ECOJUSTICE CANADA SOCIETY v ALBERTA (MINISTER OF ENVIRONMENT)

The Applicant sought costs of an Application for Judicial Review of the Respondents’ decision to redact information from a mercury emissions study conducted by a third party.

Although the Respondents did not take a position and had in fact consented to the Application, the parties were unable to agree on costs. The parties did not dispute the presumption of a successful litigant’s entitlement to costs pursuant to Rules 10.29 and 10.33, nor did they dispute the principle of tribunal immunity from costs, absent misconduct or extraordinary circumstances.

The dispute instead centered on whether the tribunal immunity exception applied to the Respondent Director who was acting under statutory authority and, if so, whether the Director’s conduct was sufficient to disqualify them from the exception.

The Applicant argued, in part, that the Director failed to disclose in a timely manner that the Respondents would not be taking a position, despite the parties having entered into a procedural Consent Order, and that this delay caused the Applicant to incur unnecessary costs.

Froese J. ruled against the Applicant, finding that the tribunal immunity exemption applied to the Director and that the Director’s conduct did not meet the high threshold required to establish misconduct. In reaching this conclusion, Justice Froese noted that the Respondents were not required to be active participants in the Action, and that the Consent Order did not impose such an obligation. The Court also found that the delay was attributable to the third party who conducted the mercury emissions study.

While the Application was dismissed, the Court agreed to include additional context regarding the decision and its procedural history in the resulting Order.