Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs sought special costs against both defendants jointly for an interim injunction hearing over the termination of fire protection services to a development on the Okanagan Indian Band's reserve.
   
• Because the Band filed no application response and gave no notice that it would appear, the court held it had no right of audience at the costs hearing.
   
• Two affidavits from the Band's Director of Finance, Don Riemer, were admitted for a limited purpose, despite containing opinion, argument and a possible inconsistency between them.
   
• Chief Dan Wilson's non-appearance at the injunction hearing was largely determinative in preventing any special costs award against him personally.
   
• Unreliable or poor-quality evidence alone does not meet the high bar of reprehensible conduct, and the court found no deliberate attempt to mislead.
   
• Special costs were refused, but the plaintiffs received costs of the injunction application in any event of the cause.
   

Facts of the case

Parker Cove Properties Limited Partnership, along with Reynolds John Bonneau and Mildred Rose Bonneau, who are individuals in control of the partnership, are involved in a development on the reserve of the Okanagan Indian Band. Since late 2022, they had been in dispute with the Band over aspects of a recent Band bylaw and an agreement between the parties for fire services. The dispute escalated to the point where the Band said it had terminated the fire services agreement, which would have cut off fire protection and emergency services to the development and its residents by February 27, 2026.

On February 12, 2026, the Supreme Court of British Columbia granted the plaintiffs an interim injunction (2026 BCSC 601) following a hearing held on February 11 and 12. The Band later applied for leave to appeal the injunction and, at the same time, sought a stay of a costs order that had not yet been made. Its application was dismissed by the Court of Appeal on June 4, 2026.

By notice of application filed June 1, 2026, the plaintiffs sought special costs against the Band and Chief Dan Wilson jointly for the injunction hearing, plus costs of the application itself. Chief Wilson, in his personal capacity, filed a response on June 9, 2026. No response was filed on behalf of the Band. The costs application was heard in chambers in Vancouver on June 17, 2026, and judgment was released on September 28, 2026.

Policy and legislative provisions at issue

No terms of the fire services agreement or the Band bylaw were analyzed in this costs decision. The court instead relied on the Supreme Court Civil Rules, noting that a successful party is entitled to costs unless the court orders otherwise. Special costs, it observed, derive from both the court's inherent jurisdiction and Rule 14-1. The court also pointed to the Rules' requirements for responding to a notice of application, under which a party wishing to make submissions must file an application response.

Reasoning and analysis

Several preliminary issues came first. Counsel for the Band attributed the missing response to inadvertence. He also said he had expected costs to proceed by oral submissions only, and that the plaintiffs' notice of application was unnecessary or inconsistent with the court's directions. Both defendants' counsel believed a signed order required oral submissions only, though the court did not recall any such order. According to the clerk's notes, the parties had been given leave to schedule a costs hearing, which the court described as confirmation that a hearing could be sought rather than a mandatory order. Some of the circumstances underlying the special costs claim had arisen after the original injunction application, which sought only costs, so filing a fresh notice of application was found appropriate.

The Band also wished to rely on a previously filed affidavit not referenced in the notice of application. That position, in the court's view, underscored the prejudice of not filing a response, since a primary function of an application and its response is to give the opposing side fair notice of the case to meet. Presiders receive only the materials filed for a given hearing, not the full file. The court found the Band's reasons for not responding difficult to reconcile with other facts. Band counsel was engaged in litigation on the file around the time the plaintiffs filed their application, and even after the Court of Appeal's June 4, 2026 decision, he did not tell the plaintiffs' counsel he intended to appear. On that basis, the Band had no right of audience.

Chief Wilson sought to rely on two affidavits of Don Riemer, made February 10, 2026 and June 9, 2026. The first had been ruled inadmissible at the injunction hearing. The Chief maintained that he took no position at that hearing. However, his injunction response adopted paragraphs 1 to 27 of the Band's response and cited the first Riemer affidavit for the proposition that the fire department was operating at a deficit in large part because the partnership had not paid for fire protection services. This led the court to doubt his assertion that he remained neutral.

Nor did the court accept that the affidavits merely presented facts. In the first, Mr. Riemer stated the fire department was underfunded and, in his professional opinion, needed updated firefighting equipment and the construction or acquisition of an additional fire hall. The court questioned how a Director of Finance would have that expertise, noting that no source was listed. That affidavit also relied on an unaudited statement for April 2019 to March 2025, which showed the Band's direct financial contributions keeping the department operational in certain years. The second affidavit, by contrast, said each program "stands on its own" and that funds were not generally shared between programs. Parts of the second affidavit were argumentative. The court stressed that its comments were directed at the party submitting the evidence, not at Mr. Riemer's professionalism as a chartered accountant. Ultimately, the second affidavit was admitted to the extent it answered the allegation that the first was misleading or inaccurate, and the first was admitted to give it context.

On the affidavit of Garett Lawrence made February 6, 2026, the defendants argued that paragraph 40 should not be read as saying the fire department would essentially shut down if it served the plaintiffs without payment. Having already addressed the meaning of that paragraph in the injunction judgment, the court found these submissions misplaced.

Turning to special costs, the parties agreed on the governing principles: such costs are punitive, meant to deter and chastise, awarded rarely, and discretionary even where conduct deserves rebuke. The plaintiffs argued that giving false evidence is reprehensible conduct, citing Brown v Lowe, 2002 BCCA 7. Their focus was on what they said were misleading or careless statements in the Lawrence affidavit and the first Riemer affidavit. These included Mr. Lawrence's statement that the department was heading toward a deficit and would soon be unable to provide services to Band members. They also cited another statement, which their own affidavit contradicted, about representations made to the plaintiffs on fire service agreements. In addition, the plaintiffs pointed to the circumstances surrounding the attempt to admit the first Riemer affidavit. In response, the defendants emphasized that evidence being rejected does not necessarily mean it was false. The court noted that Gill v Bassi, 2016 BCSC 754, cautions against reasoning that disbelieved evidence must have been knowingly false. That point is reflected in the distinction drawn in Brown v Lowe between "erroneous" evidence and evidence that is "knowingly untrue."

For the Chief, his non-appearance at the injunction hearing was largely determinative against special costs, even though the court found his claim to have taken no position somewhat troubling. As to both defendants, the court relied on Gill and Turpin v Constantinescu, 2018 BCSC 1679. Under those cases, a finding that evidence was unreliable or dishonest, or that a party lacked credibility, requires something more to amount to reprehensible conduct. The court also noted that neither defendant accepted it had given such evidence. While the quality of the evidence may at worst have been poor, the court was not persuaded of any deliberate attempt to mislead. Injunction applications are time-sensitive and arise from urgent circumstances in which parties and counsel may be rushed. The financial circumstances of the fire department and the Band would likely be a main issue should the matter proceed to trial, where a more complete evidentiary record would be available. Weighing imperfections in that evidence heavily at an interim stage would, the court said, be unwise.

Ruling and overall outcome

The application for special costs was dismissed. Given the nature of the issues and the circumstances addressed in the injunction judgment, the court nonetheless exercised its discretion to award the plaintiffs their costs of the injunction application in any event of the cause. That made the plaintiffs the successful party on costs, even though their bid for special costs failed. Because the plaintiffs were not unreasonable in seeking special costs, each party was ordered to bear its own costs of the costs hearing. No dollar figure was stated for the costs awarded, so the amount in the plaintiffs' favour cannot be determined from the decision.