The Costs of Charter Litigation
Variables and Elusive Cost Estimates
Beyond the potential high costs associated with counsel fees, it appears that the largest variable which affects the predictability of costs will be the necessity of calling legislative fact evidence. Bedford was not a complex case in terms of legal argument, but it is one of the constitutional challenges known for the extensive array of legislative fact evidence tendered upon the application. Later on I will return to provide a more complete discussion of this important variable, but for now it is important to also understand that even if legal fees had been charged in Bedford, the costs of mounting this challenge may not be representative of the costs to be incurred for challenges of similar factual complexity. For reasons mentioned below, in Bedford, there were many ways, not available in other cases, in which costs could be reduced.
I am not aware of any study that quantifies the costs of various challenges brought in the past 30 years and it may be worthwhile to obtain information from the various Legal Aid programs about funding provided for test cases. However, some sense of the range of cost can be found when one examines cases in which applications have been made for advanced costs. With respect to advanced costs, courts have the jurisdiction to grant costs to a litigant, in rare and exceptional circumstances, prior to the final disposition of case and in any event of cause, where:
- the party seeking interim costs genuinely cannot afford to pay for litigation,
- the claim adjudicated is prima facie meritorious,
- the issues raised are of public importance (and have not been resolved in previous cases). Footnote 19
Advanced costs are only awarded in exceptional circumstances, and from 2000 this award has mostly been made in cases dealing with issues of Aboriginal rights Footnote 20 and one dealing with the issue of whether traffic tickets need to be issued in French. Footnote 21 In the Okanagan case, the quantum of advanced costs were not pre-determined and the applicants were allowed periodically to request payment of costs in accordance with a procedure agreed to by the parties; however, it does appear that a maximum award of $814,000 was contemplated. Footnote 22 However, in the Tsilhqot’in case, we can see that the quantum can be very high as advanced costs exceeding $10,000,000 were incurred. Footnote 23 Of course, no two cases are alike and other advanced costs show that some challenges can be completed for considerably less than these two Aboriginal rights cases. In the Fournier case, an award of $17,500 was originally made to pay for the mounting of a defence to a charge of fraudulently selling native status cards. Footnote 24 In the Caron case, an award of $91,000 was made for a language rights challenge to unilingual traffic tickets. Footnote 25 In the Fontaine case, an award of $70,000 was made to support a class action being brought by an Aboriginal woman against a residential school. Footnote 26
In Carter v Canada Footnote 27 , dealing with the constitutionality of the assisted suicide prohibition is a case very analogous to the Bedford case in terms of the Charter arguments made and the scope of legislative fact evidence. This case did not receive an award of advanced costs; however, the application hearing judge decided to award "special costs" to the applicants in light of the public importance of the successful challenge. This award of "special costs" exceeded $1,000,000 Footnote 28 and it is likely that the Bedford challenge would have also incurred costs of this magnitude had it not been for the willingness of counsel and experts to work free of charge.
The issue of costs also introduces another layer of unpredictability for the funding of constitutional challenges. In calculating the costs of litigation, one often assumes that the challenge will be successful; however, one must also account for the contingency of losing and having costs awarded against the applicant. Fortunately, the awarding of costs against applicants who have brought constitutional challenges is not a significant concern as there is a well-established doctrinal approach to costs in which costs are rarely awarded against test case applicants. Footnote 29 In fact, I have never had costs awarded against my clients in cases in which the constitutional challenge had been dismissed.
Predicting the costs of a constitutional challenge is also confounded by three other important variables. First, it must be remembered that constitutional challenges are brought within the context of an adversarial process, despite the challenge resembling a public inquiry. In Bedford, there was a high level of co-operation between the applicants and the federal and provincial governments, and the government often agreed to pay for some expenses incurred by the applicant (in Appendix A, it can been seen that the federal government agreed to pay for the transportation and accommodation of a witness from Australia – our costliest flight). Nevertheless, in many other cases I have been involved with there was a more adversarial and antagonistic relationship with government, and often the challenges become bogged down in interlocutory motions such as motions to strike the claim, judicial review of undertakings given in cross-examination to produce documents and the raising of numerous preliminary objections to standing, jurisdiction of the court and admissibility of evidence. In some cases, the government is willing to facilitate a speedy hearing on the merits, and in other cases the government will do whatever it can to delay addressing the merits of the claim. Obviously, if the government hotly contests all aspects of the challenge, costs will increase in a significant manner.
The second variable affecting costs relates to the choice of procedure. In all of my challenges I was able to reduce costs by initiating the process by way of application for declaratory relief and not by way of an action. Despite the fact that hearing viva voce evidence at a trial of an action is more dramatic, it is far more cumbersome and inefficient as compared to the application process in which affidavits are tendered with cross-examination of the affidavits taking place outside of court before the hearing of argument. Even with effective case management trials are notoriously unpredictable and often require a great deal of last-minute adjustments in scheduling. Having the witnesses attend for cross-examination in front of a special examiner outside of court allows for precise scheduling and reduces the burden on the witness. As can be seen from the chart of expenses in Appendix A, the costs incurred for testing affidavit evidence in the Bedford was very manageable and predictable.
The third variable, alluded to above, is the need for calling legislative fact evidence. If experts need to be paid, and counsel wishes to call a wide array of experts, then costs will exponentially increase. Not all cases require an in-depth analysis of legislative fact evidence; however, in recent years it does appear that this practice of calling numerous experts from various disciplines has become the norm and not the exception. As this variable is the one which most dramatically affects the quantum of costs, I wish to now briefly address the issue of how, when and why the practice of introducing an extensive record of legislative fact evidence has evolved in Canadian law.
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