Justice Schuler of the Northwest Territories dismissed an application seeking advance payment of costs pursuant to Rule 643 of the Rules of the Supreme Court of the Northwest Territories.

The applicants, Clem Paul (“Mr. Paul”) on his own behalf and on behalf of the Treaty 11 Métis, sought payment of costs in advance from the Commissioner of the Northwest Territories (“Commissioner”) and the Attorney General of Canada (“Canada”) pursuant to Rule 643 of the Rules of the Supreme Court of the Northwest Territories (“Rule 643”).

Rule 643 gives the Court discretion to award costs and the party by whom they are to be paid and costs may be dealt with at any stage of an action or a proceeding before the entry of judgment.

The Commissioner originally commenced a proceeding in 2006 pursuant to the Mackenzie Valley Resource Management Act, S.C. 1998, c. 25 and the Commissioner’s Land Act, R.S.N.W.T. 1988, c. C-11, against Mr. Paul for alleged trespass. Those proceedings were discontinued on consent and replaced by an action in civil trespass in 2008. In that action, there has been no discovery of documents or examinations for discovery.

Mr. Paul defends the action by asserting that he has rights to the land in question and is therefore not trespassing. He claims to be a member of the Treaty 11 Métis and to represent them in the action. Further, in a counterclaim against the Commissioner and Canada, Mr. Paul and the Treaty 11 Métis plead that Canada’s purported delegation to the Commissioner of the administration and control of lands which include the land Mr. Paul’s cabin is on, is also subject to the rights of the Treaty 11 Métis. The counterclaim seeks a number of declarations as to the rights, titles and interests of Mr. Paul and the Treaty 11 Métis, including the right to land, and damages for breach of those rights.

The Treaty 11 Métis as described by Mr. Paul, are members of the French Métis families who settled in the North Slave Region and later signed Treaty 11 at Fort Rae in 1921 and 1922 and their descendants. Mr. Paul claims that the Treaty 11 Métis are a distinct aboriginal society.

The Commissioner and Canada take the position that Mr. Paul is precluded from asserting Treaty 11 rights by certain provisions of the Tłı̨chǫ Land Claims and Self Government Agreement, a land claim agreement approved and given the force of law by the Tłı̨chǫ Land Claims and Self-Government Act, S.C. 2005, c. 1 (the “Tłı̨chǫ Agreement”). In addition, the Commissioner and Canada do not agree that there is a distinct Métis society with Treaty 11 rights. They also say that Treaty 11 did not create any title or right to land for individuals.

The parties agreed that the test to decide whether to grant advance costs is set out by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), [2003] 3 S.C.R. 371 (“Okanagan”) and Little Sisters Book and Art Emporium v. Canada (Commissioners of Customs and Revenue), 2007 SCC 2 (CanLII), [2007] 1 S.C.R. 38 (“Little Sisters”):

“Pursuant to the test, an applicant for advance costs has the onus of establishing all of the following three elements (paragraph 40, Okanagan):

1.  The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial - in short, the litigation would be unable to proceed if the order were not made.

2.  The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.”

Further, Justice Schuler stated, “[t]he fact that an applicant establishes all three elements does not, however, end the inquiry.  The Court retains discretion to determine whether advance costs should be ordered because such an award is exceptional and is to be granted with caution, as a last resort: Little Sisters, paragraph 36”.

Mr. Paul took the position that this was an exceptional case for which the Court should grant advance costs and that he has satisfied all three elements of the Okanagan test.  Further, Mr. Paul indicated that litigation with the Crown is always more costly and that Canada had delayed or impeded the progress of the case.

The Commissioner and Canada opposed the application and took the position that Mr. Paul did not satisfy any of the three requirements of the Okanagan test.  Further, they submitted that Mr. Paul had significantly expanded the issues in the case beyond a trespass action.

With regard to the first element of the Okanagan test regarding the impecuniosity of the applicants, Mr. Paul’s position was that the trial would likely take six to nine months of court time at a cost of $3 to $5 million. Although the judge, based on the evidence, accepted that it seemed unlikely that he personally could afford the estimated costs of the litigation, Mr. Paul did not provide any detail or documentation of his impecuniosity, such as income tax returns, that was needed to satisfy the Court.

Further, Justice Schuler stated that Mr. Paul’s admission that none of the Treaty 11 Métis have contributed financially to the litigation and that he has not sought any contribution from them, raised the concern that he does not have substantial support from them for this litigation. Therefore, Justice Schuler held:

“Because of the lack of financial disclosure and because Mr. Paul has not satisfied the Court that obtaining assistance from the Treaty 11 Métis he represents is not a realistic option, I am not satisfied that he has shown that he and the other applicants are impecunious”.

Although failing the first element of the Okanagan test was sufficient to dispose of the application, the Judge nonetheless went on to consider the other two elements required by the Okanagan test.

With regard to the second element of the Okanagan test, regarding the merits of the case, the Judge indicated that the litigation commenced by an allegation that Mr. Paul built a cabin on Crown land without having obtained permission to do so.  Mr. Paul’s defence to that action is that he does not need the Commissioner’s permission because he has a right to that land arising from Treaty 11, and therefore cannot be said to be trespassing on it. Mr. Paul has expanded the action by way of a counterclaim in which he and the group of people he styles as the Treaty 11 Métis, claim Treaty 11 rights that they say they still have, and that Canada has infringed and has purported to extinguish in certain provisions of the Tłı̨chǫ Agreement. In addition, Mr. Paul raised two matters relating to the honour of the Crown, which involve a representation made by Canada in a related case in the Federal Court, and an alleged contradiction in the position taken by Canada and the Commissioner earlier in this action.

With respect to the honour of the Crown, Justice Schuler stated referring to the Supreme Court of Canada in R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, that,

“the honour of the Crown is always at stake in its dealings with Aboriginal people and interpretations of treaties and statutory provisions which have an impact upon treaty and aboriginal rights must be approached in a manner which maintains the integrity of the Crown.  The honour of the Crown may be raised in relation to those rights, but also in relation to the conduct of the Crown and its agents in litigation where those rights are at issue: Joseph et al v. Her Majesty the Queen, 2008 FC 574 (CanLII), at paragraph 24.

Justice Schuler concluded that although Mr. Paul had an arguable case, there were a number of challenges and hurdles, and that it was not shown to have merit or be exceptional in the sense required by the cases of Okanagan and Little Sisters. Justice Schuler stated:

“At the end of the day, what is at stake in this litigation is Mr. Paul’s interest in building his cabin where he wishes.  The other issues raised by the case are of great interest and may have great historical significance, but in terms of their practical effect they do not rise to the level of merit required for payment of advance costs from the public purse”.

With regard to the third and final element concerning public importance, Justice Schuler held the case did not involve a matter of public importance, and stated:

“In my view, the absence of independent evidence of any support from those said to be the Treaty 11 Métis casts doubt on whether the case is of public importance.  The fact that Mr. Paul has refused to disclose the names and circumstances of the members of the Treaty 11 Métis means that the number of individuals who may be directly affected by this case cannot be verified. Counsel for Canada advised the Court that Canada gave Mr. Paul notice that it would ask the Court to draw an adverse inference regarding the existence of the members of the Treaty 11 Métis, yet he still refuses to disclose their names.  Based on that circumstance, together with the fact that none of the members have come forward to support this litigation or make any financial contribution to it, Canada asks the Court to conclude that there is no one other than Mr. Paul who wants this litigation to go forward.  That, in my view, is a reasonable inference”.

Therefore, Justice Schuler held the case was not one of those “rare and exceptional cases where justice demands that the questions raised be litigated and that advance costs be ordered for that purpose”.

Mr. Paul failed to satisfy any of the three elements of the Okanagan test. Therefore, as failure to satisfy any one of the Okanagan elements means the application must be dismissed, the application for payment of advance costs was dismissed.


Other Author

Isabella Mentina


Aboriginal Law