Written Reasons by:
The Honourable Madam Justice Newbury

Concurred in by:
The Honourable Madam Justice Prowse
The Honourable Mr. Justice Donald

[1] This is the second interlocutory order to be appealed in these proceedings, in which the Adams Lake, Spallumcheen, Neskonlith and Okanagan Bands challenge the constitutionality and applicability to them of ss. 96 and 123 of the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159 (the "Code"). (A companion case, British Columbia (Ministry of Forests) v. Westbank [1999] B.C.J. No. 2161 (Q.L.), has recently been settled.) I understand that these cases will be the first to try aboriginal claims to title and other rights in respect of logging in the Province. As noted by Hall J.A. for this court in the earlier appeal (see infra), such rights are a "new or largely unexplored domain" in British Columbia.

[2] The proceedings originated in the fall of 1999, when members of the Bands purported to log Crown land without authorization under the Code, but instead with authorization from their respective tribal councils. The Minister of Forests served the appellants with stop-work orders under the Code and brought proceedings in the form of petitions to enforce the stop-work orders. The appellants filed a Notice of Constitutional Question challenging ss. 96 and 123 of the Code on the basis that they did not accommodate the Bands' asserted title to the Crown lands, and their asserted right to log the lands. The Minister sought an interim injunction to halt the logging and to preserve the status quo pending judicial determination of the matter. The Chambers judge (see British Columbia (Ministry of Forests) v. Okanagan Indian Band (1999) 37 C.P.C. (4th) 224) granted the injunction, stating:

The injunction was upheld by this court for reasons now reported at (2000) 187 D.L.R. (4th) 664. The appellants have sought leave in the Supreme Court of Canada to appeal that ruling.

[3] In January 2000, the Minister applied in Supreme Court under R. 52(11)(d) to have its petition remitted to the trial list and to have pleadings filed, as later occurred in the Westbank case: see (2000) 75 B.C.L.R. (3d) 250. The Bands opposed the motion, arguing that the Court should exercise its discretion under the Rules or pursuant to its inherent jurisdiction by refusing to order a trial or alternatively, by requiring the Province to pay the Bands' legal fees and disbursements (referred to as "costs" in the Bands' factum), in any event of the cause, should a trial be ordered. They were unsuccessful. For reasons now reported at [2000] B.C.J. No. 1536 (Q.L.), the Chambers judge (who is the designated case management judge) ordered a trial but declined to order that the Province pay the Bands' fees and disbursements of the trial in advance. The Bands now appeal both rulings.

[4] Before considering the Chambers judge's reasoning and conclusions, I should make reference to the affidavit evidence regarding the financial position of the four Bands. There can be little doubt that their situations make the funding of complex litigation difficult. Chief Dan Wilson of the Okanagan Band deposes, for example, that:

and further, in connection with the Band's need for housing and timber:

[5] Similarly, Chief Ron Christian of the Spallumcheen Band deposed:

[6] I did not understand the Minister to take issue with the contention that the Bands are in dire financial circumstances, especially with regard to housing; nor that resort to a contingency fee arrangement with a lawyer would be unrealistic in the context of this case, which does not involve a claim for damages or a dispute about a fund of money. There is evidence that the appellants had applied to the federal Test Case Funding Program to fund their litigation, but the Program does not fund litigation at the trial level. Ms. Mandell's letters to Indian and Northern Affairs Canada requesting funding have gone without any positive response. There was no evidence of the position of the Legal Services Society of British Columbia with respect to cases such as this.

[7] Ms. Mandell has advised her clients that her firm's fees for the trial, including pre-trial motions and procedures, document disclosure, experts, preparation, etc. plus disbursements, would amount to some $814,010. No attempt was made to calculate what the Bands' costs (in the sense of that word as it is used in the Supreme Court Rules) would be.

[8] This brings me to a point about terminology. As I have already indicated, the Bands sought an order that the Province pay their "interim costs" as a condition of ordering a trial. But there were also references in the factum to the Bands' "legal fees" and in their oral argument, counsel referred to a "funding order". Following the hearing of the appeal, we sought clarification from Ms. Mandell, who confirmed that the Bands are indeed seeking "advance payment of actual legal fees and disbursements from the Province." Ms. Mandell's letter also referred to court orders for "costs on a full indemnity basis payable forthwith and in any event of the cause." In this regard, she cited the decision of Mr. Justice Lambert in Chambers in Redfearn v. Elkford (District) (1999) 37 C.P.C. (4th) 141, in which he allowed an application to reinstate an appeal on the condition that the plaintiff's special costs be paid in any event of the outcome of the appeal. That was a case, however, in which special costs (as distinct from legal fees and disbursements) were ordered because of the conduct of the appellant in delaying the bringing of the appeal. The order made was consistent with the normal rule that special costs are generally reserved for situations where they are necessary to redress the conduct of the parties to the litigation: see Fullerton v. District of Matsqui (1992) 12 C.P.C. (3d) 310 (B.C.C.A.) at 328-9.

[9] Ms. Mandell also cited an order made by a five-member panel of the Supreme Court of Canada recently in Law Society of British Columbia v. Mangat [1999] S.C.C.A. No. 43, after the panel had refused an application to have the appeal dismissed as moot:

Ms. Mandell says this is an example of an award of "interim costs at a full indemnity level payable forthwith and in any event of the cause." However, it appears from the final order (see para. 77, 2001 SCC 67) that the Court granted "solicitor-client costs" and did not depart from the usual principles governing costs.

[10] In any event, in the balance of these Reasons, I will use the word "costs" in the way it is usually used in the Supreme Court Rules and in litigation parlance - i.e., taxable costs described in R. 57. As noted by this court in Ridley Terminals Inc. v. Minette Bay Ship Docking Ltd. (1990) 45 B.C.L.R. (2d) 367, "costs" in British Columbia "have a traditional meaning unless qualified by statute or by agreement of the parties. That traditional meaning is governed by the provisions of Rule 57 of the Supreme Court Rules." (at 372.) Rule 57(1) provides that costs "shall be assessed as party and party costs under Appendix B, unless the Court orders that they be assessed as special costs." (My emphasis.) I will use the phrase "legal fees" to refer to actual legal fees and disbursements. There is no doubt that the Chambers judge below appreciated the distinction, although he said at para. 7 of his Reasons that he would refer to actual fees and disbursements as "costs in advance" or "interim costs."

[11] The Chambers judge began his Reasons by briefly summarizing the evidence of the Bands' financial circumstances, having described much of it in greater detail in his previous judgment granting the interim injunction. Turning to the question of whether the Bands' claims could be tried summarily or required a full trial, he noted his earlier reasoning in British Columbia (Minister of Forests) v. Westbank First Nation [1999] B.C.J. No. 2546 (Q.L.), and adopted it in the case at bar (at para. 22):

The Chambers judge continued:

[12] Before going on, however, to make such an order, the Chambers judge turned to consider the Bands' alternative submission that if the Minister's application under R. 52(11)(d) was granted, the Court should order the Province pay the Bands' legal fees and disbursements of the trial in advance. He summarized the Bands' constitutional arguments:

[13] In response, the Minister argued below that the Court had no jurisdiction (whether inherent, statutory, or under the Rules of Court) to order interim costs or the payment of trial costs in advance. Further, the Minister said, "the right to access to justice is not a right for payment of solicitor-client fees on either a constitutional or a non-constitutional basis" and no violation of s. 15 of the Canadian Charter of Rights and Freedoms or any other constitutional principle would occur if the Bands' application were refused. (paras. 31-2.)

[14] The Chambers judge first considered whether the Court had inherent jurisdiction to award costs in advance or on an interim basis, and whether such jurisdiction was curtailed by the Rules, as argued by the Minister. He noted various Ontario cases that stand for the proposition that "costs normally follow the event once the outcome is determined except that there is an inherent jurisdiction to order interim costs in certain narrow circumstances." (para. 44.) In Organ v. Barnett (1992) 11 O.R. (3d) 210 (Ont. Ct. G.D.), the Court cited Jones v. Coxeter (1743) 26 E.R. 642, in which the Lord Chancellor confirmed the general principle that costs follow the event, but added that where the poverty of a litigant will not allow her to carry on with the cause unless the court directs the defendants to pay something to the plaintiff, costs are to be awarded. The Court in Organ continued:

[15] The Chambers judge also referred to the well-known decision of this court in Stiles v. British Columbia (W.C.B.) (1989) 38 B.C.L.R. (2d) 307, where it was said that the power to award costs arises from s. 3 of the Supreme Court Act, which confirms that judges of the Supreme Court have the inherent powers of a superior court of record in England. Lambert J.A. commented that decisions as to costs are "governed by a wide measure of discretion", although the power "must be exercised judicially, that is, not arbitrarily or capriciously, and in accordance with principles consistently applied." (at 310.) Southin J.A. emphasized the need of the court to know "where the right lies" before it can determine costs. In her words:

[16] The Chambers judge concluded that the court's inherent jurisdiction to grant interim costs or costs in advance is a "narrow one that must be exercised judicially" and "in light of provisions such as Rule 57(9) . . . that costs normally follow the event. In most cases that event cannot be predetermined." (para. 58.) Similarly, he said, the jurisdiction to impose a condition as to costs in making an order under R. 52(11)(d) is akin to an advance payment and requires extraordinary circumstances. At paras. 128-9 of his Reasons, he summarized his ruling on this point:

[17] The Chambers judge next turned to the Bands' constitutional arguments described at para. 12 above. He began by enunciating the Bands' argument concerning "access to justice" as follows:

The Chambers judge concluded, however, that it could not be said that the exercise of the court's discretion to order a trial without ordering the Crown to pay the appellants' fees in advance resulted in a denial of access. He emphasized that he had exercised his discretion to order a trial because the case could not be justly determined without the full panoply of pre-trial and trial procedures. The action might just as easily have come forward as an action by the Bands for a declaration of aboriginal title or rights to the logging areas in question, and in those circumstances it could not be said that without a funding order, a breach of the Bands' right to access to justice would result. In the Court's words:

[18] Next, the Court turned to s. 35 of the Constitution Act, 1982, which provides:

The Bands argued that this provision "guaranteed" them access to justice, that such access has historically been denied to aboriginal peoples and their claims (witness s. 141 of the Indian Act, R.S.C. 1927, c. 98, repealed in 1951), and that their indigent status was in large part due to conduct of the Crown. Further, the Minister's application to remit the matter to trial was said to amount essentially to a breach of fiduciary duty which in the Bands' submission "should not be countenanced." The Minister responded that it was the exercise of discretion by the court, not an act of the Province, that would result in the remitting of this proceeding to the trial list and cited Chippewas of Nawash First Nations v. Canada (Minister of Indian and Northern Affairs) [1997] 1 C.N.L.R. 1. (F.C.T.D., varied at [1999] F.C.J. No. 1822 (Q.L.)) for the proposition that "although there may be fiduciary obligations in certain circumstances, they do not lie in all circumstances." (para. 86.)

[19] The Chambers judge noted (at para. 91) the decision of the Ontario Court of Appeal in Ardoch Algonquin First Nation v. Ontario (1997) 148 D.L.R. (4th) 96, where the Court stated:

Similarly here, the Chambers judge was not persuaded that s. 35 gave rise to a fiduciary obligation on the part of the Crown either to refrain from applying under R. 52(11)(d) or to agree to fund the litigation as a condition of doing so. Therefore, he said, he did not regard the concept of fiduciary obligation as an additional relevant factor to be considered in exercising his discretion. (para. 92.)

[20] The final constitutional argument considered by the Chambers judge was based on s. 15 of the Charter - the equality right. He stated the crux of the Bands' submission this way:

The Minister responded that the Bands had not identified any comparable group where the exercise of the court's discretion under R. 52(11)(d) resulted in differential treatment; and second, that the Bands' asserted grounds (poverty or a combination of poverty and race) did not satisfy the requirement for enumerated or analogous grounds under s. 15.

[21] After reviewing the most recent leading case on s. 15, Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, and an earlier case, Rudolf Wolff & Co v. Canada, [1990] 1 S.C.R. 695, dealing with comparisons between individuals and the Crown, the Chambers judge said he did not need to decide whether it was appropriate for purposes of a s. 15 analysis to consider the Crown as a representative of groups or individuals in society who might be compared with aboriginal persons. The Court found that the issue could be decided on the basis that, assuming race and poverty were a ground that could be invoked under s. 15, the Bands had not shown that if required to go to trial under R. 52(11)(d), "they [would] be treated differently in a manner that reflects the stereotypical application of presumed group or personal characteristics." (para. 118.) Again in the words of the Chambers judge:

[22] The Chambers judge also distinguished Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624 on the basis that it had involved a government program which provided services to deaf persons but which failed to provide the services in a way that provided equal benefit to disabled persons, an historically disadvantaged group. He said that in the instant case, there was no law or program for the provision of the services sought by the Bands. Further, he said:

[23] Accordingly, the Court concluded that the exercise of the court's discretion resulting in an order to remit the matter to the trial list without a "funding order" did not violate s. 15, and that the Bands had not been denied access to justice as a result of the exercise of that discretion. (para. 125.)

[24] In their factum and their oral argument in this court, the Bands advanced constitutional arguments aimed at obtaining a "funding order" as well as arguments concerning judicial discretion in respect of "costs", without differentiating between the two. In my respectful view, the discretion exercisable by a Supreme Court judge in connection with costs is something quite different from what was sought here by the Bands - a constitutional right to funding to ensure "access to justice." Counsel focussed on the former concept in their oral submissions, but it is necessary to deal with the latter argument, at least briefly.

[25] The Bands' constitutional arguments in this court were based on two premises - the existence of what they called a "free-standing constitutional right to access justice in the courts", and s. 35 of the Constitution Act. (The equality argument was not advanced on appeal.) Ms. Mandell found support for the existence of a right to access to the courts in the words of Chief Justice Dickson in B.C.G.E.U. v. British Columbia (Attorney General) [1988] 2 S.C.R. 214. There, the Court held that the Chief Justice of the Supreme Court of British Columbia had had the jurisdiction to enjoin picketing of the Law Courts building on his own motion and ex parte. In the course of his reasons, Dickson C.J.C. observed:

The Chief Justice also endorsed the following passage from the judgment of the Court of Appeal (see (1985) 65 B.C.L.R. 113, 20 D.L.R. (4th) 399):

[26] It will be recalled that in B.C.G.E.U., the injunction was granted against picketers of the courthouse who were denying or delaying the right of the public to physical access to the courts. The Supreme Court noted that the various specific rights and freedoms enumerated in the Charter could not be enforced except through courts of competent jurisdiction. The Court confirmed that the picketing of the courthouse constituted criminal contempt in that it "transcend[ed] the limits of any dispute between particular litigants and constitute[d] an affront to the administration of justice of a whole." (at 237)

[27] However, it is a large step - in my view, too large - from the Court's reasoning in B.C.G.E.U. to the proposition that because a court of law has ordered proceedings to be remitted to the trial list, the Bands have been denied access to justice, thereby giving rise to a "right" to funding by the Province. I am not persuaded there is such a right. Unfortunately, many persons in our society find themselves unable to pay the high costs of litigation, which include provincial filing fees and taxes (unsuccessfully challenged in John Carten Personal Law Corp. v. British Columbia (Attorney General) (1997) 40 B.C.L.R. (3d) 181). In the latter case, Lambert J.A. said this for the majority:

The majority held that even though Mr. Carten, a lawyer, had deposed that he had several clients whose access to the courts was "restricted or interfered with" as a result of the imposition of social services tax on legal services, he had presented an insufficient basis of "constitutional facts" to support his argument that the tax was invalid. No case has gone so far, however, as to find that one's right to "access to justice" includes a right to state-funded legal fees or to counsel provided by the state if one cannot afford to pay for one's own lawyer.

[28] Of course there are legal aid programs in every province of Canada which soften the effect of this reality to some extent. In some circumstances as well - e.g., where a person is charged with a serious criminal offence and his liberty is at risk - there is statutory recourse such as that provided by s. 684 of the Criminal Code. But I am not aware of any authority for the proposition that the principle of access to justice means more than a duty on the government to make courts of law and judges available to all persons or that it includes an obligation to fund a private litigant who is unable to pay for legal representation in a civil suit - even one that may be sui generis. If the meaning of access to justice is to be extended that far, it is in my view for government to do.

[29] For similar reasons, I agree with the Chambers judge that s. 35 of the Constitution Act does not place an affirmative obligation on the provincial Crown or the courts to provide for the funding of the legal fees of an aboriginal band in attempting to prove an asserted right and the infringement thereof, even in defence to a proceeding brought by government. Undoubtedly, the fiduciary duty of the Crown must be considered in connection with the application of general statutes and obligations to aboriginal peoples, but as the Chambers judge noted, there is nothing in the specific circumstances of this case that would give rise to a "fiduciary expectation" of funding. (This is not to say that the existence of the Crown's broad fiduciary duty should not be considered in the exercise of the Chambers judge's discretion in making an order as to costs, as I will discuss below.)

[30] Had a breach of a constitutional right been shown or threatened, there is precedent for a "funding order" of the kind sought by the Bands, as an 'appropriate remedy' under s. 24 of the Charter. One such order was made in the well-known decision of R. v. Rowbotham (1988) 41 C.C.C. (3d) 1, in which the Ontario Court of Appeal held that in an exceptional case where legal aid has been refused and the court determines that legal representation is essential to ensure that an accused will receive a fair trial (thereby involving ss. 7 and 11(d) of the Charter), it may stay criminal proceedings against the accused until the necessary funding of counsel is provided. In the words of the Court:

In the result, the Court granted a stay and found it unnecessary to decide whether the trial judge "would be empowered to direct that legal aid or the appropriate Attorney General pay the fees of counsel." (at 70.)

[31] More recently, the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.) [1999] 3 S.C.R. 46, directed the Province of New Brunswick to provide state-funded counsel to the appellant to ensure the fairness of a hearing concerning the custody of her children, who had been taken into custody by the New Brunswick Minster of Health and Community Services. The appellant was indigent and living on social assistance and had been denied legal aid under the provincial program because custody applications were not covered under the legal aid guidelines. The Court held that the Minister's application to extend the original custody order "threatened to restrict the appellant's right to security of the person" under s. 7 of the Charter and that:

[32] The Court placed particular emphasis on the fact that in order to avoid potential conflicts of interest, the provincial government as a matter of policy did not cover custody applications initiated by the Ministry of Health. As a result of this policy, Legal Aid New Brunswick had agreed to fund guardianship applications, but did not have the resources to cover custody applications. The Court observed:

The remedy fashioned by the Court as the least intrusive one was to leave the government's policy intact "subject to a discretion vested in the trial judge to order state-funded counsel on a case-by-case basis when necessary to ensure the fairness of the custody hearing." (para. 102.) Chief Justice Lamer was of the view that by not directing the government to design a new policy, the Court was steering clear of the admonition in Osborne v. Canada (Treasury Board) [1991] 2 S.C.R. 69, against "intruding into the legislative sphere beyond what is necessary in fashioning remedies for Charter violations." (para. 102.)

[33] It was not argued in the case at bar that the federally-funded program for constitutional challenges should be ordered to cover the Bands' costs or directed to revise its policy of not funding trials. Indeed, the test-case funding program was not represented in these or related proceedings; nor was the federal Crown or the Minister of Justice to whom Ms. Mandell has addressed a request for assistance. It may be that Ms. Mandell has concluded that in the absence of a clear Charter breach, it would not have been worthwhile to join those entities in some manner in these proceedings. In any event, it would not be appropriate for me to comment further on the New Brunswick case since those possible sources might still be the object of an application.

[34] Where no breach of the Charter is shown or threatened and where no "fund" or "program" has been established, it seems clear that courts of law do not have the jurisdiction to order the Crown to defray legal fees or to retain counsel. In this regard, I note the decision of the Yukon Territory Court of Appeal in Canada (Attorney General) v. Savard (1996) 106 C.C.C. (3d) 130. In that case, a judge had appointed counsel for an accused under s. 672.24 of the Criminal Code. Unlike s. 684 of the Code, s. 672.24 made no provision for the payment of counsel, providing simply that:

[35] In Savard, supra, a trial judge had ordered that counsel be appointed for an accused in a criminal case. The lawyer first sent his account to Legal Aid, and when it refused, sought an order that the federal Minister of Justice pay his fee. The majority of the Court, per Rowles J.A. (Wood J.A. dissenting), held that in the absence of express language requiring government to pay counsel, "the fundamental principle the courts have applied in regard to the expenditure of public funds, as set out in Auckland Harbour Board v. The King [[1924] A.C. 318 (J.C.P.C.)] must be respected." (para. 113.) In Auckland Harbour Board, Viscount Haldane discussed the principle that the control of expenditures from the Consolidated Revenue Fund rests exclusively with Parliament:

As also noted by Rowles J.A. in Savard, the High Court of Australia in Dietrich v. The Queen (1992) 109 A.L.R. 385, applied the same principle. Dean J.A. stated:

[36] Rowles J.A. also noted the Supreme Court's decision in Prosper v. The Queen [1994] 3 S.C.R. 236, where the Court considered whether a person placed under arrest has a substantive right to advice from state-funded counsel. In the course of his reasons concluding that there was no such right, Chief Justice Lamer observed:

It follows, in my view, that the Bands do not have a constitutional right to provincially-funded legal fees, and that the courts do not have the jurisdiction to order same.

[37] I turn next to consider whether an order should be made in respect of "costs" as that term is normally used in legal parlance. As has been noted, the Chambers judge concluded that the court has the jurisdiction in appropriate circumstances to order costs in advance but that that jurisdiction is "narrow and restricted to exceptional cases." In my view, the circumstances of this case are "special" or "exceptional". The "test case" nature of these proceedings has already been noted, and the public importance in this Province of the issues to be tried is obvious. It is clearly in the public interest that the applicability of the Forest Practices Code to lands and activities claimed as aboriginal be determined, and be determined on all the available evidence. The proceedings were initiated and are being pursued by the Minister against the Bands, and there is no doubt that counsel who have experience in aboriginal law are required to put forth the Bands' position. These facts remove this case from the realm of ordinary litigation where costs do generally follow the event, and financial hardship is not a proper ground for ordering otherwise: see Brown v. Black Top Cabs Ltd. (1997) 43 B.C.L.R. (3d) 76 (B.C.C.A.), at para. 16. More importantly, the honour of the Crown is at stake in dealings between it and aboriginals: see R. v. Van der Peet [1996] 2 S.C.R. 507, at 537. The broad discretion exercisable by the Supreme Court in making costs orders must surely be informed by that principle in the particular circumstances of this case. In my view, it is simply unrealistic for the Crown in this case to fold its hands and say that the Bands will have to manage without counsel. In my respectful opinion, the Chambers judge erred in assuming that these matters were irrelevant to the exercise of his discretion regarding costs.

[38] On the other hand, I am not persuaded that the Chambers judge erred in concluding that the Minister's amended petition should be referred to the trial list. In reaching that conclusion, the Chambers judge was mindful of his duty in all cases to ensure the just and expeditious determination of legal questions, which would require that the petition be heard summarily if at all possible - i.e., that a trial is the only reasonable way in which justice can be done, not that it is the "best way", as Ms. Mandell interpreted the Chambers judge's reasoning. He found that the particular complexities of this case, which will necessitate the examination or oral histories and the difficult questions of credibility and reliability they involve, required a full trial. Apparently, the parties have not been able to agree on any "compromise" arrangement under which limited rights of discovery and cross-examination might be acceptable.

[39] In all the circumstances, I conclude that the Chambers judge did not err in remitting these proceedings to the trial list but that he erred in failing to recognize that the case involves exceptional or unique circumstances which outweigh concerns about pre-judging the outcome of the case. The real challenge of this appeal is to formulate an order that will provide the Bands with concrete assistance but which will not expose the Province to unreasonable or excessive costs. The remedy sought by the Bands was that their application be sent back for determination by the Chambers judge based on the reasons of this court. When questioned, counsel explained they had stopped short of seeking an order for costs in advance from this court "out of respect for the Chambers judge". A better answer might have been that the case management judge will be in a much better position to assess the reasonableness of procedures and tactics employed by counsel as the litigation progresses and to ensure that the public purse is not extended beyond those bounds. In my view, it would be unnecessarily expensive and time-consuming for us to remit the application for costs simpliciter back to the Chambers judge, running the risk that the matter might again be appealed by one side or the other once the Chambers judge had ruled anew. I therefore propose to order that the Crown, in any event of the cause, pay such legal costs of the Bands as the Chambers judge orders from time to time in accordance with the following:

Subject to the foregoing, I would allow the appeal on the costs issue, but dismiss the appeal from the Chambers judge's ruling that these proceedings be remitted to the trial list.

[40] I would also order that the appellants have their costs of this appeal.

"The Honourable Madam Justice Newbury"

I AGREE:

"The Honourable Madam Justice Prowse"

I AGREE:

"The Honourable Mr. Justice Donald"