The appellant First Nation appealed a costs decision of the Environmental Review Tribunal, arguing that the Tribunal erred by failing to apply the 'polluter pays' principle and by not considering the appellant's First Nation status when assessing whether the respondent's conduct was unreasonable.
The Divisional Court dismissed the appeal, holding that under section 17.1 of the Statutory Powers Procedure Act, costs are only awarded for unreasonable, frivolous, or vexatious conduct.
The Court found that the 'polluter pays' principle does not apply to costs considerations and that the Tribunal reasonably concluded the respondent's conduct in defending the appeal was not unreasonable.
