IN THE SUPREME COURT OF THE YUKON
TERRITORY
Citation: Dunbar & Edge v. Yukon (Government of) & Canada (A.G.)
2004
YKSC 54 Date: 20040714
Docket:
S.C. No. 04-A0048
Registry:
Whitehorse
Between:
STEPHEN DUNBAR AND ROBERT EDGE
Petitioners
And:
THE GOVERNMENT OF THE YUKON TERRITORY AND
THE ATTORNEY GENERAL OF CANADA
Respondents
Before: Mr.
Justice P. McIntyre
Appearances:
James R.
Tucker and Martha A. McCarthy For
the Petitioners
John W.
Phelps For
the Attorney General of Canada
Lenore M.
Morris For the Government
of the Yukon Territory
MEMORANDUM OF RULING
DELIVERED FROM THE BENCH
[1]
McINTYRE J. (Oral): There
are five parts to this judgment.
I. INTRODUCTION
[2]
Stephen Dunbar and
Robert Edge are males who want to marry on July 17, 2004. They asked the Vital
Statistics Office of the Yukon Territorial Government for a marriage licence in
January 2004; but they were not allowed to fill out the application form. The
Yukon Territorial Government explained its position in writing by letter dated
April 22, 2004, from Joe MacGillivary, the Registrar of Vital Statistics. He
stated:
The common law
definition of marriage in Yukon remains the union of one man and one woman. As
a result, until such time as the federal Parliament enacts legislation to allow
same sex marriage, or the common law definition of marriage is changed in the
Yukon, we are of the view that Yukon Vital Statistics is unable to issue
marriage licenses to same sex couples.
II. NATURE OF APPLICATION
[3]
By Petition filed June
9, 2004, Dunbar and Edge applied for an Order that:
i) A
declaration, pursuant to s. 52 of the Constitution Act (1867) that the
common law bar against same-sex marriage is of no force or effect because it
violates rights and freedoms guaranteed by s. 15 of the Charter and does
not constitute a reasonable and demonstrably justifiable limit on those rights
within the meaning of s. 1 of the Charter;
ii) An
Order in the nature of mandamus requiring the issuer of marriage
licences in the Yukon Territory to issue a marriage licence to the petitioners
as a couple and to any other same-sex couples who otherwise meet the legal
requirements for capacity to marry;
iii) An
Order in the nature of prohibition preventing the issuer of marriage licences
in the Yukon Territory from refusing to issue licences to the petitioners as a
couple or to other same-sex couples solely because the applicants for the
marriage licences are of the same-sex; and
iv) An
Order that the petitioners be granted their costs associated with bringing this
action.
III. POSITION OF THE PARTIES
[4]
By Affidavit sworn the
28th of June of 2004, Joe MacGillivary, the Registrar, advised that
because marriages can be performed in the Yukon without a marriage licence
after the publication of banns, that the Yukon Government will register the
applicants’ marriage retroactively if either of two events occurs within three
years:
a) The
Supreme Court of Canada declares the traditional definition of marriage as a
union of one man and one woman to be incompatible with the Charter of Rights
and Freedoms;
b) Legislation
is enacted by the Government of Canada which defines marriage for civil
purposes in such a way as to include the Petitioners’ union.
[5]
The applicants want a
marriage licence before their wedding, and they want their marriage to be
registered in the normal course. They do not want to be treated differently.
[6]
The Yukon Government
does not oppose the declaration of invalidity sought in Part 1 of the Petition
but objects to an Order in the nature of mandamus or prohibition, because
it undertakes that if the Court makes a declaration of invalidity, the Yukon
Government will issue a marriage licence to the applicants and any other
same-sex couple who qualify for one.
[7]
The Attorney General
of Canada concedes that the opposite sex requirement for marriage is
unconstitutional, as not consistent with the equality rights guarantee set out
in s. 15(1) of the Charter and is not justifiable. However, the
Attorney General sought an adjournment of this application to an indefinite
future date, following the hearing of a reference made by the Federal
Government to the Supreme Court of Canada on four questions. The questions are
as follows, and I am now quoting from the Privy Council document that was put
before me:
Her Excellency, the Governor General in Council, on the recommendation
of the Minister of Justice, pursuant to s. 53 of the Supreme Court Act,
hereby refers to the Supreme Court of Canada for hearing and consideration the
following questions:
1. Is the annexed Proposal for an Act respecting
certain aspects of legal capacity for marriage for civil purposes within
the exclusive legislative authority of the Parliament of Canada? If not, in
what particular or particulars and to what extent?
2. If the answer to question 1 is yes, is section 1 of the
proposal, which extends capacity to marry to persons of the same sex,
consistent with the Canadian Charter of Rights and Freedoms? If not, in
what particular or particulars, and to what extent?
3. Does the freedom of religion guaranteed by paragraph 2(a) of
the Canadian Charter of Rights and Freedoms protect religious officials
from being compelled to perform a marriage between two persons of the same sex
that is contrary to their religious beliefs?
[8]
Now, the Proposal for
an Act that was annexed to those three questions is very brief. The two
operative sections state:
1. Marriage,
for civil purposes, is the lawful union of two persons to the exclusion of all
others.
2. Nothing in this Act affects the freedom of officials of
religious groups to refuse to perform marriages that are not in accordance with
their religious beliefs.
[9]
Now, there was a
fourth question added to the Reference by a document of the Privy Council
Order-in-Council, dated January 26, 2004, whereby Question 4 was posed:
Is the opposite-sex requirement for marriage for civil purposes, as
established by the common law and set out for Quebec in section 5 of the Federal
Law Civil Law Harmonization Act No. 1, consistent with the Canadian
Charter of Rights and Freedoms? If not, in what particular or particulars
and to what extent?
IV. ANALYSIS
A. The Cases Egale, Halpern and Hendricks
and the Reference.
[10]
These cases are
essential reading on this topic, not just for the sophisticated analysis by the
courts on this issue but also to better understand the previous positions taken
by the Attorney General of Canada. The British Columbia Court of Appeal
released its decision in Egale, [2003] B.C.J. No. 994. It reversed the
lower court decision. It found that the common-law bar to same-sex marriage
contravened s. 15 of the Charter and cannot be justified under s. 1 of
the Charter. The Court reformulated the common-law definition of
marriage to mean “the lawful union of two persons to the exclusion of all
others.” This is found in paragraph 7 of that case. The remedies were
suspended until July 12, 2004, to give the Federal and Provincial Governments
time to review and revise legislation to accord with the decision. This date
was consistent with the expiration date of the 24-month suspension period
ordered by the Divisional Court of Ontario in Halpern v. Canada (Attorney
Genera), [2002] O.J. No. 2714. The Court did not order mandamus or
prohibition in Egale on the basis it was unnecessary to do so,
presumably because there was a suspension in place.
[11]
Turning from British
Columbia to Ontario, in Ontario, the Ontario Court of Appeal released its
decision in Halpern v. Canada (Attorney General) on June 10, 2003,
[2003] O.J. No. 2268. This was an appeal from the divisional court, a court
consisting of three Ontario Superior Court judges. The Ontario Court of Appeal
dismissed the Attorney General of Canada’s appeal from a declaration of
invalidity. Like the British Columbia Court of Appeal, the Ontario Court of
Appeal declared the existing common-law definition of marriage to be invalid
and reformulated the common-law definition as “the voluntary union for life of
two persons to the exclusion of all others.”
[12]
In the course of
argument, I asked counsel to explain the difference between the British
Columbia and Ontario formulations, the first referring to “lawful union” and
the second to “voluntary union”. It was not apparent and is not apparent to me
why there is a difference, although counsel for the applicants correctly
pointed out that the significant change to the common-law definition is the
same in both, that is, to delete one man and one woman and to substitute “two
persons”.
[13]
Unlike the British
Columbia Court of Appeal and contrary to the request of the Attorney General of
Canada, the Ontario Court of Appeal ordered the declaration of invalidity to
have immediate effect. The Court also ordered the Clerk of the City of Toronto
to issue marriage licences to the couples and ordered the Registrar General to
accept for registration the marriage certificates. The Attorney General of
Canada asked the Ontario Court of Appeal to restrict itself to a declaration of
invalidity and to suspend the declaration of invalidity for two years. At
paragraph 149, the Ontario Court of Appeal rejected the Attorney General of
Canada’s submission because of the Court’s obligation to reformulate a
common-law rule that breaches a Charter right. I quote from paragraphs
149 to 154:
We reject the AGC’s submission that the only remedy we should order is a
declaration of invalidity, and that this remedy should be suspended to permit
Parliament to respond. A declaration of invalidity alone fails to meet the
court’s obligation to reformulate a common law rule that breaches a Charter
right. Lamer C.J.C. highlighted this obligation in Swain at 978:
[B]ecause this appeal involves a Charter
challenge to a common law, judge-made rule, the Charter analysis
involves somewhat different considerations than would apply to a challenge to a
legislative provision. … Given that the common law rule was fashioned by judges
and not by Parliament or a legislature, judicial deference to elected bodies is
not an issue. If it is possible to reformulate a common law rule so that
it will not conflict with the principles of fundamental justice, such a
reformulation should be undertaken.
No argument was presented to us that the reformulated common law
definition of marriage would conflict with the principles of fundamental
justice. Nor is there any issue that the reformulated definition would
violate the Charter.
In addition to failing to fulfil the court’s obligation, a declaration
of invalidity, by itself, would not achieve the goals of s. 15(1). It
would result in an absence of any legal definition of marriage. This
would deny to all persons the benefits of the legal institution of marriage,
thereby putting all persons in an equally disadvantaged position, rather than
in an equally advantaged position. Moreover, a declaration of invalidity
alone leaves same-sex couples open to blame for the blanket denial of the
benefits of the legal institution of marriage, a result that does nothing to
advance the goal of s. 15(1) of promoting concern, respect and consideration
for all persons.
We are also of the view that the argument made by the AGC and several of
the intervenors that we should defer to Parliament once we issue a declaration
of invalidity is not apposite in these circumstances. Schachter
provides that the role of the legislature and legislative objectives is to be
considered at the second step of the remedy analysis when a court is deciding
whether severance or reading in is an appropriate remedy to cure a legislative
provision that breaches the Charter. These considerations do not
arise where the genesis of the Charter breach is found in the common law
and there is no legislation to be altered. Any lacunae created by a
declaration of invalidity of a common law rule are common law lacunae that
should be remedied by the courts, unless to do so would conflict with the
principles of fundamental justice.
The third step remains to be considered, that is, whether to temporarily
suspend the declaration of invalidity. As previously noted, the AGC
argues for a suspension in order to permit Parliament an opportunity to respond
to the legal gap that such a declaration would create. Again, Schachter
provides guidance on the resolution of this issue. Lamer C.J.C.
emphasized, at p. 716, that “[a] delayed declaration allows a state of affairs
which has been found to violate standards embodied in the Charter to
persist for a time despite the violation.” He stated, at pp. 715-16 and 719,
that temporarily suspending a declaration of invalidity is warranted only in
limited circumstances, such as where striking down the law poses a potential
danger to the public, threatens the rule of law, or would have the effect of
denying deserving persons of benefits under the impugned law. Further,
Lamer C.J.C. pointed out, at p. 717, that respect for the role of the
legislature is not a consideration at the third step of the analysis:
The question whether to delay the application of a
declaration of nullity should therefore turn not on considerations of the role
of the court and the legislature, but rather on considerations listed earlier
relating to the effect of an immediate declaration on the public [i.e.
potential public danger, threat to the rule of law, or denial of benefit to
deserving persons].
There is no evidence before this court that a declaration of invalidity
without a period of suspension will pose any harm to the public, threaten the
rule of law, or deny anyone the benefit of legal recognition of their
marriage. We observe that there was no evidence before us that the
reformulated definition of marriage will require the volume of legislative
reform that followed the release of the Supreme Court of Canada’s decision in M.
v. H. In our view, an immediate declaration will simply ensure that
opposite-sex couples and same-sex couples immediately receive equal treatment
in law in accordance with s. 15(1) of the Charter.
Accordingly, we would allow the cross-appeal by the
Couples on remedy. We would reformulate the common law definition of
marriage as “the voluntary union for life of two persons to the exclusion
of all others”. We decline to order a suspension of the declaration of
invalidity or of the reformulated common law definition of marriage. We would
also make orders, in the nature of mandamus, requiring the Clerk of the
City of Toronto to issue marriage licences to the Couples, and requiring the
Registrar General of the Province of Ontario to accept for registration the
marriage certificates of Kevin Bourassa and Joe Varnell and of Elaine and Anne
Vautour.
[14]
On June 17, 2003, one
week after the decision in Halpern, the Attorney General of Canada
announced that it would not appeal either Halpern or Egale. On
July 8, 2003, the British Columbia Court of Appeal revisited the question of
remedy in Egale, [2003] B.C.J. No. 1582. The successful applicants had
asked that the appeal be reopened to lift the suspensions. The Attorney
General of Canada consented to the application. The Court, noting that delay
in implementing the remedies would result in unequal application of the law,
with Ontario same-sex couples being allowed to marry while British Columbia
same-sex couples could not until July 12, 2004, amended their Order to take
immediate effect.
[15]
On March 19, 2004, the
Quebec Court of Appeal released its decision in Catholic Civil Rights League
v. Hendricks, [2004] Q.J. No. 2593. The Court upheld the trial court’s
decision of invalidity. The decision of Madam Justice Lemelin on September 6,
2002, had declared two Federal Acts applicable only to Quebec, and part of the
Civil Code of Quebec, providing that a marriage can only be solemnized between a
man and a woman, to be inoperative. The declaration of invalidity was
suspended for two years by Madam Justice Lemelin. On July 14, 2003, the
Attorney General of Canada discontinued its appeal of the judgment of Madam
Justice Lemelin. On July 16, 2003, the Reference that I have previously
referred to was initiated.
[16]
On January 22, 2004,
the Attorney General of Canada advised the Quebec Court of Appeal that it was
no longer seeking the continuation of the suspension of invalidity ordered by
Madam Justice Lemelin. This, of course, was consistent with the Attorney
General of Canada’s consent before the British Columbia Court of Appeal that
resulted in the July 8, 2003, removal of the British Columbia suspensions. The
Quebec Court of Appeal, which was sitting, by the way, as a five-person court,
noted, as well, that on January 26, 2003, the fourth question had been added to
the Reference. The Court of Appeal reviewed the British Columbia and Ontario
cases. It noted, at paragraph 16, that an intervenor before the Ontario Court
of Appeal in Halpern had sought leave to appeal from its decision, that
is the decision in Halpern, but that the Attorney General of Canada had
successfully applied to the Supreme Court of Canada to quash that motion.
[17]
The Court of Appeal in
Quebec stated, at paragraph 20:
Regardless of its source, whether common law or
federal legislation, the rule of law impugned is the same throughout Canada:
marriage is the voluntary union of one man and one woman to the exclusion of
all others. The basis for the constitutional attack is also the same,
throughout Canada: the prohibition of civil marriage between spouses of the
same sex is said to be unconstitutional and inoperative because of its
discriminatory nature prohibited by the Charter.
[18]
The Quebec Court of
Appeal held, at paragraphs 22 and 23, that the Attorney General of Canada, not
having appealed Egale and having been successful in quashing the appeal
from Halpern, that the matter was res judicata, that is, a matter that had previously been decided
against the Attorney General
of Canada and binding on it. At paragraph 26, the Quebec Court of Appeal cited
a noted constitutional authority, Hogg, that is Peter W. Hogg, Constitutional Law of Canada
2001 Edition. Quoting then at paragraph 26, the Quebec Court of Appeal noted that Hogg wrote
the following:
Once the Supreme Court of Canada has held that a law
is unconstitutional, there can be no doubt about the status of the law: it is
invalid, and need not be obeyed. The same result follows from a holding of
invalidity by a lower court. Moreover, it is unlikely that the government would
succeed in obtaining a stay of judgment, or an injunction compelling obedience
to the law, pending an appeal. Of course, the holding of unconstitutionality
might be reversed on appeal, in which case the theory would be that the law had
always been constitutional. Anyone disobeying a law, in reliance on the
judgment of a lower court that the law is unconstitutional, does take the risk
that the law will ultimately be held to be constitutional. However, it is
unlikely that such a person would be exposed to criminal liability by the
retroactive effect of the appellate court's reversal of the holding of
unconstitutionality.
[19]
Further on, the Court of Appeal quoted:
Once a law has actually been held to be
unconstitutional, even if the holding is under appeal, the public interest in
the continued enforcement of the law is enormously diminished. The government
is therefore usually unsuccessful in obtaining a stay of judgment to keep the
law in force pending the decision on appeal.
[20]
The Quebec Court of
Appeal was mindful of the Reference and all four questions therein.
Notwithstanding its knowledge of the Reference and in view of the Attorney
General of Canada’s position before them, who was no longer requesting a
suspension of the Order of invalidity, the Quebec Court of Appeal struck the
suspension of declaration of invalidity and ordered solemnization of the
marriage according to law.
B. The Attorney General of Canada’s Request
for an Adjournment
[21]
Despite the position
the Attorney General of Canada took in British Columbia and Quebec, agreeing to
the immediate application of the declaration of invalidity and, of course, the
consequent marriage by many same-sex couples in both of those jurisdictions, as
indeed I am informed has occurred in Ontario, the Attorney General suggests
before me that this matter should be adjourned to a date sometime after the
Reference, noting that the Yukon Government will register the marriage retroactive
to July 17, 2004. The Attorney General argues that the Reference and
Parliament’s response to it are a preferable process; that this Court should
not decide this matter in the absence of a full evidentiary record, including
material defending the common-law definition of marriage or a “contradictor” to
defend the common-law definition of marriage; that deciding this case on its
merits is premature, given the reference and the proposed new legislation; that
the petitioners have provided no evidence of real prejudice, and that to hear
this matter would be a waste of scarce judicial resources.
[22]
I reject the argument
of the Attorney General of Canada for five reasons:
1. As
has been decided in British Columbia, Ontario and Quebec and is agreed to by
the Attorney General of Canada, the opposite sex requirement of the common law
has been determined to be inconsistent with the equality guarantee of s. 15(1)
of the Charter. This means that three courts of appeal have held common
law or judge-made law or in Quebec, statute law, to be discriminatory. Two of
the courts have reformulated the common law. Thus, the common law in British
Columbia and Ontario is now different in those jurisdictions. For my part, I
agree with the reasoning of the Provincial Courts of Appeal I have referred to,
and I agree with the reformulations of the common law, and I adopt their
reasoning in this case.
2. I
do not consider it open to the Attorney General of Canada to ask this Court to
defer to the Reference and to Parliament. The Attorney General of Canada is
not divisible by province. The office of the Attorney General of Canada is
responsible for federal law. The capacity to marry is a federal issue. To
paraphrase paragraph 28 of Hendricks, it is legally unacceptable in a
federal constitution area involving the Attorney General of Canada for a
provision to be inapplicable in one province and in force in all others. As a
result of the action or inaction of the Attorney General of Canada, in my view
were I to agree with the request for an adjournment, a legally unacceptable
result would be perpetuated in the Yukon. I do not accept that R. v. Wolf,
[1975] 2 S.C.R. 107, cited by the Attorney General of Canada, is applicable. Wolf
deals with questions of stare decisis, not a constitutional question
where the Attorney General of Canada has decided not to appeal the decisions of
provincial courts of appeal, consented to the lifting of suspensions of
declaration of invalidity, and successfully moved to quash an appeal to the
Supreme Court of Canada by an intervenor in Halpern, an intervenor who
would be a “contradictor” to the present position of the Attorney General of
Canada. As previously referred to, the British Columbia Court of Appeal noted
in paragraph 7 of its July 8, 2003, decision: “To fail to act now in the face
of an acknowledged constitutional violation will result in an unequal
application of the law.”
3. A
reference is, of course, a question of consultation, which, as observed by the
Quebec Court of Appeal at paragraph 50 of Hendricks, may or may not
result in new legislation, a political question for the Government and
ultimately Parliament. Thus, we know not what may be ultimately decided in the
Supreme Court or, indeed, in Parliament; and we cannot predict when either might
occur.
4. As
to the need for a record, in my view, I have no need for more evidence than the
refusal of the Yukon Territorial Government to issue a licence or to register
the marriage because of its understanding of the common law and the acknowledgement
by the Attorney General of Canada that the common law rule is discriminatory.
It is true that there appears to have been a great deal of evidence before the
courts of first instance and appeal in British Columbia, Ontario and Quebec;
but there is no need to repeat this evidence before me or any other member of
this Court in order to arrive at a conclusion already reached after tremendous
application of judicious effort by three provincial courts of appeal in order
to lead to a conclusion that the Attorney General of Canada properly
acknowledges is correct, that is, that the common-law definition of marriage is
unconstitutional, a conclusion that is, after all, a conclusion of law, not
fact, and for that I cite paragraph 30 of Halpern. Incidentally, the
reasoning of the Attorney General of Canada is very clearly set out in its
factum filed with the Supreme Court of Canada in the reference. This factum,
which is part of the record material before me, was authored in part by Peter
W. Hogg, previously referred to.
5. Finally,
I agree with counsel for the applicants that the Attorney General’s request for
an adjournment is essentially a preemptive request for a suspension of remedy
or stay. As noted above, the Attorney General’s request for a suspension of
remedy to defer to Parliament was rejected by the Ontario Court of Appeal in Halpern
because of the Court’s obligation to reformulate a common-law rule that
breaches the Charter. I agree with that reasoning and adopt it.
V. CONCLUSION
[23]
To conclude, first I
dismiss the Attorney General of Canada’s application for an adjournment to
await the result of the Reference and the response of Parliament. Second, in
my view, it is not necessary in this case to decide whether the invalidity of
the common-law definition of marriage is res judicata vis-à-vis the
Attorney General of Canada, the legal office of the Crown responsible for the
federal constitutional power relating to the capacity to marry; because the
Attorney General of Canada acknowledges the unconstitutionality of the
common-law definition. Third, it is not necessary for this Court to do a
separate new analysis of the s. 15(1) breach. For the reasons expressed by the
British Columbia Court of Appeal in Egale and the Ontario Court of
Appeal in Halpern, and in particular, bearing in mind the framework of
analysis utilized by the Ontario Court of Appeal, I hold that the common-law
definition of marriage is invalid, because it violates s. 15(1) equality rights
and cannot be justified under s. 1 of the Charter. I reformulate the
common-law definition of marriage, using the Ontario wording of “voluntary,”
simply because the original common-law definition in Hyde v. Hyde
(1866), L.R.1 P & D 130, 133 used “voluntary,” and because it has not been
made apparent to me why the British Columbia Court of Appeal used the word
“lawful”. The critical wording refers to who can marry.
[24]
Therefore, the new
common-law definition of marriage in the Yukon is “the voluntary union for life
of two persons to the exclusion of all others.”
[25]
As to remedy, I am
prepared to accept the undertaking by the Yukon Territorial Government, given
through its counsel, that it will immediately issue a marriage licence and
register the marriage following a decision such as the one I have just made; but
I do pause at this time to make sure that I understand correctly the Yukon
Territorial Government’s position. Have I captured your position correctly,
Ms. Morris?
[26]
MS. MORRIS: That’s
correct, yes.
[27]
THE COURT: So,
following this decision, there will be an immediate issuance of a marriage
licence, and the wedding ceremony will be registered?
[28]
MS. MORRIS: Yes,
there are some documents that the petitioners have to provide that are
standard. Once that’s done, then a marriage licence will be issued.
[29]
THE COURT: Thank
you. In view of that undertaking, then, it is not necessary, in my view, to
issue an Order for mandamus or prohibition.
[30]
Counsel, do you have
anything in respect of costs or anything further to say?
[31]
MR. TUCKER: Yes,
My Lord, there is a portion of the brief which we have submitted, commencing at
paragraph 136, and going to paragraph 139 with respect to costs. We seek
special costs and specific solicitor and own client costs against the
respondents for Mr. Dunbar and Mr. Edge having to have brought this
application. The essence of this request is simply that they did nothing
wrong. They were forced by the conduct or lack of conduct of the two levels of
government, especially in light of the recent decisions from the Courts of
Appeal for Quebec, British Columbia and Ontario, to bring this court
application to seek equal treatment under the law. They were discriminated
against by the application of an obiter comment in a trial court decision from
England from 1866, which was applied to the common-law definition of marriage
in spite of those Court of Appeal decisions. The discrimination has been
acknowledged; yet we are here. While the period of time between the
commencement of this action and its conclusion has been relatively short, as I
can assure the Court and I think that the Court is probably aware that it’s
required an enormous amount of preparation; and as a natural result of that, an
enormous amounts of costs. Costs normally follow the cause in any event, but
the normal tariff of costs will only compensate Mr. Dunbar and Mr. Edge a
portion of what they have had to bear to get to this point, to get to be
treated the same as everybody else; and that would be unfair.
[32]
THE COURT: Mr.
Phelps.
[33]
MR. PHELPS: My
Lord, the Attorney General of Canada certainly opposes an Order for solicitor
and own client costs and is rather concerned with the representation of the
enormous amount of preparation that has been used as a reference by my friend
just now. The Attorney General of Canada’s position with respect to this
petition was provided to my friend prior to the petition even being filed, that
is, that we would adopt the position taken in the factum before the Supreme
Court of Canada but would be taking the position that the matter should not proceed,
based on the adjournment application that was before you. All of that was
provided even prior to the petition being filed to my friend.
[34]
There was no original
argument provided to this Court. One of the counsel for the intervenors acted
as co-counsel in this matter, and the argument that was put before this Court
with respect to the substantive issue was the same argument that was put before
the Supreme Court of Canada and the Courts of Appeal, as was the position of
the Attorney General of Canada.
[35]
The Attorney General
also takes the position that it is acting in a timely fashion with respect to
resolving this issue on a national level for the now nine remaining
jurisdictions that still fall under the old common law and that under the
circumstances should not be penalized in the fashion of solicitor and own
client costs in this proceeding.
[36]
Those are the
submissions of the Attorney General.
[37]
THE COURT: Thank
you, Mr. Phelps. Ms. Morris.
[38]
MS. MORRIS: Like
the Attorney General of Canada, we would be opposed to special costs being
ordered. As my friend, Mr. Tucker has suggested, he says that the petitioners
have done nothing wrong or they were forced into this litigation. I would
agree that for them to obtain the particular remedy that they sought, they did
have to commence the litigation. However, the Yukon Government has not opposed
the declaration. We also feel that we have done nothing wrong, that we’ve
simply acted in accordance with our understanding of the law and that we don’t
think that it’s appropriate that special costs be ordered against us.
[39]
With respect to the
preparation, the main part of this application, of course, was seeking the
declaration and the reformation of the common law. I would agree with Mr.
Phelps that much of that argument has already been made very compellingly for
Mr. Tucker and that to a very large extent, he’s been able to simply use and
adopt the argument that has been made earlier and the Court decisions in other
provinces.
[40]
I would also point out
that there is only a period of five weeks between when this petition was filed
and the hearing of yesterday and today; and there’s been no delay on the part
of either of the respondents, that there has been full cooperation, in my
submission, with the petitioners.
[41]
THE COURT: Thank
you very much. With respect to the question of costs, costs, of course, are a
matter of discretion. The applicants ask for solicitor client costs. The
respondents are opposed to solicitor client costs. In part, arguments are made
to me about the quantum of costs. Well, the quantum of costs, except in very
unusual circumstances, is subject to taxation; and thus, the real issue before
me is whether there are special circumstances that would require the imposition
of solicitor client costs. In my view, with respect to the Attorney General of
Canada, the approach it has taken is so fundamentally inconsistent with the
approach it took in the other provinces and, indeed, with the approach that it
acknowledges to be correct in the Supreme Court of Canada, that solicitor
client costs should be awarded against the Attorney General of Canada. With
respect to the Yukon Territorial Government, it is true, I acknowledge what
counsel says on behalf of the Government, that it has not opposed the declaration;
but it did not grant the request by the applicants, a request that I now say
should have been granted; and it had a choice. It could allow the request or
wait for a decision of the Court. It decided to await the decision of the
Court, and it now has such a decision, but there is to be a cost associated
with that. It is a litigant that lost, in my view, by not acting prior to this
decision. Thus, I am going to order that costs on a solicitor client basis be
shared by both the Attorney General of Canada and the Yukon Territorial
Government.
[42]
For greater clarity,
this is not solicitor and his own client costs, which I understand to mean
costs that are not subject to taxation. I am simply describing these as
solicitor client costs, which are taxable; and I make that specific
determination in view of the observations by counsel for the Attorney General
of Canada and the Yukon Territorial Government relating to preparation that may
well have been done for other purposes. That concludes my ruling with respect
to costs.
[43]
Are there any
technical questions with respect to the ruling on costs?
[44]
MR. TUCKER: No,
My Lord, thank you.
[45]
MR. PHELPS: No,
thank you.
[46]
MS. MORRIS: No,
thank you.
[47]
THE COURT: Thank
you very much for your efforts, counsel.
__________________________
McINTYRE
J.
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