CITATION: Karas v. Ontario, 2016 ONSC 8152
COURT FILE NO.: CV-04-277144-CM3
DATE: 20161231
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GEORGE KARAS a.k.a. GEORGE
Larry M. Najjar, for the Plaintiffs
KARAHALIOS, TED LAMPRAKOS,
LISA KARAS a.k.a. LIZA KARAS a.k.a.
LISA KARAHALIOS a.k.a. LISA
MOSTEFAOUI, JAMES KARAS,
MOHAMED MOSTEFAOUI, MARTHA
KARAS, SOULA LAMPRAKOS and
ROULA KARAS
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT
Alfred J. Esterbauer and Jeff Van Bakel, for
OF ONTARIO, LAWYERS’
The Defendants Lawyers’ Professional
PROFESSIONAL INDEMNITY
Indemnity Company, Gary Caplan, Gardiner
COMPANY a.k.a. LAW PRO, WEIR &
Roberts, William O’Hara and Linda
FOULDS, WEIR & FOULDS LLP a.k.a.
Robinson
WEIRFOULDS LLP, GARY CAPLAN,
GARDINER ROBERTS, GARDINER
ROBERTS LLP, WILLIAM O’HARA,
LINDA ROBINSON, JOE LUCAS, NEIL
BROWN a.k.a. NEILL BROWN, KING-
REED & ASSOCIATES LTD. a.k.a. KING-
REED & ASSOCIATES LIMITED, BRIAN
KING, VAUGHAN O’TOOLE and NICK
TSOUKALIS
Defendants
DECISION
D.L. Corbett J.:
[1] The plaintiffs seek an interim order for costs from the LawPro defendants so that they may pursue their claims to a final determination.
[2] Such orders are rarely made.
[3] The circumstances of this case are unusual. However those circumstances do not bring this case within the category of rare cases where a defendant should be ordered to pay costs of the proceeding before liability is established. For the reasons that follow the motion is dismissed.
Background
[4] James Karas and Tony Lazos bought Queen’s Pizzeria in Orillia in 1987 for $1,050,000. The paid $300,000 in cash and financed the balance through a bank loan.
[5] In March 1988, Lazos sold his interest in the pizzeria to Ted Lamprakos for $200,000, payable $25,000 in cash and the balance secured by a second mortgage against the premises.
[6] From March 1988, James Karas and Ted Lamprakos (collectively the “owners”) operated the pizzeria. They employed two of Karas’ children, George Karas and Leeza Montefaoui. The two owners and Karas’ two children are described as the “primary plaintiffs” in the statement of claim.
[7] The plaintiffs plead that the pizzeria was “highly profitable” and provided a good income to the primary plaintiffs.
[8] The pizzeria burned to the ground on the night of December 22, 1992. The fire was caused by arson.
[9] The plaintiffs allege that the primary plaintiffs “had nothing to do with the fire and were the innocent victims of a serious crime that destroyed their livelihoods, their security and their peace of mind.”
The Insurance Claim
[10] The owners submitted a claim to their fire insurer, Wellington Insurance Company. They sought to have the restaurant rebuilt so that they could resume their business.
[11] Wellington denied the claim, alleging that the owners had arranged the fire for their own financial gain.
[12] The owners then retained a lawyer, Paul Squires, to pursue their claims against Wellington.
[13] Squires did not commence legal proceedings within the limitation period. As a result, the owners’ insurance claims became statute-barred.
The Negligence Claim Against Squires
[14] The primary plaintiffs then retained another lawyer, Greg Roberts, to bring a claim in negligence on their behalf against their former lawyer, Squires.
[15] The claim against Squires was insured by the defendant Lawyers Professional Indemnity Company (“LawPro”). LawPro undertook a defence on behalf of Squires and retained the defendant William O’Hara of the defendant Gardiner Roberts to defend Mr Squires. Squires defended the action on the basis that, he alleged, the owners had arranged the fire – the position that had been taken by Wellington when it first rejected the owners’ claim to insurance proceeds.
[16] In August 2000, about four weeks before the trial was scheduled to begin, the Squires negligence claim was settled for $800,000. Of this amount, $232,469.92 was paid to the owners’ lender, CIBC, and the balance of $567,530.08 was paid to Roberts in trust on behalf of the primary plaintiffs.
Alleged Fraudulent Settlement
[17] On October 4, 2000, the defendant Tsoukalis told LawPro representatives that the primary plaintiffs had arranged the fire at the restaurant to defraud their own insurer, and that by way of the Squires action, LawPro became a victim of the fraud.
[18] LawPro retained the defendant Caplan of the defendant Weir & Foulds to investigate these statements from Tsoukalis. On October 5, 2000, Tsoukalis gave a statement to LawPro in which he claimed that the primary plaintiffs had arranged the fire because the restaurant was in financial difficulty.
The LawPro Action Is Commenced
[19] LawPro commenced a proceeding against the primary plaintiffs and their two lawyers, Squires and Roberts, alleging fraud and conspiracy. LawPro moved for and obtained an injunction freezing the settlement funds without prior notice to the primary plaintiffs. LawPro gave the usual undertaking as to damages as the “price” of the injunction.
The Criminal Prosecution
[20] In December 2002, the primary plaintiffs were arrested and charged with fraud and arson in connection with the fire at the pizzeria. After several days in jail the primary plaintiffs were released on bail. James Karas sold his home in order to pay for criminal defense counsel.
[21] In January 2004 the Crown withdrew all charges against the primary plaintiffs, before the preliminary inquiry, on the basis that there was no reasonable prospect of a conviction.
The LawPro Action Is Tried
[22] The LawPro action was tried over 17 days between October 10, 2006 and January 10, 2007, before J.E. Ferguson J., without a jury. Her Honour dismissed LawPro’s claim. Her Honour made several comments about the events leading up to the trial of the LawPro action, but expressly left open the question of whether the primary plaintiffs had claims arising from those events against the defendants to this proceeding, which had already been commenced but had been stayed pending conclusion of the LawPro trial.[^1]
This Action
[23] The plaintiffs sue for (i) malicious prosecution, conspiracy to injure, intentional infliction of nervous shock against all defendants, and for (ii) negligent investigation against police defendants and the King-Reed defendants, and (iii) breach of Charter rights against the police defendants.[^2]
[24] The plaintiffs claim that the prosecution of them for arson, and related steps taken against them on the basis of the arson allegations, give rise to their claims in tort and breach of Charter rights.
This Motion
[25] This motion was withdrawn without costs on consent as against Ontario. It proceeded against the LawPro defendants.
[26] The plaintiffs say that they are out of money as a result of years of incessant legal proceedings with deep-pocketed opponents, notably the insurer for lawyers in Ontario. They say that they have a meritorious claim and that their impecuniosity should not bar them from redress.
[27] This action was commenced in 2004, but held in abeyance until conclusion of the LawPro Action. In 2013, I struck the amended statement of claim with leave to amend and assumed case management of the case.[^3]
The Test for Interim Costs
[28] The court has discretion to order payment of interim costs.[^4] This power is “inherent in the nature of the equitable jurisdiction as to costs.”[^5] There are several “conditions” required to award interim costs, “all of which must be present for an interim costs order to be granted.”[^6] Those conditions are:
(i) The party seeking interim costs must be impecunious to the extent that, without the order, the party would be deprived of the opportunity to proceed with the case;
(ii) The party seeking the order must establish a prima facie case of sufficient merit to warrant pursuit; and
(iii) There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.[^7]
[29] The plaintiffs have not persuaded me that they meet the tests for impecuniosity or special circumstances. Therefore the motion must be dismissed. Extensive materials were filed on the merits of the case. It is better if I do not comment on the merits on the basis of a partial record, without oral testimony, when it is not necessary for me to do so to dispose of this motion.
(i) Impecuniosity
[30] To satisfy the “impecuniosity” branch of the test, the moving parties must establish that they genuinely cannot afford to pay for the litigation and that no other realistic option exists to bring the issues to trial.[^8] The moving party must satisfy the court that it has explored all other funding options. If the moving party has some but insufficient means to fund the litigation, then they must commit to contribute to the cost of the litigation.[^9]
[31] Proof of impecuniosity may not rest on generalizations and broad assertions. The moving parties bear the burden of proving their impecuniosity and they are uniquely positioned to establish their financial position with exactitude. The moving parties must provide “at the very least, a detailed statement of their income and expenditures and a complete financial statement” which is “as complete as possible”.[^10] To coin a phrase from J.W. Quinn J. (in a different context, but nonetheless apposite here), impecuniosity must be shown by the moving parties with “robust particularity”.[^11]
[32] The defendants argue that the plaintiffs have not met the burden to establish impecuniosity for the following reasons:
(a) There may be counsel willing to undertake this file on a contingency basis and the plaintiffs may have unreasonably refused to engage such counsel;
(b) The defendants have not documented efforts to raise money for the case through “litigation funders”;
(c) There is no evidence that the plaintiffs sought “funding from any special interest group or engaged in attempts to fundraise”;
(d) There is evidence that some of the plaintiffs have some means and there is no reasonable explanation for their failure to use these means to pay for their litigation;
(e) There is insufficient admissible evidence concerning the means of four of the plaintiffs;
(f) There is no evidence of the means of the extended family and friends of the plaintiffs;
(g) The plaintiffs have failed to account for the very substantial proceeds paid to them as a result of dismissal of the LawPro action by J.E. Ferguson J. and the damages awarded to them as a result of the injunction obtained by LawPro.
[33] I reject arguments (a), (b), (c) and (f). I accept arguments (d), (e) and (g) which, in the aggregate, leave me with the conclusion that the plaintiffs have not proved impecuniosity.
(a) Arrangements With Counsel
[34] There are almost 50,000 lawyers in Ontario. Obviously the plaintiffs cannot canvass all of them to determine if one of them would be prepared to undertake this case “on spec”.
[35] The bar does not have an obligation to underwrite any and all arguable litigation on behalf of people who cannot afford a lawyer. Some areas of practice seem to lend themselves to contingency fee arrangements: insured personal injury actions, for example. There is no evidence that this case is the kind of case where one might reasonably expect counsel to work “on spec”. In the absence of such evidence I do not consider that the plaintiffs ought to be required to prove a negative.
[36] In any event, current counsel for the plaintiffs has, effectively, taken the case “on spec” thus far. He proposes to continue on the basis that he will receive disbursements and some portion of his legal fees pending final determination at trial, with the balance of his professional fees deferred until after judgment. Counsel is a capable and experienced lawyer and is well within the range of suitable choices for the plaintiffs for this case. I am satisfied that the proposed arrangements represent a reasonable professional engagement for a case of this kind.
(b) “Litigation Funders”
[37] I agree with the defendants that the plaintiffs are obliged to seek funding from “litigation funders”, that is, entities that fund litigation such as Legal Aid, clinics and formerly the old Court Challenges Program. I do not agree that the plaintiffs need to approach “litigation funders” that, by their own rules and terms of reference, would not fund this case.
[38] Again, I do not think it fair that the plaintiffs should have to prove a negative. Where there is a prima facie possibility of funding (such as, say, availability of Legal Aid for the costs of funding a criminal defence to serious criminal charges), then it is reasonable to require a moving party to show that s/he has applied for Legal Aid and been refused a certificate. Where, as here, there is no basis to suppose that Legal Aid would be available, the court should not require a pointless application, thus engaging needlessly a decision-making process at a “litigation funder”. And, even where there may be some technical possibility that funding could be made available, a common sense approach should be brought to the due diligence required. For example, Legal Aid will sometimes provide “test case” funding for cases that would not otherwise qualify for legal aid. There is nothing about the plaintiffs’ claims in this case which would bring this case within the general understanding of a “test case”, and I see no purpose in requiring the plaintiffs to apply for, and for Legal Aid to decide, an application for test case funding for a claim that is not, on its face, a “test case”.
[39] In the circumstances of this case, there is no evidence that there is any “litigation funder” that might reasonably agree to fund the plaintiffs.
(c) Special Interest Groups and Fundraising
[40] This is not, on its face, a public interest case. I cannot conceive of a “public interest group” that would be interested in funding the plaintiffs’ claims. None was suggested during oral argument.
[41] Apparently there have been cases where individuals have been able to “crowd-fund” using the internet. Such evidence as there is of this practice is anecdotal. In the absence of evidence establishing “crowd-funding” or other broad public appeals as realistic ways of raising funds for private litigation, such as this case, I would not draw an inference against the plaintiffs for failing to try this method of raising money.
(d) The Proven Means of the Plaintiffs
[42] Leeza Karahalios has roughly $33,000 to $83,000 in real estate equity. George Karas has roughly $137,000 to $147,000 in real estate equity. Ted Lamprakos owns a house in Greece (which he describes as “modest”). It appears that Soula Lamprakos has a joint interest in a different home in Greece.
[43] I conclude that Leeza Karahalios, George Karas and Ted and Soula Lamprakos have between them equity of between $170,000 and $230,000, plus the equity that they have in Greek real estate. This may not be sufficient to fund all of the anticipated costs of the case, but it is substantial means. They cannot be said to be “impecunious”. Rather, they do not wish to hazard their assets on this litigation. That does not make them impecunious.
[44] I appreciate that the plaintiffs have given evidence that they cannot borrow further against the equity in their real estate, and cannot in any event service additional monthly debt costs. Assuming this evidence to be true, and assuming that it would not be reasonable to require the plaintiffs to liquidate their real estate to fund this litigation, it would be possible for the plaintiffs to pledge the equity in their real estate to secure their legal fees, either to their own counsel, or to a litigation funder. They have not proposed to do this or to make any contribution to the costs of this proceeding.
(e) Insufficient Evidence from Four of the Plaintiffs
[45] Only three of the plaintiffs have filed affidavits attesting to their means on this motion. I agree with the defendants that this is not satisfactory on a motion such as this. The plaintiffs are uniquely positioned to provide evidence of their means and they must do so with “robust particularity” including, in the circumstances of this case, direct evidence from each of them that is as “complete as possible”.
[46] Four of the plaintiffs have failed to file this evidence. I find that these four plaintiffs have failed to meet the evidentiary burden on them to establish their impecuniosity.
(f) Friends and Family
[47] There is no reason to believe that the plaintiffs have recourse to friends or family who could materially assist with their legal fees. In the circumstances of this case, where the central allegation is that the plaintiffs’ family business was destroyed by the fire and the ensuing litigation, I do not see a need for the plaintiffs to provide affirmative evidence of the means of their relatives and friends. In the absence of a foundation on which to suppose that there is someone connected to the plaintiffs who could fund the litigation, I would again not require the plaintiffs to prove a negative.
(g) Failure to account for Money Paid by LawPro
[48] The Squires action was settled for $800,000. Of this, $232,469.92 was paid to discharge a bank loan owed by the plaintiffs. The balance, $567,530.08, plus interest to a total of $675,525.66, was ordered paid to the plaintiffs by Ferguson J. at the conclusion of the LawPro action. In addition, LawPro had obtained an injunction and provided the court with an undertaking to pay damages. Ferguson J. ordered LawPro to pay a further $562,707.39 in damages stemming from the injunction. Thus, in addition to paying off the debt owed by the plaintiffs to their bank, LawPro has paid the plaintiffs a total of $1,238,233.05. This money was paid at a time when this lawsuit had been commenced but had been left in abeyance pending judgment in the LawPro action. Thus the existence of this lawsuit and the need to fund it was known to the plaintiffs at the time they received over $1.2 million from LawPro.
[49] The plaintiffs advise that the following amounts were distributed to the plaintiffs from funds paid by LawPro:
(a) Ted Lamprakos: $61,745.75
(b) James Karas: $61,400.43
(c) Leeza Mostefaoui: $46,524.82
(d) George Karas: $45,000.66
The plaintiffs have shown how $214,671.72 was distributed. I am not satisfied with the evidence of what happened to the $214,000 that came to the plaintiffs. I am also not satisfied with the evidence about what happened to the rest of the money, a total of $1,023,561.33. I was told that some of this money went for legal fees for the Squires Action ($320,000). I was told that some went to legal fees for the LawPro Action ($472,000 plus $42,000 for expert reports). And I was told that some of the money was paid to Tony Lazos to retire the second mortgage ($147,000). It was not explained to me why some allowance was not made to retain some proceeds for the purpose of prosecuting this proceeding. Nor was it explained to me why this topic was not discussed and resolved at the time that there was a pool of money available to finance the litigation. With respect, the Squires Action was settled, and should be taken to have resolved all financial claims existing up to the date of that settlement. The judgment of J.E. Ferguson J. should be taken to resolve the liability of LawPro to the plaintiffs for everything related to the LawPro proceedings, including the costs of those proceedings.
[50] The obligation to prove impecuniosity with “robust particularity” applies to an accounting of the funds received by the plaintiffs from the prior litigation. The plaintiffs have not discharged their burden in respect to this issue.
[51] This point is all the more trenchant in this case. LawPro has not fared well in the litigation. It settled the Squires Action for $800,000, and in addition will have had to pay its own legal costs and disbursements for those proceedings. Then it lost the LawPro Action and had to pay an additional $562,707 in damages pursuant to its undertaking as to damages, plus, of course, its own legal costs and disbursement for those proceedings. Now it is undertaking additional legal costs to defend these proceedings. It is entirely reasonable that LawPro should demand full particulars of what happened to all the money it has paid to the plaintiffs before being called upon to fund an advance payment of legal costs in these proceedings.
(ii) Merits of the Case
[52] A great deal of time was devoted to the role of Mr Tsoukalis in these proceedings. It was Mr Tsoukalis who came forward to LawPro with the allegations of arson against the plaintiffs. The plaintiffs say that Mr Tsoukalis’ credibility was so obviously deficient that it was not reasonable for LawPro to rely upon his statements. The plaintiffs also say that LawPro deliberately kept evidence casting doubt on Mr Tsoukalis’ credibility from police investigators, thus skewing the police investigation.
[53] As I indicated at the outset, it is not necessary for me to assess the merits, given my findings that the plaintiffs are not impecunious and there are no “special circumstances’ warranting an award of advance costs. I do note, however, that some of the ground to be covered in this case has been covered in the judgment of J.E. Ferguson J. Her Honour was immersed in the evidence of the case for seventeen days. J.E. Ferguson J.’s decision was written on the basis that further issues concerning the propriety of LawPro’s conduct (and the conduct of others related to LawPro’s conduct) would be addressed in the case at bar rather than in the case before Her Honour. In the unusual situation where this case was held in abeyance pending the decision by J.E. Ferguson J., and Her Honour left open questions for decision in this case, I would be inclined to the view that there remain triable issues that may have some merit. Further, I have already decided that the claims of negligent investigation should not be dismissed pursuant to R.21.[^12]
(iii) No “Special Circumstances”
[54] There are three general situations where the court may make an award of advance costs:
In litigation where the parties are in a dispute over a fund of money or assets where the advance of costs may be accounted for equitably in the final decision. These cases arise most often in family law and estate litigation where the advance on costs is probably an advance on money the claimant will be entitled to receive at the end of the case. These cases have no application to the case at bar.
Where legislation expressly authorizes the payment of costs in advance, such as certain claims under the Ontario Business Corporations Act. Such is not the situation in the case at bar.
In the “special circumstances” described by the Supreme Court of Canada in Okanagan Indian Band[^13] and in Little Sisters.[^14]
[55] There is not a great deal of authority on what may constitute “special circumstances” within the principles set out in Okanagan and Little Sisters. Walker J. has provided a list of possible factors which has found favour with other courts:
The case law suggests that the following factors demonstrate special circumstances:
(a) the potential effect of the litigation is widespread and significant;
(b) the outcome of the litigation would resolve continued legal uncertainty;
(c) the outcome of the litigation may reduce the need for related litigation, and thereby reduce private and public costs;
(d) the issue would not be resolved but for the litigation;
(e) the litigation involves scrutiny of government actions;
(f) determination of the issue is an urgent matter;
(g) the applicant was forced into the litigation or had no choice but to resort to litigation to assert their rights;
(h) one party controls all of the funds that are at issue in the litigation (e.g. trust and matrimonial litigation).[^15]
As indicated above, I see these motions as falling into three general categories, and I would place cases described by factor (h) in category 1 and not category 3, the rare “special circumstances” category contemplated by Okanagan. None of the other factors are either necessary or sufficient – rather, they are all matters that may be taken into account in weighing whether to exercise discretion to order advance costs. This weighing is not a matter of toting the factors, though, but rather, in weighing the circumstances of the case against the general principle that applies, as stated by the Supreme Court of Canada:
Quite unfortunately, financial constraints put potentially meritorious claims at risk every day. Faced with this dilemma, legislatures have offered some responses, although these may not address every situation. Legal aid programs remain underfunded and overwhelmed. Self-representation in courts is a growing phenomenon. Okanagan was not intended to resolve all these difficulties. The Court did not seek to create a parallel system of legal aid or a court-managed comprehensive program to supplement any of the other programs designed to assist various groups in taking legal action, and its decision should not be used to do so. The decision did not introduce a new financing method for self-appointed representatives of the public interest. This Court’s ratio in Okanagan applies only to those few situations where a court would be participating in an injustice – against the litigant personally and against the public generally – if it did not order advance costs to allow the litigants to proceed.[^16]
[56] I am unable to see any “special circumstances” in this case, other than, perhaps, the inequality of means between the plaintiffs and the defendants.[^17] This is a private action for malicious prosecution and negligent investigation and related claims. The damages claimed are $7 million, but the only obvious liquidated damages claim, at this juncture, is for legal costs spent to defend the criminal proceedings for about one year. Those proceedings were terminated prior to a preliminary inquiry. Damages claimed in respect to the LawPro claim are presumably subsumed in the judgment of Ferguson J. and the subsequent order of Ferguson J. for damages caused by the injunction. If the plaintiffs succeed there also could be an award of unliquidated damages. However it is difficult to see how the claims could approach anything remotely close to the $7 million claimed in the statement of claim.
[57] It is generally the case that someone charged with a criminal offence does not receive an award of legal costs if he prevails in the case. Neither is an accused person liable to the Crown for legal costs if that person is found guilty. It is, of course, arguable that it is unfair that a private person should face crippling legal bills to defend criminal proceedings. The remedy for that injustice, if it is thought to be an injustice, is well beyond the scope of these legal proceedings. Rather, the plaintiffs claim that they are entitled to damages because of tortious conduct by the defendants that led to the criminal prosecution against them.
[58] I fail to see a public interest in this case. It is a private dispute. Its resolution will not affect persons other than the parties to this case. While there may be some novelty to the allegations concerning negligent investigation, that does not change the nature of this case as a private dispute between the plaintiffs and the defendants over the events that led to the criminal charges against the plaintiffs. This motion was withdrawn as against Ontario, and the public interest dimension of any claim respecting police or prosecution conduct is not in issue as against the LawPro defendants.
[59] In my view, the case for advance costs is less compelling in the case at bar than it was in Little Sisters. In Little Sisters, the underlying dispute had been ongoing for many years between a bookstore and Canadian customs officials. At the heart of the bookstore’s claims lay allegations of discrimination on the basis of sexual orientation – a differential treatment on the basis of materials sent to a gay and lesbian bookstore and materials sent to other bookstores. There were allegations of intransigence on the part of customs officials. The underlying issues were of broad public interest. I do not see a similar public interest dimension in the case at bar.
Summary, Order and Costs
[60] I conclude that the plaintiffs have not established impecuniosity and have not established that there are “special circumstances” in this case that should lead the court to grant an order for a payment of advance costs by the defendants. The motion is dismissed. In accordance with the costs discussions at the time of oral argument, there shall be no costs of this motion.
[61] Counsel shall provide me with a revised timetable for the conduct of this action by January 31, 2017, or, failing agreement on a timetable, shall arrange a conference call with me to address timetabling issues.
D.L. Corbett J.
Released: December 31, 2016
CITATION: Karas v. Ontario, 2016 ONSC 8152
COURT FILE NO.: CV-04-277144-CM3
DATE: 20161231
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GEORGE KARAS et al. Plaintiffs
- and - ONTARIO et al. Defendants
DECISION
D.L. Corbett J.
Released: December 31, 2016
[^1]: Lawyers’ Professional Indemnity Company v. GETO Investments Limited, 2007 27756 (Ont. SCJ). [^2]: The precise claims against each defendant are set out at the beginning of the fresh thrice amended statement of claim. [^3]: Karas v. Ontario, 2013 ONSC 6053 (SCJ). [^4]: Courts of Justice Act, RSO 1990, c. C.43, s.131(1). British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] S.C.R. 371. [^5]: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] S.C.R. 371, para. 35. [^6]: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] S.C.R. 371, para. 36. [^7]: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] S.C.R. 371, para. 36. [^8]: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] S.C.R. 371, para. 40; Metrolinx v. Canadian Transportation Agency, 2010 FCA 45, 2010 F.C.A. 45, para. 10. [^9]: Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, para. 40. [^10]: Canada (procureur general) c. Al Telbani, 2012 FCA 188, 2012 F.C.A. 188, paras. 9-10. [^11]: Morton v. Canada (2005), 2005 6052 (ON SC), 75 O.R. (3d) 63 (S.C.J.), para. 32. [^12]: Karas v. Ontario, 2013 ONSC 6053 (SCJ). [^13]: British Columbia (Min. Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371. [^14]: Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 SCR 38. [^15]: Dish Networks LLC v. Rex, 2011 BCSC 1105, para. 69; rev’d on other grounds: 2012 BCCA 161. Followed in Douglas Lake Cattle Company v. Nicola Valley Fish and Game Club, 2015 BCSC 120, para. 45, per Ross J. [^16]: Little Sisters, para. 37. [^17]: This is not one of the factors listed in the quotation from Dish Networks, but it underlies any award of advance costs: the inability of one part to fund the litigation and the ability of the other party to do so.