CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
14. Costs 14.1 Mechanisms to Protect Claimants From Excessive Costs In Canada, the basic legal principle for costs is “loser pays” . This means that unsuccessful claimants may be required to pay the govern - ment’s costs. If costs are ordered, they must usually be paid on a partial indemnity or party- party basis, representing 60% or two thirds of costs. A mitigating factor is that the hourly rates of in-house government counsel, in general, are lower than those of private counsel. But claim - ants are well advised to keep in mind the risk of an adverse costs award in pursuing litigation. 14.2 Public Interest Costs In public interest cases, courts retain the dis - cretion to relieve unsuccessful public interest litigants from paying costs. Courts consider the following questions. • Does the proceeding involve issues the importance of which extend beyond the immediate interests of the parties concerned? • Does the unsuccessful claimant have a per - sonal, property or pecuniary interest in the outcome of the proceeding, or, if they have an interest, does that interest clearly not justify the proceeding economically? • Have the issues been previously determined by a court in a proceeding against the same defendant? • Does the defendant have a clearly superior capacity to bear the costs of the proceeding? • Has the plaintiff engaged in vexatious, frivo - lous or abusive conduct? 14.3 Wasted Costs Courts retain the power to order costs against legal representatives directly, when their con - duct has caused costs to be incurred improperly,
without reasonable cause or costs are wasted by undue delay, negligence, misconduct or other default. They also possess the power, on the same basis, to disallow costs between counsel and their client. 15. Appeals 15.1 Right to Appeal Unsuccessful claimants may appeal first instance decisions to a higher court. 15.2 Appeal Forums Canada has a system of 13 provincial and territo - rial courts, each with a provincial court of appeal to which appeals can be made. In the federal court system, decisions of the Federal Court can be appealed to the Federal Court of Appeal. The highest court of appeal is the Supreme Court of Canada. 15.3 Permission to Appeal The presumptive rule is that unsuccessful liti - gants have a right of appeal from courts of first instance to courts of appeal. However, there are important exceptions. Appeals from the coun - try’s most active administrative law court – the Ontario Divisional Court (a division of the Supe - rior Court of Ontario) – require leave to appeal from the Ontario Court of Appeal. In immigra - tion and refugee matters, appeals to the Federal Court require the Federal Court to certify that the case raises a serious question of general importance. The Supreme Court of Canada’s appellate juris - diction includes appeals of right only in certain criminal cases. In all other cases, the Court must grant leave to appeal. The test is whether a case raises a question of national importance. The Court is not a court of error correction and will
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