Costs in Public Interest and Pro Bono Litigation

PHS Community Services Society v Canada (Attorney General), 2008 BCSC 1453 (31 October 2008)

This case concerned an application for special costs.  The Supreme Court of British Columbia held that the proceeding was public interest litigation, and that special costs could therefore be awarded to the plaintiffs.


The central issue for determination in this case concerned whether or not the Supreme Court should exercise its discretion to award the plaintiffs costs on the ground that PHS Community Services Society v. Canada (Attorney General), 2008 BCSC 661 (27 May 2008) was public interest litigation.  In that case, the Supreme Court declared that laws that made safe self-injecting rooms illegal were unconstitutional and incompatible with the rights to life, liberty and security of person guaranteed in the Canadian Charter of Human Rights and Freedoms. 

In support of their claim for special costs, the plaintiffs (being, PHS Community Services Society, the operator of a self-injecting room site known as ‘Insite’, and the second and third plaintiffs, users of Insite) argued that the proceeding was public interest litigation that had significant implications for injecting drug users’ ability to access justice.  The plaintiffs further argued that they did not have a personal interest in the litigation’s outcome.  The defendant contested the claim that the proceeding was public interest litigation, arguing that the plaintiffs did have a personal interest in the outcome of the litigation.  The defendant also argued that PHS is not impecunious.


Justice Pitfield held that the proceeding was public interest litigation.  In so doing, he explained: ‘[m]y reasons for judgment described the evolution of the policy decisions that led the City of Vancouver and the provincial government to pursue a harm reduction strategy and to use Insite as one means of reducing the harm associated with intravenous drug use.  The plaintiffs undertook this litigation with a view to preserving the operations of a publicly-funded facility’.

Justice Pitfield dismissed the suggestion that the plaintiffs’ had a personal interest in the litigation.  PHS, he explained, is a non-profit organisation, which operates Insite for the benefit of the community and not for personal gain.  The interests of the second and third plaintiffs were the same as those that any citizen has with respect to the operation of healthcare facilities – personal health and welfare.  His Honour stated that, ‘this action benefits all who suffer from the illness of addiction.  The interests that PHS and the individual plaintiffs have in the outcome of the litigation are not such as to remove them from the ambit of public interest litigants’.

In his judgment, Justice Pitfield was satisfied that PHS was unable to afford the conduct of the litigation.  Moreover, he observed, ‘I am not persuaded that financial worth or the ability to pay is a factor that should predominate where what is under consideration is an award of special costs following the successful completion of litigation ….’

Dismissing the defendant’s argument that special costs should not be awarded because the plaintiffs engaged legal assistance on a pro bono basis, Justice Pitfield said:

Costs have been incurred by someone, whether by the plaintiffs or by third parties in order to assist the plaintiffs.  The defendant should not derive a windfall because of the fact that a third party has underwritten the costs of the litigation.  With respect, the defendant contradicts itself when it says on the one hand that one must be impecunious if an award of special costs is to be considered, but says on the other that if a party is impecunious and cannot afford counsel but is represented on a pro bono basis, the benefit of an award of special costs should be denied or reduced.

Justice Pitfield awarded the plaintiffs special costs on a full indemnity basis.  In so doing, he noted that indemnity ‘will extend to and include the reasonable value of all pro bono services provided to PHS and the individual plaintiffs, and the amount of all reasonably necessary disbursements, by whomever incurred’.

Relevance to the Victorian Charter

Access to justice is a fundamental principal that underpins the Victorian Charter and the Australian legal system more generally.  If citizens are unable to afford legal representation or do not institute public interest proceedings for fear of an unfavourable costs order, their ability to vindicate their rights and/or seek outcomes in the public interest under the Victorian Charter will be significantly impeded.  For these reasons, this decision is important authority for the interpretation of and protection of the right to a fair hearing (s 24) and the right to recognition and equality before the law (s 8).

The decision is available at

Tony Mohorovic is a Lawyer with Corrs Chambers Westgarth.  He is currently on secondment with the Public Interest Law Clearing House (PILCH).  Simone Cusack is a Public Interest Lawyer with PILCH.