IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: Yahey v. British Columbia, 2018 BCSC 278 Date: 20180226 Docket: S151727 Registry: Vancouver Marvin Yahey on his own behalf and on behalf of all other Blueberry River First Nations beneficiaries of Treaty No. 8 and the Blueberry River First Nations Plaintiffs And Her Majesty the Queen in Right of the Province of British Columbia Defendant Before: The Honourable Madam Justice Burke Reasons for Judgment (Hearing Fees) Counsel for the Plaintiff: Counsel for the Defendant: Place and Date of Hearing: Place and Date of Judgment: F.M. Kirchner M.L. Bradley A.E. Jarman R.L. Williams Vancouver, B.C. December 13 and 15, 2017 Vancouver, B.C. February 26, 2018

Yahey v. British Columbia Page 2 INTRODUCTION [1] Blueberry River First Nations ( Blueberry River ) seeks an order to stay its obligation to pay court hearing fees as set out in the Supreme Court Civil Rules. The stay is requested pending the hearing of the appeal of the judgment in Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCSC 1493 [Cambie Surgeries]. [2] The defendant in the action, Her Majesty the Queen in Right of British Columbia (the Province ) opposes the relief sought by Blueberry River. [3] This application arises in the context of a treaty infringement claim brought by Blueberry River against the Province. The background to this matter is set out in Yahey v. British Columbia, 2017 BCSC 899. The trial is set for 100 days commencing March 26, 2018. [4] In November 2017, Chief Marvin Yahey wrote on behalf of Blueberry River to the Attorney General of British Columbia requesting the Province waive the hearing fees applicable to this action. Chief Yahey maintains the fees are contrary to the honour of the Crown and reconciliation. Chief Yahey estimates the fees to be over $67,000 based on the current trial schedule. Blueberry River indicates the Province has yet to respond to this request. ISSUE [5] Has Blueberry River met the test for a stay of the court hearing fees in this trial pending the appeal of the decision in Cambie Surgeries? The Legal Principles [6] Both parties agree that the test for a stay requires the court to determine whether a) there is a serious question to be tried; b) irreparable harm will result if the stay is not granted; and c) the balance of convenience favours granting the stay: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

Yahey v. British Columbia Page 3 APPLICABLE LEGISLATION [7] Schedule 1 of Appendix C, item 10 to the Supreme Court Civil Rules provides: For each day spent in whole or in part at trial, unless the attendance on that day is for judgment only, payable by the party who files the notice of trial, unless the court orders payment by another party [8] The court fees in item 10 are on an escalating scale as follows: no fee for the first three days, $500 for days four to ten, and $800 for each day above ten. [9] Rule 20-5(1) of the Rules provides that on an application for relief from hearing fees, if the court finds that a person cannot, without undue hardship, afford to pay the fees, the court may order that no fees are payable by the person to the government. [10] There are two possible avenues for a party seeking relief from the obligation to pay the hearing fees: (1) an application for an order under Schedule 1 of Appendix C, item 10 that the defendant pay the fees; and (2) an application under R. 20-5 based on undue hardship. POSITIONS OF THE PARTIES [11] Blueberry River says it intends to bring an application in this action for relief from the obligation to pay the hearing fees. It will seek an order under Appendix C, Schedule 1, item 10 that the defendant pay the daily hearing fees; and a constitutional exemption from paying the fees based on s. 35(1) of the Constitution Act, 1982. [12] Blueberry River also says the outcome in Cambie Surgeries may open up other arguments based on the interpretation of undue hardship or the resolution of the constitutional issues on that appeal. They wish to await the result in Cambie Surgeries before bringing an application for relief from the fees. The decision by the Court of Appeal may make the s. 35 argument unnecessary.

Yahey v. British Columbia Page 4 [13] The Province argues the application for a stay is premature, as the obligation to pay the fees is not yet triggered. The Province also submits the Cambie Surgeries appeal will not decide the issue of the applicability of hearing fees in this case and in any event, Blueberry has not met the test for a stay. No hearing date for the Cambie Surgeries appeal has been set. The Province points out even once the Court of Appeal hears the appeal there will still be a period of time before it renders a judgment. The stay is therefore for an indeterminate amount of time. Serious Question to be Tried a) Position of the applicants [14] Blueberry River argues that the law with respect to the constitutionality and interpretation of the hearing fee scheme is currently unsettled. The Cambie Surgeries appeal raises two serious questions: (1) whether court hearing fees should apply to meritorious constitutional cases, and (2) whether the court should broadly interpret the undue hardship exemption in R. 20-5. With respect to the present case, Blueberry River also raises the novel question of whether the fees are unconstitutional to the extent that they apply to claims by Aboriginal peoples against the Crown to enforce established treaty rights, recognized and affirmed under s. 35 of the Constitution Act, 1982. [15] Blueberry River argues the court must consider the Province s power to legislate hearing fees together with s. 35 of the Constitution Act, 1982, relying on para. 25 of Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 [Trial Lawyers]: [25] particular constitutional grants of power must be read together with other grants of power so that the Constitution operates as an internally consistent harmonious whole. Thus s. 92(14) does not operate in isolation. Its ambit must be determined, not only by reference to its bare wording, but with respect to other powers conferred by the Constitution. [16] Citing foundational principles developed by the courts under s. 35, Blueberry River argues the Province s power under s. 92(14) of the Constitution Act, 1867 to

Yahey v. British Columbia Page 5 legislate regarding the administration of justice in British Columbia must be exercised in a manner that upholds the honour of the Crown and is consistent with the priority and status afforded to Aboriginal and treaty rights in s. 35. The Crown charging Blueberry River a substantial fee for access to the court to enforce its constitutionally protected treaty rights is contrary to the commitment in s. 35. Treaties in particular are sacred agreements involving solemn promises by the Crown: R. v. Badger, [1996] 1 S.C.R. 771 at para. 41. [17] Blueberry River also argues that the hearing fees disproportionately burden Aboriginal peoples, given the complexity and length of Aboriginal claims, and hearing fees should not penalize Aboriginal litigants for the resulting lengthy trials: see Trial Lawyers at para. 61. b) Position of the respondent [18] The Province argues that the Cambie Surgeries appeal does not raise a serious issue to be tried. The law is settled that the Province s power to legislate under s. 92(14) of the Constitution Act, 1867 is constrained by s. 96, and that hearing fees are constitutional and applicable unless a litigant can establish financial undue hardship: Trial Lawyers. The Province says Trial Lawyers was clear that undue hardship is a financial means test, rather than having a broader interpretation urged by the plaintiffs in Cambie Surgeries. This is consistent with jurisprudence interpreting Rule 56(1) of the Court of Appeal Rules, which contains the same undue hardship exemption: see e.g. Shoolestani v. Ichikawa, 2016 BCCA 452. Further, the effect of Trial Lawyers is not limited to private law disputes, and the majority in that case clearly addressed public law claims as per para. 32. The Province argues that R. 20-5(1) as amended post-trial Lawyers clearly meets the constitutional standard set in that case. [19] The Province argues s. 35 Aboriginal and treaty rights principles do not establish a basis for a claim to excuse Blueberry River from paying hearing fees or for a stay. The Supreme Court of Canada rejected similar arguments in British

Yahey v. British Columbia Page 6 Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, which dealt with an application for advanced costs. The British Columbia Court of Appeal found that s. 35 did not place an affirmative obligation on the government to provide funding for fees of an Indigenous group advancing s. 35 claims, but that the Court s discretion in making costs orders must be informed by the honour of the Crown principle. The Province maintains the Supreme Court of Canada did not disturb this finding. [20] Further, the Province argues it does not charge court fees for the benefit of the Crown. As held in Trial Lawyers, court fees may be used to defray some of the cost of administering the justice system and increasing access to justice overall. Additionally, the Province argues that the honour of the Crown does not affect the Crown s litigation conduct, as held in Canada v. Stoney Band, 2005 FCA 15. Regardless, the constitutionality of hearing fees in s. 35 claims is not before the Court in Cambie Surgeries, so there is no serious issue to be tried. c) Conclusion [21] The court hearing fees under the Rules have been the subject of constitutional challenges in recent years. In 2014, the Supreme Court of Canada in Trial Lawyers found that the hearing fee scheme in place at the time was unconstitutional. It prevented access to the courts in a manner inconsistent with s. 96 of the Constitution Act, 1867 and the underlying principle of the rule of law. [22] After the decision, the provincial government did not reintroduce hearing fees under the Rules until August 2016, when it amended R. 20-5(1) to allow for an exemption based on undue hardship. [23] In 2017, the question of the interpretation of undue hardship in R. 20-5(1) and the constitutionality of the hearing fees regime came before this Court in Cambie Surgeries. The plaintiffs sought to have the defendant pay the fees, or in the alternative, an exemption from paying the fees due to undue hardship. In the further alternative, the plaintiffs sought to set aside the fees under ss. 92(14) and 96 of the

Yahey v. British Columbia Page 7 Constitution Act, 1867 to the extent that they applied to prima facie meritorious constitutional challenges to government action, in order not to deter parties from relying on Charter rights which are the basis of the rule of law and constitutionality. [24] On August 24, 2017, Justice Steeves dismissed the application and rejected the argument to interpret undue hardship broadly in the sense that the fees would create a barrier for constitutional challenges to government action. The Court, while assuming that undue hardship can include non-financial issues, held at para. 26 that there remains a strong financial aspect to it requiring at least some evidence about financial hardship. The Court further dismissed the plaintiffs claim that constitutional claims are of a special nature in the context of access to justice such that court fees should not apply to meritorious constitutional cases. [25] The plaintiffs filed a Notice of Appeal of the decision on September 11, 2017. [26] The Province is essentially arguing Cambie Surgeries was correctly decided in accordance with the Supreme Court of Canada s decision in Trial Lawyers and as a result, the appeal does not have merit and does not raise a serious issue. [27] I agree, however, with Blueberry River that the Cambie Surgeries appeal raises distinct legal issues that were not directly addressed in Trial Lawyers, namely whether the court hearing fees should apply to meritorious constitutional claims, and whether undue hardship includes considerations beyond financial means. These are serious issues and their determination could affect the relief available to Blueberry River on an application to waive the hearing fees. The determination of these issues could affect how Blueberry River argues the application, including whether Blueberry River would argue for an exemption from the fees pursuant to s. 35 of the Constitution Act, 1982. [28] Blueberry River s argument that s. 35 provides an exemption from hearing fees in the context of Aboriginal and treaty rights litigation raises a serious issue. While Blueberry River has not yet brought an application for relief from the fees on this basis, it is reasonable for Blueberry River to wish to wait for a result in the

Yahey v. British Columbia Page 8 Cambie Surgeries appeal, which could potentially open up new avenues for relief from hearing fees, or confirm that certain avenues are not available. The s. 35 exemption argument raises a serious issue because Blueberry River may or may not need to raise it in an application for relief from paying the hearing fees, depending on the result in Cambie Surgeries. [29] Blueberry River raises the serious question of whether the Province s power to legislate hearing fees under s. 92(14) is constrained by its commitments and obligations under s. 35. This is not an attempt to apply the honour of the Crown to the Crown s litigation conduct as in Stoney Band. Rather, it is an argument that the Crown, as the defendant in a s. 35 Aboriginal and treaty rights claim, cannot charge the plaintiff First Nation substantial fees for access to the court to seek to enforce the Crown s treaty obligations. This, Blueberry River argues, is inconsistent with the honour of the Crown and the Crown s duties under s. 35 to promote reconciliation. [30] Blueberry River argues the courts have not dealt with the distinctive status of reconciliation under s. 35 in relation to the constitutionality of hearing fees. While consultation and negotiation is the primary object of reconciliation, as Blueberry River points out the court also plays a role in reconciliation. The parties do not always agree and the court will hold the Crown to its obligations where appropriate. As the courts are a necessary pillar in achieving reconciliation, charging a fee to access the court may well be contrary to the objectives of s. 35. [31] Blueberry River will argue it is therefore not honourable for the Crown to charge a substantial fee to an Indigenous nation in circumstances where the fee is payable to the Crown as the defendant in the case. The Crown defendant charges and collects the fees. Blueberry River points out this unique duty owed by the Crown to Indigenous people separates this case from Cambie Surgeries. As per para. 25 of Trial Lawyers, the court must read the Crown s authority to impose a court hearing fee under s. 92(14) in conjunction with its obligations under s. 35.

Yahey v. British Columbia Page 9 [32] This serious issue has not been squarely decided by the courts. It was not before the court in Trial Lawyers. Nor was it before the Supreme Court in Okanagan Indian Band, which dealt with whether the Band had a constitutional right to legal fees funded by the Crown. The latter case was also decided before Trial Lawyers, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 and other cases developing the jurisprudence of the honour of the Crown and s. 35. [33] Blueberry River has therefore established there is a serious issue to be tried based on the Cambie Surgeries appeal. Irreparable Harm and the Balance of Convenience a) Position of the applicants [34] Blueberry River argues that the balance of convenience favours granting the stay of the hearing fees pending the Cambie Surgeries appeal for the following reasons: i) Blueberry River would suffer the irreparable harm of being required to allocate resources to pay the hearing fees, which are substantial, in the context of a lengthy and costly trial; ii) iii) It would be an inefficient use of court resources to determine whether the hearing fees apply to Blueberry River s claim at this stage, given the potential for the Cambie Surgeries appeal decision to be determinative of the applicability of the fees here, or to provide guidance on how to determine whether the fees apply; Any adverse effect of the temporary suspension of court fees on the Province in this case is outweighed by the interests of Blueberry River in not being burdened by a potentially unconstitutional scheme, and the interests of justice.

Yahey v. British Columbia Page 10 b) Position of the respondent [35] The Province argues that Blueberry River has failed to demonstrate irreparable harm. Any harm could be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application: RJR-MacDonald at 341. [36] The Province argues that allocation of resources is not sufficient to establish irreparable harm, nor is Blueberry River s argument that it will suffer the burden of a potentially unconstitutional fee scheme. Further, the Court has no evidence of the alleged impact of the court fees. [37] The Province says Blueberry River has failed to meet the irreparable harm branch of the test for a stay, and alternatively that the balance of convenience weighs in favour of the application of valid legislation unless and until that legislation is found to be unconstitutional. The allegation of wasted judicial resources is speculative given that there is no application currently before the Court for waiver of the fees. c) Conclusion [38] In assessing the balance of convenience, the Court must assess which party will suffer greater harm. [39] The Court must view Blueberry River s application for the stay in the context of this litigation, which involves a complex, lengthy and costly trial. If the stay is not granted, Blueberry River will be required to either allocate its resources to pay the hearing fees, or bring an application for relief from paying the fees while the law is unsettled, pending the Cambie Surgeries appeal. Given the serious issue raised by Blueberry River regarding the constitutional applicability of the hearing fees to its claim pursuant to s. 35, it would be harmful for Blueberry River to be subject to a possibly unconstitutional fee scheme. On this basis, Blueberry River has established that it would suffer irreparable harm if the Court did not grant a stay.

Yahey v. British Columbia Page 11 [40] Further, determining such an application could be an inefficient use of the parties and the Court s resources, given the potential for a determination in the Cambie Surgeries appeal that could provide guidance on the applicability of the hearing fees to Blueberry River s claim. [41] Finally, as per the argument maintained by Blueberry River, there is a potential issue of fairness of process. As noted in RJR-MacDonald at 341: Irreparable refers to the nature of the harm suffered rather than its magnitude. It is harm either which cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. [42] An Indigenous band protected by s. 35 must pay hearing fees to the Crown in order to advance its case against the Crown, the defendant in this case. A perception of unfairness can be argued to arise from this particular juxtaposition of the parties and contributes to a finding of irreparable harm. Such a loss could not be recovered at the time of the decision on its merits: see RJR-MacDonald at 348. [43] In contrast, the Province has not demonstrated harm or prejudice if the Court grants the stay. This is simply a temporary stay of the obligation to pay the hearing fees pending the Cambie Surgeries appeal. Unless Blueberry River successfully applies for an order for relief from the fees once the Court of Appeal renders a decision in that appeal, it will ultimately be required to pay them. The delay in the triggering of Blueberry River s obligation to pay the fees does not prejudice the Province. [44] Blueberry River has indicated it intends to bring an application for relief from the hearing fees in this action. There is no reason to believe that it will not do so; thus, it is not speculative, as the Province argues, to consider the importance of efficient use of judicial resources. [45] Given these factors, the balance of convenience favours granting the stay of the obligation to pay the hearing fees pending the appeal in Cambie Surgeries.

Yahey v. British Columbia Page 12 CONCLUSION [46] The application is successful. The Court grants a stay of Blueberry River s obligation to pay hearing fees in this trial pending the appeal of the Cambie Surgeries decision. The Honourable Madam Justice E. Burke