In Ahousaht Indian Band and Nation v. Canada, the British Columbia Court of Appeal considered whether an award of special costs to the respondent First Nations groups was justified in a case concerning the adjudication of their Aboriginal rights over commercial fisheries. Reasoning that the case did not raise sufficiently exceptional matters of public importance and that the litigation was, at least indirectly, in the respondents' economic interest to pursue, the Court held that special costs were not justified.
The underlying case concerned the aboriginal rights of the respondent First Nations groups to commercially fish for any species of fish within certain territories. At trial, the respondents won a declaratory judgment as to the existence of those rights. They were awarded costs, and also special costs because of the public significance of the constitutional litigation they had undertaken. Canada appealed the award of special costs.
The framework for the awarding of special costs in Victoria (City) v. Adams, 2009 BCCA 563, was the focus of the Court's analysis. Noting that it was not disputed by the parties that at least two of the four Adams factors (appellant's superior capacity to bear the costs, and the absence of abusive, vexatious or frivolous conduct) weighed in favour of special costs, the Court proceeded to analyze the remaining two factors: whether "The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved," and whether "The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically."
In regards to the "public importance" factor, the Court held that an award of special costs requires exceptional circumstances beyond merely being "difficult cases" that are of "general interest". The Court reasoned that such cases can already give rise to elevated costs under the British Columbia Rules of Court s.2(3), and that an award of special costs must therefore require something more. In this case, while the proper resolution of aboriginal fishing claims was "significant," it was "questionable" whether the litigation established principles that may well be applicable to other aboriginal rights cases because the case did not "break novel ground in establishing legal principles". The Court reached this conclusion despite noting that the trial judge developed certain points of aboriginal law, including modifying the test for the existence of an aboriginal right from R. v. Van der Peet, [1996] 2 SCR 507, and reconciling into a single analysis the test for infringement of an aboriginal right from R. v. Sparrow, [1990] 1 SCR 107, and R. v. Gladstone, [1996] 2 SCR 723. Contrasting this case to an earlier case on Aboriginal fishing rights, Lax Kw'alaams Indian Band v. Canada (Attorney General), 2009 BCCA 593, the Court argued that the different outcome in this case was largely fact-driven, and that it did not rise to the exceptional level of public importance required for an award of special costs.
In regards to the "pecuniary interest" factor, the Court held that any pecuniary interest, whether direct or indirect, weighed against the awarding of special costs. Reasoning that the "pecuniary interest" factor derives from a concern that, in the absence of funding, an issue of public interest will not be considered judicially, the Court held that the respondents in this case had an indirect but "significant" interest in seeking a right to fish commercially. In the Court's view, it was relevant, but not determinitive, that the matter had gone to trial in the absence of pro bono representation. The Court also noted that both the claim for aboriginal rights and the evidence concerning infringement concerned economic interests.
In concluding that special costs were not justified in this case, overturning the decision of the trial judge, the Court noted that there was "some force" to the notion "that an award of special costs in this case would open the door to such an award in all aboriginal rights cases."
October 31, 2011
Link to Decision
Mary Phan & Kai Sheffield
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