TOWARDS A COSTS JURISPRUDENCE IN PUBLIC INTEREST LITIGATION

Abstract

In this article the authors contend that the most critical variable affecting the long-term health of public interest litigation in Canada is “whether, and to what extent, we are committed to developing a coherent and distinct costs jurisprudence in public interest litigation.” In British Columbia (Minister of Forests) v. Okanagan Indian Band, the authors suggest that the Supreme Court of Canada has recently taken a significant step in this direction. This decision exhorts trial courts to take “public benefit” and “access to justice” concerns into account when crafting costs orders in public interest cases. While the decision breaks important new ground, the authors contend that it can also be seen as a logical elaboration of established Canadian costs law principles, and one that is consistent with existing and emerging public interest costs jurisprudence in the United States and various Commonwealth jurisdictions. The article also grapples with a variety of doctrinal issues that await judicial consideration in this context including attendant procedural reforms, challenges associated with defining “public interest litigation”, and the applicability of public interest costs principles in litigation involving private parties.