Johnson v Fishing Lake Métis Settlement, 2020 ABCA 17

Application denied. The stringent test for seeking advance costs in public-interest litigation was not met.

Indigenous Law Centre
Indigenous CaseWatch Blog

The applicants are not Métis, but have lived their entire lives on the land of an estate that was given to a Métis land trustee. They wish to appeal the Fishing Lake Métis Settlement Council’s decision that was confirmed by the Metis Settlements Appeal Tribunal.

The principle in advance-costs cases normally involves the unsuccessful party in an action being ordered to pay all or part of the successful party’s costs. They are adverse in interest in specific court proceedings. Advance-costs order may only be granted against a person who is adverse in interest to the applicant in the proceedings to which the applicant is a party. Such an order cannot be made against the Métis Settlement General Council and the Registrar. The Fishing Lake Métis Settlement and the applicants are adverse in interest and may be the subject of an advanced-cost order. This order, however, should be made only in exceptional circumstances and as a last resort. There is a stringent test with three aspects for an order of advanced costs, but even if they are met, it is still in the Court’s discretion to grant it: 1) the party genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial; 2) the claim to be adjudicated is prima facie meritorious; and 3) the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (British Columbia v Okanagan Indian Band, [2004] 1 CNLR 7; Little Sisters Book and Art Emporium v Canada, [2000] 2 SCR 1120).

Applications for advance-costs orders should not become routine applications. Legislators, and not judges, should, as a rule, decide how to spend public monies. At its heart, this case concerns trusteeship for one individual plot of land and presents no issues of special significance to the community.