Muskrat misfire
Defendants on the hook for their own legal costs
Brad Cabana has been unsuccessful in appealing a judge’s decision to not grant him public interest standing in his legal effort to stop the Muskrat Falls hydroelectric project.
“I am inclined to conclude that Mr. Cabana undertook the litigation for bona fide motives and without understanding how lacking in merit were his claims.” Justice Malcom Rowe
Brad Cabana has been unsuccessful in appealing a judge’s decision to not grant him public interest standing in his legal effort to stop the Muskrat Falls hydroelectric project.
But Cabana has been let off the hook when it comes to paying legal fees for the defendants, Nalcor Energy, Churchill Falls (Labrador) Corp. and the provincial government.
A decision by Justice Malcom Rowe, concurred in by Justices Gale Welsh and Michael F. Harrington, dismissed the appeal, saying Justice George L. Murphy didn’t err in making the original decision.
But Rowe says the applications judge was wrong to award the defendants costs against Cabana — two counsel for the government and one each for Nalcor and CF(L)Co.
“While the award of costs is discretionary, that discretion must be exercised in accordance with law,” the decision reads. “The applications judge erred in principle by failing to consider the issue of costs from the perspective of public interest litigation.”
The decision points out that in Cabana’s case, the issues at hand were extend beyond his interests and those of the defendants; Cabana had no personal, proprietary or pecuniary interest in the outcome; the issues hadn’t been determined in court against the same defendants; and the defendants had a “clearly superior capacity” to pay the legal costs over Cabana.
“It is not sufficient to say that this could not have been public interest litigation as Mr. Cabana was denied public interest standing. That misses the point, which is that courts should not stifle bona fide public interest litigation by awarding costs against unsuccessful litigants,” the decision reads.
Rowe wrote that Cabana’s claims were based on concepts unknown to the law, on misplaced statements as to legal rights and on unwarranted intrusion into the affairs of Hydro-Québec, nunatukavut and Nunatsiavut.
“Nonetheless, I am inclined to conclude that Mr. Cabana undertook the litigation for bona fide motives and without understanding how lacking in merit were his claims.
“Accordingly, I would set aside the applications judge’s award of costs, and make no award of costs against Mr. Cabana. In effect, each party will bear their own costs, before the applications judge and in this appeal.”