Date: 20080502
Docket: T-363-85
Citation: 2008
FC 574
Ottawa, Ontario, May 2, 2008
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
ALFRED JOSEPH, CHIEF
COUNCILLOR, WALTER JOSEPH
and JACK SEBASTIAN, BAND COUNCILLORS ON
THEIR OWN BEHALF AND ON BEHALF OF ALL
OTHER MEMBERS OF THE HAGWILGET INDIAN
BAND,
HAGWILGET BAND AND HAGWILGET BAND
COUNCIL
Plaintiffs
And
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
as represented by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Defendant
REASONS FOR ORDER
Introduction
[1]
This
is a motion brought by the plaintiffs for an interim or advanced costs order.
The power to make such an order has been sanctioned by two recent Supreme Court
of Canada decisions
but those decisions themselves and the exercise of ordinary prudence and common
sense both dictate the exercise of extreme caution. To require a defendant,
before any finding of legal right on the plaintiffs’ part, to fund, on a
possibly unrecoverable basis, legal proceedings against itself is a drastic and
unusual step to be taken only on the imperative dictates of the interests of
justice.
Background
[2]
The plaintiffs
are the representatives of the Hagwilget Indian Band. The Band is made up of
members of both the Gitxsan and Wet’suwet’en people. Those peoples, following
protracted litigation, are now engaged in treaty negotiations with Canada and British
Columbia but those negotiations do not deal directly with the matters alleged
and damages claimed in the present action.
[3]
Hagwilget is an Indian village located in northern British
Columbia on the Bulkley River (the River) a tributary of the Skeena. It is
upstream from the Village of Hazelton. Sometime in the past, apparently around
1820, a rockslide partially blocked the River canyon beside the present
location of the village. As a result of the obstruction, the salmon (Sockeye
and Cohoe are the principal species mentioned, but there may have been others)
that run up the river to spawn every year could no longer move upstream as
readily as before and a natural fishery was created along the banks adjacent to
the places where the fish had to wait until they could get past the
obstruction. Many people and groups from both first nations (the Gitxsan and
Wet’suwet’en) traveled to this fishery in the summer to fish. The fishery was
an integral part of the identity of the Hagwilget people and their culture.
This included in particular the smoking and preserving of fish in the
traditional manner and the holding of feasts where the traditional songs would
be sung, the regalia worn and the histories told.
[4]
In 1938
the Hagwilget Indian Band Reserve (the Reserve) was formally set aside for the
Band by the Federal Government although it seems clear that both the village
and the Band had de facto existed for many years before that. The
territory of the Reserve was transferred to Canada from British Columbia;
however, although this is disputed, the river bed and River seem to have been
excluded from the transfer and to have remained the territory of the Province.
There is evidence that the exercise of the fishery from the banks was the very
raison d'être for the existence of the village and, when it was created, the
reserve.
[5]
In
the 1950s the defendant sent scientists and engineers to study and consider the
impact of the rocks on the fishery in the River. They decided that removal of
the rocks from the canyon was essential although the plaintiffs disputed and
still dispute the validity of this conclusion. In the spring of 1959 the
Department of Fisheries blasted the rocks out of the canyon. The plaintiffs
objected to the blasting which seems to have done more than simply removed the
obstruction but to have so deepened the River that there is no longer any
resting place for salmon in the canyon. It appears to be undisputed that the
result was the total destruction of the fishery and to this day there is no
fishing in the canyon.
[6]
In the
following years a number of promises were made by officials that the loss of
the plaintiffs' fishery would be remedied; there were suggestions that an
alternative site on the River might be found even though there were no suitable
places within the reserve and the exercise of a fishery on any other site would
have brought the plaintiffs into conflict with others who already had or
claimed such rights. There was a promise to supply boats, motors and nets so as
to support a different fishing method but these came to nothing. There were
spasmodic efforts to buy and supply fish from other sources but on at least one
such occasion it is claimed that the fish were “spent” and thus of no use for
either eating or smoking. At one point the government even seems to have
supplied canned salmon to the village and although this may have met their food
requirements it is difficult to see how it could be thought to be a substitute
for their cultural heritage.
The Litigation
[7]
The present
action was started in 1985. Some documentary discovery and other preliminaries
were conducted but the action was formally placed in abeyance in 1997 while the
plaintiffs had recourse to the “specific claims” process. In 2001 the legal
analysis required by that process was completed but some two years later the
plaintiffs were advised that they could not expect their claim to be resolved
in any less than a further 20 years. They were also told that this process
could not be expedited. Since it was then a virtual certainty that by the time
the claim could be resolved any witnesses to the events giving rise to the
claim would no longer be available to testify the plaintiffs brought the
litigation out of abeyance and moved to have it specially managed. I was
appointed as case management judge and my first active involvement with the
case was to hear and dismiss a motion to strike the action brought by the Crown
some 20 years after the case had been started. An appeal of that decision by
the Crown was brought but was discontinued some two years later. In 2006 at the
request of the parties a Court supervised settlement process was commenced and
has continued spasmodically since that time. There have, however, been no
substantive negotiations because the Crown's representatives have yet to obtain
a negotiating mandate. Concurrently with the exploratory settlement talks, the
pre-trial stages of the action have continued including discovery and the
taking of the evidence by videography of a number of elderly witnesses. As
matters now stand, I estimate that the trial should take place in the early
summer of next year (2009). Provisional arrangements are being made to name a
trial judge and provide courtroom facilities at that time. Pending the
disposition of this motion, I have put those arrangements on hold.
The Law
[8]
In Okanagan
(above) an Indian band had conducted logging operations on land in which
they claimed aboriginal rights. When they disobeyed a Stop Work order they were
summoned into court. The Supreme Court, after noting that the Band were not the
ones who had started court proceedings said, in a majority decision:
38
The present appeal
raises the question of how the principles governing interim costs operate in
combination with the special considerations that come into play in cases of
public importance. In cases of this nature, as I have indicated above, the more
usual purposes of costs awards are often superseded by other policy objectives,
notably that of ensuring that ordinary citizens will have access to the courts
to determine their constitutional rights and other issues of broad social
significance. Furthermore, it is often inherent in the nature of cases of this
kind that the issues to be determined are of significance not only to the
parties but to the broader community, and as a result the public interest is
served by a proper resolution of those issues. In both these respects, public
law cases as a class can be distinguished from ordinary civil disputes. They
may be viewed as a subcategory where the "special circumstances" that
must be present to justify an award of interim costs are related to the public
importance of the questions at issue in the case. It is for the trial court to
determine in each instance whether a particular case, which might be classified
as "special" by its very nature as a public interest case, is special
enough to rise to the level where the unusual measure of ordering costs would
be appropriate.
39
One factor to be
borne in mind by the court in making this determination is that in a public law
case costs will not always be awarded to the successful party if, for example,
that party is the government and the opposing party is an individual Charter
claimant of limited means. Indeed, as the B. (R.) case demonstrates, it
is possible (although still unusual) for costs to be awarded in favour of the unsuccessful
party if the court considers that this is necessary to ensure that ordinary
citizens will not be deterred from bringing important constitutional arguments
before the courts. Concerns about prejudging the issues are therefore
attenuated in this context since costs, even if awarded at the end of the
proceedings, will not necessarily reflect the outcome on the merits. Another
factor to be considered is the extent to which the issues raised are of public
importance, and the public interest in bringing those issues before a court.
40
With these
considerations in mind, I would identify the criteria that must be present to
justify an award of interim costs in this kind of case as follows:
1.
The party seeking
interim costs genuinely cannot afford to pay for the litigation, and no other
realistic option exists for bringing the issues to trial -- in short, the
litigation would be unable to proceed if the order were not made.
2.
The claim to be
adjudicated is prima facie meritorious; that is, the claim is at least
of sufficient merit that it is contrary to the interests of justice for the
opportunity to pursue the case to be forfeited just because the litigant lacks
financial means.
3.
The issues raised
transcend the individual interests of the particular litigant, are of public
importance, and have not been resolved in previous cases.
41
These are necessary
conditions that must be met for an award of interim costs to be available in
cases of this type. The fact that they are met in a particular case is not
necessarily sufficient to establish that such an award should be made; that
determination is in the discretion of the court. If all three conditions are
established, courts have a narrow jurisdiction to order that the impecunious
party's costs be paid prospectively. Such orders should be carefully fashioned
and reviewed over the course of the proceedings to ensure that concerns about
access to justice are balanced against the need to encourage the reasonable and
efficient conduct of litigation, which is also one of the purposes of costs
awards. When making these decisions courts must also be mindful of the position
of defendants. The award of interim costs must not impose an unfair burden on
them. In the context of public interest litigation judges must be particularly
sensitive to the position of private litigants who may, in some ways, be caught
in the crossfire of disputes which, essentially, involve the relationship
between the claimants and certain public authorities, or the effect of laws of
general application. Within these parameters, it is a matter of the trial
court's discretion to determine whether the case is such that the interests of
justice would be best served by making the order.
[9]
Little
Sisters
(above) represents the other end of the rather narrow spectrum of cases
where advance or interim costs orders may be justified. There the appellant,
having won a previous Supreme Court challenge to a specific seizure of certain
books, sought a more general review of Customs practices with regard to works
with an homosexual orientation. The Court explained the limitations (inherent
in my view in any event) in its decision in Okanagan. The majority said:
5
The fact that the
appellant's claim would not be summarily dismissed does not suffice to
establish that interim costs should be granted to allow it to proceed. That is
not the proper test. Quite unfortunately, financial constraints put potentially
meritorious claims at risk every day. Faced with this dilemma, legislatures
have offered some responses, although these may not address every situation.
Legal aid programs remain underfunded and overwhelmed. Self-representation in
courts is a growing phenomenon. Okanagan was not intended to resolve all
these difficulties. The Court did not seek to create a parallel system of legal
aid or a court-managed comprehensive program to supplement any of the other
programs designed to assist various groups in taking legal action, and its
decision should not be used to do so. The decision did not introduce a new
financing method for self-appointed representatives of the public interest.
This Court's ratio in Okanagan applies only to those few
situations where a court would be participating in an injustice -- against the
litigant personally and against the public generally -- if it did not order
advance costs to allow the litigant to proceed.
…
36
Okanagan was
a step forward in the jurisprudence on advance costs -- restricted until then
to family, corporate and trust matters -- as it made it possible, in a public
law case, to secure an advance costs order in special circumstances related to
the public importance of the issues of the case (Okanagan, at para. 38).
In other words, though now permissible, public interest advance costs orders
are to remain special and, as a result, exceptional. These orders must be
granted with caution, as a last resort, in circumstances where the need for
them is clearly established. The foregoing principles could not yield any other
result. If litigants raising public interest issues will not always avoid
adverse costs awards at the conclusion of their trials, it can only be rarer
still that they could benefit from advance costs awards. An application for
advance costs may be entertained only if a litigant establishes that it is
impossible to proceed with the trial and await its conclusion, and if the court
is in a position to allocate the financial burden of the litigation fairly
between the parties.
37
The nature of the Okanagan
approach should be apparent from the analysis it prescribes for advance costs
in public interest cases. A litigant must convince the court that three
absolute requirements are met (at para. 40):
1.
The party seeking
interim costs genuinely cannot afford to pay for the litigation, and no other realistic
option exists for bringing the issues to trial -- in short, the litigation
would be unable to proceed if the order were not made.
2.
The claim to be
adjudicated is prima facie meritorious; that is, the claim is at least
of sufficient merit that it is contrary to the interests of justice for the
opportunity to pursue the case to be forfeited just because the litigant lacks
financial means.
3.
The issues raised
transcend the individual interests of the particular litigant, are of public
importance, and have not been resolved in previous cases.
In
analyzing these requirements, the court must decide, with a view to all
the circumstances, whether the case is sufficiently special that it would be
contrary to the interests of justice to deny the advance costs application, or
whether it should consider other methods to facilitate the hearing of the case.
The discretion enjoyed by the court affords it an opportunity to consider all
relevant factors that arise on the facts.
38
It is only a “rare
and exceptional” case that is special enough to warrant an advance costs award:
Okanagan, at para. 1. The standard was indeed intended to be a high one,
and although no rigid test can be applied systematically to determine whether a
case is “special enough”, some observations can be made. As Thackray J.A.
pointed out, it was in failing to verify whether the circumstances of this case
were “exceptional” enough that the trial judge committed an error in law.
39
First, the injustice
that would arise if the application is not granted must relate both to the
individual applicant and to the public at large. This means that a litigant
whose case, however compelling it may be, is of interest only to the litigant
will be denied an advance costs award. It does not mean, however, that every
case of interest to the public will satisfy the test. The justice system must
not become a proxy for the public inquiry process, swamped with actions launched
by test plaintiffs and public interest groups. As compelling as access to
justice concerns may be, they cannot justify this Court unilaterally
authorizing a revolution in how litigation is conceived and conducted.
40
Second, the advance
costs award must be an exceptional measure; it must be in the interests of
justice that it be awarded. Therefore, the applicant must explore all other
possible funding options. These include, but are not limited to, public funding
options like legal aid and other programs designed to assist various groups in
taking legal action. An advance costs award is neither a substitute for, nor a
supplement to, these programs. An applicant must also be able to demonstrate
that an attempt, albeit unsuccessful, has been made to obtain private funding
through fundraising campaigns, loan applications, contingency fee agreements
and any other available options. If the applicant cannot afford all costs of
the litigation, but is not impecunious, the applicant must commit to making a
contribution to the litigation. Finally, different kinds of costs mechanisms,
like adverse costs immunity, should also be considered. In doing so, courts
must be careful not to assume that a creative costs award is merited in every
case; such an award is an exceptional one, to be granted in special
circumstances. Courts should remain mindful of all options when they are called
upon to craft appropriate orders in such circumstances. Also, they should not
assume that the litigants who qualify for these awards must benefit from them
absolutely. In the United Kingdom, where costs immunity (or “protective orders”)
can be ordered in specified circumstances, the order may be given with the
caveat that the successful applicant cannot collect anything more than modest
costs from the other party at the end of the trial: see R. (Corner House
Research) v. Secretary of State for Trade and Industry, [2005] 1 W.L.R.
2600, [2005] EWCA Civ 192, at para. 76. We agree with this nuanced approach.
41
Third, no injustice
can arise if the matter at issue could be settled, or the public interest could
be satisfied, without an advance costs award. Again, we must stress that
advance costs orders are appropriate only as a last resort. In Okanagan,
the bands tried, before seeking an advance costs order, to resolve their
disputes by avoiding a trial altogether. Likewise, courts should consider
whether other litigation is pending and may be conducted for the same purpose, without
requiring an interim order of costs. Courts should also be mindful to avoid
using these orders in such a way that they encourage purely artificial
litigation contrary to the public interest.
42
Finally, the
granting of an advance costs order does not mean that the litigant has free
rein. On the contrary, when the public purse -- or another private party --
takes on the burden of an advance costs award, the litigant must relinquish
some manner of control over how the litigation proceeds. The litigant cannot
spend the opposing party's money without scrutiny. The benefit of such funding
does not imply that a party can, at will, multiply hours of preparation, add
expert witnesses, engage in every available proceeding, or lodge every
conceivable argument. A definite structure must be imposed or approved by the
court itself, as it alone bears the responsibility for ensuring that the award
is workable.
43
For example, the
court should set limits on the chargeable rates and hours of legal work, closely
monitor the parties' adherence to its dictates, and cap the advance costs award
at an appropriate global amount. It should also be sensitive to the reality
that work often expands to fit the available resources and that the “maximum”
amounts contemplated by a court will almost certainly be reached. As well, the
possibility of setting the advance costs award off against damages actually
collected at the end of the trial should be contemplated. In determining the
quantum of the award, the court should remain aware that the purpose of these
orders is to restore some balance between litigants, not to create perfect
equality between the parties. Legislated schemes like legal aid and other
programs designed to assist various groups in taking legal action do not
purport to create equality among litigants, and there is no justification for
advance costs awards placing successful applicants in a more favourable
position. An advance costs award is meant to provide a basic level of
assistance necessary for the case to proceed.
44
A court awarding
advance costs must be guided by the condition of necessity. For parties with
unequal financial resources to face each other in court is a regular
occurrence. People with limited means all too often find themselves discouraged
from pursuing litigation because of the cost involved. Problems like this are
troubling, but they do not normally trigger advance costs awards. We do not
mean to minimize their unfairness. On the contrary, we believe they are
sufficiently serious that this Court cannot purport to solve them all through
the mechanism of advance costs awards. Courts should not seek on their own to
bring an alternative and extensive legal aid system into being. That would
amount to imprudent and inappropriate judicial overreach.
[10]
In a
separate concurring opinion Chief Justice McLaughlin cast some further light on
the precise limits of the rule laid down in Okanagan:
85
Again, in applying
the test, the Court, per LeBel J., stated:
1. Applying the criteria I have set out to
the evidence in this case as assessed by the chambers judge, it is my view that
each of them is met. The respondents are impecunious and cannot proceed to
trial without an order for interim costs. The case is of sufficient merit that
it should go forward. The issues sought to be raised at trial are of profound
importance to the people of British Columbia, both aboriginal and
non-aboriginal, and their determination would be a major step towards settling
the many unresolved problems in the Crown-aboriginal relationship in that
province. In short, the circumstances of this case are indeed special, even
extreme. [Emphasis added; para. 46.]
86
However, in setting
out the test in the context of public interest litigation at para. 40 of Okanagan,
the third condition of special circumstances was expressed in terms of public
interest without express reference to special circumstances. The third branch is
described there as follows: “3. The issues raised transcend the individual
interests of the particular litigant, are of public importance, and have not been
resolved in previous cases.”
87
Notwithstanding the
restricted formulation of the third requirement of the test at para. 40 of Okanagan,
it is clear from the overall tenor of the reasons in Okanagan that the
Court did not intend to depart from the common law requirement that special
circumstances be established as a pre-condition of interim costs. The test for
interim costs in public interest litigation should not be less exacting than
the test for interim costs generally. Indeed, there is no reason why they
should not be the same. In applying the test, as discussed, the Court confirmed
that the search is not merely for a matter of public interest, but for the very
special circumstances required to justify this extraordinary order.
88
I therefore proceed
on the basis that the three criteria for an order for advance costs are: (1)
impecuniosity; (2) a meritorious case; and (3) special circumstances making
this extraordinary exercise of the court's power appropriate. This formulation
differs from that used by my colleagues Bastarache and LeBel JJ. in that the
third condition is not merely that the matter be one of public interest, but
that it constitute special circumstances in the sense indicated. The third
requirement of special circumstances has been found in cases involving trusts,
family maintenance, corporate and bankruptcy matters, and, in Okanagan,
in cases involving issues of public importance. However, public importance is
not enough in itself to meet the third requirement. The ultimate question is
whether the matter of public interest rises to the level of constituting
special circumstances. As with all equitable orders, the order is in the
court's discretion, provided the conditions are made out. However, absent these
conditions, it cannot be made.
[11]
Without
in any way minimizing the subtle differences between the various
criteria set out in the opinions delivered in both Okanagan and Little
Sisters, it is my view that they are not irreconcilable in their
application to the facts of this case. For simplicity I shall refer to them
hereafter as “the Okanagan requirements”.
The Okanagan Requirements
1. Impecuniosity
[12]
The plaintiffs
have unaided supported this litigation for well over 20 years. They are a small
band with virtually no resources and dependant upon funds provided, and closely
controlled, by the government. They have unsuccessfully sought funding from a
number of sources, including some suggested by the Crown itself in its response
to the present motion.
[13]
From
the end of 2003, when steps to reactivate the present action were
started, down to the bringing of this motion the plaintiffs have paid almost
$83,000 in legal fees and owe their counsel a further sum of over $140,000.
They are deeply in debt and have no sources of credit.
[14]
Their
current budget is in deficit. Late last year the Band Council offices
had to be closed for over three weeks because of a lack of funds. In my view
there is simply no doubt that unless they receive help of some sort they will
be unable either to prosecute this action through to trial or even to pursue
settlement negotiations even assuming that the government finally makes up its
mind to give its representatives a mandate to make some kind of an offer and to
enter into settlement discussions.
[15]
The first
of the Okanagan requirements is clearly met.
2. Merit
[16]
This
requirement of Okanagan is more problematical. Clearly it is not enough
that the defendant was unsuccessful in attempting to have the action struck out
on a preliminary motion for that threshold is very low. Even placing the bar
somewhat higher, I am nonetheless satisfied that the claim is serious and that
there is, at the very least, a reasonable possibility of success
notwithstanding that there are substantial difficulties in the plaintiffs’ way.
Not the least of these are questions relating to whether or not the plaintiffs
are truly the beneficiaries of the aboriginal right which they claim and
whether the alleged ownership of the river bed by the provincial Crown is an
insuperable obstacle to them. I think that it would be wrong for the Court at
this preliminary stage to get into a detailed assessment of the plaintiffs’
likelihood of success since that could only be a source of difficulty both to
the parties and to the Court itself at subsequent stages. In my view it is
enough for me to find, as I do, that they have a reasonable chance of obtaining
at least some of what they seek.
[17]
Ironically,
it is in large measure the questions raised by the Crown itself in its
defence and to which I have just referred which give much substance to the
plaintiffs’ argument that the case is of great public interest and importance,
whose outcome whichever way it goes, will be significant in the development of
Canada’s relations with its aboriginal peoples.
3. Public Interest
[18]
The issues
raised by the plaintiffs claim are, in my opinion, of great importance not
only, and obviously, to the plaintiffs themselves but also to the Crown and to
other aboriginal peoples. Starting with those which I have already mentioned
those issues include:
a) Whether a reserve based aboriginal
right to fish can be asserted in waters which do not belong to Canada and do not form part of the reserve itself.
b) Whether
such a right enjoys constitutional protection.
c) Whether British Columbia, as the alleged owner of the river bed, is
a necessary party.
d) Whether, as a consequence of
the foregoing, this Court is without jurisdiction.
e) Whether the plaintiffs are the
proper collectivity to assert the claimed aboriginal right to a fishery.
f) Whether a claim for cultural
loss is cognizable at law and, if so, how it should be valued.
[19]
This
list is by no means intended to be exhaustive. Obviously the case raises
many other questions of considerable public interest. The issues I have listed
above are, however, in my view, both in combination and to a lesser extent
individually, unique to this case and, as far as I have been made aware, have
not as yet been resolved in other cases, nor are likely to be so at an early
date. Collectively they meet the third Okanagan requirement.
Other Relevant Factors and “Special Circumstances”
[20]
As Little
Sisters makes clear, the fulfillment of the three listed conditions
is necessary but not sufficient to justify an advance costs order. The Court
must examine all the circumstances of the case and determine not only if its
importance is sufficiently “special” to support an extraordinary order of this
sort, but also if there are any other factors which might militate for or
against the granting of relief.
[21]
Most
important among these circumstances, I would above all note the quite
extraordinary delays to which the plaintiffs have been put by the tactics of
the Crown both before and after the launching of this litigation. Almost 50
years have passed since the blasting of the rocks and only a few members of the
Band remain who can remember the fishery that once was theirs. For over 25
years the plaintiffs were continuously put off by a series of unkept and broken
promises that the situation would somehow be remedied. The commission evidence
of a former Indian Agent, and Crown witness A.E. Fry is particularly eloquent
in this regard. Then, once the action was launched, the plaintiffs were
“sidetracked” into the Special Claims process only to find out years later that
that process was, if not a total dead end, an almost endless detour. The Crown
now argues that it is proposing legislative changes to that process but that
legislation, if and when it ever passes, may still include provisions which
would exclude important parts of the plaintiffs’ claim, notably those relating
to cultural loss. In my view, the proposed legislation is too uncertain and
hypothetical for me to give it serious consideration at this time. Even if it
were adopted the new special claims procedure would be most unlikely to produce
a result before this case does so.
[22]
Even
though the plaintiffs, unlike the Okanagan Band, were not forced into
court proceedings, they cannot be said to have rushed into them with unseemly
haste. In fact, in the circumstances, if the plaintiffs were to assert their
rights at all, they effectively had no choice but to resort to litigation and
to do so timely so as to avoid possible defences of laches or limitation.
[23]
Even
once the action was re-activated and placed under special management the
Crown brought a long-delayed motion to strike and, when that was dismissed,
launched an appeal which it ultimately abandoned. And while I do not fault the
Crown for engaging in tentative settlement discussions, I find it quite
extraordinary that it is nowhere near to giving proper instructions and a
mandate to counsel to enter into meaningful negotiations.
[24]
In virtually
all aboriginal rights cases the honour of the Crown is at stake, and that is
certainly the case in this action as well. In the usual case, however, such
honour is only raised in connection with the substance of the original right
itself and its subsequent loss or diminution. Here, however, it seems to me
that there are serious questions to be asked and answered concerning the
actions of the Crown and its agents since the events complained of in the
statement of claim.
[25]
Another
factor which I consider important is the fact that this claim does not
concern the simple diminution or restriction of an alleged aboriginal right but
its total destruction. Whether or not the fishery could ever be re-established
is, I suppose, a matter for expert evidence but it seems to me significant that
it has not been in the almost 50 years that have gone by in the interim.
[26]
Also
of importance in my view is the fact that the case is getting very close
to trial. While things may still go wrong and the trial itself may go off the
tracks, this litigation presents the best and speediest opportunity for an
early resolution of this long-standing source of grievance.
[27]
Finally,
as noted above in the section on impecuniosity, the plaintiffs have
since 2004 already spent or committed to spend on this action very significant
sums of money which they can ill afford. The materials do not reveal how much
they may have put out before that time but I think that I can safely assume
that it was not negligible. Although the motion seeks total or partial
reimbursement of moneys already paid or committed, it is my view that an
advance costs order should only be prospective in nature. This means that,
apart from the costs engaged on the present motion which I shall deal with
separately, plaintiffs' counsel are de facto, and unwillingly, acting on
a contingent fee basis with regard to the large amounts they are owed to date.
Conclusion
[28]
I conclude
from all the foregoing that this is one of those rare and exceptional cases
where justice requires that the plaintiffs benefit from some sort of interim
costs order. As both Okanagan and Little Sisters make clear,
however, the precise nature of that order needs to be carefully crafted. I
think that should in the first instance, be done by counsel for both parties
working together and trying to make either a joint submission or, if that
proves impossible, opposing proposals. As I have not heard detailed submissions
on the matter I wish to make it clear that what follows is in no way a final
determination on my part but simply an initial indication of the areas that
the final order should cover:
1. Fees should be based on Tariff B.
2. Disbursements for more than
routine expenses such as travel, etc. should be subject to prior approval. In
particular no experts should be engaged without such approval.
3. The
number of counsel should be limited and specified.
4. Accounts should be submitted
on a periodic basis for approval by the Court (which might be done by a
prothonotary or an assessment officer).
5. While I am doubtful that this
is an appropriate case to order costs indemnity for the Crown, any amount paid
as advance costs must of course be credited against any ultimate award of costs
or damages made to plaintiffs.
6. Plaintiffs should continue to
contribute to the costs of the litigation and the annual amount of such contribution
must be specified.
[29]
Finally,
I propose to make an award of the costs of the present motion in a lump sum in
favour of plaintiffs. While the amount should be set bearing in mind the
provisions of Tariff B, I invite submissions from counsel as to the amount and
manner of payment thereof.
[30]
Pursuant
to Rule 394, counsel for plaintiffs is directed to consult with counsel
for the Crown and prepare a draft form of order for advance costs to be
submitted to and discussed at a case management teleconference to be held as
herein directed. The registrar shall communicate with counsel to fix a mutually
convenient time for such teleconference at which time a schedule will also be
established for submissions on the amount of the costs of this motion and any
other outstanding matters.
“James
K. Hugessen”
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