Costs and Access to Justice

AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
The most signif‌icant feature of the economics of litigation is the cost of
legal representation. Wh ile some juris dictions in Canada have experi-
mented with private legal insurance1 and regulated para legal services,2
and while legal aid in some jurisdictions extends to limited civil mat-
ters (for example, family law disputes),3 for the most part parties must
rely on their own resources to fund litigation. The other alternatives are
for a party to make an arrangement with a law yer for a “contingency
fee” whereby the lawyer takes a percentage of a successful damages
award a s a fee, or rely on the practice of law yers repre senting clients
1 See C.J. Wydrzy nski, K. Hildebrandt, & D.J. Blonde, “The CAW Prepaid Legal
Service s Plan: A Case Study of an Alter native Funding and Deliver y Method for
Legal Ser vices” (1991) 10 Windsor Y.B. Access Just. 22. In hi s Report of the Legal
Aid Review (Toronto: Minist ry of the Attorney General, 20 08), Michael Trebil-
cock calls for t he development of private insurance t o address the unmet legal
needs in fam ily and civil justice sett ings. See online: ww w.attorneygenera l.jus. /pubs/trebilcock /legal_aid_ report_2008_ EN.pdf at 79.
2 In 2006, Onta rio became the f‌irst Can adian jurisdict ion to formally regulate
all paraleg als, which will resu lt in admission standa rds, errors and omission s
insuranc e, and formalized guide lines for ethical conduct, all a dministered by
The Law Society of Upp er Canada.
3 In Canadian Bar A ssn. v. British Columbia, 2006 BCSC 1342, the Br itish Colum-
bia Supreme Court reject ed the Canadian Bar A ssociation’s bid for public-inter-
est standi ng to argue for a constitutional r ight to legal aid in civil mat ters.
Costs and Acce ss to Justice 33
free of cost (i.e., pro bono). While the payment of costs is a matter of
civil procedure,4 it is bound up in t he broader questions surrounding
access to justice and the availability of civil justice to low- and middle-
income citizens.
Costs are usually broken down into legal fees, disbur sements, and
tax es (e.g., the Go ods and S ervice s Tax (GST)). Cost s reimbu rse the fe es
th at the p arty paid h is or he r law yer in t he cond uct of t he proc eedin g(s).
Disbursements cover the expenses required to conduct the proceeding(s),
including f‌iling fees, expert fees, travel, ex amination cost s, photocopy-
ing, courier, and serving court documents. The Rules of Civil Procedure
provide that the GST actually paid or payable on the lawyer’s fees and
disbursements is recoverable as part of an award of costs.5
In British Columbia (Attorney General) v. Christie,6 the Supreme
Court considered the argument that a tax on legal service s violates the
Charter and /or the unwritten constitutional guarantee of access to jus-
tice. The Court rejected this argument and held that
the issue . . . i s whether genera l access to legal services in relat ion to
court and tribunal procee dings dealing w ith rights and obligations is
a fundamental aspect of the rule of law. In our view, it is not. Access to
legal service s is fundament ally important in any free and democratic
society. In some cases, it has been found essent ial to due process and
a fair tr ial. But a review of the constitutional text, the jurisprudence
and the history of the concept does not support the respondent’s con-
tention that there is a broad general right to legal counsel as an aspect
of, or precondition to, the rule of law.7
Subject to the provisions of any statute and to the rules, costs are a mat-
ter of judicial discretion. The rules in this context are intended to pro-
vide g uidance r ather t han a predictable set of brightlines. Rule 57.01,
which provides signif‌icant detail on the factors to be considered by
courts when exercising their discretion in relation to costs, includes
a proviso that this guidance does not affect the authority of the court
under section 131 of the Courts of Justice Act to determine by whom and
to what extent the costs shall b e paid.8
The distinguishing feature of civil litigation in Canada, and one that
underlines the importance of judicial discretion, is that a party may
be responsible not only for their litigation costs but also for the oppos-
4 Sommers v. Fournier (2002), 60 O.R. (3d) 225 (C.A.).
5 Ontario, Tari ff A, Part II, Item 36.
7 Ibid. at para. 23 [empha sis in original].
8 Ontario, r. 57.01(3).

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