Calgary (City) v Teulon, 2021 ABQB 501

Court of Queen’s Bench of Alberta Citation: Calgary (City) v Teulon, 2021 ABQB 501 Date: 20210629 Docket: 2001 10009 Registry: Calgary Between: The City of Calgary Applicant - and - Ashton Teulon Respondent _______________________________________________________ Reasons for Decision on Costs of the Honourable Justice EJ Sidnell _______________________________________________________ Introduction [ 1 ] Further to my decision issued May 18, 2021, which can be found at 2021 ABQB 388 , these are my reasons relating to costs.

To the extent that terms are used in this decision, and are also defined in my previous decision, they have the meanings ascribed to them in my previous decision. [ 2 ] This matter came before me as a half-day Special Chambers Application. I dismissed the City’s application, which sought to have the Current Parcel Title cancelled and a new certificate of title issued which excepts-out the Road Plan from the legal description. The portion of the Road Plan that relates to the Parcel is the Disputed Portion and consists of the northerly 5.182 m portion of the Parcel. [ 3 ] Ms.

Teulon purchased the Parcel in January 2020. The City conceded that its claim did not arise from any action taken by

Ms. Teulon, rather the contest between the City and Ms. Teulon arose as a result of a 1989 “oversight” attributed to the LTO. Parties’ positions on quantum of costs [ 4 ] As a result of the City’s application being dismissed, Ms. Teulon submits that she should be awarded full indemnity costs in the amount of $42,170.09, which amount includes legal fees, disbursements and GST, or, alternatively, partial indemnity of 50% of that amount. [ 5 ] The City submits that costs should be calculated by reference to the applicable items in

Schedule C of the Rules of Court , column 1, because

Schedule C, 1(4)(b), says that column 1 is to be used for a judgment where a remedy other than the payment of money is sought. The City sought the cancellation of the Current Parcel Title and re-issuance of the certificate of title referencing its right to the Disputed Portion. Certainly, the Disputed Portion has a value, but that value was not in evidence in this application and no damages were claimed by the City. The City asserts that Ms. Teulon is entitled to costs of $8,044.03. Applicable Rules [ 6 ] A successful party is entitled to costs against an unsuccessful party: Rule 10.29(1).

Rule 10.31(1) permits the court to make a costs award after considering the matters described in Rule 10.33. Rule 10.31(1) allows the Court to make an award costs based on one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or (

b) any amount that the Court considers to be appropriate in the circumstances, including, without limitation, (

i) an indemnity to a party for that party’s lawyer’s charges, or (ii) a lump sum instead of or in addition to assessed costs. [ 7 ] Returning to Rule 10.33, I first consider the matters set out in Rule 10.33(1): (

a) The result of the action and the degree of success of each party: - Ms. Teulon was entirely successful in resisting the City’s claim. (

b) The amount claimed and the amount recovered: - There was no valuation of the Disputed Portion, no amount was recovered and no relief granted. (

c) The importance of the issues: - The Rule does not say whether the importance of the issue should be considered from the perspective of legal precedent or from the perspective of the parties engaged in the litigation. This application likely has little legal precedential value and I will consider this factor from the perspective of the parties engaged in this application. - The Disputed Portion had not been excepted-out of the legal description of the Parcel due to an “oversight” at the LTO, which occurred in 1989.

In this application, the City challenged the indefeasibility of the Current Parcel Title by seeking to have the Disputed Portion excepted-out of the legal description, by reference to the Road Plan. The potential negative outcome for the City, if it was unsuccessful, which it was, was that it would not be able to rely on the Road Plan and would not have ownership of the Disputed Portion. The evidence from Ms. Dyck’s email was that the City was “not proposing to encroach on the property with public infrastructure. As discussed previously, the sidewalk will be widened to the property line and that is all.

However, we will require access to [Ms. Teulon’s] property”. Ms. Teulon’s evidence was that she was prepared to give the City access. When asked on cross-examination on her affidavit whether it was true that she “would not allow any work impacting [her] property whatsoever to occur until the legal issues giving rise to this proceeding were completely resolved”, Ms. Teulon replied in the affirmative. Her full response was: “Yeah. This proceeding hadn't even started at that point, so the City hadn't even decided if they were going to pursue this in court or not.

But, yes, from multiple people, Caylee, the lawyer, Hannah, they all assured me multiple times that no work would start outside my home until this was fully resolved.” The City did not provide any evidence of the importance to the City of being able to rely on the Road Plan and having ownership of the Disputed Portion, though it appears that, if the City had been successful, the Streetscape Master Plan could be implemented without seeking permission from Ms. Teulon for access to the Disputed Portion. - For Ms.

Teulon, the potential negative outcome of this application, if the City was successful and the Disputed Portion was excepted-out of the Current Parcel Title, was more dramatic in that she would lose her front yard which accounts for approximately 14% of the Parcel. It is unclear how a negative outcome for Ms. Teulon would have affected the mortgage registered against the Parcel as there was no evidence that the mortgagee was served. (

d) The complexity of the action: - While this application was not significantly complex, it was made more complex by the City relying on historical legislation for a few issues and then, at the hearing, conceding that the provisions of the LTA were applicable to the issue of indefeasibility. (

e) The apportionment of liability:

- There was no apportionment of liability. (

f) The conduct of a party that tended to shorten the action: - There was no conduct that shortened this application. (

g) Any other matter related to the question of reasonable and proper costs that the Court considers appropriate: - Ms. Teulon was a bona fide purchaser for value and nothing she did gave rise to this application. The relief that the City soughtagainst Ms. Teulon would have, if successful, deprived her of her front yard and, in so doing, would have imposed the burden for the1989 “oversight” of the LTO on Ms. Teulon. - Ms.

Teulon was a stranger to this application in the sense that she was not aware of the Road Plan when she purchased the Parcelin 2020 and had nothing to do with the “oversight” that occurred more than 30 years before she purchased the Parcel. - The City did not explain why the Caveat, which it registered, was discharged without the City ensuring that the Road Plan hadbeen excepted-out of the legal description of the Parcel. - The City asserts that this application was necessary and that this necessity should be a factor in awarding

Schedule C costs. I dealwith this submission below, at length. [8] Rule 10.33(2) permits me to consider a number of matters which relate to the conduct of this application and the parties. Ifind that none of those matters are applicable to this application. Was this application against Ms. Teulon necessary? [9] The City supports its position that Ms. Teulon is entitled to

Schedule C costs with the assertion that the “application wasnecessary because it is fundamentally a dispute about which party owns the [Disputed Portion]”. [10] The City relied on one case in the costs application: Canada (Soldier Settlement) v Alberta (Registrar North AlbertaRegistration District) (AB KB), 1982, 47 AR 245 (MC). That case arose from an application by the LTO to strike outa petition commenced by the Director of Soldier Settlement against the LTO.

The underlying title dispute was ultimately decided by theSupreme Court of Canada in Canada v Snider Estate, (SCC), [1991] 2 SCR 481, in favour of the bona fide purchasersfor value, the Snider estates. The procedural issue determined by Master Funduk, and discussed below, was not appealed. [11] In Soldier Settlement, it was alleged that the Director transferred land to Mr. Lynn in 1928, and that such transfer should havereserved out all mines and minerals, except coal, to the Director, as a result of an implied reservation arising under the Soldier SettlementAct, RSC 1927, c 188.

The land was “passed down” from Mr. Lynn and, when the application was heard, was owned by the Sniderestates, without reservation of mines and minerals, except coal. [12] The Director requested the LTO to “reinstate” title of mines and minerals, except coal, in the name of the Director, but theLTO refused.

Based on that refusal, the Director filed a petition under s. 174 of the Land Titles Act, RSA 1980, L-5, seeking an orderdirecting the LTO to cancel the titles held by the Snider estates as to mines and minerals, except coal, and issuing a new title to theDirector for all mines and minerals, except coal. [13] Master Funduk found the petition did not claim any relief against the Snider estates, who were named as respondents, the onlyrelief being claimed was against the LTO.

He also found that at issue was the ownership of the mines and minerals, except coal, and thatthe proper parties were the Director and the Snider estates. Master Funduk was critical of the procedure pursued by the Director andsaid, at para 7: The petitioner has chosen to stake out a procedure for advancing his claim which is entirely inappropriate. He advances his claim toownership of the mines and minerals through the guise of attacking the refusal of the registrar to “reinstate” the title of the mines andminerals in favour of the petitioner.

Such “reinstatement” is nothing other than a euphemistic way of asking that the registrar cancel theexisting certificates title in the names of the Snider estates and issue a new title in the name of the petitioner. [14] Master Funduk said, at para 8, that the Director’s reliance on s. 174 was a “complete misconception as to the scope andpurpose of that section”.

Section 174, of the Land Titles Act, stated:

(1) If any person is dissatisfied with any act, omission, refusal, Registrar decision, direction or order of a Registrar, that person mayrequire the Registrar to set forth, in writing under his hand, the ground of the act, omission, refusal, decision, direction or order, and maythen apply to the Court of Queen's Bench by petition, setting forth the grounds of his dissatisfaction.

(2) The Court, having caused the Registrar to be served with a copy of the petition, has jurisdiction to hear the petition and to make anyorder in the premises and as to the costs of the parties appearing on the petition that the circumstances of the case require. [15] Master Funduk pointed out the limitation of s. 174, at para 9:

Section 174 is geared towards a dissatisfied person having a registrar’s act, omission, refusal, decision, direction or order reviewed bythe court. However, whatever is complained of must have been something that the registrar had jurisdiction to deal with in the originalinstance. One cannot use the facade of s. 174 to adjudicate on an issue that the registrar would not have jurisdiction to deal with. That iswhat the petitioner has attempted to do. [emphasis in the original]

[16] In Soldier Settlement, although the petition claimed orders against the LTO, they were merely consequential to the outcomeof the dispute between the Director and the Snider estates. In that case, there was no clear error made by the LTO, as there is alleged tohave been made in this application by the 1989 “oversight”. Indeed, at paras 14 and 15, Master Funduk said: There is in reality no legal issue in these proceedings between the [Director] and the [LTO]. ... Even assuming the best possible position for the [Director], that there was an error by the [LTO] on the transfer to Lynn which belatedlytriggered the present lis, that alone is not a ground for making the [LTO] a party. ... [17]

Section 174 of the Land Titles Act, is now s. 184 of the LTA, with minor amendments of no consequence. It is clear that anapplication by the City against the LTO, under s. 184 of the LTA, would not be appropriate in this case. That is what the decision inSoldier Settlement can be relied on for. [18] The City says in its initial written argument on costs that, until a decision on the ownership of the Disputed Portion is made, itcannot bring a claim against the LTO: ... the central issue is which party holds title to the land in dispute.

The City has a [Road Plan] which is registered at [LTO] and, as aresult, the City claims title to the [Disputed Portion]. [Ms. Teulon] holds [the Current Parcel Title] stating that she holds title to the[Disputed Portion]. Until a decision is made about which of those claims is valid, neither party has suffered loss, damage, or deprivationof land and cannot, therefore, bring an action against the [LTO] pursuant to

section 171 or any other provision of the [LTA]. The Citysubmits that this application is necessary as a result. [19] A claim can be made against the LTO under 168(1) of the LTA, which stipulates who can bring an action against the LTO andin what circumstances: 168(1) Any person (

a) who sustains loss or damage through an omission, mistake or misfeasance of the Registrar or an official in the Registrar’s office inthe execution of the Registrar’s or official’s duties, or (

b) who is deprived of any land or encumbrance or of an estate or interest in any land or encumbrance (

i) through the bringing of it under this Act, (ii) by the registration of another person as owner of the land or encumbrance, or (iii) by an error, omission or misdescription in a certificate of title, and who by this Act is barred from bringing an action for the recovery of the land or encumbrance or interest in the land or encumbrance, may bring an action against the Registrar for the recovery of damages. [20] In Alberta (Registrar, South Alberta Land Registration District) v Clark & Associates Surveys, 2004 ABCA 258, Hunt JA,for a unanimous court, considered whether costs should be paid by the LTO under s. 172 of the LTA.

Her analysis included a discussionof s. 168 of the LTA and, at para 24, she said: The circumstances in which an action can be brought against the Registrar are circumscribed by s.168. Someone who sustains loss ordamage due to an omission, mistake or misfeasance of the Registrar is entitled to bring a damages action against the Registrar. The othercircumstances contemplated by s.168 (for example, deprivation of land as a result of an error, omission or misdescription in thecertificate of title) reflect the notion of a state guarantee of title which is the bedrock of the LTA.

The right of action against the Registraris a statutory, not common law, right ... [21] The final words of s. 168(1) make it clear that any action against the LTO would be for damages. In this case, the City soughtto challenge the indefeasibly of the Current Parcel Title and have the Disputed Portion excepted-out of the legal description for theParcel by referencing the Road Plan. This outcome would not be available to the City under s. 168(1), which is limited to a claim ofdamages against the LTO. [22] As quoted above, the City asserts that until the contest between it and Ms.

Teulon is determined, “neither party has sufferedloss, damage, or deprivation of land”. In Hill v Alberta (South Alberta Land Registration District) (1993), 1993 ABCA 75 ,135 AR 266 (CA), Côté JA, for a unanimous court, in considering a limitations issue related to a claim under s. 158 of the Land TitlesAct, now s. 168 of the LTA, noted that there is no definition of the term “deprivation”, which continues to be the case under the LTA. Hedescribed how the deprivation was immediate upon registration of a fraudulent mortgage and not when the property was foreclosedupon.

He also discussed other scenarios of deprivation: see paras 14 to 23. The City did not provide any authority to support its positionthat it could not show deprivation when, due to LTO’s 1989 “oversight”, an exception to the legal description of the Parcel referencingthe Road Plan was not recorded. [23] Subsection 171(1) of the LTA tracks the language of s. 168(1)(

a) and limits any action commenced under s. 168(1)(

a) to aclaim solely against the LTO: 171(1) In an action for the recovery of loss or damage arising only through an omission, mistake or misfeasance of the Registrar or theRegistrar’s officials, the Registrar shall be sole defendant. [24] While the wording of s. 168(1)(

b) is not tracked in s. 171(1), s. 168(1)(

b) refers to a claimant “who by this Act is barred frombringing an action for the recovery of the land”.

[25]

Section 183 bars an action against a “person named in the certificate of title as owner”, such as Ms. Teulon, except in thespecified circumstances set out in s. 183(1)(

a) to (f). In this application, the City asserted an exception to indefeasibility under s. 62(1) asa result of a wrong description, which I found to be linked to the exception for misdescription under s. 183(1)(e). [26] Given that the misdescription exception was asserted by the City, I do not accept Ms. Teulon’s submissions that s. 171(1)restricted the City to naming the LTO as the sole defendant because the City was not barred from pursuing a claim against Ms. Teulonunder s. 183(1)(e).

The City sought relief in the form of a cancellation of the Current Parcel Title, a recording of the Road Plan as anexception to the legal description, and a re-issuance of Ms. Teulon’s certificate of title noting the Road Plan exception. This is to becontrasted with a claim for damages, which is the only relief that could be sought by the City against the LTO. [27] Notwithstanding that the City had the prerogative to claim directly against Ms. Teulon for misdescription, and asserted thatclaim, and others, against Ms. Teulon, the City has not shown that this application against Ms.

Teulon was a necessary step to pursuing aclaim against the LTO, as it asserts. Furthermore, even if this application was a necessary step for the City to take in pursuing a claimagainst the LTO, that would not make the costs expended by Ms. Teulon to resist the City’s claim any less significant. When are full indemnity costs appropriate? [28] On this application, there is no allegation of any misconduct, delay or increase expense due to improper steps having beentaken in the litigation. Furthermore, there is no allegation of reprehensible, scandalous or outrageous conduct on the part of one of theparties.

In Young v Young, (SCC), [1993] 4 SCR 3, McLachlin J, as she then was, said, at page 134: ... Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part ofone of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; nor is the factthat part of the cost of the litigation may have been paid for by others. ... [29] Relying on Jackson v Trimac Industries Ltd (1993), (AB KB), 138 AR 161 (QB), Ms.

Teulon asserts thatthis application is a rare and exceptional or unusual case where full indemnity costs are appropriate because only full indemnity costs canresult in justice being done. Justice Hutchison’s decision in Jackson was issued approximately 7 months before the Supreme Court ofCanada’s decision in Young and has been referred to as a leading case on solicitor-client costs many times since. At para 28, Hutchison Jprovided a list of circumstances in which indemnity for costs can be awarded: ...

In order for costs to be awarded on an indemnity basis or even on a solicitor-client basis, as opposed to a party-party basis, the courtmust conclude that the case fits within the parameters of a rare and exceptional or unusual case. Examples from the above cited casesresulting in the identification of a rare and exceptional case include: 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); 3. where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issueof fact or law which required these lengthy, expensive proceedings, where the positively misconducting party was "contemptuous" of theaggrieved party in 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, an attempt to delay, deceive and defeat justice, a requirement imposed on theplaintiff to prove facts that should have been admitted, thus prolonging the trial, unnecessary adjournments, concealing materialdocuments from the plaintiffs and failing to produce material documents in a timely fashion (Olson); 5. where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond the ordinary order of costs (Dusik v.

Newton); 6. defendants found to be acting fraudulently and in breach of trust (Davis v. Davis); 7. the defendants' fraudulent conduct in inducing a breach of contract and in presenting a deceptive statement of accounts to thecourt at trial (Kepic v.

Tecumseh Road Builder et al.), 8. fraudulent conduct (Sturrock); 9. an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges(Pharand). [30] It is only number 2 in Hutchison J’s list that is applicable to this application, but I have quoted all of the circumstances helisted because they provide context for how rare, exceptional or unusual a case must be to award full indemnity costs. [31] In McAllister v Calgary (City), 2021 ABCA 25, the Court of Appeal considered the issue of costs after a trial in which Mr.McAllister was successful in establishing liability against the City for injuries he sustained from an assault outside a C-Train station.

Atpara 37, the Court acknowledged that full indemnity costs are the exception to the rule: It is accepted that indemnification of the successful party should not normally provide full indemnity for all legal fees anddisbursements. Instead, a typical costs award (i.e. party and party costs) is intended to be “a partial indemnity for the expenses to whichthe recipient has been put as a result of the litigation” (Orkin at 1-3).

Cost awards in all Canadian jurisdictions typically constitute onlypartial indemnification of the litigant’s legal costs (Okanagan at para 53). [32] The Court in McAllister made numerous references the general rule being that party and party costs should indemnify the

successful party for approximately 40-50% of actual costs: see paras 41, 45 and 51. At para 45, the Court also referred to the balance tobe achieved in awarding costs: ...

Suffice it to say that the 40-50% partial indemnification guideline, which has been utilized for a number of years as providing areasonable level of indemnification, is intended to accomplish the balance discussed in the case law between fully compensatingsuccessful parties who through no fault of their own had to engage in legal proceedings (on the one hand) and the chilling effect onparties bringing or defending claims if the unsuccessful party has to bear too heavy a costs burden (on the other). This level ofindemnification assumes no misconduct by either party in the conduct of the litigation. [33] Ms.

Teulon analogies this application to one of expropriation. However, the City did not seek to take land it did not own;rather, the City was asserting a right to an interest in land that it had, and then lost, over 30 years before Ms. Teulon purchased theParcel.

Expropriation is a statutory process and the legislation provides for reasonable legal costs actually incurred to be paid by theexpropriating authority, except where special circumstances justify a reduction: see Expropriation Act, RSA 2000, c E-13, s. 39. [34] An award for solicitor-client costs was appealed by the City in Calgary (City) v Costello, 1997 ABCA 281, where thesuccessful parties asserted that solicitor-client costs should be awarded on the basis of an expropriation. Because the attempt toexpropriate was found to be invalid, the claim against the City was framed in trespass.

In these circumstances, the Court of Appeal didnot take issue with costs being awarded on an expropriation basis and, at para 85, said: Of course, as the City argued, the courts’ jurisdiction to award solicitor-client costs under the Expropriation Act does not formallyextend to cases, such as the present, in which a claim is brought in trespass as a result of an invalid expropriation. I do not, however,accept the City’s contention that the trial judge erred in awarding costs to the Costellos pursuant to the Act.

He clearly stated that heproceeded on the basis of a “presumptive principle in expropriation and related matters (which would include the aftermath of the voidexpropriation herein)”. (Emphasis added.) A recent illustration of a “related matter”, bearing some resemblance to the present appeal, isfound in Canada (Attorney General) v. Saskatchewan Water Corp ... While the facts are complex, it is sufficient for present purposes tonote that land was taken from two farmers pursuant to an invalid expropriation.

The Saskatchewan Court of Appeal ordered the return ofthe property and awarded solicitor-client costs (p. 742). From the standpoint of the Tetzlaffs, this picture presents itself. It is not any wrongdoing on their part that has precipitated the present aswell as many other proceedings involving them as parties. They were quite content carrying on their farming operations when their worldwas invaded. It was the decisions - many bad as noted - by the federal and provincial government agencies and officials that areresponsible for what has happened to them and their farm.

And yet, the actual persons making the decisions for the government agenciesand officials are not required to support their decisions with legal fees and disbursements: it is the government agencies they work forand ultimately the taxpayer who foots the legal bills generated by those decisions, irrespective of their quality. On the other hand, it isthe Tetzlaffs themselves - they, who have done no wrong and who are merely reacting to decisions made by other persons - who arerequired to pay the legal bills incurred by their need to be parties to the proceedings.

The principles of equity cry for some sort of relief.It is for these reasons that the Tetzlaffs should recover their solicitor-client costs rather than party-and-party costs. [35] In Goodtrack v The Rural Municipality of Waverley No 44, 2013 SKCA 137, the landowner succeeded in quashing a bylawwhich purported to expropriate a portion of his farm.

The Saskatchewan Court of Appeal referenced Canada (Attorney General) vSaskatchewan Water Corp, (SK CA), [1992] 4 WWR 712 (Sask CA), which was referred to by the Alberta Court ofAppeal in Costello, in arriving at the conclusion that solicitor-client costs were appropriate even though there was no wrongdoing by themunicipality and said, at paras 28 and 32: There was no finding by the Chambers judge that the Rural Municipality of Waverley acted in bad faith or that its conduct wasscandalous, outrageous or reprehensible.

The question then becomes is conduct deserving of censure required in order for solicitor-clientcosts to be awarded ... . . . The Sask Water case is directly on point and is relevant for the proposition that solicitor-client costs are available if deemed appropriatewhere a landowner successfully resists expropriation, and where the conduct of the party against whom costs are sought is notnecessarily subject to censure.

In fact, the Chambers judge recognized the precedential value of Sask Water in granting leave to appeal tothe appellants. [36] The Alberta Court of Appeal, in McAllister, also recognized, at para 51, that there might be factors which are not related tothe conduct of the litigation, but which may result in awarding costs higher than the normal 40-50% indemnification level: As a general principle, we see no reason to depart from the 40-50% level of indemnification approved by this Court in Weatherford CAand Hill v Hill. ...

However, we refrain from defining with any precision the level of indemnification required in any given case. All wesay is that the level of indemnification must be both meaningful and reasonable. The court’s discretion to move up or down from thatlevel having regard to the factors set forth in Rule 10.33 or in Rule 10.2(1) remains intact.

Also, the level of indemnification may behigher or lower than the 40-50% depending on how the litigation was conducted and other factors not necessarily having anything to dowith the conduct of the litigation. [37] I find that the balance, between the unfairness of requiring the blameless successful party paying its own costs and thechilling effect on parties bringing claims by requiring the unsuccessful party to pay full indemnity costs, may be shifted in this case.

Thisis not a case of a citizen being unduly hesitant to assert the citizen’s rights because, if unsuccessful, the citizen is required to bear all ofthe costs of the successful party: McAllister, para 38, quoting from Reese v Alberta (Minister of Forestry, Lands and Wildlife) (1992), (AB KB), 133 AR 127 (QB).

This application, although not arising from an invalid expropriation, is more like thecircumstances in Saskatchewan Water Corp, quoted by the Alberta Court of Appeal in Costello, above, where it was observed that thepersons making the decisions for a governmental body are not required to support their decisions by paying the legal bills. Rather, it isthe individual litigant, who has done no wrong, whose only connection to the dispute is through the land owned by the individual, andwho is merely reacting, who is required to pay the legal bills incurred by being brought into the proceedings.

[ 38 ] Based on the authorities I have referred to, and considering the balance that costs are to achieve in the context of this application, I find that this application is one of the rare and exceptional, and also unusual, cases where justice can only be done by awarding costs to Ms. Teulon on a full indemnification basis. Quantum of Costs [ 39 ] The City took issue with the involvement of both a partner and an associate in preparing the case for Ms. Teulon, and with the amount of time spent on certain aspects of the preparation for this application. I have reviewed the invoices.

I do not share the City’s concern about the reliance on both a partner and an associate for the preparation of Ms. Teulon’s response to this application. It is possible that this was a cost-saving, as opposed to a cost-increasing, measure. The legal effort and cost expended was considerable, but not out of line with the high stakes nature of this application for Ms. Teulon. [ 40 ] I find that Ms. Teulon is entitled to full indemnity costs in the amount of $42,170.09.

This amount was provided to me before the oral hearing and further written submissions on the issue of costs, but no further amount was claimed and I am not prepared to increase the costs award for those steps. Heard on the 3 rd day of June, 2021 with written submissions dated the 16 th day of April, 2021 and the 23 rd day of April, 2021 and the 16 th day of June, 2021 and the 18 th day of June, 2021. Dated at the City of Calgary, Alberta this 29 th day of June, 2021. E.J. Sidnell J.C.Q.B.A. Appearances: Steven C. Schott for the Applicant Trevor R. McDonald for the Respondent