Private Parties Not Liable For Public Interest Costs

As detailed elsewhere on this blog ( here and here), courts are becoming increasingly resistant to attempts by third parties, specifically environmental non-governmental organizations ("ENGOs", ) to insert themselves in permitting processes and judicial reviews where they are not directly involved and add no relevant expertise. The recent British Columbia Supreme Court decision in Gagne v. Sharp is a further example of this trend. This case included the additional wrinkle of an attempt by the ENGOs involved to have their court costs covered by the private company on the basis that they were acting in the "public interest".

Background

In Gagne, several individuals and ENGOs applied for standing before the Environmental Appeal Board (the "EAB") to appeal a permit amendment granted to Rio Tinto Alcan Inc. The EAB denied the petitioners standing because they were not persons aggrieved within the meaning of s. 100(1) of the Environmental Management Act, S.B.C. 2003, c. 53 (the "EMA"). The petitioners sought a judicial review of that decision, which resulted in the issue being sent back to the EAB for reconsideration. The EAB again denied the petitioners standing. That decision was itself judicially reviewed. The judicial review was dismissed and the parties were ordered to bear their own costs of that application.

The issue of costs on the first judicial review, however, remained outstanding. The petitioners sought special costs as public interest litigants. Interestingly, unlike most public interest costs application, the petitioners sought costs only against Rio Tinto, a private party, rather than against the Attorney General of British Columbia or the EAB, the other parties involved. Traditionally, public interest costs are only awarded against public bodies, not against private parties protecting private interests.

The petitioners argued that they deserved special costs because of the public interest nature of the litigation. The petitioners submitted that: (i) the judicial review involved issues of broad public importance that had not previously been resolved (i.e. the standard of proof to establish standing before the EAB, the right of ENGOs to obtain standing, and the interpretation of s. 100(1) of the EMA); (ii) their lack of personal, proprietary, or pecuniary interest in the outcome of the litigation; and (iii) Rio Tinto's far superior ability to bear the costs of the proceeding. They also argued that an award of special costs would...