British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371

British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71

Her Majesty The Queen in Right of the Province of British Columbia,

as represented by the Minister of Forests                                                     Appellant

v.

Chief Dan Wilson, in his personal capacity and as representative

of the Okanagan Indian Band, and all other persons engaged

in the cutting, damaging or destroying of Crown Timber at

Timber Sale Licence A57614                                                                      Respondents

and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of New Brunswick,

Attorney General of British Columbia, Attorney General of Alberta, the

Songhees Indian Band, the T’Sou‑ke First Nation, the Nanoose First Nation

and the Beecher Bay Indian Band (collectively the “Te’mexw Nations”), and

Chief Roger William, on his own behalf and on behalf of all

other members of the Xeni Gwet’in First Nations government

and on behalf of all other members of the Tsilhqot’in Nation                     Interveners

and between

Her Majesty The Queen in Right of the Province of British Columbia,

as represented by the Minister of Forests                                                     Appellant

v.

Chief Ronnie Jules, in his personal capacity and as representative

of the Adams Lake Indian Band, Chief Stuart Lee, in his personal capacity

and as representative of the Spallumcheen Indian Band, Chief Arthur

Manuel, in his personal capacity and as representative of the Neskonlith

Indian Band, and David Anthony Nordquist, in his personal capacity

and as representative of the Adams Lake Indian Band, the Spallumcheen

Indian Band and the Neskonlith Indian Band, and all other persons

engaged in the cutting, damaging or destroying of Crown Timber at

Timber Sale Licence A38029, Block 2                                                       Respondents

and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of New Brunswick,

Attorney General of British Columbia, Attorney General of Alberta, the

Songhees Indian Band, the T’Sou‑ke First Nation, the Nanoose First Nation

and the Beecher Bay Indian Band (collectively the “Te’mexw Nations”), and

Chief Roger William, on his own behalf and on behalf of all other

members of the Xeni Gwet’in First Nations government and on behalf

of all other members of the Tsilhqot’in Nation                                            Interveners

Indexed as:  British Columbia (Minister of Forests) v. Okanagan Indian Band

Neutral citation:  2003 SCC 71.

File Nos.:  28988, 28981.

2003:  June 9; 2003:  December 12.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for british columbia

Costs — Interim costs — Principles governing exercise of court’s discretionary power to grant interim costs — Minister of Forests serving Indian Bands with stop-work orders for logging on Crown land without authorization — Bands claiming aboriginal title to lands — Minister applying to have proceedings remitted to trial list — Bands arguing that matter of aboriginal title should not go to trial as they lack financial resources to fund action or in alternative, requesting order that Crown pay interim costs to fund action in advance and in any event of cause — Whether Court of Appeal’s decision to grant interim costs should be upheld — Whether Court of Appeal had sufficient grounds to review exercise of chambers judge’s discretion — Rules of Court, B.C. Reg. 221/90, ss. 52(11)(d), 57(9).

In 1999, members of the four respondent Bands began logging on Crown land in B.C. without authorization under the Forest Practices Code of British Columbia Act.  The Minister of Forests served the Bands with stop-work orders under the Code, and commenced proceedings to enforce the orders.  The Bands claimed that they had aboriginal title to the lands in question and were entitled to log them.  They filed a notice of constitutional question challenging the Code as conflicting with their constitutionally protected aboriginal rights.  The Minister then applied to have the proceedings remitted to the trial list instead of being dealt with in a summary manner.  The Bands argued that the matter should not go to trial, because they lacked the financial resources to fund a protracted and expensive trial.  In the alternative, they argued that the court, in the exercise of its powers to attach conditions to a discretionary order and to make orders as to costs, should order a trial only if it also ordered the Crown to pay their legal fees and disbursements in advance and in any event of the cause.  The B.C. Supreme Court held that the case should be remitted to the trial list and declined to order the Minister to pay the Bands’ costs in advance of the trial.  The Court of Appeal allowed the Bands’ appeal.  The decision to remit the matter of the Bands’ aboriginal rights or title to trial was upheld.  The court concluded, however, that although the Bands did not have a constitutional right to legal fees funded by the provincial Crown the court did have a discretionary power to order interim costs.  It ordered the Crown to pay such legal costs of the Bands as ordered by the chambers judge from time to time, subject to detailed terms that it imposed so as to encourage the parties to minimize unnecessary steps in the dispute and to resolve as many issues as possible by negotiation.

Held (Iacobucci, Major and Bastarache JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and Gonthier, Binnie, Arbour, LeBel and Deschamps JJ.:  The Court of Appeal’s decision to grant interim costs to the Bands should be upheld.  The discretionary power to award interim costs in appropriate cases has been recognized in Canada.  Concerns about access to justice and the desirability of mitigating severe inequality between litigants feature prominently in the rare cases where such costs are awarded.  The power to order interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the court may determine at its discretion when and by whom costs are to be paid.  Several conditions must be present for an interim costs order to be granted.  The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case; the claimant must establish a prima facie case of sufficient merit to warrant pursuit; and there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

In public interest litigation special considerations also come into play.  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.  The criteria that must be present to justify an award of interim costs in this kind of case are as follows: 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; the claim to be adjudicated is prima facie meritorious; and the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

Each of these criteria is met in this case.  The Bands 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 B.C., 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.  The conditions attached to the costs order by the Court of Appeal ensure that the parties will be encouraged to resolve the matter through negotiation, which remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown, and also that there will be no temptation for the Bands to drag out the process unnecessarily and to throw away costs paid by the Crown.

The Court of Appeal had sufficient grounds to review the exercise of discretion by the trial court.  Discretionary decisions are not completely insulated from review.  An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts.  Two errors in particular vitiate the chambers judge’s decision and call for appellate intervention.  First, he overemphasized the importance of avoiding any order that involved prejudging the issues and erred when he concluded that his discretion did not extend so far as to empower him to make the order requested.  Second, his finding that a contingent fee arrangement might be a viable alternative for funding the litigation does not appear to be supported by any evidence, and the prospect of the Bands’ hiring counsel on a contingency basis seems unrealistic in the particular circumstances of this case.

Per Iacobucci, Major and Bastarache JJ. (dissenting):  The chambers judge  interpreted the applicable principles correctly and there is no basis for reversing his discretion.  Traditionally, costs are awarded after the ultimate trial or appellate decision and almost always to the successful party.  However, the common law on interim costs has been more confined and interim costs have been awarded in two circumstances:  in marital cases where some liability is presumed and the indemnificatory purpose of the costs power is fulfilled; and in corporate and trust cases where the court grants advanced costs to be paid by the corporation or trust for whose benefit the action is brought.  Courts may also award interim costs in child custody cases.  The reason for such restrictive use is apparent since awarding costs in advance could be seen as prejudging the merits and the objectivity of the court making such an order will almost automatically be questioned.  The awarding of interim costs in the circumstances of this appeal appears as a form of judicially imposed legal aid.  Interim costs should not be expanded to engage the court in essentially funding litigation for impecunious parties and ensuring their access to court.  The new criteria endorsed by the majority broaden the scope of interim costs to an undesirable extent and are not supported in the case law.  Such developments should be initiated by trial courts properly exercising their discretionary power, not the appellate reversal of that discretion.  A case must be exceptional in order to attract interim costs; however, the majority accept that most public interest cases would satisfy this criterion and leave to the discretion of the trial judge the decision as to whether the case is “special enough” to warrant an order.  The difficulty for the trial judge is that this does not provide any ascertainable standard or direction.  Even if such special circumstances were to be considered, there is nothing to distinguish the present aboriginal land claims from any other.  Further, one may not presume that the Bands will establish even partial aboriginal title in the cases under appeal.  The ratio of the common law dictates the following three guidelines for the discretionary, extraordinary award of interim costs:  the party seeking the interim costs cannot afford to fund the litigation, and has no other realistic manner of proceeding with the case; there is a special relationship between the parties such that an award of interim costs or support would be particularly appropriate; and it is presumed that the party seeking interim costs will win some award from the other party.  The chambers judge committed no error of law nor a palpable error in his assessment of the facts.  Deference should be given to his decision not to exercise his discretion to grant interim costs.

Cases Cited

By LeBel J.

Referred to:  Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 51 O.R. (2d) 23; Ryan v. McGregor (1925), 58 O.L.R. 213; Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464; Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201; Kendall v. Hunt (No. 2) (1979), 16 B.C.L.R. 295; Canadian Newspapers Co. v. Attorney-General of Canada (1986), 32 D.L.R. (4th) 292; Re Lavigne and Ontario Public Service Employees Union (No. 2) (1987), 60 O.R. (2d) 486, rev’d (1989), 67 O.R. (2d) 536, aff’d [1991] 2 S.C.R. 211; Rogers v. Sudbury (Administrator of Ontario Works) (2001), 57 O.R. (3d) 467; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, aff’g (1992), 10 O.R. (3d) 321, aff’g [1989] O.J. No. 205 (QL); Jones v. Coxeter (1742), 2 Atk. 400, 26 E.R. 642; Organ v. Barnett (1992), 11 O.R. (3d) 210; McDonald v. McDonald (1998), 163 D.L.R. (4th) 527; Woloschuk v. Von Amerongen, [1999] A.J. No. 463 (QL), 1999 ABQB 306; Roberts v. Aasen, [1999] O.J. No. 1969 (QL); Amcan Industries Corp. v. Toronto-Dominion Bank, [1998] O.J. No. 3014 (QL); Turner v. Telecommunication Workers Pension Plan (2001), 197 D.L.R. (4th) 533, 2001 BCCA 76; New Brunswick (Minister of Health and Community Services) v. G. (J.) (1995), 131 D.L.R. (4th) 273, rev’d [1999] 3 S.C.R. 46; Earl v. Wilhelm (2000), 199 Sask. R. 21, 2000 SKCA 68; Benson v. Benson (1994), 120 Sask. R. 17; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Pelech v. Pelech, [1987] 1 S.C.R. 801; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

By Major J. (dissenting)

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Van der Peet, [1996] 2 S.C.R. 507; McDonald v. McDonald (1998), 163 D.L.R. (4th) 527;  Randle v. Randle (1999), 254 A.R. 323, 1999 ABQB 954; Roberts v. Aasen, [1999] O.J. No. 1969 (QL); Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925.

Statutes and Regulations Cited

Business Corporations Act, R.S.O. 1990, c. B.16, ss. 248, 249.

Canadian Charter of Rights and Freedoms, s. 15 .

Company Act, R.S.B.C. 1996, c. 62, s. 201.

Constitution Act, 1982, s. 35 .

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1).

Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, ss. 96, 123.

Queen’s Bench Rules, Man. Reg. 553/88, r. 49.10.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 49.10, 57.01(1)(d), (2).

Rules of Court, B.C. Reg. 221/90, rr. 1(12), 37(23) to 37(26), 52(11)(d), 57(9).

Authors Cited

Orkin, Mark M.  The Law of Costs, 2nd ed.  Aurora, Ont.:  Canada Law Book, 1987 (loose-leaf updated November 2002).

APPEAL from a judgment of the British Columbia Court of Appeal (2001), 95 B.C.L.R. (3d) 273, 208 D.L.R. (4th) 301, 161 B.C.A.C. 13, 263 W.A.C. 13, 92 C.R.R. (2d) 319 (sub nom. British Columbia (Ministry of Forests) v. Jules), [2002] 1 C.N.L.R. 57, [2001] B.C.J. No. 2279 (QL), 2001 BCCA 647, allowing in part an appeal from a decision of the British Columbia Supreme Court, [2000] B.C.J. No. 1536 (QL), 2000 BCSC 1135.  Appeal dismissed, Iacobucci, Major and Bastarache JJ. dissenting.

Patrick G. Foy, Q.C., and Robert J. C. Deane, for the appellant.

Louise Mandell, Q.C., Michael Jackson, Q.C., Clarine Ostrove and Reidar Mogerman, for the respondents.

Cheryl J. Tobias and Brian McLaughlin, for the intervener the Attorney General of Canada.

Lori R. Sterling and Mark Crow, for the intervener the Attorney General of Ontario.

René Morin, Gilles Laporte and Brigitte Bussières, for the intervener the Attorney General of Quebec.

Written submissions only by Gabriel Bourgeois, Q.C., for the intervener the Attorney General of New Brunswick.

Written submissions only by George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.

Written submissions only by Margaret Unsworth, for the intervener the Attorney General of Alberta.

Robert J. M. Janes and Dominique Nouvet, for the interveners the Songhees Indian Band et al.

Joseph J. Arvay, Q.C., and David M. Robbins, for the intervener Chief Roger William.

The judgment of McLachlin C.J. and Gonthier, Binnie, Arbour, LeBel and Deschamps JJ. was delivered by

LeBel J. —

I.    Introduction

1                                   These two appeals concern the inherent jurisdiction of the courts to grant costs to a litigant, in rare and exceptional circumstances, prior to the final disposition of a case and in any event of the cause (I will refer to a cost award of this nature as “interim costs”).  Such a jurisdiction exists in British Columbia.  This discretionary power is subject to stringent conditions and to the observance of appropriate procedural controls.  In this case, for the reasons which follow, I would uphold the granting of interim costs to the respondents by the British Columbia Court of Appeal, and I would hold that the Court of Appeal had sufficient grounds to review the exercise of discretion by the trial court.

II.  Background

2                                   In the fall of 1999, members of the four respondent Indian bands (the “Bands”) began logging on Crown land in British Columbia without authorization under the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 (the “Code”).  The Bands’ respective tribal councils had purportedly authorized the harvesting of the timber, which was to be used to construct housing on the Bands’ reserves.  The appellant Minister of Forests served the Bands with stop-work orders under the Code, and commenced proceedings to enforce the orders.  The Bands claimed that they had aboriginal title to the lands in question and were entitled to log them.  They filed a notice of constitutional question challenging ss. 96 and 123 of the Code as conflicting with their constitutionally protected aboriginal rights.

3                                   The Minister then applied under Rule 52(11)(d) of the Rules of Court of the Supreme Court of British Columbia, B.C. Reg. 221/90, to have the proceedings remitted to the trial list instead of being dealt with in a summary manner.  The respondents argued that the matter should not go to trial, because they lacked the financial resources to fund a protracted and expensive trial — which, given the evidentiary challenges of proving a claim of aboriginal title, this would almost undoubtedly be.  In the alternative, they argued that the court, in the exercise of its powers to attach conditions to a discretionary order under Rule 52(11)(d) and to make orders as to costs pursuant to Rule 57(9), should order a trial only if it also ordered the Crown to pay their legal fees and disbursements in advance and in any event of the cause.  In support of this position, they raised constitutional arguments on three grounds: a general right of access to justice that is implicit in the Canadian Charter of Rights and Freedoms  and flows from the primacy of the rule of law; the protection of aboriginal rights, as affirmed by s. 35  of the Constitution Act, 1982 ; and equality rights under s. 15  of the Charter .

4                                   The respondents filed affidavit and documentary evidence in support of their claims of aboriginal title and rights.  They also submitted evidence demonstrating that it was impossible for them to fund the litigation themselves.  The evidence indicated that the Bands were all in extremely difficult financial situations.  The chiefs deposed that their communities face grave social problems, including high unemployment rates, lack of housing, inadequate infrastructure, and lack of access to education.  Many members of the respondent Bands who live off-reserve would like to return to their communities, but are unable to do so because there are not enough jobs and homes even for those who live on the reserves now.  The Bands have been forced to run deficits to finance their day-to-day operations.  The chiefs of the Spallumcheen and Neskonlith Bands deposed that they are close to having outside management of their finances imposed by the Department of Indian and Northern Affairs because their working capital deficits are so high. 

5                                   The Bands’ counsel estimated that the cost of a full trial would be $814,010.  The Bands say that they had no way to raise this much money; and that even if they did, there are many more pressing needs which would have to take priority over funding litigation.  One of the most urgent needs is new housing — the very purpose for which, they say, they want to harvest timber from the land to which they claim title.

III.    Relevant Legislative Provisions

6                                   Supreme Court of British Columbia Rules of Court, B.C. Reg. 221/90

1(12)   When making an order under these rules the court may impose terms and conditions and give directions as it thinks just.

52(11) On an application the court may

(d)  order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre‑trial proceedings, and for the disposition of the application.

57(9)   . . . costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

IV.    Judicial History

A.     British Columbia Supreme Court, [2000] B.C.J. No. 1536 (QL), 2000 BCSC 1135

7                                   Sigurdson J. held that the case could not be decided on the basis of documentary and affidavit evidence alone, and should therefore be remitted to the trial list.  The evidence submitted by the Bands of their historical connection to the land was not sufficient in itself to dispose of the issue.  Proving the Bands’ aboriginal rights claims, which were contested by the Crown, would require historical, anthropological and archaeological evidence to be given by live witnesses and subjected to the detailed and rigorous testing of the trial process.  The just resolution of the dispute required a trial and pleadings.

8                                   Sigurdson J. went on to consider whether he should impose a condition that the Minister pay the Bands’ legal fees and disbursements.  He began with the question of whether the court retained a general jurisdiction to award interim costs in a proceeding.  He noted that costs usually follow the event and are awarded at the conclusion of the proceedings.  Referring to a line of Ontario cases where a narrow jurisdiction to award interim costs has been recognized, Sigurdson J. held that such a discretion also existed in British Columbia in exceptional circumstances.  He noted that he was unaware of any cases where substantial amounts had been awarded prior to trial where a liability or right was seriously in issue.

9                                   Turning to the Bands’ argument that constitutional norms applied to the exercise of his discretion over costs, Sigurdson J. held that those norms did not require an order of interim costs to be made in the Bands’ favour.  He acknowledged that the Bands would need to retain experienced counsel and experts, and that a trial would be complex and expensive.  He also recognized that the Bands’ poverty would make it difficult for them to put their case forward.  In his view, however, these obstacles resulted from the nature of the case and from the Bands’ financial circumstances, not from any interference with their constitutional rights.  The Bands’ s. 35  argument failed, he held, because there were no specific circumstances giving rise to a fiduciary obligation on the part of the Crown to negotiate with the Bands or to fund the litigation of their land claim.

10                               Sigurdson J. declined to order the Minister to pay the Bands’ costs in advance of the trial.  He found that his jurisdiction to make such an order was very narrow and was limited by the principle that he could not prejudge the outcome of the case.  In this case, liability was still in issue, and Sigurdson J. held that ordering the payment of costs in advance would involve prejudging the case on the merits.  For this reason, he was of the view that he was precluded from making such an order.  Sigurdson J. added a recommendation that the federal and provincial Crown consider providing funding to ensure that the cases, which had elements of test cases, would be properly resolved at trial.  He also suggested that the litigation might be able to proceed if the Bands could work out a contingent fee arrangement with counsel.

B.    British Columbia Court of Appeal (2001), 95 B.C.L.R. (3d) 273, 2001 BCCA 647

11                               Newbury J.A., writing for a unanimous panel, allowed the Bands’ appeal of Sigurdson J.’s decision.

12                               At the outset, Newbury J.A. noted that the Bands’ claims, if they went to trial, would be the first to try aboriginal claims to title and other rights in respect of logging in British Columbia.  She also summarized some of the affidavit evidence setting out the dire financial circumstances of the Bands. 

13                               Newbury J.A. upheld the chambers judge’s decision to remit the matter of the Bands’ aboriginal rights or title to trial.  She agreed with him that the just determination of these issues required a trial.  This holding was not raised on appeal to this Court.

14                               On the question of funding the litigation, Newbury J.A. distinguished between a constitutional right to full funding of legal fees and disbursements, on the one hand, and on the other, the court’s discretion to make orders as to “costs” as that term is used in the rules of court and in general legal parlance — meaning a payment to offset legal expenses, usually in an amount set by statutory guidelines, rather than payment of the actual amount owed by the client to his or her solicitor.

15                               As far as a constitutional right to funding of the Bands’ legal expenditures was concerned, Newbury J.A. substantially agreed with the reasons of the chambers judge.  She held that the principle of access to justice did not extend so far as to oblige the government to fund litigants who could not afford to pay for legal representation in a civil suit.  She also agreed with Sigurdson J. that s. 35  of the Constitution Act, 1982  did not place an affirmative obligation on the government to provide funding for legal fees of an aboriginal band attempting to prove asserted aboriginal rights.  Nothing in the specific circumstances of this case gave rise to a fiduciary expectation on the Bands’ part that their legal fees would be funded.  (She did not address the Bands’ s. 15  arguments, which were not raised on appeal.)  Newbury J.A. concluded that the Bands did not have a constitutional right to legal fees funded by the provincial Crown.

16                               Newbury J.A. came to a different conclusion, however, on the matter of the court’s discretion to order interim costs in favour of the Bands.  She agreed with Sigurdson J. that this discretion existed, and that it was narrow in scope and restricted to narrow and exceptional circumstances.  In her view, however, the circumstances of this case were indeed exceptional.  Newbury J.A. held that the chambers judge had placed too much emphasis on concerns about prejudging the outcome, which in her view were diminished in light of the special circumstances of the case and the public interest in a proper resolution of the issues.  She held that constitutional principles and the unique nature of the relationship between the Crown and aboriginal peoples were background factors that should inform the exercise of the court’s discretion to order costs.  Newbury J.A. held that the chambers judge had erred in failing to recognize that the case involved exceptional and unique circumstances which outweighed concerns about prejudging the outcome of the case.

17                               Newbury J.A. held that, although the court had no discretion to order full funding of the Bands’ case by the Crown, the chambers judge did have a discretionary power to order interim costs.  She held that such an order should be made with conditions designed to provide concrete assistance to the Bands without exposing the Minister to unreasonable or excessive costs.  She ordered the Crown to pay such legal costs of the Bands as ordered by the chambers judge from time to time, subject to detailed terms that she imposed so as to encourage the parties to minimize unnecessary steps in the dispute and to resolve as many issues as possible by negotiation.  These terms, as found in the Court of Appeal Order dated November 5, 2001, are best stated in full:

AND THIS COURT FURTHER ORDERS that the Crown, in any event of the cause, pay such legal costs of the Bands, as that term is used and as the Chambers judge orders from time to time in accordance with the following:

(a)   Costs, as is referenced in paragraph [10] of the Reasons for Judgment;

(b)  Unless the Chambers judge concludes that special costs are warranted in this case, costs are to be calculated on the appropriate scale in light of the complexity and difficulty of the litigation;

(c)   Counsel are to consider whether costs could be saved by trying one of the four cases rather than all four at the same time.  If counsel are unable to agree on that issue, they should seek directions from the Chambers judge.  Counsel are also to use all other reasonable measures to minimize costs, and the Chambers judge may impose restrictions for this purpose;

(d)  The Province and the Bands are to attempt to agree on a procedure whereby the Bands upon incurring taxable costs and disbursements from time to time up to the end of the trial, will so advise the respondent, and provide such other ‘backup’ material as the Chambers judge may order.  Such costs would be paid by the respondent within a given time-frame, unless the Province objects, in which case it shall refer the matter to the Chambers judge, who may order the taxation of the bill in the ordinary way;

(e)   If counsel are unable to agree on such procedures, the matter shall be taken back to the Chambers judge, who shall make directions in accordance with the spirit of these Reasons.

V.     Issues

18                               This case raises two issues: first, the nature of the court’s jurisdiction in British Columbia to grant costs on an interim basis and the principles that govern its exercise; and second, appellate review of the trial court’s discretion as to costs.  The issue of a constitutional right to funding does not arise, as it was not relied on by the respondents in this appeal.

VI.    Analysis

A.     The Court’s Discretionary Power to Grant Interim Costs

(1)   Traditional Costs Principles — Indemnifying the Successful Party

19                               The jurisdiction of courts to order costs of a proceeding is a venerable one.  The English common law courts did not have inherent jurisdiction over costs, but beginning in the late 13th century they were given the power by statute to order costs in favour of a successful party.  Courts of equity had an entirely discretionary jurisdiction to order costs according to the dictates of conscience (see M. M. Orkin, The Law of Costs (2nd ed. (loose-leaf)), at p. 1-1).  In the modern Canadian legal system, this equitable and discretionary power survives, and is recognized by the various provincial statutes and rules of civil procedure which make costs a matter for the court’s discretion.

20                               In the usual case, costs are awarded to the prevailing party after judgment has been given.  The standard characteristics of costs awards were summarized by the Divisional Court of the Ontario High Court of Justice in Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 51 O.R. (2d) 23, at p. 32, as follows:

(1)   They are an award to be made in favour of a successful or deserving litigant, payable by the loser.

(2)   Of necessity, the award must await the conclusion of the proceeding, as success or entitlement cannot be determined before that time.

(3)   They are payable by way of indemnity for allowable expenses and services incurred relevant to the case or proceeding.

(4)   They are not payable for the purpose of assuring participation in the proceedings.  [Emphasis in original.]

21                               The characteristics listed by the court reflect the traditional purpose of an award of costs: to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed).  Costs awards were described in Ryan v. McGregor (1925), 58 O.L.R. 213 (App. Div.), at p. 216, as being “in the nature of damages awarded to the successful litigant against the unsuccessful, and by way of compensation for the expense to which he has been put by the suit improperly brought”.

(2)   Costs as an Instrument of Policy

22                               These background principles continue to govern the law of costs in cases where there are no special factors that would warrant a departure from them.  The power to order costs is discretionary, but it is a discretion that must be exercised judicially, and accordingly the ordinary rules of costs should be followed unless the circumstances justify a different approach.  For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award.  Orkin, supra, at p. 2-24.2, has remarked that:

The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called “outdated” since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexations [sic] litigation and to discourage unnecessary steps.

23                               The indemnification principle was referred to as “outdated” in Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Gen. Div.), at p. 475.  In this case the successful party was a law firm, one of whose partners had acted on its behalf.  Traditionally, courts applying the principle of indemnification would allow an unrepresented litigant to tax disbursements only and not counsel fees, because the litigant could not be indemnified for counsel fees it had not paid.  Macdonald J. held that the principle of indemnity remained a paramount consideration in costs matters generally, but was “outdated” in its application to a case of this nature.  The court should also use costs awards so as to encourage settlement, to deter frivolous actions and defences, and to discourage unnecessary steps in the litigation.  These purposes could be served by ordering costs in favour of a litigant who might not be entitled to them on the view that costs should be awarded purely for indemnification of the successful party.

24                               Similarly, in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, the British Columbia Court of Appeal stated at para. 28 that “the view that costs are awarded solely to indemnify the successful litigant for legal fees and disbursements incurred is now outdated”.  The court held that self-represented lay litigants should be allowed to tax legal fees, overruling its earlier decision in Kendall v. Hunt (No. 2) (1979), 16 B.C.L.R. 295.  This change in the common law was described by the court as an incremental one “when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant” (para. 44).

25                               As the Fellowes and Skidmore cases illustrate, modern costs rules accomplish various purposes in addition to the traditional objective of indemnification.  An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer; this policy has been codified in the rules of court of many provinces (see, e.g., Supreme Court of British Columbia Rules of Court, Rule 37(23) to 37(26); Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.10; Manitoba Queen’s Bench Rules, Man. Reg. 553/88, Rule 49.10).  Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.

26                               Indeed, the traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently.  Because costs awards transfer some of the winner’s litigation expenses to the loser rather than leaving each party’s expenses where they fall (as is done in jurisdictions without costs rules), they act as a disincentive to those who might be tempted to harass others with meritless claims.  And because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position.  These effects of the traditional rules can be connected to the court’s concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner.  In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs.

(3)   Public Interest Litigation and Access to Justice

27                               Another consideration relevant to the application of costs rules is access to justice.  This factor has increased in importance as litigation over matters of public interest has become more common, especially since the advent of the Charter .  In special cases where individual litigants of limited means seek to enforce their constitutional rights, courts often exercise their discretion on costs so as to avoid the harshness that might result from adherence to the traditional principles.  This helps to ensure that ordinary citizens have access to the justice system when they seek to resolve matters of consequence to the community as a whole. 

28                               Courts have referred to the importance of this objective on numerous occasions.  In Canadian Newspapers Co. v. Attorney-General of Canada (1986), 32 D.L.R. (4th) 292 (Ont. H.C.J.), Osler J. opined that “it is desirable that bona fide challenge is not to be discouraged by the necessity for the applicant to bear the entire burden” (pp. 305-6), while at the same time cautioning that “the Crown should not be treated as an unlimited source of funds with the result that marginal applications would be encouraged” (p. 306).  In Re Lavigne and Ontario Public Service Employees Union (No. 2) (1987), 60 O.R. (2d) 486 (H.C.J.), White J. held that “it is desirable that Charter  litigation not be beyond the reach of the citizen of ordinary means” (p. 526).  He awarded costs to the successful Charter  applicant in spite of the fact that his representation had been paid for by a third-party organization (so that he would not, on the traditional approach, have been entitled to any indemnity).  This case was overturned on the merits on appeal (Lavigne v. O.P.S.E.U. (1989), 67 O.R. (2d) 536 (C.A.), aff’d [1991] 2 S.C.R. 211), but neither the Ontario Court of Appeal nor this Court expressed any disapproval of White J.’s remarks on costs.  Referring to both Canadian Newspapers and Lavigne in Rogers v. Sudbury (Administrator of Ontario Works) (2001), 57 O.R. (3d) 467 (S.C.J.), Epstein J. concluded at para. 19 that “costs can be used as an instrument of policy and . . . making Charter  litigation accessible to ordinary citizens is recognized as a legitimate and important policy objective”.

29                               In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, the applicants, who were Jehovah’s Witnesses, unsuccessfully argued that their Charter  rights had been violated when a blood transfusion was administered to their baby daughter over their objections.  Instead of granting costs in the cause, the District Court judge directed the intervening Attorney General to pay the applicants’ costs.  Whealy Dist. Ct. J. cited Osler J.’s statement in Canadian Newspapers, supra, that bona fide challenges should not be deterred, and observed that the case before him was an unusual one involving a matter of province-wide importance (see [1989] O.J. No. 205 (QL) (Dist. Ct.)).  His costs order, although unconventional, was upheld on appeal by the Ontario Court of Appeal, and subsequently by this Court.  At the Court of Appeal, Tarnopolsky J.A. noted that this case, in which “the parents rose up against state power because of their religious beliefs”, was one of national, even international significance ((1992), 10 O.R. (3d) 321, at pp. 354-55).  La Forest J. stated at para. 122 of this Court’s judgment that the costs award against the Attorney General was “highly unusual” and something that should be permitted “only in very rare cases”, but that the case “raised special and peculiar problems”.  He allowed Whealy Dist. Ct. J.’s order to stand.

30                               The B. (R.) case illustrates that in highly exceptional cases involving matters of public importance the individual litigant who loses on the merits may not only be relieved of the harsh consequence of paying the other side’s costs, but may actually have its own costs ordered to be paid by a successful intervenor or party.  It should be noted that Whealy Dist. Ct. J. applied Rule 57.01(2), a provision of Ontario’s Rules of Civil Procedure that expressly authorized the court to award costs against a successful litigant and specified that the importance of the issues was a factor to be considered (see Rule 57.01(1)(d)).  Although these principles are not spelled out in the Supreme Court of British Columbia Rules of Court, in my view they are generally relevant in guiding the exercise of a court’s discretion as to costs.  They form part of the background against which a British Columbia court exercises its inherent equitable jurisdiction, confirmed by Rule 57(9), to depart from the usual rule that costs follow the event.

(4)   Interim Costs

31                               Concerns about access to justice and the desirability of mitigating severe inequality between litigants also feature prominently in the rare cases where interim costs are awarded.  An award of costs of this nature forestalls the danger that a meritorious legal argument will be prevented from going forward merely because a party lacks the financial resources to proceed.  That costs orders can be used in this way in a narrow class of exceptional cases was recognized early on by the English courts.  In Jones v. Coxeter (1742), 2 Atk. 400, 26 E.R. 642 (Ch.), the Lord Chancellor found that “the poverty of the person will not allow her to carry on the cause, unless the court will direct the defendant to pay something to the plaintiff in the mean time”.  Invoking the “intirely discretionary” equitable jurisdiction to order costs, he ordered costs to be paid to the plaintiff “to empower her to go on with the cause” (p. 642).

32                               The discretionary power to award interim costs in appropriate cases has also been recognized in Canada.  An extensive discussion of this power is found in Organ v. Barnett (1992), 11 O.R. (3d) 210 (Gen. Div.).  Macdonald J. reviewed the authorities, including Jones, supra, and concluded that “the court does have a general jurisdiction to award interim costs in a proceeding” (p. 215 (emphasis in original)).  She also found that that jurisdiction was “limited to very exceptional cases and ought to be narrowly applied, especially when the court is being asked to essentially pre‑determine an issue” (p. 215).

33                               As Macdonald J. recognized in Organ, supra, at p. 215, the power to order interim costs is perhaps most typically exercised in, but is not limited to, matrimonial or family cases.  In McDonald v. McDonald (1998), 163 D.L.R. (4th) 527 (Alta. C.A.), Russell J.A. observed that the wife in divorce proceedings could traditionally obtain “anticipatory costs” to enable her to present her position (para. 18).  This was because husbands usually controlled all the matrimonial property.  Since the wife had “no means to pay lawyers, her side of the litigation would not be advanced, and this position was patently unfair” (para. 20).  Interim costs will still be granted in family cases where one party is at a severe financial disadvantage that may prevent his or her case from being put forward. See, e.g., Woloschuk v. Von Amerongen, [1999] A.J. No. 463 (QL), 1999 ABQB 306, where the Alberta Court of Queen’s Bench ordered a lump sum payment of $10,000 to the mother in a custody action by way of interim costs, finding that the father’s financial position was “significantly better than that of the [mother] in terms of funding this protracted lawsuit” (para. 16); and Roberts v. Aasen, [1999] O.J. No. 1969 (QL) (S.C.J.), also a custody case, where the court held that the father was unlikely to succeed at trial and that the mother lacked the resources to pay her legal fees and disbursements, and ordered the father to pay $15,000 as interim costs.  Orkin, supra, at p. 2-23, observes that in the modern context “the raison d’tre [sic] of such awards is to assist the financially needy party pending the trial; they are made where the spouse is without resources and would otherwise be unable to obtain relief in court” (citations omitted).

34                               Interim costs are also potentially available in certain trust, bankruptcy and corporate cases, where they are awarded for essentially the same reason — to avoid unfairness by enabling impecunious litigants to pursue meritorious claims with which they would not otherwise be able to proceed.  Organ was a corporate case involving, among other causes of action, an action under the oppression remedy set out in s. 248 of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16.  The statute also provided in s. 249(4) that interim costs could be awarded in an oppression case.  Macdonald J. held that, in addition to this express statutory power, the court also had an inherent jurisdiction to award interim costs.  In the particular circumstances of this case, however, she held that the order should not be granted, because by their own admission the plaintiffs were not impecunious and would be able to proceed to trial without it.  In Amcan Industries Corp. v. Toronto-Dominion Bank, [1998] O.J. No. 3014 (QL) (Gen. Div.), a bankruptcy case, Macdonald J. acknowledged “the inherent unfairness that arises in choking a plaintiff’s action if access to funds is not permitted” (para. 39); in this case, again, interim costs were not awarded because impecuniosity was not established.  In Turner v. Telecommunication Workers Pension Plan (2001), 197 D.L.R. (4th) 533, 2001 BCCA 76, an action for breach of fiduciary duty in respect of a pension fund, the British Columbia Court of Appeal recognized that the court had the power to award interim costs, but held that the interests of justice did not require it to do so on the facts of the case.  Newbury J.A. noted that the financial position or impecuniosity of a party is not in itself reason enough to depart from the usual rules as to costs (para. 18). 

35                               Based on the foregoing overview of the case law, the following general observations can be made.  The power to order interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the court may determine at its discretion when and by whom costs are to be paid.  This broad discretion may be expressly referred to in a statute, as in s. 131(1) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs “are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.  Indeed, the power to order interim costs may be specifically stipulated, as in the Ontario Business Corporations Act or similar legislation in other jurisdictions.  Even absent explicit statutory authorization, however, the power to award interim costs is implicit in courts’ jurisdiction over costs as it is set out in statutes such as the Supreme Court of British Columbia Rules of Court, which provides that the court may make orders varying from the usual rule that costs follow the event. 

36                               There are several conditions that the case law identifies as relevant to the exercise of this power, all of which must be present for an interim costs order to be granted.  The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case.  The claimant must establish a prima facie case of sufficient merit to warrant pursuit.  And there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.  These requirements might be modified if the legislature were to set out the conditions on which interim costs are to be granted, or where courts develop criteria applicable to a particular situation where interim costs are authorized by statute (as is the case in relation to s. 249(4) of the Ontario Business Corporations Act; see Organ, supra, at p. 213).  But in the usual case, where the court exercises its equitable jurisdiction to make such costs orders as it concludes are in the interests of justice, the three criteria of impecuniosity, a meritorious case and special circumstances must be established on the evidence before the court.

37                               Although a litigant who requests interim costs must establish a case that is strong enough to get over the preliminary threshold of being worthy of pursuit, the order will not be refused merely because key issues remain live and contested between the parties.  If the court does decide to award interim costs in such circumstances, it will in a sense be predetermining triable issues, since it will have to decide that one side will receive its costs before it is known who will win on the merits (and since the winner is usually entitled to costs).  As a result, concerns may arise about fettering the discretion of the trial judge who will eventually be called upon to adjudicate the merits of the case.  This in itself should not, however, preclude the granting of interim costs if the relevant criteria are met.  As Macdonald J. noted in Organ, supra, the court’s discretion must be exercised with particular caution where it is being asked to predetermine an issue in this sense, but it does not follow that the court would be going beyond the limits of its discretion if it were to grant the order.  I therefore disagree with the conclusion of the New Brunswick Court of Queen’s Bench in New Brunswick (Minister of Health and Community Services) v. G. (J.) (1995), 131 D.L.R. (4th) 273, that costs cannot be ordered at the commencement of a proceeding in the absence of express statutory authority to award costs regardless of the outcome of the proceeding (p. 283) (this case was eventually overturned by this Court in [1999] 3 S.C.R. 46, but the interim costs issue was a secondary one that was not dealt with on appeal).  As I stated above, the power to order costs contrary to the cause is always implicit in the court’s discretionary jurisdiction as to costs, as is the power to order interim costs.

(5)   Interim Costs in Public Interest Litigation

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.

B.    Appellate Review of Discretionary Decisions

42                               The discretion of a trial court to decide whether or not to award costs has been described as unfettered and untrammelled, subject only to any applicable rules of court and to the need to act judicially on the facts of the case (Earl v. Wilhelm (2000), 199 Sask. R. 21, 2000 SKCA 68, at para. 7, citing Benson v. Benson (1994), 120 Sask. R. 17 (C.A.)).  Sigurdson J.’s decision in the present case was based on his judicial experience, his view of what justice required, and his assessment of the evidence; it is not to be interfered with lightly.

43                               As I observed in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulated from review (para. 118).  An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts.  As this Court held in Pelech v. Pelech, [1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.

44                               Two errors in particular vitiate the chambers judge’s decision and call for appellate intervention.  First, he overemphasized the importance of avoiding any order that involved prejudging the issues.  In a case of this kind, as I have indicated, this consideration is of less weight than in the ordinary case; in fact, the allocation of the costs burden may, in certain cases, be determined independently of the outcome on the merits.  Sigurdson J. erred when he concluded that his discretion did not extend so far as to empower him to make the order requested.  Secondly, Sigurdson J.’s finding that a contingent fee arrangement might be a viable alternative for funding the litigation does not appear to be supported by any evidence, and I agree with Newbury J.A. that the prospect of the Bands’ hiring counsel on a contingency basis seems unrealistic in the particular circumstances of this case.

C.    Application to the Facts of this Case

45                               It is unnecessary to send this case back to the chambers judge to apply the criteria set out here, because it is apparent from his reasons that, had he done so, he would have ordered interim costs in favour of the respondents.  Sigurdson J. found as a fact that the Bands were in extremely difficult financial circumstances and could not afford to pay for legal representation.  The only alternative which he suggested might be available for funding the litigation was a contingent fee arrangement, which, as I have stated, was not feasible.  He found the Bands’ claims of aboriginal title and rights to be prima facie plausible and supported by extensive documentary evidence; although the claim was not so clearly valid that there was no need for it to be tested through the trial process, it was certainly strong enough to warrant pursuit.  Finally, Sigurdson J. found the case to be one of great public importance, raising novel and significant issues resolution of which through the trial process was very much in the interests of justice.  He even went so far as to urge the executive branches of the federal and provincial governments to provide funding so that the respondents’ claims could be addressed.

46                               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.

47                               The conditions attached to the costs order by Newbury J.A. ensure that the parties will be encouraged to resolve the matter through negotiation, which remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown (see Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 186), and also that there will be no temptation for the Bands to drag out the process unnecessarily and to throw away costs paid by the appellant.  I would uphold her disposition of the case.

VII.    Disposition

48                               The appeal is dismissed with costs to the respondents.

The reasons of Iacobucci, Major and Bastarache JJ. were delivered by

49                               Major J. (dissenting) — At issue in this appeal is how trial courts should be guided in their award of interim costs.  When are these advance costs appropriate?  How much deference should appellate courts give to the trial judge’s discretion in the matter?

50                               Four Indian bands are suing the Crown in right of British Columbia, to establish aboriginal title over land they wish to log.  Because this litigation will be expensive, they seek interim costs — that is, advance costs awarded whether or not they are successful at trial.  By any standard, this is an extraordinary remedy.

51                               The chambers judge could not find a supporting precedent and in the exercise of his discretion he chose not to grant interim costs. The British Columbia Court of Appeal, and now my colleague LeBel J., reversed the chambers judge on what appears to be a new rule for interim costs.  With respect for the contrary view, I conclude that  Sigurdson J. interpreted the applicable principles correctly and can find no basis for reversing his discretion.  I would therefore allow the appeal.

52                               The appeal raises difficult questions.  In particular, how may impoverished parties sue to establish what is submitted to be constitutionally supported rights?  Constitutional issues, however, were not pursued in this appeal.  The respondents rely solely on the common law rules on costs.

53                               Traditionally, costs — usually party and party costs — are awarded after the ultimate trial or appellate decision and almost always to the successful party.  Party and party costs in all Canadian jurisdictions are only partial indemnification of the  litigants’ legal costs.  In certain cases, interim costs may be awarded to a spouse suing  for the division of property as a consequence of separation or divorce.  The ratio of the matrimonial cases is clear:  a spouse usually owns or is entitled to part of the matrimonial property; some success on the merits is practically assured.  Thus, the traditional purpose of costs — indemnification of the prevailing party — is preserved.

54                               But to award interim costs when liability remains undecided would be a dramatic extension of the precedent.  Furthermore, to do so in a case with serious constitutional considerations where the Crown is the defending party would be an unusual extension of highly exceptional private law precedent into an area fraught with other implications.

55                               The common law is said to evolve to adapt prevailing principles to modern circumstances.  But the common law of costs should develop through the discretion of trial judges.  This equitable trial-level discretion, developed over centuries, is essential to the primary traditional use of the discretionary costs power by courts:  to manage litigation and case loads.  It may be that there are public law questions where access to justice can be provided through the discretionary award of interim costs.  Even so, such cases must lie closer to the heart of the interim costs case law.  Such developments should be initiated by trial courts properly exercising their discretionary power, not the appellate reversal of that discretion.

I.    Background

56                               My colleague has fairly characterized the facts of this litigation.  However, some highlighting of those facts may be useful.

57                               In 1999, the four respondent Indian bands (the “Bands”) began logging Crown land.  Funds from that activity were to be used for housing and other desperately needed social services.  The British Columbia Minister of Forests served the Bands with stop-work orders and commenced proceedings to prevent further logging.  The Bands challenged the orders and claimed aboriginal title to the lands.

58                               At the British Columbia Supreme Court, Sigurdson J. ruled that the question of aboriginal title was sufficiently complex that a trial was necessary.  The Bands stated that they could not afford to litigate and even if they could, they would have  preferred to use such funds to provide social services.  The Bands claimed that they had been unable to find any governmental or pro bono sources of aid.  They therefore petitioned for interim costs — costs in advance of trial.  The Bands’ motions were originally grounded in the constitutional question of title. They now seek interim costs on the basis of the trial court’s inherent and statutory cost power.

59                               The chambers judge conducted a thorough examination of the case law on interim costs and, in the exercise of his discretion, concluded:

I find that the respondents’ argument that its trial costs be paid in advance must fail.  The issue of liability is very much in dispute and the trial costs are substantial.  To order the payment of trial costs would require prejudging the case on the merits which, of course, I cannot do.  Although I have a limited discretion in appropriate circumstances to award interim costs this case falls far outside that area.  I recognize that these respondents are in a difficult position.  However, counsel may be prepared to represent them on a contingency basis and, if successful, the respondents will undoubtedly receive significant indemnity for their costs.  I recommend, however, that the Federal and Provincial Crown consider providing some funding so that these disputes, which have some elements of test cases, if they cannot be settled, can be properly resolved at trial.

([2000] B.C.J. No. 1536 (QL), 2000 BCSC 1135, at para. 129)

II.    Analysis

A.    The Law of Costs

60                               The standard rule on party and party costs is that they are generally awarded to the successful litigant at the end of litigation.  These costs are a contribution to the successful party’s actual expense.  Full indemnification by way of solicitor-client costs is infrequently ordered in Canada.  Such costs require unusual and egregious conduct by the losing party.  On rare occasions the court may award solicitor-client costs where equity is met by doing so.

61                               My colleague points to what he describes as a modern trend in the law on costs — its use as an instrument to encourage litigation in the public interest.  With respect, I think this proposition mistakes public funding to pursue Charter  claims as an exercise in awarding costs.  It is a separate function.  Although the trial judge retains a discretion on the question of costs in such cases, they have always been awarded at the conclusion of the litigation.

B.    The Law of Interim Costs

62                               As a matter of public policy as reflected in federal and provincial rules of court, costs are usually awarded at the conclusion of trial as a contribution to the successful party’s legal expenses.  However, the common law on interim costs — costs in advance of trial — has been more confined and almost exclusively restricted to family law litigation to allow the impecunious spouse and children access to the court.  The reason for such restrictive use is apparent since awarding costs in advance could be seen as prejudging the merits.  While there is limited jurisdiction to award interim costs, it is logical that the party who must pay them and informed members of society might, in the absence of compelling reasons, have a reasonable apprehension of bias in favour of the recipient.  The objectivity of the court making such an order will almost automatically be questioned.

63                               The award of costs before trial is a more potent incentive to litigation than the possibility of costs after the trial. The awarding of interim costs in the circumstances of this appeal appears as a form of judicially imposed legal aid.  Interim costs are useful in family law, but should not be expanded to engage the court in essentially funding litigation for impecunious parties and ensuring their access to court.  As laudable as that objective may be, the remedy lies with the legislature and law societies, not the judiciary.

64                               LeBel J. concludes from his review of the case law on interim costs that they may be granted when (i) the party seeking the costs would be unable to pursue the litigation otherwise; (ii) there is a prima facie case of sufficient merit; and (iii) there are present “special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate” (para. 36).  He finds that such special circumstances may exist if the case is in the public interest and is a test case.  With respect, I come to a different result.

65                               I agree that the case must be exceptional in order to attract interim costs.  Of necessity, the proposition that extraordinary circumstances practically always exist where the public interest is invoked is too broad to meet the exceptional requirement. LeBel J. accepts that most public interest cases would satisfy this criterion (para. 38).  This is why he leaves to the discretion of the trial judge the decision as to whether the case is “special enough” to warrant an order.  The difficulty for the trial judge is that this does not provide any ascertainable standard or direction.  To say simply that the issues transcend the individual interests in the case and have not yet been resolved (para. 40) does not assist the trial judge in deciding what is “special enough”.  An  examination of past Charter  cases will demonstrate that dilemma. 

66                               Test cases are referred to by LeBel J. and involve situations where important precedents are sought.  In my view, the proposition that  “it [would be] contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means” (para. 40), without more, is not sufficient.  A trial judge can draw no direction from this proposal.

67                               But even if such special circumstances were to be considered, there is nothing to distinguish the present aboriginal land claims from any other.  On the contrary, the litigation here is likely to involve the application of principles enunciated by this Court in cases such as Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, and R. v. Van der Peet, [1996] 2 S.C.R. 507.  There is no evidence to establish that these land claims should be considered exceptional.  Nor is there anything to establish how the new criteria would apply in a different way between one impecunious aboriginal party and another.

68                               It is worth noting that the honour of the Crown is not at stake in this appeal and that there is no reason to distinguish the aboriginal claimants from any other impecunious persons claiming rights under the Constitution with regard to the availability of costs.  The new definition of extraordinary circumstances must therefore apply generally and its impact measured accordingly.  There is no doubt that the conclusions of LeBel J. will result in an increase of interim costs applications while offering little in the way of guidance to trial judges.  

69                               The interim costs case law suggests narrow guidelines.  Interim costs have been awarded in two circumstances: (i) in marital cases where some liability is presumed and the indemnificatory purpose of the costs power is fulfilled; and (ii) in corporate and trust cases where the court grants advanced costs to be paid by the corporation or trust for whose benefit the action is brought.  In those cases it is still necessary that the party seeking advanced costs show that they would otherwise be unable to proceed with litigation.

70                               The matrimonial cases involving the division of assets upon divorce comprise the oldest line of interim costs jurisprudence.  At common law, a wife could be awarded interim costs to help her maintain her divorce action.  This rule has been generally recognized in statute and Canadian case law.  See McDonald v. McDonald  (1998), 163 D.L.R. (4th) 527 (Alta. C.A.).  See also Randle v. Randle (1999), 254 A.R. 323, 1999 ABQB 954, where interim costs were granted in an action concerning the division of property between common law spouses.

71                               There are three legal characteristics that explain why the post-marital contest serves as the exception to the standard rule that costs “follow the event”.  These three characteristics are guidelines for the exercise of discretion in the award of interim costs.

72                               First, at common law, husbands usually had control and legal ownership of the marital purse and property, ensuring in most cases that wives did not have the financial resources to pursue litigation.  See McDonald, supra, at para. 20.  Therefore, the first required element of an interim cost award is that the party seeking the award is impoverished, and would not be able to pursue the litigation without such an award.  It is acknowledged in this appeal that each of the bands are without funds.

73                               Second, the marital relationship is perhaps unique in the mutual support owed between spouses.  Thus, generalizing beyond the marital context, there must be a special relationship between the parties such that the cost award would be particularly appropriate.  Where, as in this appeal, no right under s. 35  of the Constitution Act, 1982  is implicated and the matter involves the provincial Crown rather than the federal Crown, this special relationship cannot automatically be presumed.

74                               But third, and dispositive to this appeal, in the marital cases there is a presumption that the property that is the subject of the dispute is to be shared in some way.  See Randle, supra, at para. 22.  Generally, it is the distribution of assets and extent of support that are at issue in a divorce action, not whether such a division and such support are owed.  In a sense, some liability is assumed; all that is to be litigated is the extent of the liability.  LeBel J. blunts the bite of this element, reducing it to the modest requirement that “[t]he 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” (para. 40).  The traditional roots of the costs power require more than prima facie merit.  The costs power originally provided indemnification — the prevailing party won costs.  In a divorce action, however, it was assumed that the spouse, usually the wife, would be awarded something; the question was how much.

75                               The matrimonial cases can therefore be seen as exceptional not because they dispensed with the rule that the prevailing party won costs (and the related principle  that judges not predetermine the merits of the case), but because they dispensed with the need to wait for the end of trial to decide which party prevailed, for some liability was presumed.

76                               In this appeal, Sigurdson J.’s reluctance to “prejudg[e] the case on the merits” was appropriate.  Unlike the divorce cases, one may not presume that the Bands will establish even partial aboriginal title in the cases under appeal.

77                               In summary, in my opinion the ratio of the common law dictates the following three guidelines for the discretionary, extraordinary award of interim costs:

1.                The party seeking the interim costs cannot afford to fund the litigation, and has no other realistic manner of proceeding with the case.

2.                There is a special relationship between the parties such that an award of interim costs or support would be particularly appropriate.

3.                It is presumed that the party seeking interim costs will win some award from the other party.

78                               In my view, a court should be particularly careful in the exercise of its inherent powers on costs in cases involving the resolution of controversial public questions.  Not only was such precedent not required at common law, but by incorporating such an amorphous concept without clearly defining what constitutes “special circumstances”, the distinction between the traditional purpose of awarding costs and concerns over access to justice has been blurred.

79                               As noted earlier, certain corporate and trust actions form another line of interim costs cases with a different ratio.  In those cases, a litigant sues on behalf of a corporation or trust, and seeks interim costs.  Such cases are an exception to the general rule on costs because the court makes the costs order on behalf of the corporation or trust.  For example, where a shareholder sues directors on behalf of the corporation, it is presumed that the corporation, which in many ways is owned by the shareholders, although under the control of the directors, consents to the paying of the interim costs.  It is important to note that in the corporate context, interim costs are  specifically addressed by legislation.  See British Columbia Company Act, R.S.B.C. 1996, c. 62, s. 201; Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 249.

80                               Courts may also award interim costs in child custody cases.  See Roberts v. Aasen, [1999] O.J. No. 1969 (QL) (S.C.J.). Child custody litigation focuses on the best interests of the child for whose welfare both parents are responsible.  The purpose of the interim costs award is not merely to aid one side or the other in funding their litigation but, commensurate with the parents’ duty, to help the court find the result most beneficial to the child.

81                               The value in considering the derivative and related child custody cases is simply to concede that there are circumstances beyond the matrimonial cases in which interim costs may be appropriate.  The cases on appeal do not fit these exceptions.

C.    The Trial Judge’s Discretion

82                               I agree with LeBel J. that a trial judge’s discretionary decision on interim costs is owed great deference, and should be disturbed only if “the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts” (para. 43).  I also agree that a misapplication of the criteria relevant to an exercise of discretion constitutes an error of law.

83                               LeBel J. concludes that because Sigurdson J. failed to apply the newly enunciated criteria of impecuniosity, prima facie merit, and public importance, an error of law was (understandably) committed.  LeBel J. saw no need to return the case to the chambers judge, and held that Sigurdson J. would have exercised his discretion to grant the award had he had the benefit of what is described as new criteria.

84                               If this Court enlarges the scope for interim costs it should be seen as a new rule and not an adaptation of existing law.  On the basis of the law on costs at the time of this application the chambers judge properly exercised his discretion.

85                               Sigurdson J. was correct in his assessment that liability remains an open question in this appeal and that ordering interim costs would inappropriately require prejudging the case.  Accordingly, he was justified in concluding that “[a]lthough [he had] a limited discretion in appropriate circumstances to award interim costs this case falls far outside that area” (para. 129).

III.    Conclusion

86                               The common law is to advance by increments while generally staying true to the purposes behind its rules.  The new criteria endorsed by my colleague broaden the scope of interim costs to an undesirable extent and are not supported in the case law.  In my view, the common law rules on interim costs should not be advanced through an appellate court ignoring and overturning the trial judge’s correctly guided discretion.  This is more appropriately a question for the legislature.  See Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; and Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925.

87                               Since Sigurdson J. committed no error of law and did not commit a “palpable error” in his assessment of the facts, I would defer to his decision not to exercise his discretion to make the extraordinary grant of interim costs.

88                               I would allow the appeal, with each side to bear its own costs.

Appeal dismissed with costs, Iacobucci, Major and Bastarache JJ. dissenting.

Solicitors for the appellant:  Borden Ladner Gervais, Vancouver.

Solicitors for the respondents:  Mandell Pinder, Vancouver.

Solicitor for the intervener the Attorney General of Canada:  Department of Justice of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  Department of Justice, Sainte‑Foy.

Solicitor for the intervener the Attorney General of New Brunswick:  Attorney General of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General of British Columbia:  Ministry of Attorney General, Victoria.

Solicitor for the intervener the Attorney General of Alberta:  Alberta Justice, Edmonton.

Solicitors for the interveners the Songhees Indian Band et al.:  Cook, Roberts, Victoria.

Solicitors for the intervener Chief Roger William:  Woodward & Company, Victoria.