Reilly v. Wachowich,1999 ABQB 639
Date:
19990816
Action No. 9801-08707
IN THE COURT
OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY
BETWEEN:
THE HONOURABLE JOHN D.
REILLY, JUDGE OF THE
PROVINCIAL COURT OF ALBERTA
Applicant
- and -
THE HONOURABLE EDWARD R. WACHOWICH, CHIEF
JUDGE OF THE PROVINCIAL COURT OF ALBERTA
Respondent
MEMORANDUM OF DECISION ON COSTS
of The Honourable Mr. Justice D.B. Mason
I.
INTRODUCTION
[1] The Applicant, Judge
Reilly (“the Applicant”), was the appointed, resident Provincial Court Judge in Canmore, Alberta. On or about April
3, 1998 the Respondent Chief Judge of the
Provincial Court, as he then was, (“the Respondent”) issued a directive that the
Applicant be reassigned from Canmore to Calgary and that he change his
residence accordingly. The reason for
this directive was that the Respondent disagreed with several of the
Applicant’s judgments and was of the
opinion that the Applicant had lost his impartiality when dealing with aboriginal offenders in criminal
matters. The Respondent did not refer
the matter to the Judicial Council,
as he might well have done, but instead chose to issue the aforementioned
directive. In doing so, the
Respondent purported to implement “corrective measures” pursuant to his
statutory and constitutional
authority. Once the Respondent
instituted the directive and presented the Applicant with a fait accompli, the only avenue
available to the Applicant to challenge the
statutory and constitutional powers of the Respondent was to bring an
application for Judicial Review
pursuant to Part 56.1 of the Alberta Rules of Court.
[2] The Applicant instituted Judicial Review
proceedings seeking a declaration that the
directive of the Respondent was a nullity with certiorari and an order to quash in aid. By Judgment dated April 26, 1999, I found that the Respondent
took these corrective measures
wrongfully and without statutory or constitutional authority. I found further
that, in taking this action, the Respondent wrongfully disciplined the
Applicant, threatened his adjudicative independence and, in the process, denied
him procedural fairness.
[3] The present
application concerns the issue of costs.
The Applicant contends that he is
entitled to an order for costs on an indemnification basis. The Respondent
argues that an award of costs against
him, particularly on an indemnification basis, is wholly inappropriate.
II. ISSUES
1.
Is the Applicant entitled to
his costs on the application for Judicial
Review?
2.
If costs are appropriate
should those costs be on an indemnity basis or on a party and party basis, in accordance with Schedule C of the Alberta Rules of
Court?
III.
THE APPLICANT’S POSITION
[4] The Applicant argues
that judicial independence was central to the determination of the Judicial Review Application. He
contends that, as a member of the Judiciary, it is his responsibility to enforce and protect the constitutional
right to a fair and impartial hearing. As
such, he was duty bound to challenge the Respondent’s directive by way of
Judicial Review.
[5] The Applicant argues
that it would be contrary to the public interest to decline his application for indemnification in
several respects. Firstly, he argues that it would necessarily infringe his right to financial security, one of the
three core characteristics of judicial independence. Secondly, the Applicant
states that it would lead to a chill effect and would discourage other members of the Judiciary from fulfilling
their duty to protect and enforce the
constitutional right to an impartial hearing. Thirdly, it may dissuade judges
from acting in accordance with the Ethical Principles for Judges as set out
by the Canadian Judicial Council.
Finally, the Applicant submits that, if the Court declines to grant full
indemnification in this instance, the
ability of Chief Judges to act in a constitutionally impermissible manner in the future will be enhanced.
[6] The
Applicant suggests that an award for costs on an indemnification basis would be appropriate as it satisfies the
criteria enumerated by the courts in previous decisions. These criteria will be discussed more fully below.
Alternatively, the Applicant requests an order
for party and party costs with the application of a multiplier, such
that the amount ordered would
effectively compensate him for all of his legal expenses. For the purposes of
this calculation, the Applicant
suggests that column 5 should be used and the Judicial Review hearing should be treated as though it were a trial.
[7] The Applicant states further that he is
not seeking costs against the Respondent in
his personal capacity, but in his capacity as the incumbent of the
Office of the Chief Judge. The
Applicant suggests that the Respondent would be indemnified by the Provincial
Government in any event and would not
suffer any personal liability even if costs were awarded against him.
However,
the Applicant argues that, even if the Government refused to reimburse the Respondent for the Applicant’s costs,
this Court should not be dissuaded from making
the requested order because there are no special rules exempting Chief
Judges from the personal payment of costs.
IV.
THE RESPONDENT’S POSITION
[8] Although costs may
be awarded against a true respondent on Judicial Review, the Respondent takes the position that no costs should be
awarded against an administrative tribunal
where it limits its submissions to jurisdictional issues. The Respondent argues
that the general rule is that costs
should only be awarded where the tribunal has lost jurisdiction through
capricious or arbitrary conduct or where it has acted in bad faith. Even on the
rare occasion where such conduct is found, the Respondent contends that party
and party costs, as opposed to costs on an indemnity basis, are appropriate.
[9] The
Respondent states that he legitimately believed that he had the requisite
authority to make the impugned
decision by virtue of sections 2(5) and 9 of The Provincial Judges Court Act, R.S.A. 1998 c. P-20.1.
As such, he states that he was entitled to defend his jurisdiction and present his case on statutory
authority and that he should not be penalized for having done so.
The Respondent suggests further that, if the general rule regarding
costs were relaxed such that they were awarded more readily, it would
discourage litigants from pursuing or defending their position in Court. Consequently, he suggests that awarding
costs in this case would set a dangerous precedent.
[10] In the
event that costs are warranted, the Respondent submits that they should be party and party costs only. He contends
that indemnity costs are only appropriate where the unsuccessful litigant has demonstrated blameworthy conduct.
The Respondent suggests that he has
not demonstrated any misconduct during these proceedings and as a result he
should not be visited with such
costs.
[11] The
Respondent advised there is no guarantee that the Government will reimburse him for any of his costs, particularly any
costs awarded on an indemnity basis. He suggests that an indemnity award would tend to indicate that he had acted
outside the scope of his duty in which
case the Government may take the position that it is not responsible for his
legal costs.
[12] The
Respondent submits that an award of costs against him personally would infringe his judicial independence, specifically
his administrative independence. He submits that all of the arguments the Applicant makes regarding the potential threat
to his financial security if this
application is not granted, apply with equal force to the Respondent’s administrative independence if the
application is granted. The Respondent
states further that it is the Government’s
responsibility to ensure that the Applicant enjoys financial independence, not the Respondent’s.
V.
JURISPRUDENCE ON THE SUBJECT OF COSTS
[13] The parties
have referred me to a number of decisions which discuss the general principles in relation to awards
for costs. I find that those decisions can be separated into three distinct
categories based on the nature of the litigation within which they arise.
[14] It is well settled,
and indeed codified by Rule 601(1) of the Alberta
Rules of Court, that costs are within the Court’s discretion. Nonetheless, some
general principles have been
established in awarding costs in the context of standard litigation between
private parties. In Jackson and Parkview Holdings v. Trimac Industries (1993), 138 A.R. 162, (Q.B.), Hutchinson, J. addressed the issue of
where an award of costs on an indemnity basis would be appropriate. The Court
stated that generally costs will follow the event and, where awarded, they will be on a party and party
basis. At page 166-167 the Court quoted, with approval, from Reese v. Alberta (Minister
of Forestry, Lands and Wildlife) (1993), 133
A.R. 127 (Q.B.), where McDonald, J.
discussed the Canadian philosophy in relation to awards for costs. In Reese, the Court found that
awards of costs are made with a view to striking a balance between two competing interests: 1) a successful
party that has not demonstrated any blameworthy conduct should not be required to pay for his/her legal costs;
and 2) prospective litigants should not be discouraged from asserting or
defending their rights by having to bear all of the legal costs incurred by the successful litigant.
[15] In Jackson
the Court stated that awards for costs should deviate from the general principle of party and party
costs only where the case is rare, exceptional or unusual. Following a careful
and scholarly review of a number of authorities from various courts,
Hutchinson, J. summarized nine
examples of what has been judicially considered to constitute rare and exceptional circumstances warranting a
departure from the general principle of awarding party and party costs. Based on his findings of law, Hutchinson,
J. found that costs on an indemnity
basis were appropriate in that case. The
Court of Appeal declined to interfere with these
findings and affirmed the decision as it relates to costs (see: Jackson
and Parkview Holdings v. Trimac Industries (1994), 155 A.R.
42).
[16] In Sidorski et al v. C.F.C.N. Com. Ltd.
(1997), 206 A.R. 382 the Court of Appeal restated the principles set
out in Jackson and adopted the list of examples cited by Hutchinson, J., of rare and exceptional
circumstances in litigation between private parties where the courts have departed from the general
rule of awarding party and party costs. The examples tend to indicate that it is the conduct of the
litigation which is determinative of what scale of costs is appropriate in any given circumstance. That principle was
expressly recognized by the Court of
Appeal in Colborne Capital Corp. v. 542775
Alberta Ltd., [1999] A.J. No. 33.
In Lawson v. British Columbia (Solicitor
General) (1992), 88 D.L.R. (4th) 533 the British Columbia Court
of Appeal similarly found, at page 588, that solicitor and client costs
should only be awarded where there
has been “reprehensible, scandalous or outrageous conduct deserving of chastisement”. That
statement was later explicitly adopted by the Supreme Court in Young v. Young (1993),
108 D.L.R. (4th)
193 at page 283. As was noted by Eric T. Spinks in his essay Party and Party
Costs (Alberta Law Reform Institute, October 1995), decisions of this nature
demonstrate the courts recognition of
the trend towards the use of costs to control litigants’ behaviour and provide an incentive to efficient litigation.
2. Administrative Tribunals
As
above the Respondent suggests, an order of costs does not lie against an administrative tribunal which limits its
submissions to the issue of jurisdiction. In that regard, I was referred to R v. Ontario
Labour Relations Board (1969), 4 D.L.R. (3d) 485 (Ont. H. Crt.).
[17] In St. Peter’s Estates Ltd. v. Prince Edward Island (Land use
Commission) (1991), 2 Admin. L.R. (2d) 300 (P.E.I. S.C.), the Court found that costs
awards should only be made against
an administrative tribunal in unusual and exceptional circumstances such as
where the tribunal acted in a
capricious, bad faith or arbitrary manner, or otherwise contrary to the rules of natural justice. At
paragraph 15, the Court stated that:
. . . it might be said that where the tribunal has acted in good
faith and conscientiously
throughout, albeit resulting in error, the reviewing tribunal will not
ordinarily impose costs. On the other hand, where these characteristics have not been clearly evident, the Court
will cast a caustic eye upon it, which will normally result in costs being
awarded against it.
[18] In
Construction
and General Labourers Union, Local 1097A v. M.F. Schurman Construction
Limited (1985), 56 Nfld. & P.E.I.R. 353 (P.E.I. S.C.) the Court
stated that, although an administrative tribunal has the right to be wrong, it
does not have the right to act in a
cavalier manner regarding its own jurisdictional right to proceed in the first instance.
[19] The
Nova Scotia Supreme Court declined to award costs in the case of Logan v. Nova Scotia (Denturist Licencing Board) (1994), 25 Admin L.R. 285, where the administrative tribunal had not misconducted itself and its decision
was not perverse. This is consistent with
the much earlier decision in Regina v. Liverpool Justices , [1960] 1 W.L.R.
585, where the English Court of Queen’s Bench found that
costs would only be awarded against a justice or a tribunal for acting perversely
or without regard to the fundamental principles to which every court ought to adhere. Even in those instances, the Court
found that costs should only be awarded in flagrant cases.
[20] The Applicant cited the decisions in Tolko Industries Ltd. v. Big Lakes (M.D.) et al.
(1998), 217 A,R, 369 (Q.B.)
and Grochowski
v. Alberta Association of Architects (1996), 184
A.R. 233 (C.A.) for the proposition that an administrative tribunal
may incur costs where it has exceeded
or lost its jurisdiction or where it has committed a breach of natural justice. In Grochowski, the Court of Appeal
awarded solicitor and client costs against a tribunal that exceeded its
jurisdiction and failed to afford procedural fairness to the applicant.
3. Constitutional Litigation
Concerning the Independence of the Judiciary
[21] The present matter is one of several
recent cases calling into question the internal workings of the Court and its
management. Decisions of this nature are demonstrative of the growing difficulty in Canada of Chief
Judges having to administer large and complex courts. I was referred by the parties to a number of cases which
involved applications for costs in
circumstances which involved the third arm of the government and the
constitutional issue of judicial
independence.
[22] I was
referred by the Respondent to Mackin v. New Brunswick (Minister of Finance)
(1998), 21 C.P.C. (4th) 29 (N.B. Q.B.). In that case,
the Plaintiff judge had elected to become
supernumerary in lieu of retiring. The
legislation that provided for supernumerary status was then repealed and replaced with a system where retired
judges were engaged to hear cases on a
per diem basis. The plaintiff brought an action challenging the constitutional
validity of the legislation and
refused to hear any cases pending the determination of the action. The Chief
Judge obtained an order requiring the plaintiff judge to carry out his duties.
In response to that order, the plaintiff returned to court but either adjourned
the cases before him or ordered stays of
proceedings. The Minister of Justice then brought a complaint against the
plaintiff alleging neglect of duty
and misconduct. The complaint was dismissed and the plaintiff judge brought an application for costs against the
Minister. Although the Court refused to
grant solicitor and client costs, on
the basis that the requisite misconduct did not exist, the Minister was ordered to pay all reasonable legal expenses. The
Court determined that a refusal by the government to provide legal representation for the plaintiff was
incompatible with the concept of judicial
independence.
[23] The
Applicant referred me to Ruffo c. Quebec (Ministre de la justice), [1998] R.J.Q. 254 (C.S. Qué). In that case, the appellant judge applied for
a declaration that she was entitled to costs against the Minister of Justice
for legal expenses incurred in her defence against two complaints brought
before the Judicial Council. The Minister opposed the application on the basis that the complaints did not
relate to acts arising from the exercise of the plaintiff’s judicial function. The Court referred to Reference re the Remuneration of Judges of the Provincial Court of Prince Edward Island (1998), 150 D.L.R. (4th) 577, where the Supreme Court of
Canada refused the right to recover legal fees on the basis that the litigation
did not directly and immediately
impact the exercise of the judicial function. In Ruffo, however, the Court found that
the substance of the allegations did concern the plaintiff’s conduct in her
judicial capacity and, as such,
there was no reason for the Minister’s refusal to pay the costs requested. The
Court stated that, if the decision to pay the plaintiff’s legal costs was left
to the discretion of the executive,
it would permit the executive to punish judges who did not render judgments favourable to the government and
reward those who did. The Court concluded that such a result would impair the independence of the judiciary.
[24] In Reference
re: Territorial Court Act (N.W.T.), s.6(2), (1997), 152 D.L.R. (4th) 132 (N.W.T. S.C.), the
Court addressed the constitutionality of legislation which provided for the appointment of deputy territorial
judges for periods of two years or less. The legislation allowed for the revocation of those judicial appointments upon
the written recommendation of the Chief Judge. The
Chief Judge in that case challenged the constitutional validity of the
legislation and the Court ultimately determined that it was largely
unconstitutional. The Chief Judge sought full
reimbursement for his legal costs. The Minister took the position that only
party and party costs would be
appropriate. There Vertes, J. found, at
paragraph 143, that : The Minister’s position would in effect apply a general
litigation practise to this
reference. I do not consider this case to be litigation in the normal sense of that word. And later in the
same paragraph: The issues on this reference touch directly on fundamentally important considerations of the
independence and impartiality of the Territorial Court. As submitted by the Chief Judge he has an obligation to
intervene in the interests of the
judiciary and in the public interest for the orderly administration of justice. No one else did so. In that case, the
Chief Judge was awarded full and reasonable solicitor and client costs.
[25] In
Ell
et al. v. Alberta, [1999] A.R. TBEd. MR. 101 (Q.B.), the applicants
challenged the constitutional
validity of proposed amendments to the Justice of the Peace Act, R.S.A.
1980 c.
J-3. The proposed legislation effectively prohibited the three
individual applicants from being
appointed as sitting or presiding Justices of the Peace because they did not
have law degrees and, as such, they could not satisfy the necessary
qualifications for presiding judges as provided for by the amendments. My brother McMahon, J. concluded that the
legislation offended the
constitutional principle of judicial independence. The Court declined to award solicitor and client costs and instead awarded costs
taxed on column 5, multiplied by 1.5 of Schedule C, together with all reasonable disbursements. For the purposes
of that calculation the Court treated
the Special Chambers application as a trial including second council fee. The Court
distinguished Ruffo on the basis that the complaint in Ell was not one to the
Judicial Council which required the
applicants to defend themselves. It should be noted that Ell is currently under appeal, both with respect to the
merits and the order as to costs.
[26] Finally,
in Hamann c. Québec (Ministre de la justice) (17
février1999), no C.S. Québec 200-05-010247-984 (C.S. Qué.) the plaintiff, a
Municipal Court Judge, sought a declaration
that he was entitled to have his legal expenses, which were incurred
defending two complaints before the
Judicial Council, paid by the Minister. The Minister conceded that if the acts
complained of fell within the
plaintiff’s judicial function then the fees incurred by the plaintiff in
defending the matter before the
Council must be defrayed by the State. The Court found that the plaintiff benefited from the presumption
of innocence and, as such, it was not up to the Minister to determine whether the plaintiff’s actions were within or
outside the judicial function. In other
words, so long as criminal condemnation was not pronounced against the
plaintiff, the Minister was obligated
to pay the plaintiff’s legal costs.
CONCLUSION
[27] With respect to the first
issue, I find that the Applicant is
entitled to costs against the
Respondent as Chief Judge.
[28] As above, the Applicant was successful in
his quest for a declaration that the Respondent exceeded his jurisdiction and
authority. In the context of general litigation, costs generally follow the event and are granted to the successful
party on a party and party basis. However, as previously stated, the Respondent
takes the position that this proposition does not apply to administrative
tribunals on Judicial Review. He relies on the aforementioned authorities for the proposition that costs should not be
awarded against an administrative tribunal where it has limited its submissions to the issue of jurisdiction and has
not lost its jurisdiction through
capricious or arbitrary conduct. I accept those propositions in standard cases
of Judicial Review, however, I adopt the reasoning of Vertes, J. in re: Territorial Court Act,
in that matters such as the one
presently before the Court cannot be considered “litigation in the normal sense
of that word”. This is also
consistent with the statement made by McMahon, J. in Ell where he found that the importance of the
constitutional challenge in that case greatly exceeded that of usual private interest litigation.
[29] Notwithstanding
the personality conflicts between these two protagonists, their personal
differences and their divergent jurisprudential perspectives respecting the
proper administration of criminal
justice with respect to aboriginal peoples, this dispute related directly to the developing tension between the
administrative independence of the Court, embodied in the office of the Chief Judge, and the
judicial independence of the members of the Court. Specifically, the issue in the present case concerns the
constitutional and statutory jurisdiction of the Chief Judge to discipline a
member of the Court vis a vis that member’s individual right to judicial independence. As such, I find
that different considerations come to bear on the issue of whether an award of costs is appropriate.
[30] In Ruffo, the Court found that, because provincially appointed judges
are guaranteed judicial independence
and the litigation in that case directly and immediately impacted on the judicial function, an award of costs
was appropriate. In the present circumstances, I find that the litigation similarly impacted the
judicial function and that costs are also warranted in this instance. In Ruffo, the Court found that if the
payment of costs were left to the discretion of the executive it would weaken public confidence in the
independence of the judiciary. In Hamann,
the Solicitor General of Quebec conceded that the legal fees incurred
by a judge required to defend himself before the Judicial Council must be
defrayed by the State where the conduct in
question related to the judicial function. I appreciate that an award of costs
in the present case would not be against the Government per se, however the same principle applies - a failure to award costs in this case would
effectively undermine the independence of the
Judiciary. Obviously that
result must be avoided.
[31] The Respondent
attempts to distinguish the decision in Ruffo from the subject case on the basis that the plaintiff in that
case had no choice but to defend herself against allegations made to the
Judicial Council. In this case, the
Applicant voluntarily brought the matter before the Court
via Judicial Review. The Respondent points out that my brother McMahon, J. distinguished Ruffo from Ell on that basis and that I
should be persuaded to do the same in this
instance. Ell involved a constitutional challenge to the validity of the Justice of the Peace Act, whereas Ruffo involved two complaints made to the Judicial Council regarding the Plaintiff’s conduct. I agree with my
brother McMahon, J. that those two situations are significantly different, however I do not think that the present
circumstances are so easily distinguishable
from Ruffo. In this case, I have found that the Applicant had no choice but to
bring an application for Judicial
Review in order to challenge the jurisdiction of the Respondent because the
Respondent failed to take the complaint to the Judicial Council in the first
instance. Ruffo and the within case
are similar on the basis that they both concern disciplinary action taken against the litigant judges. The
Respondent cannot now avoid an order of costs by having wrongfully assumed the
role of the Judicial Council in meting out discipline. Although Ell and the present case are not indistinguishable in many respects, I
decline to distinguish them on the
basis and for the purpose suggested by the Respondent.
[32] As
above, I find that the issues raised on the application for Judicial Review
directly and immediately impacted
the judicial function and, as such, the Applicant must have his costs. In coming to this determination, I am
mindful of the difference between awarding costs against the Government and, as here, against a Chief Judge. However, I
find that costs must be awarded in
this instance in order to maintain judicial independence and impartiality. Who
will ultimately be responsible for
the payment of those costs is necessarily secondary to the constitutional concerns. The Respondent
argues that an order for costs against him may interfere with his right to administrative independence in
the event that he is responsible for his legal expenses. As I have not been asked to determine who is
properly responsible for the Respondent’s legal costs, including the within order for costs, I am unable to
effect that outcome. However, the Applicant
has expressly stated that his request for costs is against the Respondent in
his capacity as the holder of the Office of the Chief Judge, the statutory
delegate as provided for in the Provincial Court Judges Act. As such I specifically make the within order
on that basis.
[33] In
answer to the second issue raised in this application, I find that costs on an indemnity basis are appropriate in the
present circumstances, that is to say an award of all reasonable solicitor/client legal fees and disbursements.
[34] The
Respondent takes the position that where costs are awarded against a tribunal
they should only be awarded on a party and party basis. I agree that this general proposition should
be adhered to in matters of standard litigation between private parties or
where an administrative tribunal is
involved. However, as stated above, I do not consider this to be a matter of standard litigation.
[35] In
awarding costs, the courts generally attempt to strike a balance between the competing interests of the unfairness of
having the successful party pay its costs while, at the same time, not dissuading potential litigants from
asserting or defending their rights by visiting the unsuccessful party with enormous costs. In the present matter, any balancing of
interests must be secondary to
protecting the constitutional right to judicial independence and
impartiality. It is not difficult to conceive
of the erosion of those rights where parties in the same position as the
Applicant are required, even in part,
to suffer the payment of their legal expenses personally. I accept the argument made by the Applicant that,
if members of the Judiciary were expected to pay legal expenses incurred in upholding their constitutional duty
to protect these fundamental rights, it
would necessarily attack their financial security and have a chill effect on
other members of the Court.
[36] In the event that I
had found that the same considerations apply in this case as apply in standard, private party litigation, I
would have had no difficulty awarding costs on the same basis. In this case, the unilateral action of the Chief
Judge, beyond his statutory jurisdiction and outside of the constitutional
framework, with respect to a discipline issue, does amount to rare and exceptional circumstances.
Additionally, I have little difficulty concluding that the Respondent’s conduct attracts costs on an indemnification
basis. As was stated in St. Peter’s Estate Ltd., an administrative tribunal will be visited with costs where good
faith and conscientious conduct have
not been evident throughout the proceedings. I find that the fact that the
Respondent elected to take the course of action that he did, that he instituted
it without procedural fairness and, in so doing, struck at the very core of
judicial independence indicates conduct well outside of those parameters.
Although there may have been statutory grounds
for believing that the Respondent had the requisite jurisdiction to make
disciplinary decisions of this
nature, I find that the Respondent stepped well outside the boundaries of his
jurisdiction in this instance.
[37] For the above reasons
I order that the Applicant is entitled to his costs on an indemnification basis.
DATED at Calgary, Alberta,
this 16th day of August, 1999.
J. C.Q.B.A.
COUNSEL: Alan D. Hunter, Q.C. & M.L. McMahon for Applicant - E.David D.Tavender, Q.C. for Respondent
