What is the test for a plaintiff to have to pay the costs of a party who commences a public interest litigation?

British Columbia, Canada


The following excerpt is from OPEIU v. B.C. Hydro et al, 2005 BCSC 8 (CanLII):

The Ontario Law Reform Commission in its Report on the Law of Standing (Toronto: Ministry of the Attorney General, 1989) proposed criteria to determine the circumstances where costs should not be awarded against a person who commences public interest litigation. These criteria were adopted by Bauman J. in MacDonald v. University of British Columbia, 2004 BCSC 412: (a) The proceeding involves issues the importance of which extends beyond the immediate interests of the parties involved. (b) The person has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearly does not justify the proceeding economically. (c) The issues have not been previously determined by a court in a proceeding against the same defendant. (d) The defendant has a clearly superior capacity to bear the costs of the proceeding. (e) The plaintiff has not engaged in vexatious, frivolous or abusive conduct.

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