Anderson v Alberta (AG), 2019 ABQB 746

Advanced costs granted. It would be manifestly unjust to either compel the First Nation to abandon its claim or to force it into destitution in order to bring the claim forward.

Native Law Centre

This is an application by the Beaver Lake Cree Nation [“BLCN”] for an order of advanced costs to allow them to proceed with their Statement of Claim filed 10 years ago against Canada and Alberta. The litigation deals with the cumulative effects of the “taking up” of land in the Beaver Lake traditional territory and the damage done thereby on the way of life of the members of the BLCN. An advanced costs decision is ultimately discretionary and there is a high threshold of accountability for using public funds through courts rather than through the legislature or the government bureaucracy.

The Court may award interim costs when a party demonstrates impecuniosity, a meritorious case, and issues of public importance (BC (Minister of Forests) v Okanagan Indian Band, [2004] 1 CNLR 7 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 [“Little Sisters”]). Even if all the criteria are met, there is no right to interim costs. The Court has discretion whether to grant an order for interim costs, or consider other methods to facilitate the hearing of the case depending on its assessment of the individual circumstances of the case.

Impecuniosity means that it would be impossible to proceed with the litigation absent the order of costs. The threshold for proof of impecuniosity is high and it is not to be used as a “smart litigation strategy (Little Sisters). A party seeking such an extraordinary remedy is required to make full and transparent disclosure of its assets, expenses, ability to raise or borrow monies, and ability to obtain counsel, and the likelihood of a contingency fee agreement and an estimate of the costs it requires to fund the litigation (LC v Alberta, 2017 ABQB 93).

The BLCN is an impoverished community with a number of pressing infrastructural and social needs. It has only recently started to turn the corner financially as they accumulate some funds from various sources. The vast majority of the BLCN’s financial assets are not available to fund this litigation. Funding this litigation by the BLCN must be weighed against the community’s other pressing needs. The BLCN has funded this litigation for 10 years through its own sources, it now cannot fund the litigation at the rate required to bring it to trial.

The Court is satisfied that all three elements of the Okanagan/Little Sisters test have been met. This case is sufficiently extraordinary that the Court should exercise its discretion to grant the application. If the BLCN receives compensation or otherwise receives a windfall, then this order shall be revisited. Transparency is required from the parties.