British Columbia (Minister of Forests) v. Okanagan Indian Band et al., (2003) 313 N.R. 84 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 12, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 313 N.R. 84 (SCC);2003 SCC 71

B.C. v. Okanagan Indian Band (2003), 313 N.R. 84 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. DE.026

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 (intervenors)

(28988)

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 (intervenors)

(28981; 2003 SCC 71; 2003 CSC 71)

Indexed As: British Columbia (Minister of Forests) v. Okanagan Indian Band et al.

Supreme Court of Canada

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

December 12, 2003.

Summary:

Several Indian bands logged on Crown lands near Harper Lake and Browns Creek, claiming aboriginal title with a right to log. The Ministry of Forests issued stop work orders under the Forest Practices Code of British Columbia Act, which the bands declined to observe. The Crown sought to enforce the stop work orders to prevent the bands from logging. The bands filed a notice of constitutional question challenging the constitutionality of ss. 96 and 123 of the Forest Practices Code on the basis that they failed to accommodate their aboriginal title to the subject lands and their consequent right to log. The Crown applied under s. 147 of the Code for an interlocutory order to enforce the stop work orders. Alternatively, the Crown sought an interlocutory equitable injunction restraining the bands from carry­ing out logging activities. The Crown also sought an order preserving the timber al­ready cut.

The British Columbia Supreme Court, in a judgment reported at 25 B.C.T.C. 161, granted the Crown a statutory injunction under s. 147 of the Code. Alternatively, the court granted an interlocutory equitable injunction. The court also ordered preserva­tion of the cut timber pending the hearing. The bands appealed, with leave. Meanwhile, the Supreme Court, in a judgment reported at 25 B.C.T.C. 177, granted an order respect­ing removal of the logs by the Indians pend­ing the disposition of the matter.

The British Columbia Court of Appeal, in a judgment reported at (2000), 138 B.C.A.C. 146; 226 W.A.C. 146, dismissed the appeals. The Crown applied under rule 52(11)(d) to have the matter remitted to the trial list for determination. The bands argued that the matter ought to be determined summarily as a petition and that the application should be dismissed since they were without funds to defend the proceeding through to trial. Alter­natively, they argued that it should go to the trial list only on the condition that the Crown pay their costs of trial. They relied on the court's inherent jurisdiction, the court's power to impose terms or conditions as part of the exercise of its discretion, their right to access to justice to defend their constitutional rights, s. 35 of the Constitution Act (Crown had a fiduciary obligation not to bring this application under rule 52(11)(d) or they should fund the litigation), and s. 15 of the Charter (equality rights).

The British Columbia Supreme Court, in a judgment reported at [2000] B.C.T.C. 548, allowed the Crown's application and referred the matters to the trial list to be determined. The court concluded that the question of whether the impugned sections were uncon­stitutional and the appropriate remedy appeared to be fact driven. Evidence of the right, the infringement and whether that infringement was justified was necessary to determine that question. The court rejected the bands' request that their trial costs be paid in advance. The issue of liability was very much in dispute and trial costs would be substantial. To order the payment of trial costs would require prejudging the case on the merits. Although the court had a limited discretion in appropriate circumstances to award interim costs, this case fell far outside that area. The bands appealed.

The British Columbia Court of Appeal, in a judgment reported (2001), 161 B.C.A.C. 13; 263 W.A.C. 13, allowed the appeal on the costs issue (awarding the band interim costs), but dismissed the appeal from the ruling that the proceedings be remitted to the trial list. The Crown appealed the awarding of interim costs. The issues on appeal were the court's jurisdiction to grant costs on an interim basis and the principles governing its exercise, and appellate review of a trial court's discretion as to costs.

The Supreme Court of Canada, Major, Iacobucci and Bastarache, JJ., dissenting, dismissed the appeal. The bands met the criteria for an award of interim costs.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - The provincial Crown petitioned to prevent Indian bands from logging Crown lands - The bands, claiming aboriginal title with logging rights, challenged the constitu­tionality of certain provincial legislation - The bands sought a summary determina­tion of the matter - The trial judge, af­firmed on appeal, ordered that the matter proceed to trial - The bands' precarious financial state precluded them from pro­ceeding to trial - The trial judge declined their request for interim costs - The Court of Appeal held, however, that the "test case" nature of these proceedings, and their public import­ance, made this case excep­tional and special - The court ordered the Crown to pay the bands' interim costs, being an advance award of costs whether they were successful or not at trial - The Crown appealed - The Supreme Court of Canada dismissed the appeal - The trial judge had inherent jurisdiction to order interim costs where there existed impecuniosity, a meri­torious case and special circumstances - The bands were impecunious, had a meri­torious case and special circumstances existed where it was a test case in the public interest - See paragraphs 19 to 48.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - The Supreme Court of Canada stated that "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. ... There are several conditions ... 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. ... the order will not be ref­used merely because key issues remain live and contested between the parties. ... 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." - See paragraphs 35 to 37.

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - The Supreme Court of Canada discussed the awarding of interim costs in public interest litigation, as opposed to ordinary civil disputes - The court "identified 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." - See paragraphs 38 to 40.

Practice - Topic 8301

Costs - Appeals - Appeals from order for costs - Variation of order of trial court - The plaintiffs, financially strapped Indian bands, were denied interim costs in their action against the Crown, because the trial judge was concerned with prejudging the matter and opined that the litigation could proceed on a contingency fee basis - On appeal, interim costs were awarded - The Crown questioned the appeal court's juris­diction to interfere with the trial judge's exercise of discretion on costs - The Supreme Court of Canada affirmed the appeal court's awarding of interim costs - Although a trial court had unfettered and untrammelled discretion over costs, such discretionary decisions were not insulated from judicial review where the trial court misdirected itself as to the applicable law or made a palpable error in assessing the facts - In this case, the trial judge erred in overemphasizing the importance of avoid­ing a prejudgment of the issues and in finding that a contin­gency fee arrangement was a viable alter­native - See paragraphs 42 to 44.

Cases Noticed:

Hamilton-Wentworth (Regional Municipal­ity) v. Hamilton-Wentworth Save the Valley Committee Inc. et al. (1985), 11 O.A.C. 8; 51 O.R.(2d) 23 (Div. Ct.), refd to. [para. 20].

Ryan v. McGregor (1925), 58 O.L.R. 213 (C.A.), refd to. [para. 21].

Fellowes, McNeil v. Kansa General Inter­national Insurance Co. et al. (1997), 49 O.T.C. 339; 37 O.R.(3d) 464 (Gen. Div.), refd to. [para. 23].

Skidmore et al. v. Blackmore (1995), 55 B.C.A.C. 191; 90 W.A.C. 191; 2 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 24].

Kendall v. Hunt (No. 2) (1979), 16 B.C.L.R. 295 (C.A.), refd to. [para. 24].

Canadian Newspapers Co. v. Canada (Attorney General) (1986), 32 D.L.R.(4th) 292 (Ont. H.C.), refd to. [para. 28].

Lavigne v. Ontario Public Service Employees Union et al. (1987), 60 O.R.(2d) 486 (H.C.), revd. (1989), 31 O.A.C. 40; 67 O.R.(2d) 536 (C.A.), affd. [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 28].

Rogers v. Administrator of Ontario Works for Greater Sudbury (City) et al., [2001] O.T.C. 630; 57 O.R.(3d) 467 (Sup. Ct.), refd to. [para. 28].

Sheena B., Re, [1989] O.J. No. 205 (Dist. Ct.), affd. (1992), 58 O.A.C. 93; 10 O.R.(3d) 321 (C.A.), affd. [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 29].

R.B. v. Children's Aid Society of Metro­politan Toronto - see Sheena B., Re.

Jones v. Coxeter (1742), 2 Atk. 400; 26 E.R. 642 (Ch.), refd to. [para. 31].

Organ v. Barnett (1992), 11 O.R.(3d) 210 (Gen. Div.), refd to. [para. 32].

McDonald v. McDonald (1998), 223 A.R. 48; 183 W.A.C. 48; 163 D.L.R.(4th) 527 (C.A.), refd to. [paras. 33, 70].

Woloschuk v. Von Amerongen, [1999] A.R. Uned. 283 (Q.B.), refd to. [para. 33].

Roberts v. Aasen, [1999] O.T.C. Uned. 471 (Sup. Ct.), refd to. [paras. 33, 80].

Amcan Industries Corp. v. Toronto-Domin­ion Bank et al. (1998), 71 O.T.C. 131 (Gen. Div.), refd to. [para. 34].

Turner v. Andrews et al. (2001), 147 B.C.A.C. 305; 241 W.A.C. 305; 197 D.L.R.(4th) 533 (C.A.), refd to. [para. 34].

Turner v. Telecommunication Workers Pension Plan - see Turner v. Andrews et al.

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V. (1995), 171 N.B.R.(2d) 185; 437 A.P.R. 185; 131 D.L.R.(4th) 273 (Q.B.), dis­agreed with [para. 37].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 37].

Earl v. Wilhelm et al. (2000), 199 Sask.R. 21; 232 W.A.C. 21 (C.A.), refd to. [para. 42].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 42].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 43].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81, refd to. [para. 43].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [paras. 47, 67].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 67].

Randle v. Randle (1999), 254 A.R. 323 (Q.B.), refd to. [para. 70].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 86].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 86].

Child and Family Services of Winnipeg Northwest v. D.F.G., [1997] 3 S.C.R. 925; 219 N.R. 241; 121 Man.R.(2d) 241; 158 W.A.C. 241, refd to. [para. 86].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 1(12), rule 52(11), rule 57(9) [para. 6].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987) (2002 loose-leaf update), pp. 1-1 [para. 19]; 2-23 [para. 33]; 2-24.2 [para. 22].

Counsel:

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 intervenor, Attorney General of Canada;

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

René Morin, Gilles Laporte and Brigitte Bussières, for the intervenor, Attorney General of Quebec;

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

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

Written submissions only by Margaret Unsworth, for the intervenor, Attorney General of Alberta;

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

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

Solicitors of Record:

Borden Ladner Gervais, Vancouver, B.C., for the appellant;

Mandell Pinder, Vancouver, B.C., for the respondents;

Department of Justice of Canada, Vancouver, B.C., for the intervenor, Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, N.B., for the intervenor, Attorney General of New Brunswick;

Ministry of Attorney General, Victoria, B.C., for the intervenor, Attorney Gen­eral of British Columbia;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

Cook, Roberts, Victoria, B.C., for the intervenors, Songhees Indian Band et al.;

Woodward & Company, Victoria, B.C., for the intervenor, Chief Roger William.

This appeal was heard on June 9, 2003, before McLachlin, C.J.C., Gonthier, Iaco­bucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.

On December 12, 2003, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

LeBel, J. (McLachlin, C.J.C., Gonthier, Binnie, Arbour and Deschamps, JJ., concurring) - see paragraphs 1 to 48;

Major, J. (Iacobucci and Bastarache, JJ., concurring), dissenting - see paragraphs 49 to 88.