Case information

Civil procedure – Costs – Provision for costs – Change of circumstances at time of new application – Principles governing exercise of court’s discretion to rule on costs –Whether Court of Appeal erred in law in failing to address question at issue, namely whether new application for provision for costs can be made following change of circumstances, and in not finding that such application is permitted in such context – Whether Court of Appeal erred in finding that this application for provision for costs, seeking recognition of equality rights in health matters for persons who have disability and are in financially precarious position, did not satisfy criteria established by Okanagan, even though this application was exceptional in nature.

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The trial judge, applying the principles from Okanagan, found that the steps taken by the applicants to obtain a provision for costs were insufficient to satisfy the first condition. The judge hearing the new application found that there was no change of circumstances allowing for reconsideration of the application, but also that, even if that condition had been met, the situation was not an exceptional one in which the application could be granted. On appeal, the court did not rule on the change of circumstances criterion but confirmed that the nature of the case was no different from the “many other cases involving constitutional issues and other issues of public importance”. This case did not transcend the applicants’ particular situation. The court therefore dismissed the appeal.

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