~Strict criteria set by Supreme Court of Canada in Little Sisters for awarding advance costs not rigidly applied to all cases~
BACKGROUND: In response to anticipated changes to the Indian Act, R.S.C. 1985, c. I-5 that would have returned membership to native women previously lost through marriage, in 1985 the Sawridge First Nation set up a trust to hold properties (with a current value of $70,000,000) for the benefit of all Sawridge members who would have qualified on April 15, 1982 (the 'Trust'). The trustees of the Trust, intending to distribute the assets of the Trust, identified that the existing distinction of 'beneficiaries' was potentially discriminatory and sought to change that definition on the advice and direction of the court. The chambers judge noted that such a change would affect certain children and ordered that the Public Trustee be notified to represent these children who would not otherwise be represented by counsel. The Public Trustee applied to be appointed their litigation representative. In granting that application, the judge also awarded advanced costs to the Public Trustee on a solicitor and his own client basis and exempted the Public Trustee from liability for any other costs that may arise during the litigation. The trustees appealed the order only as it related to advance costs and exemption from liability for costs.
APPELLATE DECISION: The trustees argued that the chambers judge had erred in ruling that the strict criteria of 'impecuniosity, a meritorious case and special circumstances', established by the Supreme Court of Canada in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 ('Little Sisters') for awarding advance costs, did not apply to these proceedings. However, these criteria were not intended to apply to all awards of advance funding. Such criteria were intended to apply in adversarial situations where an impecunious private party wishes to sue another private party or public institution and requests to have their costs paid in advance. In this case, the Public Trustee was not appointed to act on behalf of the minors to sue another party. The role of the Public Trustee was merely to ensure that their interests are taken into account during the trustees' application for advice and direction regarding the Trust. Cases have held that in circumstances where trustees ask the court for guidance on the construction or administration of a trust, 'the costs of all parties necessarily incurred for the benefit of the estate will be paid from the fund'. The Public Trustee Act, S.A. 2004, c. P-44.1 and Rule 2.21 of the Rules of Court provide the court with a large discretion on awarding costs, including advance costs. Further, the chambers judge has inherent jurisdiction under the parens patriae doctrine to award advance costs in the best interests of the child when legislation is silent on the matter. As such, the trial judge did not err in awarding advance costs to secure the independent representation of the Public Trustee to protect the interests of those children affected in this proceeding.