Executive Summary: Key Legal and Evidentiary Issues

• Both judicial review applications by Bow Valley Engage Society and the Stoney Nakoda First Nations were dismissed, resulting in costs awards against them.

• The Court rejected arguments for no or limited costs, finding the applications were not public interest litigation or true test cases.

• The Designated Director was awarded costs as an administrative decision-maker, not as a quasi-judicial tribunal, under the Environmental Protection and Enhancement Act.

• Thunderstone Quarries and Three Sisters Mountain Village Properties Ltd. were awarded costs, calculated on Schedule C, Column 5, with a 25% inflationary adjustment, and no multipliers or second counsel fees.

• The Minister of Justice did not seek or receive any costs in these proceedings.

• The Court recognized efficiencies in the applicants’ conduct but determined that adverse costs did not unduly impact access to justice.

Background and facts of the case

This costs decision arises from the dismissal of two related judicial review applications before the Court of King’s Bench of Alberta, as previously decided in Bow Valley Engage Society v Alberta (Environmental Protection and Enhancement Act, Designated Director), 2025 ABKB 158. The applicants were Bow Valley Engage Society (“BVES”) in one application, and Bearspaw First Nation, Chiniki First Nation, and Goodstoney First Nation, collectively the Stoney Nakoda First Nations (“Stoney Nakoda”), in the other. The respondents were the Designated Director under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (“EPEA”), and Three Sisters Mountain Village Properties Ltd. (“TSMVP”). Thunderstone Quarries Canmore Ltd. (“Thunderstone”) was also involved as a party.

Both BVES’ and Stoney Nakoda’s judicial review applications were dismissed. The Court then requested written costs submissions from all parties, which were filed on May 8, 2025, and May 9, 2025.

Positions of the parties on costs

BVES and Stoney Nakoda requested that no costs be awarded against them, or alternatively, that any award be limited to Schedule C, Column 1. They argued that their applications raised clear matters of public interest, novel points of law (including the constitutionality of Rule 3.15 and the ability of a First Nation to request an environmental impact assessment report under EPEA), and should not discourage First Nations from accessing the judicial system. BVES also cited its efficient litigation conduct and argued that the Designated Director, as an administrative tribunal, should not be awarded costs.

The Minister of Justice of Alberta did not seek costs but reserved the right to do so in future proceedings or appeals.

The Designated Director sought Schedule C, Column 1 costs for Items 1(1) and 8(1), totaling $3,375, arguing her role was administrative, not quasi-judicial, and relied on authority distinguishing these functions.

TSMVP sought costs in both judicial review applications—one award against BVES and another against Stoney Nakoda—including costs for its written submission. TSMVP requested costs based on Column 3 with a 3x multiplier, a second counsel fee of 50%, and a 31% inflationary adjustment, totaling $72,987.58 against BVES and $42,971.63 against Stoney Nakoda.

Thunderstone sought one set of Schedule C costs against BVES and another against Stoney Nakoda, arguing for Column 5 or, alternatively, Column 3 with a 3x multiplier, a second counsel fee of 50%, and a 25% inflationary adjustment. Thunderstone’s total claim was $26,202.75 against each of BVES and Stoney Nakoda, or alternatively $13,651.75 against each.

Court’s analysis and discussion

The Court applied Rule 10.33(1) and (2) of the Alberta Rules of Court, considering the result, amount claimed and recovered, importance and complexity of the issues, and conduct of the parties. The Court found that the issues in both judicial review applications were largely the same and were heard concurrently, resulting in significant efficiencies.

The Court agreed that costs should be awarded according to Schedule C but emphasized that the awards must still be reasonable and proper. The Court rejected the applicants’ arguments that the litigation was public interest or a test case, finding that there was no possibility the general public could have benefited from the remedy sought, and insufficient evidence to treat the case as a test of the constitutionality of Rule 3.15 or the ability to request an EIA.

The Court determined that awarding costs would not adversely affect access to justice beyond the ordinary impact of an adverse costs award.

Thunderstone was awarded costs on Column 5 of Schedule C, with a 25% inflationary adjustment, but no multiplier or second counsel fee. The Court specified that Thunderstone’s costs should be as set out in Schedule B of its written submissions, with adjustments for the denial of the second counsel fee.

TSMVP was awarded costs for each judicial review application, assessed on Column 5 with a 25% inflationary adjustment, but no multiplier or second counsel fee. The Court directed that TSMVP’s Bills of Costs be recalculated accordingly.

The Designated Director was awarded $3,375 jointly against both BVES and Stoney Nakoda for Items 1(1) and 8(1) on Column 1 of Schedule C, including $1,350 for preparing the Certified Record.

The Minister was not awarded any costs.

Outcome and costs awarded

Thunderstone is awarded costs as against each of BVES and Stoney Nakoda on Schedule C, Column 5, with a 25% inflationary adjustment, and no second counsel fee. TSMVP is awarded costs payable by BVES and by Stoney Nakoda in their respective judicial review applications, also on Column 5 with a 25% inflationary adjustment, and no second counsel fee. The Designated Director is awarded $3,375 as against both BVES and Stoney Nakoda jointly. The Minister is not awarded any costs of the judicial reviews. The exact amounts for TSMVP and Thunderstone are to be recalculated based on the Court’s directions, while the Designated Director’s award is set at $3,375. No costs were awarded to the Minister of Justice.