B.C. court fees tossed by SCC

By Cristin Schmitz October 17 2014 issue

The Supreme Court has struck down onerous courtroom user fees in British Columbia, ruling that provinces cannot administer justice in a way that denies Canadians access to the superior courts. In an expansive interpretation of superior courts’ “core jurisdiction” that will affect government treasuries, Chief Justice Beverley McLachlin’s groundbreaking Oct. 2 judgment, backed by four other judges, strikes down B.C.’s court hearing fees — the highest in the country — because they impose “undue hardship” on some middle-class litigants (i.e. at least some of those who don’t qualify for an exemption under the Supreme Court Civil Rules because they are not “impoverished.”). Because not everyone who is not impoverished can afford the hearing fees which escalate with the number of days in court, they unconstitutionally impede the right of at least some British Columbians to bring legitimate cases to court, the Chief Justice reasoned in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) [2014] S.C.J. No. 59. “In other words, the effect of the fees is unconstitutional because for many litigants bringing a claim would require sacrificing reasonable [living] expenses,” Chief Justice McLachlin wrote. The majority’s novel recognition of a constitutional right of access to civil justice — which “flows by necessary implication from the express terms of s. 96” of the Constitution Act, 1867, underpinned by the unwritten constitutional principle of “the rule of law” —could spur attacks on other impediments to court access, counsel say. “The court has previously rejected access to justice claims as they relate to lawyers’ fees, but I think that the [court’s] acknowledgement of the barriers for average Canadians suggests we need to look at such things as legal aid eligibility that is set so low as to be available only for the most destitute,” said Cheryl Milne, co-counsel with Paul Schabas for the intervener David Asper Centre for Constitutional Rights. “It is not only the poorest who can’t access justice. This case acknowledges that the middle class are seriously affected as well.” She said the case “challenged the Supreme Court to take a hard look at what is meant by access to justice, and to give weight to concerns that have been voiced for many years about the exorbitant costs of our justice system for the ordinary litigant.” Bryant Mackey of the B.C. Ministry of Justice in Vancouver, who with Gareth Morley represented the respondent B.C. Attorney General in defending the constitutionality of the hearing fees regime, said the “impact and influence” on the civil justice system of the court’s “more expansive” read of s. 96 “will only be truly known in the fullness of time.” “With its decision the court has broadened the application of that constitutional provision to include a right of access for civil litigants to the superior courts that can be infringed by economic barriers,” he said. “And on the flip side, the court did permit generally the use of hearing fees by governments as a ‘justifiable way of making resources available for the justice system and increasing access to justice overall.’” At press time, the B.C. government had not announced whether it will revamp or scrap the fees, which have not been collected since being ruled unconstitutional at trial in May 2012. Sharon Matthews of Vancouver’s Camp Fiorante, co-counsel with Melina Buckley and Michael Sobkin for the B.C. branch of the Canadian Bar Association, which successfully challenged the hearing fees, said the majority affirmed that for s. 96 to be meaningful “it must be interpreted consistently with the rule of law and access to justice.” She added “the court affirmed an analysis that gives ‘access to justice’ a principled constitutional home. For that reason, the case is very important for future access to justice issues because it clears out some of the legal debate that got in the way of moving the issue forward.” The intervener Advocates Society hailed the decision as “a clear win for citizens who are disadvantaged by the prohibitive costs of accessing the justice system.” Saskatchewan, Yukon and the Northwest Territories also charge for court time, but B.C.’s fees (nil for the first three days of trial, $500 per day for days four to 10, and $800 for each subsequent day) are much higher, sparking fears in the legal community that other provinces might enact similar charges. The successful appeal by the B.C. branch of the CBA, and the Trial Lawyers Association of B.C. represented by Darrell Roberts and Chantelle Rajotte of Vancouver’s Miller Thomson, arose from a family law case in which an unemployed, self-represented middle-class woman, with some savings, would have been required to pay $3,640 in hearing fees for a 10-day child custody and matrimonial property trial — close to her family’s total net monthly income. The B.C. Court of Appeal agreed with the trial judge that the hearing fees impeded access to justice, but purported to make the scheme constitutionally compliant by reading in words exempting people who are financially “in need” (i.e. not just those who are “impoverished”). Chief Justice McLachlin held that was not an appropriate remedy because it wasn’t clear that the legislature, faced with the ruling of unconstitutionality, would opt for broadening the indigency exemption to the middle class. Striking down the legislation instead, the Chief Justice, supported by Justices Louis LeBel, Rosalie Abella, Michael Moldaver and Andromache Karakatsanis, said s. 96 also guarantees “the core jurisdiction” of those courts. Neither Parliament nor the provincial legislatures can impinge on that core jurisdiction without amending the Constitution. She reasoned that resolving disputes between individuals, and deciding questions of private and public law, are central to what superior courts do. “It is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867,” she held. “As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.” In his lone but vigorous dissent, Justice Marshall Rothstein would have upheld the hearing fee regime as within the constitutional powers of the province to administer justice. He criticized the majority’s “novel” and “overly expansive understanding of both s. 96…and the unwritten principle of the rule of law.” He warned against “subverting democracy and its accountability mechanisms beneath an overly expansive vision of constitutionalism.” “In engaging, on professed constitutional grounds, the question of affordability of government services to Canadians, the majority enters territory that is quintessentially that of the legislature,” he said. “In using an unwritten principle to support expanding the ambit of s. 96 to such an extent, the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text.” Importantly, he noted, unlike Charter rights, “rights read into s. 96 are absolute” because they aren’t subject to justification under s. 1 of the Charter, nor to the Charter’s s.33 ‘notwithstanding’ clause. “The question my colleagues avoid answering is why access to superior courts for civil disputes warrants even stronger protection than those rights expressly enumerated in the Charter.” Source: http://www.lawyersweekly.ca/index.php?section=article&volume=34&number=22&article=2