The Federal Court has issued a discussion paper on costs in the Federal Court. A subcommittee of the Federal Courts Rules committee is seeking comments by November 23, 2015 on costs, including on addressing improper, vexatious and unnecessary litigation, access to justice and methods of calculating costs.
In canvassing various cost regimes, the paper (link) raises the following discussion questions:
- In your view, what are the purposes served by costs awards?
- Do you agree that indemnification, discouraging disproportionate or otherwise abusive litigation behaviour, encouraging settlement and ensuring access to justice are proper purposes?
- Should any of those purposes be prioritized?
- Do you think the Courts’ approach to costs should be applied uniformly or be adapted based on litigation type or whether the unsuccessful party is a self-represented litigant?
- What areas of law should be treated differently (examples might include: labour law, human rights law or prisoners’ rights)?
- Should actions and applications for judicial review be treated differently?
- What are the advantages and disadvantages of one-way fee-shifting? In what classes of cases would it be appropriate or not?
- What are the advantages and disadvantages of a “no costs” approach?
- In what classes of cases would it be appropriate or not?
- [On whether to establish specific rules and cost consequences related to vexatious, improper and unnecessary ligiation] Is establishing such rules desirable?
- If so, how should the Committee define “vexatious, improper and unnecessary litigation” and what should the cost consequences be (e.g., solicitor and client costs, a 7 doubling or multiplication of regular costs, a lump sum penalty or punitive damages, etc.)?
- Should this type of behaviour be addressed separately from other costs, both in terms of amount of costs and in terms of the time at which such costs are payable ?
- And, if so, at what stage of the proceedings?
- Is a tariff an appropriate method for calculating costs?
- Do costs calculated according to Tariff B provide a sufficient degree of indemnity to the successful party?
- Are these costs sufficient to deter parties from pursuing unmeritorious litigation, or disproportionate or abusive steps within a proceeding, and to induce them to consider settlement?
- If not, what changes should be made to Tariff B?
- Should the spread between the columns, or within the columns, be increased?
- Should there be additional columns reflecting an even greater degree of complexity? Should there be assessable services beyond those mentioned in Tariff B?
- Should the Rules establish presumptions that certain categories of cases will be assessed according to a column other than column III?
- Would a general increase in the amount of costs have negative impacts on access to justice?
- [On whether there should be specific rules for pro bono counsel] Should there be specific rules in this regard?
- May a party and its pro bono counsel enter into an agreement whereby counsel is entitled to the benefit of any cost award?
- Should an exception be made to Rule 400(7), whereby costs would be payable directly to pro bono counsel?
- Should parties be required to disclose the terms of their agreement with pro bono counsel?
- Are there other aspects of the issue that should be addressed in the Rules?
As noted above, comments are requested by November 23, 2015.