COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education),
	2018 BCCA 423

Date: 20181113

Docket: CA44023

Between:

Conseil scolaire francophone de la Colombie-Britannique, Fédération
des parents francophones de Colombie-Britannique, Annette Azar-Diehl,
Stéphane Perron and Marie-Nicole Dubois

Appellants

Respondents on Cross Appeal

(Plaintiffs)

And

Her Majesty the Queen in Right of the Province of British Columbia,
and the Minister of Education of British Columbia

Respondents

Appellants on Cross Appeal

(Defendants)

Before:

The Honourable Chief Justice Bauman The Honourable Mr. Justice Tysoe The Honourable Madam Justice MacKenzie

Supplementary Reasons to Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2018 BCCA 305.

Counsel for the Appellants:	R. Grant, Q.C. M. Power D. Taylor J. Klinck
Counsel for the Respondents:	K. Wolfe E. Ross
Place and Dates of Hearing:	Vancouver, British Columbia January 29, 30 & 31, 2018 February 1 & 2, 2018
Place and Date of Judgment:	Vancouver, British Columbia July 25, 2018
Written Submissions Received:	September 18, 2018 October 2 & 3, 2018
Date of Supplementary Judgment:	November 13, 2018

Supplementary Reasons of the Court

Summary:

As supplementary submissions, the appellants challenge an order on costs and seek costs at this Court. Held: Appeal dismissed. The trial judge did not err in principle. There is no reason to disturb the trial judge’s order. Each party to bear their own costs on the appeal before this Court.

Supplementary Reasons of the Court:

[1] In reasons for judgment indexed as 2018 BCCA 305, we dismissed the appeal of the plaintiffs, who in this case are the French-language school board Conseil scolaire francophone de la Colombie-Britannique (“CSF”), individual parents who are s. 23 rightsholders, and an association that represents Francophone parents, the Fédération des parents francophones de Colombie-Britannique (“FPFCB”). We also allowed the cross appeal of the Province and set aside the trial order that the Province pay the CSF $6 million in Charter damages.

[2] Justice Russell delivered separate merits reasons (2016 BCSC 1764) and costs reasons (2018 BCSC 105) in her trial decision. In her costs reasons, the trial judge ordered each party to bear their own costs because, in her view, success was divided.

[3] Due to timing, we invited the parties to file submissions on the issue of trial costs and costs in this Court separately from their submissions on the merits. They have done so.

[4] The plaintiffs ask that the trial judge’s costs order be set aside and that we award them costs. They submit the trial judge erred in principle by not finding them substantially successful at trial. The plaintiffs also seek special costs as public interest litigants.

[5] The Province submits that the trial judge’s costs order should be maintained.

[6] Costs awards are “quintessentially discretionary”: Nolan v. Kerry (Canada) Inc., 2009 SCC 39 at para. 126. A costs order may be set aside on appeal only if the trial judge has made an error in principle or if the costs order is plainly wrong: British Columbia v. Salt Spring Ventures Inc., 2015 BCCA 343 at para. 14.

[7] We see no reason to disturb the trial judge’s order that each party bear their own costs. The trial judge is best placed to determine the relative success of the parties in this complicated and protracted litigation. In making that determination, the judge committed no error in principle and was not clearly wrong.

[8] On appeal before this Court, the Province was wholly successful. However, the Province suggests in its written submissions that because the main parties are all public entities, each party should bear their own costs on the appeal. We agree. For the appeal before this Court, each party will bear its own costs.

“The Honourable Chief Justice Bauman”

“The Honourable Mr. Justice Tysoe”

“The Honourable Madam Justice MacKenzie”