February 28, 2007
With the winding up of the Court Challenges Program and the decision of the Supreme Court of Canada ("SCC") in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2, it may be a good time to highlight some concerns related to our courts' practices in awarding costs. Our current loser-pays system (AKA the English rule) is often cited as a means to discourage frivolous cases.
The opposing policy consideration is the deterrent effect that a loser-pays system has on those claimants who do not qualify for assistance (such as that which the now defunct Court Challenges Program used to provide) or have the personal resources to pursue their rights to the full extent in a court of law. Given the economic deterrent inherent in the the current cost system and the lack of access to funding, it may be necessary for the SCC to get more comfortable with awarding advance costs to Charter claimants to ensure that the Charter is still seen as, and made to be, accessible to all.
Thomas Walkom, in a recent Toronto Star article, suggest that the ending of the Court Challenges Program is in fact not an end to tax payer subsidization of constitutional cases, but rather a redirection of tax payer funds through various different charities. But charities, which exist for reasons other than to support litigation, will subsidize court challenges based on their own guiding principles, and these may or may not be congruent with the interests of a potential litigator.
We are by and large comfortable with the notion that money buys access to law (and justice) generally speaking; but shouldn't there be a difference between disputes over money or property, for example, and Charter cases in which rights are at stake that are so fundamental that they lie outside the market? Arguments can be made that there is room for the courts to consider what is reasonable for the unsuccessful party to pay, but this does not to address the deterrent factor that takes place before claims are actually made.
I wonder... if the cost of paying the winner's fees was removed from the aggregate cost of pursuing a constitutional case, would access for poorer players who can not run the risk of having to swallow the full costs under the current system increase?
17 Comments
While I agree with many of the points made in this comment, there remains a niggling element of doubt. The G/B/L/T community is not without resources and has frequently jumped into the breach with the necessary financial assitance in these matters. Does the fact that they did not do so in this case mean that the G/B/L/T community itself did not see the case to be significant enough to support? Was the issue to be tried simply too narrow? If so, why should the community at large, that is the taxpayer, fund this type of charter challenge?
Gerry, I authored the original post which hesitantly supported the SCC's decision in Little Sisters, but I cannot agree with your comment.
Though there is certainly a GBLT community in many ways, it is in no way any sort of representative assembly, or even an interest group, which is capable of doling out money to causes which it supports. Certainly there are individual organizations which are devoted to the cause of equality for gays and lesbians, but there is no aggregate organization.
As such, I think it is inappropriate to say that the plaintiffs in this case have failed some sort of test for relevancy to the gay and lesbian community. There is simply no "community" that exists that is capable of administering such a test. As an aside, I think that their case is actually quite relevant; something like 60% of all material detained by Customs is of a GBLT character.
Finally, I think the issue is somewhat moot. Charter challenges are important not because they empower minorities en masse, but because they protect individual minority interests. So even if this issue was too narrow to make much difference to the gay and lesbian community, that shouldn't detract from its importance if in fact the merits show that Customs are flagrantly violating equality rights.
In addition to preventing vexatious claims, I'd also suggest that the 'loser pays' system has a further effect of vindicating a claimant if they are victorious. It seems to be somewhat unjust if a victorious claimant is not awarded their costs.
If we were to get rid of the 'loser pays' system, there would be no way of recovering the costs one expends in pursuing a constitutional claim. These irrecoverable costs may actually act to deter a claimant from moving forward instead of alleviating their concerns of the risk of paying the other party's costs if they lose. Thus, I'd see our loser pays system as more a double-edged sword, then completely a deterrent to constitutional claims.
Ultimately though, I'd agree with you that the crucial matter is funding. Even in the case of victory in our current system, 100% of costs are never recoverable, and the ending of the Court Challenges Program will very likely deter would-be claimants.
We are in agreement on the funding issue but on the irrecoverable costs point I stand by the my implication that the removal of loser pays would allow for more claims. The double edge aspect with irrecoverable costs that you mention can be offset by an individuals ability to control their costs through fee negotiation or even getting someone to take the case on contingency, something they obviously can't do in relation to the other parties. From an economic stand point it is a controllable or know cost in versus an unknown in the loser pays system.
While I certainly agree that the removal of costs awards would allow for more claims between private parties, I'm fairly sure that the government never requests a costs award in constitutional matters.
I know that the government of Ontario never requests costs from a losing litigant, but I'm not sure about the government of Canada.
With that in mind, the "loser pays" system probably results in more claims, since it creates a fairly low risk environment.
In light of Tom's comment, I'd just like to add a further note about the type of remedies that are available if a Charter violation is found, and its correlation to contingency fees.
S.24(1) ("a remedy as the court considers appropriate and just") and s. 52(1) (an inconsistent law is to be of no force and effect) doesn't seem to provide for any awards of damages. Without damages, the viability of a contingency fee arrangement seems doubtful. Thus, it seems that abolishing the 'loser-pays' system would just be abolishing the means for claimants to recover their costs, thereby deterring claims.
The question of costs is larger then just the context of Charter challenges despite this being the context of the original post.
The contingency fee arrangement is only the most obvious alternative fee structure that allows a plaintiff to control costs. This still does not address the fact that there is no ability to control the costs of the other party and thus any analysis of the economic risk of bringing claims will have a variable that the plaintiff can not control. Even with a static scale for costs, the economic hurdle to enter the court system can not be known ahead of time as there is always 2 possible outcomes. This doesn't even get into the issue of cost awards on specific motions etc.
Perhaps Canadians are less risk averse then I have been led to believe but I think there is something fundamentally wrong with requiring citizens to gamble in attempts to exert their rights Charter or otherwise. I am interested in Tom's point about the government never seeking costs in constitutional matters although I disagree that the loser pays system creates a lower risk. There is the possibility of greater gains if they win their costs from the government but the actual risk taken would be the same if the good will of the government holds and they do not seek costs. Thus the cost risk taken under both systems would be the plaintiffs own legal costs. The orthodox Canadian approach to costs from a government policy point of view won't change anytime soon as deterring claims is in the interest of the government due to our over taxed courts and the vacancies on the bench.
As a private indigent citizen attempting to mount a constitutional challenge against the Divorce Act, I'm heartened by this thread.
As pointed out, this is a multi-faceted issue of which cost awards are an important but ultimately secondary factor as courts have a history of waiving costs for substantive public interest issues, all the more so when one can not get blood from a stone. The key issue for the indigent is how to overcome the $ 200-1500K cost hurdle to mount a deserving charter challenge. That's the core of the current CBA appeal of the BC Supreme Court 2006-09 decision against funding constitutional civil legal aid cases as poverty has not (yet)been constitutionally recognized as a s.15 analagous ground..
Without the Court Challenges Program (CCP) or constitutional rights to state-funded civil legal aid for the indigent, the self-represented citizen like myself must petition the courts using carefully crafted s. 1 and s.7 arguments tracing out Prosper/Rowbotham/NB v G(J)/Little Sisters/Okanagan etc and- drawing on Joseph Arvey's writings- has a chance of succeeding if:
(a) the constitutional challenge was important and complex;
(b) the Applicants’ and Plaintiffs’ claim was meritorious, regardless of whether it was successful;
(c) there was a public interest in having the constitutional challenge litigated;
(d) the Applicants and Plaintiffs
(i) did not engage in conduct that unnecessarily lengthened the conduct of the proceedings;
(ii) did not fail to admit everything that should have been admitted; and
(iii) took no step that was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution;
(e) the Applicants and Plaintiffs are without financial resources; and
(f) the amounts claimed for costs are reasonable
Of course, in a classic Catch-22 , the self-represented applicant for state-funded legal counsel must first present a prima facie constitutional case to demonstrate funding entitlement, including working out the non-trivial issues of appropriate venue and standing criteria. And, in the rare event that a self-represented applicant manages to succeed, in another catch-22 he/she may be rejected for funding as the applicant has demonstrated sufficient legal skills to represent themselves, notwithstanding that SCC rarely allows self-represented cases and/or that self-representation is almost an automatic disqualifier to represent public interest cases. In short, the legal deck is stacked as matters stand.
May I recommend the CBA web site as an excellent resource on the civil legal aid issue, as well as from the legal library CLE (BC) Feb 2002 Seminar 0n "Suing and Defending the Government", especially Kent Roach on "Remedies For Constitutional Breach" and Joseph Arvey's "Ways and Means to Justice:Obtaining Funding for Constitutional Litigation".
In my case, the CCP was terminated in 2006-09 before my application could be processed, so I filed my charter challenge for "Adverse Effect Discrimination against Divorced Men under the Divorce Act" within tax court proceedings with a constituent pleading for state-funded legal counsel to be heard in a pre-trial motion, along with a Joinder petition to consolidate cases in the interests of judicial efficiency and personal sanity. This, of course, was after earlier having to go through Legal Aid Ontario to get prerequisite formal confirmation for tax court that legal Aid mandate does not extend to these matters, as well as canvassing Human Rights and local MP to get requisite rejections required to file for legal aid directly with the courts.
Are you confused yet? I am, and I have the benefit of two graduate degrees plus 12-years of legal experience being 'rendered' in family court in the all too typical riches-to-rags process. It's beyond me how the statistically average citizen can get access to justice in a system which, according to Chief Justice McLachlin, has priced itself out of range of all but the wealthy.
So, carry on the debate for the legal future will be in your hands...and think of me May 29 when I make my case for funding.
My apologies for the late addition to this thread, but I am a new convert to the blogging world of "The Court".
There is another, more tangential, aspect to the Supreme Court's reasoning in Little Sisters that perhaps merits comment. The court indicated at one point that a difficulty with using advanced costs orders to fund public interest litigation lies in "the reality that work often expands to fit the available resources". Not only is this a provocative spin on the baseball "build it and they will come" theory, I think it helps explain much of the difficulties that certain Legal Aid plans have in managing costs. It may even explain, more generally, the extraordinary rise of legal costs in the private sector.
Here is the theory. Legal work inevitably pushes the fiscal envelope it is in. The reason for this is not greedy lawyers, or clients (or funders) with no judgment. Instead, the explanation lies in the reality that it is very difficult if not impossible to assess in the abstract and in advance what a case should cost. For example, in the context of tough legal aid funding decisions, it is very difficult to predict whether a particular case is a potential wrongful conviction prosecution, or a "Moldaverian" fiscal black hole. That determination can really only be made in hindsight, and even then it is still tricky. Similarly, in the private sector, when you are dealing with corporate bodies with unprecedented deep pockets, the inability to objectively assess how much to pay for legal work means that there is an inevitable push to pay lawyers higher and higher amounts. The market cannot accurately gauge what is the "value added" between a $300/hour merger and acquisitions lawyer, as opposed to a $1,000/hour lawyer in the same field. In a market where there are seemingly infinite funds the result is that the higher hourly rate is paid.
This is not my own theory, although I am sure I have butchered it terribly. It comes from Prof. Gillian Hadfield's “The Price of Law: How the Market for Lawyers Distorts the Justice System” (2000) 98 Michigan Law Review 953. She is both an economist and professor of law. I came across the article a few years ago during the last Legal Aid crisis. For others who are interested, the working paper version of the paper can be found at:
at http://www2.law.columbia.edu/law-economicstudies/papers/wp157.pdf
As impressed as I was with this analysis, I am still not sure of its practical import. Others may have more insight.
George,
Congratulations on the efforts you have made.
Once I brought a motion for "interim costs" to have
the some costs of the action paid.
The test is extremely tough, so tough that under present
law only something extremely politically acceptable which
would also be extremely rare akin to a blue moon
in a heat wave in winter.
Canadian law does allow for summary judgement but again
thats generally a very rare event unless the other side forgets to file
an answer. A more common sense approach would be to seek
summary judgement on only those parts where its possible.
I feel the answer to the court challenges program is to allow
for the payment of legal costs when not to do so would be
an obvious injustice, something along those lines.
The legal system is designed by lawyers for lawyers and so that
they get paid preferably up front and in particular so they can't be sued.
Another answer would be to ammend the statute of limitations
to allow for the long periods of time of impecuniousity
that can be caused by the defendants.
Another solution would be for corporations to be established for the sole
purpose of providing funding for impecunious litigants in return for a share
of the damages. The only way I can see this being kick started is
by generous tax deductions and that the earnings be tax free.
I was recently in the provincial Supreme Court as a self-represented litigant suing a number of government defendants in a matter that is clearly of a constitutional nature. The court knew from the existing record of litigation that I am willing and able to represent myself, however given the public interest nature of the case, I had stated in my claim that I would be seeking interim costs. However, that issue never received a hearing because the defendants were successful with a motion to have my case dismissed as frivolous, vexatious and an abuse of the court’s process (an outcome I am appealing).
One of the conclusions I have reached is that the most consequential public interest cases are those that are being pursued by self-represented persons who are challenging the all too common abuse of state power and who are (not coincidently) unable to secure any assistance whatsoever from the legal community. I wonder if the demise of the Court Challenges Program was in part motivated by a realization that ignoring or burying these types of cases was incompatible with the continued funding from public monies of a very limited variety of special-interest cases.
Also of note is that the Supreme Court web site has recently added a message and package of information directed to self-represented litigants. I would be interested in any information about the success of such litigants at the SCC to date. I have not received a reply for the Court to an email about that question.
Chris, as a self-rep likewise attempting a charter challenge, I concur with your views. One of my colleagues recently did an SCC analysis which indicated 3 of 817 appeals before the SCC during the last decade were by self-reps, none being successful.
SCC Appeals Analysis
(2007-2007)
Type of Appeal # Cases # self-rep # won by self-rep
Civil 468 2 0
Criminal 332 1 0
Family 17 0 0
Total 817 3 0
For the ON CoA, 405 of 8868 cases on CANLII were self-reps with a 19% win rate (compared to 50% win rate if represented),with female self-reps doing twice as well as self-reps. Cost penalties were assigned 82 and 57% of the time for male and female self-reps respectively, with male self-reps paying almost three times that of their female counterparts.
The ON Superior court stats are correspondingly uglier, especially in Family Law.
So, not only are certeworthy cases being ignored due to budgetary considerations of "scarce" judicial resources trumping considerations of access and rule of law, but the data indicates that self-rep issues are not accorded equal consideration, or in the few instances that they are, consideration is based on gender.
One can always file a complaint with the Judicial Commission, but as ON AG Bryant recently announced to the press, only 6 of 2002 complaints made it past preliminary screening, thereby re-affirming to the AG the splendid state of affairs within the judiciary and Justiceland in general.Somehow, I don't think the average high school graduate would jump to the same conclusion.
Access to Justice and civil legal aid have been getting press coverage recently with retiring Justice Gomery recently being quoted as noting the "alarming trend" that is putting the justice system beyond the reach of everyone save the wealthy resulting in a "suicidal" trend in affairs. Several days later Chief Justice McLachlin dusted off her now annual speech declaring access to justice "a basic right", seemingly forgetting the smoldering ruins of Little Sisters II while she again browbeat lawyers's fees at the CBA conference in a paradoxical display of irony as the BC Supremes recently thrashed CBA public interest litigation for state-funded civil legal aid.
With all this understanding and sympathy, one would think that at least public interest cases mounted by organizations on behalf of indigents and the legally disenfranchised would be encouraged by the judiciary. Alas, no luck there either.
In Canadian Council of Churches, the Supreme Court stated, as part of the test to determine whether a public interest group may have standing as plaintiff before a court, that there must be no other reasonable and effective way to bring the issue before the court. What is happening is that public interest groups are being denied standing on the purported basis that it is still reasonable to expect the indigent and disenfranchised to mount "complex" cases individually.
As an indigent attempting to initiate a charter challenge within tax court proceedings resulting from a "divorce burial" ( see earlier entry), I have had my well-documented and researched request for civil legal aid brushed aside; ironically, my 96-year old mother who is serially joined to the case by virtue of being caught up in divorce consequences, has now been advised that I may not bring forth her case as it is mandatory to be represented by a lawyer. On the one hand, the court denies an accepted indigent a lawyer; on the other hand, it declares representation by a lawyer to be mandatory.
Chris, during 14-years of riches-to-rags rendering by Family Court I have had occasion to see our judicial system at work...and it's not a pretty sight looking at it from the inside. Like any institution, the judiciary will be resistant to any attempts at reform.However, unlike any other institution, the judiciary has the de facto power to exempt itself from reform, principles of parliamentary supremacy and alleged Charter Rights notwithstanding. This is evidenced by routine denial of leave to certeworthy cases typically without explanation, or occasionally on the basis of conservation of judicial resources which is tantamount to stating that the rule of law is subordinate to judicial whims. The issue of civil legal aid to self-reps like yourself, or indigents like myself, is only another facet of a much broader issue....namely accountability to the public for the prudent rule of law. However, as the Judiciary is institutionally enshrined with the historical Principle of Judicial Unaccountability- and nothing else but the good will of the populace to accord it the institutional respect as the arbiter of laws- the institution will go to any lengths to avoid broaching the subject of accountability, including of course anyone whose actions directly or indirectly may nudge the subject.
As access to law is merely the flip side of judicial accountability, the Judiciary as an institution will always raise its deflector shields on this issue.It will only be thru unusual circumstances like self-reps flooding the system and thereby shining the light on the issue access to justice that the issue of accountability threatens to be raised. The typical response which we see is for the Judiciary to kill the issue by softly blaming it first on government lack of funding as was the delicate refrain of last year, or by blaming the lawyers for excessive fees thereby placing pressure on the government to intervene with incremental budgetary sops to make the issue temporarily go away, thereby deferring yet again a national discussion of a revised judicial institution in step with the demands of modern transparent society.
So Chris, u have your answer to your specific statistical question, plus a perspective on the situation we find ourselves in. Let's fight the good fight to keep Justice meaningful.
George, thanks for the feedback. I enjoyed your line about the CJ's "now annual speech".
My own pursuit of justice (in B.C.) began only about seven years ago and has nothing to do with family law, of which I am completely ignorant. It began with an employment issue, but (despite what the last judge said - that I am just trying to re-litigate a dead issue) is now of an altogether different nature. In fact it is of an unprecedented nature.
I had one early win in court that was then overturned on appeal. There have been to date four tribunal and four superior court decisions/judgements that are relevant to the ongoing litigation. The last one was a summary dismissal of a tort. The tort claims rest on the fact that there are two different versions of the statute on which all previous litigation relied.
I had been wrongly advised by lawyers (who probably knew the truth) and by other self-reps (who clearly did not) that two different versions of a law was not a matter worth questioning, even if the differences are substantive (and in fact highly consequential).
Evidently it is not well understood (even in the judicial community) that enactment, amendment and repeal of legislation is the exclusive mandate of the legislative branch of government. There are no records of how the statute was changed - at least not records that the government will allow me to see (yet).
The larger point that I believe the establishment is just now beginning to comprehend is that the Internet has changed everything and no regime is more affected than the justice regime. The Internet has enabled me to assemble sufficient material evidence to win my case well beyond the balance-of-probabilities standard, and the defendants and the courts know that already.
The justice system operates on the basis of a number of basic assumptions that have no validity. The result is that many outcomes are inherently absurd. Self-reps are far better equipped than any lawyers to find those absurdities and challenge them.
Chris, I concur with your comment that the Internet is making the justice system more accessible and comprehensible. Ditto to your view that the justice system operates on flawed ( I would say anachronisitic) assumptions, my favourites being the notions of impartiality and unaccountability.
I would agree that self-reps are better equipped than lawyers to challenge the absurdities, but only in the sense that lawyers are themselves prisoners of institutional structural shortcomings and inherent conflicts of interests.
For example, it's no secret that lawyers find themselves having to sacrifice their clients in court presided over by ideologues who are known to punish future clients as a means of imposing their views. Protests are career-limiting as judicial ideolgues are known to exchange "hit lists".
Likewise, unscrupulous lawyers with an eye to judicial appointments will likewise serve up their clients on the altar of prevailing political correctness to demonstrate their mettle to the political party of choice.
Thankfully, the vast majority of lawyers are highly ethical in my experience;unfortunately, the inherent shortcomings of any closed institutional structure serve not only to disproportionately amplify ethical mutations, but also to preserve the ills of inbreeding.
Sadly, while judicial wisdom is gavelled out in "Enron" and "Sarbanes-Oxley" to address institutional ills, the lessons therein are lost on a Judiciary inbred with "Do what I say, not what I do".
In nature, the absence of a key regulatory feedback process leads to toxic statis followed by death. I have personally concluded that judicial toxicity may likewise end the institutional experiment called democracy.
Judicial reform- it's the real challenge of the times.
Good luck to you with what seems to be Conflict of Laws. I offer wise words of wisdom heard from a wordly lawyer to serve as your guide: "Truth, Justice, and Law are not synonyms".
Again, your comments are very interesting. You may be well ahead of me in understanding a lot of issues. My own learning curve has been very steep, but circumstances have greatly assisted me. A few blocks from home is the Vancouver courthouse and its library. I have always been comfortable in libraries.
What happened with my case was that I realized the challenge was to decipher the language of the decisions and judgements. The main objective of that language, I eventually discovered, was not communications but its opposite - obfuscation.
I have assembled a remarkable and eclectic selection of books and other materials that have assisted me in constructing a comprehensive indictment. This process really began in earnest when another self-rep gave me a book he had retrieved from the municipal waste disposal system (though it was in pristine condition).
It is "Sense and Nonsense", by David Mellinkoff, an American pioneer in the "plain language in law" movement. I am currently trying to find the time to read a book by another American author, Reed Dickerson. Long out of print, five copies of it are offered for sale on the Net - all at prices I cannot afford (three of them at nearly US$600 each). My interest is that Dickerson thoroughly explored the concept of "legislative intent". (Judges favour the notion that the legislative intent was whatever they say it was.)
Most litigants may not be as interested in the theory of legal language as I am - it is fundamental to my own peculiar case.
Three items I will recommend to you (and anyone else) are "Democracy: A History" by John Dunn, "The Doubter's Companion" by John Ralston Saul, and "Political Corruption, Judicial Selection and the Rule of Law" by University of Alberta Professor of Law F.C. DeCoste. This last one is a paper included in the 2000/3 issue of the quarterly Alberta Law Review, which was dedicated to the topic of the Canadian judicial appointment process. DeCoste was the guest editor. You can access it online through HeinOnline. That one paper has 169 very informative footnotes.
It occurred to me yesterday that I should buy some extra copies of Saul's book to give to the three judges when I return to court, so we can read a few passages together. The opening paragraphs provide a powerful message ideally suited to opening my argument about abuse of language as a tool of oppression.
I agree with you about democracy, but I think it can be saved.
I think "justice must be seen to be done" is a myth and an illusion unless we get back to the "basics" to ,
1. establish a meaningful and respectful communication in Courts from bottom
to top including Judges, lawyers, 'pro se' Applicant(s) , government 's
officials; or else it will be "no one accountable" for lack of impartility and
independence, for lack of objectivity either to defining "frivolous" which often
seems to be mischaracterized, mistated, and wrong interpreted merely
to weed out "pro se " cases as to discourage further steps being taken. I
personally consider this practice is based on illegal tactics and is used to
block meritorious cases rather be funded or assisted in a proper manner ,
promptly .
2. I also believe that the purpose and structure of the judicial system became
'more mercantile' dealing with "money" only and not with the cases
adequately in a judicial, accountable and transparent manner. As such
there is no control, or effort being made to bringing to justice those who
alegedly breached the Law or Charter and recklessly comitted serious offences
Therefore, the legal system being lax and permissive toward offenders and
tortfeasors, never operates or functions scrupulously aware of the
need to maintain public confidence in the Court's access and fairness!
3. The courts have for nearly one thousand years set standards of moral and
ethical conduct for legal practitioners . If the principles or rules stated thereto
will be interpreted responsibily and treat duties which any member of the legal
profession, e.g. Judge, lawyer, and so on, owe to the public, to the court,
to his or her professional brethren it will help us to understand which actions
are right and which actions are wrong without 'falsely misinterpreting or
mistating what really "frivolous ' connotes !..........
4. Finally , if the standards are adequately set, let's move forward by using them correctly rather than 'the rule of thumb or pick and choose which case is to be discarded for "n" or speculative assumptions !?
For almost six years I have been trying to understand why I have not been able to advance my case, but after reading about Mr. Budgell's problems, and others like him, I think I now know why.
Many in the judiciary have an extreme bias towards self-represented litigants, which makes it impossible for such litigants to obtain due process. When a judge won't read my affidavits or factums, or consider my evidence, he is violating my basic right to a fair and just hearing. In my view that is also dishonest.
It is clear that justice is unattainable for many of us who cannot afford legal representation and who do not qualify for legal aid. This is obviously so not right, and appears to be systemic. Is our system of justice really just for the wealthy?
I am preparing my documents to request leave to appeal my issues to the Supreme Court of Canada. I hope my presentation will be considered fairly.