Westergard-Thorpe v. Canada ( Attorney General )
DES-2-99
McKeown J.
7/5/99
7 pp.
Plaintiffs and applicants seek award of costs with respect to proposed constitutional issues in certain court files and seek costs to be awarded on solicitor-client basis in any event of cause-In alternative, seek conditional (importance of claims, public interest, correctness and lack of financial resources, costs reasonable) award of costs-Issues: (1) whether Court has jurisdiction to make award of costs in advance; (2) if Court has jurisdiction, whether Court should exercise its jurisdiction in favour of making award in advance or making conditional award; (3) whether motion premature-Plaintiffs and applicants have filed complaints concerning conduct of RCMP during APEC conference in Vancouver in 1997-At recommendation of Commissioner Hughes, Q.C., government agreed to fund costs of legal representation for complainants before Commission, but refused to fund constitutional challenges before Federal Court-Hence present motion-Motion dismissed-Federal Court Rules, 1998, r. 400(1) giving Court full discretionary powers over amount and allocation of costs-Although Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 providing Federal Court with inherent jurisdiction over areas in which gap in federal tribunals' powers, superior provincial courts, for which no doubt as to inherent jurisdiction over costs, have never made award of costs in advance-Also, Court does not have necessary knowledge of all factors considered in awarding costs in advance of hearing case-Even if conditional order issued, Court would be somewhat limited in ability to look at all factors in context-To do so would be to make premature ruling on matters not yet before Court-Applicants and plaintiffs in effect seeking form of guaranteed funding to allow their application to proceed, not court costs in traditional sense-Such funding policy question for Parliament to decide, not courts-Furthermore, solicitorclient costs awarded only in exceptional circumstances, often as expression of disapproval of party's conduct-Therefore premature to make award now, before knowing content of memoranda of fact and law, or conduct of parties during hearing of constitutional challenges-Present ruling not intended to reflect Court's view on what award should be made at end of constitutional challenges process-Federal Court Rules, 1998, SOR/98-106, r. 400(1).