IN THE SUPREME COURT OF BRITISH COLUMBIA
Morton v. British Columbia (Agriculture and Lands),
2009 BCSC 660
Morton, Pacific Coast Wild Salmon Society, Wilderness Tourism Association,
Southern Area (E) Gillnetters Association,
and Fishing Vessel Owners’ Association Of British Columbia
Agriculture and Lands, The Attorney General of British Columbia
on Behalf of The Province Of British Columbia,
and Marine Harvest Canada Inc.
Before: The Honourable Mr. Justice Hinkson
Reasons for Judgment
Counsel for the Petitioners
Gregory J. McDade, Q.C.
Counsel for the Respondents Minister of Agriculture and Lands and the Attorney General of British Columbia
Nancy E. Brown
Cory Bargen (A/S)
Counsel for the Respondent Marine Harvest Canada Inc.
Christopher Harvey, Q.C.
 On February 9, 2009, I delivered Reasons for Judgment in this matter which are indexed at 2009 BCSC 136 (the “Reasons”). In the Reasons, I held that the fish which are reared in finfish farms on the coast of British Columbia fall under the jurisdiction of Parliament under s. 91(12) of the Constitution Act, 1867, and that the purpose and legal effect of the specific provincial legislation other than ss. 13(5) and 14 of the B.C. Fisheries Act, R.S.B.C. 1996, c. 149 [the B.C. Fisheries Act], except as it relates to marine plants, was the management and regulation of a fishery.
 In the result, I found that the petitioners had demonstrated that the impugned provincial legislation, other than ss. 13(5) and 14 of the B.C. Fisheries Act, was ultra vires the provincial Crown and thus invalid. I ordered that the present provincial regulatory scheme with respect to finfish farming in British Columbia would continue for a further 12 months, to permit the Federal Government to enact legislation for the regulation of finfish farming, and dismissed various corollary relief sought by the petitioners.
 As costs were not sought by the petitioners in their petition, the Provincial Government respondents (the “provincial Crown”) argue that the petitioners thus should not be awarded any. I do not agree, and all parties agreed that I have the discretion to make an order as to costs. Indeed I invited the parties to make any submissions that they wished with respect to costs in writing, and I have received submissions from all parties as to costs.
Positions of the Parties
 The petitioners argued that they enjoyed substantial success, and thus should recover their costs. They argued that the circumstances of the case and the public interest in the issues that it raised justify an order for full indemnity as special costs under Rules 57(1), (9) and (12) of the Rules of Court, B.C. Reg. 221/90. In the alternative, the plaintiffs argued that they should be awarded increased costs pursuant to s. 2(4.1) of Appendix B to the Rules of Court, or in the further alternative, party and party costs at Scale C of Appendix B to the Rules of Court.
 The provincial Crown argued that costs are always discretionary, that success in these proceedings was divided, and that in the result it could not be said that the provincial Crown did not also enjoy significant success given that I affirmed the power of the Minister of Agriculture and Lands to issue aquaculture licences and land tenures for aquaculture purposes. The provincial Crown argued that each party should bear its own costs, but also made submissions in the alternative with respect to the type of costs that should be awarded, if costs were indeed to be awarded.
 The respondent, Marine Harvest Canada Inc. (“MHC”) opposed the petitioners’ application for costs, arguing that it was successful in resisting the relief sought against it, and took the position that the petitioners should pay its costs at the same levels sought by the petitioners.
a) Which Party or Parties enjoyed Success in these Proceedings?
 It is my view that the petitioners enjoyed considerable success in these proceedings. I do not consider that their failure with respect to the validity of the legislation that I declined to find ultra vires can detract from their success on what was clearly the main issue between them and the provincial Crown: the province’s power to manage and regulate aquaculture.
 Both the petitioners and the provincial Crown filed considerable material and advanced complex and extensive arguments. The material and arguments were necessary given the interplay between the various relevant and often overlapping doctrines that must be considered when a constitutional challenge respecting legislation is brought.
 The provincial Crown challenged the petitioners’ standing to bring their petition, the wording of their Constitutional Questions, and the applicability of the various doctrines relied upon by the petitioners. They also advanced doctrinal arguments in response to the petitioners, that the petitioners were obliged to respond to.
 To the extent that the provincial Crown was successful, it was on matters that were very much secondary in importance to those with respect to which they were unsuccessful. I accept the submission that, for the purposes of costs in this case, there were numerous issues but only one “event”, and that the petitioners succeeded in that event.
 The role of MHC was much more limited than that of the petitioners or the provincial Crown, but the petitioners’ choice to include it as a respondent compelled its participation. I consider that without the presence of a British Columbia-based fish farm, the petitioners’ ability to fully argue their case would have been compromised. Despite the fact that the petitioners failed to obtain the relief sought against MHC, I conclude that its involvement was necessary as a result of the need to focus the case on a real and existing fish farm operation.
 MHC should therefore recover its costs in the proceedings. I consider that as between the main parties, the unsuccessful side should bear the costs of the involvement of the fish farm. Consequently MHC should recover those costs from the provincial Crown, rather than from the petitioners.
b) The Appropriate Type or Scale of Costs
 I am prepared to accept that there is a significant disparity between the petitioners’ actual costs in this matter, and the costs that they would receive as party and party costs.
 Both the petitioners and the provincial Crown filed material and made submissions on the effectiveness of the provincial management of the British Columbia aquaculture industry, which I found were not matters for my determination. Nonetheless I consider that all parties in this matter were extremely well represented and that counsel acted expeditiously and effectively in limiting the hearing of the petition.
 Counsel for the provincial Crown argued that there is no evidence of the petitioners’ actual legal costs. While that is true, I do have the submission of counsel for the petitioners that the petitioners’ costs in this matter at Scale B of Appendix B to the Rules of Court would be in the range of $14,350.00, and at Scale C they would be in the range of $22,610.00, both exclusive of GST and PST. He advised that the actual legal costs expended were $123,700.00.
 Sections 2(4.1) and 2(4.2) of Appendix B to the Rules of Court provide:
(4.1) 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).
(4.2) For the purposes of subsection (4.1), an award of costs is not grossly inadequate or unjust merely because there is a difference between the actual legal expenses of a party and the costs to which that party would be entitled under the scale of costs fixed under subsection (1) or (4).
 The language of these sections convinces me that, to award increased costs, I must first fix the scale of costs and then determine whether “an award of costs on that scale would be grossly inadequate or unjust.”
 I consider that this was a matter “of more than ordinary difficulty”, and so pursuant to s. 2(2)(c) of Appendix B to the Rules of Court I would fix the scale of costs at Scale C.
 I am further satisfied that even in the absence of evidence as to the petitioners’ actual legal costs, the amounts available under the normal tariffs are grossly inadequate for the work that was required of counsel for the petitioners.
 In two cases, the British Columbia Court of Appeal considered awards of increased costs under the predecessor to ss. 2(4.1) and 2(4.2): Rieta v. North American Air Travel Insurance Agents Ltd. (1998), 52 B.C.L.R. (3d) 114, 105 B.C.A.C. 239 at paras. 40 & 50 [Rieta]; and Monenco Ltd. et al. v. Commonwealth Insurance Co. et al., 1999 BCCA 133, (sub nom. Monenco Ltd. v. Commonwealth Insurance Co.) 64 B.C.L.R. (3d) 307 at para. 11 [Monenco]. In these cases, the Court found that to award increased costs due to “unusual circumstances” a court must consider the disparity in the actual costs and those recoverable under the normal tariffs; the complexity, difficulty, and special importance of the matter to the parties; and the special importance of the litigation in the development of the law.
 I am satisfied that in this case the disparity between the petitioners’ actual costs and those recoverable under the normal tariffs together with the factors identified in Rieta and Monenco warrant an award of costs to the petitioners of more than the maximum of 1.5 times the value of Scale C costs that would otherwise be permitted as increased costs. I have reached this conclusion on the basis that the matter was both difficult and complex, and it was sufficiently important to the petitioners that they sought and obtained public interest standing to litigate the matter. I also consider that the matter was of special importance in the development of the law.
 Special costs replaced what used to be referred to in British Columbia, and are still referred to in other Canadian jurisdictions, as solicitor/client costs. They are usually awarded in cases where a court considers it necessary to sanction the conduct of a party that is deemed worthy of rebuke; see Garcia v. Crestbrook Forest Industries Ltd. (1993), 9 B.C.L.R. (3d) 242, (sub nom. Garcia v. Crestbrook Forest Industries Ltd. (No. 2)) 45 B.C.A.C. 222 at para. 17.
 The petitioners did not allege conduct deserving of rebuke in this case.
 Special costs have also been awarded to even unsuccessful litigants in cases where a broader public interest beyond the pecuniary interests of the particular plaintiff or plaintiffs is engaged; see Barclay (Guardian ad litem of) v. British Columbia (Attorney General), 2006 BCCA 434, (sub nom. Barclay (Guardian ad litem of) v. British Columbia) 57 B.C.L.R. (4th) 63 [Barclay], and the cases cited therein at para. 16.
 In this case, I found that two of the petitioners, the Southern Area (E) Gillnetters Association and the Fishing Vessel Owners’ Association of British Columbia, had sufficient direct interest standing to permit them to bring the petition. I also found that they and the remaining petitioners, Ms. Morton, the Pacific Coast Wild Salmon Society and the Wilderness Tourism Association, should be granted standing based upon public interest grounds.
 In Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue, 2007 SCC 2,  1 S.C.R. 38 at para. 35 [Little Sisters], the Supreme Court of Canada held that the public interest nature of litigation is not the paramount consideration in awarding costs and will not automatically entitle a litigant to preferential treatment with respect to costs.
 In PHS Community Services Society v. Canada (Attorney General), 2008 BCSC 1453,  3 W.W.R. 494 [PHS Community Services], Pitfield J. considered a costs application by three plaintiffs that had been represented by counsel on a pro bono basis in litigation over the legality of a safe injection facility in Vancouver. The applicants were successful in securing a constitutional exemption from the application of provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA], for the facility. The facility was publicly funded. The plaintiffs had advanced two arguments, centring on inter-jurisdictional immunity and on the unconstitutionality of the provisions of the CDSA, and succeeded on the second.
 Pitfield J. reviewed a number of authorities on costs, and awarded special costs on a full indemnity basis, including the reasonable value of all pro bono services and disbursements as, in his view, the action fit within the scope of public interest litigation. He found that the plaintiffs undertook the litigation with a view to preserving the operations of a publicly-funded facility without government financial assistance. The personal interests of the plaintiffs in the outcome of the litigation did not change this fact. The action benefited all who suffered from the illness of addiction. The plaintiffs were wholly successful in securing the ministerial exemption from the application of the CDSA they sought, despite the fact only one of their arguments was accepted. Pitfield J. concluded that the Crown was not entitled to a windfall because the lawyers for the plaintiffs had underwritten the costs of the litigation.
 In this case, the petitioners argued that the constitutional deficiencies in the provincial fisheries legislation have been brought to the attention of both the federal and the provincial governments as a result of their petition, and that the issues that they raised should assist in the proper management of fish stocks.
 I refrained from deciding in this case whether or not the provincial management of fisheries was effective or not. I do not regard that issue as resolved nor as supportive of a conclusion that management by the federal government will be different, let alone better, than management by the province. I do not consider that this is a factor that should be taken into account with respect to costs in this case.
 The petitioners argued that the issues raised in these proceedings are of broad public importance, and have assisted in the development of constitutional law in Canada. They submitted that therefore the costs related to these issues should be paid by the provincial Crown, as the province as a whole is the beneficiary of appropriate constitutional guidance.
 While constitutional guidance will benefit those in British Columbia, the decision of the Supreme Court of Canada on costs in Little Sisters establishes that this does not automatically result in special costs.
 In almost every case where individuals or groups initiate litigation against any level of government, there will be a disparity in the parties’ financial circumstances that favours the government. As there are many examples of cases where orders for special or increased costs are not made in cases where a government is successfully litigated against, that factor will not necessarily result in such cost orders.
 Counsel for the provincial Crown argued that there is no evidence of the petitioners’ actual financial resources. While that is true, I do have the submission of counsel for the petitioners that initial funding of $17,640.00 was provided by the West Coast Environmental Law Dispute Resolution Fund, and the remainder of the funding for his clients’ case was entirely dependant upon public donations that would otherwise have been used for the Pacific Coast Wild Salmon Society’s program to protect wild salmon fry. While I do not consider these circumstances to equate to the pro bono funding considered by Pitfield J. in PHS Community Services, the funding for this litigation has been generated at least in part through the generosity of non-parties.
 I do not consider the petitioners’ inability to fund the appeal from my judgment to be a factor that can be considered at this stage, in terms of costs. If the petitioners require funding for an appeal, they can apply for such funding.
 Just as the discretion to award costs to unsuccessful public interest litigants is limited to cases involving matters of public importance that are highly exceptional, I have concluded that full indemnity as special costs must be the exception, rather than the norm. This is even for successful public interest litigants in cases involving matters of public importance: Little Sisters at para. 36.
 Because I am of the view that the maximum costs award I can make for increased costs, 150% of costs at Scale C of Appendix B to the Rules of Court, is insufficient to reflect the public interest nature of this case, but that full indemnity is not warranted, I award the petitioners 75% of their reasonable fees and disbursements.
 The petitioners’ costs will be taxed. At that time the provincial Crown will be able to challenge any of the items claimed, should they feel it appropriate to do so.
 Insofar as the costs of MHC are concerned, it was brought into the litigation as a vehicle to resolve the issues between the main litigants. While it was likely to be affected by whatever result followed the hearing of the petition, it may have been no less affected than any other British Columbia fish farm, and it likely deserved no greater role in the dispute than its fellow fish farms. I see no reason why MHC should be out of pocket for its costs, which were properly limited by the role that its counsel chose to take in the matter.
Unfortunately, I have been given no evidence of the fees and disbursements that face MHC as a result of these proceedings. I therefore order that MHC will recover from the provincial Crown, after taxation of its fees and disbursements, full indemnity for all reasonable fees and disbursements that in the view of the taxing officer it reasonably incurred in this action.