Cost Strategies for Litigants: The Significance of R. v. Caron

At first blush, Caron is not a very interesting development in the advance costs jurisprudence. at best it represents a modest “liberalization” of the jurisprudence and may thus make obtaining such awards ever so slightly easier than in the past, even if such awards will always remain “exceptional”. In its deference to the rulings of the lower courts, the Court may have sent a signal that an order for advance costs will be less reviewable than in previous years, so counsel had better plan on getting their orders from the trial court lest there be no order at all. Where Caron may turn out to be more interesting is not so much on the law of advance costs, but rather on the extent of the superior court’s inherent jurisdiction to come in aid of inferior courts and tribunals. The Court held that superior courts have jurisdiction to come in aid of inferior tribunals where it is “essential to avoid an injustice”, leaving the possibilities for new applications of this rather ancient doctrine intriguing. As well, the Court’s refusal to comment on the correctness of the earlier Alberta Court of Queen’s Bench decision that the provincial court lacked jurisdiction to award interim costs, coupled with Abella J.’s concurring judgment, leaves open the possibility that inferior courts, and even administrative tribunals, the mselves hold the power to award interim costs in circumstances where the criteria for such an award are otherwise met and where such a power is necessary for the m to perform their intended functions