



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



LAssociation des parents de lécole Rose-des-vents v.
  British Columbia (Minister of Education),









2014 BCCA 40




Date: 20140131

Docket: CA040429

Between:

LAssociation des parents de lécole
Rose-des-vents and Joseph Pagé in his name and in the name of all citizens of
Canada residing west of Main Street in the City of Vancouver whose first
language learned and still understood is French, or who have received their
primary school instruction in Canada in French, or of who any child has
received or is receiving primary or secondary school instruction in French in
Canada

Respondents

(Respondents)

And

The Ministry of Education of British
Columbia and
The Attorney General of British Columbia

Appellants

(Respondents)

And

Conseil Scolaire Francophone de la
Columbia-Britannique

Respondent

(Respondent)




Before:



The Honourable Madam Justice Saunders
The Honourable Madam Justice Bennett

The Honourable Mr. Justice Hinkson




Supplementary reasons
to:
LAssociation des parents de lécole Rose-des-vents v. Conseil scolaire
francophone de la Colombie-Britannique
, 2013 BCCA 407,
Docket CA40429










Counsel for the Appellant:



Leonard T. Doust,
  Q.C., W. Wilman, K. Wolfe





Counsel for the Respondent,
Conseil scolaire francophone:



R. Grant, Q.C., M. Power,
B. Elwood





Counsel for the Respondent,
LAssociation and Joseph Pagé



N.M. Rouleau





Place and Date of Hearing:



Vancouver, British
  Columbia

July 18 and 19, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

September
  20, 2013





Written Submissions received:



December 6, 12, 20,
  30, 2013





Date of Supplementary Judgment:



January 31, 2014









Supplementary Reasons of the Court




Summary:

Supplementary reasons on
costs following the allowance of the appeal. The petitioners were granted a
declaration in the Supreme Court that their minority language rights under
s. 23 of the Charter had been infringed and were granted special costs on
the basis of their status as successful public interest litigants. The Province
successfully appealed the declaration and the petition was remitted to the
Supreme Court. The Province seeks an order setting aside the special costs
order as well as an order granting its costs of the appeal.

Held: order that the award of
special costs in the Supreme Court proceedings be set aside and costs be
remitted to the judge hearing the petition and an order that the parties bear
their own costs of the appeal. The bases for the judges award of special costs
to the petitioners have been obviated by the disposition of the appeal. The
issues on appeal do not merit costs to the unsuccessful party.

Supplementary Reasons of the Court:

[1]

The Province seeks an order from this Court setting aside the awards of
special costs to the L'Association des parents de l'école Rose-des-vents and Mr. Pagé,
in his name and as a representative of parents of children enrolled at l'école
élémentaire Rose-des-vents, (collectively, "the Parents") and the Conseil
Scolaire Francophone de la Columbie-Britannique (the CSF) by the Supreme
Court judge [the judge] and an order that it be granted its costs of the
appeal.

Background

[2]

The CSF is the Francophone education authority established under the
School
Act
, R.S.B.C. 1996, c. 412. It offers homogenous French language
primary and secondary instruction throughout British Columbia.

[3]

La Fédération des Parents is a non-profit organization representing 28
parent associations from the Conseil's schools and 13 parent associations from
French language pre-schools.

[4]

The Parents filed a petition naming as respondents the Ministry of
Education, the Province of British Columbia (collectively "the
Province"), and the CSF. The petition sought a declaration that the
petitioners' minority language education rights under s. 23 of the
Canadian
Charter of Rights and Freedoms
, Part 1 of the
Constitution Act, 1982
,
being Schedule B to the
Canada Act 1982
(UK), 1982, c 11 [
Charter
]
had been breached.

[5]

A month later, the CSF and others brought an action against the
Province, alleging province-wide breaches of s. 23 of the
Charter
and raising systemic challenges to the funding system of the Ministry of
Education. The Province sought an order consolidating the petition with the
action, but this was denied. The CSF supported the declaratory relief sought by
the Parents in their petition.

[6]

On October 31, 2012, the judge declared that parents living west of Main
Street in the City of Vancouver who had the right to have their children
receive primary school instruction in French were not being provided the
minority language educational facilities guaranteed to them by s. 23 of
the
Charter
.

[7]

On June 24, 2013, in reasons indexed at 2013 BCSC 1111, the judge
ordered that the Parents would have special costs from the Province in relation
to all proceedings to that date, and that the CSF would have special costs
payable by the Province in relation to all proceedings from November 4, 2011 to
June 24, 2013.

[8]

In reasons indexed at 2013 BCCA 407, this Court allowed an appeal by the
Province and set aside the order of the judge, striking certain paragraphs from
the Provinces amended response to civil claim. This Court also set aside the
judges declaration that parents living west of Main Street in the City of
Vancouver who have the right to have their children receive primary school
instruction in French are not being provided the minority language educational
facilities guaranteed to them by s. 23 of the
Charter
, and remitted
the Petition to the Supreme Court.

Discussion

[9]

The Province contends that as it succeeded on its appeal, the award of
special costs by the judge should be set aside and the matter of the costs in
the trial court remitted to the rehearing judge for determination following the
rehearing, citing as examples of such a result the decisions of this Court in
Durant
v. Leonard
, 2001 BCCA 449 at paras. 16-17 and
BMF Trading, a
Partnership v. Abraxis Holdings Ltd.
, 2004 BCCA 12 at paras. 34.


a)       Special Costs

[10]

The judge declined to make an award of special costs based upon the
conduct of the Province. Similarly, he declined such an award of costs on the
basis that such an award was justified as a
Charter
remedy, as he had
not made a determination of a breach of a
Charter
right, nor had he determined
which of the respondents, if either of them, ought to be required to remedy the
deficiency he found to exist.

[11]

The basis for his award of special costs was that the case involved a
matter of public interest where, in exceptional cases, a departure from the ordinary
costs rules is appropriate as explained in
British Columbia (Minister of
Forests) v. Okanagan Indian Band
, 2003 SCC 71, [2003] 3 S.C.R. 371 [
Okanagan
],
and
Barclay (Guardian ad litem of) v. British Columbia (Attorney General)
,
2006 BCCA 434.

[12]

Considering the factors articulated in
Victoria (City) v. Adams
,
2003 BCCA 563 at para. 188 [
Adams
], the judge concluded that the
Parents and the CSF were successful public interest litigants who qualified for
special costs. The judge also concluded that an award for special costs to the
Parents and CSF would not be unjust in the circumstances and would be in the
public interest.

[13]

Both the Parents and the CSF contend that these findings by the judge
are unchallenged and support the awards of special costs as per
Adams
. Their
contentions miss the obvious point that the bases for the judges awards of
special costs to the Parents and the CSF have been obviated by our disposition
of the appeal; the petitioners are no longer the successful litigants.

[14]

The Parents also contend that the maintenance of the special costs order
by the judge would have the same effect as if they had received an order for
advance costs at the beginning of the proceedings. We are unable to accept that
contention. The Parents neither applied for nor received such an order, and
such an order, while accepted as possible by the Supreme Court of Canada in
Okanagan
at para. 27, engages a different analysis than that set out in
Adams
.

[15]

We would therefore set aside the judges order of special costs to both
the Parents and the CSF.

b)       Ordinary Costs

[16]

The judges award of costs to the Parents was made on the basis that
they had brought themselves within the exception to the rule that costs should
be assessed and payable at the end of the proceeding. He concluded at para. 50
of his reasons that the rationale for the ordinary costs rule did not apply
because he was in a position, at that interim period, to make a costs order
that appropriately reflected the success of the Parents on the declaratory order
sought:

Given the significant prospect
that the petitioners will seek no other remedy than the declaratory relief they
have obtained, it is, in my view, appropriate in this case to now address the
question of costs. The petitioners have brought themselves within the exception
to the rule that costs should be assessed and payable at the conclusion of
proceedings. I come to that conclusion, in part, because the rationale for the
usual order, as described in [
Freshway Specialty Foods Inc. v. Map Produce LLC
,
2005 BCSC 594] is a reluctance on the part of the judge hearing interim
applications for costs to tie the hands of the trial judge where it may be
necessary to assess the conduct of the proceedings as a whole before making the
appropriate costs order. In my view, I am now in a position to make a costs
order that appropriately reflects the proceedings to date and that does not
impose an inappropriate limit on any judge hearing further applications in
relation to this matter.

[17]

The judge awarded costs to the CSF on the basis that the CSF joined with
the Province in relation to the declaratory order sought. His reasoning on this
issue is found at paras. 58 and 6061 of his reasons:

[58]      The proceedings to date in this litigation may be
divided into two phases. In the proceedings from the date of the filing of the
petition to November 4, 2011, the petitioners sought not only a declaration
that the facilities afforded to them did not meet the standard to which
s. 23 rights holders were entitled but, further, orders requiring remedial
measures, and therefore raising the question of responsibility for any
inadequacies that may be found to exist. Thereafter, they sought only that
declaratory relief which they felt would be sufficient to stimulate
negotiations between the parties with a view toward addressing any inadequacies
that might be proven.



[60]      The petitioners have now succeeded in relation to
the preliminary issue described in the judgment of November 4, 2011. In my view
it is appropriate, in the circumstances, to award them costs in relation to
proceedings before and after that date. While there remains, for negotiation or
resolution, the question whether one or the other of the respondents must take
remedial action and, if so, what action must be taken, the fact remains that
the petitioners have, at their expense, obtained relief which they expect to be
of some value to them in asserting their constitutional rights. If these
proceedings come to an end now, it would, in my view, be inappropriate to deny
the petitioners the costs of the proceedings prior to the November 4, 2011
order that the petition should proceed in stages. As a result, they are
entitled to costs throughout as against the respondent Minister and the
respondent Attorney General.

[61]      The CSF joined issue
with the Province in relation to the matter for determination as a preliminary
question pursuant to my order of November 4, 2011.  As the CSF joined with the
petitioners and assisted them in advancing their claim, the CSF can in that
respect be regarded as a successful litigant.

[18]

The Parents contend that much of the work done to date can be used if
the first instance proceeding resumes and that to the extent that there has
been any waste of resources thus far, most of such waste is attributable to the
manner in which the province has conducted its defence.

[19]

Even if much of the work done to date can be used if the first instance
proceeding resumes, or that if there has been a waste of resources thus far
that can be blamed on the Province, I am unable to agree that this assists the
Parents or the CSF on the issue of costs at this stage of the proceedings.

[20]

As we have already stated above, the bases for the judges award of
special costs to the parents and the CSF have been obviated by our disposition
of the appeal. Similarly, an award of interim costs is no longer a justified departure
from the usual costs order.  We therefore remit the issue of costs of the
Parents petition to the judge who hears the petition.


c)       Costs
of the Appeal

[21]

What then of the costs of the appeal? The Province quite properly
conceded that such a result was subject to the Courts discretion to order
otherwise where there is a good reason particular to the case and relevant to
the
lis
between the parties that makes it equitable to do so.

[22]

The Province contends that as the successful party on the appeal, it
should have its costs pursuant to s. 23 of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77, or at a minimum, not have to bear the full costs of
vindicating its rights, nor should it have to bear the costs of the
unsuccessful parties, citing
Ngo v. South Pacific Development Ltd.
, 2007
BCCA 119, where that result obtained.

[23]

The usual rules pertaining to costs in private litigation are modified
to some extent in litigation which engages broader public interest. Such is
apparent from the reasons of Newbury and Saunders JJ.A. for the majority in
Carter
v. Canada (Attorney General)
, 2013 BCCA 435, where this Court ordered that
the parties should bear their own costs of both the appeal and the proceedings in
the Supreme Court of British Columbia, despite what they considered to be
binding authority against the respondents.

[24]

In
William v. British Columbia
,

2013 BCCA 1, the
unsuccessful party was awarded the ordinary costs of the appeal in a case
involving a claim of Aboriginal title to certain lands. Public interest in that
appeal was aroused because the trial judges decision created particular
problems and might well have been followed in the British Columbia Supreme
Court absent the appeal. At paras. 41 the Court wrote:

In making this order [granting the unsuccessful
litigant costs], we recognize that this case is highly unusual, and that orders
that an unsuccessful appellant be granted costs will be extraordinarily rare.
Such an order will not be made simply because it is perceived to be in the
public interest that jurisprudence develop in a particular area of law. It
must, at the very least, be shown that the development of jurisprudence in the
area is of a critical public importance. We are satisfied that in the unique circumstances
of this case, the Court is justified in taking the extraordinary step of
awarding costs to an unsuccessful litigant.

[25]

In
Guide Outfitters Association v. British Columbia (Information and
Privacy Commissioner),
2005 BCCA 368, Hall J.A., for the Court, observed at
para. 8:

Several judgments of the courts in the province have
recognized that questions of whether the public interest is served by the
litigation may guide the court in exercising its discretion regarding costs. In
MacDonald
, supra, at para. 13, Mr. Justice Bauman referred to
factors the Ontario Law Reform Commission considered may lead a judge to rule
the parties should bear their own costs:

(a) The proceeding involves issues the importance of which
extends beyond the immediate interests of the parties involved.

(b) The person has no personal, proprietary or pecuniary
interest in the outcome of the proceeding, or, if he or she has an interest, it
clearly does not justify the proceeding economically.

(c) The issues have not been previously determined by a
court in a proceeding against the same defendant.

(d) The defendant has a clearly superior capacity to bear
the costs of the proceeding.

(e) The plaintiff has not engaged in vexatious, frivolous or
abusive conduct.

Although I consider these factors as useful ones to guide the
Court in the exercise of its discretion as to costs,
the overarching
question is still whether the normal rule is unsuitable on the facts of this
case.
...

[Emphasis added.]

[26]

Even more recently, the Supreme Court of Canada awarded the Conseil
Scolaire Francophone de la Columbie-Britannique its costs at all levels of
court despite its loss at each level of court in
Conseil Scolaire
Francophone de la Columbie-Britannique v. British Columbia,
2013 SCC 42.
That case involved an interlocutory appeal of a novel evidentiary issue. Mr. Justice
Wagner, for the majority, wrote at para. 64 that:

Although costs are usually
awarded to the successful party, there are exceptions. In this case, the
appellants have raised a novel issue in the context of a broader
Charter
challenge,
and for that reason I would award them their costs.

[27]

We do not consider that the issues on the appeal reach the level of the
issues discussed by Mr. Justice Wagner in the passage set out above in
other litigation involving the Conseil Scolaire Francophone de la
Columbie-Britannique and the Province. However, because the appeal did raise
some issues of public interest, we consider that the normal rule as to costs is
unsuitable and order that the parties bear their own costs of the appeal as
ordered in
Carter.


The
Honourable Madam Justice Saunders

The
Honourable Madam Justice Bennett

The
Honourable Mr. Justice Hinkson


