Sunshine Village Corporation v Boehnisch, 2021 ABQB 63

Court of Queen’s Bench of Alberta Citation: Sunshine Village Corporation v Boehnisch, 2021 ABQB 63 Date: 20210126 Docket: 1901 16940 Registry: Calgary Between: Sunshine Village Corporation Applicant - and - Michaela Boehnisch and the Alberta Human Rights Commission Respondents _______________________________________________________ Decision on Costs of the Honourable Mr. Justice N.E. Devlin _______________________________________________________ A.

Overview [ 1 ] Sunshine Village (“Sunshine”) appealed the decision of the Alberta Human Rights Tribunal finding it liable for disability- related discrimination against Michaela Boehnisch (“Boehnisch”). I dismissed that appeal in reasons reported at 2020 ABQB 692 . The parties cannot agree as to costs, requiring the Court to determine them. [ 2 ] A brief recitation of the facts is of assistance. Boehnisch worked for many years over several decades as a senior on-hill employee of Sunshine. She primarily worked as a senior ski patroller, but also for a time as a snow safety technician.

Despite her desire to continue her career at Sunshine, Boehnisch was not rehired for the 2013 season. The reason for that was the crux of this litigation. [ 3 ] Sunshine claims that Boehnisch had a history of serious injuries, resulting in Workers’ Compensation claims, that made her ill-suited to the physically demanding role she previously had occupied.

At the hearing under appeal, it claimed to have offered her the ski patroller position she desired for 2013-2014, contingent upon completion of a physical demands analysis (“PDA”), which she refused. [ 4 ] Boehnisch claimed that Sunshine refused to offer her the chance to complete the PDA, instead steering her towards a non- skiing position in dispatch, which she viewed as a demeaning alternative and refused. [ 5 ] In the wake of her non-hiring, Boehnisch lodged a discrimination complaint with the Alberta Human Rights Commission (the “Commission”), alleging that Sunshine had discriminated against her on the basis of age, sex, and perceived physical disability.

The matter proceeded to a full hearing before the Alberta Human Rights Tribunal (“the Tribunal”), which accepted Boehnisch’s version of events and found that Sunshine had discriminated against her on the basis of a perceived disability: 2019 AHRC 55 . The Tribunal

awarded Boehnisch $25,000 in general damages and $54,472 for lost wages, less the amount she had earned in mitigation. [ 6 ] Sunshine appealed both the finding of discrimination and the quantum of damages awarded. I dismissed the appeal and upheld the Tribunal’s decision in its entirety. B. Procedural History [ 7 ] Boehnisch seeks solicitor-client costs on the grounds of “inexcusable” conduct by Sunshine in the initial stages of the case before the Commission. A

summary of the procedural history is therefore necessary. The complaint was accepted by the Commission in August 2014. Sunshine responded in October 2014, justifying its actions with reference to a number of allegations. Of relevance to the costs issue, Sunshine asserted that Boehnisch’s manager, Mr. Matheson, did not offer her a ski patroller position for the 2013-2014 season because she: “posed a danger to herself and others”, had “failed to meet the safety and physical expectations of a ski patrol role”, was “unable to make improvements”, “didn’t possess the necessary skill set”, and had “poor motivation”.

Each of these allegations subsequently was disproved by Sunshine’s own records and witnesses at the hearing before the Tribunal. [ 8 ] Most critically, however, Sunshine asserted at the investigation phase that: Mr. Matheson chose to offer Ms. Boehnisch the dispatch position because of her experience and history with Sunshine Village. He chose to offer Ms. Boehnisch a different role than ski patrol… [Emphasis added.] [ 9 ] Before the Tribunal, Matheson’s evidence, and Sunshine’s core position, was that he had in fact offered her the ski patrol position subject to completing a PDA, which she refused.

In other words, at the initial stages of the complaint, Sunshine represented to the Commission that Boehnisch was unfit, leading it to decline to offer her the desired position.

At the hearing before the Tribunal, Sunshine changed its story, asserting that Boehnisch was given the chance to prove she was fit, but refused, despite having received outstanding performance evaluations for her work as a ski patroller. [ 10 ] The Commission assigned a conciliator to the matter in May 2015, but advised Boehnisch on August 10, 2015 that Sunshine would not participate in a conciliation process. [ 11 ] Almost a year later, the Commission assigned an investigator, who prepared a report that was filed a further year later, in July 2017.

The Investigation Report concluded that the information received “supports that there is a reasonable basis for this complaint to proceed to the next stage of the process under the protected ground of physical disability.” [ 12 ] The Investigator’s report was very thorough and identified precisely the point of dispute that became the focus of the Tribunal hearing.

The investigator interviewed Matheson, who gave him a version of events consistent with his evidence at the hearing, but inconsistent with Sunshine’s initial submissions to the Commission. [ 13 ] Notwithstanding the Investigator’s conclusion, the Acting Director of the Commission dismissed Boehnisch’s complaint by way of a written decision dated October 30, 2017, as he was permitted to do under s 22(1)(

a) of the Alberta Human Rights Act , RSA 2000, c A-25.5 [“ HRTA ”]. Unlike the Investigation Report, which highlighted the key factual dispute between the parties and noted that this difference could not be resolved on the material before the Commission at that point, the Acting Director’s decision was brief, conclusory, and, perhaps most importantly, purported to make a finding of fact the Boehnisch could not meet the bona fide physical requirements of the ski patroller job. [ 14 ] The Acting Director’s dismissal of her claim led Boehnisch to request a review under

section 26 of the HRTA . The Chief of the Commission conducted that review and concluded that the complaint should not have been dismissed and that a further inquiry by the Tribunal was required. This ultimately led to the matter proceeding to a hearing. [ 15 ] From a costs perspective, this detour through the s 26 procedure had a significant practical and financial impact.

Section 29(1) of the HRTA provides: Carriage of proceeding 29(1) The director has carriage of a proceeding before a human rights tribunal except where the Chief of the Commission and Tribunals or a member of the Commission has made a decision under section 26(3) that the complaint should not have been dismissed or that the proposed settlement was not fair and reasonable, and in that case the complainant has carriage of the proceeding . [Emphasis added.] [ 16 ] This meant that Boehnisch personally had to fund prosecution of the Complaint before the Tribunal and subsequently before this Court on appeal.

The net result is that the modest award she received may well be offset or outweighed by substantial legal expenses that advancing her claim entailed.

The Parties’ positions [ 17 ] Boehnisch argues that she incurred costs at all in this case solely because “due to Sunshine’s misleading response and evidence provided to the investigator, her complaint was initially dismissed.” She characterizes Sunshine’s behaviour as inexcusable and the sort of misconduct that justifies an award of solicitor-client costs. [ 18 ] In the alternative, Boehnisch relies on this Court’s finding that the appeal was meritless and on her having made, prior to the Tribunal hearing, a genuine settlement offer pursuant to Rule 10.33(2)(h) (often termed a Calderbank offer) that she ultimately beat at

trial. [ 19 ] On the basis of the complexity of the appeal, Boehnisch submitted a draft bill of costs based on Column 3, including second counsel, totalling $14,850. She proposes doubling this to $29,700 on account of the offer to settle. To this she adds disbursements, yielding a total claim for $32,586.34. [ 20 ] Sunshine rejects these submissions. It points out that its position and evidence have been consistent before the Tribunal and on appeal.

It argues that the Acting Director’s dismissal of the complaint was based solely on his conclusion that Boehnisch did not meet the bona fide occupational requirements for the ski patroller position, breaking any causal chain between Sunshine’s initial submissions and the Acting Director’s decision. [ 21 ] Sunshine also relies on the Tribunal’s determination that “this is not a proper case for costs on a solicitor client basis. Such costs are only awarded in very exceptional circumstances where there is some element of blameworthiness in the conduct of the litigation”: 2019 AHRC 55 at para 172 .

This finding, Sunshine argues, precludes Boehnisch from arguing that its conduct was of a nature that would warrant solicitor-client costs. [ 22 ] Sunshine accepts that the complexity of the case warrants a modest increase in party and party costs, but does not agree that it warrants a second counsel fee. Therefore, it proposes counsel costs on Column 2 in the amount of $7,445.

It argues that the pre-hearing offer to settle has no impact as it was not renewed on appeal, leaving no basis for any enhancement of costs, much less a doubling thereof. [ 23 ] Finally, Sunshine submits that document handling, which makes up the lion’s share of disbursements, should be assessed at $0.15 per page for photocopying and scanning, and $0.10 per page for laser printing, as opposed to the $0.25 per page claimed by Boehnisch for each of these. Sunshine’s calculations yield total costs in the amount of $8,518.87. C.

Analysis [ 24 ] The Court’s determination of costs is highly discretionary: Abt Estate v Cold Lake Industrial Park GP Ltd , 2020 ABCA 133 at para 26 , subject to a principled application of the factors set out in Rules 10.33(1) and (2): 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; and

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 25 ] The Rules provide guidance on forms of behaviour by litigants that might be relevant to the award of costs. Specifically, Rule 10.33(2) provides as follows: 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) a 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 defense 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; and (

g) whether a party has engaged in misconduct. Costs to the successful party [ 26 ] I dismissed the appeal in its entirety, so Boehnisch ultimately enjoyed complete success. Therefore, the analysis of costs in this case begins from the premise that “a successful party to an application, a proceeding or action is entitled to a cost of war against the unsuccessful party”: Rule 10.29(1). Value of the claim

[27] Boehnisch’s claim was for two seasons of lost income and $25,000 in general damages, placing the value of the claimsquarely in Column 1. As noted, she argues that the complexity of the case, arising principally from Sunshine’s conduct, warrantsassessing costs on the basis of Column 3 instead. By way of compromise, Sunshine proposes calculating costs on Column 2.

I take thisas a sensible concession that this was not in nature or substance a Column 1 matter. [28] That said, it is also relevant that this was not simply a claim for wrongful dismissal, but rather a human rights claim fordiscrimination that ended a woman’s cherished career.

The pecuniary value of a human rights claim is often a poor proxy for itsimportance and does not reflect the complexity and intensity of the litigation involved in resolving a contested claim of discrimination.There is a lot at stake not only for the claimant, but for the respondent as well, because allegations of unlawful discrimination often carrya moral opprobrium disproportionate to the monetary value of the claim.

Therefore, it is not surprising that respondents often fighthuman rights claims vigorously, as they are entitled to do, resulting in costs to all parties significantly in excess of the dollars at stake. [29] These realities form a significant part of the rationale for these claims normally being prosecuted by the Commission withoutcost to the claimant. I infer that s 29(1) exists to avoid putting the Commission in the invidious position of litigating a claim that itsDirector rejected as meritless.

For individuals like Boehnisch, however, the financial impact and the impact on substantial justice can besevere. [30] I am satisfied that the erroneous dismissal by the Acting Director and the resultant obligation on Boehnisch to self-fund herhuman rights claim are relevant to the exercise of my discretion on costs. Complexity of the appeal [31] In substance, the proceeding before me resembled a contentious appeal in a multi-million-dollar dispute. Sunshine’s factumwas over 70 pages, printed in a condensed font.

As I observed in my reasons, this reflected the full-frontal assault launched on theTribunal’s decision. Sunshine’s approach made the appeal both factually complex, requiring careful consideration of much of thevoluminous record, and legally complex, requiring examination of numerous diverse points of law. [32] This complexity necessarily meant that Boehnisch incurred significantly greater costs in securing representation for herselfand in defending her success at the Tribunal. The manner in which the appeal was advanced was not conducive to a brief reply.Boehnisch’s factum was, of necessity, long and detailed.

This factor weighs strongly in favour of an increased award of costs. [33] I find that Sunshine’s concession that costs should be under Column 2 is a step in the right direction but is not adequate. Iconclude that the most appropriate way to recognize the manner in which Sunshine chose to litigate this matter is to apply Column 3, asBoehnisch proposes. [34] There is no assignment of blame, or finding that Sunshine’s approach to the litigation was improper, at this stage.

Thedecision to treat this as a Column 3 matter is reflects only the substantive scale of the litigation, and the consequences flowing fromSunshine’s legitimate litigation choices. The impact of Boehnisch’s pre-hearing offer [35] Boehnisch formally offered to settle this matter prior to the hearing, for an amount less than she was awarded at that hearing.She argues that the automatic doubling of costs under rule 4.29(1) should apply. The law is not in her favour on this point.

It appears thatthe “doubling effect” of pre-hearing offers that are not renewed pending appeal does not continue past the initial proceeding: SJ vParkland School Division No 70, 2020 ABQB 498 at para 13. [36] That said, I am hard-pressed to discern any justice-oriented reason why someone in her position, facing an appeal in which theappellant bore the burden of demonstrating palpable and overriding error on well-supported factual findings, ought to have offered a“meaningful compromise” of her meagre damage award.

However, since a just and proportionate costs award can be reached through theconsideration of other factors, I leave the question of whether a rejected offer to settle in the human rights context could have someknock-on effect in respect of appeal costs for another day. I place no weight on this consideration.

Fee for second counsel [37] The principles governing fees for second counsel were reviewed by the Court of Appeal in Alberta Productions Corp vCanada Lands Co, 2004 ABCA 25 at para 2: A number of factors have been recognized as relevant to the allowance of a fee for second counsel, including the general importance ofthe issue or issues to the parties or to others, the value of the case, the complexity and scope of the issues, the size of the trial record, themanner in which opposing counsel conducts the case and whether second counsel addressed the Court: Kassam v.

Dragish, (1991), (AB KB), 49 C.P.C. (2d) 174, 123 A.R. 161 (Q.B.) ; Murray v. Bitango (1996), (AB CA), 40 Alta.L.R. (3d) 110 (C.A.); Mackie v. Wolfe (1996), 1996 ABCA 255 , 41 Alta. L.R. 28 (C.A.). [38] These factors are equally split in this case. The matters were of great importance to the parties, as demonstrated by thecomplexity and scope of issues arising from the manner in which Sunshine chose to prosecute the appeal. The trial record was neithersmall nor overly voluminous, though, as I will discuss below, a comprehensive understanding of it was required.

Second counsel did nottake carriage of any of the oral argument. [39] I take note of the Court of Appeal’s caution against the over-awarding of second counsel fees, in cases such as AlbertaMortgage and Housing Corporation v Alldritt Development Limited, 1995 ABCA 266 at para 2 and I agree that second counsel oftenwill be less necessary on appeal, once the issues have narrowed to discrete points of law. However, choosing to re-argue the factualunderpinnings of a trial decision on appeal involves presenting highly fact-dense submissions, often necessitating detailed, real-timereferences to the record.

This litigation choice increases the need and rationale for the presence of second counsel at the appeal. Juniorsare often relied upon to have a more thorough and ready grasp of a large record, and thus have a greater role to play in appeals of this

nature. Therefore, parties who opt to factually relitigate a trial on appeal will be more weakly positioned to argue against the presence of second counsel. [ 40 ] Having myself spent a great many hours parsing repeatedly through the record of exhibits and volumes of transcript, I feel practically compelled to find that a second counsel fee was appropriate in this case. Merits of the appeal [ 41 ] I concluded that this appeal had no merit as it sought to reverse supported findings of fact.

Indeed, once the standard of review was determined to be palpable and overriding error, the appeal on liability had no prospect of success. The absence of merit is a factor the Court may properly consider in the award of costs: SJ at para 35 ; Eist v Goldstick Estate , 2019 ABCA 508 at para 42 ; Oleynik v University of Calgary , 2013 ABCA 278 at para 7 ; Rain v Canada (Parole Board) , 2015 ABQB 747 at para 13 . [ 42 ] That said, Sunshine had a statutory right of appeal, this matter closely followed a change in the law on standard of review, and the appeal on damages, while also unsuccessful, was arguable.

On balance, I find that the overall lack of merit in the appeal weighs in favour of somewhat higher costs compensation to the respondent. Sunshine’s conduct [ 43 ] The most contentious issue on this costs dispute is whether Sunshine’s pre-hearing conduct improperly resulted in Boehnisch having to carry the costs of litigation personally rather than being represented by the Commission. [ 44 ] Much of the time before the Court and pages of argument in the facts were consumed by Sunshine’s attempt to have Matheson’s version of the story accepted.

That version was fundamentally inconsistent with Sunshine’s initial submissions to the Commission, upon which the Acting Director rejected the claim.

Indeed, given the rather rash finding of fact upon which the complaint was dismissed, I find that Sunshine’s unsupported initial suggestions that Boehnisch was dangerous, unqualified, and possessed a poor and incorrigible attitude, must have played a role in the Acting Director’s decision. [ 45 ] That decision shifted the entire burden of litigation costs, including the cost of the appeal, to Boehnisch personally whereas, within the human rights paradigm, her interests normally would have been represented by the Commission at no cost. That is both unfair and relevant to the cost assessment on appeal.

While I do not accept that this factor warrants an increase in quantum to the level urged by Boehnisch, I am satisfied that it is a relevant, highly case-specific consideration to be taken into account. [ 46 ] In simple terms, I accept that if Sunshine’s position had remained factually consistent throughout the process, Boehnisch would have been materially less likely to be saddled with the costs of vindicating her legitimate human rights claim. [ 47 ] The Acting Director’s reasons for rejecting Boehnisch’s claim make no mention of the Investigator’s nuanced appreciation of the parties’ positions and the landscape of dispute.

Rather, he appears to have adopted the factual misrepresentation contained in Sunshine’s submissions, accepting as a fact that “…the Respondent elected to offer the complainant a role as a dispatcher instead of a ski patrol [sic]”, and that she had been demonstrably unfit for the role. [ 48 ] Before the Tribunal, Sunshine’s entire defence of its conduct was premised on diametrically contradictory facts, namely that it had offered Boehnisch a ski patrol position, subject only to a PDA which she refused.

While the Acting Director’s rejection of the claim also appears to have been driven by his ignorance of the principles governing bona fide occupational requirements, I find that Sunshine’s impugned submissions on Boehnisch’s ability and performance played a role in this unjust outcome.

This conduct was improper and is a factor I am entitled to consider in exercising my discretion on costs. [ 49 ] While I was not directed to a case directly on this point, I note that this Court in Mystar Holdings Ltd v 247037 Alberta Ltd , 2009 ABQB 480 considered whether inconsistent allegations in pleadings could constitute an abuse of process.

The Court held at para 49 that “In general, I am persuaded that a party is not free to deliberately argue diametrically inconsistent facts in various actions, thus knowingly advancing irreconcilable positions which are not articulated as alternative claims.” Conclusion on column costs [ 50 ] For all of these reasons, I award Boehnisch costs on the basis of Column 3, permitting second counsel. This objectively reflects the manner and scale of litigation chosen by the unsuccessful party.

I further find that the lack of merit to the appeal, together with the role Sunshine’s shifting position played in unfairly saddling Boehnisch with the cost of this litigation, all considered in the unique context of a well-founded human rights claim, warrant an enhancement of costs. [ 51 ] I do not, however, find that there was exceptional misconduct rises to the level warranting solicitor-client costs. Placing all the factors into the mix, and viewing the matter through my lens of direct experience with the case, I exercise my discretion to award a 50% enhancement of costs, to $22,275, plus disbursements.

Cost of disbursements [ 52 ] As a final matter, I am satisfied that Boehnisch’s claim for disbursements is appropriate. The dispute as to whether $0.15 or $0.25 is the appropriate per-page cost of printing and copying dates back over 20 years: see Huet v Lynch , 2001 ABCA 37 at paras 20 ff ; Sidorsky v CFCN Communications Ltd , 1997 ABCA 280 at para 46 . Copying and printing has not become less expensive in the ensuing decades. I also take notice that, throughout this period, many firms have charged significantly more to their clients for these services.

As an exercise of my discretion, I find it appropriate that Boehnisch be closer to fully compensated for disbursements incurred in defending this appeal: Dechant v Law Society of Alberta , 2001 ABCA 81 at para 30 . Therefore, her basis for calculating disbursements is accepted.

D. Conclusion [ 53 ] Boehnisch is awarded costs in the amount of $22,275, plus disbursements. Dated at the City of Calgary, Alberta this 26 th day of January, 2021. N.E. Devlin J.C.Q.B.A. Appearances: D. Robb Beeman Allie Laurent for Michaela Boehnisch L. Frank Molnar, Q.C. Austin Ward for Sunshine Village Corporation