Keller v. Bighorn No. 8 (Municipal District) et al., 2013 ABQB 374

• Judge: Hunt McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 28, 2013
• Citations: 2013 ABQB 374;(2013), 564 A.R. 328 (QB)

Keller v. Bighorn No. 8) (2013), 564 A.R. 328 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.051

Rod Keller (applicant) v. Municipal District of Bighorn No. 8 and Wild Buffalo Ranching Ltd. (respondents)

(0701 09911; 2013 ABQB 374)

Indexed As: Keller v. Bighorn No. 8 (Municipal District) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hunt McDonald, J.

June 28, 2013.

Summary:

Keller applied for judicial review of three bylaws enacted by the respondent Municipal District (MD) of Bighorn. The combined effect of the bylaws would permit the respondent Wild Buffalo Ranching Ltd. to transfer "density credits" from one parcel of land owned by Wild Buffalo to another to permit Wild Buffalo to proceed with a proposed residential development called Carraig Ridge. The site proposed for Carraig Ridge was directly adjacent to lands owned and maintained as a nature preserve by Keller.

The Alberta Court of Queen's Bench, in a decision reported at (2010), 481 A.R. 93, dismissed the application to declare the bylaws invalid. The Alberta Land Stewardship Act did not retroactively invalidate the bylaws, and in any event, only the Stewardship Commissioner, and not Keller, might challenge the bylaws on the basis of inconsistency with that Act. The parties made written submissions on costs. The respondents requested an increased level of costs. MD, supported by Wild Buffalo, had made an informal offer on April 10, 2008, to resolve matters, which Keller had rejected. Keller raised several arguments against having to pay costs.

The Alberta Court of Queen's Bench awarded costs to both the MD and Wild Buffalo for double the amount of costs (excluding disbursements) Schedule C, Column 5, that they would otherwise have recovered for all steps in relation to the defence after the informal offer was made.

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - [See Practice - Topic 7111.2 ].

Municipal Law - Topic 3881

Bylaws - Quashing bylaws - Judicial review - Practice - General - [See Practice - Topic 7111.2 ].

Practice - Topic 6923.1

Costs - General principles - What rules applicable - [See Practice - Topic 7111.2 ].

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - The applicant unsuccessfully applied for judicial review of three bylaws - He argued that he made the application in the public interest, that he should be given public interest standing and therefore should not be responsible for paying costs - The Alberta Court of Queen's Bench held that public interest standing was inappropriate in this case - Public interest standing was intended to allow those who might not otherwise be able to bring an action to do so in the public interest - This usually took the form of a group or organization who brought the action in the place of those who would be unable to do so on their own - The applicant was a private litigant - Though his position as the person most affected by the bylaws did not necessarily exclude him from public interest standing, such a finding would be out of place - Others brought concerns regarding the bylaws to the public hearings held by the municipal district, but none of those individuals sought to join in the application - There was no substantive indication that the applicant made his application as anything but an individual who stood to be impacted if the bylaws passed - See paragraphs 32 to 36.

Practice - Topic 7111.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Test case - The applicant requested a judicial review of three bylaws that he alleged permitted a residential development adjacent to his nature preserve - The application to declare the bylaws invalid was dismissed - The applicant argued that this was a test case, and therefore he should not have to pay costs - The Alberta Court of Queen's Bench held that the case at bar was not a test case, nor did it raise sufficient novel points of law to effect a costs award - "Test cases traditionally occur in situations where there are several parties with potentially similar causes of action and one is selected to determine whether there is any chance of success for the others, situations where the precedential value of the judgment is of greater concern to the parties involved than the individual impacts of the judgment on the parties, or situations that involve a novel legal argument that, if successful, could potentially affect the legal rights and standing of others ... These considerations are not found in the case at bar. ... Though the case at bar can be considered a complex case and it did involve interpretation of new legislation, such interpretation was in fact quite straightforward." - See paragraphs 28 to 31.

Practice - Topic 7111.2

Costs - Special orders - Increase in scale of costs - Effect of settlement offer - The applicant requested a judicial review of three bylaws - The respondents had made an informal offer on April 10, 2008, to resolve matters, which the applicant had rejected - The reviewing judge held that the bylaws were valid - Judgment was granted in May 2010 - The new Rules of Court came into force in November 2010 - The respondents requested an increased level of costs - The Alberta Court of Queen's Bench awarded costs for double the amount of costs (excluding disbursements) Schedule C, Column 5, that they would otherwise have recovered for all steps in relation to the defence after the informal offer was made - There was nothing to suggest that the offer was not genuine or that it did not contain an element of compromise on behalf of the respondents - The applicant's failure to seriously consider the offer lengthened the time to come to a decision that, in the end, was not as favourable - It was not appropriate to discuss provisions in the new Rules of Court, or require a formal offer, "though in keeping with Meehan [Meehan et al. v. Holt (2011) (Alta. Q.B.)] doing so would be acceptable in any case as there is no real difficulty or injustice that would arise in considering both sets of rules." - See paragraphs 37 to 44.

Practice - Topic 7114

Costs - Party and party costs - Special orders - Increase in scale of costs - Novel or important issues - [See Practice - Topic 7111.1 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - The applicant requested a judicial review of three bylaws enacted by the respondent Municipal District - He alleged that the bylaws permitted the respondent developer to proceed with a residential development adjacent to lands the applicant owned and maintained as a nature preserve - The application to declare the bylaws invalid was dismissed - The respondents requested an increased level of costs - They argued that one of the factors weighing in favour of increased costs was the complexity of the case - The Alberta Court of Queen's Bench noted that complexity played a role in an increased cost award in International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al. (2006) (Alta. Q.B.) - That case involved a two day judicial review of a complicated specialized tribunal decision, as well as the analysis of a variety of evidence - "In Finning the Court applied the Pharand factors and determined that costs beyond the scale were appropriate. The similarities between the proceedings in that case and the one at bar suggests that the same conclusion may be appropriate here." - See paragraphs 24 to 27.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - [See Practice - Topic 7111.2 ].

Cases Noticed:

Pauli et al. v. ACE INA Insurance Co. et al. (2004), 354 A.R. 348; 329 W.A.C. 348; 2004 ABCA 253, refd to. [para. 19].

Friends of the Calgary General Hospital Society v. Canada et al. (2001), 286 A.R. 128; 253 W.A.C. 128; 2001 ABCA 162, refd to. [para. 20].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 139; 2002 ABQB 768, refd to. [para. 24].

International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al., [2006] A.R. Uned. 493; 2006 ABQB 594, refd to. [para. 24].

Eggertson v. Alberta Teachers' Association (2003), 327 A.R. 92; 296 W.A.C. 92; 2003 ABCA 101, refd to. [para. 25].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 25].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 28].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 29].

Kerr et al. v. Danier Leather Inc. et al. (2007), 368 N.R. 204; 231 O.A.C. 348; 2007 SCC 44, refd to. [para. 29].

Papaschase Indian Band No. 136 et al. v. Canada (Attorney General) et al. - see Lameman et al. v. Canada (Attorney General).

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 88; 2004 ABQB 913, refd to. [para. 30].

Urban Development Institute v. Rockyview No. 44 (Municipal District) (2002), 321 A.R. 253; 2002 ABQB 651, refd to. [para. 33].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 34].

Broers v. Real Estate Council of Alberta et al. (2010), 498 A.R. 190; 2010 ABQB 774, refd to. [para. 42].

Chapell v. Canadian Pacific Railway Co. (2011), 504 A.R. 361; 2011 ABQB 74, refd to. [para. 42].

Rubin v. Gendemann (2011), 518 A.R. 128; 2011 ABQB 466, refd to. [para. 43].

Paniccia Estate et al. v. Toal (2012), 541 A.R. 300; 2012 ABQB 367, refd to. [para. 43].

Meehan et al. v. Holt (2011), 506 A.R. 208; 2011 ABQB 110, refd to. [para. 43].

Allen v. University Hospitals Board et al. (2006), 384 A.R. 23; 367 W.A.C. 23; 2006 ABCA 101, refd to. [para. 44].

Statutes Noticed:

Rules of Court (Alta.), Reg. 390/1968, rule 601(1)(e) [para. 40].

Rules of Court (Alta.) (2010), rule 15.1, rule 15.2 [para. 41].

Counsel:

K.L. Johnston (Docken & Company), for the applicant;

L.M. Sali, Q.C. (Borden Ladner LLP), for the respondent, Wild Buffalo Ranching Ltd.;

D.J. King (Brownlee LLP), for the respondent, Municipal District of Bighorn.

This costs matter was heard on March 9, 10 and 12, 2010, before Hunt McDonald, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary. The Court delivered the following decision, dated June 28, 2013.