British Columbia v. Adamson, 2017 BCSC 168

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia v. Adamson, 2017 BCSC 168 Date: 20170201 Docket: 16 0861 Registry: Victoria Between: Her Majesty The Queen in right of the Province of British Columbia, and The Attorney General of British Columbia Plaintiffs And Hugh Adamson, Dawna Ambers, Ollie Aux, Adam Baker, Michael (Magnus) Bjornson, Christine Brett, Shane Enns, Jorge Gomes, Russell Lloyd-Jones, Sean M.

Manley, Audrey Moffatt, Carl Montgomery, Rose Mullin, Kristel Oertel, AmanDa Paska, Ricky Perreault, Joseph Reville, Andrea Robinson, Vincent Robinson, Norman Ruble, Rathborne Smallwood, Doug Swait, William Wale, Mitchell Wallace, Jane Doe, John Doe and Other Unknown Persons Defendants Before: The Honourable Chief Justice Hinkson Corrected Judgment: The text of the judgment was corrected at paragraph 36 where changes were made on February 17, 2017; Supplementary Reasons to British Columbia v. Adamson , 2016 BCSC 1245 Reasons for Judgment on Costs Counsel for Plaintiffs: W. Milman and T.A.

Mason Counsel for Defendants: Adamson, Ambers, Bjornson, Brett, Gomes, Oertel, Mullin, Reville, A. Robinson, Ruble, Smallwood, Lattinore, Henning, Dan, Brett, Saari, Roy, Gabriel, Greenipes, Hawkings, Bridge, Ruble, Pongtacz, Lemay, Rees, Higgins, Swait, Prowse, Fortune, Mckinnon, Green, Elder, Emslie, Roseborough, Weavers, Swieringa, Speck, Wood, Balrov, McBee, Thacyk, Fyfe, Somerville, Grieve, and Balitti: C.J. Boies Parker and J.L. MacAdam Written Submissions Received: September 22, 2016 Place and Date of Judgment on Costs: Victoria, B.C.

February 1, 2017 Introduction [ 1 ] These proceedings were commenced by the plaintiffs on February 25, 2016. In their action, the plaintiffs alleged trespass and both public and private nuisance on the part of the named and unnamed defendants who had set up tents and other shelters on public property owned by Her Majesty the Queen in right of the Province of British Columbia (the “Province”) and located adjacent to the Victoria courthouse. [ 2 ] Prior to the hearing of the plaintiffs’ claims, the plaintiffs sought an interim injunction in March of 2016.

That application was dismissed, without prejudice to a further application for injunctive relief by the plaintiffs. [ 3 ] A second injunction application brought by the plaintiffs in June of 2016 was successful, to take effect as soon as new housing created by the Province became available. [ 4 ] On August 19, 2016 the plaintiffs filed a notice of discontinuance of these proceedings. [ 5 ] The defendants now seek their costs of these proceedings either as full indemnity costs, special costs or as party and party costs at 1.5 times Scale C of the Supreme Court Civil Rules , B.C.

Reg. 168/2009 [ Rules ] . [ 6 ] These reasons for judgment will address the issue of the defendants’ claim for costs.

Background [7] The Province is and was at all material times the owner of the lands and premises of the Victoria Law Courts at 850 BurdettAvenue, Victoria, British Columbia (the “Courthouse Property”). [8] From about November 2015 to August 2016, some of the defendants and others took up continuous shelter in tents and otherstructures on the eastern portion of the Courthouse Property (the “Encampment”). [9] On January 8, 2016, representatives from the Province read aloud, distributed and posted a notice at the Courthouse Propertyrequesting the occupants of the Encampment to leave the Courthouse Property.

Not all of the occupants of the Encampment did so. [10] On February 4, 2016, representatives of the Province read aloud, distributed and posted a notice at the Courthouse Propertyrequiring all camping at the Courthouse Property to cease and all tents and other personal property to be removed by no later thanFebruary 25, 2016.

Not all of the occupants of the Encampment did so. [11] On February 29, 2016, the plaintiffs filed the Notice of Civil Claim herein, together with an interim interlocutory injunctionapplication, asserting trespass as well as public and private nuisance by the occupants of the Encampment. [12] The first application for interim injunctive relief was heard on March 11, 14 and 15, 2016, and April 5, 2016. The interiminjunctive relief sought by the plaintiffs was dismissed for the reasons indexed as British Columbia v.

Adamson, 2016 BCSC 584. [13] A second interim injunction application was filed on June 3, 2016 and heard on June 27 and 28, 2016. In reasons indexed asBritish Columbia v. Adamson, 2016 BCSC 1245, the plaintiffs’ application was granted on the basis that the Encampment was unsafe forthose living there and for the neighbouring residents and businesses. The residents of the Encampment were ordered to leave theEncampment as soon as new housing created by the Province became available. [14] After the order came into effect and the site was emptied, the plaintiffs discontinued these proceedings.

Legal Principles and Authorities [15] Rule 9-8 addresses discontinuance of an action. Subrules 9-8(2) and (4) of the Rules provide:

(2) After a notice of trial is filed in an action, a plaintiff may discontinue the action in whole or in part against a defendant with theconsent of all parties of record or by leave of the court. …

(4) Subject to subrule (2), a person wholly discontinuing an action against a party or wholly withdrawing his or her response to civilclaim filed in response to a notice of civil claim of a party must pay the costs of that party to the date of service of the notice ofdiscontinuance or the notice of withdrawal, as the case may be, and if a plaintiff who is liable for costs under this subrule subsequentlybrings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to bestayed until the costs are paid. [Emphasis added.] [16] In Carter v.

Canada (Attorney General), 2015 SCC 5 [Carter], a case relied upon by the defendants in support of their claim forfull indemnity costs, the Supreme Court of Canada addressed the issue of costs in public interest litigation. In that case, counsel who hadagreed to act on a pro bono basis sought full indemnity for their services at the normal hourly rates that they would have charged clientswilling and able to pay them. [17] The Supreme Court of Canada accepted that the trial judge was correct in declining to apply the earlier decision of the Court inRodriguez v.

British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519. The Court found that ss. 241(

b) and 14of the Criminal Code, R.S.C. 1985, c. C-46, which prohibited a physician's assistance in terminating life, infringed a person’s rights tolife, liberty and security of the person as set out in s. 7 of the Charter, in a manner that was not in accordance with the principles offundamental justice. The Court concluded that the infringement was not justified under s. 1 of the Charter and held that the absoluteprohibition on physician-assisted death was not minimally impairing, reasoning that the risks associated with such a death could belimited through a carefully designed and monitored system of safeguards. [18] The Court held that the appropriate remedy was a declaration that ss. 241(

b) and 14 of the Criminal Code were void insofar asthey prohibited physician-assisted death for a competent adult person who (1) clearly consented to the termination of life; and (2) had agrievous and irremediable medical condition (including an illness, disease or disability) that caused enduring suffering intolerable to theindividual in the circumstances of his or her condition. [19] In addressing the claim for costs, the Court established new criteria for an award of full indemnity for costs.

The Courtacknowledged the appellants’ argument that where litigation raises a constitutional issue of high public interest, is beyond a party’smeans and is not conducted in an abusive or vexatious manner, parties will not be able to bring vital issues of importance to allCanadians before the courts without such awards. This type of barrier would be to the detriment of justice and other affected Canadians. [20] Referring to Little Sisters Book and Art Emporium v.

Canada (Commissioner of Customs and Revenue), 2007 SCC 2 atpara. 44, the Court pointed out, however, that "[c]ourts should not seek on their own to bring an alternative and extensive legal aidsystem into being."

[ 21 ] With that concern in mind, the Court considered that the decision of our Court of Appeal in Victoria (City) v. Adams , 2009 BCCA 563 [ Adams BCCA ], had set the threshold for an award of special costs too low. It reiterated that special costs are available only in “exceptional” circumstances. At paras. 138–141 of Carter , the Court held that: [138] Some reference to this Court's jurisprudence on advance costs may be helpful in refining the criteria for special costs on a full indemnity basis. This Court set the test for an award of advance costs in British Columbia (Minister of Forests) v.

Okanagan Indian Band , 2003 SCC 71 , [2003] 3 S.C.R. 371. LeBel J. identified three criteria necessary to justify that departure from the usual rule of costs: 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 facie meritorious; 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. [para. 40] [139] The Court elaborated on this test in Little Sisters , emphasizing that issues of public importance will not in themselves "automatically entitle a litigant to preferential treatment with respect to costs" (para. 35).

The standard is a high one: only "rare and exceptional" cases will warrant such treatment (para. 38). [140] In our view, with appropriate modifications, this test serves as a useful guide to the exercise of a judge's discretion on a motion for special costs in a case involving public interest litigants. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact.

Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding.

In those rare cases, it will be contrary to the interests of justice to ask the individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim. [141] Where these criteria are met, a court will have the discretion to depart from the usual rule on costs and award special costs. [Emphasis added.] [ 22 ] In Abbotsford (City) v. Shantz , 2016 BCSC 2437 [ Shantz ], a group of homeless individuals engaged in litigation with the City of Abbotsford, involving two proceedings heard together.

These individuals were defendants in one action and plaintiffs in the other. In B.C./Yukon Association of Drug War Survivors v. Abbotsford (City) , 2014 BCSC 1817 at para. 61 , aff’d on this point, 2015 BCCA 142 , the British Columbia/Yukon Association of Drug War Survivors (“DWS”) was granted public interest standing. [ 23 ] In Shantz , a declaration was issued pursuant to s. 52 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, permitting overnight stays in parks in the City of Abbotsford, limited to between 7:00 p.m. and 9:00 a.m. the following day, and declaring that ss. 14 and 15 of the City’s Consolidated Parks Bylaw and subsection 2.7(

d) of its Good Neighbour Bylaw , to the extent that they applied to the City's homeless and prohibited sleeping or being in a City park overnight or erecting a temporary shelter without permits, violated s. 7 of the Charter , were of no force or effect, and were not saved by s. 1 of the Charter . [ 24 ] Almost a year later, the homeless litigants sought costs in both actions against the City on a full indemnity basis as public interest litigants, or alternatively sought special costs against the City based upon the conduct of its employees.

In the further alternative, they sought an order for costs on an increased scale amounting to substantial indemnity on the basis that the litigation between the parties benefitted the public at large. [ 25 ] The City of Abbotsford opposed the application by the homeless and contended that it should recover its costs of the proceedings commenced against it, and that each party should bear its own costs in the action brought by the City. [ 26 ] At paras. 35 and 50–51 of Shantz , I concluded: [35] The second criterion referred to in Carter was established by Mr.

Shantz and DWS when it was determined that DWS had standing to bring its proceedings. In my reasons for judgment in this case indexed at 2014 BCSC 1817 at para. 61 , aff’d on this point, 2015 BCCA 142 , I found that the homeless individuals in the City should not and could not be expected to mount individual challenges to the City's legislative scheme and related actions on their own, and concluded that DWS was the only viable entity by which the City's legislative scheme and related actions could be challenged. While it is true that Mr.

Shantz could be said to have had a personal interest in the litigation, neither side has proposed that he face or receive a separate award of costs. I am prepared to ignore his limited personal interest for the purposes of assessing the entitlement to costs in both actions. … [50] While I commend the various counsel who assisted DWS and Mr. Shantz for their efforts and selflessness, I remind myself that with the possible exception of Ms.

Larkin, who is employed by a public interest group (although she devoted considerable unpaid and personal time to the endeavour), each undertook their role in these cases on a pro bono basis. They did so presumably with the expectation that their efforts would truly be service, meaning they would provide their professional legal skills voluntarily and without payment by those who were unable to afford them. [51] In my opinion, while these cases raised matters of public interest, they are the logical extension of the principles established in Adams BCSC and Adams BCCA .

While I accept that the achievement in Adams BCSC and Adams BCCA was truly exceptional, I am unable to accept that its extension in these cases meets the high standard set in Carter . Thus, I find that the first Carter criterion has not

been established. Discussion [ 27 ] The plaintiffs acknowledge that by discontinuing the action, they are liable to pay costs pursuant to R. 9-8(4) of the Rules . They submit that such costs are payable as party and party costs, and not as special costs. [ 28 ] The defendants contend that the costs to be assessed should be as public interest special costs on a full indemnity basis, as the test in Carter is satisfied in this case.

In the alternative, the defendants seek party and party costs at 1.5 times the value of costs at Scale C of Appendix B of the Rules , as permitted by s. 2(5) of Appendix B. [ 29 ] The issue to be determined then, given the effect of R. 9-8(4), is on what basis or upon which scale the defendants should recover their costs.

Full Indemnity Costs [ 30 ] The Carter criteria with respect to whether special costs for public interest litigants should be awarded on a full indemnity basis requires that (1) the case involve exceptional matters of public interest, meaning the issues must have a significant and widespread societal impact; and (2) the litigants have no “personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds” and it would not have been possible for them to “effectively pursue the litigation in question with private funding” (at para. 140). [ 31 ] Stephen Portman is employed by the Together Against Poverty Society (“TAPS”).

In his affidavit sworn September 14, 2016, Mr. Portman deposed in part that: 2. TAPS is the largest anti-poverty organization on Vancouver Island, specializing in legal advocacy services on behalf of low- income claimants. TAPS is a registered non-profit charitable organization. TAPS assists over 5000 people each year to overcome administrative legal disputes under provincial and federal regulatory regimes, in the areas of income assistance, disability, employment standards and tenancy.

Beyond face-to-face advocacy, TAPS also works to effect systems-level change through public legal education and broader public advocacy. … 8. Every effort was made by both myself and other staff from TAPS to support pro bono counsel with respect to the incredible amount of work that was necessary in preparing the defense of the residents.

Representation of such a large group of people living with a high level of complex communication barriers requires a sensitive and patient approach that is time consuming and burdensome for pro bono counsel and it was TAPS role to ease the administrative burden on counsel and their firm. In spite of our efforts, however, counsel spent many hours and many long days interviewing clients and witnesses, giving advice and seeking instructions from SIC residents. … 10.

All of the Encampment residents live in poverty and most certainly would not have been able to defend the injunction applications or the Province’s legal action as a whole without pro bono support, and yet it was very meaningful to these usually marginalized people to have legal representation and support. … 18. Victoria has seen very little in the way of direct investment in social housing from the provincial government for decades. I have had clients that have been living on the streets for years without a reasonable option for a home.

Since Farris took on representation of the Encampment residents we have seen direct and indirect investment in social housing totaling an approximate $86 million. We believe this is in large measure attributable to the legal challenge to the Province’s injunction application. This funding has translated into 714 units of housing and shelter space targeted specifically to the homeless that were not even being considered in this community 11 months ago. 19. We have three new buildings dedicated to permanent indoor homes. These are Mt.

Edwards (38 spaces), Super 8 (51 spaces, not yet operational), and Central Care Home (140 spaces). All of these are a direct response to the Encampment and the litigation around it. 20. We also have two transitional shelters dedicated to helping people make the important move from the street to the indoors. Choices (78 spaces) and My Place (40 spaces), are both also directly attributable to the Encampment and the legal action. [ 32 ] I accept this evidence and find that it satisfies the second criterion referred to in Carter .

I find, as was the case in Shantz , that the homeless individuals in these proceedings should not and could not have been expected to mount individual defences to the Province’s action on their own, and that their representation by counsel was the only viable means by which the Province’s action could be defended.

In my view, although not all of the defendants were represented by counsel, all of the defendants including those described in the style of cause as Jane Doe, John Doe and Other Unknown Persons, benefitted immensely from the efforts of counsel of record. [ 33 ] While it is true that many of the defendants could be said to have had a personal interest in the litigation, I find that the limited personal interest of those defendants does not detract from the public interest aspects of the litigation, and thus, in and of itself presents no bar to an award of special costs.

[34] I thus turn to the first criterion referred to in Carter: the nature of the public interest issues dealt with in this case. [35] As was the case in Shantz, while this case raised matters of public interest, they are the logical extension of the principlesestablished in Victoria (City) v. Adams, 2008 BCSC 1363 [Adams BCSC], rev’d in part, Adams BCCA. While I accepted there, and doaccept here, that the achievement in Adams BCSC and Adams BCCA was truly exceptional, I am unable to find that its extension in thiscase meets the high standard set in Carter.

Thus, I find that the first Carter criterion has not been established. [36] I therefore decline to award the defendants their costs on a full indemnity basis. Special Costs [37] Traditionally, special costs of less than full indemnity have been awarded in limited situations where the Carter criteria do notapply. [38] In Morton v.

British Columbia (Agriculture and Lands), 2009 BCSC 660, I considered an application for special costs, andobserved that: [10] To the extent that the provincial Crown was successful, it was on matters that were very much secondary in importance to thosewith respect to which they were unsuccessful.

I accept the submission that, for the purposes of costs in this case, there were numerousissues but only one "event", and that the petitioners succeeded in that event. [39] After considering some of the past jurisprudence from our Court of Appeal I summarized those authorities as follows in Morton: [20] In two cases, the British Columbia Court of Appeal considered awards of increased costs under the predecessor to ss. 2(4.1) and2(4.2): Rieta v. North American Air Travel Insurance Agents Ltd. (1998), (BC CA), 52 B.C.L.R. (3d) 114, 105B.C.A.C. 239 at paras. 40 & 50 [Rieta]; and Monenco Ltd. et al. v.

Commonwealth Insurance Co. et al., 1999 BCCA 129 , 1999BCCA 133, (sub nom. Monenco Ltd. v. Commonwealth Insurance Co.) 64 B.C.L.R. (3d) 307 at para. 11 [Monenco].

In these cases, theCourt found that to award increased costs due to “unusual circumstances” a court must consider the disparity in the actual costs and thoserecoverable under the normal tariffs; the complexity, difficulty, and special importance of the matter to the parties; and the specialimportance of the litigation in the development of the law. [40] I considered those factors and discussed an award of special costs as follows: [21] I am satisfied that in this case the disparity between the petitioners’ actual costs and those recoverable under the normal tariffstogether with the factors identified in Rieta and Monenco warrant an award of costs to the petitioners of more than the maximum of 1.5times the value of Scale C costs that would otherwise be permitted as increased costs.

I have reached this conclusion on the basis that thematter was both difficult and complex, and it was sufficiently important to the petitioners that they sought and obtained public intereststanding to litigate the matter. I also consider that the matter was of special importance in the development of the law. … [24] Special costs have also been awarded to even unsuccessful litigants in cases where a broader public interest beyond thepecuniary interests of the particular plaintiff or plaintiffs is engaged; see Barclay (Guardian ad litem of) v. British Columbia (AttorneyGeneral), 2006 BCCA 434, (sub nom.

Barclay (Guardian ad litem of) v.

British Columbia) 57 B.C.L.R. (4th) 63 [Barclay], and the casescited therein at para. 16. … [37] Because I am of the view that the maximum costs award I can make for increased costs, 150% of costs at Scale C of AppendixB to the Rules of Court, is insufficient to reflect the public interest nature of this case, but that full indemnity is not warranted, I awardthe petitioners 75% of their reasonable fees and disbursements. [41] I am satisfied that the case presently before me was indeed complex, and the applications for injunctive relief raised matters ofpublic interest beyond the pecuniary interests of the defendants.

Although the case did not proceed to trial, the two injunctionapplications together occupied five hearing days, based upon a total of 91 affidavits filed by the plaintiffs for the two hearings, and 65affidavits filed by the defendants for the two hearings. [42] The defendants were wholly successful on the first application for interim injunctive relief, but not on the second suchapplication. Nonetheless, the Province accommodated their housing needs and in fact began to do so even before the second applicationfor interim injunctive relief.

Both sides to this litigation referred in their submissions on the issue of costs to the decision of the OntarioDivisional Court in Broomer v. Ontario (Attorney General); Johnson v. Ontario (Attorney General), [2004] O.J. No. 2431 (Div. C.)[Broomer], the defendants to rely upon it, and the plaintiffs to distinguish it. [43] In Broomer, the appellants were all poor, underprivileged, and in two cases, disabled Ontarians who received social assistancefrom the Province of Ontario.

They were declared permanently disentitled to assistance in 2000 when they were convicted of offencesrelated to their benefits, pursuant to the Regulations of the Ontario Works Act. Their claims were vigorously defended by the provincialrespondents, but before the matter could be heard, a newly elected government repealed the lifetime ban Regulations. The parties thenentered into minutes of settlement resolving all issues favourably to the applicants, save for costs. The minutes provided the settlementwas made without prejudice to either party seeking costs in court. [44] Mr. Justice Ferrier and Mr.

Justice O'Connor held in Broomer that:

11 The respondents argue the applicants should not have their costs because they were not successful in the application. Again, the respondents' reasoning is flawed. Where one of the respondents, Attorney General of Ontario, undertakes

an act that obviates the necessity for continuation of the application, because the applicant has achieved what it wanted, that respondent cannot then argue that the applicants were not successful. The respondent government took away the opportunity for the applicants to win their case. The applicants had their entitlement to benefits restored, which was the end result they sought. The respondents cannot, in effect, pull the rug out from underneath their opponent by acceding to their position and then arguing that position had no merit. The applicants' position did have merit.

In amending the legislation, the government agreed it did. [ 45 ] At paras. 19–21, Ferrier and O’Connor JJ. concluded: 19 Although the Okanagan case dealt with a claim for interim costs to enable the respondent Indian Band to continue with the litigation, the conditions to be considered for an award in that case would be applicable to all cases of public interest litigation. At paragraph 40, LeBel J. summarizes his discussion of the criteria as follows: 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 facia meritorious; 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 resolves in previous cases. 20 In this case, these three conditions have clearly been met. That is, the applicants cannot afford to pay for the litigation, their claim was prima facia meritorious and the issues transcend the individual interests of the particular litigants, are of public importance, and have not been resolved in previous cases. Although this litigation did proceed despite the applicants' impecuniosity, it did so only through the public spirited generosity of their counsel.

As noted above, and in the Rogers, supra , and the Canadian Newspapers Co., supra , cases, there is public interest in encouraging experienced counsel to undertake Charter litigation of broad concern on a pro bono basis. This encouragement must take the form of the real possibility of receiving costs in appropriate cases that meet the criteria set out in Okanagan, supra . 21 For these reasons the Applicants shall have their costs. The applicants filed a bill of costs seeking partial indemnity costs in the sum of $308,926.84 including disbursements and GST.

The bill is 27 pages long and reveals in detail all steps taken from March 2002 to February 2004.

We agree with the submissions of the Applicants in their factum that considering the importance of the issues, the multiplicity of steps, the scope and complexity of the evidence, the extent of the examinations (fourteen volumes of transcripts) and the scope and complexity of the legal issues (revealed in a draft factum 49 pages long), the sum claimed is reasonable and appropriate. [Emphasis added.] [ 46 ] While the decision in Broomer predates that of the Supreme Court of Canada in Carter , I find that it has some parallels to the case before me, in that the litigation here played some role in persuading the Province to provide housing, addressing the reason many of the defendants and others gave for their presence at the Encampment. [ 47 ] The criteria for an award of special costs were discussed by Madam Justice Gropper in Westsea Construction Ltd. v. 0759553 B.C.

Ltd. , 2013 BCSC 1352 . There, at para. 73, Gropper J. observed, among other factors, that

a) the court must exercise restraint in awarding special costs;

b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order; …

f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a “bonus” or further compensation for that success. [ 48 ] As special costs must be awarded with restraint, I am unable to find that the defendants have demonstrated exceptional circumstances that would warrant an award of special costs. The assertion by the defendants that they were prepared to attempt to resolve their issues by negotiation with the Province is too simplistic to carry the issue.

The reality is that while the defendants enjoyed real success in acquiring some of their housing demands, the Province had the obligation to balance those demands against the interests of others in the area of the Encampment, and did not have sufficient housing available to meet the defendants’ needs when the Encampment was set up. [ 49 ] I do not consider that the plaintiffs misconducted themselves and see no reason to depart from the general rule that costs follow the event, and agree with Gropper J. that special costs should not be awarded to a successful party as a bonus or further compensation for that success.

I conclude that to award special costs in this case would be to provide a bonus to the defendants and I decline to do so. Party and Party Costs [ 50 ] The defendants’ final alternative argument with respect to costs is that they should be awarded party and party costs at 1.5 times the value of Scale C, pursuant to subsection 2(5) of Appendix B to the Rules . [ 51 ] That subsection states:

If, after it fixes the scale of costs applicable to a proceeding under subsection (1) or (4), the court finds that, as a result of unusual circumstances, an award of costs on that scale would be grossly inadequate or unjust , the court may order that the value for each unit allowed for that proceeding, or for any step in that proceeding, be 1.5 times the value that would otherwise apply to a unit in that scale under section 3 (1). [Emphasis added.] [ 52 ] Ms. Tiffany Webb is a legal assistant with the law firm that represented the defendants in these proceedings. In her affidavit sworn September 14, 2016, Ms.

Webb deposed that: 13. I am responsible for billing in the Victoria office and have run a pre-bill for the work associated with the Encampment. Catherine Boies Parker and Jasmine MacAdam are recorded as having spent 376 and 238 hours, respectively, on this matter from November 30, 2015 until the Province filed its Notice of Discontinuance. Additional time has been spent since then. Ms. Boies Parker’s hourly rate ranges between $385 and $415 and Ms. MacAdam’s between $315 and $345.

Calculated at counsel’s lowest hourly rates, the legal fees from November 30, 2016 (when counsel began recording their hours) until the date of the Notice of Discontinuance amount to $246,097.60, inclusive of taxes. Approximately $87,834.88 (inclusive of taxes) of that $246,097.60 is attributable to the Second Injunction Application, including associated applications for service and adjournment, and the application for a stay of the Fire Commissioner’s Order in McBee v. British Columbia (Fire Commissioner) , Victoria Action No. S162504. 14.

Attached to this affidavit and marked as Exhibit “J” is a draft Bill of Costs in this matter for the whole of the proceeding at Scale C amounting to $34,081.60 (inclusive of taxes). The draft Bill of Costs also values disbursements at $10,848.44 (inclusive of taxes). [ 53 ] In International Energy and Mineral Resources Investment (Hong Kong) Company Limited v.

Mosquito Consolidated Gold Mines Limited , 2012 BCSC 1475 , Madam Justice Fisher commented that: [23] The trigger for the exercise of discretion to award an increase in unit values under s. 2(5) of Appendix B requires unusual circumstances that would result in a grossly inadequate or unjust award of costs at the fixed scale. In Bajwa v British Columbia Veterinary Medical Assoc ., 2008 BCSC 905 , Davies J. held at paras. 72-73: [72] ... under s. 2(4.1) [now s. 2(5)], the concept of "unjustness" is linked to the concept of "gross inadequacy" of the application of the usual principles.

In my view, that linkage, coupled with the new requirement for a finding of "unusual circumstances" means that the fact that a cost award will not afford reasonable compensation for the costs actually incurred will not, without some unusual circumstance, be sufficient to ground an order for increased costs. [73] What constitutes "unusual circumstances" or an award that is "unjust or grossly inadequate" will of necessity remain a fact-based inquiry driven by the nature of the litigation and the conduct of the parties, and remains a determination in respect of which decisions under the old s. 7 will continue to offer assistance.

See also ICBC v. Patko [2009 BCSC 578] at para. 17. [24] Factors that may constitute unusual circumstances which justify increased costs include misconduct by the unsuccessful party, the serious nature of the allegations, the complexity or difficulty of the issues in the litigation, and the importance of the litigation to the parties or to the development of the law: see 380876 British Columbia Ltd. v Ron Perrick Law Corp. , 2009 BCSC 1209 at para 37 , and the cases cited therein.

These last two factors overlap with some of the factors that are considered in determining the appropriate scale of costs. [ 54 ] As I have already stated, I am satisfied that this case was indeed complex, and the applications for injunctive relief raised matters of public interest beyond the pecuniary interests of the defendants. As a result of the unusual circumstances upon which this case was litigated, I find that an award of costs under Scale C of Appendix B to the Rules would be grossly inadequate or unjust.

I find, therefore, that the defendants should recover one set of costs at 1.5 times the value of Scale C of Appendix B of the Rules. [ 55 ] The reasonableness of any such costs items and any associated disbursement claims will be determined by the Registrar in accordance with subrules 14-1(4) and (5) of the Rules . “The Honourable Chief Justice Hinkson”