Costs arguably create the most substantial financial barrier to access to our courts, as the “costs follow the event” rule casts a particular chill on litigants of limited means. Confronted with the uncertainty of how substantial their costs will be, they often abandon important and meritorious cases.

Access Pro Bono has been exploring the potential use of Protective Cost Orders (PCOs) to increase access to justice and to protect pro bono clients with cases of public importance from the deterrent and punitive effects of adverse cost orders.

The Supreme Court of Canada framed discretionary PCOs in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71. The Court held that for such an order to be awarded, a litigant would need to prove that:

1. they cannot afford to pay for the litigation and it cannot otherwise proceed;
2. their claim is prima facie meritorious; and
3. the issues transcend private interests, are of public importance, and have not been previously resolved in other cases.

Thus far, very few applications for PCOs have been made in Canada, and none have been granted. 

With the above in mind, Access Pro Bono commissioned pro bono lawyer Jennifer Winstanley of Camp Fiorante Matthews Mogerman to draft a legal opinion on how and when to apply for a PCO in the pro bono context. We thank Jennifer for her excellent legal opinion and exemplary volunteer efforts.

Read Jennifer's legal opinion on PCOs here.