The B.C. Court of Appeal dismissed an appeal by the plaintiffs in the Chief Mountain case requiring them to pay 2/3 of the tariff costs of the defendant Nisga’a Nation. The Court of Appeal also ordered that the plaintiffs to pay 1/2 of the taxable costs of the Nisga’a Nation for the appeal.

The plaintiffs brought an unsuccessful constitutional challenge to the Nisga’s Final Agreement. The decision of the trial judge (2011 BCSC 1394) was summarized in our e-Newsletter of 6 March 2012. In August 2012, the trial judge made an order that the plaintiffs pay costs to the defendant Nisga’a Nation: 2012 BCSC 1152. Madam Justice Lynn Smith held that the plaintiffs did not fit within the exceptions to the usual rule that a successful party is entitled to its costs. This decision was summarized in our e-Newsletter of 6 September 2012.

The Court of Appeal rejected the application of the plaintiffs to adduce “fresh evidence” about funding received from the Nisga’a Nation from Canada. Even if the trial judge had been aware of this fact, it would not have affected the analysis. Further, the evidence falls far short of demonstrating that the funding covered all of the costs of the Nisga’a Nation. The plaintiffs’ submission was also fundamentally flawed, since it was premised on the outdated notion that the only purpose of a costs award is to provide indemnity to a litigant.

The trial judge did not err in her analysis of public interest costs. The Court of Appeal also awarded costs to the Nisga’a Nation for the appeal, based on 50% of its taxable costs, to reflect the public importance of the issues raised, but also to reflect that many arguments advanced by the appellants rested on a mischaracterization of the effect of the Nisga’a Final Agreement.

The order was stayed pending the final disposition of the proceeding. (The plaintiffs have sought leave to the Supreme Court of Canada, and the application was submitted to a panel on June 24).

Decisions available here.

Author

Kenneth J. Tyler 
KTyler@blg.com
604.640.4185

Expertise

Aboriginal Law