BOW VALLEY ENGAGE SOCIETY v ALBERTA (ENVIRONMENTAL PROTECTION AND ENHANCEMENT ACT, DESIGNATED DIRECTOR

The two Applicants, Three Sisters Mountain Village Properties Ltd. (“Three Sisters”) and Thunderstone Quarries Canmore Ltd. (“Thunderstone”), sought an Order pursuant to Rules 4.22 and 14.67 for Security for Costs for an upcoming Appeal by Bow Valley Engage Society (“Bow Valley”).

The underlying Action involved an application by Bow Valley for Judicial Review of a decision pertaining to land development for a project east of Canmore. The Chambers Judge dismissed the application, finding that Bow Valley had failed to serve the application on Thunderstone, a directly affected party, contrary to Rule 3.15. The Chambers Judge issued an Order requiring Bow Valley to pay costs of the application to both Thunderstone and Three Sisters. Bow Valley paid Thunderstone’s Bill of Costs, but an agreement had not been reached on Three Sisters’ Bill of Costs. Bow Valley appealed the Chamber Judge’s decision.

The Applicants sought an Order requiring Bow Valley to post Security for Costs for the upcoming Appeal within thirty days, failing which Bow Valley’s Appeal should be struck pursuant to Rule 14.67.

Feehan J.A. considered the factors outlined in Rule 4.22 and the test for granting Security for Costs set out in Poole v City Wide Towing and Recovery Service Ltd., 2020 ABCA 102. The test requires the applicant to establish, on a balance of probabilities, that the order for Security for Costs is just and equitable, and that the respondent would be unable to pay costs that may be awarded.

The Court found that the Applicants would be able to enforce a Costs award against Bow Valley, and that there was some merit to Bow Valley’s Appeal. Feehan J.A. opined that, if the Application was granted, Bow Valley would have the difficult task of fundraising over $50,000 within thirty days for Security for Costs, failing which the Appeal would be struck. Pursuant to Rule 4.22(e), which allows other matters to be considered if appropriate, the Court noted Bow Valley’s submissions regarding the short period to fundraise the requested Security for Costs before the scheduled Appeal as well as the legal and community importance of the raised issues.

Feehan J.A. held that, on balance, it was not just or equitable to order Security for Costs against Bow Valley. The Court thus dismissed the Applications.