Nov 5, 2014

AREAS OF LAW: Constitutional law; Access to justice; Court hearing fees

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 (CanLII)

Enactments that prevent individuals from appearing before the courts, such as the imposition of hearing fees that create undue hardship, are at odds with the courts’ basic judicial function, and so unconstitutionally infringe the core jurisdiction of the courts

BACKGROUND: This case began as a family law matter involving child custody and one spouse’s property interest in the other’s house. Ms. Vilardell brought an action to have these issues resolved, and at the outset of the trial she asked the judge to relieve her from paying the hearing fees. The trial judge reserved his decision on this point until the end of the trial. The hearing took 10 days and the hearing fee came to approximately $3,600. This amount was nearly the net monthly income of the family. Although Ms. Vilardell was not impoverished, she could not afford legal fees and the hearing fee, in addition to the family’s monthly expenses. The Appellants, the BC branch of the Canadian Bar Association and the Trial Lawyers Association of British Columbia, intervened and challenged the hearing fee scheme as unconstitutional. They argued that Canadians have the right to have a court adjudicate their disputes, and the hearing fee regime in BC essentially denied people like Ms. Vilardell that right. Rule 20-5(1) of the Supreme Court Civil Rules provides an exemption from hearing fees if the person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished. The trial judge found the hearing fee unconstitutional, while the Court of Appeal found that if the exemption provision were expanded by reading in the words “or in need”, it would not be unconstitutional. The Appellants appealed this remedy to the Supreme Court of Canada, while the Respondent Province of British Columbia cross-appealed on the issue of the constitutionality of the hearing fees.

APPELLATE DECISION: The majority of five allowed the appeal and dismissed the cross-appeal. Writing for the majority, McLachlin CJC framed the question in the following way: what, if any, are the limits of the scope of provincial authority over the administration of justice under s. 92(14) of the Constitution Act, 1876? She noted that this authority is wide, but must be exercised harmoniously with the core jurisdiction of the provincial superior courts, as protected by s. 96. In other words, the issue was whether legislation imposing hearing fees that deny some people access to the courts infringes s. 96. McLachlin CJC rejected the Appellants’ argument that all hearing fees are unconstitutional, because courts are a first charge on government. She found that hearing fees paid by litigants who can afford them may be a justifiable way of making resources available for the justice system and increasing access to justice overall. However, she found that the power to impose hearing fees is not unlimited. She noted that the court must consider how a particular interpretation fits with other constitutional powers and the assumptions that underlie the text, and determined that under s. 96, neither level of government can enact legislation that removes the superior courts’ core or inherent jurisdiction. Enactments, such as this imposition of hearing fees, that prevent individuals from appearing before the courts to resolve their issues are at odds with the courts’ basic judicial function, and so infringe the core jurisdiction of the courts. McLachlin CJC remarked that this was sufficient to resolve the fundamental issue on appeal, but went on to discuss the connection between s. 96 and access to justice in terms of the rule of law. She noted that access to the courts is essential to the rule of law, and that the rule of law is fostered by the continued existence of the s. 96 courts. In light of this, s. 96 naturally provides some measure of constitutional protection for access to justice. As the power to impose hearing fees itself is not unconstitutional, but is limited by s. 96, McLachlin CJC went on to consider how to determine when hearing fees deny access to the courts. She found that when hearing fees cause undue hardship to the litigant, they infringe the basic right of that individual to bring their case to court. The trial judge and the Court of Appeal found that BC’s hearing fees limit access to courts for litigants who are not indigent or impoverished, and this finding was supported by the evidence. The exemptions do not provide sufficient discretion to the trial judge to exempt litigants from having to pay hearing fees in appropriate circumstances. The Chief Justice also noted that the requirement that litigants come before the court, explain why they are indigent, and beg the court to publicly acknowledge this status and excuse the payment of fees is arguably an affront to dignity and imposes a burden on the potential litigant. Furthermore, the hearing fee regime penalizes long trials simply because they are long; this does not in and of itself serve the goal of increasing efficiency and fairness, as a trial may be both long and efficient, and the plaintiff who is required to pay the hearing fee may not control the length or efficiency of the trial. The majority found that the hearing fees do not promote efficient use of court time, and do prevent access to the courts in a manner inconsistent with s. 96 and the rule of law. The hearing fee scheme was declared unconstitutional.

In his concurring reasons, Cromwell J. found it unnecessary to address the broader constitutional issues raised on appeal, as the case could be resolved on administrative law grounds. The Respondent conceded that there is a common law right of reasonable access to civil justice, which may only be abrogated by clear statutory language. The Respondent submitted that this right allows court fees, but only if there is an exemption to ensure that no person is prevented from making an arguable claim or defence due to a lack of resources. If the hearing fee exemptions cannot be interpreted to ensure that the common law right is not defeated, then the fees are ultra vires the Court Rules Act. The trial judge’s factual finding was that the hearing fees are unaffordable and therefore limit access for litigants who do not fall within the exemptions for the indigent and the impoverished. Accordingly, Cromwell J. concluded that the fees are ultra vires the regulation-making authority conferred by the Court Rules Act.

Rothstein J dissented. He found that the hearing fee scheme does not offend any constitutional right, and commented that the majority based its finding on an overly broad reading of s. 96. There is no express constitutional right to access to the civil courts without hearing fees. Rothstein J. was of the view that in the absence of a violation of a clear constitutional provision, the judiciary should defer to the policy choices of the government. While he acknowledged that universal, affordable access to justice is a laudable goal, it is not open to the courts to use s. 96 and the rule of law principle to force provincial governments to expend funds or forego cost recovery in the name of realizing this goal. He found that no aspect of the core jurisdiction of superior courts is removed by legislation that limits access to those courts. He further stated that there are no gaps in the text of s. 92(14) that would require turning to the unwritten principle of the rule of law, and he took issue with the majority’s use of that principle to support reading a general constitutional right of access to the superior courts into s. 96. To do this is, in his view, to subvert the structure of the Constitution and jeopardize the primacy of its written text. The rule of law, an unwritten principle, cannot be used to invalidate the hearing fee scheme, but rather demands that it be upheld. Rothstein J. went on to state that even if there were a constitutional basis upon which to challenge the hearing fees, he would not find the scheme unconstitutional. He found the “otherwise impoverished” exemption gives trial judges the discretion to waive hearing fees where the fees themselves would be a source of impoverishment. Further, he noted that the majority used the amount of hearing fees for a 10-day trial as a benchmark, which in his opinion skewed the analysis. Under the hearing fee scheme, the first three days of trial are free, and this incentivizes short, efficient trials. Rothstein J. would have allowed the appeal from the Court of Appeal’s decision to read in “or in need” to the exemption provision, and would have allowed the cross-appeal.