CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
2. Litigation Funding 2.1 Third-Party Litigation Funding Outside of class actions and insolvency, litiga- tion funding is largely unregulated and a matter of contract between the party and the third-party funder. To avoid the common law concerns with cham- perty and maintenance, the funder cannot “insti- gate” the litigation or through contractual terms become overly involved in the litigation. The class action legislation in some provinces requires court approval of third-party funding agreements with representative plaintiffs. The court will consider a variety of factors such as whether the agreement is necessary to provide access to justice; whether the agreement is fair and reasonable; whether the agreement will diminish the rights of the representative plain- tiff to instruct counsel or control the litigation; whether the funder is able to satisfy an adverse cost award to the extent that indemnity is pro- vided; and the funder’s compensation and risk. The court may cap the amounts realised by the funder so that any combined compensation received by the funder and class counsel under a contingency agreement does not exceed the caps imposed by law for contingency fee arrangements. In the insolvency context, court approval of third-party funding that provides interim financ- ing may be required. The factors that a court will consider are similar to those factors in the class action context. The terms of indemnification for adverse costs awards have been an important feature in court decisions.
the constitutionally entrenched right of freedom of expression. Generally, the public can attend hearings and review court files. The press is also free to inquire and comment on the workings of the courts. The Supreme Court of Canada has confirmed that this makes the justice system fair and accountable. Statutory protections exist for evidence or wit- nesses in certain criminal or family matters. The courts also have discretion to impose court access restrictions, including sealing docu- ments, where openness presents a serious risk to a competing interest of public importance. For commercial matters, the parties will most likely have to resort to the common law and not statute. 1.4 Legal Representation in Court Individuals may be self-represented before every level of court. A corporation, however, cannot be self-represented in court. The legal profession is regulated at the provincial level. In the superior and appellate courts, only lawyers called within that provincial jurisdiction may appear before the courts. The law societies of numerous provinces have entered into mobil- ity agreements that allow lawyers called in one province to appear on a limited basis in another if they comply with the rules of that jurisdiction and the terms of their practice restrictions. All lawyers called in any provincial or territorial jurisdiction may appear in the federal courts and before the Supreme Court of Canada. Foreign-called lawyers cannot appear in any Canadian court as counsel of record.
224 CHAMBERS.COM
Powered by FlippingBook