Executive Summary: Key Legal and Evidentiary Issues

• Tribunal immunity generally shields quasi-judicial bodies from costs unless there is evidence of misconduct or improper argument.

• The Director’s participation in the judicial review was found necessary and appropriate under the qualification articulated in Sihota.

• No Alberta decisions directly address the Director’s liability for costs in the SafeRoads context.

• Courts commonly direct parties to bear their own costs in SafeRoads decisions, often without detailed reasons.

• The applicant’s argument that the Director acted as an advocate was rejected by the court.

• The application for costs was dismissed due to lack of evidence justifying an exception to tribunal immunity.

Facts of the case

Cheryl Lee Vatter was the applicant in judicial review proceedings after an Adjudicator upheld a Notice of Administrative Penalty against her, issued by the Director of Saferoads Alberta. The judicial review was successful, and the Adjudicator’s decision was set aside. Following this, Ms. Vatter sought costs against the Director.

Legal arguments and policy terms

The Director opposed liability for costs, relying principally on the doctrine of tribunal immunity, citing Sihota v Edmonton (City), 2013 ABCA 125, among other authorities. These authorities support that, absent evidence of misconduct or improper argument on the merits, no costs should be awarded against a quasi-judicial tribunal involved in proceedings to review its decisions. The Director’s submissions were found to fit within the qualification articulated in Sihota, allowing a tribunal to make submissions to provide the reviewing court with the proper adversarial context when no other party is available.

Ms. Vatter argued that the Director had stepped outside the role of a neutral third party by taking a position on the outcome and arguing that she had not discharged the burden of proving the Adjudicator’s decision was unreasonable. The court did not agree with Ms. Vatter’s characterization and found the Director’s involvement both necessary and appropriate.

The court reviewed several authorities, including Mierke v Alberta (Director of SafeRoads), Adams v Alberta (Director of SafeRoads), Brine v Alberta (Director of SafeRoads), and Brandics v Alberta (Director of SafeRoads), noting that in many SafeRoads cases, parties are directed to bear their own costs, often without detailed reasons. The court also discussed Demars v Alberta (Director of SafeRoads), 2024 ABCA 188, but found it distinguishable because the Director was the instigating party in the appeal, not a compelled party as in the judicial review.

Outcome and analysis

The Honourable Justice Peter Michalyshyn dismissed Ms. Vatter’s application for costs. The court found no evidence that the Director acted outside the bounds of neutrality or engaged in improper conduct. The Director’s involvement was found to be within the qualification to tribunal immunity, and there was no basis for awarding costs against the Director. The application for costs was therefore dismissed.

No costs or monetary award were ordered in favor of Ms. Vatter. The total amount ordered in favor of the successful party for costs or other monetary awards cannot be determined, as the application for costs was dismissed.