The British Columbia Supreme Court has ruled that the plaintiffs James Robinson and Mercy Thomas must pay two-thirds of the Nisga’a Nation’s costs of the proceedings to date in the Robinson case.

In October 2011 the Court ruled in favour of the Nisga‚Äôa Nation and the governments of Canada and British Columbia, and dismissed the plaintiffs‚Äô challenge to the constitutional validity of the Nisga‚Äôa Treaty. The usual rule in British Columbia is that the unsuccessful party must reimburse the successful party for a portion of its expenses in conducting the litigation. Accordingly, and in light of the nature of the challenge, the conduct of the litigation by the plaintiffs, and the expense of defending the Treaty, the Nisga‚Äôa Nation relied on the usual rule and sought its costs.  BC and Canada chose not to seek costs against the plaintiffs.

The plaintiffs then applied for an order that they not be required to pay the Nisga‚Äôa Nation‚Äôs costs on the basis that, as the Court had ruled they had public interest standing, they should not have to pay the costs of the successful parties.  They pointed to recent cases in which courts have held that some public interest litigants were not required to pay costs, especially as against governments.   

In considering the plaintiffs‚Äô argument, Madam Justice Smith agreed that the constitutionality of the Nisga‚Äôa Final Agreement was a matter of public importance, and she acknowledged, as did the Nisga‚Äôa Nation, that as between the Nisga‚Äôa Nation and the individual plaintiffs, the Nisga‚Äôa Nation had a greater capacity to bear the costs of the legal proceedings.  However the Court also noted the role played by the Calgary-based Canadian Constitution Foundation (‚ÄúCCF‚Äù) in financially supporting the plaintiffs‚Äô litigation.  The CCF had publicly portrayed the Robinson case as the CCF‚Äôs own litigation.

Madam Justice Smith said at paragraph 101 of her Reasons for Decision that even if the plaintiffs have not entered into any agreement that will indemnify them as to costs ‚Äú‚Ķ there is no evidence from the CCF that it has determined to withdraw from this litigation or that it will refuse to assist the plaintiffs in meeting a costs judgment‚Äù.  She said at paragraph 102 that she reaches ‚Äú‚Ķ no conclusion as to the likelihood that the plaintiffs will be left on their own to pay a costs award.‚Äù

Justice Smith also ruled that while there was no question that the Nisga‚Äôa Nation is a government, its resources are not similar to those of British Columbia or Canada.  

Perhaps most importantly, the Court agreed with the Nisga’a Nation that the manner in which the plaintiffs conducted the case weighed against their application to be relieved from the usual obligation to pay costs. Specifically she said:

[107] I have reviewed the record, and must conclude that, whatever the plaintiffs’ intentions, the effect of their conduct of the litigation was to create inordinate delay, expense and frustration for the defendants. It is apparent that a contributing factor to the disorderliness of the proceedings may have been some dissonance between the plaintiffs’ and the CCF’s objectives in the litigation.

After giving a number of examples of the plaintiffs’ conduct of the litigation, Madam Justice Smith wrote:

 [110] The plaintiffs bear the burden of showing that they deserve exceptional treatment with respect to costs because they have performed a public service in bringing forward a matter requiring judicial determination. Important policy considerations about access to justice underlie the principles developed by the courts regarding public interest costs. Those policies are served when responsible public interest litigants are afforded relief from the usual costs rules. However, those policy considerations are not served if public interest litigants who abuse the courts‚Äô processes are permitted to take shelter under the same umbrella.

 [111] In my opinion, the plaintiffs in this case have not always conducted the litigation in the way that a responsible litigant would, and the record shows examples of conduct that can fairly be described as abusive or vexatious. [Emphasis added]

Noting these and other factors, Madam Justice Smith concluded that the Nisga’a Nation was entitled to two-thirds of its costs in its successful defence of the Nisga’a Treaty.

The appeal in the case will be argued in the British Columbia Court of Appeal in late September, 2012.

A link to the Court’s entire reasons for decision is set out below.:

 http://www.courts.gov.bc.ca/jdb-txt/SC/12/11/2012BCSC1152.htm