When considering which category of funding to apply for, there are a number of factors to consider, including the amount of work still required to bring the case to court, your role in the case, and the steps taken in the case so far.
The Court Challenges Program cannot advise you what category of funding for which to apply, but in making your decision, you may wish to ask yourself the following questions, which can help guide you towards the category that best fits your case.
1. At what stage is the case, currently?
Most funding categories assume that a test case is just about ready to be filed with the court or already underway. By contrast, the test case development funding category is intended for individuals or groups who believe that their rights may have been violated, but who need to do more work before a case can be brought, or even to determine whether a case is appropriate. This work could be legal research, the development of legal arguments, the collection of evidence, or community consultations, for example. If you are still at the stage of trying to decide whether you have a case, this is likely the right category for you.
If, however, you are confident that your arguments are developed and that you have most of the evidence you need in order to bring your matter to court, or generally do not think your case needs more development before it is brought to court, you do not need to apply for test case development funding. Instead, you may want to apply directly for litigation funding.
If a legal case has already been started, it is likely that the litigation or legal intervention categories are the most appropriate funding avenues to pursue. Which of these categories will apply will depend on the role that you intend to play in the proceedings.
2. Are you a party to the proceedings?
This question is meant to help you think about your role in the case: has the government’s breach of Charter rights impacted you directly or are you representing someone whose Charter rights have been directly impacted? If so, you are likely to be a party to the legal proceedings and so may want to consider applying for test case development funding (if you need to do some work to prepare the case) or litigation funding.
If you are not a party to any proceedings, but there is a case ongoing in which the outcome will likely impact your rights or the rights of a group you represent, you may be considering intervening in the court case. If you have asked or intend to ask the court for permission to provide submissions that will offer a different perspective and might be useful for the court’s decision-making, you may want to consider applying for legal intervention funding.
3. At what level of court is the case, currently?
Within the litigation category of funding, funding is available (i) at the first level (sometimes called “first instance” or “trial”) of a court or tribunal proceeding and (ii) at the appeal level. If the case is being heard for the first time, you would normally apply for litigation funding. If a decision has already been rendered, and the case is going to be heard before a court of appeal, you likely want to apply for appeal funding.
If you still have questions about the categories of funding please contact the CCP and we will do our best to provide additional clarification about the categories and the application process.