Barclay (Guardian ad litem of) v. British Columbia (Attorney General)

Barclay (Guardian ad litem of) v. British Columbia (Attorney General)

The public interest exception to the ordinary costs rule does not apply in this case because the litigation, though involving public policy implications, was not a highly exceptional case of public importance given the pending Supreme Court of Canada determination in Auton and the private exigencies driving the...

Source-derived case information.

Citation
2006 BCCA 434
Parties
Respondent / Plaintiff (appellant on Cross Appeal): Patrick Barclay (Infant); Guardian Ad Litem / Plaintiff (appellant on Cross Appeal): Alexander Barclay; Appellant / Defendant (respondent on Cross Appeal): Her Majesty the Queen in Right of the Province of British Columbia (Attorney General)
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
4 October 2006
Procedural Posture
Charter Challenge (s.15 Equality) Concerning Funding for Autism Treatment / Appeal From Costs Order After Dismissal of Action Following Supreme Court of Canada Decision; Court of Appeal Hearing (appeal and Cross Appeal)
Outcome
Appeal allowed; cross-appeal dismissed; trial judge's award of special costs to respondents set aside; no costs awarded in this Court; discretion to deny costs to the Crown at trial was available.
Legal Topics
Section 15 Equality, Remedies, Special Costs, Public Interest Exception to Costs, Crown Proceedings Act S.11
Source Language
english
Constitutional Law Administrative Law Costs and Litigation Funding Public Interest Litigation Section 15 Equality Remedies Special Costs Public Interest Exception to Costs +1 more

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Parties

Patrick Barclay (Infant)

Respondent / Plaintiff (appellant on Cross Appeal)

Alexander Barclay

Guardian Ad Litem / Plaintiff (appellant on Cross Appeal)

Her Majesty the Queen in Right of the Province of British Columbia (Attorney General)

Appellant / Defendant (respondent on Cross Appeal)

Procedural Posture

Charter Challenge (s.15 Equality) Concerning Funding for Autism Treatment / Appeal From Costs Order After Dismissal of Action Following Supreme Court of Canada Decision; Court of Appeal Hearing (appeal and Cross Appeal)

Legal Issues

  1. 1 Whether unsuccessful plaintiffs in public interest Charter litigation can be awarded special costs
  2. 2 Whether s.11(1)(a) of the Crown Proceedings Act precludes deviation from private-party costs rules
  3. 3 Whether the facts here constitute a "highly exceptional" public importance case warranting special costs

Ratio Decidendi

The public interest exception to the ordinary costs rule does not apply in this case because the litigation, though involving public policy implications, was not a highly exceptional case of public importance given the pending Supreme Court of Canada determination in Auton and the private exigencies driving the timing; the trial judge's award of special costs to the unsuccessful respondents was therefore reversed and set aside. The Court further exercised discretion to order no costs to the Crown in the trial court and no costs in this Court.

Court Disposition

Appeal allowed; cross-appeal dismissed; trial judge's award of special costs to respondents set aside; no costs awarded in this Court; discretion to deny costs to the Crown at trial was available.

Orders

  • Allow appeal and set aside the trial judge's award of special costs to the respondents
  • Dismiss the respondents' cross-appeal