Raising Court Fees and Nudging Litigant Behaviour
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.
RE: “the government should move beyond pricing all types of fees the same”
Absolutely. To speak of nudging “public” behavior in terms of chewing up court resources misses the fact that auto insurers chew up a huge amount of Ontario’s publicly funded civil court resources. A recent Stats. Can. study breaks down their use (abuse?) of court resources and reveals the staggering volume cases/motions brought by insurers. That said, raising insurer fees to encourage fair settlements and discourage their endless hardball litigation tactics is no solution given the increased cost would merely be past on to their captive consumers (Ontario’s nine million motorists) via premium increases. Either way the the ordinary citizen/taxpayer/consumer winds up paying the court resource freight for the corporate/auto insurer freeloaders.
check out this tweet:
FAIR Association @FAIRAssociation 3h3 hours ago
FAIR Association Retweeted John Bonn
Last year 59,956 auto ins cases in civil court + 36,750 appl for mediation/arbitration at FSCO – system badly brokenFAIR Association added,
John Bonn @owtlawjb
Whether fees are in fact “nominal” whether before or after the increase is a subjective assessment. For many who cannot afford legal counsel court filing fees serve as another barrier to access to justice. Where increases are contemplated, fee waivers should also be considered so as to ensure access to justice.
Thanks Heather. What about “nudging” parties towards early resolution and “out of court” options such as mediation? It is possible to creatively structure the fees to be lower for those who settle early and to charge more for those processes that are time and resource intensive for the system. Of course, as Karen points out, it would need a robust system of waivers or exemptions in order to prevent manipulation of low-income parties.
There is already a huge disincentive towards continuing with litigation for those who are represented by counsel – it’s the legal fees required to bring the case forward at each stage. This cost is nothing compared to the court fees. So filing fees will make no difference for those who are represented by counsel unless they are substantial (in the $1,000s or $10,000s, not $100s).
For those who are self-represented, maybe these court fees could be the “nudge” they need to think twice, although at their present levels they are way too low to have any meaningful impact.
A model I think could work is if a plaintiff had to put forward a small amount as a base court fee and another more substantial amount as a security fee. If the plaintiff is unsuccessful in their action or motion (however this is measured), they forfeit their security fee and it goes to the court to compensate them for their wasted time. If the plaintiff is of limited means, the security fee could be scaled according to their means, as long as it was substantial and meaningful given their income.
Still, litigants are rarely realistic about their odds of success. Even when represented, their lawyer has no incentive to give them the reality check they need when they bill hourly and can only stand to benefit from continued litigation. So while I’m skeptical “nudges” can fix the problem, I do agree that courts should do what they can to encourage efficient behavior.
It seems to me that no one can figure out what the overall objective of the court system is, hence the nudging is going on in all directions here. The point is well made and well taken that the existing nudging is not exactly producing desirable behaviours at the moment, so any nudging plan should begin with a zero-base analysis: Absent any incentives at all, what purpose is the court system trying to achieve? And within that purpose, what role would filing fees play?
The purpose of the court system is not simply the adjudication of disputes, if I understand correctly, but the upholding of the rule of law. And the development of the law, if I understand correctly, is accomplished by the adjudication of disputes. And the law that is thus developed is the law that rules us. The disputes that make the greatest contribution to the development of law are not – if I understand correctly – easily categorized by type of litigant or whether they are represented. They are the ones that pose the right problem at the right time for the courts to bring their thinking forward. Thus, it beggars the imagination to devise a rational set of filing fees around the objective of getting the “right” disputes to court and shuttling the others around it. The only rational option seems to be a blanket fee that will, by definition, be harder for some people to afford than others.
Seen from the other side, it seems to me that every single one of us has an equal right to participate in the making of the rule of law. Therefore, when people speak of discouraging the use of the courts and encouraging alternate mediation, that is a nudging strategy that I would design with enormous care. The loss is not just to the parties if a significant legal question lies there at the heart of a dispute that does not come to court; the law itself loses an opportunity to develop in a responsive and timely way to what is actually going on out in the real world. Because the open court principle has no obvious feedback loops, it has to rely on very subtle, indirect ones for the courts to remain relevant, and making sure that current, real-world, real-time issues and legal questions are coming to court is essential to sustaining public confidence in the courts.
If one studies the grocery store, one cannot take too much from looking at one nudging strategy. Grocery marketing has evolved into one of the most sophisticated fields of behavioural analysis so represents what might be called a symphony of nudges from the moment a customer walks in the door. Unfortunately they are not all so benignly driven as putting fruit at eye level (except fruit isn’t as healthy as you thought, see “sugar”), but the point is, they work to influence the desired behaviours. And what’s more, they work within a framework of consent, which is an interesting contrast with the court system.
In my opinion, court filing fees come up so far down the line in the decision-making process that they are not a very useful nudge at all and simply function as a hoop the system holds up for people to jump through. But the system has to be paid for somehow, and if nothing else it will reduce casual abuse, so there is nothing wrong with such fees being in place. Abuse of the system by people to whom the sum of fees is irrelevant will have to be nudged a different way.
I don’t think filing fees have any deterrent action at all. The real disincentive to lawsuits in the Canadian legal system has always been cost awards.
If you really want to stamp out unnecessary litigation, amend the Rules to allow for even higher costs, closer to full indemnity, and narrow judicial discretion around costs to impose mandatory costs for unreasonable positions, inflammatory conduct, and frivolous and vexatious behaviour.
As the MAG page itself states, the real basis for filing fees is cost recovery from the courts itself. Even with these increases there is still a significant deficit, borne by the public. They may in fact have to raise the fees, but the real solution here is to find better efficiencies, including complete digitization.