Brookman v Environment and Parks (Director), 2021 ABQB 249

Court of Queen’s Bench of Alberta Citation: Brookman v Environment and Parks (Director), 2021 ABQB 249 Date: 20210331 Docket: 2001 08937 Registry: Calgary Between: Jeffrey Brookman Applicant - and - Director of Environment and Parks, KGL Constructors, a Partnership and Alberta Environmental Appeals Board Respondents ______________________________________________________ Decision of the Honourable Madam Justice N.

Dilts _______________________________________________________ Introduction [ 1 ] The Applicants seek judicial review of a reconsideration decision of the Alberta Environmental Appeals Board (“Appeals Board” or “Board”) dated October 16, 2020 (the “Reconsideration Decision”). The Reconsideration Decision came near the end of the long path to approval of the Southwest Calgary Ring Road. The lengthy history to these proceedings is detailed in the costs decision dated November 7, 2019 (the “Costs Decision”) and the briefs of the parties.

I do not propose to review that history as this application does not materially engage the substance of the recommendations made by the Appeals Board to the Minister. Despite the magnitude of the project and the lengthy procedural history, this application raises a discreet issue. [ 2 ] Following a public hearing into the impact on wetlands of the Southwest Calgary Ring Road, the Applicants sought costs for their participation in the appeal.

They asked that their costs be paid by the project approval holder, KGL Constructors (“KGL”) who had been awarded the contract to construct the infrastructure project. [ 3 ] The original costs application included a claim for costs by Mr. Brookman and his co-applicant Ms. Tulick, costs relating to witnesses presented by them at the appeal, and legal costs. In its Costs Decision, the Appeals Board denied all costs claimed by the Applicants, including legal costs.

One of its reasons for doing so was the express concern that the Applicants would receive a windfall if awarded costs as their counsel provided services on a pro bono basis. [ 4 ] The Applicants applied for reconsideration of the Costs Decision. The Board’s authority to reconsider a decision lies under s. 101 of the Environmental Protection and Enhancement Act , RSA 2000, c E-12 (“ EPEA ”) which provides that, subject to the principles of natural justice, the Board may reconsider, vary or revoke any decision made by it.

[ 5 ] The panel of the Appeals Board that decided the reconsideration application (the “Reconsideration Panel”) agreed that reconsideration of the issue of an award of legal costs was justified because the Applicants had not been given the opportunity to rebut the Respondents’ cost submissions, particularly to explain that the retainer agreement between the Applicants and their counsel made clear that counsel was entitled to retain an award of costs relating to its participation in the hearing, meaning there would be no windfall. The Reconsideration Panel considered this to be pertinent information.

It therefore reconsidered the Costs Decision in light of this new evidence and arguments. [ 6 ] The Reconsideration Panel denied the Applicant’s request to vary the Costs Decision. It concluded that although the retainer agreement satisfied it that a costs award would not have been a windfall to the Applicants, the concern of there being a windfall was not the primary reason why the Costs Decision was made. The Reconsideration Panel concluded that the Costs Decision was made based on what it called the Board’s “foundational principles” regarding an award of costs:

i) that parties should bear their own costs on an appeal; and ii) that costs should be awarded based on a party’s contribution to the appeal and to the Board’s recommendations to the Minister. After weighing the evidence regarding the Applicants’ contributions, it concluded that there was no basis to vary the Costs Decision. [ 7 ] The Applicant seeks judicial review of the Reconsideration Decision.

Standard of Review [ 8 ] The parties agree that given the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 the standard of review of the Reconsideration Decision is reasonableness.

While there are circumstances in which the presumption of reasonableness can be rebutted (including where explicitly provided for in legislation, where the legislation provides a route of appeal to the court, or where questions regarding the rule of law are raised), none of those circumstances are present on this application. [ 9 ] One of the functions of judicial review is to give effect to legislative intent.

That principle is grounded in respect for the legislative choice to place the authority for decision making in the hands of an administrative decision maker: Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it.

Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. Vavilov at para 24 [ 10 ] Flowing from that principle is the presumption that an administrative decision will be reviewed on a standard of reasonableness. The reasonableness standard is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts: Vavilov para 33 .

A review on a standard of reasonableness necessitates a minimum of judicial interference: Vavilov para 24 . [ 11 ] In Vavilov , the Supreme Court provided guidance as to the principles a court is to follow in conducting a review of an administrative decision on a standard of reasonableness.

A court sitting in a reviewing capacity is to respect the specific expertise of the decision maker; it is to show judicial restraint by not substituting its own decision on the merits; and it is to focus on whether the applicant has demonstrated that the decision made was unreasonable, taking into consideration all of the relevant circumstances.

It does so by examining the reasoning process that led to the decision (whether the decision was reached following an unreasonable chain of analysis or whether the decision was reached based on reasoning that is both rational and logical) and the outcome of the decision: Vavilov para 83 . [ 12 ] The Alberta Court of Appeal in Normtek Radiation Services Ltd v Alberta Environmental Appeal Board , 2020 ABCA 456 at para 71 described the impact of Vavilov in this way: The Supreme Court in Vavilov provided suggestions with respect to the proper application of the reasonableness standard, what the standard entails and how it might be applied in practice.

The Supreme Court said courts may intervene in quasi-judicial administrative matters where it is necessary to do so to safeguard the legality, the rationality and the fairness of the administrative process. Otherwise, the starting point is one of restraint (respect or deference to the administrative tribunal’s decision). [ 13 ] Given the guidance of Vavilov and Normtek , the sole issue on this application is whether the decision of the Reconsideration Panel was reasonable. Reasonableness includes consistency with the text, context and purpose of the governing legislation, and a clear understanding of the facts.

Position of the Applicant [ 14 ] The Applicants argue that the Reconsideration Panel’s decision was unreasonable for two principal reasons. First, it expresses concern with the Board’s stated “foundational principle” that parties before it are to bear their own costs of an appeal. It says the Board’s reliance on this principle is an improper fettering of its discretion and moves the Board away from one of the stated purposes of the EPEA and the Water Act , RSA 2000, c W-3 which is to promote the involvement of Albertans in approval hearings.

In addition, the Applicant says the Board’s foundational principle disregards the disparity between the resources available to different hearing participants, suggesting that an approval holder is better resourced than a member of the public to bring issues of concern before the Board. [ 15 ] Second, it says the Reconsideration Panel failed to consider the evidence that was before it detailing counsel’s contribution to

the appeal. It says the Board made a “series of mishaps” and misapprehended the contributions of counsel. It says this misapprehensionof the facts regarding counsel’s contributions originated in the Costs Decision and carried forward into the Reconsideration Decision. Itsays the Board focused on the evidence of Mr. Brookman that he did 90% of the research for and writing of the submissions and fromthere concluded that counsel’s role must have been limited.

The Applicants argue that the Board failed to consider all of the evidence ofcounsel’s participation in the appeal, including its invoices detailing the extent of counsel’s involvement. The Applicants argue that thisfailure to consider relevant facts renders the ultimate decision unreasonable. It says the Reconsideration Panel had the obligation to lookat counsel’s invoices to gain an understanding of counsel’s contributions to the appeal. [16] The Applicants say that when counsel’s involvement is fairly examined, it shows that counsel was involved in all aspects ofthe appeal.

It is not disputed that counsel expended 309.8 pro bono hours on the appeal. The Applicant says those costs were incurreddirectly and primarily relating to the matters contained in the notice of appeal, and to prepare and present the Applicants’ submissionsbefore the Board. As such, they say they should be reimbursed by the approval holder.

Position of the Respondents [17] As the party from whom the Applicants seeks costs, KGL argues that the Board’s foundational principle that each party bearsits own costs is not a fettering of the Board’s discretion; the Board remains open to the possibility of awarding costs if the circumstanceswarrant. It says the Board’s principled approach to costs has been endorsed by this court in Cabre Exploration Ltd. v Alberta(Environmental Appeal Board), 2001 ABQB 293.

It says the starting point as to costs is not by its nature or in its application aninflexible rule where its application precludes the exercise of the discretion the Board has been given. [18] Further, it says that the reconsideration process is not an opportunity to relitigate the issue and that the original Appeals Boardwas best situated to determine the value it received from the contributions of every participant on the appeal. Finally, it disputes theApplicants’ suggestion that they were “successful” on the appeal.

KGL says the nature of the variations to the approval that were madeby the Minister and their scale in context of the overall project suggest otherwise. [19] Counsel for the Board and counsel for the Director provided helpful materials and, in the case of counsel for the Board,instructive guidance on the statutory framework in which the Board acts, and the jurisprudence and commentary that discusses thejudicial review of an administrative tribunal’s decision. Legislative Framework [20]

Section 96 of EPEA authorizes the Appeals Board to award costs in proceedings before it: s. 96 The Board may award costs of and incidental to any proceedings before it on a final or interim basis and may, in accordance withthe regulations, direct by whom and to whom any costs are to be paid. [21] Notably, s. 96 contemplates that the Appeals Board is to determine not only whether costs are payable, but by whom they arepaid. That authority is carried forward in the Environmental Appeal Board Regulation, AR 114/1993, s. 20(3).

As has been noted by theparties, costs in a hearing under EPEA are not like those awarded in litigation where parties stand on opposite ends of an issue. There arepublic interest considerations in an appeal before the Appeals Board. [22] Sections 18 and 20 of the Regulation establish the framework within which the Appeals Board can make a cost award. First,under s. 18(2), costs must be reasonable and must be directly and primarily related to the matters contained in the notice of appeal andthe preparation and presentations of the party’s submissions. If they are not, they are out of scope.

For those costs that are within scope,the Board is invited to consider the factors set out in s. 20, including any further criteria the Board considers appropriate.

Those factorsinclude whether an oral hearing was held (c), whether the party applying for costs required financial resources to make an adequatesubmission (e), and whether the submission of the party made a substantial contribution to the appeal (f). [23] As the backdrop to all of its work, the Board is to be guided by the purpose of the EPEA as set out in s. 2 of the EPEA and,given the nature of this appeal, by the purpose of the Water Act as set out in s 2 of the Water Act.

In both statutes, the Board’s exercise ofits authority is to reflect the recognition that all Albertans share in the responsibility of ensuring the protection, enhancement and wiseuse of the environment. Analysis [24] Within this legislative framework, the question to be answered on this application is whether the Reconsideration Decision isreasonable and justifiable in relation to the law and the facts. [25] Under EPEA, a decision whether to award costs is discretionary.

As a result, the decision maker is entitled to considerablelatitude and deference with whether and to what extent costs are awarded: Pethick v Real Estate Council (Alberta), 2019 ABQB 431 atpara 30. The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision maker isgiven a choice of options within a statutorily imposed set of boundaries: Baker v Canada (Minister of Citizenship and Immigration), at para 52.

In Baker at para 53, the Supreme Court provided guidance as to how to approach the review of adiscretionary decision: a court is not to lightly interfere with a discretionary decision; however, an administrative board must still exerciseits discretion within the “margin of manoeuvre” permitted in its governing legislation, and in accordance with the rule of law, the generalprinciples of administrative law, and the Charter. [26] To that end, the Board’s obligation is to determine whether an award of costs is appropriate considering the public interest

generally and the overall purpose of the EPEA and the Water Act : Demencuik and Savitsky v Director, South Saskatchewan Region, Alberta Environment and Sustainable Resource Development, re: Municipal District of Bighorn No. 8 (07 January 2016), Appeal Nos. 14-003 and 14-004-CD (AEAB) (2016 AEAB 1) at para 93. [ 27 ] It is clear from a reading of the Reconsideration Decision that the Reconsideration Panel understood its authority and its obligation to make decisions that reflect the legislative framework of EPEA and the Water Act . It also understood that the Board has broad discretion to make an award of costs.

The criticism of the Reconsideration Panel’s decision flows largely from its articulation of and adherence to the “foundational principles” that parties bear their own costs in an appeal and that costs are awarded based on a party’s contribution to the hearing and to assisting the Board in making its recommendations. The latter is found in the Regulation at s. 20(2)(f); the former is based on its practice and prior decisions.

The question is whether the Board unduly constrained itself by adhering to its “foundational principle.” [ 28 ] The Applicant’s argument suggests that broad discretion and respect for a practice established in prior decisions cannot co- exist. I do not agree.

As identified in Vavilov at para 129 and as articulated by counsel for the Environmental Appeals Board, administrative decision makers may use guidelines or principles to achieve consistency in decision making provided that they do not apply them rigidly, without consideration of other criteria relevant to the decision including those set out in the governing legislation. [ 29 ] It makes practical sense that the parties who engage with the Board place value in consistency and predictability with respect to decision making, including with respect to the exercise of discretion relating to the award of costs.

As observed by Justice Woolley in Pethick at para 31 , articulating a general rule governing when costs ought to be awarded is not itself an improper fettering of discretion: “administrative decision-makers may use guidelines and soft law to achieve consistency in decision-making, provided that they do not treat them as governing law.” Moreover, it is clear from Demencuik that the idea that parties bear their own costs is the starting point for an analysis, not the end point.

Demencuik itself is an example where the starting point was overcome by an assessment of a party’s contribution to the appeal. [ 30 ] While the advantages of consistency cannot overtake the requirement of reasonableness in either the decision-making process or the decision, in identifying and applying a starting point to its review of costs, the Board did not improperly fetter its discretion.

The Reconsideration Panel considered other factors relevant to an award of costs including the level of involvement of counsel in the hearing process, the contributions of the Applicants, and whether the Applicants’ contributions detracted from the focus of the appeal. The Reconsideration Panel’s approach to the exercise of its discretion was framed by the governing legislation and fairly accounted for the policy considerations that bear on an award of costs.

It acknowledged the need to create a cost environment that encourages participation, that neither rewards nor punishes participation, that deters vexatious participation, and that recognizes the value of relevant contribution.

I see no basis in the reasoning to conclude that the foundational principle articulated by the Board, in theory or as applied, unduly constrained the decision-making process, or that the Reconsideration Panel did not remain live to the possibility of awarding costs if the circumstances merited. [ 31 ] The next question is whether the Reconsideration Panel misapprehended the evidence regarding counsel’s contribution to the appeal; and specifically whether it did so by echoing the findings of the Appeal Panel that there was “little space” for counsel to have contributed substantially to the appeal given Mr.

Brookman’s evidence that he performed much of the work for the research into and writing of the submission. [ 32 ] Section 20(2)(

f) permits the Board to consider a party’s contribution to the appeal in assessing an award of costs. Focusing on the value of counsel’s contributions makes sense in the context of costs: the Board is tasked with allocating the cost of proceedings fairly given the relative value of the contributions of the participants, recognizing that the appeal is not a traditionally adversarial system of winners and losers. [ 33 ] I am satisfied on review of the Reconsideration Decision that the Reconsideration Panel was live to the evidence regarding counsel’s contribution to the appeal and did not misapprehend it.

The Applicants were given the opportunity to direct the Reconsideration Panel to the evidence they thought important regarding counsel’s contribution including counsel’s invoices. The Applicants invited the Reconsideration Panel to conclude that there was significant value in those contributions. The decision demonstrates the Reconsideration Panel’s attention to those submissions and to the evidence regarding counsel’s involvement in the appeal: see for example Reconsideration Decision para 17 and footnote 7, paras 61, 66, 93 and footnote 115.

The Applicants in essence urge that a different conclusion should have been reached based on that evidence. [ 34 ] There is a danger in inviting a subsequent reviewer to engage in an evaluation of the value of the contributions made by the participants in the appeal, particularly with respect to a discretionary decision that turns significantly on evidentiary assessment and lived experience in the proceedings.

As expressed in Jane Doe v Alberta , 2016 ABQB 135 at para 105 on an application for judicial review of a discretionary decision, the court is not to engage in a re-weighing of the factors considered by the decision maker. I agree with KGL that no one is better situated than the Appeals Board to assess what and who was of assistance to it and what and who was a detractor. That is not and cannot be the role of a reviewing court. The role I am to play is to examine the reasoning process and the outcome.

In that regard, I disagree that the Reconsideration Panel failed to consider counsel’s invoices; the decision demonstrates otherwise. In any event, I am not satisfied that either the Appeal Panel or the Reconsideration Panel was required to look at the invoices to evaluate counsel’s contributions.

The question of hours spent are undoubtedly relevant to the quantum of an award, but to the threshold question of entitlement, when weighing factors like contribution and assistance, the Board can rely on its lived experienced. [ 35 ] In that regard, the Reconsideration Panel acknowledge that counsel contributed to the preparation of written submissions and argument on the standard of review and that counsel participated in the hearing by conducting cross examination. It evaluated the relative value of the contributions of counsel both based on Mr.

Brookman’s evidence that he did 90% of the research and writing of the submission and based on the Board’s own assessment of how the evidence unfolded at the hearing. In that regard, it noted that the Appeals Board concluded that the evidence it needed to make its recommendations was elicited by others. The Reconsideration Panel had the invoices, counsel’s argument and the Appeals Board’s experience in the appeal to inform its conclusion as to whether counsel made a substantial contribution to the appeal.

[ 36 ] I am satisfied that the Reconsideration Panel properly directed itself to the issues, the policy considerations and the legislative purpose that inform a decision to award costs. In undertaking its reconsideration of the Appeals Board’s decision, the Reconsideration Panel properly directed itself to the issues, the policy and the fairness of the process. It fairly considered the evidence in full, including the evidence of counsel’s contributions. Its reasoning is logically sound and clearly articulated; it demonstrates a rational path to the decision made.

I conclude that the Reconsideration Decision was reasonable. Conclusion [ 37 ] The application for an order quashing the Reconsideration Decision and ordering costs to the Applicants or alternatively remitting the matter back to the Board is denied. [ 38 ] KGL sought costs of this application in the event the Applicants were not successful. This Court has broad discretion to award costs. I am satisfied that it is not appropriate to award costs to KGL on this application. Counsel for the Applicants provided their service in the appeal on a pro bono basis and committed significant time in doing so.

While counsel has been unsuccessful in recovering any of its costs, its commitment to serving the public interest should not now be discouraged by imposing a cost award against them. Moreover, the issues argued before me were materially the same as those argued before the Reconsideration Panel. In these circumstances, I decline to make an award of costs against the Applicants. Heard on the 24 th day of March, 2021. Dated at the City of Calgary, Alberta this 31 st day of March, 2021. N. Dilts J.C.Q.B.A. Appearances: James B.

Laycraft QC for the Applicant Andrew Sims QC for the Respondent Alberta Environmental Appeals Board Sean D. Parker for the Respondent KGL Constructors, a Partnership Andrea M. Simmonds for the Respondent the Director of Environment and Parks