Crazy Ideas: No. 1

Author: Tim Platnich

Date: October 3, 2025

In this post, I will propose, perhaps a bit tongue in cheek, that judges who are overtuned on appeal should be subject to potential cost awards against them. Oy. This is crazy talk.

Let me explain. When a party is successful in court, the default rule is that costs are awarded in favour of the successful party against the unsuccessful party. The unsuccessful party, is, in effect, penalized for putting the successful party through the expense of the legal proceedings. Ultimately, costs are in the discretion of the court however, the default rule is that the losing party pays. In other words, there are consequences for: bringing an action or application if you are an unsuccessful plaintiff or applicant; or defending an action or application if you are an unsuccessful defendant or respondent.

The idea of costs is to discourage parties from bringing frivolous proceedings or from defending against valid claims. There are consequences to litigating.

Normally costs are fixed pursuant to a cost schedule forming part of the Rules of Court. Such costs are referred to as party to party costs. In extreme cases, the court can order what is called solicitor-client costs, or solicitor and his own party costs. Such an order requires the unsuccessful party to reimburse the successful part for all the costs that party paid to its lawyers. Ouch!

In effect, there are consequences for when a party flaunts the law, or is even mistaken in respect thereto. Hence, a party who decides to litigate must carefully consider the law as applied to the facts in hand and make a judgment as to whether the party has a valid claim or defence. If the party is wrong, according to the judge hearing the matter, the party must pay costs which may double the party's actual costs in prosecuting or defending a claim. There is a cost for being wrong.

Now let's consider a case where the party was not wrong, but the judge was. A party loses at trial and has costs awarded against it. However, that party successfully appeals. The party wasn't wrong, but the judge was. Let's say that the party lost at trial because the judge failed to interpret the law correctly. Or, the judge simply refused to follow binding precedent, for whatever reason. Why should there be no consequence to such ill-judgment? If parties get the law wrong, they are exposed to costs. Why shouldn't a judge likewise be exposed to costs?

Exposing lower court judges to the possibility of a cost award against them would have the salutary effect of making sure they are careful to follow the law. Like with the lawyers and parties appearing before them, if they get the law wrong, there is a consequence.

I forsee an argument that this would have a chilling effect on judges. They would be reluctant to make daring decisions that favour progressive and other causes: like declaring that the removal of bike lanes contravenes a person's right to life, liberty and the security of the person. So be it. Perhaps lower court judges should be less daring and progressive. Their role is to apply and enforce the law, not to change it to accord with their personal preferences. Any change in the law should be reserved for higher courts, and preferably, legislative assemblies.

I say 'exposed' to costs in that the higher court which overturns the lower court should have discretion to award costs against the lower court judge where it finds the lower court judge failed to apply binding law. This exposure alone might keep lower court judges in their lane.

It's just a crazy idea.