Anglin v Alberta (Chief Electoral Officer), 2021 ABQB 623

Court of Queen’s Bench of Alberta Citation: Anglin v Alberta (Chief Electoral Officer), 2021 ABQB 623 Date: 20210809 Docket: 1703 03014 Registry: Edmonton Between: Joseph Anglin Applicant - and - Chief Electoral Officer Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction [ 1 ] On January 31, 2017, the Respondent Chief Electoral Officer (CEO) found that the Applicant (Anglin) had breached s 19.1 of the Election Act , RSA 2000, c E-1 which requires that a person provided with a list of electors under the Act take all reasonable steps to protect the list from loss and unauthorized use.

The CEO imposed an administrative penalty of $500 under s 153.1 of the Act . [ 2 ] Anglin brought an application appealing the decision of the CEO on administrative law grounds, and challenging the constitutionality of the CEO’s authority to impose an administrative penalty under s 96 of the Constitution Act , 1867 (UK), 30 & 31 Vict,

c 3, reprinted in RSC 1985, App II, No 5. In a preliminary decision dated March 23, 2020, I dealt with the administrative law aspects ofthe application: Anglin v Alberta (Chief Electoral Officer), 2020 ABQB 131 (the Administrative Decision).

I allowed the appeal on theground of lack of procedural fairness, and determined that the appropriate remedy was to remit the matter back to the CEO forreconsideration. [3] Subsequently, Anglin brought an application seeking reconsideration of the Administrative Decision and the Minister ofJustice and Solicitor General of Alberta (Alberta), Intervener on the constitutional challenge brought an application to have Anglin’sconstitutional challenge declared moot. [4] On May 4, 2021, in relation to Anglin’s application, I varied the remedy imposed in the Administrative Decision to rescindthe administrative penalty: Anglin v Alberta (Chief Electoral Officer), 2021 ABQB 353 (the Reconsideration Decision).

I allowedAlberta’s application to have the constitutional challenge declared moot. [5] In the within desk application, Anglin seeks costs against the CEO for the hearings in this Court resulting in theAdministrative Decision and the Reconsideration Decision, and for the earlier proceeding before the CEO. [6] No costs are sought by or against Alberta in relation to the constitutional challenge.

Applicable Law [7] The general rule is that administrative decision makers do not receive or pay costs for participating in an appeal of theirdecision: [4] The general rule is that (absent misconduct or extraordinary circumstances) an administrative tribunal that is involved in proceedingsto review its decisions neither receives nor pays costs: [citations omitted] Sihota v Edmonton (City), 2013 ABCA 125. [8] This rule was very recently applied by this Court in relation to the Election Commissioner of Alberta in a case where, as inthe Administrative Decision, the Court determined that the Election Commissioner had breached the duty of fairness: Wenzel v ElectionCommissioner of Alberta, 2021 ABQB 445.

Submissions and Analysis [9] Anglin submits that the general rule does not apply for two reasons. First, in a preliminary application in this appeal, theCEO received a costs award against Anglin. Anglin applied to include in the Certified Record records that were not before the CEO. Hisapplication was dismissed, and costs on Column 1 were ordered against him: Anglin v Alberta (Chief Electoral Officer), 2018 ABQB309, at para 58.

Further, costs were ordered against Anglin in a separate appeal brought by Anglin against the CEO: Anglin v ChiefElectoral Officer, 2018 ABCA 296. [10] Counsel for the CEO notes that the CEO did not seek costs on the preliminary application in this appeal. When costs wereordered by the Court, the CEO did not claim disbursements in the Bill of Costs, and included only the

Schedule C amount for appearance($500) as directed by the Court. Regarding the separate appeal, the CEO did not seek costs in respect of Anglin’s appeal before the Courtof Queen’s Bench and took no position on the outcome of his appeal to the Court of Appeal. When Anglin applied for leave to appeal tothe Supreme Court of Canada, the CEO submitted that costs should be in the cause.

The Supreme Court of Canada dismissed theapplication for leave and awarded costs to the CEO. [11] Secondly, Anglin submits that the general rule does not apply because the CEO took a position on the outcome of the appealin a number of instances, including arguing that the CEO’s disclosure to Anglin met the duty of fairness, and opposing Anglin’sapplication for reconsideration of the remedy.

Anglin also takes the position that the CEO was unreasonable in his responses to Anglin’srequests for disclosure during the investigation under the Election Act. [12] In Sihota, the Court of Appeal noted that the general costs rule is premised on the assumption that the tribunal “generallydoes not take a position on the outcome of the appeal”, and “speaks only to its jurisdiction, to the standard of review, or to explain therecord and the proceedings before it”: at para 5.

The “involvement of the tribunal in a review of its own decisions is limited in order tomaintain the neutrality of the tribunal”; however, “where there is no other party speaking to the issues, the tribunal is allowed to expandthe scope of its submissions, although it should still ensure that the tone of its submissions is consistent with its role”: at para 6. TheSubdivision and Development Appeal Board made expanded submissions in Sihota, in the absence of another litigant.

The Board “took aposition on the standard of review to be applied, and commented on the legal issues, but took no position on the merits of the argument”:at para 7. The Court of Appeal found that the Board’s conduct did not take the appeal out of the general costs rule. [13] I find that the factors relied on by Anglin are not supported by the circumstances of this case, and do not take the appeal out ofthe general costs rule. [14] The costs award imposed by the Supreme Court of Canada in a separate appeal is irrelevant to my assessment of costs in thiscase.

The $500 costs award on a preliminary application in this appeal was not sought by the CEO and, while I view it as inappropriate inview of the general costs rule, I see no basis to penalize the CEO or to set aside the general rule on this application. [15] As to the CEO’s role on the appeal and the reconsideration application, while it was expanded to some extent in light of theabsence of another litigant, the submissions were consistent with the role of the CEO throughout.

The CEO commented on the legalissue regarding the extent of disclosure required by the duty of fairness, pointing out, for example, the inapplicability of the standard ofdisclosure in R v Stinchcombe, (SCC), [1991] 3 SCR 326 that had been relied on by Anglin. The level of disclosurerequired in this case depended on a fairly extensive consideration of provisions of the Election Act. In the absence of another respondent,the CEO made submissions regarding those provisions. Regarding the reconsideration application, the Court was considering

amendments to the Election Act that were made after Anglin commenced the appeal. Again, in the absence of another litigant, the CEO made submissions regarding retrospectivity of the amendments.

The CEO did not take a position as to the appropriate remedy in this case, but did draw to the Court’s attention the decision of Dario J. in Rumpel v Alberta (Election Commissioner) , 2019 ABQB 938 , where the remedy adopted was that sought by Anglin: rescission of the administrative penalty. [ 16 ] Anglin’s complaints regarding the CEO’s conduct during his investigation were similar to complaints addressed at length in the appeal, and rejected in the Administrative Decision. I did not find that the CEO had reacted inappropriately to Anglin’s repeated demands for disclosure throughout the proceeding.

I found that “the CEO responded to numerous disclosure requests by counsel for Anglin and provided numerous documents throughout the course of the investigation”: Administrative Decision, at para 80. I also rejected Anglin’s argument that the breach of the duty of fairness arose from bias on the part of the CEO: While I have found that the duty of disclosure was not met in this case, there is nothing in this error that indicates bias on the part of the CEO.

There was no precedent determining what disclosure should be provided; the CEO’s approach of providing information in a Notice of Intended Findings was in my view a good faith effort to comply with his obligations. Administrative Decision, at para 80. [ 17 ] I agree with the decision of Jones J. in Wenzel v Election Commissioner of Alberta , at paras 27-30 , that procedural unfairness that does not amount to capriciousness or malfeasance on the part of the CEO also does not justify a departure from the general costs rule. Conclusion The Applicant’s application for costs is dismissed.

The parties shall bear their own costs. Application by written submissions from Mr. Bur, dated May 17, 2021 and Ms. Elhatton-Lake, dated May 25, 2021 and June 9, 2021 . Dated at the City of Edmonton, Alberta this 9th day of August, 2021. J.M. Ross J.C.Q.B.A. Appearances: Donald F Bur for the Applicant, Joseph Anglin William Shores, QC , Kathleen Elhatton-Lake, Shores Jardine LLP for the Respondent