Federal Court awards costs on orca protection case

Fisheries on the hook for $80,000 in legal costs

by Mark Hume

The Federal Court of Canada has stuck the Department of Fisheries and Oceans with an $80,000 legal bill because, in a court battle over orca habitat, the government “displayed reprehensible, scandalous or improper conduct that is deserving of reproof or rebuke.”

DevonPage, executive director of Ecojustice, a not-for-profit legal foundation, said the decision “is exceptional” and its wording leaves no doubt that Mr. Justice James Russell wanted to scold DFO for its conduct in the case.

“This outcome is … very rare in Ecojustice’s history of doing public-interest
environmental law. Basically, DFO was almost bizarrely obstructive in our legal case to identify and protect orca habitat and got spanked for it,” Mr. Page said in an e-mail.

Judge Russell awarded a lump sum of $80,000 to nine environmental groups that hired Ecojustice to take DFO to court last year over what it called the inadequacies of federal efforts to protect the whales.

Ecojustice won that case in December, getting a ruling that DFO must protect the critical habitat of orcas. One aspect of that ruling is under appeal, but Ecojustice won on eight of the nine legal points, and the outcome of the pending appeal will not change the financial award.

In the ruling released on Tuesday, Judge Russell said DFO has to pick up the full Ecojustice solicitor-client costs because the environmental groups had acted in the public interest, with no proprietary or pecuniary interest, and because the government “adopted an unjustifiably evasive and obstructive approach … for no other purpose than to thwart the applicants’ attempts to bring important public issues before the court.”

Judge Russell said he agreed with an Ecojustice argument that solicitor-and-client costs “may be awarded when a party has displayed reprehensible, scandalous or improper conduct that is ‘deserving of reproof or rebuke.’ ”

He states that DFO rejected efforts to settle issues beforehand, and exacerbated the conflict “by hiding behind entirely procedural arguments, and failing, despite repeated opportunities, to put forward a substantial position on the merits of the case.”

Judge Russell noted that, in a case in September, 2009, the Federal Court ruled the federal government was responsible under the Species At Risk Act for protecting the critical habitat of Nooksack Dace, an endangered fish found in only a few streams in British Columbia.

Because a similar argument was being made about the importance of critical habitat in the orca case, Judge Russell said the Nooksack Dace ruling could have cleared up some of the outstanding issues before trial.

He said DFO changed its legal position because of the Nooksack Dace ruling, “but chose not to communicate this fact” to the environmental groups for several months, forcing Ecojustice “to unnecessarily expend significant resources” preparing legal arguments.

And Judge Russell said that, “most egregiously,” DFO sat through two days of oral arguments by Ecojustice even though the government lawyers knew they were going to concede the point.

“Not only was this failure to admit a waste of time, but also a waste of the court’s time and judicial resources,” Judge Russell stated.

DFO did not respond to a request for comment.

Environmental groups in B.C. have been taking the federal government to court for failing to define critical habitat in plans to protect endangered species.

© 2011 Globe and Mail