On May 19th, 2011, the BC Court of Appeal issued its decision on the matter of trial and appeal costs
for the ongoing litigation between four dissident congregations and the Diocese of New Westminster over ownership of church assets.
In a BC Supreme Court decision November 25th, 2009 Justice Stephen Kelleher determined that the property and assets in the four parishes occupied by the dissident congregations were held in trust for people who wish to worship in the Anglican Church of Canada, Diocese of New Westminster, under the jurisdiction of the Bishop of New Westminster. The Plaintiffs appealed this decision but it was upheld unanimously by three judges of the BC Court of Appeal who dismissed the appeal November 15th, 2010.
On February 23rd, 2011, legal counsel for the Diocese filed a Brief with the BC Court of Appeal to seek recovery of court costs. They argued that the diocese was substantially successful both at trial and on appeal and there were no valid basis to depart from the usual rule that the Diocese ought to recover its costs.
In a split decision, 2-1, with Madam Justice Newbury dissenting, Justices Lowry and Garson upheld Justice Stephen Kelleher’s June 29th, 2010 Oral Reasons for Judgment, awarding the BC Supreme Court trial costs to the Diocese and awarded the Diocese of New Westminster costs of the appeal proceedings also.
In his Reasons, Mr. Justice Lowry (Madam Justice Garson concurring) writes:
“ The defendants enjoyed substantial success at trial. Under Rule 57(9) (now Rule 14-1(9)), costs are awarded to the party that was substantially successful, unless, having regard for the governing principles, the court’s discretion is otherwise exercised, and s. 23 of the Court of Appeal Act is to like effect. In my view, the trial judge was not wrong in declining to exercise his discretion in favour of ordering the parties to bear their own costs, and it does not appear to me there is justification for exercising this Court’s discretion differently in respect of the appeal.”
The actual financial value of costs awarded to the diocese for the trial was originally estimated at $120,000.
On January 14th, 2011, the Plaintiffs filed an Application with the Supreme Court of Canada for Leave to Appeal the decision of the Court of Appeal dismissing the Appeal. On February 11th, 2011 the Diocese of New Westminster filed its Response asking that the Supreme Court of Canada decline to hear the Appeal. If the Supreme Court refuses to hear the further Appeal, the Anglican Church in the Vancouver area can stop spending money on lawyers and devote more resources to ministry for its people and those in need.
A panel of three Supreme Court of Canada judges began their consideration of the Application for Leave in April of 2011 and a decision on whether or not Leave will be granted is expected in due course.