Optimax Developments Ltd v Calgary (City), 2016 ABQB 70

Court of Queen ’ s Bench of Alberta Citation: Optimax Developments Ltd v Calgary (City), 2016 ABQB 70 Date: 20160203 Docket: 1401 09537 Registry: Calgary Between: Optimax Developments Ltd. Applicant - and - City of Calgary and City of Calgary Assessment Review Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M .David. Gates _______________________________________________________ Introduction and Overview [ 1 ] Optimax is the registered owner of property in Calgary located at 8458 - 23 Avenue NE (“the property”).

Optimax seeks leave to appeal a decision of the City of Calgary Assessment Review Board (“the Review Board”) dated August 7, 2014, confirming the City of Calgary’s (“the City”) 2014 amended assessment in relation to the property. [ 2 ] The leave application was heard by me on April 28, 2015, and then continued on September 10, 2015. At the outset of the

September 10, 2015 continuation, at the request of the City and the Review Board, I granted leave to appeal, and allowed the appeal ofOptimax and remitted the matter back to the Review Board for a new hearing. [3] I reserved my decision on costs after hearing the oral submissions of all parties. These are my reasons for decision. Facts [4] On January 3, 2014, the City issued a 2014 Property Assessment Notice in the amount of $891,000 in relation to the property(“the Assessment”).

An amended Notice issued on January 30, 2014, assessed the property at $1,720,000 (“the Amended Assessment”).The property consists of three buildings located on a 1.84 acre parcel of land located near Stoney Trail NE. [5] On March 25, 2014, Optimax filed a complaint with the Review Board. [6] On May 16, 2014, Optimax, asked the City to provide information pursuant to ss. 299 and 300 of the Municipal GovernmentAct (“MGA”) relative to both the Assessment and the Amended Assessment.

The City responded on May 27, 2014, though did not offeran explanation as to the basis for the Amended Assessment. [7] On June 2, 2014, Optimax disclosed the evidence it relied upon in accordance with a directive issued by the Review Board.As such, it relied on the information provided by the City on May 27, 2014. Subsequently, on June 30, 2014, the City provided newevidence to Optimax not previously disclosed on May 27, 2014. Specifically, the City disclosed a 1989 Alberta Local Authorities BoardOrder No. 19137, as amended by a subsequent Order-in-Council.

On the strength of this 1989 Order, the City took the position thatwhen the property was annexed to the City from Rocky View County, it was valued as an Calgary property and, as such, subject tohigher taxes. The City advised that this increased tax level should have been reflected as of the 2013 tax year in light of the fact that theland had been re-designated pursuant to the City’s Land Use Bylaw on February 6, 2012. [8] Over the objection of Optimax, the Review Board determined that the new information included in the City’s initialdisclosure was admissible in the proceedings.

The Review Board allowed the evidence notwithstanding s. 9(4) of the Matters Relating toAssessment Complaints Regulations (“MRAC”). Furthermore, the Review Board declined to follow the decision of the Alberta Court ofAppeal in Canadian Natural Resources Limited v Wood Buffalo (Regional Municipality), 2014 ABCA 195, (“CNRL”). In the result,the Review Board confirmed the Amended Assessment by way of decision dated August 7, 2014. [9] Pursuant to s. 470 of the MGA, Optimax seeks leave to appeal the decision of the Review Board. [10] This matter was initially set down for hearing on April 28, 2015.

No one appeared for the Review Board at that time, thoughwritten materials were filed on April 26, 2015 and entered on April 27, 2015. Following oral arguments by both Optimax and the City,the matter was adjourned to a future date for continuation so as to permit the attendance of counsel for the Review Board. Counsel forthe Review Board was directed to attend the continuation. [11] The matter continued on September 10, 2015.

At the outset, counsel for the City conceded that the Applicant should begranted leave to appeal and, moreover, that the City was consenting to the appeal and an order remitting the matter back to the ReviewBoard for a new hearing, pursuant to s. 470. 1 of the MGA. Further, the City conceded that the new hearing before the Review Boardmay not include the evidence disclosed by the City on June 30, 2014. [12] Counsel for the Review Board consented to the process proposed by the City.

The Position of the Parties - Optimax [13] Optimax seeks enhanced costs from the City, either full indemnity costs or, alternatively, something greater than standardparty-and-party costs. At one point during her oral submissions, counsel for the Applicant proposed that costs be determined on the basisof double column 5 for two half day court appearances, together with reasonable disbursements. [14] Optimax contends that counsel for the City misdirected the Review Board in its reliance on the trial decision in CNRLnotwithstanding that the decision had been reversed by the Court of Appeal.

According to Optimax, the City continued to attempt todistinguish the Court of Appeal’s decision in CNRL in both its written submissions and oral argument before this court during the April 28th appearance. Optimax says that the City has needlessly forced it to pursue this issue before the Review Board and the Court, asevidenced by its concession that leave to appeal should be granted and the appeal itself allowed. [15] Optimax relies on the decision of Hutchinson J. in Jackson v. Trimac Industries Ltd., (AB KB), [1993] 4W.W.R. 670 (Alta. Q.B.), as well as the decision of Mason J. in City of Calgary v.

Alberta (Minister of Municipal Affairs), 2008 ABQB433. Optimax says that there was no serious issue to be tried under the circumstances.

The Applicant was forced to pursue protractedlegal proceedings against the City notwithstanding that the law on the relevant issue was definitively set out in the Court of Appeal’sdecision in CNRL. [16] Optimax also seeks costs from the Review Board, alleging that counsel for the Review Board engaged in “aggressiverepresentation” in making representations and taking positions before the Board that were contrary to those advanced by the Applicant.According to Optimax, counsel for the Review Board ought to have simply provided a neutral

summary of the law to the decision-maker. Specifically, Optimax contends that counsel for the Review Board improperly advanced the position before the Board that theappropriate standard of review is one of reasonableness, notwithstanding the decision of Slater J.A. in Capilano, which holds that theapplicable standard of review is one of correctness. (see para. 35 of Review Board’s brief) Specifically, Optimax seeks costs against the Review Board calculated under Column 1 for both the April 28th and September 10th court appearances.

The Position of the Parties – The City [ 17 ] The position of the City is that costs should be awarded for the April 28 th hearing in the amount of $1,500 plus disbursements (Column 1). The City says that it acted reasonably in attempting to resolve this matter following the April 28, 2015 court appearance, as evidenced by its correspondence to the Applicant offering to consent to the leave application and to an order remitting the matter back to the Review Board for a new hearing.

As part of this offer, the City said that it would pay party/party costs. [ 18 ] The City also says that the factors identified in Jackson as warranting costs beyond party-party costs do not exist here. In particular, the City contends that it has in no way delayed the litigation. Rather, the City says that it took steps over the summer to try and shorten the proceedings.

Likewise, the City points to the fact that this is public, as opposed to private litigation and any award of costs will come from the public purse. [ 19 ] With respect to the CNRL decision, the City says that it in no way sought to withhold from the Review Board the existence of the Court of Appeal’s decision in that case. Rather, before the Review Board, the City sought to distinguish the case from the within matter, a position ultimately accepted by the Review Board.

The Position of the Parties – The Review Board [ 20 ] The Review Board submits that costs ought not to be awarded against it in these circumstances. As such, the Review Board relies on Sihota v. Edmonton (City), [2013] A.J. No. 286 , and says that the law is well settled that, absent misconduct or extraordinary circumstances, the involvement of an administrative tribunal in proceedings brought to review its decisions does not attract either the payment or receipt of costs.

The Law [ 21 ] The law relating to the awarding of costs at the conclusion of legal proceedings has been the subject of extensive discussion in the various authorities referred to by the parties, as well as numerous others. [ 22 ] Generally, costs are awarded at the discretion of the court: Court of Queen’s Bench Act , RSA 2000, c. C-31, s. 21. The power to award costs by one party to another party is set out in Rule 10.31(1) of the Alberta Rules of Court .

The factors to be considered in making an award of costs are set out in Rule 10.33 as follows: 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) the party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 23 ] Jerke J discussed the awarding of solicitor-client costs in instances of misconduct in Enoch Cree Nation v. Prue , 2014 ABQB 455 . (See also College of Physicians & Surgeons (Alberta) v H(J) , 2009 ABQB 48 at paras 4-23 .) At para. 9 in Enoch Cree , Jerke J stated: Solicitor-client costs are appropriate where misconduct occurs during a legal proceeding: Polar Ice Express Inc v Arctic Glacier Inc , 2009 ABCA 20 . There is much discretion in the Court concerning the awarding of full indemnity costs or solicitor-client costs on the

basis of party misconduct, however such awards are reserved for rare and exceptional or unusual circumstances: Powermax Energy Inc v. Argonauts Group Ltd, 2003 ABQB 543, 16 Alta LR (4th) 90, Jackson v. Trimac Industries Ltd (1993), (AB KB),138 AR 161, 8 Alta LR (3d) 403 (ABQB), affirmed on costs, 1994 ABCA 199 , 155 AR 42, 20 Alta LR (3d) 117 (ABCA). [24] While the decision of Hutchinson J. in Jackson, predates the most recent Rules of Court, I am satisfied that the comprehensivestatement of principles contained therein remains valid. I would summarize those principles as follows:

a) a trial judge has a wide discretion when awarding costs;

b) generally speaking, costs follow the event, i.e. the successful party is entitled to be paid a portion of his or her costs in pursuing theclaim;

c) the successful party is normally entitled to party-and-party costs. “It is not intended that the successful party receive fullindemnification of those fees and disbursements which it would be charged by its counsel” (per McDonald J. in Reese v. Alberta, (AB KB), 5 Alta. L.R. (3d) 40 (Q.B.) at para. 7;

d) costs on a solicitor-client basis are to be awarded in a “rare and most exceptional case” (per Freedman J.A. in Evaskow v. B.B.F.(1969), (MB CA), 71 W.W.R. 565 (Man. C.A.), at p. 570;

e) the practice in Alberta is that the court will order the unsuccessful party to pay a multiple of the fees set out in the applicableschedule when the case is “of considerable magnitude and complexity” (per Hutchinson J. in Jackson, at para. 13). Even then, theobjective is not to provide full indemnity; f) “Departure from the general rule of party-and-party costs requires extreme caution and should occur only in rare and exceptionalcircumstances.” (per Veit J. in Max Sonnenberg Inc. v. Stewart, Smith (Canada) Ltd., [1987] 2 W.W.R. 78 (Alta. Q.B.);

g) costs and damages should not be confused. Costs deal with the conduct of the litigation, whereas damages deal with the conduct ofthe parties that give rise to the action. (per Lutz J. in Olson v. New Home Certification Program of Alta. (1986), (ABKB), 44 Alta. L.R. (2d) 207 (Q.B.) [25] Hutchinson J. goes on, at para. 28, to provide examples of the types of cases which have been found to involve the type of rareand exceptional circumstances justifying an award of solicitor-client costs.

I have included only the first five examples provided byHutchinson J. as I have concluded that the other four are of no relevance to the within matter: (1) circumstances constituting blameworthiness in the conduct of the litigation by that party (Reese); (2) cases in which justice can only be done by a complete indemnification for costs (Foulis v. Robinson, (ON CA),21 O.R. (2d) 769 (Ont. C.A.); (3) where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issue offact or law which required lengthy and/or expensive proceedings.

Similarly, where one party was “contemptuous” of the aggrieved partyin forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his (Sonnenberg); (4) an attempt to deceive the court and defeat justice, a requirement to prove facts that should have been admitted, unnecessaryadjournments, concealing material documents from the plaintiffs and failing to produce material documents in a timely fashion (Olson); (5) where the defendants are guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond ordinary costs (Dusik v.

Newton (1984), (BC SC), 51 B.C.L.R. 217 (S.C.)); [26] While I do not read the cases dealing with costs as purporting to exhaustively describe the circumstances in which an award ofsolicitor-client costs would be appropriate, counsel for Optimax has not referred me to any authority that is close to the set ofcircumstances here under consideration. [27] I have also considered the decision of Mason J in The City of Calgary v. Her Majesty the Queen In Right of Alberta, asrepresented by the Minister of Municipal Affairs, 2008 ABQB 433.

In that instance, both parties filed extensive briefs seeking theawarding of solicitor-client costs. Briefly stated, the case involved a claim by the City of Calgary that a series of Ministerial Guidelinesand Orders in relation to assessment and taxation during the period from 1999 to 2006 were invalid. In the face of the City’s legal action,as well as other similar legal proceedings brought by other parties, the Government of Alberta enacted legislation which took away allcauses of action related to the Minister’s Guidelines.

While accepting the City’s position that it was entitled to costs in the face oflegislation that took away its cause of action, Mason J rejected the argument that the circumstances justified an award of costs on asolicitor-client basis. Referring to the criteria set out in Jackson, he repeated the oft-cited proposition that solicitor-client costs are“intended to be reserved for exceptional circumstances.” (at para. 40) Further, he rejected the contention that the Minister’s conduct inamending the legislation amounted to conduct which should attract this type of costs award.

Nevertheless, he did recognize that theeffect of Alberta’s actions created a “harsh result” for the City and awarded lump sum costs representing 50% of the City’s solicitor-client bill of costs. Analysis [28] At the heart of the position advanced by Optimax is the contention that the City failed to follow the decision of the Court ofAppeal in CNRL in the arguments it advanced before the Review Board and before this court on April 28, 2015. [29] In CNRL, Verville J. considered a number of issues, including whether the Composite Assessment Review Board (CARB) of

the Regional Municipality of Wood Buffalo, had erred in finding that the Municipality had complied with CNRL’s s. 299 MGA obligations to provide the taxpayer with “sufficient information” to show how the assessor prepared the property assessment. [ 30 ] In that instance, CNRL, wrote to the Municipality requesting information as to the basis of an amended assessment issued by Wood Buffalo. The Municipality responded and provided information to CNRL.

However, at the subsequent CARB hearing, the Municipality filed, over the objection of CNRL, an undisclosed report created after the Municipality had responded to the s. 299 request. CNRL argued that the Municipality should be precluded from relying on the report in accordance with s. 9(4) of Matters Relating to Assessment Complaints Regulations . [ 31 ] The CARB declined to exclude the report for the following reasons:

a) the Municipality provided all of the documentation it had in its possession at the time CNRL made its s. 299 request;

b) CNRL did not seek any further explanation from the Municipality after receiving the disclosure documentations; and

c) CNRL had not requested a Ministerial Complaints Review (pursuant to s. 27.6 Matters Relating to Assessment and Taxation Regulation ) [ 32 ] On appeal to the Court of Queen’s Bench, Verville J concluded that the reasonableness standard applied. He declined to engage in an “exhaustive standard of review analysis”, relying on Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 57 and 62 , and Ruppert v.

Calgary Assessment Review Board and City of Calgary – November 18, 2010) Applying the reasonableness standard, he concluded that the CARB’s decision that the Municipality had complied with s. 299 was not unreasonable and fell within a range of acceptable possible outcomes. [ 33 ] The decision was reversed on appeal ( 2014 ABCA 195 ), the Court of Appeal concluding, amongst other things, that there is a continuing obligation on a municipality to provide “sufficient information”, including information that comes into its possession following its response to a s. 299 request.

Berger J.A. for the court stated (at para. 23): The language of s. 9(4) of the MRAC precludes the CARB from hearing any evidence “relating to information that was requested by a complainant” [emphasis added] that the Municipality failed to provide under s. 199. As I see it, the legislative scheme applicable to the case at bar is analogous to the federal income tax regime.

It reflects a reasonable policy choice on the part of the Legislature, prohibiting a tax authority from assessing tax on one basis and defending it on another. [ 34 ] The Court went on to state (at para. 26): I reject the Respondent’s contention that the taxpayer’s request for information is to be parsed and narrowly read. That defeats the disclosure obligation and erects an impediment to the taxpayer’s ability to determine whether it has a basis for appealing its tax assessment. I reject the proposition that it is enough for the Municipality to simply go through the motions. I see no merit in an

interpretation of s. 299 which merely requires the disclosure of information that might ultimately be found to be unreliable. It is, with respect, unreasonable to conclude otherwise. [ 35 ] The Court of Appeal’s decision assumed, without deciding, that Verville J had correctly applied the reasonableness standard to his review of the decision of the review board. Subsequently, in Edmonton (Capilano Shopping Centres Limited v.

Edmonton (City) 2015 ABCA 85 , the Court of Appeal in Reasons for Judgment Reserved concluded that the correctness standard of review applied to decisions of assessment review boards when interpreting the provisions of the MGA . On September 3, 2015, the Supreme Court granted leave to appeal in Capilano . [ 36 ] In this instance, the Court of Appeal’s decision in CNRL was discussed in the August 7, 2014 written decision of the Review Board.

Before the Board, the City argued that CNRL was based on the fact that the municipality in that instance had unfairly attempted to justify the assessment on a different basis than the one set out in the s. 299 disclosure response. The City took the position that it would not be practical to provide the same level of detail in responding to a s. 299 request as would be provided during the course of a hearing. As such, the City contended that the evidence used to prepare an assessment is not the same as evidence required to defend that same assessment.

In setting out the City’s position on the issue, the Board referred to the Chambers judge’s decision in CNRL , presumably at the urgings of the City. [ 37 ] Optimax took the position before the Review Board that the detailed information relied on by the City before the Board was new information that could have been provided in conjunction with the response to the s. 299 request. As such, Optimax argued that the information should not be considered by the Board pursuant to s. 9(4) of MRAC . [ 38 ] In its decision, the Board distinguished the within matter from the Court of Appeal’s decision in CNRL .

As such, it found (at para 11): CNRL does not state that no new evidence beyond that provided in this Sec. 299 response may be produced at a hearing. If that had been the intent of the legislation, it would have so stated and not provided for rules of disclosure in Sec. 8 of MRAC. In the opinion of the Board, a property assessment scenario analogous to CNRL would be one where the Sec. 299 response indicated the assessment was prepared using direct comparables but the Respondent Disclosure defended the assessment on an income approach.

The Board does not agree that CNRL states, for this scenario, that the Respondent may not produce additional sales comparables in the Disclosure to further support an assessed valued based on direct comparables. [ 39 ] The Board went on (at para. 13) to find that it was “unfortunate” that the City did not provide the specific calculation of the specific improvement, but concluded that the omission did not preclude the City from including this information in the materials submitted before the Board. [ 40 ] In my view, the Court of Appeal’s decision provided important guidance and direction relative to the disclosure obligations

resting on a municipality when responding to a s. 299 request. While all decision of all decision-making bodies are necessarily based onthe particular set of facts that form the underpinnings for the decision, statements of principle enunciated by appellate courts are bindingon courts and tribunals in the jurisdiction of that appellate court. Having said that, I recognize that the continuing evolution of thecommon law is a process of continual refinement of legal principles applied to new sets of facts. [41] The principles articulated by Berger J.A. in this instance were of general application in the proper

interpretation andapplication of the disclosure regime set out in the MGA. I am troubled by the City’s attempt to limit the application of the decision in theposition it advanced before the Review Board and this court on April 28, 2015. I would simply add that the City’s approach to the Courtof Appeal’s decision seems somewhat consistent with the very approach described by Berger JA in rejecting the City’s contention in thatinstance that the taxpayer’s request “is to be parsed and narrowly read”.

In my view, the City has “parsed and narrowly read the Court ofAppeals’ decision in the position it adopted in this particular matter. [42] I acknowledge that the City’s invitation to grant leave to appeal, allow the appeal, and remit the matter back to the ReviewBoard, reflects an openness to reconsider its previous legal position. I take that into consideration in assessing what costs should properlybe awarded in this instance the fact that the City made efforts between April and September 2015 to try and resolve the matter withoutthe necessity of a further court appearance.

However, I also take into consideration that the City’s resolution offer required Optimax toagree to party-and-party costs and forgo an opportunity to seek anything greater. Furthermore, the City’s offer only came following fullargument of Optimax’s leave application on April 28, 2015, during which the City maintained throughout that CNRL did not apply.

The September 10th continuation was set solely for the purpose of hearing submissions by the Review Board. [43] As previously indicated, I am troubled by the City’s seeming reluctance to follow the clear statement of principle set forth inCNRL relative to the proper

interpretation of the disclosure requirements set out in the MGA. However, I do not view this is not one ofthose rare or exceptional cases where it is appropriate to award solicitor-client costs. As such, I am not prepared to go so far as to find theCity guilty of misconduct of the sort described in the various decisions referred to earlier in these reasons. [44] Nevertheless, I do find that the conduct of the City created an unnecessary burden for the taxpayer in this instance in forcingOptimax to file and argue an application for leave to appeal in this court.

Such conduct while falling short of actual misconduct,demonstrated a somewhat contemptuous attitude on the part of the City towards this taxpayer. I would adopt the words of Mason J inThe City of Calgary v. Her Majesty the Queen in Right of Alberta, as represented by the Minister of Municipal Affairs, in describingthe actions of the City as creating a “harsh result” for this taxpayer. I would also adopt his approach to the issue of costs and awardOptimax lump sum costs representing 50% of its solicitor-client bill of costs.

Awarding of Costs Against an Administrative Tribunal [45] In seeking costs against the Review Board, Optimax relies on the decision of McIntyre J. in Court v. Alberta (EnvironmentalAppeal Board) (2003), Alta. L.R. (2d) 74. After reviewing the legal literature on the subject, McIntyre J concludes that while costs aregenerally not awarded to or against an administrative tribunal, there are circumstances in which a costs award is warranted.

He citesBrown and Evans in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 2003) at para. 5:2560: However, costs have been awarded against an administrative tribunal where it cast itself in an adversarial role, acted capriciously inignoring a clear legal duty, made a questionable exercise of state power, effectively split the case so as to generate unnecessary litigation,manifested a notable lack of diligence, or was the initiator of the litigation in question, or where bias among tribunal members hadnecessitated a new hearing [46] McIntyre J. also refers to the Ontario decision in R. v.

Labour Relations Board (Ont), (ON SC), [1969] 2O.R. 116 at 120; aff’d. (ON CA), [1969] 2 O.R. 501 (C.A.) and Stevenson and Cote’s Civil Procedure Encyclopedia,(Edmonton: Juriliber, 2003, and concludes that counsel for an administrative tribunal typically confines his/her submissions to the matterof the board’s jurisdiction and takes no position, or offers any submissions, on the merits of its earlier decision.

He further concludes thatthe awarding of costs against an administrative tribunal should be approached with caution. [47] I accept the submission of the Review Board that an administrative tribunal involved in a review of one of its decisionsgenerally neither pays nor receives costs associated with that review process: Sihota v. Edmonton (City), 2013 ABCA 125. The Court ofAppeal in Sihota confirmed that this is the general rule, though indicated that the rule might not apply in instances of misconduct orother extraordinary circumstances.

The Court explained the rationale behind the rule as follows (at para. 4): The general rule is that (absent misconduct or extraordinary circumstances) an administrative tribunal that is involved in proceedings toreview its decisions neither receives no pays costs: Brian Neil Friesen Dental Corp. v. Director of Companies (Manitoba), 2011MBCA 71 at paras. 28-39, 270 Man R (2d) 19; Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244 at paras. 47-8, 43 BCLR (4th) 65; Lor-Al Spring Ltd. V.

Ponoka (County) Subdivision and Development Appeal Board, 2001 ABCA123 at para. 31, 281 AR 305; Business Watch International Inc. v. Alberta (Information and Privacy Commissioner), 2009 ABQB79 at paras 12-8[sic], 478 AR 308. This general costs rule is premised on the assumption that the tribunal is a necessary and unavoidable party to the proceedings, and thatthe tribunal generally does not take a position on the outcome of the appeal. Generally speaking, the tribunal will only speak to itsjurisdiction, to the standard of review, or to explain the record and the proceedings before it: Leon’s Furniture Ltd. V.

Alberta (Information and Privacy Commissioner), 2011 ABCA 94, at paras. 16-29, 502 AR 110, 45 Alta LR (5th)1.

The involvement of the tribunal in a review of its own decisions is limited in order to maintain the neutrality of the tribunal. A qualification to the rule has developed where it is necessary to provide the reviewing court with the proper adversarial context. Where there is no other party speaking to the issues, the tribunal is allowed to expand the scope of its submissions, although it should still ensure that the tone of its submissions is consistent with its role. [ 48 ] I have carefully reviewed the written argument submitted by the Review Board.

In my view, much of the materials submitted falls into the category of neutral, explanatory materials relating to the jurisdiction and various procedures followed by the Board. However, the portion of the Board’s submissions dealing with the statutory right of appeal is, in my view, somewhat questionable. The nature and scope of the right to launch an appeal from a decision of the Review Board is obviously not an issue that ever arises in the normal course of the work of the Board. The Review Board does not exercise any type of appellate function relative to its own decisions.

While I question the inclusion of this material in the submissions filed by the Review Board, I would observe that this portion of the Review Board’s submissions are also expressed in very neutral terms. Nevertheless, I would observe that these sort of submissions would likely more logically flow from the City, the actual party to the dispute who as “respondent” takes on the role of “defender” of the decisions made. [ 49 ] I accept Optimax’s submission that portions of the Review Board’s materials, notably those dealing with the issue of standard of review, are far from neutral.

Rather, the materials advocate the “correctness” of the decision reached by the Review Board on this key issue in dispute. Moreover, the Review Board seeks to restrict or limit the decision of the Court of Appeal in Capilano , and thereby places itself in an adversarial position vis a vis Optimax.

In other words, Optimax had two different adversaries – the City and the Review Board – to contend with in seeking leave to appeal the decision. [ 50 ] During oral argument on September 10, 2015, counsel for the Review Board appeared to attach considerable significance to the fact that leave had been granted in Capilano . With respect, I am not persuaded that this is, indeed, particularly significant to the issue before me for consideration. [ 51 ] First of all, the Court of Appeal’s decision in Capilano is binding until set aside. As such, it is binding on all courts and tribunals in Alberta.

In my view, the Review Board strayed beyond it’s proper role in advocating a position relative to the applicable standard of review and, in particular, advancing arguments seeking to distinguish and/or limit the Court of Appeal’s decision in Capilano . [ 52 ] In considering Optimax’s request for costs against the Review Board, I also take into consideration the fact that the Review Board failed to attend the April 28, 2015 hearing. This led to the requirement to continue the proceedings on September 10, 2015 solely for the purpose of receiving the Review Board’s oral submissions.

This was an unnecessary expansion of the time requirements for this matter that added to the legal costs incurred by Optimax. In my view, the combined effect of this failure to attend the initial hearing and the adversarial nature of at least a portion of the Review Board’s written and oral submissions justify the awarding of costs against the administrative tribunal. These are extraordinary circumstances which call for the awarding of costs. As such, I award costs of $1,500 payable by the Review Board to Optimax. Heard on the 28 th day of April, 2015 and continued on the 10 th day of September, 2015 .

Dated at the City of Calgary, Alberta this 2 nd day of February, 2016 . M .David. Gates J.C.Q.B.A. Appearances: Susan E.A. Trylinski for the Applicant Henry Chan

for the Respondent City of Calgary Shaun Fluker for the Respondent Calgary Assessment Review Board