Wenzel v Election Commissioner of Alberta, 2021 ABQB 445

Court of Queen’s Bench of Alberta Citation: Wenzel v Election Commissioner of Alberta, 2021 ABQB 445 Date: 20210607 Docket: 1901 08367; 1901 08506; 1901 08695 Registry: Calgary Docket: 1901 08367 Between: Shane Wenzel Appellant - and - Election Commissioner of Alberta Respondent -and- Docket: 1901 08506 Between: Ross Glen Appellant - and - Election Commissioner of Alberta Respondent -and- Docket: 1901 08695 Between: Dennis Zentner Appellant - and -

Election Commissioner of Alberta Respondent _______________________________________________________ Ruling on Costs of the Honourable Mr. Justice C.M. Jones _______________________________________________________ Introduction [ 1 ] Mr. Glen, Mr. Zentner and Mr. Wenzel (Appellants) successfully appealed the imposition of administrative penalties under the Election Finances and Contributions Disclosure Act RSA 2000, c E-2 ( Act ) .

Penalties were imposed for exceeding the statutory contribution limit of $4000.00 in respect of contributions to a registered party, in this case the United Conservative Party. [ 2 ] This is a costs decision in connection with the outcome of the appeal before me. [ 3 ] I found that the Election Commissioner of Alberta (Election Commissioner) did not, as is required by

section 44.97(3) of the Act , give reasonable notice of the substance of his allegations of overcontribution against the Appellants. Nor did he provide the Appellants with a reasonable opportunity to present their views before making an adverse finding. I hasten to add that the term “reasonable” here relates to time periods, not to the form or content of the notice. [ 4 ] I also found that the Election Commissioner failed to properly discharge his responsibilities under

section 51.01(4) of the Act in determining the amount of administrative penalty to which the Appellants were subject. That

section lists seven factors which the Election Commissioner must take into account in determining the amount, if any, of an administrative penalty to be paid. [ 5 ] Though granted discretion in respect of the amount of the administrative penalty, the Commissioner imposed the maximum penalty in each case of double the amount of the overcontribution. [ 6 ] Over the objections of the Elections Commissioner, I admitted affidavit evidence on behalf of each of the Appellants which purported to explain the circumstances leading up to their overcontributions.

This Affidavit evidence was submitted some four months after the Election Commissioner served a notice of administrative penalty on each of the Appellants. [ 7 ] I found that each of the Appellants received a letter from the Election Commissioner, dated April 11, 2019, advising them of their overcontribution, the potential for an administrative penalty and inviting them to respond. However, it was not clear if they actually received their respective letters before April 26, 2019, the deadline specified in that letter for a response. [ 8 ] Mr. Zenter responded on May 9, 2019 and Mr.

Wenzel responded on May 7, 2019. Mr. Glen did not respond to the Election Commissioner. [ 9 ] Each of the Appellants received a Notice of Penalty from the Election Commissioner dated May 22, 2019. These notices purported to explain how the provisions of

section 51.04(4) of the Act were applied by the Election Commissioner in arriving at a decision regarding the penalty to be imposed.

It bears mention that the Election Commissioner was authorized under the Act to issue a letter of reprimand, rather than impose a penalty. [ 10 ] I concluded that it was palpable and overriding error for the Election Commissioner to conclude that two weeks (April 11, 2019 to April 26, 2019) was, under the circumstances, a reasonable opportunity to present one’s response to the alleged contraventions of the Act . [ 11 ] I therefore found it necessary to admit the Appellants’ affidavits as the information contained in those affidavits could not, with the exercise of due diligence, have been put before the Election Commissioner by the Appellants before the Election Commissioner made his decision.

[ 12 ] I found the Election Commissioner’s application of the factors prescribed in

section 51.01(4) of the Act was not supported by the facts, as disclosed in those affidavits. I found that had the Election Commissioner taken the evidence set forth in the affidavits into account, he would have been compelled to conclude that the facts did not justify imposing the maximum administrative penalty. [ 13 ] I rescinded the penalties and directed that the Appellants’ names be removed form the website where the names of those penalized for political over-contributions are posted. I directed written submissions on costs.

Submissions on Costs [ 14 ] The Appellants seek solicitor-client, full indemnity costs, or in the alternative, enhanced or party party costs against the Election Commissioner. They argue that, what appears to be the Election Commissioner’s invariable practice of imposing the maximum administrative penalty for overcontribution makes this a unique situation and warrants substantial costs against the Election Commissioner. [ 15 ] I reject that basis for their request. I have no idea what the circumstances were surrounding the many other individuals who received penalties.

It would be improper to base an award for costs in this situation on assumptions about the factual matrix existing in those other cases. [ 16 ] The Appellants agree that in a typical case involving a statutory appeal or judicial review of a decision made by a statutory/regulatory tribunal, the decision-maker is generally not subject to a costs award in its favour or against it, absent misconduct or extraordinary circumstances: Sihota v. Edmonton (City) , 2013 ABCA 125 .

The Election Commissioner cites Sihota in support of the same assertion. [ 17 ] Again, invoking the argument that other over contributors must have received the same treatment, they argue that this is not a typical case. Once again, I reject the argument that just because others may have had the same experience as the Appellants, the Appellants are entitled to enhanced costs.

It would be inappropriate to use a costs award as a penalty for alleged deficient behaviour in other situations. [ 18 ] Those other individuals are not before me and their experiences have no bearing on the Appellants’ entitlement to costs. [ 19 ] It would be inappropriate to “punish” the Election Commissioner with a costs award in the case of the Appellants for his treatment of other over-contributors, only 8 of whom out of a total of 92, appealed their administrative penalties. [ 20 ] The Election Commissioner reinforces the default position in a typical case as noted in Sihota in citing Lor-Al Springs Ltd. v.

Ponoka (County) Subdivision and Development Appeal Board , 2001 ABCA 123 at paragraph 31 . There the Court noted that: The established practice on review of, or appeal from, decisions of administrative tribunals is not to award costs either for or against a tribunal where the tribunal confines its participation to matters that are truly questions of its jurisdiction and makes no submissions on the merits. [ 21 ] The Appellants note the decision in Optimax Developments Ltd. v. Calgary (City) , 2016 ABQB 70 , paragraph 45 .

There, this Court referred to the decision of this Court in Court v Alberta (Environmental Appeal Board)

(2003) Alta LR (2d) 74.

That decision quoted from Brown and Evan, Judicial Review of Administrative Action in Canada , loose-leaf (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 in ignoring 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 had necessitated a new hearing. [ 22 ] Here, the Election Commissioner did not take an adversarial role before me in connection with the three appeals..

The Election Commissioner did not act capriciously by ignoring a clear legal duty. The Election Commissioner understood his legal duty to apply the provisions of the Act . He simply did not have all the facts before him because the Appellants had not filed their affidavits in time for the Election Commissioner to take them into account. He fettered his discretion in the course of discharging his legal duty, but he did not do so capriciously. [ 23 ] Before me, the Election Commissioner legitimately made submissions on standard of review.

I do not find the Election Commissioner’s opposition to the admission of the Appellants’ affidavits to be adversarial. The Election Commissioner correctly pointed out for the Court’s benefit that admission of material which was not before the Election Commissioner when he decided to impose penalties should be the exception and not the rule. [ 24 ] I do not find the Election Commissioner’s exercise of power to be questionable, just ill-informed. Nor did the Election Commissioner manifest a notable lack of due diligence.

Rather, the Election Commissioner exercised bad judgment. [ 25 ] The Appellants quote further case law in support of their request. Two exceptions to the general rule that no costs will be awarded against a tribunal include (1) misconduct or perversity in the proceedings before the tribunal or (2) the tribunal argues the merits of the judicial review application rather than its own jurisdiction: A.A.A.M. v. Director of Adoption , 2017 BCSC 87 at paragraph 14 . [ 26 ] Here, I find no misconduct or perversity in the Election Commissioner’s actions in imposing a penalty.

The Election Commissioner was careful to avoid arguing the merits of the judicial review application before me. [ 27 ] I found the Election Commissioner’s application of his governing statute was, in these circumstances, procedurally unfair and,

he fettered his own discretion in his application of the factors in

section 51.01(4) of the Act . But such procedural unfairness does not justify a costs award against him. [ 28 ] Indeed, the Alberta Court of Appeal refused to award costs against a subdivision and development appeal board which it found had breached procedural fairness: Borgel v.

Paintearth (County No 18) Subdivision and Development Appeal Board , 2020 ABCA 321 . [ 29 ] To quote the decision in M & M Resources Inc. v Prince Edward Island (Workers Compensation Board) , 2018 PECA 9 : ...where a tribunal misconducts itself by neglecting to properly consider a serious issue of jurisdiction, conducts itself capriciously, or makes a clear breach of procedural fairness or similar egregious conduct, then costs could be awarded against the tribunal; but even then, a court would exercise caution before making such an award.

In the result, an award of costs against a tribunal, including the Appeal Tribunal on a statutory appeal, would be a rare and unusual occurrence . [Emphasis added] [ 30 ] I disagree with the Appellants’ assertion that the Election Commissioner acted capriciously ignoring a clear legal duty to meaningfully apply the factors in s. 51.01(4) when determining an appropriate administrative penalty for each Appellant.

The Election Commissioner simply did not have all the facts before him because he did not afford reasonable time for a response to his April 11, 2019 letter. [ 31 ] The Appellants had not responded to the Election Commissioner’s letter of April 11, 2019 and the Election Commissioner did not have the benefit of their affidavits.

What the Appellants would characterize as malfeasance on the part of the Election Commissioner is better characterized as an example of the Election Commissioner acting with less than adequate information. [ 32 ] Finally, the Appellants argue that it is inappropriate and unfair that they bear their costs in these court proceedings to provide the Election Commissioner with a helpful precedent and assist the Election Commissioner with future guidance on how these types of files should be handled.

The Appellants argue that this is a form of litigation misconduct warranting costs, at an enhanced level, to be awarded to the Appellants. [ 33 ] I would remind the Appellants that it was their overcontributions which triggered these proceedings.

They may have had an innocent explanation for those overcontributions but they had not provided that explanation to the Election Commissioner in time for him to make his decision. [ 34 ] The Election Commissioner was not made aware of that explanation until affidavits were filed many months after he rendered his decision. [ 35 ] In the result, the parties shall bear their own costs. Heard on the 23 rd day of April, 2021. Dated at the City of Calgary, Alberta this 7 th day of June, 2021. C.M. Jones J.C.Q.B.A. Appearances: Loran V. Halyn for the Applicants Paula D. Hale for the Respondent