The Implications of Okanagan Indian Band

for Public Interest Litigants:

A Strategic Discussion Paper

 

 

 

 

 

Professor Chris Tollefson

University of Victoria
Faculty of Law

 

 

 

 

 

 

 

 

 

 

 

 

 

Commissioned by the

Court Challenges Program of Canada

November 17, 2005

 

 

 

 

Introduction

Early in 2005, the CCPC put out a call for proposals to conduct a study aimed at identifying and analyzing the implications of the SCC’s groundbreaking decision in Okanagan Indian Band v. Minister of Forests (B.C.) ("Okanagan"). In this decision the Court affirms the existence of broad inherent judicial discretion to award costs in advance (also known as "interim costs") to public interest litigants, and elaborates a three-step test to be employed by courts in exercising this discretion.

Work on this project commenced in June 2005 on three fronts: 1. analyzing how the decision has been judicially interpreted; 2. securing input from public interest lawyers and activists on the decision and its implications; and 3. identifying strategic opportunities for public interest lawyers and activists to build on this important new precedent drawing on the foregoing research. The structure of the paper that follows tracks and elaborates the work that was done in each of these areas.

While, to date Okanagan has been referred to in approximately fifty decisions, only about fifteen of these are what might be considered public interest cases. Based on these early cases, it appears as if most courts are inclined to construe the Okanagan test strictly. Okanagan-style funding orders have only been made in five public interest cases, and in two of these the order was later reversed on appeal. A recurring theme in cases where costs were denied has been the applicant’s failure to demonstrate "impecuniosity" and "special circumstances" akin to those prevailing on the facts of Okanagan. The Okanagan decision has also been the subject of academic commentary. So far, it has met with a mixed reception with some scholars applauding the decision, and others warning that it will open the door to judicial excesses.

To augment this research, we canvassed the views of public interest lawyers and activists. Through consultations with CCP staff and others active in public interest law, my research associate and I identified a pool of over 30 potential interviewees. Each of these individuals was contacted and provided with an interview script to allow them to contemplate how they would respond to the questions posed. Approximately half of the individuals contacted were later interviewed. Among the respondents in this group were lawyers active in equality rights litigation, poverty law, public interest environmental law, and aboriginal rights litigation, as well as legal scholars and social justice activists.

These interviews reveal a rather modest level of familiarity with the Okanagan decision within the public interest legal community at large; though conversely quite a high level of interest in exploring the potential to deploy the decision to enhance access to justice. While our respondents applauded the decision, most anticipated that lower courts would apply it cautiously and conservatively. Many also expressed concern about the prospect of funding applicants being forced to compete for funds with one another in the judicial setting, and at the challenge of having to respond to "ability to pay" and "fiscal tradeoff" arguments that Crown lawyers are likely to make when faced with costs applications of this kind.

In the final component of the paper, drawing on our doctrinal, scholarly and interview-based research, we focus on two overarching strategic goals: how to clarify and consolidate Okanagan; and how to leverage Okanagan as a means of securing broader judicial costs law reform.

Part I: Okanagan Indian Band: Towards a New Costs Jurisprudence in Public Interest Cases?

 

The SCC’s decision in Okanagan

In late 2003, the Supreme Court of Canada rendered what to date is by far its most significant decision on costs in public interest litigation. Indeed some have argued that in terms of public interest jurisprudence the ultimate importance of the decision may well rival that of the Court’s landmark decisions dealing with public interest standing rendered in the late 1970s and early 1980s.

In rendering this decision, Lebel J. (writing for the majority) emphasized the need to be mindful of the special characteristics of public interest litigation that distinguish it, as a class, from private litigation. Traditionally, in private litigation the overriding objective of costs awards has been to indemnify the successful party. However, in public interest litigation, the Court opined that different considerations apply and should inform how judicial discretion to award costs is exercised. In this regard, it singled out two factors as being particularly important: ensuring that ordinary citizens have access to the courts and recognizing the broad public benefits often associated with litigation of this kind.

The Okanagan case arose out of long-running dispute between several native bands and the federal and provincial governments over title to forestlands that the bands claimed were within their traditional unceded territory. Matters came to head when the bands commenced logging on the lands in question, without the permission of the provincial Ministry of Forests, ostensibly to secure lumber to build much-needed on-reserve housing. When the Ministry sought an injunction to halt the logging, the bands defended by asserting aboriginal title. Ultimately, when the case was set down for trial, the bands applied for an order requiring the federal and provincial governments to pay their legal costs in advance. Without such an order, they claimed that they would be unable to defend the case that their lawyers estimated could easily cost in excess of eight hundred thousand dollars. While the trial judge declined to make such an order, his decision was overturned by the BC Court of Appeal on the basis that the order sought was justified both by the importance of the issues at stake in the litigation and the bands’ impecunious circumstances.

The Supreme Court of Canada affirmed the Court of Appeal’s funding order. And in so doing, to the surprise of many observers, it seized on the opportunity presented by the case to pronounce generally on the principles that should be applied when courts are called upon to award costs in public interest litigation. According to Lebel J., in public interest cases - such as the one at bar — when courts are called upon to consider whether to award interim costs they must decide whether the circumstances of the case are "special enough" to merit the unusual measure of ordering that costs be paid in advance. To establish this entitlement, the applicant must demonstrate that

1. it genuinely cannot afford to pay for the litigation and that there is no other realistic option for bringing the issues to trial;

2. its claim is prima facie meritorious; and

3. the issues raised by the case are of public importance and have not been resolved in previous cases

Even where an applicant meets all three arms of the test, the Court cautions that an interim costs award is not automatic; a residual judicial discretion not to deny such an order remains where to do so otherwise would be contrary to the interests of justice. To illustrate, the Court suggests that this might arise where such an order would be unfair to private litigants "caught in the crossfire" of the dispute.

The framework and principles articulated in Okanagan provide reason for optimism that we are seeing significant movement towards a more predictable, coherent and favourable costs jurisprudence in public interest litigation; a goal that is closely tied to the long-term health of public interest law in Canada. But, as we shall see, while Okanagan sets the stage for the emergence of such a jurisprudence it by no means assures its ultimate realization.

Contrary to the predictions of some legal observers, far from opening the floodgates to a torrent of interim costs claims in the two years since the Supreme Court rendered its decision in Okanagan, the ensuing jurisprudence has amounted to little more than a trickle. In the public interest context, applications for interim costs relying on Okanagan have only been made in about a dozen cases, and to date the success rate has been modest at best. By far the most important litigation to date involves the Little Sisters bookstore, a case in which it now appears that the Supreme Court of Canada will revisit the principles it set out in Okanagan.

Little Sisters v Customs and Revenue Canada (Little Sisters No. 2)

For well over a decade Little Sisters Book and Art Emporium ("Little Sisters"), one of Canada’s leading gay and lesbian bookstores, has been embroiled in a dispute with Canada Customs. The origins of this dispute date back to the early 1990s, when Little Sisters sued Customs in connection with the seizure and detention of materials that Customs deemed were obscene.

The bookstore, a for-profit corporation owned by its two principals, claimed that the legislation under which the seizures were made, and the manner in which the law was being applied by Customs, infringed its freedom of expression and constituted unlawful discrimination based on sexual orientation. Ultimately, the Supreme Court of Canada held that the bookstore’s expression and equality rights had been infringed but refrained from striking down the impugned law or granting some other form of "structured" Charter remedy on the ground that Customs had "addressed the institutional and administrative problems" that had provoked the litigation.

In 2004, the matter returned to court. This time, Little Sisters contended that Customs was continuing to engage in practices that the courts had ordered it to cease almost a decade earlier. In addition, the new lawsuit sought to overturn Customs’ decisions to ban new four books on obscenity grounds, and included a challenge to the definition of "obscenity" enunciated by the SCC in the Butler case. The lawsuit sought declaratory and injunctive relief, as well as damages.

Little Sisters embarked on a fundraising campaign to support this new litigation, but it was only able to raise about $40,000, scarcely a down-payment on its lawyer’s fees that were projected to exceed 1.1 million dollars. As a result, in early 1994, the bookstore applied to Bennett J. of the BC Supreme Court for an interim costs order. In support of this application, the bookstore submitted financial statements that showed that it typically operated on a break-even basis after salaries and business expenses.

In the result, Bennett J. held that Little Sisters had met the requirements set out in Okanagan to qualify for interim costs both with respect to Custom’s decision to seize the four books in question and the question of whether Customs had addressed the systemic problems identified in the earlier litigation. She declined, however, to order interim costs for its proposed constitutional challenge to the Butler definition of "obscenity" on the basis that this was an issue that had been addressed in several relatively recent Supreme Court of Canada opinions.

On appeal Bennett J.’s decision was unanimously overturned. Applying the Okanagan test, the BC Court of Appeal held that while Little Sisters had established that its claim was prima facie meritorious, she had erred in concluding it had met the other two arms of the test. In dealing with the impecuniosity issue, the Court opined that "if the decision in Okanagan Indian Band is to be extended to a for-profit organization, or indeed even to a public interest organization, it must be demonstrated that there are public policy considerations that make this expansion appropriate". According to the Court, the trial judge had failed to provide analysis sufficient to conclude either that Little Sisters could not genuinely afford to pay for the litigation or that it had met the first arm of the Okanagan test. In its view, the bookstore’s inability to fund the litigation was largely due to the breadth of the claims it had chosen to pursue.

The Appeal Court also concluded that Little Sisters had failed to meet the third arm of the Okanagan test. In its view, there was no compelling public interest in funding litigation that addressed the question of "how efficiently Customs reacted to the ruling in Little Sisters #1". Nor had Little Sisters shown that this litigation was "special enough" to justify the exceptional order sought when assessed either relative to the circumstances in the Okanagan case or by its very nature as a public interest case. The Appeal Court also noted that the plaintiff was claiming monetary damages observing that "public money should not be spent on a matter that could result in a significant award in favour of the defendant".

In its application for leave to appeal to the Supreme Court of Canada, Little Sisters claims that a key issue of national importance concerns "how impecunious a litigant must be in order to qualify" under the Okanagan test and whether and when a corporate body would ever qualify. It argues that the Court of Appeal erred in positing that awarding advance costs to a "for-profit" entity would entail an extension of the Okanagan test. In its view, impecuniosity is a relative concept that demands a close examination of the financial circumstances of the applicant along with the costs of litigation. As part of this inquiry, it claims that the Court failed to appreciate that this was not a case that realistically could be mounted on a pro bono or contingency fee basis even though the lawsuit included a claim for damages.

The position of the Crown is that the nature and ambit of the impecuniosity test is the only issue of national importance raised by the Appeal Court’s decision. However, in its submission, leave should not be granted on this issue because the Court’s decision ultimately did not turn on the bookstore’s status as a for-profit enterprise but rather on the sweeping manner in which it chose to frame its claim.

With the case now bound for the Supreme Court of Canada, it would appear that various public interest organizations will be giving careful consideration to seeking intervener status. In addition to the impecuniosity issue discussed above, the pending hearing may well also provide an opportunity for interveners to address a variety of other issues left unresolved in Okanagan that are addressed in Part IV of this paper.

Other Judicial Applications of Okanagan in the Public Interest Context

Traditionally, advance costs awards have only been available in two classes of cases: matrimonial property litigation (as a means of ensuring that a spouse, usually the wife, is able to pursue her claim to family assets) and in certain trust, bankruptcy and corporate cases (in order "to avoid unfairness by enabling impecunious litigants to pursue meritorious claims with which they would not otherwise be able to proceed"). To date the vast majority of cases in which Okanagan has been cited fall into these two "traditional" categories.

The following discussion focuses on cases falling outside of these categories. In this "other" category are a rather diverse assortment of cases including funding claims brought in aboriginal, immigration and poverty law contexts. For the most part, as will be seen, this case law to date has done little to break new ground or build upon the Supreme Court’s ruling.

The largest number of Okanagan funding applications have arisen in the aboriginal law context. The most notable of these to date is one that was initially made while the Okanagan case was awaiting hearing before the Supreme Court of Canada. In this case, Tsilhqot'in Nation v. Canada (Attorney General), funding was advanced to support an ongoing title claim by a native band in the Chilcotin area of British Columbia, a case that is now at trial. The only other successful funding application is in R. v Fournier a prosecution involving several First Nations defendants accused of fraudulently selling native status cards. In this case, the accused led evidence that their legal defence would cost $35,000, only 50% of which was approved for coverage under the Ontario legal aid tariff. The Court concluded that the applicants had satisfied the Okanagan test and ordered funding to cover the remaining balance.

In the two other cases to date, funding has been denied in large measure due to judicial concerns about the adequacy of the evidence relating to impecuniosity. In Ochapowace Indian Band v. Saskatchewan (Minister of Justice), the applicant was appealing a ruling that it had failed to remit GST. Claiming it had already expended $500,000 on legal fees, the band asserted it could not afford to pursue the appeal unless the federal government was ordered to pay its legal costs. This application was dismissed on the basis that the band had failed to establish that it was impecunious, and that it had not adduced evidence concerning the cost of the appeal. Similar concerns about the adequacy of the evidence of impecuniosity played a determinative role in Mocreebec Council of the Cree Nation c. Québec (Procureur général). In this case, the Court held that the applicant had not persuaded it that it lacked the necessary financial resources to litigate the case nor that it had exhausted other avenues for securing the desired funding.

In the immigration law area, two applications for funding under Okanagan have been made both of which were ultimately unsuccessful. In Canada (Minister of Citizenship and Immigration) v. Seifert, an alleged war criminal facing deportation sought funding for his legal defence in Canada, and for his lawyer to take commission evidence abroad. The trial judge denied the former funding but did order that the federal government pay for costs associated with commission evidence. This ruling was later overturned by the Federal Court of Appeal. It held that Siefert had not established he was impecunious (due to having substantial equity in real property) nor had he met the public importance arm of Okanagan. Another immigration case in which advance funding was denied is Re: Charkaoui. This case involved a challenge to the ongoing detention of the applicant as a suspected member of the Al-Quaeda. Charkoui qualified for legal aid but chose instead to retain lawyers who did not take legal aid cases. His claim was complex and involved allegations of abuse of process by immigration authorities. Applying Okanagan, the federal trial court concluded that his claim failed on the impecuniosity and public importance tests.

The only case in the poverty law context to invoke Okanagan to date is Broomer v. Ontario (Attorney General). In this case, Broomer and two other individuals challenged a provincial government decision declaring them to be permanently barred from receiving social assistance. Their case was taken on pro bono and pursued until, with a change of government, the Attorney General was instructed to settle the case in their favour. At this juncture, counsel for the plaintiffs applied to recover their costs relying on Okanagan. While recognizing that this was a retrospective application of the Okanagan, the court observed that the challenge could only have proceeded through the "pro bono intervention of lawyers experienced in this area of law" and that it was therefore "appropriate to award costs to lawyers acting in this capacity in order to encourage them to continue taking on cases of this nature". Applying Okanagan, the Court proceeded to hold that the applicants had successfully met the three-fold test and made the order sought.

Overview of the post-Okanagan caselaw to date

On the basis of this case law survey, several preliminary observations are worth making. The first is that contrary to concerns evinced both in judicial and academic circles there appears to be little evidence that Okanagan-style funding applications will soon overwhelm judicial or governmental resources. To date, the judicial record has been a highly cautious one closely attuned to the perceived need to limit application of the decision to exceptional cases. Indeed, in many of the cases, it would appear that this cautious approach is quite justified. In relatively few cases so far have litigants mounted claims that are sufficiently comprehensive and persuasive to merit funding under the test elaborated in Okanagan. A common stumbling block for applicants has been the impecuniosity requirement that, in my view, quite appropriately requires litigants to develop a detailed brief based on full disclosure of all relevant financial circumstances relating both the organization and the proposed case.

Secondly, with a few exceptions, there is little evidence to indicate that funding applicants, in attempting to meet the public importance test, have been particularly creative in terms of marshalling evidence or constructing novel arguments. In other words, to be satisfied that a case is "special enough" to deserve funding, it is clear that courts will require more than conclusory statements that a case is exceptional in terms of public importance or social benefit; they will demand evidence.

Finally, apart from the low rate of take-up by public interest litigants likely the most worrisome post-Okanagan-related development is the BCCA’s decision in Little Sisters. As discussed in Part IV, in a variety of areas, the Court of Appeal’s reasons create uncertainty about, or appears to conflict with the Supreme Court’s decision in Okanagan.

Part III: Perspectives of Public Interest Practitioners on Okanagan

As noted in the Introduction, one of our research priorities was to canvass the perspective of public interest practitioners involved in various areas of legal practice. The practitioners who were interviewed for this project included litigators working in a variety of areas of public interest practice including poverty law, equality rights, environmental law and aboriginal law. Each was interviewed for between 30 and 60 minutes using an interview script found at Appendix A.

The interviews traversed a number of access to justice and Okanagan-related areas. While all of our interviewees were familiar with the Okanagan case, only two had been involved in litigation in which the case had been argued. In both of these instances, it is instructive to note that the decision was not relied on as a basis for seeking advanced costs but rather more generally for its useful discussion of costs law principles in public interest litigation.

Most pressing access to justice/costs issues

Our respondents offered somewhat varying opinions when asked to identify the most pressing access to justice/costs-related issues for public interest litigants. For those public interest environmental litigators, the specter of being liable for an adverse costs award topped the list of access to justice concerns. In contrast, for those involved in aboriginal, poverty or equality rights litigation, the dominant access to justice concern was more basic: the difficulty of finding and paying for legal representation. One respondent noted that this problem was particularly pronounced where the claim was still at the trial level. According to this respondent, finding pro bono counsel got progressively easier the higher the case proceeded through the appellate process. All of our respondents agreed that the Okanagan decision had tremendous potential both as a direct precedent for advance funding and as a basis for a leveraging more innovative and coherent judicial decision-making in public interest costs cases.

Public importance and benefit

A key area addressed in our interviews concerned how an applicant for advance costs tackle the challenge of establishing persuading a court of the public importance and benefits associated with the litigation going ahead. This issue is relevant both in terms of meeting the threshold requirement of showing that the litigation falls within the "public interest" category, and in terms of satisfying the third arm of the Okanagan test.

In generic terms, the broad social benefits associated with public interest litigation are well articulated in an article published some twenty years ago by Anand and Scott. These benefits include promoting access to justice and the rule of law, protecting public rights and enhancing the quality and accountability of administrative and judicial decision-making. Several respondents also pointed out that win or lose, public interest litigation often triggers positive changes in government law or policy. And, as several respondents emphasized, public interest litigation often provides a highly efficient way to achieve these various goals. This said, a key challenge for public interest litigants seeking funding under Okanagan will be to persuade courts of the public importance and benefits associated with funding the particular cause or claim they are seeking to advance.

There was general agreement that moving the general to the specific — in other words, characterizing and quantifying in a case-specific way public benefits and importance — is a much steeper challenge. And as one respondent noted, this can be particularly problematic given the interest that a litigant might have in not tipping its hand as to what it perceives to be the ultimate strategic benefit or goal in pursuing the case. Accordingly, there was a broad consensus about the need for funding applicants to think creatively about ways to adduce evidence about the breadth and nature of the interests and values served by having the litigation proceed.

Relevance of the Scope of the Claim to the Impecuniosity Test

This was a question we canvassed with our respondents in consequence of the BCCA’s observations on this issue in Little Sisters (No. 2). Our respondents were virtually unanimous in voicing concern about the dangers of allowing courts to deny relief based on their assessment that the claim was overly broad or ambitious. Objections to the approach adopted by the BCCA tended to fall into one of two categories: that this imposed an implicit fetter on discretion of a litigant’s right to frame their claim (and the corollary concern that it opened the door to judicial micromanagement); and that such an approach failed to appreciate that broad, systemic claims were a defining feature of public interest litigation.

Another concern that was voiced arises from the fact that cases tend to be "scoped-down" as the litigation proceeds and the viability of the various claims that are made can be assessed in light of evidence that emerges through the discovery process. Because Okanagan applications occur at the outset of litigation, it was suggested that early judicial determination that a claim is overly broad could deny a plaintiff the opportunity to fully explore and develop its claim.

 

 

Relevance of Fiscal Priority Arguments

The BCCA’s decision in Little Sisters (No. 2) has also raised the specter that in applying Okanagan courts will be called on to weigh the implications of funding the case versus competing taxpayer and government fiscal priorities. As with the scoping issue just discussed, our respondents viewed this prospect with concern, if not alarm. Overall, the consensus of our respondents was that the appropriate approach for courts to adopt when responding to arguments of this kind is that they are irrelevant. A variety of rationales were offered in support of this conclusion. These included the cost, complexity and speculation such arguments would introduce into the funding application process, and the daunting difficulties public interest litigants would confront in responding to such submissions.

Institutional competence was also raised. Several respondents questioned whether courts were equipped or inclined to assess governmental balance sheets with a view to determining whether the Crown can afford to fund proposed litigation or to assess whether dollars would be better spent on other priorities. In this regard, one respondent noted that, in the collective bargaining context, interest arbitrators eschew consideration of ability to pay arguments raised by employers for precisely these reasons.

Several respondents also observed that the issue of fiscal priority is one that is being grappled with in other public interest contexts. In Auton, for example, the SCC has recently dismissed claims under ss. 7 and 15 of the Charter aimed at forcing governments to fund all medically required treatment for autism patients on the basis that current legislation does not recognize this right. Underlying this decision is a strong deference to government’s right to determine spending priorities. However, as one respondent pointed out, it is one thing for governments to argue that courts should decline to impose new funding obligations on government through Charter interpretation; it is something quite different for government to be resisting funding obligations that are already legally recognized (i.e. albeit by the courts under the Okanagan decision) on the basis that it has other, more pressing priorities.

Leveraging Okanagan

A final area that was canvassed in our interviews concerned the relationship between Okanagan and the broader goal of developing a more predictable, coherent and favourable public interest costs jurisprudence. Intriguingly, the manner and degree to which our respondents identified as a priority using Okanagan as leverage for broader judicial costs law reform strongly correlated to their area of practice.

The public interest environmental lawyers we interviewed were of the view that the potential for mounting successful funding applications under Okanagan for many of their existing clients was somewhat constrained due to the availability of pro bono litigation services provided by several public interest law firms such as Sierra Legal and CELA. For these practitioners the most pressing access to justice concern in relation to costs was the ever-present risk their clients face of incurring liability adverse costs awards; a risk significantly heightened by the frequent presence of private (usually corporate) third parties in litigation of this type. Experience has shown that when private third parties successfully defend environmental test case litigation they often are their awarded costs whereas, for a variety of reasons, governments are not. For public interest litigators working in this area, the public benefit and access to justice language in Okanagan is thus seen as new ammunition in a long-running battle to secure protection for their clients from costs liability.

Equality rights litigators brought quite a different perspective to bear. According to respondents working in this area, the most formidable access to justice issue is securing legal services. Funding to support litigation of this kind tends to be scarcer and more modest than in other public interest settings. As a result, engagement in litigation has tended to occur at the appellate level as interveners, a status that normally renders them ineligible to either recover costs or incur adverse costs liability. As several respondents noted, however, the downside of the intervener model is its reactive nature; a feature that tends to restrict the ability of litigants to choose their battles and exercise control over how cases are framed and developed. Therefore, for several of the equality rights litigators we spoke to the longer term strategic benefit of Okanagan lies in its potential to create a more robust and creative climate for equality rights litigation; a climate that could allow for more diverse and proactive litigation strategies to be pursued.

Part IV: Strategizing for Change: Consolidating and Leveraging Okanagan

In strategizing around Okanagan, I would argue that two objectives are paramount: consolidating its value both as a precedent and as a way of thinking about public interest law; and deploying the decision to leverage broader public interest law reforms.

Perhaps not unexpectedly, courts have been in no rush to embrace Okanagan. More surprising, however, is that neither have public interest litigants. Thus, while there are relatively few compelling public interest cases in which Okanagan has been argued, neither are there an abundance of cases in which courts have sought to restrict or constrain its application. Because of the fledgling status of the post-Okanagan caselaw, it is therefore something of surprise that the Supreme Court has granted leave in Little Sisters.

Based on our research, I would argue that there are four issues that deserve close attention by public interest lawyers concerned about consolidating Okanagan. These include: the ambit of the decision; the relationship between impecuniosity test and the scope of the case; demonstrating public importance and benefit; and responding to fiscal priority arguments. After offering some observations on each of these issues, I will conclude by offering some observations on the means and prospects of leveraging Okanagan to achieve broader public interest cost law reforms.

Consolidating Okanagan

1. The Ambit Issue

Without a doubt, a key threshold priority is to confirm the intended ambit of the decision in Okanagan. The immediate reason that this has become a priority is, of course, the view expressed by the B.C. Court of Appeal in Little Sisters (No. 2) that "…if the decision in Okanagan Indian Band is to be extended to a for-profit organization, or indeed even to a public interest organization, it must be demonstrated that there are public policy considerations that make this expansion appropriate". (emphasis added) Given Lebel J.’s detailed discussion of access to justice in Okanagan it is difficult to fathom the basis for these comments, at least as they relate to public interest litigants. While it seems beyond argument, therefore, that the comments of the Court of Appeal are ill-founded it would be unwise to assume that the question of standing or ambit under Okanagan is by any means fully resolved.

I would argue that in cases that can properly be characterized as public interest litigation, the identity of the party pursuing the claim (whether individual, corporate, for-profit or non-profit) should not be a bar to advanced funding. As Carolyn McCool has argued, it is a mistake to regard public interest litigation as litigation in which the plaintiff lacks a "personal, proprietary or pecuniary interest" in the outcome. She illustrates this point by reference to Native Women’s Ass’n of Canada v. Canada: a case in which NWAC sought a declaration that the federal government’s decision to fund male-dominated aboriginal organizations in constitutional negotiations preceding the Charlottetown Accord violated the Charter. In her words:

Both NWAC and its individual member constituents had personal, proprietary and pecuniary interests in the outcome of the constitutional debate, as well as similar interests in the outcome of the litigation itself. That does not diminish the public interest significance of the litigation or the significance of the issues that were at stake.

In its conceptualization of public interest litigation outlined in Part I, the Supreme Court of Canada avoids fastening upon the identity of the litigant, choosing instead to define public interest litigation in terms of the implications of the litigation in terms of dual metrics of access to justice and public benefit. The Court of Appeal’s decision in Little Sisters (No. 2) represents a serious challenge to this approach, a challenge public interest litigants should not ignore.

To this end, when the matter proceeds to the SCC, public interest interveners should be prepared to argue that the Court of Appeal reasons in Little Sisters (No. 2) are inconsistent with Okanagan in this respect. Further, and as a corollary of this proposition, they should submit that the impecuniosity inquiry mandated by the first arm of the Okanagan test should be approached in a much more flexible and case-specific basis than was adopted by the BCCA in Little Sisters (No. 2). Such an approach would leave open the possibility that a variety of litigants, apart from individuals and non-profits, could potentially seek funding under Okanagan, including small businesses or proprietorships such as Little Sisters, co-operative enterprises, unions and other associations. That all such entities would prima facie have standing to seek funding under Okanagan would not, of course, determine the issue of whether they can genuinely afford to pursue the litigation. As such, this impecuniosity inquiry (discussed in more detail below) would involve a weighing of a variety of case-specific factors: including the applicant’s financial means, their ability to raise funds and efforts taken to secure legal representation on a pro bono or reduced-fee basis.

2. The Impecuniosity Test and the Scoping Issue

In virtually all of our interviews, this was an issue that provoked strong opinions. Many respondents voiced concern that linking these issues would undermine their ability properly represent their client’s interests and penalize litigation that sought to challenge broad-based systemic practices. These concerns are not without substance. Allowing trial courts to second-guess how counsel have chosen to litigate a case with a view to determining whether advance funding should be provided is a worrisome prospect. As a general rule, therefore, I would argue that courts should resist this temptation save in very exceptional cases. And, even in those cases where there are proper grounds to conclude that the litigation could be pursued in much more economical fashion without compromising access to justice or the public benefits associated with the case, I would argue that a court should not necessarily conclude that the litigant has failed the impecuniosity arm of the test.

Nonetheless, it seems unlikely that in applying Okanagan courts will ultimately uphold the principle that a litigant’s framing of the case is irrelevant to a determination as to whether the case deserves advance funding. Among other things, from a judicial perspective such a principle is likely to be seen as an unjustifiable fetter on judicial discretion to deny funding to a claimant who otherwise meets the Okanagan test but is proposing to litigate the issues in a manner that ignores legitimate concerns about judicial economy.

However, to concede that courts should have discretion to consider the scope of the claim when applying the Okanagan does not mean that they should necessarily exercise this discretion as part of the impecuniosity test. The problem with assessing the appropriateness of how a claim has been scoped in relation to the impecuniosity test is that it mixes two distinct questions: 1. the capacity of the applicant to litigate the case and 2. whether the claim as scoped is overbroad. I would argue that the latter issue is more appropriately considered under the third arm of the Okanagan test: namely "public benefit". It is under this arm of the test that a fair balancing of the costs and benefits of funding the proposed litigation (and the alternative of funding some portion of that litigation) can be properly assessed.

Of course, where a court determines that there is public benefit in funding only some portion of the litigation as opposed to the whole claim, this would raise in turn the question of whether the applicant can genuinely afford to litigate the component of the litigation that the court decides meets the public benefit arm of the test. For this reason, I would argue that in applying the three arms of the Okanagan test, it would make sense for the court to consider the impecuniosity arm as the final stage of its analysis. Approached in this fashion, it would then be open for the litigant to make submissions on, and for the court to consider, the impecuniosity issue both in relation to the case as framed as well as in relation to particular components of the claim.

3. Demonstrating Public Importance and Benefit

Our research suggests that in many of the Okanagan funding applications to date the evidence filed and submissions made to justify the order sought in terms of public importance and benefit have been somewhat wanting. In Okanagan, the court makes it clear that to secure a funding order it will not suffice to argue simply because the case raises issues of public importance that it should be funded. As Lebel J. observes, public interest cases almost by definition are "special" in this regard; accordingly, the test in Okanagan is designed to determine whether the circumstances of the litigation have additional features that make it "special enough" to justify the extraordinary measure of being funded in advance.

Given the evident reluctance of courts to order advance funding on the basis of conclusory statements by counsel or clients about the far-reaching implications or public benefits associated with the case, it seems clear that funding applicants will need to adduce evidence to support their submissions. Optimally, therefore, this would take the form of a comprehensive legal brief detailing the nature of the interests at stake in the litigation, and the social benefits associated with judicial consideration of the issues proposed to be litigated. Such a brief should include, where available, government and/or scholarly studies that address in a quantitative manner the dimensions of the issues to be litigated, a chronology of the history of efforts made to advance the cause or claim through other channels (bureaucratic, political etc), and the novelty and "ripeness" of the legal issues proposed to be litigated.

In the United States, this style of brief -- now commonly employed in the US Supreme Court -- has become known as the "Brandeis Brief" in recognition of Louis Brandeis (later a US Supreme Court justice) who pioneered its use in Muller v. Oregon a 1908 case concerning the impact of long working hours on women. In Canada, the interventions filed by many public interest interventions in our Supreme Court closely resemble this style of brief; indeed LEAF has been singled out for recognition in terms of the quality of submissions in this regard.

It is one thing, of course, to develop such a brief in the context of ongoing litigation. It is quite another to prepare such a brief at the outset of the litigation. Indeed, arguably, part of the purpose of securing advance funding by means of an Okanagan application is to secure resources that will allow the applicant to develop a brief of this kind. Moreover, as one respondent has observed, the kind of disclosure contemplated by such a brief in terms of the ultimate goals and perceived benefits associated with pursuing litigation may, at times, be at odds with the need to maintain client confidentiality.

Potentially, one way to address the resource demands imposed by preparing such a brief would be for the Court Challenges Program to allocate a portion of its budget each year to support the development of Brandeis-style briefs in aid of Okanagan applications. To anticipate the argument that the litigation could proceed in any event with additional support from CCP, the CCP could stipulate that receipt of funding under this program would render the applicant ineligible to apply for further support from the CCP for the proposed litigation.

4. Responding to Fiscal Priority Arguments

A troubling and important issue on the horizon - not grappled with directly in Okanagan — concerns the manner and extent to which governments, in responding to funding applications, should be entitled to rely on arguments premised on the impact of funding the proposed litigation on the public purse generally, or on other funding priorities. As discussed in Part III, our respondents were uniformly of the view that courts should decline to entertain such submissions. A variety of rationales were offered in support of this position including the complexity, cost and speculation that such arguments would introduce into the Okanagan application process; the unfairness associated with asking public interest litigants to respond to such arguments; and concerns about the appropriateness of courts as a venue for resolving arguments of this kind.

In my view, these factors provide a compelling case for seeking to establish as a general principle that courts should not embark on an open-ended inquiry into the impact of funding being sought on the public purse generally or on the funding of other policy priorities. In advancing this position, however, public interest litigants should underscore that this does not imply that courts should or must eschew assessing the benefit of the litigation from a taxpayers’ perspective. This distinction is, in my view, important. Inviting courts to offer an assessment of the case standing in the shoes of Treasury Board is quite different from asking them to assess whether on balance, based on the public benefits and importance of the case as identified by the applicant, the case is "special enough" as a species of public interest litigation to justify public funding.

Leveraging Okanagan

One of the more intriguing findings of our research is that for many public interest lawyers, Okanagan is as significant in terms of its potential for serving as a basis for the development of a more predictable, coherent, and favourable public interest costs jurisprudence as it is for offering the more tangible prospect of securing costs in advance.

To some extent, of course, prospects for leveraging Okanagan in this direction depend on the outcome of efforts aimed at ‘consolidating’ the decision. If the funding procedure it elaborates becomes mired in controversy or is perceived as unworkable, its instrumental value as a leveraging vehicle will also suffer. Recognizing this, in my view, the opportunities to build on the foundation that Okanagan has laid are significant.

Let us reprise, for a moment, just how far the Supreme Court goes in Okanagan. In this decision, for the first time we see the Court explicitly recognizing not only the value of access to justice but also the existence of a judicial responsibility to promote this ideal even over the objections of government. Prior to Okanagan, to the extent that courts perceived that this duty existed, it was seen as largely procedural in nature (i.e. reforming standing rules). Under Okanagan this duty has now taken on a significant substantive dimension (i.e. imposing funding requirements). Moreover, it is a duty that courts must be ready to discharge early enough in the litigation process to ensure that otherwise meritorious public interest claims are not abandoned due to lack of funds.

In a sense, one could say that the heavy lifting has already been done; that what remains to be ‘leveraged’ are corollaries or logical extensions of the broad approach contemplated in Okanagan. Given the strong substantive commitment in Okanagan to access to justice for public interest litigants, I would therefore argue that those interested in leveraging Okanagan should focus their efforts on elaborating its procedural implications for trial courts.

This is a task that is left somewhat unfinished in Okanagan. While the Court does elaborate a three-step test that ostensibly ‘sets the bar’ for public interest litigants seeking advance costs, the decision is not entirely clear about who is eligible to seek such relief (i.e. who is a ‘public interest litigant’), nor what further steps, if any, a court should take if it decides not to make the order sought. I have offered some doctrinal reflections on this former question (what I have called the "ambit" issue) earlier in this Part. And, in fairness, the Court’s failure to address this latter issue is understandable in that it did not arise on the facts of the case.

I would see a strategy of leveraging Okanagan from a procedural perspective as being directed to securing recognition for two related procedural principles: first, that courts should as a general practice give serious consideration to making "alternative" costs orders at the outset of litigation in public interest cases; and second, that when a court denies an Okanagan costs application, it should be required to consider whether some other form of "alternative" costs orders should be made.

The notion that in public interest cases it makes sense to deal with costs issues up-front is at the heart of Okanagan and has been a principle that public interest lawyers have advocated for several decades. Securing a judicial ruling at this early stage as to costs allows a public interest litigant to know the rules of engagement and plan accordingly. Particularly for public interest litigants that would otherwise potentially be facing costs liability if the litigation does not succeed on the merits, securing some measure of certainty as the nature of risk they are incurring is a compelling access to justice issue.

Accordingly, I would argue that in public interest cases it should routinely be the practice that courts entertain preliminary submissions as to costs. Building on Okanagan, this procedure would be triggered by an application filed by the putative ‘public interest’ litigant that has commenced the suit. Procedurally, as in Okanagan, the applicant would initially need to demonstrate that the case at bar can properly be characterized as "public interest litigation". In keeping with Okanagan, in determining this issue the court should employ a broad, purposive approach. As such, rather than limiting this category to claims brought by litigants with no "direct personal, proprietary or pecuniary" interest in the outcome of the case, the court should consider whether the applicant has demonstrated that the litigation raises access to justice concerns the resolution of which are of public importance or will yield a public benefit.

Assuming the case can properly be characterized as public interest litigation at this juncture, if the applicant is seeking advance funding under Okanagan the next stage of the analysis would entail consideration of whether the case is "special enough" to merit an award of interim costs. At this stage, the role of a trial court would be to apply the three-fold test set out above. Applying Okanagan, if the applicant meets this test, and the trial court concludes that such an order is consistent with the interests of justice, a funding order should be made.

In many cases, however, the applicant will either decide not to pursue an application for advance costs (due to having secured pro bono counsel or for other reasons) or will have failed to meet the three-fold test elaborated in Okanagan. In either of these scenarios, I would argue that the analysis in Okanagan logically contemplates that courts should embark upon a further inquiry. This inquiry would focus on whether, given the access to justice and public importance and/or benefits associated with the case, an alternative order as to costs would be appropriate.

From a public interest perspective, a key benefit of this approach would be that it would require courts to engage in a more nuanced analysis of access to justice and public benefit/importance than is currently contemplated under the binary Okanagan test. As such, courts would be obliged to contemplate, based on the specific circumstances of the case before them, what form of order as to costs would be most appropriate in the circumstances. Elsewhere I have outlined some of the alternative costs orders that should be considered at this juncture. Potential orders that could be made would include: an order designating the litigation as being subject to a ‘one-way costs regime’ (immunizing the applicant from an adverse costs award while preserving its right to recover costs if successful); an order designating the litigation as being subject to a ‘no-way costs regime’ (under which parties would bear their own costs); or an order providing the applicant recover its costs in any event in the cause. To take account of the particular circumstances of the case, such a designation could be final or conditional. Moreover, such orders could be stipulated to apply to the litigation in its entirety or to selected issues or parties.

Conclusion

In Okanagan, the Supreme Court of Canada has broken new ground providing public interest litigants with the opportunity both to consolidate and build upon a precedential foundation that offers the potential for sustaining a new and potentially more diverse generation of public interest litigation. The challenge for public interest advocates is to recognize and take advantage of this opportunity while it still beckons.