A Wrong Turn Can Lead to the Right Destination: The SCC Gives the Green Light to Public Interest Litigation Funding in R v Caron

On February 4, 2011, the Supreme Court of Canada (“SCC”) reasserted its support for interim costs in relation to public interest litigation in R v Caron, 2011 SCC 5. In this case, the SCC had to determine for the first time whether a superior court could grant interim costs in favour of litigants participating in proceedings before a provincial court. It also had to determine whether the respondent, Mr. Gilles Caron, qualified for interim costs. This seemingly straightforward case was complicated by two red herrings.

The Red Herrings

First, a matter of constitutional importance was raised by Caron in his defence of a traffic offence. In December 2003, he was charged with the regulatory offence of failure to make a left turn safely. Caron argued that the proceedings were a nullity because the court documents were uniquely in English and he has a right to use French in “proceedings before the courts” of Alberta pursuant to the North-West Territories Act, RSC 1886, c 50, and the Royal Proclamation of 1869. In making this argument, he challenged the constitutionality of the Alberta Languages Act, RSA 2000, c L-6, on the basis that it purported to take away his French language rights. The Crown argued that French language rights in Alberta was settled by the SCC in the decisions of R v Mercure, [1988] 1 SCR 234, and R v Paquettee, [1990] 2 SCR 1103. However, the lower courts agreed with Caron that the issue at stake was not answered by those decisions.

Second, the Crown argued that the Alberta Court of Queen’s Bench had no jurisdiction to order interim costs to Caron on the basis that the traffic offence proceedings were before a provincial court. Even if the superior court had jurisdiction, the Crown added that it was improper for it to grant interim costs to Caron. The latter had been granted costs after eighteen months of litigation had stuttered by, draining him of his finances. Interim costs were granted by the Court of Queen’s Bench so that Caron could litigate his constitutional challenge.

Standing Up For Public Interest Litigation Funding

On the first issue, the SCC held that a superior court could grant interim costs in relation to proceedings before a provincial court. Binnie J., writing for the unanimous SCC, stated that the superior court’s inherent jurisdiction was plenary and that it was within this wide jurisdiction that such an award could be made. Further, it is appropriate to exercise this wide jurisdiction where “the inferior tribunals are powerless to act and it is essential to avoid an injustice that action be taken.”

In relation to the second issue, the SCC held that it was proper for the Court of Queen’s Bench to grant interim costs based on the precedent in British Columbia (Minister of Forests) v Okanagan Indian Band, [2003] 3 SCR 371, and Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), [2007] 1 SCR 38 [Little Sisters]. According those decisions, public interest litigation funding can be granted in special circumstances where “the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.” Binnie J., quoted the following excerpt from Little Sisters to reinforce the narrow group of cases that will qualify for public interest litigation funding:

the injustice that would arise if the application is not granted must relate both to the individual applicant and to the public at large.  This means that a litigant whose case, however compelling it may be, is of interest only to the litigant will be denied an advance costs award.  It does not mean, however, that every case of interest to the public will satisfy the test.

Access to justice, while it is a concern of the legal system, cannot alone determine which litigants receive public interest litigation funding. As Binnie J. recognized in his judgment, it is up to the government to determine how the public purse should be allocated. The exception to this general rule of thumb is where, as Binnie J. put it, “the absence of public funding would work a serious injustice to the public interest.”

In this case, Caron satisfied the three-part test established in Okanagan for public interest funding. First, he genuinely cannot afford to fund his constitutional challenge and there is no other realistic option for bringing the issues to trial. Second, his claim regarding minority language rights is prima facie meritorious. Finally, the constitutional challenge transcends Caron’s individual interest in his traffic offence and is of public importance. If Caron is successful, then Alberta will be required to re-enact its laws in both official languages. As well, previous SCC decisions relied upon by the Crown did not settle the issue of whether French language rights were abrogated.

A Progressive Decision

This progressive decision marks a breakthrough for public interest litigation funding and advances access to justice generally. Interim costs are no longer restricted to superior court proceedings. Furthermore, superior courts can order interim costs for proceedings in an inferior court.

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