Costs
General rule
The decision to award costs and to fix the level at which they must be paid is in the complete discretion of the Court. Also unsuccessful party pays the costs of the successful party “costs to follow event” - SCCR 14-1(9).
Rule 14-1 – Costs
Pg. 56
Legal Fees
Costs are different from legal fees
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Legal fees are contractual matter b/w a lawyer and their client. Costs form part of the award that judge makes.
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HOWEVER, in Canada there’s a partial fee-shifting system, which is realized thru the Court’s power to order costs
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At the end of the case the successful party is entitled to receive from the unsuccessful party, a partial indemnity for the legal fees expended through an order of the court for costs
Pro Bono Costs
Even if someone takes the case on for free with no expectation of remuneration, they are entitled to costs. Most Relevant factors in determine costs for Pro Bono
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case involves matters of public importance that transcend the interests of the main parties and have not been previously resolved
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Successful party has no proprietary or pecuniary interest
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As between the party, the unscucesful party has the superior ability to bear the cost of the preceeding.
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Successful party has not conducted litigation in a vexatious or frivolous manner
Advanced/Interim Costs -
Advanced costs - an order to the court to secure money from the opposing party in order to be able to litigate the matter appropriately, would not be able to do it otherwise.
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This helps to allow the speedy resolution of the case on its merits. Otherwise might not be heard which is unacceptable, allows party with deeper pockets to win.
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Stays of proceedings are normally allowed to let the opposing party find the money. Normally advanced/special costs only applies to constitutional or public interest issues (Okanagan Indian Band)
Advanced/Interim Costs in Public Interest Litigation (Okanagan Indian Band)
TEST reinforced in Carter
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The party seeking interim costs genuinely cannot afford to pay for the litigation, and no realistic option exists for – other than bringing the issues to trial - in short, the litigation Would Be Unable to proceed if the order Were not made.
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The claim to be adjudicated is prima facie meritorious
That is, the claim is at least of merit Sufficient That It Is Contrary to the interests of justice for the opportunity to Pursue the case to be forfeited Just Because the litigant Lacks financial means clustering.
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The issues raised transcend the individual interests of the Particular litigant, are of public importance, and have not been resolved in previous cases. [para. 40]
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*Note: Even if the steps are made, the judge still has to look at the case from top-bottom to decide: is it exceptional enough that it deserves this rare discretion
Carter v Canada
[3-step TEST for Advanced/Interim Costs in Litigation; public interest litigation]
FACTS
Constitutional challenge to physician assisted suicide. Trying to get an award of special costs.
TJ – special costs awarded to legal team as this was a public interest litigation
COA – the legal team received costs, but lost this
SCC – Court reinstates special costs to the team
RULE
When can special costs be given? (Okanagan Indian Band)
3 STEP TEST FOR ADVACNED/INTERIM COSTS IN LITIGATION
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The party seeking advanced costs must convince court that you genuinely cannot afford to pay for the litigation, there are no other realistic options other than bringing issues to trial, and the litigation won’t proceed without the order
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There is a prima facie claim; not allowing the case to be pursued and forfeited because litigant lacks financial means, would be contrary to the interests of justice (especially based solely on impecuniosity)
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The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases (para 40)
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*Note: Even if all 3 steps are proven, Judge must still examine the totality of the circumstances and determine whether it is exceptional enough for them to exercise their discretion in making the order
ANALYSIS
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“Courts should not seek to bring it their own an alternative and extensive legal aid system into being” [Little Sisters para 44]
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Only the “unusual and exceptional” cases warrant such treatment. The issues of public importance in themselves will not “automatically entitle a litigant preferential treatment with respect to costs” (Little Sisters para 139)
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The award of special costs doesn’t give the successful litigant the right to burden the D with accrued expenses during the timing of the litigation – only reasonable and prudent costs are covered by the award.
HOLDING
Court agree with TJ in award of special costs to Carter.
Little Sisters Book & Art Emporium v Canada (no.2)
[Reinforced the Okanagan Band Test – See Carter]
FACTS: Little Sisters Book & Auditorium is a bookstore and importer who was having difficulties w/ Canada customs because they were stopping certain forms of porn that the book store was bringing in. They took Canada to court and beat them in “Little Sisters #1”. Canada seemed to continue doing what they weren’t supposed to be doing. Eventually go back to court … and get into SCC in 2007. From Little sister’s perspective they were thinking that this is perfect for advanced interim costs but courts said no.
RULE
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The point of this case was to reinforce the Okanogan test
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Asking for the advanced/interim costs case requires evidence of payment.
Access to Justice
ROWBOTHAM APPLICATIONS: judge must stay a criminal proceeding pending the Crown’s decision whether or not to fund the guy – if the Crown doesn’t give the free lawyer the person walks. Applies in criminal proceedings but not in Civil litigation. Crim proceedings s. 7 rights are involved.
BC v Christie
[No general right to legal assistance; No constitutional right that would require Gov to supplement one’s decision to sue someone else]
FACTS
In 1993 BC enacted a 7% tax on purchase price of legal services with the purpose of funding legal aid. Tax collected put into general revenue and difficult to ascertain how much was used for legal aid. Litigation lawyer who brought this challenge to the tax worked with poor people. He argued that the next effect of the tax was to make it impossible for some of his clients to retain him to pursue their claims.
JUDICIAL HISTORY:
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Chamber’s judge was in favour of applicant’s argument – the service tax denies access to justice in some cases of low income clients. There is a fundamental constitutional right to access to justice.
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CoA agreed
ISSUE
Is the service tax unconstitutional? Is there a constitutionally protected right to access to justice?
ANALYSIS
What is sought is the constitutionalization of access aided by a lawyer where rights and obligations are at stake before a court or a trib.
HELD: The respondent has NOT demonstrated that the Canadian constitution mandates this particular form or quality of access
ANALYSIS: The change sought is major and it opens the doors for abusers of a system where you are guaranteed access to lawyers – ie; bringing forward cases they wouldn’t otherwise think of bringing
HELD: RoL embraces at least 3 principles:
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The first principle is that the "law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power": Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867, at p. 748.
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The second principle "requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order": Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867, at p. 749.
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The third principle requires that "the relationship between the state and the individual ... be regulated by law": Reference re Secession of Quebec, at para. 71. (See also British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49 (S.C.C.), at para. 58; Charkaoui, Re, 2007 SCC 9 (S.C.C.), at para. 134.)
General access to legal services is not currently recognized aspect of the rule of law.
ANALYSIS: It has been argued that s. 7 of the charter implies a right to counsel as an aspect of pro fairness where life, liberty, and security of the person are affected.
HOLDING
The Courts are a place that should be open to the public, but there are no constitutional right to require the gov to supplement someone’s decision to sue someone else.
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There isn’t a general right to legal assistance whenever a matter of rights or obligations is before a Court or tribunal.
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There is NO GENERAL RIGHT to legal assistance whenever a matter of rights and obligations is before a court or tribunal.
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