Dish Network L.L.C. et al. v. Rex et al. 2012 BCCA 161
Practice - Costs - Funding before judgment - When interim or advance costs available
The plaintiffs were “direct to home” satellite based subscription program providers. Rex and other defendants offered “grey market” services to Canadian residents to facilitate the unauthorized reception in Canada of the plaintiffs’ broadcast signals. The plaintiffs brought statutory civil claims for damages against the defendants under the Radiocommunication Act (RCA), as well as common law claims, and obtained injunctions prohibiting the defendants from continuing their “grey market” businesses. Rex filed a Notice of Constitutional Question, questioning the constitutional validity of sections of the RCA that prohibited the decoding of encrypted signals, made it an offence to sell equipment used to decode signals, and provided a statutory action for damages. Rex then filed an application for an order for advance costs to fund the constitutional challenge.
The British Columbia Supreme Court, in a decision reported at  B.C.T.C. Uned. 1105, found Rex’s constitutional challenge to be of the exceptional and special nature to warrant advance costs, based on a hypothetical scenario of foreign broadcasters willing to broadcast in Canada. The plaintiffs appealed.
The British Columbia Court of Appeal allowed the appeal. The hypothetical litigation could not meet the requirements of exceptionality and special circumstances to justify an order for advance costs.