Lingering Thoughts on Little Sisters and the Cost of Exerting Your Rights

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?