As of April 1, 2019, the Ontario government has introduced significant changes to court fees for Small Claims Court as well as Civil and Family proceedings at Superior Court. Court fees are the costs that come up from time to time as a case moves through the court system and includes fees for filing a claim, setting a date for a trial, and a range of other court steps. These fees are not new and they have had significant increases in the past, but the most recent changes raise questions about access to justice for people and organizations with less money trying to pursue a claim in court.

According to the government’s summary of the proposed changes, the increases will bring the court system closer to being able to recover the cost of administering the services. More specifically these fees will “ensure that the costs of providing a program or service that benefits an individual are paid by the beneficiary of that program or service.”

This approach puts more of the cost burden of administering the court system on those who are seeking to use it. But high fees may prevent some people from asserting their legal rights in court. To address this issue, the courts have a “fee waiver system” which means that people who fall under a minimum income level are exempt from court fees.

The new regulations which increased the court fees have also increased the minimum levels to qualify for this fee waiver, which means more people will now qualify for the exemption from court fees. The government claims this will offset the access to justice issues that may otherwise be caused by these cost increases. The Assistant Deputy Attorney General, Court Services, Sheila Bristo boasts that, with the new increase, Ontario will now have the highest fee waiver eligibility thresholds in Canada. The fee waiver eligibility thresholds have increased by nearly 25% compared to what they were before the fee changes. In addition, those who do not meet the eligibility requirements but still cannot afford the fees can still make the request to have their fees waived.

When compared to the previous costs, the fee increases range from a few dollars more to double the cost. For example, the cost of filing a trial record in civil proceedings at Superior Court has increased from $405 to $810. The government summary explains that these 100% increases apply to some “in-court” services because they are administratively more cumbersome and have lower rates of cost recovery currently.

Critics of the proposed changes say that these fee increases may have a “chilling effect” because people will forego their day in court because of the high fees to get there. This is expected to have the most impacts on those who do not have a lawyer and are representing themselves. Most people who choose to represent themselves do so to keep the costs to a minimum. With court-imposed fees increasing, people may find the cost of going to court, even without a lawyer, too expensive.

Prior to the April 1, 2019 changes, the Ontario government increased court fees in small claims, civil court, and family court most recently in 2016. At that time, the fees increased by an average of 36%. These changes were similarly criticized for affecting the poorest the most. The government’s solution at that time was to increase the fee waiver eligibility by 36% to offset the impact on low income populations.

The current government’s summary explains that this year’s court fee changes build off of the 2016 changes to come closer to full cost recovery in the court systems. It is clear that the cost of administering our backlogged court system is burdensome on the government. However, critics speak out against transferring this burden onto individuals seeking justice. The government’s summary specifies that its rationale in increasing the fees is to make sure that more of the costs are paid by those who are actually using the services. This assumes a certain model that we each ought to be responsible for footing the bill of our own needs. This model will always affect those with fewer resources more than those who have more, who are already advantaged in court because they can pay for legal representation. The alternative to this model is a more robust publicly funded legal system, in which society collectively contributes the resources required to fund access to justice. Holding our government accountable to how they spend public funds and resisting them taking too much is important, but in the face of a lack of funds required to run important services such as the court system, transferring that cost to the individual user is not the most equitable answer.

The solution proposed by the government, and one that we already have in place, is fee waivers. Although fee waivers help individuals get access to justice, mounting court fees may still discourage litigation by others who do not qualify for the exemption. Moreover, fee waivers do nothing to assist small companies and organizations who are taken to court or have no choice but to start actions for the betterment of the community. For these organizations, a fee waiver system that focuses on individual income levels will not address their financial need. They will feel significant strain in an already limited budget with the cost of court fees increasing.

Questions around access to justice ascend beyond political parties and court fee increases. But times like these encourage reflection – as a government, as a legal profession, and as a society – on how we can empower those most affected to assert their rights in our courts.

Filed in: Civil Rights, Litigation

Tags: Access to justice, court fees