INGRID M. EGGERTSON Appellant (Plaintiff) - v. -, 2003 ABCA 101

Eggertson v. Alberta Teachers ’ Association, 2003 ABCA 101 Date: 20030402 Docket: 01-00131 IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MR. JUSTICE O ’LEARY THE HONOURABLE MR. JUSTICE COSTIGAN THE HONOURABLE MADAM JUSTICE PAPERNY ____________________________________________________ BETWEEN: INGRID M. EGGERTSON Appellant (Plaintiff) - and - ALBERTA TEACHERS ’ ASSOCIATION Respondent (Defendant) APPEAL FROM ORDER OF THE HONOURABLE MR. JUSTICE G. C. HAWCO Dated the 15 th day of February, 2000 ____________________________________________________ MEMORANDUM OF JUDGMENT RE COSTS ____________________________________________________

COUNSEL: G. N. Stapon and J. C. Batzel For the Appellant S. D. Hillier, Q.C. For the Respondent ____________________________________________________ MEMORANDUM OF JUDGMENT RE COSTS ____________________________________________________ THE COURT: [ 1 ] In a judgment released November 5, 2002, we allowed the appellant ’ s appeal from the reviewing judge and set aside a finding that she had violated a provision of the Code of Professional Conduct established by the respondent Alberta Teachers Association ( “ ATA ” ) pursuant to the Teaching Profession Act , R.S.A. 2000, c. T-2 ( “ the Act ” ): Eggertson v.

Alberta Teachers ’ Association , 2002 ABCA 262 . [ 2 ] The appellant seeks an award of costs in this Court and in Queen ’ s Bench in excess of the default scale, Column 1 of

Schedule C to the Alberta Rules of Court . [ 3 ] In August, 1999, the appellant was charged with four counts of unprofessional conduct before a Hearing Committee appointed by the ATA, pursuant to the disciplinary provisions of the Act . Two counts were withdrawn at the initial hearing following representations by appellant ’ s counsel. The hearing proceeded on the remaining two counts.

Appellant ’ s counsel made unsuccessful applications to the Hearing Committee alleging non-disclosure of material evidence and that the charges violated the appellant ’ s rights under the Canadian Charter of Rights and Freedoms and the School Act , R.S.A. 2000, c. S-3 . After a lengthy hearing over two days, the appellant was found not guilty of one count. She was convicted of violating s. 13 of the Code of Professional Conduct : 13.

The teacher criticizes the professional competence or professional reputation of another teacher only in confidence to proper officials and after the other teacher has been informed of the criticism . . . . [ 4 ] The appellant appealed the ruling of the Hearing Committee to the Professional Conduct Appeal Committee ( “ PCAC ” ) as provided by the Act . Her appeal was dismissed after a further hearing. [ 5 ] The appellant applied to the Court of Queen ’ s Bench for judicial review of the decision of the Hearing Committee. Her application was dismissed and she appealed that decision to this Court.

[ 6 ] The appeal was decided on a point first raised before the Hearing Committee and subsequently reiterated before the PCAC and the reviewing judge. [ 7 ] The appellant was represented by the same counsel at all four levels. [ 8 ] We do not have jurisdiction to award the appellant any costs in respect of the proceedings before the Hearing Committee and the PCAC. The Act permits the Hearing Committee and the PCAC to award costs against a member charged with professional misconduct. However, there is no provision for awarding costs of these hearings to the member.

Accordingly, we cannot award the appellant any costs directly attributable to the proceedings before the Hearing Committee or the PCAC: Casey, The Regulation of Professions in Canada (Carswell, Toronto, 1989) at 14-12; Jory v. College of Physicians and Surgeons of British Columbia , [1987] B.C.J. No. 1024 (B.C.C.A.) . In our view, however, we are entitled to consider the history of the proceedings when considering the scale of costs in Queen ’ s Bench and this Court. [ 9 ] In our view, costs on a solicitor and own client basis are not justified in these circumstances.

Neither party can be criticized for the manner in which the proceedings were conducted. This is not a case where justice can only be done by indemnifying the appellant for her out-of-pocket expenses. This is not a rare and exceptional case justifying indemnity costs. [ 10 ] Before discussing the appropriate scale of party and party costs, we must deal with the appellant ’ s submission that she is entitled to a fee for second counsel in both Queen ’ s Bench and this Court. In our view, a second counsel fee is not warranted.

The issues raised on judicial review and the scope and complexity of the appellant's oral and written arguments do not justify awarding an additional counsel fee. Items 11 and 16 of

Schedule C, which provide for a second counsel fee at the trial and appeal levels, imply that the fee is related to the appearances and arguments and not to preparation. [ 11 ] The appellant is entitled to costs in this Court and in Queen ’ s Bench on a party and party basis. Unless we order fees on an increased scale, they are to be calculated in accordance with Column 1 of

Schedule C: Rule 605(6) . [ 12 ] Rule 601(1) lists a number of factors which, in addition to the result, may be considered in deciding the scale of costs. The following are relevant here: ... (

b) the importance of the issues, (

c) the complexity of the proceedings, ... (

i) any other matter relevant to the question of costs. [ 13 ] In Pharand Ski Corp. v. Alberta (1991), 1991 CanLII 5931 (AB KB) , 122 A.R. 395 (QB) , Mason, J. referred to the purpose of

party and party costs and to several factors which may be considered in fixing the appropriate scale. He said at 399: . . . in principle, costs on a party and party scale are awarded on the basis of a reasonable apportioning of the litigation expenses incurred by the successful party having regard to such factors as (

a) the difficulty and complexity of the issues, (

b) the importance of the case between the parties and/or the community at large, (

c) the length of the trial, (

d) the positions and relationships of the parties and their conduct prior to and during the course of the trial, and (

e) other factors that may affect the fairness of an award of costs. [ 14 ] In our view, there are three factors which justify an award of party and party costs in excess of the default scale:

(1) The appellant was required to defend her professional reputation in lengthy internal disciplinary proceedings involving written and oral submissions to the Hearing Committee and the PCAC. She was ultimately vindicated in the position she took in the internal disciplinary proceedings.

(2) In our view, the issue on which the appellant ultimately succeeded is important to both parties. The importance to the appellant is obvious. There are undoubtedly many members of the ATA who are both teachers and parents of children attending school. Resolution of the issue is important to the ATA and to all parent-teachers as it reconciles their rights as parents with their professional obligations as teachers.

(3) The appellant has incurred significant liability for legal counsel. In our view, the retention of competent counsel was justified at all four levels. The scale of costs we propose to award will not indemnify the appellant for her actual costs, however we believe it will provide a fair apportioning of the costs of the proceedings. [ 15 ] We are entitled to award party and party fees in a lump sum, rather than by reference to the items listed in

Schedule C. We award the appellant fees in the amount of $15,000.00 for the proceedings in Queen ’ s Bench and this Court. She is, of course, entitled to recover all reasonable disbursements incidental to those proceedings. Our award includes a fee for the written submissions made in respect of costs. APPEAL HEARD on September 12, 2002 MEMORANDUM FILED at Calgary , Alberta,

this 2 nd day of April, 2003 ______________________________ O ’LEARY, J.A. ______________________________ COSTIGAN, J.A. ______________________________ PAPERNY, J.A.