Abstract
All jurisdictions in Canada follow the “world rule” that the loser pays the costs of litigation. There are, however, great differences in implementation of the rule. Quebec has allowed the level of recoverable costs to become negligible, given the effect of inflation, and the operation of the “world rule” in Quebec therefore approximates the U.S. rule that each side pays their own costs. This is generally seen as a means of facilitating access to justice, eliminating the down-side risk of a costs award, yet the Quebec experience in recent years has been one of dramatic decline in litigation rates. Nor have devices such as contingent fees or class actions obviously compensated for the decline. The conclusion is that costs rules are irrelevant to litigation rates, at least where counsel fees have reached a certain level.
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- 1.
See the recent criticism by the Chief Justice of Canada, Beverly McLachlin, reported in The Globe and Mail, February 10, 2011 (“If you’re the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it”).
- 2.
Art. 477, Quebec Code of Civil Procedure (CCP). The rule appears to be jurisprudential in the common law provinces, and thus constitutes judicial practice in the exercise of the court’s discretion in awarding costs, stated statutorily in Ontario in s. 131 of the Ontario Courts of Justice Act, R.S.O. 1990, c. 43, as amended (“… the costs … are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”).
- 3.
The Canadian Lawyer, June, 2009, p. 33.
- 4.
Le Journal du Barreau du Québec, May, 2009, p. 32.
- 5.
D. Jutras, “Culture et droit processuel: le cas du Québec” (2009) 54 McGill L. J. 273 at 279.
- 6.
P. Fuchs, “Innovation or Interference? Third-party litigation funding offers access to justice – but is the ethical price too high?” The National, Oct–Nov 2008 at 49.
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© 2012 Springer Science+Business Media B.V.
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Patrick Glenn, H. (2012). The Irrelevance of Costs Rules to Litigation Rates: The Experience of Quebec and Common Law Canada. In: Reimann, M. (eds) Cost and Fee Allocation in Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2263-7_6
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DOI: https://doi.org/10.1007/978-94-007-2263-7_6
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