Canada: Another Blow For Litigation ‘Hail Mary' - Activist Groups Seeking Advance Costs Will Find It Even More Of A Longshot After Recent B.C. Ruling*

Last Updated: September 3 2015
Article by Evan Cooke and Kristen Balcom

Most Read Contributor in Canada, September 2016

In rare circumstances, our superior courts may exercise their inherent jurisdiction to grant "advance costs" to public interest litigants prior to the final disposition of a case. Justice Carol Ross' Jan. 28 decision in Douglas Lake Cattle Co. v. Nicola Valley Fish and Game Club [2015] B.C.J. No. 138 has expanded the small body of law in this area.

Litigants should view interlocutory applications for advance costs as a litigation "Hail Mary," and should know that meagre resources can be wasted bringing an application with little prospect of success. From a policy perspective, advance costs are not a substitute for legal aid or other funding schemes designed to assist impecunious litigants with generic disputes. Orders are only available where, among other things, the issues are "bigger" than the individual litigant. Public interest litigants must recognize that no order for advance costs made against a non-government opponent has been upheld.

In Douglas Lake, a group of activists brought an advancecosts application against a land owner in relation to certain property rights. The application failed, and while an advance-costs order against a private sector litigant remains possible, Justice Ross' decision narrowed the path to such an order.

The ongoing dispute in Douglas Lake centres around two lakes located within the boundaries of the Douglas Lake Ranch. The ranch has for decades been stocking the lakes with fish superior to those in the region's thousands of accessible lakes. The Fish and Game Club is seeking a declaration that the public has rights to fish in the two lakes. Eventually, the court will have to decide issues of ownership of riparian areas and stocked fish within engineered lakes, among other things.

Faced with an application for advance costs, the authors argued that the club had failed to prove impecuniosity, and had failed to establish that these issues were important to Canadians more generally. These arguments, which were ultimately successful, arose from the test established in British Columbia (Minister of Forests) v. Okanagan Indian Band [2003] S.C.J. No. 76. There, the Supreme Court confirmed that a litigant seeking advance costs must demonstrate: 1) a genuine inability to fund the litigation with no other realistic option for bringing the issues to trial; 2) that the claim is prima facie meritorious and it would be contrary to the interests of justice for the litigant's impecuniosity to prevent the case from proceeding; and 3) the issues raised transcend the individual litigant's interests, are of public importance, and have not been resolved in previous cases.

The SCC refined its own test in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) [2007] S.C.J. No. 2, where it was noted that advance costs are available only in situations where a court would be participating in an injustice against the litigant and the public generally by failing to award advance costs. The decision confirmed that such awards are exceptional and should only be awarded as a last resort. Examples of prior cases that "transcended the individual litigant's interests" include the aforementioned Okanagan Indian Band case, where advance costs were ordered against the Crown to allow a First Nation to litigate the scope of aboriginal logging rights, and R. v. Caron [2011] S.C.J. No. 5, where advance costs were ordered against the province of Alberta to assist a French Albertan fight an attempt to force him into a unilingual court process, a case that would impact language rights across the country.

Justice Ross in Douglas Lake found that the fishing club had not established that the issues transcended their interests, and had not demonstrated how the facts and laws in issue had broader application. More significantly, Justice Ross found the fishing club had failed to establish a genuine inability to fund the litigation with no other realistic option for bringing the issues to trial.

It was on this issue of financial capacity where the Douglas Lake case becomes noteworthy. The authors argued that the club, a registered society under B.C.'s Society Act, was operating in a manner akin to an under-capitalized shell company. The club had not adduced any evidence as to the capacity of its members to personally fund the litigation, and the club had taken the position that privacy law prevented the ranch from demanding information about the personal financial circumstances of club members. The Douglas Lake decision suggests that groups who advance activist litigation through an impecunious legal entity will have difficulty obtaining an advance-costs award without also establishing that the individuals behind the group cannot themselves fund the group's litigation.

Although Justice Ross did not foreclose the possibility that an advance-costs award might be made against a private litigant, she noted that there was no special relationship between the ranch and the fishing club to suggest that the litigation was of any benefit to the former. Although uncertainty lingers, this decision should provide some comfort to resource sector participants and other entities that might be targeted by activist litigants.

*This article originally appeared in the September 4, 2015, issue of The Lawyers Weekly published by LexisNexis Canada Inc.

About BLG

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.