Black v Alberta, 2023 ABKB 199

Court of King’s Bench of Alberta Citation: Black v Alberta, 2023 ABKB 199 Date: 20230406 Docket: 2301 01360 Registry: Calgary Between: Ophelia Black Plaintiff - and - His Majesty the King in Right of Alberta Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] Ophelia Black seeks costs of her successful injunction application, Black v Alberta , 2023 ABKB 123 , on a full indemnity basis. Ms.

Black further contends that she brought forward a matter of significant public interest and that the effect of the injunction goes well beyond her personal interest in the case. She asserts that, as a person with no financial resources, she should not be required to pay to vindicate her constitutional rights.

[2] Alberta says that it should only be responsible for compensating 40 to 50% of Ms. Black’s actual costs consistent with thedefault rule established by the Court of Appeal in McAllister v Calgary (City), 2021 ABCA 25 at para 37. Alberta submits in its briefthat “[t]he default cost rules apply even to matters that engage the public interest, even where the claimant is impecunious.” Costs in Constitutional Litigation [3] The Court of Appeal explained in McAllister at para 37 that a typical costs award is a partial indemnity.

The Court ofAppeal went on at para 41 to hold “[i]n Alberta, the weight of authority is that party and party costs should normally represent partialindemnification of the successful party at a level approximating 40-50% of actual costs” [citations omitted]. [4] The normal costs rules do not always apply in public interest constitutional litigation. Sharpe J, as he then was, in Mahar v.Rogers Cablesystems Ltd. (1995), (ON SC), 25 OR (3d) 690 at 704-705 explained: ... public interest litigants are in a different position than parties involved in ordinary civil proceedings.

The incentives and disincentivescreated by costs rules assume that the parties are primarily motivated by the pursuit of their own private and financial interests. Anunrelenting application of those rules to public interest litigants will have the result of significantly limiting access to the courts by suchlitigants.

Such a consequence would be undesirable with respect to proceedings such as the present one which was, in my view, broughton a bona fide basis and which raised a genuine issue of law of significance to the public at large. [5] There are, however, constitutional cases where a litigant has a significant private interest in the outcome of the litigation andit is appropriate for the normal costs rules to prevail: Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA254 at para 6. [6] Wagner CJC, writing for the Court in in British Columbia (Attorney General) v Council of Canadians with Disabilities,2022 SCC 27 at para 119 explained that there are two criteria that must be met in a public interest case for a Court to order full indemnitycosts: 1. the case must involve matters of public interest that have a “significant and widespread societal impact” and are “trulyexceptional”; and 2. the plaintiff must show that it has no personal, proprietary or pecuniary interest that would justify the proceedings on economicgrounds, and that it would not have been possible to effectively pursue the litigation in question with private funding [citations omitted].

Application to the Present Case [7] Ms. Black submits that the injunction was exceptional for three reasons. First, the Court found that the public interest clearlyfavoured the granting of the injunction. A finding that the public interest favours the granting of an injunction is unusual and, therefore,exceptional. Second, the litigation process uncovered an exemption process that would otherwise have been unknown to the public. Third, the application revealed how the regulatory framework contravened Charter s 15 which, in turn, provides a basis for invalidatingthe regulatory framework.

This means that the application may have an impact that goes beyond Ms. Black. [8] Alberta refutes the submission that the injunction was exceptional. Alberta further submits that Ms.

Black’s position iseffectively a rejection of the requirement that a case be “truly exceptional” and returns to the lower standard in Victoria (City) vAdams, 2009 BCCA 563 that was rejected by the Supreme Court of Canada in Carter v Canada (Attorney General), 2015 SCC 5 at para137. [9] The Supreme Court has found that cases raising a novel issue (S.A. v Metro Vancouver Housing Corp., 2019 SCC 4 at para69) and cases concerning the constitutionality of legislation are not exceptional (Reference re Genetic Non-Discrimination Act, 2020SCC 17 at para 106 and para 273).

The Court in Carter held at para 137 that “[i]t is not enough that the issues raised have notpreviously been resolved or that they transcend the interests of the successful litigant: they must also have a significant and widespreadsocietal impact.” [10] Do the issues raised by Ms. Black have the “significant and widespread societal impact” required to justify a full indemnitycosts award? Ms. Black’s injunction application occurred in the context of a broader policy shift in Alberta’s management of the opioidcrisis away from harm reduction. But the issue that was the subject of the injunction – Ms.

Black’s ability to continue to be dispensedmedicine for use at home – was only a small part of this larger policy shift. The evidence before the Court was that because manypatients who previously had been receiving opioid agonist treatment at home had been transitioned to clinic-based treatment, not manypeople, if any, were similarly situated to Ms. Black. The injunction did not have the significant and widespread societal impact requiredto justify a full indemnity costs award. [11] Ms.

Black has a personal interest in the litigation – maintaining her current treatment regime – but she has no economicinterest at stake. Ms. Black is impecunious and has only been able to pursue this proceeding through online fundraising. She managedto raise $10,522.93 against legal fees of $62,057.40. I am satisfied that Ms. Black has shown that it was not possible for her to effectivelypursue the litigation with private funding. Ms. Black’s Costs in Context [12] Ms. Black seeks recovery of the full amount of her legal costs, being $62,057.40 plus disbursements.

In the alternative, sheseeks $51,534.47 which is the amount of her legal fees less what she was able to fundraise.

[ 13 ] The present case involved the filing of many affidavits, including expert affidavits, questioning on those affidavits, and submission of written briefs. All the work was done in a compressed period. The amount of work undertaken by the parties was comparable to what the Court sees for injunctions in large commercial matters. [ 14 ] Fees for contested interlocutory injunctions in commercial matters often exceed $100,000.

See, for example, GG & HH Inc v 2306084 Alberta Ltd , 2022 ABKB 834 at para 7 where the defendant spent $238,546.50 on legal fees and Brandt Tractor Ltd v BOMAG (Canada) Inc, 2021 ABQB 948 at para 4 where the defendant spent $218,419.50 on legal fees. Viewed in this context, the fees incurred by Ms. Black are modest indeed. Conclusion [ 15 ] The test set out in Council of Canadians with Disabilities was shaped in test case litigation driven by interest groups. The present case is different because Ms.

Black is an impecunious individual who did not set out to change the law until Alberta implemented the Regulation and Standards which had the effect of changing her medical treatment. Put differently, Alberta put her in a position where she had to invoke her constitutional rights to defend the status quo . [ 16 ] The present case is not “truly exceptional” as required by Carter and Council of Canadians with Disabilities for an award of full indemnity costs, but I am satisfied that Ms.

Black, as an impecunious individual who was given no choice but to litigate to defend her constitutional rights so that she could continue her treatment regime, merits an award of costs greater than the 40-50% indemnity in McAllister . Accordingly, I award Ms. Black a 67% indemnity. [ 17 ] Alberta submits that any costs award based on a percentage of legal fees should instead be based on the legal fees incurred minus the funds raised by Ms. Black. No authority was cited to support this position. Alberta’s submission is untenable.

Often a litigant will pay a lawyer’s fees out of her own funds, but other times a litigant may be funded by insurance, an indemnity from a third party, an advance from a friend or family member, a bank loan, or another source of funds. Whether the litigant has raised funds to pay her lawyer is irrelevant to the right of the litigant to recover costs from an adversary. [ 18 ] I award Ms. Black $41,578.46 in costs plus reasonable disbursements. Dated at the City of Calgary, Alberta this 6 th day of April, 2023. Colin C.J. Feasby J.C.K.B.A.

Appearances: Avnish Nanda, Nanda & Company for the Plaintiff Nate Gartke & Ryan L. Martin, Alberta Justice Constitutional & Aboriginal Law for the Defendant