Grants of Advance Costs Remain Elusive.

The Quebec legal community will likely be familiar by now with the constitutional challenge launched by the judges of the Superior Court against art. 35 of the Code of Civil Procedure, which establishes the financial range for the jurisdiction of the Court of Quebec.

After the judges, as plaintiffs, themselves instituted proceedings in the Superior Court, Quebec’s Minister of Justice submitted reference questions to the Court of Appeal relating to the constitutionality of art. 35, as well as of the rule that deference is owed to decisions of the Court of Quebec when they are being reviewed by judges of the Superior Court. Both questions ask specifically whether the provision and the rule are compatible with section 96 of the Constitution Act, 1867.

The Chief Justice, Associate Chief Justice and Assistant Chief Justice of the Superior Court (the “Judges”) intervened in the Court of Appeal to continue to advance their position, in the face of the position taken by both the Attorney General of Quebec and the Attorney General of Canada that art. 35 and the rule of deference on appeal from the Court of Quebec are compatible with section 96.

Before the Chief Justice of the Court of Appeal, the Judges then made an application for a provision for costs, asking for their professional fees and all relevant costs of their intervention to be assumed by both Attorneys General.

Provisional or interim costs orders are governed by the three-part test set out in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, and reiterated more recently in R. v. Caron, 2011 SCC 5:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima faciemeritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

In brief reasons, Chief Justice Duval Hesler dismissed the Judges’ application: Juges en chef, juge en chef associé et juge en chef adjointe de la Cour supérieure du Québec c. Procureure générale du Québec, 2018 QCCA 654.

The Chief Justice began by noting that the three requirements of the test for a provision for costs are absolute and that all three must be met in order for such an order to be granted. In that context, she wrote, “[t]hough the second and third requirements for granting a provision for costs in constitutional matters are met without difficulty here, it is clear that the applicants are not genuinely unable to pay for the litigation” (para. 4).

While she noted the unusual context in which the Judges had made their request – a reference rather than an adversarial proceeding, in which there are not formally “winners” or “losers”, and even more notably one in which both attorneys general are advancing the same position – the Chief Justice did not appear to think that these circumstances mattered to the application of the three criteria from Okanagan Indian Band.

While at first blush the result of the motion may seem logical (in that, both in the absence of evidence of inability to pay and on the basis of common sense, it is difficult to conceive that the Judges as a group could not fund their own intervention), the Chief Justice’s dismissal of the Judges’ application is actually somewhat problematic in its particular context.

The fact that both attorneys general are defending the law before the Court of Appeal means that, without the Judges’ intervention, the Court could have been faced with an absence of adversarial debate on the two questions before it. In similar (and admittedly rare) circumstances, courts hearing references have named amicus curiae to represent the legal perspective that would otherwise be missing, so as to have a full picture of the issues before them. An amicus curiae would normally be paid by one or both of the attorneys general participating in the case.

In the current reference, however, the Chief Justice has not named an amicus, forcing the Judges to assume the advancement of the position contrary to both attorneys general on their own dime.

It is true that had the Minister of Justice not sent these reference questions to the Court of Appeal, the matter would have proceeded before the Superior Court with the Judges as plaintiffs, where they would most probably have had to assume all of their professional fees in addition to being liable for costs to the Attorney General of Quebec in the event of a loss. Nevertheless, if the Government chooses to deal with a contentious legal issue by asking an opinion directly of the Court of Appeal – essentially taking control of the direction and nature of the litigation and, with the Attorney General of Canada, creating the problematic absence of an adversarial debate – it may be inappropriate to expect the Judges to bear the same cost burden in significantly different circumstances.

That said, the real responsibility for this situation actually seems to lie with the inflexibility of the Okanagan Indian Band test for provisional cost orders. Because all three prongs of the test must be met for such an order to be rendered, and because there is no room for judges to exercise discretion to order provisional costs on the basis of additional considerations, the Chief Justice was essentially bound to apply the test as she had. Ultimately, this case illustrates that a rigid and absolute test for special costs may at times work against the interests of justice, and will perhaps require re-evaluation by the Supreme Court if the appropriate circumstances ever arise before it.