The appellant First Nation government sought advance costs to fund treaty rights litigation against the Crown, arguing that despite having access to financial resources, those resources were required to address pressing community needs including housing deficits, lack of infrastructure, and high unemployment.
The Supreme Court clarified the impecuniosity requirement for advance costs: a First Nation government with access to financial resources may satisfy the requirement by demonstrating that those resources are genuinely needed to meet pressing needs, which are not limited to bare necessities but extend to matters within the broad mandate of First Nation governance.
The Court found the case management judge erred in failing to make sufficiently particularized findings on the cost of pressing needs and available surplus resources.
The appeal was allowed and the matter remitted to the Court of Queen's Bench of Alberta for reconsideration on a more complete record, with solicitor-client costs awarded to the appellant in all courts.
