Canada: Speaking For The Public: Who Pays?

Who should pay the costs, when a public interest intervenor succeeds before an administrative tribunal?

The Alberta Environmental Appeals Board awarded an intervenor $76,067, payable by the Town of Turner Valley. Ms. Walsh, who lives on a disability pension, had persuaded Alberta Environment and the Board to require additional monitoring of a municipal drinking water reservoir, over the opposition of the municipality. Her work “resulted in a better Amending Approval, one that will ensure the protection of the water supply for all of the Town’s citizens.”

Both parties to Walsh v. Director were likely disappointed with the result. Ms. Walsh had sought costs of $368,207 against the Town; the Town sought a costs award of $304,517 against Ms. Walsh. The Town got nothing, because its costs were properly related to its own application for a approval. The doubts raised by Ms. Walsh were justified, since the Town had chosen to put its reservoir in an area formerly used for oil and gas.

Ms. Walsh got nothing for her own time, because participation in administrative hearings is part of her public duty as a citizen; she did get $606 for disbursements, and was “commended” by the Board. Her legal and consulting fees were allowed only for direct preparation and presentation of evidence at the hearing; nothing was awarded for any other time spent on the file, such as site visits, negotiations with the Town, committee meetings, etc.

We cannot tell from the decision whether Ms. Walsh paid her lawyer and consultants from her disability pension, or whether they took the case on contingency. In either case, someone was out of pocket more than $200,000 for participating in this case, and for protesting a real possibility of public danger from the water reservoir, and that doesn’t count Ms. Walsh’s time. According to the Board, “There is an obligation for each member of the public to accept some responsibility of bringing environmental issues to the forefront.” No wonder so few consultants will take public interest work on contingency.

Dr. Dianne Saxe is one of the world’s top 25 environmental lawyers, according to Best of the Best, 2008 (the latest edition). Certified Specialist in Environmental Law, Ph.D. in Law. Heads an experienced, effective and practical environmental law firm boutique. With 34 years practical experience, Dianne is listed as one of the top environmental practitioners in Toronto and Ontario by Lexpert, as “highly qualified” by Martindale-Hubbell and as one of the world’s leading environmental lawyers by several international rating services.