Habermas, Legal Legitimacy, and Creative Cost Awards in Recent Canadian Jurisprudence

Access to justice continues to be a live issue in Canadian courtrooms. While state-sponsored initiatives that promote access continue to flounder in Canada or in some cases, are cancelled altogether, the pressure is mounting to find creative solutions that facilitate greater participation in formal dispute resolution processes. The price of failing in this regard is very high. To truly flourish, both social cohesion and individual liberties require a more participatory and inclusive legal system than the one that currently precludes all but the wealthiest from accessing our courts. Drawing on the legal philosophy of Jargen Habermas, the author examines access problems from the perspective of the civil litigant who is facing the unmanageable financial burden of having her legal rights recognized and adjudicated in a Canadian courtroom. Specifically, this paper considers the role which creative costs orders can play in advancing the goal of fuller legal participation. The traditional justifications given for costs awards (most importantly, indemnity) continue to dominate the jurisprudential dialogue. However, recent developments in Canadian law have suggested - if not wholeheartedly embraced - a more instrumental justification for costs awards. The instrumental view, considered here, has the advantage of not assuming that litigants are equal in their ability to accessjustice. Although suffering from recent setbacks, this approach has the potential to assist in addressing the inequalities of participating in the Canadian justice system.