Judicial Discretion as Political Choice: The Supreme Court of Canada's Costs Awarding Power

2018 ◽  
Vol 51 (4) ◽  
pp. 929-947
Author(s):  
Emmanuelle Richez ◽  
Erin Crandall
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Original Data ◽  
Access To Justice ◽  
Judicial Discretion ◽  
Supreme Court Of Canada ◽  
Discretionary Power ◽  
Data Set ◽  
Public Interest Litigation ◽  
The Supreme Court

AbstractThis article analyzes an important discretionary power of the Supreme Court of Canada, the ability to award costs. With the use of an original data set, we explore trends in costs awarding in public interest litigation at the Supreme Court from 1970 to 2012. Our findings suggest that, over time, the Court has tended to favour nongovernment parties over government parties where the former are less likely to pay costs when they lose and more likely to receive costs when they win. In these cases, costs orders were more likely to benefit public interest litigants, such as nongovernmental organizations, than individual litigants and businesses. Together, these findings suggest a sensitivity to access to justice concerns when making costs orders, though some may argue that this sensitivity by the Court does not extend far enough.

Enforcing Rights against the State in India

2019 ◽  
pp. 211-279
Author(s):  
Florian Matthey-Prakash
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Empirical Studies ◽  
The State ◽  
Access To Justice ◽  
District Courts ◽  
Public Interest Litigation ◽  
High Courts ◽  
The Supreme Court

Chapter 4 deals with the issue of lack of access to justice and attempts to find reasons for the inaccessibility of the higher judiciary. While it appears to be clear to observers that the Supreme Court and high courts are not accessible enough, surprisingly, there are actually no empirical studies that examine why this is the case. Some factors can, however, be deduced from a study dealing with the inaccessibility of district courts, that is, the lower judiciary.The fourth chapter also shows that the institution of Public Interest Litigation, for various reasons, cannot compensate for lack of access to justice, and that the state is not properly implementing (or not at all exploring) many other possible alternative mechanisms.

Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v Downtown Eastside Sex Workers United Against Violence

2013 ◽  
Vol 22 (2) ◽  
pp. 21
Author(s):  
Dana Phillips
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Sex Workers ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
Downtown Eastside ◽  
The Supreme Court

In 2012 the Supreme Court of Canada issued itsdecision in Canada (AG) v Downtown EastsideSex Workers United Against Violence (SWUAV).1Th e case centered on whether or not thoseinvolved in protecting vulnerable sex workershave standing to challenge the criminalizationof prostitution-related activities on their behalf.SWUAV represents a signifi cant break with previousjurisprudence on standing: it saw the Courttransform its vision of public interest standing,viewing it for the fi rst time as an access to justiceissue.

scholarly journals Public Interest Litigation: A Conceptual Framework

2010 ◽  
pp. 85-89
Author(s):  
Manas Ranjan Samantaray ◽  
Mritunjay Sharma
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Special Role ◽  
Public Interest Litigation ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Government

Public interest litigation (PIL) has a vital role in the civil justice system in that it could achieve those objectives which could hardly be achieved through conventional private litigation.PIL, for instance, offers a ladder to justice to disadvantaged sections of society, provides an avenue to enforce diffused or collective rights, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable. This article will show, with reference to the Indian experience, that PIL could achieve these important objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfil private interests, settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-today basis or enter the legitimate domain of the executive and legislature. The challenge for states, therefore, is to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this balance could be to build in economic (dis)incentives in PIL and also confine it primarily to those cases where access to justice is undermined by some kind of disability. Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Court’s directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

Pandemic and PILs: A Study on the Approach of the High Courts in India

2021 ◽  
Vol 54 (1) ◽  
pp. 55-77
Author(s):  
Uday Shankar ◽  
Sourya Bandyopadhyay
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Public Interest ◽  
Regional Level ◽  
Public Interest Litigation ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
High Courts ◽  
The Supreme Court

Studies in Public interest Litigation (PIL) in India are predominantly about the Supreme Court's approach in meeting the ends of justice through indigenously evolved jurisdiction. The High Courts as important constitutional bodies are more often than not remain out of detailed discussion. As the High Courts enjoy concurrent jurisdiction with the Supreme Court with regard to PILs, this paper aims to study the pattern of invocation of the jurisdiction at the regional level. It surveys the variety of pleas and consequent action under PIL jurisdiction (or inaction, as the case may be) of different High Courts in India relating to covid crisis and consequential matters. To that end, it undertakes a survey of High Court orders or judgments from April to July, 2020. It seeks to lay bare the extent of demands that are made before the Courts through PIL. What kinds of action were expected from the High Courts during the pandemic? How did different Courts respond to such pleas? Were the directions and level of response homogenous or varied? The paper pursues these questions, and describes the pandemic though the lens of PIL in Indian High Courts. It goes on to argue that the High Courts in India need to take greater cognizance of their orders inter-se especially in PIL matters, as human rights protection through PIL cannot have contradictory voices.

scholarly journals GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Canada

2016 ◽  
Vol 7 (1) ◽  
Author(s):  
Reuven S. Avi-Yonah ◽  
Amir Pichhadze
Keyword(s):  
Supreme Court ◽  
Tax Avoidance ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Discretionary Power ◽  
The Supreme Court ◽  
The Us ◽  
Court Of Appeal ◽  
The U.S

Abstract Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

scholarly journals Uniformity and Diversity in the Enforcement of Arbitration Clauses in Canada

2020 ◽  
pp. 111-121
Author(s):  
Geneviève Saumier
Keyword(s):  
New York ◽  
Supreme Court ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Consumer Contracts ◽  
Local Courts ◽  
Model Law ◽  
New York Convention

Arbitration is well established in Canada. All jurisdictions have implemented the 1958 New York Convention, the UNCITRAL Model Law on Arbitration and equivalent legislation for domestic arbitration. This generally supportive legal landscape for arbitration is often at odds with access to justice for consumers. As a result, several jurisdictions in Canada have adopted legislation to guarantee consumers’ access to local courts, including through class actions, notwithstanding the inclusion of arbitration clauses in their contracts. The constitutional division of powers in Canada entitles each province to adopt its own policy, leading to diversity across the country with regard to the enforceability of arbitration clauses in consumer contracts. In this paper, the author examines the tension between general support for arbitration and differentiated treatment of consumer arbitration in Canada. To that end, the author examines relevant legislation in several provinces (including Quebec and Ontario) as well as recent jurisprudence from the Supreme Court of Canada (Dell Computer (2007), Telus (2011) and Wellman (2019)). The 2020 decision from the Supreme Court of Canada in Uber may signal a new openness toward extending protection to other vulnerable contracting parties such as employees.

Invisible Inequalities

2019 ◽  
pp. 299-345
Author(s):  
Shomona Khanna
Keyword(s):  
Supreme Court ◽  
Working Conditions ◽  
Public Interest ◽  
Public Interest Litigation ◽  
The Public ◽  
Supreme Court Of India ◽  
National Movement ◽  
Public Campaign ◽  
The Supreme Court ◽  
Lower Castes

Started in 1997, Safai Karmachari Andolan (SKA) is a national movement for eradicating the practice of manual scavenging—an occupation which involves cleaning of dry latrines with tin plates and brooms and carrying of human excreta by members of lower castes. The SKA has been leading the public campaign to destroy illegal dry latrines and for the proper implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. In 2003, SKA, with 18 other organizations, filed a public interest litigation petition in the Supreme Court of India seeking eradication of manual scavenging, liberation of all manual scavengers from their degrading jobs, and initiation of measures for their rehabilitation. The SKA also works for the dignity and better working conditions for sanitation workers such as sewage workers, pit workers, and sweepers. This chapter seeks to record the work of SKA including its influence on the law and policymaking process.

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