SCC Rules on Public Interest Litigation Funding

On February 4, 2011, the Supreme Court of Canada released its decision in R. v. Caron, 2011 SCC 5. The ruling will have repercussions on the financing of public interest cases in Canada.

In a unanimous decision, the court rejected the Province of Alberta's appeal, which sought to reverse the orders for interim costs awarded by the Alberta Court of Queen's Bench, without which it would have been impossible for Gilles Caron to present his defence at trial. The case deals with the constitutional language rights of the Franco-Albertan community. The Supreme Court upheld that “… the Alberta courts were faced here with a constitutional challenge of great importance … At issue was (and is) a fundamental aspect of the rule of law in Alberta.”

It is quite rare for a court to award interim costs and this decision establishes for the first time that a superior court possesses the inherent jurisdiction to make an order for interim costs for a case being heard before another court when this is necessary in the interests of justice. As stated in the judgment, “Superior courts possess an inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully and effectively.”

In its decision, the Supreme Court also refers to the importance of the constitutional questions at issue in the case. “… The case, in short, has the potential (if successful) to become an Alberta replay of the Reference re Manitoba Language Rights, [1992] 1 S.C.R. 212. This is what makes the case ‘sufficiently special' in terms of Okanagan/Little Sisters (No. 2).”

The next step in the case is for the Alberta Court of Appeal to hear arguments on the constitutional questions it has approved for hearing.

Rupert Baudais of Balfour Moss LLP, now Miller Thomson LLP, represented the respondent Gilles Caron.

Margaret Unsworth, QC, of Alberta Justice and Teresa Haykowsky of McLennan Ross LLP represented the appellant the Province of Alberta.

Amélie Lavictoire of the Office of the Commissioner of Official Languages represented the intervenor the Commissioner of Official Languages for Canada.

Joseph Arvay, QC, and Alison Latimer of Arvay Finlay and Benjamin Berger of the Faculty of Law, University of Victoria, represented the intervenor the Canadian Civil Liberties Association.

Melina Buckley of Camp Fiorante Matthews and Gwen Brodsky represented the intervenors the Council of Canadians with Disabilities, the Charter Committee on Poverty Issues, the Poverty and Human Rights Centre and the Women's Legal Education and Action Fund.

Michel Doucet, QC, of the Faculty of Law, University of Moncton, Mark Power of Heenan Blaikie LLP, and François Larocque of the Faculty of Law, University of Ottawa, represented the intervenor the Association canadienne-française de l'Alberta.

Cheryl Milne of the Faculty of Law, University of Toronto, represented the intervenor the David Asper Centre for Constitutional Rights.