Supreme Court of Canada
Appeal Heard: November 4, 2021 Judgment Rendered: March 18, 2022 Docket: 39323
Parties
Between:
Germaine Anderson on her own behalf and on behalf of all other Beaver Lake Cree Nation beneficiaries of Treaty No. 6 and of Beaver Lake Cree Nation Appellant
and
Her Majesty The Queen in Right of the Province of Alberta and Attorney General of Canada Respondents
— and —
Attorney General of British Columbia, Alberta Prison Justice Society, Chiefs of Ontario, Advocates' Society, Assembly of Manitoba Chiefs, Indigenous Bar Association in Canada, Treaty 8 First Nations of Alberta, Ecojustice Canada Society and Anishinabek Nation Interveners
Indexed as: Anderson v. Alberta
2022 SCC 6
File No.: 39323.
2021: November 4; 2022: March 18.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Joint Reasons for Judgment: (paras. 1 to 74)
Karakatsanis and Brown JJ. (Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ. concurring)
on appeal from the court of appeal for alberta
Civil procedure — Costs — Advance costs — Requirement of impecuniosity — First Nation government applying for advance costs to fund litigation concerning treaty rights — Whether impecuniosity requirement can be met where applicant has access to financial resources that could fund litigation but claims resources must be devoted to pressing needs of community — Test for impecuniosity — Onus on applicant — Level of detail required.
Beaver Lake Cree Nation is a First Nation band whose members are beneficiaries of Treaty No. 6. In 2008, Beaver Lake sued the Crown for having improperly allowed its lands to be taken up for industrial and resource development. A 120‑day trial is scheduled to begin in January 2024. Beaver Lake says that the cost of litigation is well beyond its reach. By the time Beaver Lake's application was heard, it had been in litigation for about 12 years.
Under the impecuniosity branch of the advance costs test, Beaver Lake contends that even though it has access to resources that could potentially fund the litigation, these resources must be applied to address other priorities, such as substantial deficits in housing and infrastructure and high levels of unemployment and social assistance. A case management judge awarded advance costs of $50,000 per month, but the Court of Appeal allowed the Crown's appeal and set aside the order.
Held: The appeal should be allowed.
A First Nation government that has access to resources that could fund litigation may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. Pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the impecuniosity requirement's purpose of ensuring that access to justice is not denied for financial reasons, a court assessing impecuniosity should account for the broader context in which First Nation governments make financial decisions.
The test for advance costs is rigorous since courts must be mindful of the constraints of their institutional role. Three absolute requirements must be satisfied: impecuniosity, a prima facie meritorious case, and issues of public importance. An applicant that cannot demonstrate all three requirements is not entitled to advance costs; these are absolute requirements, not merely factors for consideration.
The court's analysis must be firmly grounded in the evidence and detailed proof may be required to ensure accountability over the expenditure of public funds. The court must be able to (1) identify the pressing needs of a First Nation applicant; (2) determine the extent to which those needs are not being met by the financial resources available to the applicant; (3) assess the financial resources of the applicant including any restrictions on those resources; and (4) compare the estimated litigation costs with the applicant's surplus resources once pressing needs are accounted for.
The pressing needs of a First Nation should be considered from the perspective of its government that sets its priorities and is best situated to identify its needs. This will always be a fact‑specific inquiry.
An applicant should adduce evidence of the costs of meeting its pressing needs and the extent to which it cannot cover those costs. The amount of detail required will depend on the circumstances, including the applicant's financial resources.
Where an applicant has access to financial resources that could potentially be used to pay for the litigation, it bears the onus of proving that it genuinely cannot afford to pay for the litigation because those resources are required to address its pressing needs.
Cases Cited
Applied: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38.
Statutes and Regulations Cited
Constitution Act, 1982, s. 35.
Indian Act, R.S.C. 1985, c. I‑5.
APPEAL from a judgment of the Alberta Court of Appeal (Slatter, Rowbotham and Pentelechuk JJ.A.), 2020 ABCA 238, 448 D.L.R. (4th) 555, [2020] A.J. No. 675 (QL), 2020 CarswellAlta 1082 (WL Can.), setting aside an order of Moreau J., 2019 ABQB 736, [2019] A.J. No. 1540 (QL), 2019 CarswellAlta 2300 (WL Can.). Appeal allowed.
Counsel
Karey Brooks and Robert Janes, Q.C., for the appellant.
Aldo Argento, Lara Mason and Sunny Mann, for the respondent Her Majesty The Queen in Right of the Province of Alberta.
François Joyal and John Provart, for the respondent the Attorney General of Canada.
Heather Cochran and Jacqueline Hughes, Q.C., for the intervener the Attorney General of British Columbia.
Avnish Nanda, for the intervener the Alberta Prison Justice Society.
Senwung Luk and Julia Brown, for the intervener the Chiefs of Ontario.
Melanie Gaston and Kelly Twa, for the intervener the Advocates' Society.
Carly Fox, for the intervener the Assembly of Manitoba Chiefs.
Alisa Lombard, for the intervener the Indigenous Bar Association in Canada.
Kate Gunn and Bruce McIvor, for the intervener the Treaty 8 First Nations of Alberta.
Andhra Azevedo, David Khan and Margot Venton, for the intervener the Ecojustice Canada Society.
Written submissions only by Guy Régimbald and Alyssa Flaherty‑Spence, for the intervener the Anishinabek Nation.
Reasons for Judgment
The judgment of the Court was delivered by
Karakatsanis and Brown JJ. —
I. Introduction
[1] In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, this Court established a framework for assessing claims for advance costs to offset the anticipated expense of litigation. While the framework has been applied in subsequent cases, this appeal requires us to consider how it applies in the context of a claim brought by a First Nation government for advance costs to fund its litigation to vindicate its treaty rights.
[2] This appeal concerns an application for advance costs by Beaver Lake Cree Nation to fund its litigation under s. 35 of the Constitution Act, 1982. A band within the meaning of the Indian Act, R.S.C. 1985, c. I‑5, Beaver Lake is a First Nation government whose members are beneficiaries of Treaty No. 6. Beaver Lake has, in its view, pressing needs relating to, among other things, housing, infrastructure, and employment. In this case, there is no dispute that the litigation meets the prima facie meritorious and public importance requirements of the advance costs test established in Okanagan. The question is whether Beaver Lake can show that it is impecunious.
[3] While contending that it is "impecunious", Beaver Lake has access to resources — both assets and income — that could potentially be applied to fund this litigation. Beaver Lake says, however, that its resources must be devoted to addressing its pressing needs as a community.
[4] We conclude that a First Nation government that has access to resources may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. While the bare necessities of life remain the core of this concept, pressing needs are not limited to bare necessities.
[5] All this said, the threshold of impecuniosity remains high and is not easily met. Bearing in mind the constraints on the judicial role imposed by the separation of powers, the extraordinary nature of an advance costs award, and the serious concerns about the expenditure of public funds, the analysis must be firmly grounded in the evidence. Detailed proof may be required to ensure accountability over the expenditure of public funds.
[6] Despite finding that Beaver Lake had, at the time of its application, more than $3 million in unrestricted funds and additional ongoing revenue that could be used to pay for its legal fees, the case management judge awarded advance costs. She concluded that Beaver Lake is an "impoverished community" with "substantial deficits in housing and infrastructure" and "high levels of unemployment and social assistance". She accepted, without more, that Beaver Lake's resources must be spent on these community needs rather than on the litigation.
[7] In our respectful view, the case management judge erred in her impecuniosity analysis. While her finding that Beaver Lake is an impoverished community with pressing needs is unassailable, her finding of impecuniosity was not adequately supported by the evidence. In particular, the case management judge's conclusion that Beaver Lake was impecunious was not supported by specific findings about the cost of meeting Beaver Lake's pressing needs or the extent to which Beaver Lake's resources would be consumed in addressing those needs, leaving insufficient funds to pay for the litigation.
[8] The matter of Beaver Lake's impecuniosity, however, should be reconsidered in light of the reasons that follow, and to account for the passage of time which will likely have altered Beaver Lake's financial position. We would therefore return the matter to the case management judge to consider, on a more complete evidentiary record, whether Beaver Lake was and remains impecunious.
II. Background
[9] Beaver Lake's underlying claim, in essence, is that the Crown "improperly allowed lands traditionally used by Beaver Lake Cree Nation to be 'taken up' for industrial and resource development" thereby breaching Treaty No. 6 (case management judge's reasons, 2019 ABQB 736, at para. 4). A 120‑day trial is scheduled to begin in January 2024.
[10] In support of its application, Beaver Lake says that the cost of litigation — which it estimated as $5 million — is well beyond its reach. By the time Beaver Lake's application was heard, it had been in litigation for about 12 years.
[11] Citing Okanagan and Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, the case management judge correctly stated the test for advance costs: (1) the party seeking advance costs must be impecunious in that it genuinely cannot afford to fund the litigation; (2) the party must have a prima facie meritorious case; and (3) the issues raised in the litigation must be of public importance to the point that it would be contrary to the interests of justice for them to proceed without the applicant's full participation. There is no issue on this appeal about the second and third requirements; they are conceded to be met.
[12] As to impecuniosity, the case management judge found that Beaver Lake's financial situation had improved in recent years. It was not under any imminent threat of insolvency or third party or court-controlled bankruptcy management (para. 7). At the time of Beaver Lake's application, it had more than $3 million in unrestricted assets and received ongoing revenue from oil and gas royalties, gaming revenue, and federal and provincial government funding.
[13] The case management judge also observed, however, that Beaver Lake has "substantial deficits in housing and infrastructure and . . . high levels of unemployment and social assistance" (para. 30). She noted that Beaver Lake "is concerned that accessing these funds [i.e., its unrestricted assets and ongoing revenue] will starve resources needed to address pressing community needs" (para. 7).
[14] The Court of Appeal allowed Canada's and Alberta's appeals and set aside the case management judge's order. The case management judge erred, it held, in concluding that Beaver Lake was impecunious given that Beaver Lake had access to more than $3 million in unrestricted funds and additional ongoing revenue.
[15] Before the Court of Appeal, Canada tendered fresh evidence that Beaver Lake had received $2.97 million in settlement of a specific claim. The Court of Appeal therefore held that, in light of the fresh evidence, even if the case management judge had correctly applied the impecuniosity test, the advance costs order could not stand.
III. Analysis
[16] Our analysis proceeds as follows. First, we review the test and underlying principles governing awards for advance costs in public interest litigation. Secondly, we consider the impecuniosity requirement as applied to a First Nation government that has access to financial resources but maintains that they must be devoted to pressing community needs. Finally, we apply the resulting framework to the facts of this appeal.
[17] Beaver Lake submits that whether a First Nation government is impecunious must be informed by broad contextual factors and the unique realities of First Nations, including the government's obligations to its members and the historical and ongoing socio-economic inequities attributable to colonialism. Specifically, Beaver Lake says that, in the context of First Nations, the proper approach is to assess impecuniosity "not on the basis of whether the applicant has access to resources, but whether it would be 'unduly onerous' for the applicant to bear the costs of litigation rather than devoting those resources to other pressing needs".
[18] Alberta and Canada each submit that, given Beaver Lake's access to significant assets and revenues, it was not impecunious. While Alberta agrees that the test for impecuniosity is not one of "utter destitution", it submits that such a finding requires an applicant to demonstrate that "its current financial situation is dire enough that it is genuinely unable to afford the litigation". Canada submits that there must be "genuine financial need in the sense that the applicant faces real hardship and genuine sacrifice in funding the litigation".
A. Advance Costs
(1) Guiding Judicial Discretion
[19] We begin with first principles. A court's equitable jurisdiction over costs confers discretion to decide when, and by whom, costs are to be paid (Okanagan, at para. 35). This includes the power to order that costs be advanced by one party to the other before the litigation is concluded. Such an order is designed to enable the party that is unable to fund its litigation to pursue a meritorious case that is also in the public interest.
[20] In Okanagan, this Court held that advance costs could be awarded based on the strong public interest in obtaining a ruling on a legal issue of exceptional importance, that not only transcended the interests of the particular parties to the litigation, but that was also of special significance for the development of the law (para. 46).
[21] But this Court has also emphasized that "Okanagan did not establish the access to justice rationale as the paramount consideration in awarding costs" and that "[c]oncerns about access to justice, while real and important, do not automatically override all other considerations" (Little Sisters, at para. 37).
[22] The root of the concern underlying this narrow scope for an advance costs order is the separation of powers. In Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, this Court cautioned that courts ordering advance costs must be mindful of "overstepping their institutional role" (para. 28). Specifically, a court ordering that a government pay the costs of litigation against itself, without any assurance that it will eventually recover the money, "implicates the public fisc in a significant way" (para. 27).
[23] Where, therefore, an applicant seeks to have its litigation funded by the public purse, courts must be mindful of the constraints of their institutional role. Those constraints necessarily confine advance costs to "rare and exceptional" cases (Little Sisters, at para. 3).
[24] In further keeping with these concerns, the test for advance costs is rigorous. Okanagan states three "absolute requirements" (Little Sisters, at para. 37) that must be satisfied: impecuniosity, a prima facie meritorious case, and issues of public importance. An applicant that cannot demonstrate all three requirements is not entitled to advance costs.
(2) Reconciliation
[25] Since Okanagan, this Court has decided Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, and many other cases that have emphasized reconciliation as a fundamental objective of the relationship between the Crown and Indigenous peoples. As those cases demonstrate, reconciliation is forward-looking, focused on achieving "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown" (Haida Nation, at para. 17, quoting Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 186).
[26] Where litigation raises novel issues concerning the interpretation of Aboriginal and treaty rights and the infringement of those rights, this may have significant weight in a court's analysis of the public importance branch of the advance costs test.
[27] In assessing impecuniosity, a court must respectfully account for the broader context in which First Nations governments such as Beaver Lake make financial decisions. Promoting institutions and structures of governance is a pressing need for a First Nation government — no less than providing for the basic necessities of life.
(3) The Terms of an Advance Costs Award
[28] Where a court decides that an award of advance costs is justified, the terms of the order must be carefully crafted. They must balance the interests of the parties, and should not impose an unfair burden on a respondent. Relevant considerations may include the litigation plan and cost estimates, the timing of payments, and the obligation of the applicant to account for money received and to repay some or all of it in certain circumstances.
[29] Other terms of the order will, of course, be informed by a court's findings in deciding impecuniosity. As outlined below, an applicant pleading impecuniosity must provide a litigation plan and detailed cost estimates. These form the basis for the amount of advance costs ordered and the terms of repayment.
B. The Impecuniosity Requirement
(1) Impecuniosity and First Nations Governments: The Threshold
[30] This Court has stated the requirement of impecuniosity in varying, but strict, terms. In Okanagan, it held that an applicant is impecunious if it "genuinely cannot afford to pay for the litigation" (para. 36). In Little Sisters, it characterized an applicant as impecunious if it "do[es] not have the financial resources to conduct the litigation" (para. 37).
[31] What makes this a case of first impression is whether and how, in the context of a claim brought by a First Nation government, it can be said that it "genuinely cannot afford to pay" for, or that it does not have "the financial resources to conduct", the litigation, where the First Nation has access to funds that it could, in theory, use for litigation but says must be devoted to pressing community needs.
[32] The parties agree that, in such circumstances, the assessment of impecuniosity must look beyond the First Nation government's financial resources in the abstract. A snapshot in time of its resources — assets and income — without regard to its needs and obligations, is insufficient to determine whether it is impecunious.
[33] The parties and interveners in this appeal presented us with several proposals for modifying or elaborating on the meaning of the impecuniosity requirement to suit the circumstances before us. Some suggested standards include: the applicant's resources being required for "other compelling purposes"; whether the use of the applicant's resources for the litigation would be "unduly onerous" given the applicant's responsibilities; or whether the government would otherwise be unable to meet "the basic governmental obligations" owed to its members.
[34] We would not modify the impecuniosity requirement in these ways.
[35] We recognize that access to justice is of particular importance in the context of s. 35 litigation, and further acknowledge that, in some cases, the dire financial circumstances of a First Nation may make it plain that it is impecunious. But where it is not plain — that is, where a First Nation has access to resources that could potentially fund its litigation — the threshold of impecuniosity cannot be lowered because a First Nation has other pressing needs. Rather, those needs become relevant to assessing whether, in substance, the First Nation is truly impecunious.
[36] That said, judicial notice may be taken of the systemic and background factors affecting Indigenous peoples in Canadian society. As this Court reiterated in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, "[c]ourts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into present day [circumstances]" (para. 60). This includes persistent socio-economic disadvantage.
[37] Nor can we accept thresholds based on a standard of "reasonableness" or on whether it would be "unduly onerous" for the applicant to fund the litigation. While assessing impecuniosity entails reasonableness as an implicit consideration — it would never be reasonable to require an applicant to spend money that it does not have — thresholds premised on these concepts would create a standard that is less rigorous than the one Okanagan prescribes.
[38] The concept of necessity is captured by this Court's direction that advance costs are to be ordered as a "last resort", where the First Nation government "genuinely cannot afford" the litigation because it "does not have the financial resources to conduct" it. This means that even where a First Nation applicant could, in theory, fund the litigation, it may be genuinely unable to do so if the financial resources it has at its disposal are needed to meet its pressing needs.
[39] An approach to impecuniosity that allows a First Nation government's pressing needs to take priority over the litigation has been usefully applied in lower court decisions. For example, the concept of using resources available to a First Nation for its "pressing needs" was employed in Missanabic Cree First Nation v. Ontario, 2011 ONSC 4801, where the court assessed whether a First Nation government that had available resources was impecunious.
[40] We are therefore content to affirm that an applicant genuinely cannot afford to pay for the litigation where, and only where, it cannot meet its pressing needs while also funding the litigation. As we discuss below, what constitutes "pressing needs" for a First Nation government extends beyond the core concept of "bare necessities of life".
(2) Assessing Pressing Needs
[41] Bearing in mind the extraordinary nature of the remedy, and the constraints of the judicial role in ordering the expenditure of public funds, assessing whether a First Nation government has sufficient resources to satisfy the impecuniosity requirement requires a rigorous, evidence-based analysis. We explain the required analysis here.
(a) Identifying the Pressing Needs of a First Nation Government
[42] Where an applicant has access to financial resources that could potentially be used to pay for the litigation, it bears the onus of proving that it genuinely cannot afford to pay for the litigation because those resources are required to address its pressing needs.
[43] There can be no question that expenditures on basic necessities of life, including adequate housing, a safe water supply, and basic health and education services, rise to the level of addressing pressing needs.
[44] Further, and as we have already observed (at para. 25), the goal of reconciling Aboriginal interests with the broader interests of society will inform how a court identifies the pressing needs of a First Nation government. These include, for example, the costs of establishing and maintaining governance structures and treaty implementation measures, and investments in economic development. We are mindful that First Nations governments have been denied the ability to maintain such structures due to systemic deprivation and persistent socio-economic disadvantage. Such needs, which relate to the First Nation's governance mandate, may constitute "pressing needs".
(b) The Extent of Unfunded Pressing Needs
[45] Identification by a court of needs as truly pressing will not establish impecuniosity. An applicant should also adduce evidence of the costs of meeting those needs and the extent to which it cannot cover those costs with the resources available to it. As explained below (at paras. 47-50), the amount of detail required will depend on the circumstances.
[46] Additionally, where the applicant has access to resources that could potentially pay for the litigation but which it says must be devoted to its pressing needs, it must demonstrate that those resources are actually required to meet its pressing needs. This necessarily involves showing how much of its financial resources must be spent on its pressing needs, and what, if anything, remains available to fund the litigation.
(c) Assessing the Applicant's Financial Resources
[47] It follows from our jurisprudence that in some cases, a finding of impecuniosity can be made even where the applicant does not adduce detailed evidence, either because the applicant does not have any financial resources, or because its financial circumstances are clearly dire. Accordingly, in cases involving a very impecunious First Nation applicant, a court may be able to find impecuniosity without detailed evidence of the costs of meeting pressing needs and the allocation of available resources.
[48] Lower court cases illustrate how a finding of impecuniosity can find support in the evidence adduced by a First Nation government applicant. In Missanabic Cree First Nation, the First Nation had "little or no financial resources" beyond those necessary to meet basic governmental functions, so the court was satisfied that it was impecunious even without detailed financial statements.
[49] Where a First Nation government applicant has extensive assets and ongoing revenue, however, more detailed evidence of its financial resources is required to demonstrate impecuniosity. This may include financial statements, budgets, proposed and current expenditures, accounts of any restrictions on the use of funds, descriptions of existing funding agreements, and the amount of money available after accounting for pressing needs.
[50] In all cases, because advance costs are a measure of last resort, an applicant must demonstrate that it made sufficient efforts to obtain funding from alternate sources. Depending on the circumstances, an applicant seeking advance costs from a government respondent should generally demonstrate, for example, that it has applied for legal aid, sought funding under the Participant Funding Program, or obtained pro bono assistance.
(d) Comparing Estimated Litigation Costs and the Applicant's Surplus Resources
[51] Little Sisters instructs that "cost estimates [for the litigation] form an integral part of the evidence; the court should subject them to scrutiny, and then use them to consider whether the litigation is realistically affordable for the applicant" (para. 39). Consistent with this Court's instruction in Little Sisters, a litigation plan and cost estimates should always be submitted in support of an application for advance costs. The court must carefully scrutinize such estimates and not accept them uncritically.
[52] Ultimately, after assessing the financial resources available to a First Nation government applicant, the extent to which it must commit those resources to pressing needs in priority to the litigation, and the estimated litigation costs, a court must determine whether there is a genuine financial shortfall that prevents the applicant from funding the litigation while meeting its pressing needs.
C. Application of the Framework to This Appeal
[53] Disturbing the case management judge's discretionary decision to award advance costs cannot be undertaken lightly (Little Sisters, at para. 49). At the same time, in making an exceptional award of advance costs, the case management judge must provide sufficient reasons to show that the requirements are made out by the evidence, and that the terms of the award are fair. A reviewing court that finds reversible error in the case management judge's analysis is entitled to interfere with the order.
[54] Here, the case management judge, acting without the benefit of these reasons, made general observations about Beaver Lake's financial resources and pressing needs to find that it was an impoverished community. But she did not engage in the detailed, evidence-based analysis that the framework requires. Most fundamentally, she did not make findings about the estimated costs of addressing Beaver Lake's pressing needs and the extent to which those costs were not covered by available financial resources.
(1) Beaver Lake's Pressing Needs
[55] As we have already recounted, the case management judge found that Beaver Lake has "substantial deficits in housing and infrastructure and . . . high levels of unemployment and social assistance" (para. 30). She also found that Beaver Lake "is concerned that accessing these funds [i.e., its unrestricted assets and ongoing revenue] will starve resources needed to address pressing community needs" (para. 7). While she did not explicitly state what Beaver Lake's pressing needs are, it is implicit in her findings that housing deficits, infrastructure deficits, unemployment, and social assistance all constitute pressing needs.
[56] In light of this evidence, we agree that the case management judge appropriately identified Beaver Lake's pressing needs. Such matters fall within the basic necessities of life which, as such, clearly qualify as pressing needs. We therefore affirm the case management judge's finding that Beaver Lake has pressing needs.
(2) The Extent of Beaver Lake's Unfunded Pressing Needs
[57] The case management judge did not make findings regarding the estimated costs of Beaver Lake's pressing needs, or the extent to which those costs are not covered by the financial resources available to Beaver Lake. This was an error.
[58] Indeed, the case management judge could not have made those findings on the record before her. A constant refrain in the evidence and submissions was that Beaver Lake could not meet its pressing needs, and that its resources, though apparently substantial, were urgently needed to address those needs. But neither the evidence nor the case management judge's reasons provide a basis for this conclusion.
[59] The evidence concerning Beaver Lake's financial resources did not fully answer whether those resources were required to address its pressing needs, and whether any funds would remain that could be used to fund the litigation.
[60] Beaver Lake's band administrator, John Geoffrey Rankin, deposed that, in discharging his responsibility to develop business strategies that align with the community's short‑ and long‑term objectives, he makes "difficult decisions regarding what work to prioritize" based on available resources. He also stated that "the cost of our litigation would represent a significant portion" of Beaver Lake's discretionary budget. While this evidence is relevant, it does not tell us what the estimated costs of addressing Beaver Lake's pressing needs are, or what resources remain available to pay for the litigation.
[61] It follows that the court will require evidence that quantifies the financial resources required to meet the First Nation government's pressing needs. Here, for example, it was unclear just how much money Beaver Lake required to address its housing and infrastructure deficits. The evidence was that these deficits were real and substantial, and that Beaver Lake receives annual federal government funding to address them. But the court was not told what funding shortfalls, if any, exist.
(3) Beaver Lake's Financial Resources
[62] The case management judge considered Beaver Lake's resources to arrive at the conclusion that it had more than $3 million in unrestricted assets potentially available for the litigation. She was correct to identify these resources, though she erred by stopping her analysis there and not asking what portion of those resources must be applied to pressing needs.
[63] Additional evidence regarding Beaver Lake's assets and income, including any restrictions on those resources, and its liabilities and expenses could help the court more accurately determine what resources Beaver Lake has available to fund its litigation.
[64] First, Beaver Lake created the Heritage Trust as a vehicle to manage income received from projects carried out on its traditional lands, which Beaver Lake allocates towards community development. While the terms of the Heritage Trust — that is, whether it was restricted or unrestricted — were not made clear in the evidence before the case management judge, such evidence would certainly be relevant.
[65] Secondly, Beaver Lake has access, under certain conditions, to the Indian Oil and Gas Canada Trust, which consists of funds derived from ongoing revenue from oil and gas extraction on the Beaver Lake reserve. It is unclear from the evidence whether Beaver Lake can access these funds or what they can be used for.
[66] Finally, while Beaver Lake received approval to become a borrowing member of the First Nations Finance Authority (R.R., Alberta, vol. I, at pp. 141 and 143; case management judge's reasons, at para. 18), there is no evidence about whether it has in fact borrowed, or tried to borrow, money from the First Nations Finance Authority. More generally, while the case management judge did not make a finding about whether Beaver Lake had made sufficient efforts to obtain alternate sources of funding, such findings are necessary.
[67] In short, the case management judge required a more particularized and comprehensive record in order to consider whether Beaver Lake had made sufficient efforts to obtain funding from alternate sources, and in order to make reliable findings about the nature and extent of Beaver Lake's financial resources and pressing needs.
(4) Comparing Beaver Lake's Estimated Litigation Costs and Surplus Resources
[68] Consistent with this Court's direction in Little Sisters, the case management judge reviewed Beaver Lake's litigation plan and determined the quantum of funds required to pursue the litigation. The litigation plan, however, was not as detailed as it could have been. The case management judge ordered $50,000 per month, rather than reviewing the specific litigation costs set out in a plan. On remand, a more detailed litigation plan should be adduced, and the case management judge should scrutinize Beaver Lake's estimated litigation costs.
(5) The Fresh Evidence
[69] In our view, the evidence of the amount received by Beaver Lake from the resolved specific claim ($2.97 million) is not conclusive; indeed, it raises more questions. Nor does it speak to Beaver Lake's pressing needs and the resources available to fund them. Additional evidence should be adduced on remand.
[70] In any event, the fact of the specific claim settlement should, in our view, have led the Court of Appeal to return the matter to the Court of Queen's Bench for consideration. Indeed, the case management judge noted in her reasons that "additional resources available to [Beaver Lake] over the course of the litigation could affect both the amount of the advance costs order and the terms of repayment" (para. 40). The appropriate course was therefore to return the matter to the Court of Queen's Bench to reconsider, rather than to set aside the advance costs order.
(6) The Terms of the Advance Costs Order
[71] In the absence of a sufficient record on which the case management judge could make findings regarding the cost of meeting Beaver Lake's pressing needs, the resources available to fund those needs, and the extent to which those resources are required for pressing needs rather than litigation costs, she could not have crafted terms that appropriately balanced the interests of the parties. Accordingly, we decline to comment on what, if any, terms should be set.
IV. Disposition
[72] We would allow the appeal and remit the application to the Court of Queen's Bench of Alberta. We are mindful of the time and resources expended by the parties in the nearly 14 years since this litigation commenced. We therefore direct that the application be considered on an expedited basis.
[73] We would also award solicitor‑client costs to Beaver Lake in this Court and in the courts below. Solicitor‑client costs, being a form of special costs (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99), may be awarded where the conduct of the losing party was "reprehensible, scandalous or outrageous" (para. 99). However, in Okanagan, this Court also affirmed that special costs may be awarded in exceptional cases involving the vindication of constitutional rights (para. 25).
[74] While Beaver Lake has some personal, proprietary or pecuniary interest in the underlying litigation, it did not initiate proceedings on primarily private or economic grounds. The case management judge found that Beaver Lake's claim is of extraordinary significance — both for Beaver Lake and for Alberta — and the issues of public importance have not been seriously contested before us. Given the exceptional public importance of this litigation, and the fact that Beaver Lake should not have been put to the expense of appealing to this Court, an award of solicitor‑client costs is appropriate.
Appeal allowed.
Solicitors
Solicitors for the appellant: JFK Law Corporation, Vancouver.
Solicitors for the respondent Her Majesty The Queen in Right of the Province of Alberta: Norton Rose Fulbright Canada, Calgary.
Solicitor for the respondent the Attorney General of Canada: Attorney General of Canada, Montréal.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitors for the intervener the Alberta Prison Justice Society: Nanda & Company, Edmonton.
Solicitors for the intervener the Chiefs of Ontario: Olthuis Kleer Townshend, Toronto.
Solicitors for the intervener the Advocates' Society: Osler, Hoskin & Harcourt, Calgary.
Solicitors for the intervener the Assembly of Manitoba Chiefs: Fox Fraser, Calgary.
Solicitors for the intervener the Indigenous Bar Association in Canada: Semaganis Worme Lombard, Saskatoon.
Solicitors for the intervener the Treaty 8 First Nations of Alberta: First Peoples Law, Vancouver.
Solicitor for the intervener the Ecojustice Canada Society: Ecojustice Canada Society, Calgary.
Solicitors for the intervener the Anishinabek Nation: Gowling WLG (Canada), Ottawa.