Constitutional Law – Interim Costs Awards –
Inherent Jurisdiction of the Courts – Inferior
Here the Supreme Court held that Superior Courts can make
interim costs awards to fund public interest litigation in the
inferior provincial courts.
In the underlying litigation, the Respondent Caron had
challenged the constitutional validity of Alberta Provincial Court
proceedings on the basis that the court documents were solely in
English. Caron pleaded that the provisions of the Alberta Languages
Act, which purported to abrogate French Language rights in order to
permit such unilingual documents, was unconstitutional.
At issue in the Supreme Court of Canada was the funding of
Caron's litigation. The Provincial Court had made an interim
costs order – an "Okanagan order", so
named after the case which enables them – in favour of
Caron. The Alberta Court of Queen's Bench
("ACQB") set aside this order on the
ground that the Provincial Court lacked jurisdiction to make it.
However, the ACQB then made its own Okanagan order to fund
Mr. Caron's litigation in the Provincial Court. Ultimately, the
Supreme Court of Canada dismissed the Crown's appeal of this
The Supreme Court emphasized that the language rights issue was
of fundamental importance and touched on the validity of the
entirety of Alberta's legal system. The court drew an explicit
parallel to the interim award endorsed by the court in
Okanagan. Further, it emphasized that the basis for such
orders is a Superior Court's inherent jurisdiction, which
includes the ability to "render assistance to inferior
courts." The court also held that statutory costs provisions
do not oust a Superior Court's inherent jurisdiction to make
these awards. On the present facts, the Okanagan criteria
were met and the ACQB was within its jurisdiction to make the
interim awards to Caron.
Justice Abella's concurring opinion emphasized that the
Supreme Court's decision does not unduly extend a Superior
Court's ability to intervene in the workings of statutory
tribunals. She noted that the decision did not conclusively address
whether an inferior court can make interim costs awards. Further,
the inherent jurisdiction of a Superior Court must be balanced with
the "implied legislative mandate of a statutory court or
tribunal to control its own process".
The decision provides a robust assessment of inherent
jurisdiction, while Justice Abella's concurrence is perhaps a
springboard towards more expansive readings of the inherent
jurisdiction of statutory tribunals.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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