The Financing Litigation Series: Publicly Funded Litigation Funds


10 January 2018

By Valerie Le Blanc

This is the final blog post in a six-part series showcasing each of the six financing models explored in the Study Paper on Financing Litigation (PDF), published on October 4, 2017, and recent developments. To read other posts in the series click here.

Publicly funded litigation funds are self-sustained and offer litigants access to ongoing and continuous funds to pay the cost of litigation. Across Canada, two such funds are currently in place—the Ontario Class Proceedings Fund, and the Québec Fonds d’aide aux actions collectifs. In 2017, the federal government reinstated the Court Challenges Program, which is designed to finance litigation of test cases that have national significance.

Highlights from the Study Paper on Publicly Funded Litigation Funds

Optimal Uses

  • Class proceedings (used in class proceedings where parties often face a power imbalance);
  • Public interest cases (e.g. where the outcome of a case has the potential for a wide impact on the public, such as human rights and Charter cases).

Advantages

  • Helps to fill service gaps
  • Expanding the role of small law firms

Disadvantages

  • Administrative challenges
  • Discouraging funding structure

Ethics and professional responsibility considerations

  • Managing client expectations

Opportunities for systemic, structural, or legal change

The consultation participants and research highlighted two ideas where changes could be considered to promote publicly funded litigation funds in British Columbia: develop a class proceedings fund; and lawyer and law firm annual contribution to a public interest litigation fund.

Some Recent Developments on Publicly Funded Litigation Funds (since June 2017)

  • The Government of Canada announced on September 1, 2017 that an Expert Panel Selection Committee has been established for the new Court Challenges Program (CCP). The five-member committee is responsible for making recommendations on the candidate selection criteria for the CCP’s two Expert Panels on official language rights and human rights. The announcement also confirmed that the University of Ottaway will implement and administer the CCP. To view the announcement, visit the website here.
  • Canadian Lawyer Magazine published an article on September 6, 2017 offering details on the University of Ottawa’s role to implement and administer the new CCP. According to professor Richard Clément of the university’s Official Languages and Bilingualism Institute and chairman of the new administration committee, the university’s appointment “fit[s] very well with what we perceive as the message of the university.” The article notes the University of Ottawa, as a bilingual university, has a focus on language rights and human rights through its Human Rights Research and Education Centre in the Faculty of Law. To view the article, visit the website here.

About the Financing Litigation Legal Research Project

The Study Paper on Financing Litigation (PDF) examines the traditional and alternative methods litigants use to pay for litigation. The cost of litigation is a significant barrier to accessing the justice system. While some disputes can be resolved outside the courtroom, litigation is often the only means to achieve an equitable result. However, a litigant’s ability to pay for the legal fees and expenses that come with litigation may become a concern before, or during, the process. Taking a legal dispute to trial is expensive. Many litigants lack the financial resources to take on the risk of an unsuccessful case.

The study paper reviews six financing models that have emerged both in Canada and internationally:

  • Unbundled legal services;
  • Third-party litigation funding;
  • Alternative fee arrangements;
  • Crowdfunding;
  • Legal expense insurance; and
  • Publicly funded litigation funds.

The study paper also identifies 18 opportunities and ideas to consider for structural, systemic or legal change to enhance the use of each financing option in British Columbia. It concludes with a chapter that briefly discusses five alternative ideas that could mitigate the rising cost of legal services and improve access to justice generally.

This project was made possible by funding from the Law Foundation of British Columbia.

Useful Links

  • Study Paper on Financing Litigation (PDF)
  • Highlights from Chapter 11—Publicly Funded Litigation Funds (PDF)
  • List of Resources—Publicly Funded Litigation Funds (PDF)

A look ahead

Stay tuned for future blog posts on related news and updates on the topics covered in the Study Paper on Financing Litigation.

 


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