Federal Court Grants Order For Advanced Costs In Métis Rights Matter

Daniels v. Canada, 2011 FC 230

http://www.canlii.org/en/ca/fct/doc/2011/2011fc230/2011fc230.html

The Congress of Aboriginal Peoples ("CAP") and individual Plaintiff representatives brought a motion before the Federal Court for an advanced order for costs on the eve of trial. In the main action, commenced in 1999, the Plaintiffs sought a declaration that the Métis and non-status Indians were "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867. The action had been previously funded under the Test Case Funding Program ("TCFP") of Indian and Northern Affairs Canada since 2005. The TCFP was created to fund important Indian-related test cases. The ceiling for this funding was started at $1 million and was then raised to $1.5 million. CAP had applied to extend the funding beyond $1.5 million to cover the trial costs. While there was precedent for this application, the Government of Canada had not responded. Applying the Supreme Court decision in British Columbia (Minister of Forest) v. Okanagan Indian Band ("Okanagan"), [2003] 3 S.C.R. 371 and R v. Caron ("Caron"), 2011 SCC 5, the Court granted the Order for Costs in the amount of $345,000 plus $30,000 for contingencies.

Summarizing the test from Caron, the Court held that the Plaintiffs must establish the following: 1) the parties seeking interim funding genuinely cannot afford to pay for the litigation and no other realistic option exists for bringing the issues to trial, 2) the claim is prima facie meritorious and it would be contrary to the interests of justice for the case to be forfeited because the litigant lacks financial means, and 3) the issues are novel and of public importance.

Even if these criteria were met, there is no "right" to a Funding Order. The Court indicated that Orders for advanced costs are highly unusual and are to be approached with caution. The discretion enjoyed by the Court affords it an opportunity to consider all relevant factors that arise on the facts (Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38 as per Bastarache and LeBel J.J. for the majority).

On the issue of "public importance," the Defendants challenged whether the matter was properly justiciable and whether there were other options available to bring the matter to trial. The Defendants referred to the judgment of the Manitoba Court of Appeal in Manitoba Métis Federation Inc. v Canada ("MMF"), 2010 MBCA 71 which will soon be heard...