SCC gives leave in case about constitutionality of court fees

The Supreme Court of Canada is set to assess the constitutionality of hearing fees imposed on the “struggling middle class” in civil trials.

The Supreme Court this morning announced its decision to give leave to an appeal that will look at whether the exemption from paying hearing fees can extend beyond the “impoverished.”

Trial Lawyers Association of British Columbia v. Attorney General of British Columbia originates from a family law case in British Columbia: Vilardell v. Dunham.

The case involved a mother, Montserrat Vilardell, who was involved in a 10 day trial with her former common law spouse over custody and mobility rights. Before the trial, Vilardell applied for an order relieving her from government-imposed court hearing fees amounting to $3,600.

She argued she was woman of modest means seeking custody of her daughter, and the imposition of the fees created an unreasonable barrier to access to justice.

At the end of the trial, her application was stayed to allow intervention by the Canadian Bar Association, the Attorney General of British Columbia, the Trial Lawyers Association of British Columbia, and the West Coast Women’s Legal Education and Action Fund.

The statement of claim was revised to include a challenge to the constitutionality of the hearing fees.

The Supreme Court of British Columbia ruled on May 22, 2012, that the hearing fees were unconstitutional. Justice Mark McEwan held the fees “materially hindered” access to the courts.

But the Attorney General of British Columbia appealed, saying if the fees were unaffordable, a litigant could be exempted under the indigency rules.

On Feb. 15, 2013, Justice Ian Donald set aside the order striking the fees.

However, he said the indigency rules could be interpreted broadly. This went against the trial judge’s finding that the indigency rule applied “only to the poor, not to the struggling middle class who, while not poor in the ordinary sense, cannot afford the fees,” Donald’s decision states.

The interveners had presented evidence from economist Robert Carson , who found a significant percentage of the population could not afford the fees for a 10-day trial.

Vilardell is a qualified veterinary surgeon but had not, at the time, taken exams in order to be licensed in Canada. The fees would have approached the family’s net income for a month, according to the decision.

Donald also highlighted in his decision: “It has been demonstrated that the burden of hearing fees falls most heavily on women in family litigation, Aboriginal persons, those with disabilities, and recent immigrants.”

He concluded the enlarged scope of the exemption in Rule 20-5 should be read as saying “impoverished or in need.”

“The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees,” he said.

In April, the Trial Lawyers Association of British Columbia filed an appeal with the Supreme Court of Canada to consider whether hearing fees for civil trials in provincial courts are unconstitutional as an impediment to access to justice.

According to today’s announcement, the appeal will also assess whether any unconstitutionality may be relieved by an enlarged reading of an indigency exemption and whether, in the context of Vilardell, hearing fees are one of the conditions a province may impose on how and when people have a right to access the courts.

The parties were not immediately available for comment.

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