William v. British Columbia et al., 2006 BCCA 2

• Judge: Southin, Hall and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 03, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 2;(2006), 221 B.C.A.C. 48 (CA)

William v. B.C. (2006), 221 B.C.A.C. 48 (CA);

    364 W.A.C. 48

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JA.038

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 (respondent/plaintiff) v. The Attorney General of Canada (appellant/defendant) and Her Majesty the Queen in right of the Province of British Columbia, and the Regional Manager of the Cariboo Forest Region (defendants)

(CA032211)

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 (respondent/plaintiff) v. Her Majesty the Queen in right of the Province of British Columbia, and the Regional Manager of the Cariboo Forest Region (appellants/defendants) and The Attorney General of Canada (defendant)

(CA032213; 2006 BCCA 2)

Indexed As: William v. British Columbia et al.

British Columbia Court of Appeal

Southin, Hall and Thackray, JJ.A.

January 3, 2006.

Summary:

The plaintiff Indian Band brought actions against the Province of British Columbia and the Attorney General of Canada claiming aboriginal title to certain lands. In November 2001, Vickers, J., ordered the Crown defendants to equally share in the payment of the plaintiff's future costs. The order called for the payment of all reasonable disbursements and interim legal fees to be paid as increased costs at 50% of special costs (see [2001] B.C.T.C. 1641). The Crown defendants appealed from the order. The plaintiff cross-appealed, seeking a costs order at 100% of special costs.

The British Columbia Court of Appeal dismissed the appeal (see 170 B.C.A.C. 257; 279 W.A.C. 257) and the cross-appeal (see 194 B.C.A.C. 67; 317 W.A.C. 67). The defendants appealed.

The Supreme Court of Canada remanded the matter to the British Columbia Supreme Court be dealt with in accordance with the reasons in British Columbia v. Okanagan Indian Band (S.C.C.).

The British Columbia Supreme Court, per Vickers, J., sustained the original order (see [2004] B.C.T.C. 610). The plaintiff applied to have the percentage of special costs used for the calculation of increased costs raised.

The British Columbia Supreme Court, per Vickers, J., ordered that the Crown defendants pay the plaintiff special costs subject to a 20% holdback, as costs in advance (see [2004] B.C.T.C. 963). The Crown defendants appealed from that order.

The British Columbia Court of Appeal allowed the appeal. Hall and Thackray, JJ.A., held that the original November 2001 order of Vickers, J., should be reinstated effective as of the date of the court's judgment. Southin, J.A., dissenting in part, would have varied the order appealed from to provide that from that date forward the defendants would pay the plaintiff's solicitors, as interim costs, the amounts specified in Scale 5, the units to be the maximum permitted, plus all reasonable disbursements.

Practice - Topic 7884

Costs - Funding before judgment - Setting of appropriate advance costs - The plaintiff Indian Band brought actions against the province of British Columbia and the Attorney General of Canada, claiming aboriginal title to certain lands - In November 2001, Vickers, J., ordered the Crown defendants to equally share in the payment of the plaintiff's future costs - The order directed the payment of all reasonable disbursements and interim legal fees as increased costs at 50% of special costs - The plaintiff subsequently applied to have the percentage of special costs used for the calculation of increased costs raised - Vickers, J., ordered that the defendants pay the plaintiff special costs subject to a 20% holdback, as costs in advance - The defendants appealed - The British Columbia Court of Appeal allowed the appeal - The majority held that the November 2001 order of Vickers, J., should be reinstated as of the date of the court's judgment.

Cases Noticed:

Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 313, refd to. [para. 3].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; [2004] 2 W.W.R. 252; 2003 SCC 71, affing. (2001), 161 B.C.A.C. 13; 263 W.A.C. 13; 208 D.L.R.(4th) 301; 95 B.C.L.R.(3d) 273 (C.A.), consd. [para. 4].

Xeni Gwet'in First Nations v. British Columbia - see William v. British Columbia et al.

William v. British Columbia et al. (2002), 170 B.C.A.C. 257; 279 W.A.C. 257; 3 B.C.L.R.(4th) 231; 2002 BCCA 434 (C.A.), consd. [paras. 5, 100].

Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R.(2d) 309; 48 C.P.C.(2d) 74 (S.C.), affd. on appeal as to costs only (1992), 16 B.C.A.C. 62; 28 W.A.C. 62; 73 B.C.L.R.(2d) 212; 8 C.P.C.(3d) 20 (C.A.), refd to. [para. 51].

British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R.(2d) 156 (C.A.), consd. [para. 67].

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, varying (1993), 30 B.C.A.C. 1; 49 W.A.C. 1; 104 D.L.R.(4th) 470 (C.A.), affing. (1991), 79 D.L.R.(4th) 185 (B.C.S.C.), consd. [para. 68].

Roberts & Muir v. Price and Canwest Telephone Co. (1986), 7 B.C.L.R.(2d) 211 (S.C.), affd. (1987), 19 B.C.L.R.(2d) 375 (C.A.), consd. [para. 79].

R. v. Ho (G.D.) (2003), 190 B.C.A.C. 187; 311 W.A.C. 187; 21 B.C.L.R.(4th) 83; 2003 BCCA 663, consd. [para. 81].

R. v. Cai - see R. v. Chan (M.K.) et al.

R. v. Chan (M.K.) et al. (2002), 317 A.R. 240; 284 W.A.C. 240; 170 C.C.C.(3d) 1; 2002 ABCA 299, consd. [para. 83].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (2002), 163 B.C.A.C. 164; 267 W.A.C. 164; 98 B.C.L.R.(3d) 16; 2002 BCCA 59, refd to. [para. 98].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2001), 161 B.C.A.C. 13; 263 W.A.C. 13; 208 D.L.R.(4th) 301; 95 B.C.L.R.(3d) 273 (C.A.), consd. [para. 101].

Little Sisters Book and Art Emporium v. Minister of National Revenue (2005), 208 B.C.A.C. 246; 344 W.A.C. 246; 38 B.C.L.R.(4th) 288 (C.A.), refd to. [para. 123].

Authors and Works Noticed:

Brown, R.C. Lundin, Klatsassan, and other Reminiscences of Missionary Life in British Columbia (1873), generally [para. 1].

Canada, Report of the Royal Commission on Indian Affairs (1916), generally [para. 37]; vol. 4, p. 911 [para. 38].

Lambe, W. Kaye, The Journals and Letters of Alexander Mackenzie (1970), generally [para. 39].

Williams, David R., The Man for a New Country (1977), pp. 109 to 116 [para. 1].

Counsel:

J.L. Ott and C.L. Hook, for the appellant, Attorney General of Canada;

J.E. Gouge, Q.C., and J.I. Thayer, for the appellants, Her Majesty the Queen in right of British Columbia and Regional Manager, Cariboo Forest Region;

P.S. Rosenberg and D.M. Rosenberg, for the respondent.

This appeal was heard on October 24 and 25, 2005, at Vancouver, British Columbia, before Southin, Hall and Thackray, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on January 3, 2006, including the following opinions:

Southin, J.A., dissenting in part - see paragraphs 1 to 99;

Hall, J.A. - see paragraphs 100 to 117;

Thackray, J.A. - see paragraphs 118 to 127.