Executive Summary: Key Legal and Evidentiary Issues

• Class action litigation governed by the Class Proceedings Act with a presumptive no-costs regime.

• Plaintiffs sought an adjournment of the common issues trial due to late discovery of significant new documents.

• Defendant opposed the adjournment and requested costs, alleging plaintiff delay and lack of diligence.

• Court evaluated whether plaintiffs’ conduct met exceptions under section 37(2) of the CPA.

• No evidence of vexatious, frivolous, or abusive conduct by the plaintiffs was found.

• Adjournment was granted but no costs were awarded due to absence of exceptional circumstances.

Facts and outcome of the case

This decision arises from a procedural motion in the certified class action Fleming v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2025 BCSC 1032. The plaintiffs, Ronald Gordon Fleming and Love Bros. & Lee Ltd., brought the class action against the Province of British Columbia, specifically the Ministry of Forests, Lands, Natural Resource Operations and Rural Development, regarding issues not fully detailed in this ruling but connected to administrative and natural resource governance. What is at issue here is a costs determination related to a plaintiff-initiated application to adjourn the trial.

The trial was scheduled to begin on October 15, 2024. However, while preparing for the trial, the plaintiffs’ counsel uncovered thousands of previously unknown documents from key witnesses associated with the Guide Outfitters Association of British Columbia (GOABC). These included 372 documents from the current president and approximately 6,000 more from the spouse of the former president, along with potential additional electronic records. Based on this late but potentially significant discovery, the plaintiffs sought an adjournment. The defendant opposed this request, arguing that the plaintiffs had failed to exercise due diligence and should therefore be penalized through a costs award.

The court, presided over by Justice E. McDonald, granted the adjournment in a separate ruling (referenced as 2024 BCSC 2371) and proceeded to address whether costs should be awarded in this subsequent decision. Section 37 of the Class Proceedings Act outlines a strong presumption against awarding costs in class actions, unless exceptional circumstances apply—specifically, vexatious conduct, improper steps taken for delay, or an unjust result in denying costs to a successful party.

The defendant argued that the plaintiffs’ late preparation amounted to improper conduct justifying an exception. The plaintiffs countered that their efforts reflected reasonable diligence and that the need for adjournment stemmed from unforeseeable developments. The court agreed with the plaintiffs, concluding that their conduct did not meet the threshold for any of the exceptions in section 37(2). It rejected the defendant's contention that plaintiffs' actions were frivolous or abusive and found no basis for claiming the application was filed for delay or any improper purpose.

Justice McDonald also addressed an argument by the defendant that third-party litigation funding might justify a costs award. The court dismissed this suggestion as speculative, noting that no evidence was presented confirming the existence of such funding.

In conclusion, the plaintiffs were successful in securing the adjournment, and the court declined to award any costs to the defendant. The ruling reinforced the principle that cost awards in class proceedings are exceptional and must be clearly justified under the statutory framework.