Costs to a losing litigant

William v. British Columbia, 2013 BCCA 1 is a highly unusual case where a losing party is awarded costs:

[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. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [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 Court's 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 CanLII 4 (SCC), [1973] S.C.R. 313], Delgamuukw [Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010], andMarshall; Bernard [R. v. Marshall; R. v Bernard, 2005 SCC 43 (CanLII), 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 Nisga'a inCalder, the Gitksan and Wet'suwet'en in Delgamuukw, and the Tsilhqot'in 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 judge's 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 Canada's decision in R. v. Marshall; R. v. Bernard, 2005 SCC 43 (CanLII), 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 judge's 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 judge's decision on title, which was technically in their favour. Nonetheless, absent an appeal, the judge's reasoning might well have been followed in the British Columbia Supreme Court. In that regard, it was in the Crown's 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.