned to the special chambers hearing. [ 48 ] In those circumstances, the decision of AHS to apply for a QB order can be seen as within its professional discretion, although not clearly necessary.

Because AHS was working within its mandate, but in circumstances where access to the court system was an option but not necessary, I award AHS party and party costs of the September 29, 2015 hearing. [ 49 ] However, after the September 29, 2015 hearing, on October 2, 2015, AHS became satisfied that its order had been complied with: see Appendix B. [ 50 ] While it is true that the original AHS order had to be complied with until it was set aside, the September 29, 2015 QB order specifically stated that whether that order could be set aside was to be determined at a special chambers hearing.

The September 29, 2015 order was presumably drafted by AHS. [ 51 ] The November 20, 2015 order, also presumably drafted by AHS, did not address para. 11 of the September 29, 2015 order. While it is true that the court’s authority under s. 66.2 of the Act is broader than the authority it has under s. 61 of the Act, a purposive

interpretation of the power authorized in s. 66.2 is that the court’s jurisdiction is limited to issuing orders “necessary” to enforce the Act. The only order which AHS had made against the applicants/respondents was the August 2015 order. What was not made clear to the court on November 20, 2015, but what is now made clear as a result of the January questioning of AHS’s executive officer, is that, as of October 2, 2015, AHS was satisfied that its original order of August, 2015 had been satisfied and that the order could be, and was,

rescinded. [ 52 ] As of October 2, 2015, there was, therefore, no more need for a QB enforcement order: the respondents had complied with the only order which the QB enforcement order was attempting to re-enforce. As indicated earlier, this does not mean that the QB September 29, 2015 order is “set aside”.

Rather, what should be reflected in an order is that, as of October 2, 2015, the original AHS order was rescinded and, as of that date, no QB order was required. [ 53 ] In those circumstances, I then turn to the issue of the appropriate level of costs of the November 20, 2015 hearing in this court. [ 54 ] AHS takes the position that the November, 2015 was necessary to ensure that AHS received an asbestos clearance on the subject property.

It has now become clear that AHS did not require that clearance; rather, by October 2, 2015, in exercising its professional expertise and opinion, AHS confirmed that its earlier order had been satisfied. Part of what the professional staff at AHS knew was the unlikelihood that there would be an asbestos issue at the subject premises because of the age of those premises. That is presumably why, even in the absence of the document which eventually confirmed that there was no asbestos issue, AHS was content with the applicants/respondents’ compliance with its August, 2015 order.

In its 2014 decision in Hryniak , the Supreme Court of Canada issued a call for a culture shift in relation to the civil justice system: where fairness allows, mere form should not add cost to access to justice.

In the circumstances here, the fact that a piece of paper was missing, when the agency – which was clearly not biased in favour of the applicants – knew what that piece of paper would say, should not have led to what was an unnecessary court application. [ 55 ] Now that all of the circumstances are before the court, it is clear that the November 20, 2015 hearing in this court was not necessary: the only order which AHS had made against the applicants/respondents had been satisfied. The applicants/respondents are therefore entitled to party and party i.e. partial indemnity, or tariff, or

Schedule C, costs of that application. [ 56 ] The process by which it has become clear that the AHS order had been satisfied was the questioning of the AHS officer in January, 2016. That process was required to clarify the situation; therefore, the applicants/respondents are entitled to party and party costs of that process. [ 57 ] It is true, of course, that AHS was very late in acknowledging that a QB enforcement order was no longer necessary.

However, that late acknowledgment is not responsible for any material contribution to the applicants/respondents’ brief for this special chambers application or for their preparation for the application: the main work that the applicants had to undertake for this application was the questioning of the AHS officer; the court has already awarded the applicants party and party costs for that examination.

No other costs award to the appellants in relation to the special chambers hearing is therefore appropriate. [ 58 ] The main thrust of the special chambers application was the costs issue; that was the issue on which there was a difference of opinion between the parties as to the applicable principles. Therefore, the only remaining costs issue is the cost of the costs application. While the issue of success on that part of the application may appear to be obvious, the court is not, of course, aware of all of the dealings between the parties with respect to that final costs issue.

Therefore, that issue remains to be determined, as set out below. 4. Costs of the costs application [ 59 ] If the parties are not agreed on the costs of this costs application, I may be spoken to within 30 days of the release of this decision. Heard on the 4 th , 18 th and 19 th days of May, 2016. Dated at the City of Edmonton, Alberta this 31 st day of May, 2016. J.B. Veit J.C.Q.B.A. Appearances:

Erika Norheim, Erika Norheim Professional Corporation for the Respondents Ivan Bernardo, QC, Miller Thomson LLP for the Applicant, Alberta Health Services APPENDIX A: Extracts from the decision of the Public Health Board Although the Order was rescinded, it was not because the controversy had been arbitrated, mediated, adjudicated or settled. It was rescinded because the Appellants completed the work required In the Order and Alberta Health Services' internal process is to rescind an order when the requirements have been met.

An adversarial relationship prevails because the parties continue to disagree about the accuracy of the Order and whether the terms of the Order were a proper exercise of the Executive Officer's professional discretion. In addition, there is the enforcement proceedings at the Court of Queen's Bench which is adversarial. The outcome of the appeal may affect the enforcement proceedings before the Court if, for example, the Board reverses or varies the Order. There may be a practical effect on the rights of the parties by hearing and deciding the appeal.

Moreover, the nature of the Appellants’ business results in many dealings with Alberta Health Services. This is the second appeal in 2015 and the Board was advised that a third appeal will be submitted. These matters are of a recurring nature and brief in duration. One of the reasons these matters are brief in duration and result in the orders being rescinded prior to the Board hearing the merits of an appeal, is the realities of the business world. The Appellants were compelled to comply with the Order whether they disputed it or not because they had to address the concerns of their lender.

Waiting for the appeal to be heard and the Board to make a decision about the merits of the appeal before meeting the demands of a lender or receiving rental revenue is impractical in the business world. This is particularly true when the order directs the Appellants to "immediately undertake and diligently pursue the completion" of the work or when no stay of the order was granted. In this situation, both conditions existed. In these circumstances, the Order might evade review if the Board does not hear the appeal because the Appellants were compelled to comply with the Order prior to the appeal being heard.

It is not a logical conclusion that an Appellant, who for business reasons and because of the terms of the order, must complete the work set out in the order and then be deprived of the opportunity to challenge the accuracy and reasonableness of the Order when they have an ongoing adversarial relationship with Alberta Health Services. The Board finds that in these circumstances there ought to be a record of whether the Order is confirmed, varied or reversed by the Board notwithstanding that it has been rescinded by Alberta Health Services.

Section 62(8) of the Act requires Alberta Health Services to maintain a record of all orders issued and to make them available for inspection by the public. These records ought to include the Board's decision on this appeal and not merely a rescission of the Order as a result of the work being completed as required in the Order. This could potentially be a very different record of the property if the Board varies or reverses the Order. These records would be provided to potential lenders and buyers which affects the Appellants' business interests.

Alberta Health Services submitted that the matter could be heard by the Court of Queen's Bench where enforcement proceedings had been commenced. This is true but the Board has not lost jurisdiction to hear the appeal because enforcement proceedings are before the Court. Both the Appellants and Alberta Health Services may wish to have the Court of Queen's Bench hear the dispute and it may be a more suitable forum for the type of issues raised by the Appellants, such as targeting, unfairness and abuse of power.

However, this does not preclude the Appellants from having the appeal heard by the Board if the Court has not assumed jurisdiction for the appeal of the Order. Finally, the Board can maintain its role as an adjudicator. In hearing this appeal it does not usurp the legislature's role as a law maker or role of the Court of Queen's Bench’s. The Board must also consider if section 5(2) of the Public Health Act precludes it from hearing this appeal. It states: 5(2) A person who (

a) is directly affected by a decision of a regional health authority, and (

b) feels himself or herself aggrieved by the decision may appeal the decision to the Board. The Board finds that it is sufficient to meet the legislative requirements if, when the appeal is commenced and the Notice of Appeal is served to the Board, the person is directly affected by the order or decision. If the Order is rescinded due to compliance with the Order prior to the appeal being heard, the legislation does not preclude the appeal from being heard and decided. The Board may confirm, reverse or vary the Order as it was issued and this would form part of the property's record.

For the above reasons, the Board has decided to hear and decide the appeal of the Order dated August 27, 2015. . . . . The Executive Officer had the authority to inspect the premises which were being used for rental accommodation purposes. The evidence provided by the Appellants indicated the tenants of the premises contacted Alberta Health Services with concerns about the smell of sewage. Alberta Health Services did not, on their own initiative, inspect the premises.

The Appellants had submitted that the media had encouraged the tenants to contact Alberta Health Services and that contributed to them being targeted. The Board finds it irrelevant why the tenants decided to contact Alberta Health Services or who encouraged them to so. The Appellants' position that this contributed to them being targeted by Alberta Health Services is not supported by this evidence. Section 62(1) of the Public Health Act states: Where, after an inspection under

section 59 or 60, the executive officer has reasonable and probable grounds to believe that a nuisance exists in or on the public place or private place that was the subject of the inspection or that the place or the owner of it or any other person is in contravention of this Act or the regulations, the executive officer may issue a written order in accordance with this section. The Board finds that the Executive Officer had the legislative authority to issue an order after inspecting the premises.

The question remains if this particular Order, declaring the property unfit for human habitation and requiring air quality testing, was a reasonable exercise of professional discretion given the circumstances that existed when the Order was issued. The issuance of an order is discretionary pursuant to section 62(1) of the Public Health Act.

Section 62( 4) of the Act sets out several options available for the Executive Officer to include in an order.

It states: An order may include, but is not limited to, provisions for the following: a. requiring the vacating of the place or any part of it; b. declaring the place or any part of it to be unfit for human habitation; c. requiring the closure of the place or any part of it; d. requiring the doing of work specified in the order, on or about the place; e. requiring the removal from the place or the vicinity of the place of anything that the order states causes a nuisance; f. requiring the destruction of anything specified in the order; g. prohibiting or regulating the selling, offering for sale, supplying, distributing, displaying, manufacturing, preparing, preserving, processing, packaging, serving, storing, transporting or handling of any food or thing in, on, to or from the place.

It is the responsibility of the Executive Officer to exercise his or her professional discretion, taking into account all relevant information. In the decision making process the relevant information gathered must be weighed according to its importance and support the decision to issue the order with the particular provisions. The Board found there were four serious contraventions set out in the Order: evidence of a sewer backup in the basement; low head clearance in the basement; a basement bedroom window that did not meet egress requirements; and water infiltration in the basement bathroom ceiling.

These contraventions support a finding that the premises were unfit for human habitation.

The primary objective of the Minimum Housing and Health Standards is to protect and promote the health and well-being of occupants of rental housing premises. It was reasonable to order the tenants vacate the premises under these circumstances as the conditions potentially posed a health risk to the tenants. Although the Appellants provided evidence that there was no sewage backup it was not unreasonable, given the odour and the liquid pooled in the basement, for the Executive Officer to suspect a sewage leak.

The Board carefully reviewed the orders provided by the Appellants that were intended to demonstrate that the Appellants were being treated more harshly than others by finding the property unfit for human habitation.

There were three orders summarized as follows: Tab* Date Issues identified in order Order issued and work required 5 Sept 4, 2015 • Floor covering disrepair • Vermin infestation • Bath deficiencies • 1 egress window with improper hinge • Low head room clearance Outstanding Violation Report required repairs to deficiencies 6 May 29, 2015 • Walls unfinished • Window broken • Ceiling water damage • Floor covering in disrepair • Sewage gas smell Closed for Tenant Accommodation Purposes/order to Vacate 6 January 20, 2015 • Sewer backup and contamination • Drain pipe leaking Closed for Tenant Accommodation Purposes/order to Vacate *Tab number in Binder of Evidence provided by Appellants None of the sample orders included the same four main concerns found at the Appellants' premises: evidence of a sewer backup in the basement; low head clearance in the basement; a basement bedroom window that did not meet egress requirements; and water infiltration in the basement bathroom ceiling.

The sample orders had fewer serious contraventions and yet in two of the three sample orders, the premises were closed for tenant purposes and the tenants ordered to vacate. The Board finds that the unfit for human habitation designation was within a reasonable scope of professional discretion and was not out of the ordinary when compared to the sample orders provided by the Appellants.

Regarding the requirement for asbestos and mould testing (environmental air quality analyses), the Board carefully reviewed the orders provided by the Appellants intended to demonstrate they were being treated more harshly than other property owners by requiring mould and asbestos testing. There were three orders summarized as follows: Tab* Date Issues identified in order Order issued and work required 12 January 16, 2015 • Foundation issues • Roof line dropped • Water infiltration/damage • No hand rail • Sewer stack leak • Gas stove not working

Order including finding of unfit for human habitation and order to vacate Engineer report on entire building 12 April 3, 2015 • Bed bugs • Broken window • Water damage in kitchen ceiling • Floor around tub not sealed • Kitchen wall in disrepair • Floor transition strip missing Closed for Tenant Accommodation Purposes/order to vacate Repair deficiencies including Retaining licensed pest control operator 17 June 29, 2015 • Mould in bathroom ceiling and surrounding tub • Mould on window frame Closed for Tenant Purposes order to Vacate Remove mould and material surrounding mould Clean and dry areas and contact Executive Officer for approval and inspection prior to proceeding to repair areas *Tab number in Binder of Evidence provided by Appellants There was also a page in tab 11 of the Appellants' binder of evidence that listed 30 Edmonton properties where orders had been issued by Alberta Health Services.

The information included the year the properties were built. Except for one, they were built prior to 1970. Only three buildings required air quality analyses and those three were owned by the Appellants. The Board found that if the only determining factor for requiring air quality testing was the age of the building then it did appear that the Appellants were being treated differently than other owners.

However, the requirement for testing in this situation was, on a balance of probabilities, for several reasons: the age of the building; the existence of standing liquid in the basement; and renovations to correct the ceiling height would disturb materials. The totality of these conditions was sufficient for the Executive Officer to be concerned about mould and asbestos contamination. The requirement for environmental air quality analyses was reasonable in the circumstances.

In addition, none of the sample orders provided by the Appellants contained these three particular reasons or risk factors for mould and asbestos and therefore do not support the Appellants' position that they were being treated more harshly than other property owners in the circumstances. The Board also reviewed the Appellants' email correspondence submitted to support their claim that Alberta Health Services did not have a consistent protocol for requiring environmental air quality analyses.

It appears this is an accurate claim but the absence of a standard protocol did not result in an unreasonable requirement for air quality testing in these circumstances. There were two procedural issues the Board addressed during the hearing. The first was the decision to hear the appeal prior to deciding Alberta Health Services' application to dismiss the appeal because it was moot. Alberta Health Services did not submit the preliminary application until one day prior to the hearing, on October 19, 2015, but the Order had been rescinded on October 2, 2015.

By October 19, 2015, the Appellants would have organized their schedules to accommodate the hearing as had the Board members. Potentially hearing two separate matters, the preliminary application and the appeal hearing on two separate days would be wasteful of the Board's resources and those of both parties. Had Alberta Health Services submitted the preliminary application earlier, a telephone hearing could have been arranged in advance for the preliminary application and decided by the Board prior to the scheduled appeal hearing.

Both parties had been advised to be prepared for the preliminary application and the appeal hearing on the same day. There was no disadvantage or prejudice to Alberta Health Services in hearing the appeal prior to the preliminary application being decided. The same cannot be said for the Appellants who had less than a day to prepare for the preliminary application submitted by Alberta Health Services one day prior to the scheduled appeal hearing.

The second procedural issue was regarding the Appellants' request to submit into evidence the transcripts for the cross examination of the Executive Officer's Affidavit supporting the enforcement action commenced at the Court of Queen's Bench. Alberta Health Services objected stating the Appellants' legal counsel was subject to an implied undertaking not to use the transcripts for a collateral purpose and the appeal hearing was a collateral purpose. The Appellants disagreed submitting that the transcripts were in the public record.

The Board decided that if the Appellants wished to adjourn the hearing to have sufficient time to provide proof there would not be a

breach of an implied undertaking on the part of their legal counsel retained for the enforcement proceedings, the Board would grant the adjournment. The Appellants decided to proceed with the hearing and not adjourn the matter to provide the requested proof. Decision For the above reasons, the Board confirms the Order of an Executive Officer Unfit for Human Habitation Order to Vacate dated August 27, 2015.

APPENDIX B: Extract from questioning of AHS official on the characterization of the rescinding order of October2, 2015 Q And the very beginning of that document, under, Owners' Responsibilities and conditions For Rescinding an Unfit Order, the third paragraph [sic] in the -- sorry -- the third sentence in the first paragraph reads: (as read) Further the environmental health officer- - A M-hm.

Q (as read) -- EHO, also designated as executive officers in the Province of Alberta, will not rescind the originating order until he/she is satisfied that the following are rectified: all conditions contained in the order, all conditions that are violations of the Public Health Act, regulations or standards whether contained in the order or not, and all conditions that are violations of other Acts, regulations/or codes that may affect the health and safety of occupants. Were you aware of that provision in the conditions for reoccupancy? A Yes.

Q And likewise, were you aware of the wording on page -- at the bottom of page 3 of the same document stating: (as read) If the on-site inspection confirms that all conditions have been rectified and the environmental health officer is satisfied the premises is safe to be reoccupied, the owner will provide with the - - owner will be provided with a written notice rescinding the order declaring the premises unfit for human habitation? A Yes. Q Okay.

Would it be fair to say that you have been instructed that you do not rescind an order unless you are satisfied that all concerns under the Pub1ic Hea1th Act have been addressed? A Correct. Q Okay. And all of your concerns pertaining to the Pub1ic Hea1th Act, concerns with respect to the property, were indeed addressed to your satisfaction prior to the rescind notice having been issued in this case? A Yes, the concerns under the -- itemized in the unfit-for-human-habitation order, yes. Q Okay.

And you would not have issued the rescind notice had you had any outstanding concerns about the property under the Public Health Act, correct? A Correct. Under the -- that the items outlined in the unfit-for-human-habitation order were satisfied, yes. Q Okay. Now, you issued the rescind notice that was produced as Exhibit 'A' to the Affidavit of Shairose Esmail? A Yes. Q Was it your decision to rescind the unfit-for-human-habitation order? A Yes. Q Did you need to consult anybody before making that decision? A Phi Phan was on site with me. Q Okay. A But it was collectively our decision.

I -- I'm the author; so I have to be confident that – that it's -- that it can be rescinded. Q Okay. And you made the decision to rescind because you were satisfied that all of the issues set out in your August 27th, 2015, order had been satisfied.

A Correct. Q And, when you made the order, on August 27th, 2015 , you set out all of the concerns you had with the property based on your inspections up to that time, correct? A Correct. Q Now, I understand that a physical copy of this rescind notice marked as Exhibit 'A' to the Affidavit of Shairose Esmail -- A M-hm. Q -- didn’t actually come into the possession of the respondents until well after October 2nd. But do you agree that they were told, on October 2nd, 2015, that the order was rescinded? A Yes, they were given a verbal rescind - - Q Okay. A -- yes.

Q And were they also told, on October 2nd, 2015, that they had permission to reoccupy the property? A Yes. Q And, therefore, as at October 2nd, 2015, Alberta Health Services fully expected and anticipated that the premises would be occupied. A Yes. APPENDIX C 1. AHS v Darren Kennaway and Shauna Brown - Order of Justice Greckol (June 2, 2011) 2. AHS v Todd Hummelle and North East Financial Corporation Inc. - Order of Justice Manderscheid (February 15, 2012) 3. AHS v Daniel James Keichinger and Laura June Keichinger - Order of Justice Verville (March 13, 2012) 4.

AHS v Ascension Enojo and Shirley Zamora - Order of Justice Sulatycky (May 14, 2012) 5. AHS v Mike Lieu- Order of Justice Yamauchi (June 8, 2012) 6. AHS v Maury Shapka - Order of Justice Macklin (June 13, 2012) 7. AHS v Robert Allan Macpherson - Order of Justice Hughes (October 15, 2012) 8. AHS v Jose Miguel Rojas - Order of Justice Germain (December 13, 2012) 9. AHS v Sung (John) Yu, Changseak (Tiger) Yu and 1561097 Alberta Ltd. - Order of Justice Belzil (December 18, 2012) 10. AHS v Brian Chisan and James Wilson- Order of Justice Kenny (July 4, 2013)

11. AHS v Albert Wong and Pansy Tsang-Order of Justice Martin (February 20, 2014) 12. AHS v Ken Nichol and Diane Nichol- Order of Justice Shelley (July 22, 2014) 13. AHS v Albert Wong and Pansy Tang (ABCA) - Order of Justices Watson, Slatter, and Rowbotham (June 8, 2015) 14. AHS v Ken Nichol and Diane Nichol - Order of Justice Clackson (September 23, 2015) 15. AHS v Pamela Lyster- Order of Justice Moreau (September 29, 2015) 16. AHS v Harvest Garden Restaurant and Thieu Cung - Order of Justice Verville (October 6, 2015) 17. AHS v Chantelle St.

Martin, Travis Chciuk and Royal Living Industries - Order of Justice Germain (October 8, 2015) 18. AHS v Michelle Breum- Order of Justice Hopkins (February 17, 2016)