Neustaedter v Alberta Labour Relations Board, 2023 ABKB 466

Court of King’s Bench of Alberta Citation: Neustaedter v Alberta Labour Relations Board, 2023 ABKB 466 Date: 20230814 Docket: 2101 09589 Registry: Calgary Between: Don Neustaedter Applicant - and - Alberta Labour Relations Board Respondent - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09590 Registry: Calgary Between: Mike O’Neill Applicant - and - Alberta Labour Relations Board Respondent - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09591

Registry: Calgary Between: Mike Principalli Applicant - and - Alberta Labour Relations Board Respondent - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09592 Registry: Calgary Between: Volker Stevin Contracting Ltd Applicant - and - Alberta Labour Relations Board Respondent - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09594 Registry: Calgary Between: James Wallace Applicant - and -

Alberta Labour Relations Board Respondent - and - Minister of Justice and Solicitor General of Alberta Intervenor _______________________________________________________ Endorsement on Costs of the Honourable Justice D.A. Labrenz _______________________________________________________ [ 1 ] The Applicants applied for judicial review in respect of certain administrative penalties levied against them by Occupational Health and Safety. In my decision cited at 2023 ABKB 294 , I dismissed the application and upheld the administrative penalties.

That decision is currently under appeal and the parties have been unable to agree on costs. In this costs endorsement, all capitalized terms have the same meaning as set out in my decision. [ 2 ] The Respondent, which I will refer to as “OHS”, was the successful party in respect of all five judicial review applications.

I note that the Applicants raise an issue with respect to the proper nomenclature for the Respondent, but in my view, nothing turns on that. [ 3 ] In their costs submissions, the Applicants make reference to s. 69 of the statute in force at the relevant time, being the Occupational Health and Safety Act of Alberta , SA 2017 c O-2.1 : On an application under section 51(5), 67, 71(9) or 89(6)(a)(v), (b)(

v) or (c)(v), the Court of Queen’s Bench may make any award. [ 4 ] Though the Applicants’ argument is made somewhat obliquely, it appears to be encapsulated by the Latin maxim unis est exclusion alterius – that is, the expression of one thing is the exclusion of the other. In essence, the Applicants appear to argue that because the statute permits this Court to make costs awards in respect of certain enumerated applications, the Court has no jurisdiction to make a costs award in respect of applications not enumerated. [ 5 ] In the absence of more fulsome and persuasive argument, I am not satisfied that this is the case.

Section 21 of the Court of King’s Bench Act , RSA 2000 c C-31 provides as follows: Subject to an express provision to the contrary in any enactment, the costs of and incidental to any matter authorized to be taken before the Court or a judge are in the discretion of the Court or judge and the Court or judge may make any order relating to costs that is appropriate in the circumstances. [ 6 ] I am not satisfied that the reference in the Occupational Health and Safety Act to costs awards in certain circumstances is sufficient to remove this Court’s discretion to make an award of costs on a judicial review application.

In my view, the statute’s enumerated provisions that expressly provide for an order for costs are of such a nature that - without an express statutory provision - a costs award might not be seen as obviously appropriate. Costs are, however, routinely granted by the Courts following a judicial review in the absence of any express statutory provisions. [ 7 ] The Applicants reference Rule 10.42, which provides in part:

(2) Despite anything in this Division or

Schedule C [ Tariff of Recoverable Fees ], unless the Court otherwise orders: (

a) in the case of an action brought in the Court of King’s Bench for which the amount sued for or the amount of the judgment or order does not exceed the amount for which the Court of Justice has jurisdiction under

section 9.6 of the Court of Justice Act , the costs to and including judgment or order must be assessed, if at all, at not more than 75% of the amount specified in Column 1 of the tariff in Division 2 of

Schedule C [ Tariff of Recoverable Fees ]; [ 8 ] The Applicants argue as follows in their written submissions: The amount at stake is also well within the jurisdiction of the Provincial Court (Alberta Court of Justice) and had the subject matter also been within the jurisdiction of that lower Court the Rules on costs would require the column 1 costs to be further reduced by 24% (Rule 10.42). [ 9 ] While this is true, an application for judicial review is not within the jurisdiction of the Alberta Court of Justice. Such an

application must be brought in this Court. Further, Rule 10.42(1) dictates that “This rule applies only to actions the subject-matter of which is within the jurisdiction of the Court of Justice.” Therefore, Rule 10.42 has no application to this matter. [ 10 ] OHS filed a Bill of Costs and a written submission in respect of each of the five actions that formed part of this matter. The five Bills of Costs and written submissions were identical.

Each Bill of Costs sets out three-line items: an application before Justice Arcand-Kootenay, a case conference before former Associate Chief Justice Rooke and a full day judicial review application with brief. The costs claimed for each of these items are stated to be on Column 5, but this appears to be a typographical error, since the costs themselves are clearly those set out in Column 1. OHS claims $340 for each of the first two items and $2025 ($1350 + $675) for the judicial review application, for a total of $2,705 per each Bill of Costs.

OHS seeks this amount for each of the five actions, for a total of $13,525. [ 11 ] While I appreciate that this total is relatively modest and that there were five Applicants, the arguments on the judicial review were substantially the same and the arguments made on this costs’ application, as noted above, are identical. This, in my view, justifies a modest reduction in the costs award. [ 12 ] Accordingly, taking all the foregoing into account, I award costs to OHS as a lump sum of $2,000 in each action, totalling $10,000.

Having noted the consent of OHS, each cost order is stayed pending the resolution or disposal of the appeal. Heard on the 27 th day of July, 2023. Dated at the City of Calgary, Alberta this 14 th day of August, 2023. D.A. Labrenz J.C.K.B.A. Appearances: C. Michael Smith for the Applicants Natalie Tymchuk for Occupational Health and Safety