The Ontario provincial government will be raising court fees effective July 1, 2016. This increase will be based on the Ontario Consumer Price Index.
Although I welcome the injection of money into the court system, I take issue with the government’s approach to raising fees. The government is squandering a golden opportunity to positively nudge the public’s behaviour.
Scholars Richard Thaler and Cass Sunstein explain a “nudge” as something that alters people’s behaviour in a predictable way without forbidding any options or significantly changing economic incentives. An example of a nudge would be putting fruit at eye level in a grocery store.
The current pricing of court fees is lazy. It encourages people to litigate to their heart’s content as long as they can afford the nominal filing fee.
In “A 5-Point Action Plan”, Ontario Court of Appeal Judge Justice D. M. Brown, states that court-filing fees should be designed to promote the “final adjudication of disputes on the merits” and “the interlocutory preservation of rights pending the final adjudication”. Therefore, court fees should be low for requests that protect the interim preservation of rights and the final adjudication of claims. While, court fees should be high for interlocutory requests that deal with peripheral disputes.
Justice Brown points out that:
Apart from paying their nominal filing fees, parties do not have to think about how their litigation conduct will affect public resources. Put another way, as long as they pay their $127 to bring a motion, parties can litigate away without regard for how their conduct is affecting the use of a scarce public resource…
[Similarly pleadings would look markedly different] if the level of the initial filing fee [was] tied to the quantum of damages sought or the number of claims asserted[.] If parties were forced to focus their pleadings on the core of their disputes, a much-reduced discovery and production process would naturally follow.
In revising court fees, the government should move beyond pricing all types of fees the same. Instead, fees should be calibrated according to the type of claim sought and the type of motion brought. This would nudge litigants towards using court resources carefully and thoughtfully.