Costs, Access to Justice and the Administration of Justice:Quotes from the Bench

[13]  It is, I think, of the utmost importance to the administration of justice that the cost of litigation not go beyond the resources of persons of average means, which encompasses most of us.  There are few individuals in Canada who could afford to pay the sums sought in this case for costs.  This wrongful dismissal case ballooned into a wide-ranging exercise which cost for more than the reasonable expectations of parties commencing or defending such an action.

[14]  If costs awards, to be paid by the losing party, reach the level. as they have done in Ontario, that they can bankrupt an ordinary person, never mind an impecunious one, there is a danger that confidence in the justice system will be undermined and it will increasingly be seen, and not without good reason, as a system for business and the wealthy, but not for the mass of people whose tax dollars fund the system.  The loser-pay costs system can act as a serous barrier to justice, deterring deserving as well as frivolous cases.  Many jurisdictions get along quite well without a "loser pay" system.  Perhaps we should become one of them and deter frivolous cases and improper conduct in other ways.

[25]    .....The courts exist to hear the complaints of the people.  It is not in the public interest to deter the people from using their own courts for fear of the costs consequences if they lose the case.

Lane J. in Walsh  v.  Regenscheit et al 2007 Canlii 27588


Access to Justice:

[54]   Fourthly, there is a serious risk that, if we hold to a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process.  That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant.  Few judicial office holders would be able to self-fund those expenses.  On the one hand, that same person, in order to avoid those dire financial consequences, may simply decided that is is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

Nordheimer J. in Massiah   v.  Justices of the Peace Review Counsel and A.G. Ontario
2016 ONSC 6191