



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



William v. British Columbia,









2013 BCCA 1




Date: 20130103

Nos.:
CA035617; CA035618; CA035620

Docket: CA035617

Between:

Roger
William, on his own behalf and on behalf of all
other members of the Xeni Gwetin First Nations Government
and on behalf of all other members of the Tsilhqotin Nation

Respondent

(Plaintiff)

And

Her
Majesty the Queen in Right of the Province of British Columbia
and the Regional Manager of the Cariboo Forest Region

Appellants

(Defendants)

And

The Attorney
General of Canada

Respondent

(Defendant)

And

B.C. Wildlife
Federation and B.C. Seafood Alliance,
Treaty 8 First Nations, Chief Wilson and Chief Jules,
First Nations Summit and Temexw Treaty Association

Intervenors

---------------------------------------------------------------------------------

Docket: CA035618

Between:

Roger William, on
his own behalf and on behalf of all
other members of the Xeni Gwetin First Nations Government
and on behalf of all other members of the Tsilhqotin Nation

Respondent

(Plaintiff)

And

The Attorney
General of Canada

Appellant

(Defendant)

And

Her Majesty the
Queen in Right of the Province of British Columbia
and the Regional Manager of the Cariboo Forest Region

Respondents

(Defendants)

And

B.C. Wildlife Federation
and B.C. Seafood Alliance,
Chief Wilson and Chief Jules, First Nations Summit
and Temexw Treaty Association

Intervenors

---------------------------------------------------------------------------------

Docket: CA035620

Between:

Roger William, on
his own behalf and on behalf of all
other members of the Xeni Gwetin First Nations Government
and on behalf of all other members of the Tsilhqotin Nation

Appellant

(Plaintiff)

And

Her Majesty the
Queen in Right of the Province of British Columbia
and the Regional Manager of the Cariboo Forest Region and
The Attorney General of Canada

Respondents

(Defendants)

And

B.C. Wildlife
Federation and B.C. Seafood Alliance,
Chief Wilson and Chief Jules, First Nations Summit
and Temexw Treaty Association

Intervenors




Before:



The Honourable Madam Justice Levine





The Honourable Mr. Justice Tysoe





The Honourable Mr. Justice Groberman






Supplementary Reasons
to: Court of Appeal for British Columbia,
June 27, 2012 (
William v. British Columbia
, 2012 BCCA 285,
Docket Nos. CA035617, CA035618 and CA035620)




Counsel for the Plaintiffs:



P.S. Rosenberg

J.C. Nelson





Counsel for the British Columbia Defendants:



P.G. Foy, Q.C.





Counsel for the Attorney General of Canada:



B.A. McLaughlin





Written Submissions Received:



October 25, November
  22, November 23 and December 6, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 3, 2013









Supplementary Reasons of the Court








Supplementary Reasons for
Judgment of the Court:

[1]

On June 27, 2012, we released the judgment in these appeals.
Subsequently, the parties sought to make submissions as to the appropriate
costs order. We agreed to accept such submissions in writing, and have now
received and reviewed the parties representations.

Synopsis of the Appeals

[2]

The appeals concerned claims of the Xeni Gwetin First Nations
Government and the Tsilhqotin Nation to Aboriginal title and other Aboriginal
rights in areas described as Tachelached (or the Brittany Triangle) and
the Trapline Territory in the Chilcotin region of the west central interior
of British Columbia.

[3]

The trial judge found that Aboriginal title had been established over part
of the claim area, but held that he could not make a declaration of title
because the pleadings sought only a declaration to the whole of the area, and
not to any portion less than the whole. He dismissed the title claim without
prejudice to the Tsilhqotin Nations right to commence a new action seeking a
declaration of title. The judge also declared that the Tsilhqotin Nation has certain
rights to trap and hunt birds and animals in the claimed area and to trade
skins and pelts taken from it. Finally, he declared that forestry activities in
the claimed area had unjustifiably infringed the Tsilhqotin Nations Aboriginal
rights.

[4]

Three appeals were taken. The plaintiff appealed from the dismissal of
the claim to title. Both British Columbia and Canada opposed his appeal. British
Columbia appealed from parts of the declarations of hunting, trapping and
trading rights and from the declaration that forestry activities had infringed
Aboriginal rights. The plaintiff opposed that appeal, and Canada played only a
very minor role in it. Canada appealed from the declaration that the dismissal
of the title claim was without prejudice to a renewed title claim by the
Tsilhqotin. That appeal was opposed by both the plaintiff and by British
Columbia.

[5]

We dismissed all three appeals. In respect of the plaintiffs appeal, we
upheld the judges order, dismissing the claim to Aboriginal title, although
our reasons differed substantially from his. We held that the pleadings would
have permitted a declaration of Aboriginal title over a part of the claimed
area. We also found, however, that the judge had applied an incorrect test in
determining whether title was established, leading him to accept a
territorial claim rather than requiring that a claim to definite tracts of
land be established. We held that if he had applied the correct test, he would
have dismissed the title claim on the merits.

[6]

In respect of British Columbias appeal, we found no reversible error in
the trial judges reasoning, and upheld his order.

[7]

We dismissed Canadas appeal, ruling that, given the nature of the
action that was pleaded, cause of action estoppel would not bar any future
site-specific title claim that might be brought by the Tsilhqotin.

The Ordinary Costs Order

[8]

Section 23 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77, sets
out the ordinary rule as to costs. It provides that a party who succeeds on an
appeal is entitled to costs. As the appeals were all dismissed, the ordinary
rule would make each appellant responsible for paying the party and party costs
of those who opposed their appeals.

[9]

Both the plaintiff and British Columbia contend that they were partially
successful on their appeals. While it might be said that certain of their
arguments were accepted, it cannot, in our view, be said that their appeals
were in any sense successful.

[10]

Accordingly, we are of the view that, absent extraordinary
considerations, the appropriate orders for costs would be as follows:

a)

In the
plaintiffs appeal, the plaintiff would be responsible for British Columbias
and Canadas costs;

b)

In British
Columbias appeal, British Columbia would be responsible for the plaintiffs
costs; and

c)

In
Canadas appeal, Canada would be responsible for the plaintiffs and British
Columbias costs.

[11]

It is common ground that certain modifications should be made to this
ordinary order. First, British Columbia and Canada have paid certain
substantial disbursements in respect of the appeals, and do not seek
reimbursement for those disbursements. Thus, they should not be included in any
costs order.

[12]

Second, British Columbia does not seek costs in respect of Canadas
appeal, and so the order should not award it costs in that appeal.

[13]

Beyond these uncontroversial modifications to the usual order, however,
the parties are not in agreement. British Columbia and Canada both say that
given the global result of the appeals, it would be most efficient and fair to simply
order that each party bear his or its own costs in the appeals. The plaintiff,
on the other hand, contends that he should be awarded special costs on all
three appeals, either as a result of bad conduct that he alleges against
British Columbia, or because of the public interest aspects of the appeals.

The Conduct of the Parties

[14]

Rule 61 of the
Court of Appeal Rules
allows the Court to award
special costs. An award of special costs is unusual. Typically, such costs are
awarded where a party has engaged in reprehensible conduct in the litigation,
or, more rarely, in the circumstances giving rise to the litigation (see
Hamilton
v. Open Window Bakery Ltd.
, 2004

SCC 9, [2004] 1 S.C.R. 303;
Garcia v. Crestbrook Forest Industries Ltd.
(1994), 119 D.L.R. (4th)
740, 9 B.C.L.R. (3d) 242 (C.A.)). The plaintiff alleges that British Columbia
engaged in such conduct in respect of forestry practices within the claimed
area. British Columbia disputes that characterization.

[15]

We do not consider it necessary to analyse the extensive record to
determine whether the plaintiffs characterization of events is a just one. If
reprehensible conduct gave rise to the litigation, the argument with respect to
its effect on costs ought to have been made before the trial judge. Even if the
appellants contention that the original litigation was precipitated by inappropriate
conduct on the part of British Columbia were true, it would have little bearing
on the issue of the costs of these appeals. The appeals were based on
legitimate legal differences between the parties arising out of the decision at
trial. There was nothing reprehensible in the events giving rise to the
appeals, nor in the conduct of them.

Special Costs and Public Interest Litigation

[16]

This Court has stated that, in exceptional circumstances, special costs
may be awarded to a successful party in public interest litigation even in the
absence of reprehensible conduct on the part of the unsuccessful party. In
Victoria
(City) v. Adams
, 2009 BCCA 563, 313 D.L.R. (4th) 29, this Court discussed
the considerations and circumstances in which such an award may be made:

[188]    ... the following may be identified as the most
relevant factors to determining whether special costs should be awarded to a
successful public interest litigant:

(a)        The
case involves matters of public importance that transcend the immediate
interests of the named parties, and which have not been previously resolved;

(b)        The
successful party has no personal, proprietary or pecuniary interest in the
outcome of the litigation that would justify the proceeding economically;

(c)        As
between the parties, the unsuccessful party has a superior capacity to bear the
costs of the proceeding; and

(d)        The
successful party has not conducted the litigation in an abusive, vexatious or
frivolous manner.

[189]    The basic question underlying these factors is
whether the public interest in resolving a legal issue of broad importance,
which would otherwise not be resolved, justifies the exceptional measure of
awarding special costs to a successful litigant.

[190]    While similar, or even identical, factors may apply
to various forms of departure from the normal rule, that is not to suggest that
all forms of departure are of equal magnitude. The justification necessary to
grant an exceptional cost award is, in part, related to the magnitude of
derogation from the usual cost structure of the award being considered. An
award of interim costs requires one party to incur liability for the others
costs before the case has been heard and irrespective of the outcome. These are
truly exceptional orders. Likewise, as this Court observed in
Barclay
[
Barclay
(Guardian ad litem of) v. British Columbia (Attorney General),
2006 BCCA
434]

at para. 37, an award of costs to an unsuccessful party represents
a more significant departure than an order that each side bear their own costs.
In terms of this spectrum, an award of special costs to a successful public
interest litigant involves only the level of costs. As a result, such an award,
albeit financially very significant, would be less of a departure from the
normal rule than orders awarding interim costs or costs to an unsuccessful
party.

[191]    Nor should we be taken
to suggest that a successful public interest litigant will automatically be
entitled to special costs. On the contrary, just as the discretion to award
interim costs or costs to an unsuccessful public interest litigant is limited
to cases involving matters of public importance that are highly exceptional,
special costs (even for successful public interest litigants) must be the
exception rather than the norm: see
Finney
[
Finney v. Barreau du Qu
é
bec
,
2004 SCC 36, [2004] 2 S.C.R. 17]

at para. 48. Each case must be
considered on its merits, and access to justice considerations must be balanced
against other important factors: see
Little Sisters Book and Art Emporium v.
Canada (Commissioner of Customs and Revenue)
, 2007 SCC 2, [2007] 1 S.C.R.
38 at para. 35.

[17]

In our view, the plaintiff should not be awarded special costs on any of
the appeals.

[18]

At least three factors distinguish the plaintiffs appeal from
Adams
.
First, the plaintiff, unlike the respondents in
Adams
, was unsuccessful
on the appeal. The Court in
Adams
clearly considered that factor to be
important, remarking that an award of costs to an unsuccessful litigant is even
more exceptional than an award of special costs to a successful one.

[19]

Second, the First Nations in this case cannot be said to have no
personal, proprietary or pecuniary interest in the outcome of the litigation.  A
claim to Aboriginal title is a proprietary claim. This claim was brought in the
expectation or hope that a genuine proprietary or pecuniary benefit would be
gained in the event of success.

[20]

Finally, this litigation has not been taken on by counsel on a
pro
bono
basis, as was the claim in
Adams
. One purpose served by
awarding special costs in cases of exceptional public interest is to encourage
counsel to take on meritorious causes on a
pro bono
basis. This purpose
is absent in the current litigation.

[21]

While we recognize that the plaintiffs appeal raised matters of high
public importance, we are not persuaded that it fits within the exceptional
class of cases where special costs should be awarded.

[22]

In the appeals by British Columbia and by Canada, the plaintiff has been
successful, but the other considerations we have mentioned do apply and militate
against the awarding of special costs. As well, it is our view that the public
interest aspects of those appeals were not such as would justify an award of
special costs.

[23]

In our view, the issues that arose in Canadas appeal were of limited significance
other than to the parties. The appeal did not raise significant issues of
principle, nor was it particularly difficult to defend.

[24]

While greater public importance attached to British Columbias appeal, and
while the appeal was more complex, it remained an appeal that was concerned
with applying fairly well-settled law to specific facts. As this Court
indicated in
Ahousaht Indian Band and Nation v. Canada (Attorney General)
,
2011 BCCA 425, 312 B.C.A.C. 122, an award of special costs on public interest
grounds will ordinarily depend on the case being one that breaks novel ground
or establishes new legal principles. The arguments in British Columbias
appeal, like the arguments in
Ahousaht
, did not meet that threshold.

Increased Costs

[25]

This Court has the ability to award increased costs under Rule 60
(1):

60 (1)   If, because an offer to
settle is made or for any other reason, the court or a justice determines that
there would be an unjust result if costs were assessed under Scales 1 to 3 of
section 3 (1) of Appendix B, the court or justice, at any time before the assessment
has been completed, may order that costs be assessed as increased costs.

[26]

In its written submissions, British Columbia stated that [t]he legal
and factual issues in the Plaintiffs appeal and British Columbias appeal
warrant increased costs, but ... not special costs. It is clear from the
context of the argument, however, that British Columbia was referring to costs
on a higher scale than Scale 1, the scale for matters of ordinary difficulty,
rather than increased costs as those costs are defined in s. 60(2) of
the Rules:

(2)        If costs are ordered
to be assessed as increased costs, the registrar must fix the fees that would
have been allowed if an order for special costs had been made under Rule 61
(1), and must then allow 1/2 of those fees, or a higher or lower proportion as
the court or justice may order.

[27]

The plaintiff notes that the costs order at trial was, effectively, an
order for increased costs. In his reply argument, he says that, in the event
the court does not award him special costs, it should award increased costs.

[28]

The history of the costs award at trial is complicated. On November 27, 2001,
the Supreme Court of British Columbia made an advance costs order requiring
Canada and British Columbia to pay the plaintiffs legal fees at the rate of
50% of special costs as well as 100% of his reasonable disbursements (
William
v. Riverside Forest Products Ltd.
, 2001 BCSC 1641, 95 B.C.L.R. (3d) 371).
This Court dismissed an appeal from that order (
Xeni Gwetin First Nations
v. British Columbia
, 2002 BCCA 434, 3 B.C.L.R. (4th) 231) and later also
dismissed a cross-appeal seeking advance special costs (
Xeni Gwetin First
Nations v. British Columbia
, 2004 BCCA 106, 237 D.L.R. (4th) 754). The
Supreme Court of Canada granted leave to appeal from this Courts 2002 decision
([2002] S.C.C.A. No. 295), but remanded the case back to the trial court to be
dealt with in accordance with its judgment in
British Columbia (Minister of
Forests) v. Okanagan Indian Band
, 2003 SCC 71, [2003] 3 S.C.R. 371. The
trial judge, on reconsidering the matter, affirmed his original order (
William
v. British Columbia
, 2004 BCSC 610, 240 D.L.R. (4th) 547).

[29]

Approximately two months later, the trial judge granted an order
increasing the advance costs award to an award for special costs in advance (
William
v. British Columbia
, 2004 BCSC 963). This Court overturned that order on
appeal (
Tsilhqotin Nation v. British Columbia
, 2006 BCCA 2, [2006] 4
W.W.R. 48). Madam Justice Southin, dissenting, would have replaced the trial
judges order with an order for advance costs on Scale 5 under the former
Rules
of Court
, B.C. Reg. 221/90. The other two judges considered that it was
appropriate to reinstate the trial judges earlier order for advance increased
costs. Mr. Justice Thackray, however, indicated that he considered the order
proposed by Southin J.A. to have considerable merit:

[125]    Were the case at bar
about to be opened at trial, or indeed if it was in its early stages, I would
agree with the result adopted by Madam Justice Southin. However, this trial has
now been underway for three years and defence costs have been funded through
generous court orders and agreements. To at this stage cut this back to party
and party costs would be dramatic and might affect the balance that Mr. Justice
LeBel spoke of in
Okanagan Indian Band
[
British Columbia (Minister of
Forests) v. Okanagan Indian Band
, 2003 SCC 71, [2003] 3 S.C.R. 371]
.

[30]

In the circumstances, it cannot be said that this Court unreservedly
endorsed the order for advance increased costs, and the fact that such an order
was in place for the trial should not be treated as establishing that increased
costs are appropriate for the appeal.

[31]

In our view, the plaintiff has not established that it would be an
unjust result if costs were assessed under Scales 1 to 3 in these appeals. In
saying this, we note that the plaintiff has already had the benefit of
increased costs for the entirety of the trial (and, indeed, of special costs
for a portion of the trial) and that those costs are not in jeopardy in the
appeal process. It is also noteworthy that the plaintiff has not had to fund
the major disbursements necessary for the appeal, and is not being asked to do
so. In the circumstances, we are of the view that a just result can be reached
without granting an order for increased costs. Accordingly, the threshold for
an increased costs award has not been made out.

Award of Costs to an Unsuccessful Litigant

[32]

We are satisfied, in the circumstances, that it is appropriate that the plaintiff
have his costs in both British Columbias and Canadas appeals.

[33]

The situation with respect to the plaintiffs appeal is more
complicated. While, for the reasons given, the plaintiffs application for
special or increased costs is rejected, we do consider that the appeal was of
exceptional public importance, and that consideration must be given to awarding
the plaintiff costs even though he was unsuccessful.

[34]

While it is very rare for a court to award costs to a losing party, the
jurisdiction to do so does exist:
Okanagan Indian Band
at para. 30,
citing
B.(R.) v. Childrens Aid Society of Metropolitan Toronto
, [1995]
1 S.C.R. 315.

[35]

In the case before us, the public interest in having the issue of
Aboriginal title determined by the Court was high. The need for jurisprudential
development in this area was adverted to in the Courts judgment on appeal:

[159]    In accordance with the common law
tradition, the courts have proceeded to develop the law relating to Aboriginal
title incrementally on a case-by-case basis. It is a particularly daunting task
because the issues involved are unique. In developing rules for the proof of
rights and title, the courts have had to develop, as well, an entire
philosophical and jurisprudential framework for the recognition of traditional
rights that came into being before the reception of the common law.

[160]    Even, however, taking into account
the difficulties inherent in this area of the law, jurisprudential development
has been slow. While several full-scale claims for title to large areas of land
have been advanced to the level of the Supreme Court of Canada, none has
succeeded, and considerable areas of uncertainty subsist.

[161]    To some degree, the apparent
reluctance of the courts to go beyond what is needed to resolve the specific
cases is understandable. I have already noted that that is the traditional
manner in which the common law has developed. Further, the stakes in Aboriginal
title claims have been high  cases such as
Calder

[
Calder v. Attorney-General of British Columbia
, [1973]
S.C.R. 313],
Delgamuukw
[
Delgamuukw
v. British Columbia,
[1997] 3 S.C.R. 1010
],
and
Marshall; Bernard
[
R. v. Marshall; R. v Bernard
,
2005 SCC 43, [2005] 2 S.C.R. 220]

involved vast areas of land. The
resolution of such claims can be critical to the future of both the First
Nation involved and the broader Canadian population.

[162]    The technical difficulty of this
area of law has exacerbated the problem, and has led to considerable
frustration. The efforts of the Nisgaa in
Calder
, the Gitksan and
Wetsuweten in
Delgamuukw
, and the Tsilhqotin in this case (to this
point) all consumed enormous amounts of resources, only to have the cases end inconclusively
due to problems with the way they were commenced or pleaded.

[163]    The courts have frequently
emphasized the need for resolution of Aboriginal rights and title issues
through negotiated agreements where possible. The trial judge in this case went
beyond the ordinary role of the court in attempting to set the stage for a
negotiated resolution. Negotiated resolution of issues, however, is not
facilitated by uncertainty in the law.

[164]    It is apparent that all sides have
attempted to resolve the issues in this case, but without success. That is not
surprising, given that the theories of Aboriginal title espoused by the
plaintiff, on the one hand, and the defendants, on the other, are as far apart
as they are. The trial judges decision to provide a non-binding opinion as to
the title area did not, in the end, assist the parties in finding common
ground.

[165]

The present case has been an extraordinary one, both in terms of the
resources mustered by the parties to present their cases and in terms of the
court resources that have been devoted to it. It is in many respects a test
case on the issue of Aboriginal title. It presents a suitable vehicle for
development of the law.

[36]

The decision of the trial judge, affirmed by this Court, that advance
costs be ordered, is a strong indication of the exceptional importance of the
case from a public interest standpoint. Given the extensive record and
comprehensive reasons of the trial judge, this case provided an ideal
foundation for appellate consideration of issues of Aboriginal title.

[37]

The extent to which Aboriginal title exists is of fundamental importance
to British Columbians. The issue is, of course, of particular interest to First
Nations and to governments. It is also, however, of particular importance to
the economy of the Province, given the continued importance of resource
industries, which operate, for the most part, on lands that are subject to
title claims by First Nations.

[38]

British Columbia and Canada contend that the issues in this case were
not novel and did not break new legal ground. They contend that it merely
required the application of the Supreme Court of Canadas decision in
R. v.
Marshall
; R. v. Bernard,
2005 SCC 43, [2005] 2 S.C.R. 220.
While this Court found that the principles in
Marshall
and
Bernard
did govern this case, we are not convinced that that diminishes the importance
of the appeal. The trial judge was referred to the judgment in
Marshall
and
Bernard
, but interpreted it rather differently than did this Court. It is
apparent that further consideration of the reasons in
Marshall
and
Bernard
was required.

[39]

Quite apart from the
need for clarification of the jurisprudence on Aboriginal title generally,
there were special reasons why an appeal in this case was in the public
interest.
The trial judges decision, which indicated that title had
been established, but which denied a declaration of title, created particular
problems. Neither British Columbia nor Canada could appeal the judges decision
on title, which was technically in their favour. Nonetheless, absent an appeal,
the judges reasoning might well have been followed in the British Columbia
Supreme Court. In that regard, it was in the Crowns interest that the matter
be appealed, so that it could argue that the test for title applied by the
trial judge was incorrect.

[40]

In the unique circumstances of this case, the plaintiff ought not to
bear all of his costs of his appeal. An order that he be awarded party and
party costs on his unsuccessful appeal is justified.

[41]

In making this order, 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 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.

The Scale of Costs

[42]

Appendix B of the
Court of Appeal Rules
deals with party and
party costs. Section 2(1) provides that costs are ordinarily assessed under
Scale 1, the scale for matters of ordinary difficulty. Section 2(2) allows the
court to instead order costs on Scale 2 (for matters of more than ordinary
difficulty or importance) or on Scale 3 (for matters of unusual difficulty or
importance).

[43]

Only British Columbia has addressed the scale of costs in this matter.
It says that the scale should be Scale 3 in the plaintiffs appeal and in
British Columbias appeal, and Scale 1 in Canadas appeal. We are in agreement
that the appeals by the plaintiff and by British Columbia raised matters of
unusual difficulty and importance, and that Canadas appeal was in respect of
matters of ordinary difficulty and importance. Accordingly, the plaintiff will
have his costs on Scale 3 in his appeal and in British Columbias appeal, and
on Scale 1 in Canadas appeal.

Disposition

[44]

In the result, we make the following orders as to costs:

a)  In the
plaintiffs appeal, the plaintiff will have his costs on Scale 3, payable
jointly by British Columbia and by Canada;

b)  In British
Columbias appeal, the plaintiff will have his costs on Scale 3, payable by
British Columbia; and

c)  In Canadas appeal, the plaintiff
will have his costs on Scale 1, payable by Canada.

The Honourable Madam Justice Levine

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Groberman


