Rysdyk v Slaney, 2023 ABKB 5

Court of King’s Bench of Alberta Citation: Rysdyk v Slaney, 2023 ABKB 5 Date: 20230105 Docket: 1801 09579 Registry: Calgary Between: Gerrit Rysdyk Plaintiff - and - Cst Slaney Reg # 4176, Cst Svinth-Lassen, Cst Hopper and Roger Chaffin, Chief of the Calgary Police Service Defendants _______________________________________________________ Costs Endorsement of the Honourable Justice JT Eamon _______________________________________________________ Introduction [ 1 ] This is my decision on the costs of the application by the Defendant Calgary Police Service Constables Slaney, Svinth- Lassen and Hopper (the “CPS Officers”) against the Plaintiff, claiming privilege over certain records and requesting that the Court remove the Plaintiff’s lawyers from acting for the Plaintiff in this action. [ 2 ] The Plaintiff alleges in the lawsuit that the CPS Officers assaulted him, breached his Charter rights and maliciously exercised their authority during an interaction with him on the evening of July 9, 2016.

The Plaintiff further alleges that the Calgary Police Service defamed him in a news release or on social media by publishing false statements about the Plaintiff’s actions leading up to

or during his interaction with police. The Plaintiff sued the chief of police, alleging the police chief is liable under the Police Act for the alleged wrongdoings of the CPS Officers and Calgary Police Service. The Defendants deny the allegations. A court has not yet decided whether the allegations are or are not true. [ 3 ] The CPS Officers’ application pertains to records that were created in the investigation or determination of the complaint that the Plaintiff made under the Police Act , RSA 2000, c P-17 against the CPS Officers in respect of the alleged incidents of July 9, 2016. [ 4 ] The records of the investigation include statements obtained by the CPS Professional Standards

Section in the complaint investigation. The CPS Officers claimed privilege over a written statement from Constable Slaney, summaries of statements made in interviews by Constables Svinth-Lassen and Hopper, and an investigative

summary that includes information from the statements. [ 5 ] Eventually the Chief Constable dismissed the complaint, without a formal discipline hearing. He provided detailed reasons, including a recitation of much of the CPS Officers’ statements obtained in the complaint process. [ 6 ] The Plaintiff obtained copies of the statements and investigative

summary from the Calgary Police Service Access and Privacy

Section through a request under the F reedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (“ FOIP Act ”). The Plaintiff received the Chief Constable’s reasons in response to his complaint against the CPS Officers. [ 7 ] The Plaintiff intends to use these records and the information they contain in this lawsuit. [ 8 ] The CPS Officers claimed the investigative statements and

summary were privileged and applied to the Court to remove them from the Plaintiff’s possession, to prohibit their use in the lawsuit, and to remove the Plaintiff’s lawyer Mr Engel and his law firm from representing the Plaintiff in this lawsuit. During oral submissions, counsel for the CPS Officers submitted that the Chief Constable’s reasons were similarly privileged. [ 9 ] In my decision on the application ( Rysdyk v Slaney et al , 2022 ABQB 538 ), I found that Constable Slaney’s statement was privileged and could not be used in the action.

I found that the statements of Constables Svinth-Lassen and Hopper and the Chief Constable’s reasons were not privileged and not subject to limitations on use in the action. I refused the application to remove Mr Rysdyk’s lawyers as counsel in this action. [ 10 ] The parties seek directions on costs. The issue is whether I should allow Mr Rysdyk costs or direct that both sides bear their own costs. Costs principles [ 11 ] The primary purpose of a costs award is to partly indemnify the successful party for the costs of the litigation.

Costs awards also achieve other purposes: they can be used to encourage settlement, to prevent frivolous, vexatious or harassing litigation, and to encourage economy and efficiency during litigation ( Hogarth v Rocky Mountain Slate Inc , 2013 ABCA 116 at para 8 ). [ 12 ] A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, subject to a variety of considerations including the Court’s general discretion under Rule 10.31 ( Alberta Rules of Court , Rule 10.29).

An award of costs is the “prima facie entitlement of the successful party, but that entitlement may not always obtain” ( McAllister v Calgary (City) , 2021 ABCA 25 at para 21 ). [ 13 ] A party need not be successful on each argument or claim to relief, to qualify for this costs entitlement. Justice Macleod stated in Clarke v Syncrude Canada Ltd , 2014 ABQB 430 : [7] Rule 10.29 states that a successful party is entitled to a costs award against the unsuccessful party. This general rule applies where a party is substantially, if not totally, successful in a proceeding.

The Alberta Court of Appeal describes this principle in Mahe v Boulianne , 2010 ABCA 74 at para 6 : [6] The general rule is that the successful party on appeal is entitled to costs of the appeal. It is rare for any successful party on appeal to be successful on each and every argument that is made. Where several forms of relief are requested on appeal, it is also relatively rare for the successful party to succeed on each item of relief. Further, the parties often make arguments on points that the court does not have to deal with, because of the way the decision unfolds.

The general rule contemplates that the party who achieves substantial success on the appeal will receive costs, even if that party is not totally successful, nor successful on every issue or argument. [...] [ 14 ] Where success is mixed to the extent that it cannot be said that one party was “substantially successful”, no order should be made as to costs and the parties will bear their own costs ( Clarke at para 12 ). [ 15 ] However, as Justice Macleod states in Clarke at para 13 , “[w]here success is divided on multiple issues, an apportionment of costs may be appropriate”.

This principle is reflected in Rule 10.31(3)(

c) of the Alberta Rules of Court : in making a costs award for the reasonable and proper costs that a party incurred to file an application, take proceedings or carry on an action, or that a party incurred to participate in an application, proceeding or action, the Court may “order one party to pay to another party all or part of the reasonable and proper costs with respect to a particular issue, application or proceeding or part of an action”. [ 16 ] On the subject of apportionment by issue, the Alberta Court of Appeal in Mahe v Bouilanne states: [6] [... ] Generally the costs follow the ultimate result, and costs are not usually apportioned on an issue by issue basis, a claim by claim basis or on a head of damages basis, although there is a discretion to do that in proper cases: Wilde v.

Archean Energy Ltd. , 2008 ABCA 132 , 88 Alta. L.R. (4th) 54, 429 A.R. 41 at para. 9 ; Sutherland v. Canada (Attorney General) , 2008 BCCA 27 at para. 7 ;

British Columbia v. Worthington (Canada) Inc., (BC CA), [1989] 1 W.W.R. 1, 29 B.C.L.R. (2d) 145, 32 C.P.C. (2d)166 (B.C.C.A.); Portugal Cove St. Phillips (Town) v. Willcott (1997), (NL CA), 150 Nfld. & P.E.I.R. 183, 20C.P.C. (4th) 237 (Nfld. C.A.) at paras. 13 19. In this case the appellant was substantially successful by reducing the amount of thedamage award by a significant amount, and he is entitled to costs of the appeal: Alberta Wheat Pool v.

Northwest Pile Driving Ltd.,2000 BCCA 641, 146 B.C.A.C. 119, 2 C.P.C. (5th) 12 at paras. 18-9. [17] The Court has several options in dealing with cases of mixed success. These include awarding costs to either party by issue;awarding partial costs to one party; and, requiring each party to bear their own costs (Portugal Cove-St Phillips (Town) v Willcott(1997), (NL CA) at paras 11 - 19).

Generally speaking: [18] The differing methodologies employed in each of these approaches are designed to achieve the same result:recognition that the plaintiff has not been fully successful and does not deserve the benefit of the full application of the principle thatcosts should follow the event. [19] Each of the dispositions is within the permissible range of discretion of the judge in awarding costs in a case wheresuccess has been divided. There is no governing principle dictating which of these results is applicable in a given case.

In many cases,the facts and issues do not allow for a precise determination of success or for the assignment of a cost reward on an issue by issue basis.The approach adopted by the judge in the exercise of his discretion must be case-specific taking into account not only the degree ofsuccess by each party but also such factors as the conduct of the parties, the necessary length of the trial and the nature and significanceof the evidence presented. (Willcott at para 18 - 19).

Macleod J sets out helpful examples of this principle in Clarke at para 15 - 25. [18] The Court may in any case, consider such things as the result of the action, the degree of success of each party, and “any othermatter related to the question of reasonable and proper costs that the Court considers appropriate” (Alberta Rules of Court, Rule10.33(1)).

In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider the variety of mattersdescribed in Rule 10.33 (2), including: conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action orany stage or step of the action; a party’s denial of or refusal to admit anything that should have been admitted; whether any application,proceeding or step in an action was unnecessary, improper or a mistake; and, whether a party engaged in misconduct. [19] Rule 10.31 reflects the basic rule that the quantum of a cost award must be reasonable and proper.

The Court of Appealrecently affirmed a general approach to quantifying reasonable and proper costs at a level approximating 40-50% of actual costs(McAllister at para 45). However, neither party seeks such an indemnity in the present case. Parties’ positions [20] The Respondent Plaintiff seeks costs for two half-day special applications with written briefs, under

Schedule C, column 2,item 8(1) of the Alberta Rules of Court, totalling $3370.00. [21] Counsel submits the Respondent was largely successful in the application and should receive costs. The Court should awardthe Respondent the tariff amount for two half-day special applications, because the Applicants’ conduct resulted in an unnecessaryadjournment of the application, submission of supplemental written briefs, and attendance at the second hearing. [22] In respect of the claim for two appearances, counsel observes that the Applicant CPS Officers initially claimed a blanketprivilege over the investigative statements and summaries thereof, under

section 51 of the Police Act or

section 10 of the Police ServiceRegulation, Alta Reg 356/1990 (the “Regulation”). The Applicants had submitted that the content of the statements was irrelevant todeciding whether

section 51 applies to the records. In response, the Respondent Rysdyk submitted (among other things) that

section 51only applies to statements that tend to incriminate the police officer, subject the officer to punishment, or establish the officer’s liability.The Respondent submitted that the contents of the statements were not before the Court and consequently the Applicants did notdemonstrate that

section 51 applied in the present case. [23] Shortly before the first oral hearing of February 18, 2022, counsel for the Applicant CPS Officers uploaded unredacted copiesof the investigative records over which they claimed privilege to the Clerk of the Court. During the oral hearing, that Applicants’ counselsought to rely on these unredacted records to argue that the statements were in fact inculpatory within the meaning of

section 51. [24] I was not aware of the Applicant’s intention to refer to such records before the hearing nor realized that the Applicant had sentunredacted copies of the investigative records to the Court. Nor was Respondent’s counsel aware of these matters.

After hearing theApplicants’ submissions on the merits, I adjourned the hearing to a later date and granted each side leave to submit supplementalevidence and arguments. [25] Counsel submits that as a consequence, the Respondent Rysdyk had to prepare for and attend the first application, then reviewadditional materials and file a second brief for the continuation of the hearing on April 11, 2022. [26] The Applicants’ counsel submits that each side should bear their own costs, because the outcome was mixed (some of therecords were found privileged and some were not).

The Applicants had to bring the application because the Respondent refused toacknowledge the privilege or apply for directions. Further, the Court should limit any costs award to the first appearance. The secondappearance was necessitated by the Respondent’s argument despite the weight of authority, that the explanatory reports were merelysubject to a use restriction rather than a privilege.

Counsel observes that the argument was ultimately not accepted by the Court. [27] The Respondent’s counsel replies that the Applicants breached the Alberta Rules of Court, by sending the unredacted recordsto the Court without applying to seal them on notice to the Respondent.

Costs assessment [ 28 ] Having regard to Rule 10.33(1) of the Alberta Rules of Court , substantial success should be assessed by taking into account all issues in dispute, the outcome and degree of success of each party, the relative importance and complexity of the issues, relevant conduct of the parties, and necessary length of the hearing and nature and significance of the evidence presented. [ 29 ] This is a case of mixed success. Neither party was substantially successful. [ 30 ] The were two types of statements in issue. Constable Slaney provided an “explanatory report” under

section 10 of the Regulation . In contrast, Constables Svinth-Lassen and Hopper attended interviews. The Applicant submitted these interviews were in substance explanatory reports. In contrast, the Respondent submitted they were “interviews” under

section 10.1 of the Regulation and that the statutory protections do not apply to such interviews. [ 31 ] The issues that occupied the most time and attention and were the most significant, were whether the Police Act or the Regulation created a privilege (within the meaning of the FOIP Act ) rather than a use limitation; whether the statements of Constables Svinth-Lassen and Hopper were covered by

section 51 of the Police Act or

section 10 of the Regulation ; and, whether the Respondent’s counsel should be removed as counsel of record in the action. During the oral hearing, counsel for the Applicants added the issue whether the Chief Constable’s recitation of information gathered from the CPS Officers through the complaint investigation was privileged. [ 32 ] These issues were of significant importance to both sides. If the Applicants established privilege over all records in issue, there was a very significant risk that the Plaintiff’s counsel of record would be disqualified from acting for Mr Rysdyk in this action.

I infer that the prospect of disqualification of counsel would be especially important for Mr Rysdyk, given the same lawyers were acting on related matters and his right to choose his lawyer. [ 33 ] The CPS Officers claimed their statements were privileged under

section 51 of the Police Act and

section 10 of the Regulation . The overarching issue whether these provisions created a statutory privilege from disclosure and use of the records carried significant importance for the CPS Officers and Calgary Police Service generally. The prospect of an officer’s explanatory report under

section 10 of the Regulation or interview under

section 10.1 of the Regulation being obtained under the FOIP Act then used for collateral purposes would be of considerable importance to police officers who might face civil liability arising from conduct allegations. [ 34 ] Mr Rysdyk’s side succeeded on most of the principal issues.

He established that explanatory reports and interviews are treated differently under the complaints and discipline scheme; interviews are not subject to the statutory protections (whether or not those protections create a privilege as opposed to a use limitation); two of the three statements (those of Constables Svinth-Lassen and Hopper) were not explanatory reports and could not be privileged; and, the Chief Constable’s reasons for decision dismissing Mr Rysdyk’s complaint were not privileged and therefore any information the Chief Constable took from their investigative statements and included in the reasons for decision was not privileged. [ 35 ] Mr Rysdyk did not succeed on the important issue whether

section 51 of the Police Act creates a statutory privilege over records to which it applies. I found, contrary to the Respondent’s submissions, that

section 51 of the Police Act was capable of creating a statutory privilege over explanatory reports that were provided under

section 10 of the Regulation though not over interviews that took place under

section 10.1 . Consequently, Mr Rysdyk lost the issue whether Constable Slaney’s explanatory report was privileged as opposed to merely subject to a use limitation. [ 36 ] In the circumstances, the privilege finding over Constable Slaney’s statement likely will not have much practical impact on the action.

I found that any prejudice from breach of the privilege over Constable Slaney’s statement was minimal because (1) most of the content of his statement was exculpatory, (2) his inculpatory admission of involvement in Rysdyk’s arrest had been overtaken by the admission in the CPS Officers’ statement of defence, and (3) the significant disclosure of portions of the statement in the Chief Constable’s decision was not improper and terminated confidentiality to the extent of disclosure (reasons on the application at para 161, 163, 164, 165, 167, 173).

Further, this is not a case where the additional detail in the privileged materials, beyond the disclosure in the Chief Constable’s letter, probably would lead to new or further inquiries ( ibid at para 161). I refused the CPS Officers’ application to remove counsel from acting for Mr Rysdyk. [ 37 ] In substance, this was a dispute delineating the boundaries of any statutory privilege.

The parties were seeking to establish in principle whether a statement given by an officer who is a subject of a police complaint and discipline proceeding is or is not privileged and consequently, whether or not such statements can be disclosed under the FOIP Act . The question whether to disqualify counsel was also important, but closely related to the privilege issue. Neither party was wholly successful in its privilege position. The issue whether

section 51 creates a privilege as opposed to a use limitation is a significant one, which went in favour of the CPS Officers. Moreover, Constable Slaney succeeded in showing entitlement to a legal privilege. In substance, the case is one of mixed success. [ 38 ] Absent other considerations, the parties should bear their own costs. [ 39 ] I agree with the Respondent’s submission that the second hearing was necessitated by the Applicants’ decision to provide the unredacted records to the Court and expand on their privilege arguments.

Regardless whether the Applicants or the Respondent applied for directions over the status of the records, the Applicants always bore the onus to prove the records were privileged. When they decided to add to the evidentiary record or add additional or alternative submissions, they should have notified the Respondent. They did not do so (Transcript, Feb 18, 2022 at pp 22/20 – 26/1). The initiative was also late, after the written briefs were filed and very shortly before the hearing. [ 40 ] The adjournment was approximately three months.

The parties filed revised briefs with significantly more authorities and revised arguments. The preparation and learning from the first hearing were partly lost. The first hearing was mostly a thrown away cost.

[ 41 ] Further, civil special applications are premised on an orderly presentation of arguments in advance of the hearing, so that the real issues can be identified and addressed during the oral hearing. Adding evidence or arguments shortly before the hearing and without notice to the other side undermines the objectives of timely and cost-effective litigation ( Alberta Rules of Court , Rule 1.2(1)) and open and timely communication between the parties ( Alberta Rules of Court , Rule 1.2(2)(a)).

Awarding the entirety of the costs of the second hearing to the Respondent would affirm the foundational objectives of the Alberta Rules of Court . [ 42 ] In these circumstances, the Court should award the cost of one of the hearings, including the brief, to the Respondent. The objectives of the Alberta Rules of Court would be best advanced by awarding the entire costs of the second hearing. [ 43 ] The Court may take litigation misconduct into account in assessing costs. Counsel’s obligation where they knew or ought to have known of a privilege issue over records is: [7] ...

The appellant lawyers got documents which they soon learned were beyond their request, were beyond the permission of their beneficial owner, or were the fruit of innocence or neglect by a legal assistant in the absence of the counsel who owned the documents. It was plain that the beneficial owner had refused to extend consent to this class of documents. The plain duty of the recipient counsel was to seal them up, not read them further, take no copies, take no notes, and return any copies or notes already taken.

At the very highest, the appellant lawyers could have sealed everything up and got the court’s direction. ( Firemaster Oilfield Services Ltd v Safety Boss (Canada)

(1993) Ltd , 2001 ABCA 248 at para 7 ). [ 44 ] In this case, Mr Engel ought to have known there was an issue over the status of the records. He was involved as counsel in similar issues in previous cases, as the Applicants point out, and the Applicants notified him of their privilege concerns in this case well before the application was brought. I characterized his dismissive responses to the CPS Officers’ privilege claims as not appropriate and an error of judgment (reasons on the privilege application at paras 157 - 159, 174).

That said, I do not agree with the Applicants that the Respondent was obliged to apply for directions on the privilege claim in the specific circumstances of this case ( ibid ). [ 45 ] Mr Engel’s error did not affect the progress of the present application. Both sides’ positions were arguable. The Applicants always bore the onus to prove their privilege claim regardless of which party filed the application for directions. The actual prejudice to Constable Slaney was minimal.

The Applicants did not ask the Court to reduce or refuse costs only because Mr Engel did not seal or remove the records, nor seek a remedy against Mr Engel personally. [ 46 ] I decline to reduce the costs otherwise recoverable by Mr Rysdyk. Nevertheless, I remind counsel of their obligations where arguable privilege claims are advanced, as described in Firemaster . VIII Conclusion [ 47 ] The Respondent Rysdyk is awarded costs of the application in the amount of $1685. In addition, Rule 10.48 applies.

Heard on written submissions dated September 27, 2022 (Mr Rysdyk), October 26, 2022 (CPS Officers) and November 9, 2022 (Mr Rysdyk’s reply) . Dated at Calgary, Alberta this 5 th day of January, 2023. JT Eamon J.C.K.B.A. Appearances: Coleen Sinclair, City of Calgary Law Department for the Applicant CPS Officers Thomas Engel, Engel Law Office for the Respondent Rysdyk