Waste Management of Canada Corp. v. Thorhild No. 7 (County) et al., (2009) 463 A.R. 193 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 19, 2009
• Citations: (2009), 463 A.R. 193 (QB);2009 ABQB 157

Waste Mgt. of Can. v. Thorhild No. 7 (2009), 463 A.R. 193 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.061

Waste Management of Canada Corporation (applicant) v. County of Thorhild No. 7 and Council of the County of Thorhild No. 7 (respondents) and Wayne Croswell (respondent by Order)

(0803 07595; 2009 ABQB 157)

Indexed As: Waste Management of Canada Corp. v. Thorhild No. 7 (County) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

March 11, 2009.

Summary:

The applicant approached the County of Thorhild No. 7 for the development of a landfill in the County. The County council's vote on the second reading of the proposed rezoning bylaw was lost on a tie vote. The applicant applied for judicial review, seeking an order setting aside the second reading of the proposed rezoning bylaw and directing the council to reconsider and re-vote on the second reading without the participation of Councillor Croswell. The applicant asserted that Croswell was biased and that his participation in the vote on the second reading resulted in a denial of natural justice or procedural fairness.

The Alberta Court of Queen's Bench, in a decision reported at 463 A.R. 36, dismissed the application. Croswell applied for costs on a solicitor and client basis, or alternatively, on an increased scale.

The Alberta Court of Queen's Bench denied Croswell solicitor and client costs. Croswell was entitled to costs payable on an increased scale (three times Column 5).

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - The applicant approached the County of Thorhild No. 7 for the development of a landfill in the County - The County council's vote on the second reading of the proposed rezoning bylaw was lost on a tie vote - The applicant applied for judicial review, seeking an order setting aside the second reading of the proposed rezoning bylaw and directing the council to reconsider and re-vote on the second reading without the participation of Councillor Croswell - The applicant asserted that Croswell was biased and that his participation in the vote on the second reading resulted in a denial of natural justice or procedural fairness - The application judge dismissed the application - Croswell applied for costs on a solicitor and client basis, or alternatively, on an increased scale - The Alberta Court of Queen's Bench denied Croswell solicitor and client costs - Solicitor and client costs could be ordered only where justified on the basis of the conduct of a party during the proceedings - Nothing in the applicant's conduct justified solicitor and client costs - However, Croswell was entitled to costs payable on an increased scale (three times Column 5) on the following grounds: 1. Croswell was justified in participating in the proceedings, not only to defend his own reputation, but also to represent the interests of the voters who elected him; 2. The issues on which Croswell succeeded were important not only between the parties, but also to the community at large; and 3. Croswell had incurred significant liability to retain legal counsel, a liability which could deter him and others similarly situated from participating in municipal politics - The scale of costs requested, three times Column 5, would not indemnify Croswell for his actual costs, however it would provide a fair apportioning of the costs of the application.

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to - General - [See Practice - Topic 7110 ].

Cases Noticed:

Wainwright No. 61 (Municipal District) v. Willerton (2000), 280 A.R. 185; 2000 ABQB 980, dist. [para. 8].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 296 D.L.R.(4th) 178; 2008 ABCA 268, refd to. [para. 14].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 14].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 14].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395; 83 Alta. L.R.(2d) 152 (Q.B.), refd to. [para. 15].

Bahry v. Zytaruk, [2003] A.R. Uned. 259; 122 A.C.W.S.(3d) 827; 2003 ABQB 408, refd to. [para. 16].

Lalli v. Chawla (1997), 203 A.R. 27; 53 Alta. L.R.(3d) 121 (Q.B.), refd to. [para. 16].

Seward v. Seward Estate (1997), 201 A.R. 77; 70 A.C.W.S.(3d) 197 (Q.B.), refd to. [para. 16].

Alberta Public School Boards' Association v. Alberta (Attorney General), [1996] A.J. No. 704, refd to. [para. 16].

Eggertson v. Alberta Teachers' Association (2003), 327 A.R. 92; 296 W.A.C. 92; 2003 ABCA 101, refd to. [para. 16].

Counsel:

James W. Murphy, Q.C. (Ogilvie LLP), for the applicant;

Barry A. Sjolie, Q.C. (Brownlee LLP), for the respondents;

Kelsey L. Becker Brookes (Reynolds, Mirth, Richards & Farmer LLP), for the respondent by Order.

This application was heard on February 19, 2009, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on costs on March 11, 2009.