Background
The plaintiff operates the Red Chris Mine in northwest British Columbia and this litigation arose as a result of the defendants, Rhoda Quock and the Klabona Keepers, blockading access to that mine. Red Chris successfully sought and obtained an injunction and enforcement order against the defendants. In that decision the Court noted that the defendants had previously been restrained from obstructing other resource development and had a history of failing to obey court orders in the absence of enforcement orders.
With respect to costs, the plaintiff argued that it should be entitled to an order for special costs based on the defendants’ behaviour. The defendants in turn argued that each party should bear its own costs or, alternatively, the plaintiff’s costs award should be set off against the costs of a change of venue application in which the defendants were successful. The defendants also submitted that if costs were to be awarded they should be at a lesser scale than claimed by the plaintiff.
Court’s decision
The Court noted that the defendants had claimed during the hearing that they were without funds, but cited a decision of the British Columbia Court of Appeal that cautioned against using financial hardship as a basis for departing from the usual rule with respect to costs.
The Court also noted that while the plaintiff’s application was “nominally interlocutory”, it was unlikely that further steps would be taken in the action since the plaintiff’s primary goal had been to obtain an injunction so police would respond to the blockade. Having achieved this goal, the Court opined that it was unlikely that any further “cause” or event in the litigation would be litigated in order to determine the relative success of the parties.
The Court noted that while the defendants were successful in their application for change of venue, the plaintiff had not opposed this order and, in any event, the end result was the plaintiff successfully obtaining the interim injunction it sought.
The defendants also claimed to be public interest litigants as the dispute raised issues of their Aboriginal rights and “matters related to the appropriate distribution of resources and lands in the province”. They argued for both parties to bear their own costs on this basis. However, this argument was rejected by the Court, which held that the defendants’ illegal blockade of the plaintiff’s activities was not in the public interest and that was a consideration only relevant to the costs of public interest litigation rather than self-help remedies like blockades.
The Court further rejected an argument that an order for costs could “act as a powerful deterrent to the assertion of fundamental Aboriginal rights by other parties in the future”. It held that the defendants had not taken any steps to assert their Aboriginal rights through lawful means and instead chose to resort to blockades, which they knew were illegal based on their past experience with blockades and resulting court orders.
On the other hand, the Court was not persuaded by the plaintiff that special costs were appropriate either. It found that the plaintiff had failed to provide evidence in support of the alleged complexity of the issues addressed in their application for interlocutory relief and did not find the matter to be of more than ordinary difficulty. As a result, the Court ordered costs to be recoverable at the ordinary scale.
Finally, the Court rejected the plaintiff’s request that the costs be awarded as a fixed sum payable forthwith, finding that a registrar would be far better equipped to make such a determination.