The Court of Appeal for Ontario in its decision released November 26, 2010, in Gentles v Intelligarde International Incorporated, 2010 ONCA 797 (CanLII) held that access to justice is one of the factors to be considered in awarding costs and on that basis affirmed the decision of the trial judge that no cost be awarded to a defendant against whom the plaintiffs had been unsuccessful at trial.

The trial judge had found that it was not unreasonable for the plaintiffs to advance their claims, that the plaintiffs had acted in good faith in bringing an action in circumstances which were such to invite litigation  and although unsuccessful , the plaintiffs had cause for complaint .

The court did not limit the application of the access to justice doctrine to cases where the defendant is a public entity, citing 1465778 Ontario Inc. v. 1122077 Ontario Ltd , 2006 CanLII 35819 (ON C.A.) where the defendant was a private company.

David Alderson, LL.B, LL.M

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