Case information

Civil procedure - Costs - Advance costs - First Nation pursuing claim against provincial and federal Crown for infringement of treaty rights - First Nation seeking advance costs to fund litigation - Case management judge finding criteria for partial advance costs order satisfied - Court of Appeal overturning order as unreasonable, and finding impecuniosity branch of test not met - Whether Court of Appeal erred in law in interpreting financial means branch of test by considering only whether funds available and excluding consideration of unique social, political, and economic context of impoverished First Nations, and consideration of reasonable financial choices - If answer to Issue 1 is ‘no”, whether Court of Appeal erred in holding that Beaver Lake did not satisfy test based on findings made by case management judge, including that Beaver Lake could not both fund the litigation and meet basic needs - Whether Court of Appeal erred in law in holding that case management judge’s discretionary order was unreasonable by including defined annual cap, and failing to require repayment of award.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Beaver Lake Cree Nation filed a claim against Alberta and Canada in 2008, seeking various declarations of rights, injunctions, and damages for the cumulative effects of resource developments allowed on their traditional lands protected by Treaty 6. The trial is currently scheduled for 2024. Thus far, Beaver Lake has spent approximately $3 million in legal fees, of which approximately one half has been paid from its own funds; it presently pays $300,000 in legal fees per year.

Beaver Lake filed an application for advance costs in the amount of $5 million to allow them to proceed with their claim. The case management judge at the Alberta Court of Queen’s Bench found that Beaver Lake met the test for advance costs, including the “financial means” branch of the test, The case management judge awarded partial advance costs to Beaver Lake, ordering Alberta and Canada to each pay $300,000 per year towards Beaver Lake’s legal fees, until such time as the trial is concluded or the litigation is resolved, in addition to the $300,000 that Beaver Lake was spending annually on the litigation.

The Alberta Court of Appeal reversed this decision and set aside the order for partial advance costs. It found that the case management judge had committed an error of law with respect to the manner in which the test for advance costs was applied to the facts of this case, and that Beaver Lake had failed to satisfy the “financial means” branch of the test for advance costs. In particular, based on fresh evidence adduced by Canada, the Court of Appeal found that Beaver Lake in fact had access or potential access to several million dollars in order to continue funding the litigation, including having received $2.97 million in December 2019 from a resolved Specific Claim. As a result of Beaver Lake’s available resources, the Court of Appeal concluded that the original order for advance costs was unreasonable.

Beaver Lake now appeals the Court of Appeal decision to the Supreme Court of Canada.