31420-12-1 SAWRIDGE, Indian vs. ROLAND, Twinn et al

F24
1 noevidence before you. I’m not sure if you’re prepared to take judicial notice that the
2 Public Trustee’s Office is not impecunious, but it doesn’t matter because there is no
3 evidence before you of any impecuniosity. And when we look at Tab 13 of our brief,
4 there is an excerpt from Orkin on The Law of Costs. And if we look at the third
5 paragraph on that case, it says: The test is strictly applied and an applicant must meet a
6
7
high standard of proof in order to demonstrate impecuniosity.
8 And then going up in the last portion of the second paragraph, it says: In practice, this
9 would require some examination into the claimant’s assets and expenses as well as the
10 possibility of obtaining funding elsewhere. This requirement was not met in the case
11 where although the claimant’s expenses exceeded his modest income, he took an annual
12 vacation, drove a rented car, and had not applied for legal aid or sought funding from a
13
14
community based group.
15 If that recitation is in fact the test, clearly there’s nothing before you that would satisfy
16
17
even the first aspect of the test.
18 We have said very clearly that this case will be argued before you regardless. So it’s not
19 the case that we have with Little Sisters or with Okanagan or Caron, any of those cases
20 where they said, If you don’t give us costs, we cannot move forward and we will not be
21 able to argue. This case will be argued in front of you. And all the evidence and all the
22 arguments will be presented. We would suggest that it also doesn’t transcend the
23 individual interests, that it deals with a small group. It doesn’t affect a larger group. But
24
25
in any event, for sure we would say that it doesn’t meet the first two aspects of the test.
26 The other issue that I think is important to note, if we look at the Little Sisters case,
27 which is at Tab 11 of our brief, and this may be something we need to deal with later, but
28 on page 2, in looking at the summary and if we look at the last portion of the second
29 paragraph, so where it says, Per Bastarache, LeBel, and Deschamps. The last paragraph,
30
31
it says:
32 If advance costs are granted, the litigant must relinquish some
33 manner of control over how the litigation proceeds. An advance
34 costs award is meant to provide a basic level of assistance
35 necessary for the case to proceed. Accordingly, courts should set
36 limits on the rates and hours of legal work chargeable and cap
37
38
advance costs award at an appropriate global amount.
39 So Ithink that in the event that you find that it has to be done, then we need to move to
40
41
that next level in terms of setting those limits.