Background & purpose of the system 1 basic institutions, processes, and players 3

COSTS AND FEES

COSTS

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  One of biggest drivers for influencing how people act within and throughout litigation is costs
  
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  Cost-Shifting system: the successful party is entitled to costs of a matter; we ask the loser to pay the winner a contextually reasonable amount for the costs of litigating (not all jurisdictions do so)
  
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  courts have the discretion to award costs or not, and to determine amount and direction (CJA s. 131)
  
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    Costs are a “fiction” – notional amount, in sense that do not necessarily correspond with what cost was actually incurred (what reasonable and fair in the circumstances).
    
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    Reasons: Efficiency, access to justice; indemnify winner; influence party conduct; encourage settlement; deter frivolous action; etc.
    
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    Recall proportionality (r.1.04, Moosa) – e.g. If someone decides that a wild number of lawyers and expenses are required for a $200k (low $$$) case, the judge will still fix costs based on what is appropriate for that case
    
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  Costs can either be fixed (based on courts discretion/set by courts, with respect to mitigating/aggravating factors in r 57; standard approach; RCP rr. 57.01(3), (3.1), (7); 58) or sent for assessment (seen as inefficient, done infrequently); (RCP r. 57.01(3.1))
  
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  Mulroney: “the objective (test) [of costs] is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred” (term of art from RPC, lawyers’ fees)
  
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  Costs Against Lawyers (RCP r. 57.07): courts are extremely cautious to invoke, don’t want to chill lawyers who take unpopular clients, etc. unless they themselves engage in conduct which contravenes the Rules of Professional Conduct (Mulroney- order costs balanced between client and lawyer- 25% from anka, then remaining balance from schrieber?)
  

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  (Mulroney 27-28) are extremely cautious
  

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  Security for Costs: Unusual, but if P outside jurisdiction or there is evidence of them being impecunious, court may order them to post costs upfront (RCP r. 56)
  
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    r.56 doesn’t say they have to or must post security for costs, because poor people still need to be able to bring
    

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  Policy balance, not exercised often because of its implications on access to justice (Yaiguaje v. Chevron)
  
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    Did the court get it right in this case?
    
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  Consider Proportionality (RCP r. 29.2)