BCCA Asked to Review Advance Costs Made Against Private Litigants in Charter Litigation

In Dish Network L.L.C. v. Rex, the Supreme Court of British Columbia took the rare step of ordering advance costs in a constitutional challenge. More surprisingly, the court ordered three private litigants to pay 50% of those costs. This case is now headed to the Court of Appeal for British Columbia.

Mr. Rex sold satellite receivers to Canadian residents and, using false U.S. addresses, arranged subscriptions for them from American signal providers. Two American providers and one Canadian provider sued Mr. Rex under the Radiocommunication Act and at common law. In his defence, Mr. Rex alleged that aspects of the Radiocommunication Act are unconstitutional because they violate the right to freedom of expression guaranteed by s. 2(b) of the Charter. The Attorney General of Canada intervened in response to Mr. Rex’s constitutional challenge.

Decision Below

Relying on the Supreme Court of Canada’s decisions in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) and British Columbia (Minister of Forests) v. Okanagan Indian Band, the court concluded that Mr. Rex satisfied the three-part test for advance costs: he lacked the financial means to pursue his case; his case had prima facie merit; and his case dealt with a public interest issue of such special importance that it would be unjust not to hear the case.

In the result, the court ordered the signal providers to pay 50% of the advance costs awarded to Mr. Rex, reasoning that they had instigated the litigation and that the “financial burden created by their efforts to protect their commercial interests should not be imposed upon the taxpayers of Canada” (para. 308). The court ordered the Attorney General of Canada to pay the rest.

The signal providers and the Attorney General of Canada have all sought leave to appeal.

Potential Significance

The case has potential significance to any company suing on the basis of legislation that is alleged by an opposing party to be unconstitutional.

Case Information

Dish Network LLC v. Rex

BCCA Docket Number:  CA39330; related case CA39319

Hearing Date:  November 10, 2011

Attorney General Canadian residents charter constitutional challenge Costs financial means freedom of expression public interest satellite receivers signal providers special importance

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