Supreme Court of British Columbia Declares Hearing Fees Unconsitutional

In a decision released on May 22, 2012, Mr. Justice McEwan held that hearing fees charged by the Government of British Columbia for trials are unconstitutional.

The fees, which currently do not apply to the first three days of trial, but are $500 for each day for the 4^th through 10^th day of trial, and $800 for each day thereafter are charged to the party who sets a matter down for trial pursuant to Schedule C of the Supreme Court Civil Rules.

Vilardell v. Dunham, 2012 BCSC 748, arose out a custody case in which one of the parties applied to be relieved from the obligation to pay the hearing fees (which were charged at a different rates at the time of the custody case).

Mr. Justice McEwan heard arguments from the Attorney General of British Columbia, the Canadian Bar Association – British Columbia Branch, and the Trial Lawyers Association of British Columbia, as well as the parties. He considered expert economic evidence concerning the effect of the fees on access to the courts.

After an extensive review of the arguments, a careful analysis of the function of our courts, now and historically (going back to the Magna Carta), and a review of the history of the court fees, Mr. Justice McEwan held that the fees were an impermissible barrier to access to the courts.

To summarize and paraphrase his reasoning, the superior provincial courts play a central role in Canada’s constitutional democracy. They are the arbiter of the relative powers of the federal and provincial governments under the Constitution Act, 1867, and between the government and individual under the Canadian Charter of Rights and Freedoms. They also play a central role by providing for resolution of private disputes according to the rule of law.

Assess to the courts underpins our democracy in a manner analogous to the right of free expression and the right to vote. Limitations made by government on access to the courts undermine the rule of law and constitutional democracy.

He wrote at paragraphs 346 and 347:

[346]     There are several fundamental concepts embedded in these observations. A society that is governed by democratic principles is a society governed by the rule of law, the principle that the law applies to every person including the government and its agents. The right to vote is an incident of citizenship, and the laws consequent upon the exercise of that franchise apply to everyone within the jurisdiction of Parliament or the pertinent legislature. The courts operate in “functional symbiosis” with the legislative branches of government in fulfilling the purposes of democracy. Self-government clearly implies a process that begins with the law as it is or as it has been made by legislatures and includes the elaborations of the courts. Those elaborations, even in mundane matters, inform and enrich the law. As Resnick and Curtis note, the court is a public forum in which individuals may call the powerful, including governments, to account, compelling them to meet as equals. In the courts, cases are determined without regard to the distributions of power or wealth and influence that otherwise prevail in society. For this reason each case must be given the attention it requires, however small it may appear to be. The law is replete with examples of apparently inconsequential disputes which led to major changes or developments in the law, the most famous of which is arguably Donoghue v. Stevenson, [1932] A.C. 562.

[347]     Seen in this light, a court whose most frequent litigant controls and limits its availability to those who seek its assistance or protection is a court whose essence as a forum within the continuum of democratic lawmaking is compromised. The court is a forum in which minority rights, the values of inclusiveness, equality and citizen participation, and the constitutional commitment to the inherent worth and dignity of the individual, spoken of in Sauvé, are publicly advanced and vindicated. To the extent that government imposes limitations to deter or prevent litigants from seeking recourse to the courts, it undermines a fundamental premise of civil society: that there will be a place for everyone for the peaceful resolution of contentious issues according to law. To the extent the government imposes limitations on those who seek redress against government itself, it undermines its own accountability and legitimacy, and the rule of law itself. This is how the court is a core functional attribute of democracy. The Supreme Court’s observation in Sauvé that there is “no place” for the theory that elected representatives may disenfranchise a segment of the population in a democracy built on principle of inclusiveness, equality and citizen participation, must logically apply to legislation having the effect of depriving people of the means of vindicating their rights through the courts.

The hearing fees, in contrast to other more modest fees for services, such as filing fees, do represent a significant barrier to individuals, limiting and rationing access to the courts. The executive branch of government has in imposing the fees impermissibly interfered with functioning of the judicial branch. Mr. Justice McEwan wrote at paragraph 425(3):

(3)   Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents. In this respect, the AGBC’s position that as long as the government does not interfere with the cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place. So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort.” Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek an authoritative determination of a right or legal position according to law. Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law.

The implications of this decision go beyond the hearing fees at issue. Mr. Justice McEwan was critical of the shift in the manner governments in British Columbia over the last couple of decades have envisioned the court system, from a common good, funded by taxpayers, to a marketplace commodity, funded on a user pay basis. He wrote at paragraphs 429 through 431:

[429]     On the other hand, the courts are, by definition – that is, constitutionally – a common good. They are a first charge on government, not a “service” that competes for what is left over after government organizes its other priorities. It undermines the fundamental values of democracy, federalism and the rule of law informing the Constitution, elaborated in the case law, and evident in our history, to put a “price on justice” or to purport to re-imagine the courts as “services.” The position taken by the AGBC [Attorney General of British Columbia] in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.

[430]     In What Money Can’t Buy, The Moral Limits of Markets, (Farrar, Straus and Giroux, New York 2012), Michael J. Sandel observes:

At a time of rising inequality, the marketization of everything means that people of affluence and people of modest means lead increasingly separate lives. We live and work and shop and play in different places. Our children go to different schools. You might call it the skyboxification of American life. It’s not good for democracy, nor is it a satisfying way to live. 

 Democracy does not require perfect equality, but it does require that citizens share in a common life. What matters is that people of different backgrounds and social positions encounter one another, and bump up against one another, in the course of everyday life. For this is how we learn to negotiate and abide our differences, and how we come to care for the common good.

 [431]     The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees. Some things cannot be for sale.

The Attorney General of British Columbia may appeal this decision, and Mr. Justice McEwan’s reasons may not be the last word in the courts. But irrespective of what the British Columbia Court of Appeal or Supreme Court of Canada may ultimate decide, his eloquent discussion of the fundamental role of our courts in civil society would be a good starting point of debate among British Columbians about how the Government of British Columbia funds not only British Columbia courts, but also other programs such as legal aid that are necessary for those who have the greatest need to get meaningful access to the courts.

[Update: since I posted this, the B.C. Court of Appeal has allowed the Attorney General's appeal from this decision, but the Supreme Court of Canada reversed and upheld Mr. Justice McEwan's decision. See my post on the Supreme Court of Canada decision here.]