Background
Cambie Surgeries Corporation and Specialist Referral Clinic (Vancouver) Inc. spent over a decade litigating a constitutional challenge to provisions of British Columbia’s Medicare Protection Act (MPA). The plaintiffs alleged the MPA prevented patients from accessing medically necessary care in a timely manner, thereby violating their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The trial before Justice Steeves ran 194 days across three and a half years (September 2016 to February 2020) and involved 590 exhibits, 75 lay witnesses, and 40 expert reports. Justice Steeves dismissed the claim. That dismissal was upheld by the Court of Appeal in 2022 BCCA 245 — with no costs awarded on appeal given the public interest at stake — and leave to appeal to the Supreme Court of Canada was denied.
After the appeals were exhausted, the Attorney General of British Columbia (AGBC) applied for trial costs against the corporate plaintiffs. Chambers judge Justice Whately concluded that the normal costs rule applied and awarded the AGBC its trial costs: 2025 BCSC 123. She applied the five-factor framework from Guide Outfitters Assoc. v. British Columbia (Information and Privacy Commissioner), 2005 BCCA 368, which governs whether an unsuccessful public interest litigant should be shielded from an adverse costs order, and found that the corporate appellants’ significant pecuniary interest in the outcome, their litigation conduct, and their capacity to bear costs did not make the normal rule unsuitable.
The appellants appealed, arguing the chambers judge: (1) mistakenly adopted counsel’s unproven assertions about their revenues and profits; (2) allowed that alleged misapprehension to skew her analysis of the Guide Outfitters factors; and (3) improperly considered “overall efficiency of the litigation” as an additional factor when assessing whether to depart from the normal costs rule.
The Court’s Holding
The Court of Appeal dismissed the appeal unanimously, with Justice Butler writing for the panel. On the alleged misapprehension of fact, the court found that the chambers judge had explicitly attributed the revenue and profit figures to AGBC counsel, not adopted them as proven findings. Her actual conclusion — that the appellants had a “direct, and not insignificant pecuniary interest” — was fully supported by the limited financial statements in evidence, which showed combined annual revenues exceeding $20 million and modest but real profits, together with the appellants’ acknowledged stake in the outcome if the MPA restrictions were struck down.
The court rejected the argument that the chambers judge improperly conflated the Guide Outfitters factors or applied too high a burden. The factors are not to be assessed in silos; the exercise of principled discretion requires weighing them together, including the motives and characteristics of the specific litigant. Consistent with British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, 2022 BCCA 354, even a non-profit entity — let alone a commercial enterprise — may have pecuniary interests that bear on the costs analysis. The chambers judge was also entitled to consider the trial judge’s observation that he would not have granted the appellants public interest standing, and any misalignment between the appellants’ commercial interests and the broader public interest they claimed to represent.
On the third ground, the court held that considering the overall efficiency of the litigation was not an error. The awarding of costs in public interest litigation is an exercise of principled discretion, and it would unduly constrain that discretion to bar a trial court from considering the conduct and efficiency of the parties. Absent any demonstrated error in law or principle, the Court of Appeal declined to reweigh the factors to reach a different result.
Key Takeaways
- Unsuccessful public interest litigants are not automatically shielded from adverse costs; courts apply the Guide Outfitters factors as a framework for principled discretion, not as a mechanical test.
- Corporate plaintiffs with a direct and material financial stake in the outcome of constitutional litigation face a high bar to avoid costs even where the issues raised are of broad public importance.
- The Guide Outfitters factors must be weighed holistically; treating them as isolated silos is itself an error in principle.
- Trial courts may legitimately consider litigation conduct and overall efficiency of proceedings when deciding costs in public interest cases.
- Costs awards are highly discretionary; appellate intervention requires an error in law or principle, a clear misdirection, or a decision that is plainly wrong — mere disagreement with how factors were weighted is insufficient.
Why It Matters
This decision provides important guidance for parties contemplating constitutional challenges to healthcare legislation and other public-interest litigation in British Columbia. It confirms that commercial entities cannot easily invoke public interest status to insulate themselves from costs simply because their lawsuit raises questions of broad public importance — courts will scrutinize the litigant’s own financial motivations and conduct alongside the nature of the issues litigated. The ruling also signals that protracted, resource-intensive litigation that occupies 194 trial days will attract scrutiny of how efficiently and cooperatively the parties conducted themselves.
More broadly, the decision reinforces the Court of Appeal’s deferential posture toward costs decisions below. Counsel challenging a costs order on appeal must identify a specific error in law or principle; pointing to factors that could have been weighed differently is not enough. For litigants in long-running public interest cases, this underscores the importance of early clarity on costs exposure and the limits of the public interest exception to the ordinary rule that costs follow the event.