SCC Clarifies Advance Costs Test For Public Interest Litigation

• Published date: 30 March 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Fasken
• Author: Mr Brenden Hunter and Amy Barrington

Introduction

In Anderson v Alberta, ¹ the Supreme Court of Canada considered an order for advance costs in relation to Beaver Lake Cree Nation's underlying claim against the Crown for improperly allowing its traditional lands to be taken up for industrial and resource development. With the trial scheduled expected to span 120 days, and estimated to cost $5 million, the First Nation applied for advance costs to fund the litigation, which it asserted it could not afford as its resources must be applied to address other priorities.

After clarifying the applicable legal test in considering applications for advance costs in public interest litigation, the Supreme Court remitted the matter back to the Alberta Court of Queen's Bench to be reconsidered with the benefit of its decision and a more complete evidentiary record.

This case should be of interest to all legal practitioners involving public interest litigation with First Nations and other Indigenous groups.

Background

In 2008, former Chief Germaine Anderson brought at action against Alberta and Canada on her own behalf and as a representative of all Beaver Lake Cree Nation beneficiaries of Treaty 6 and of Beaver Lake Cree Nation (collectively, Beaver Lake). The claim alleges the Crown improperly allowed Beaver Lake's traditional lands to be taken up for industrial and resource development, compromising its ability to pursue its traditional way of life. ²

At first instance, ³ the case management judge set out the test for awarding advance costs in public interest litigation: an applicant must demonstrate impecuniosity, present a prima facie meritorious case and raise issues of public importance. ⁴

Regarding impecuniosity, the judge found that, despite having more than $3 million and additional ongoing revenue that could be allocated to pay for the litigation, Beaver Lake was impecunious given its impoverished state and other funding priorities. The judge therefore ordered that each of Beaver Lake, Canada and Alberta contribute $300,000 annually to fund Beaver Lake's legal expenses until the litigation concluded or was otherwise resolved. ⁵ Canada and Alberta appealed that decision.

The Alberta Court of Appeal allowed the appeals, ⁶ holding that the case management judge erred in concluding that Beaver Lake was impecunious when it had the resources (at least $6 to $7 million) it needed to fund the litigation but decided to instead allocate the funds to other priorities. ⁷

Supreme Court of Canada Decision

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