Supreme Court of Canada Strikes down British Columbia’s Court Hearing Fees!

I don’t use exclamation marks often. This may be the first one in my blog. But I am very pleased with the decision of the Supreme Court of Canada released this morning in The Trial Lawyers Association of BritishColumbia v. British Columbia (Attorney General), 2014 SCC 59, holding that British Columbia’s court hearing fees are unconstitutional by effectively denying access to people to superior courts, contrary to section 96 of the Constitution Act, 1867.

Chief Justice McLachlin, writing for the majority, held that although the province may impose hearing fees under section 92 (14) of the Constitution Act, 1867, those fees must not impinge on the core jurisdiction of superior courts by effectively barring access. She wrote at paragraphs 35 and 36:

[35]                          Here, the legislation at issue bars access to the superior courts in yet another way ― by imposing hearing fees that prevent some individuals from having their private and public law disputes resolved by the courts of superior jurisdiction ― the hallmark of what superior courts exist to do. As in MacMillan Bloedel, a segment of society is effectively denied the ability to bring their matter before the superior court.

 [36]                          It follows that the province’s power to impose hearing fees cannot deny people the right to have their disputes resolved in the superior courts.  To do so would be to impermissibly impinge on s. 96  of the Constitution Act, 1867 .  Rather, the province’s powers under s. 92(14)  must be exercised in a manner that is consistent with the right of individuals to bring their cases to the superior courts and have them resolved there.

The Chief Justice of Canada also considered the underlying values implicit in our constitution of the rule of law:

[38]                          While this suffices to resolve the fundamental issue of principle in this appeal, the connection betweens. 96  and access to justice is further supported by considerations relating to the rule of law. This Court affirmed that access to the courts is essential to the rule of law in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.  As Dickson C.J. put it, “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice” (p. 230).  The Court adopted, at p. 230, the B.C. Court of Appeal’s statement of the law ((1985), 20 D.L.R. (4th) 399, at p. 406):

   . . . access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens.  . . . Any action that interferes with such access by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court.  Here, the action causing interference happens to be picketing.  As we have already indicated, interference from whatever source falls into the same category.  [Emphasis added.]

As stated more recently in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, per Karakatsanis J., “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined” (para. 26). 

[39]                          The s. 96  judicial function and the rule of law are inextricably intertwined. As Lamer C.J. stated inMacMillan Bloedel, “[i]n the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867 , the provincial superior courts are the foundation of the rule of law itself” (para. 37). The very rationale for the provision is said to be “the maintenance of the rule of law through the protection of the judicial role”: Provincial Judges Reference, at para. 88. As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s. 96  courts, it is only natural that s. 96  provide some degree of constitutional protection for access to justice.

[40]                          In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law.  If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.  And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed: Christie v. British Columbia (Attorney General), 2005 BCCA 631, 262 D.L.R. (4th) 51, at paras. 68-9, per Newbury J.A.

The majority rejected the remedy of the British Columbia Court of Appeal to give discretion to the court to relieve those who are “in need” as well those who are “indigent” or “impoverished” from payment of the fees. The Chief Justice wrote:

[66]                          “Reading in” is a remedy sparingly used, and available only where it is clear that the legislature, faced with a ruling of unconstitutionality, would have made the change proposed:  Schachter v. Canada, [1992] 2 S.C.R. 679.  I am not satisfied that this condition is met here.  The legislature or Lieutenant Governor in Council has a number of options, from abandoning or modifying the hearing fee to changing the exemption provision.  Moreover, any expansion of the exemption provision will be at odds with the legislative objective of deterring use of the courts.  “Reading in” to cure the constitutional defect of the hearing fee scheme would defeat the purpose of the legislation.

[67]                          I would also note that modifying the exemption as suggested by the Court of Appeal might still not cure the problem; it is not clear that the term “or in need” will cover all litigants who cannot afford the hearing fee and other provisions might be required in order to avoid the onerous or undignified process of proving that one falls within the exception.

Mr. Justice Cromwell, while concurring in the result, did so on narrower grounds, holding that the fees exceeding the regulation powers of the Court Rules Act by defeating the common law rights of access to the courts.

Mr. Justice Rothstein dissented, and would have upheld the constitutionality of the fees.

The Supreme Court of Canada restored Mr. Justice McEwan’s decision in the Supreme Court of British Columbia, and the majority decision largely adopted his reasoning. His decision is an eloquent statement of the underlying principles of our democratic society. As I quoted in my previous post on his decision:

[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.

I recommend reading his complete decision here.

I wrote about the Supreme Court of British Columbia decision here, and the Court of Appeal decision here.