Access to justice still costly in Canada (Baglow v FD)

[Connie Fournier]

Despite reforms, access to justice still costly in Canada

Alan Shanoff
Toronto Sun

..."To remedy access to justice impediments, chiefly the high costs of litigation, the Ontario Ministry of the Attorney General announced a series of reforms, effective in January, 2010, to improve “access to civil justice for Ontarians by making it easier, faster and less expensive to resolve disputes.”

One of the reforms involved the expansion of the use of summary judgment motions to resolve disputes, without the necessity of a trial."

..."But Baglow, seeking a trial, appealed the dismissal and was successful.

The Ontario Court of Appeal directed the action to proceed to a trial where the court could hear expert evidence “concerning the expectations and understandings of participants in blogosphere political discourse” as well as evidence of what a right-thinking person would consider would lower Baglow’s reputation in the eyes of a reasonable reader, as well as cross-examination of both Baglow and Smith.

All this so a trial judge might have a full record upon which to decide if different legal considerations ought to apply to an exchange of political blogs as opposed to publication in a traditional media outlet.

What about the costs of the motion and the appeal?

The defendants have been ordered to pay $7,500 to cover part of Baglow’s costs of the appeal, in addition to $6,500 for the motion.

Unless settled, the lawsuit will go on to a trial, replete with expert witnesses, at a cost of many tens of thousands of dollars.

Lawyers will be happy; I’m not so sure about the parties to the lawsuit.

So much for improving access to justice and creating an easier, faster and less expensive method to resolve disputes."

Read all of it here: http://www.torontosun.com/2012/06/29/de ... -in-canada

[Julian]

Can anyone explain to me why the Fourniers were ordered to pay costs? I'm seriously hung up on this issue.

First of all they moved for dismissal and the judge agreed. From that point forward Dawg's grievance was with the judge ad the decision ... right?

Second, Dawg did not have to appeal, that was an elective on his part and the Fourniers had no particiaption or input in any way on this decision. ..... right?

Third the appeals judge decided he would like a trial to satisfy his personal curiosity about this sort of complaint.... right?

Fourth, he ordered the Fourniers to pay for the entire fiasco ..... WHY? How on earth is this legal? On what basis are they responsible for any of the costs???

[Connie Fournier]

The judges can do whatever they like with costs. It's unfortunate they decided to go this route, though.

Shanoff saying the loser would pay $100,000 really puts it into perspective, though, doesn't it? This isn't just a realworld version of a flamewar. Somebody is going to lose everything.

[Julian]

The judges can do whatever they like with costs. It's unfortunate they decided to go this route, though.

Shanoff saying the loser would pay $100,000 really puts it into perspective, though, doesn't it? This isn't just a realworld version of a flamewar. Somebody is going to lose everything.

They can do whatever they like with costs???

Why didn't he assess the costs to me then? or how about where they could justifiably be placed with the judge who made the decision that caused the appeal?

Is the judge merely expressing his hatred for you and Mark?

What on earth was his basis for awarding costs??? Doesn't he have to give a reason?

Can you appeal this punitive unwarranted and unjust awarding of costs to a governing judicial body?

[Soulforger]

Lawyers will be happy; I’m not so sure about the parties to the lawsuit.

So much for improving access to justice and creating an easier, faster and less expensive method to resolve disputes."

Read all of it here: http://www.torontosun.com/2012/06/29/de ... -in-canada

The system is broken.

I know how taxing a legal battle can be on your heart and wallet. Keep your chin up.

[Connie Fournier]

No, we can't appeal the costs unless we got leave to go to the Supreme Court, which would be highly unlikely and uber-expensive to try. All we can do is aim to win this case and ask for the highest possible costs to try to recoup as much as possible of our expenses.

[Connie Fournier]

Lawyers will be happy; I’m not so sure about the parties to the lawsuit.

So much for improving access to justice and creating an easier, faster and less expensive method to resolve disputes."

Read all of it here: http://www.torontosun.com/2012/06/29/de ... -in-canada

The system is broken.

I know how taxing a legal battle can be on your heart and wallet. Keep your chin up.

Well, at least we have some good people behind us helping us. Like Brian Lilley and SunTV: http://www.youtube.com/watch?v=tmZJn3s1BkU

I shudder to think of the state we would be in if we didn't have lots of friends behind us.

[Julian]

No, we can't appeal the costs unless we got leave to go to the Supreme Court, which would be highly unlikely and uber-expensive to try. All we can do is aim to win this case and ask for the highest possible costs to try to recoup as much as possible of our expenses.

hmmm, so with the system being free as it is to punish you for fighting for free speech it would be legal for the judge, after you have won this case, to award costs to baglow and you could not appeal. ... right?

[Soulforger]

No, we can't appeal the costs unless we got leave to go to the Supreme Court, which would be highly unlikely and uber-expensive to try. All we can do is aim to win this case and ask for the highest possible costs to try to recoup as much as possible of our expenses.

http://www.e-laws.gov.on.ca/html/regs/e ... 0194_e.htm

CROSS-APPEALS

61.07 (1) A respondent who,

(a) seeks to set aside or vary the order appealed from; or

(b) will seek, if the appeal is allowed in whole or in part, other relief or a different disposition than the order appealed from,

shall, within fifteen days after service of the notice of appeal, serve a notice of cross-appeal (Form 61E) on all parties whose interests may be affected by the cross-appeal and on any person entitled by statute to be heard on the appeal, stating the relief sought and the grounds of the cross-appeal. R.R.O. 1990, Reg. 194, r. 61.07 (1).

(1.1) A respondent may, subject to subrule (1.2), serve a notice of cross-appeal without obtaining leave to appeal for the cross-appeal if,

(a) there is an appeal as of right; or

(b) leave to appeal has been granted. O. Reg. 206/02, s. 15.

(1.2) The respondent shall obtain leave to appeal in the manner provided by subrule 61.03 (8) or 61.03.1 (18), as the case may be, if the cross-appeal is taken under a statute that requires leave for an appeal. O. Reg. 394/09, s. 26.

(2) The notice of cross-appeal, with proof of service, shall be filed in the office of the Registrar within ten days after service. R.R.O. 1990, Reg. 194, r. 61.07 (2).

(3) Where a respondent has not delivered a notice of cross-appeal, no cross-appeal may be heard except with leave of the court hearing the appeal. R.R.O. 1990, Reg. 194, r. 61.07 (3).

Not sure if this helps but...

[Julian]

Lawyers will be happy; I’m not so sure about the parties to the lawsuit.

So much for improving access to justice and creating an easier, faster and less expensive method to resolve disputes."

Read all of it here: http://www.torontosun.com/2012/06/29/de ... -in-canada

The system is broken.

I know how taxing a legal battle can be on your heart and wallet. Keep your chin up.

Well, at least we have some good people behind us helping us. Like Brian Lilley and SunTV: http://www.youtube.com/watch?v=tmZJn3s1BkU

I shudder to think of the state we would be in if we didn't have lots of friends behind us.

You're not going to run out of friends.

You and Mark are definitely absolutely and positively Genuine Canadian Hero's. History will remember who you are and the great things you did in the face of near overwhelming adversity.

One day you will have the affliction that all people of notoriety suffer, ...hangers on! Those who wish to basque in the radiance of your celebrity and pretend they were there all along..... Who knows, maybe you will be Warman's claim to fame just as Ali was Chuvalo's.

[Faramir]

Yes, the system IS broken. The idea that nuisance litigants can basically cause emotional and financial misery simply because they have lots of liberal cash behind them is NOT justice. And the Canadian justice system more than accomodates them.

[pirapoi]

Connie Fournier wrote:

Shanoff saying the loser would pay $100,000 really puts it into perspective, though, doesn't it? This isn't just a realworld version of a flamewar. Somebody is going to lose everything

I have to wonder how likely it would be that the decision in the upcoming case might be appealed.

/ from the article -

Unless settled, the lawsuit will go on to a trial, replete with expert witnesses, at a cost of many tens of thousands of dollars.

Any chance of an out of court settlement?

[Soulforger]

Why not appeal the costs ruling in the appeal?

[Connie Fournier]

Why not appeal the costs ruling in the appeal?

It's kind of complicated. The case was appealed and went to the Ontario Court of Appeals. They are the ones that assessed costs against us (the lower court had given US costs). They also bumped the case back DOWN to the lower court. If were were to appeal the Ontario Court of Appeals decision, it would have to be to the Supreme Court, and we would have to get leave to appeal (which is very hard to get).

When this case is heard now in the lower court, they will reassess the costs. If he loses, he will have to pay us back what we paid him plus all of our costs for our expert witnesses and the like. Or, if we lost, we would have to pay him more. That is why Shanoff threw out the figure of $100,000.

[Soulforger]

Why not appeal the costs ruling in the appeal?

It's kind of complicated. The case was appealed and went to the Ontario Court of Appeals. They are the ones that assessed costs against us (the lower court had given US costs). They also bumped the case back DOWN to the lower court. If were were to appeal the Ontario Court of Appeals decision, it would have to be to the Supreme Court, and we would have to get leave to appeal (which is very hard to get).

When this case is heard now in the lower court, they will reassess the costs. If he loses, he will have to pay us back what we paid him plus all of our costs for our expert witnesses and the like. Or, if we lost, we would have to pay him more. That is why Shanoff threw out the figure of $100,000.

Thanks Connie.

I did not realize it was so hard in Ontario to get a leave to appeal. I am far more familiar with the civil courts in British Columbia.