COSTS IN PUBLIC INTEREST LITIGATION REVISITED ...

2011] Costs in Public Interest Litigation 221engaged, voluntarily or otherwise, in what we would consider publicinterest litigation. 88This said, Canadian courts — like their counterparts elsewhere inthe Commonwealth — are more attuned to the issue of costs in publicinterest litigation than ever. And there is little to indicate that theirinterest in and motivation to engage with this undeniably complexand important issue will soon diminish.88. Compare the approach adopted by Smith J. in Sierra Club of WesternCanada v. B.C., supra, footnote 3 and that of Perell J. in IncredibleElectronics, supra, footnote 1. In the former case, Smith J. concluded that aprivate litigant (MacMillan Bloedel) should be entitled to its costs as amatter of course in litigation that it had joined on its own motion. In thelatter, on analogous facts, Perell J. concluded that to adopt this approachwould negate the policy imperatives that justify special treatment for publicinterest litigants. In his view, “not having to pay costs to the AttorneyGeneral but having to pay costs to Bell ExpressVu would be similar toavoiding a car only to be hit by a train”: para 110. Walker J.’s recent decisionin Dish Network supra, footnote 12, is also significant in the context. It is thefirst costs decision of which I am aware that orders a private party (in thiscase, private broadcasters) to pay advance costs to an opposing party in thecontext of “public interest” litigation. In Dish Network, the Crown and theprivate broadcasters are ordered to share this burden 50/50: see DishNetwork at paras. 303-28. It is also significant in that, unlike in the SierraClub and Incredible Electronics cases, the private parties that were made thesubject of the order were plaintiffs in the originating action.