Costs and Access to Justice

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 32-51

32

CHAPTER 2

COSTS AND ACCESS

TO JUSTICE

A. INTRODUCTION

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.

gov.on.ca/english/about /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.

6 2007 SCC 21.

7 Ibid. at para. 23 [empha sis in original].

8 Ontario, r. 57.01(3).