BC Supreme Court Decision on Costs a Win for Public Interest Litigants

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Public interest plaintiffs often don’t have the significant resources necessary to fund litigation, especially when it comes to the costly services of expert witnesses. Last week, a Master of the BC Supreme Court released a decision on costs that is helpful to plaintiffs of ordinary means who need to marshal social science evidence to prove infringement of constitutional or human rights protections.

The decision marked the end to Trevor Loke’s challenge of the BC government’s decision to approve Trinity Western University’s proposed law school. His case was dismissed as moot when the Province withdrew its approval of the law school, following the BC Law Society’s decision not to give its approval. Despite being found moot, the Court ordered that BC pay Mr. Loke’s legal costs because he had raised important issues regarding the equality rights of LGBTQ people and freedom of religion, and did not have the means to fund the case on his own.

Trinity Western University’s proposed law school is controversial because it would impose an admission requirement that requires students to promise through a “Community Covenant” not to engage in same-sex intimacy. To make out his case, Mr. Loke retained a number of experts to provide evidence on whether and how the admission policy would cause discrimination against LGBTQ people. The experts’ evidence was crucial, but their invoices amounted to tens of thousands of dollars. Because Mr. Loke raised issues of public importance, the experts agreed to not require payment immediately, and to negotiate payment once the case was completed. BC took the position that this arrangement meant the expert fees were not “reasonably or properly incurred,” and refused to pay them. In last week’s decision, the Court held that Mr. Loke was entitled to reimbursement for those costs.

This is an important decision because it helps public interest litigants make flexible arrangements for payment with experts. This will help ensure that when people take on public interest litigation, they will be able to engage experts to make the strongest possible case.

The decision is indexed as Loke v British Columbia (Minister of Advanced Education of British Columbia), 2016 BCSC 259. Click here to read the decision.