McLachlin has rightfully been a vocal proponent of access to justice issues. “Access to justice is a fundamental right of every person . . . it is not an accessory,” she said in 2011. “Do we have adequate access to justice? I think the answer is no. . . . We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able . . . to access our justice system.”
Those aren’t supportive words for the B.C. attorney general, who is defending the fees in Trial Lawyers Association of British Columbia v. Attorney General of British Columbia. It stems from the B.C. Supreme Court’s Vilardell v. Dunham, a custody case involving a self-represented common law couple. He was a university professor earning $74,000 and she an unemployed veterinary surgeon. At the end of the 10-day hearing, she asked to be relieved of the $3,600 bill for the court hearing fees. The B.C. Supreme Court Civil Rules allow an “impoverished” person to apply for exemption.
Justice Mark McEwan felt the matter was important, noting the Nova Scotia ruling in Pleau v. Nova Scotia found such fees unconstitutional. He said the attorney general should be given a chance to intervene and ordered his reasons also be brought to the attention of the Canadian Bar Association and the Law Society of British Columbia. That’s when the TLABC got involved, as did the CBA-BC and LEAF, and the matter became a constitutional and Charter battle over the legitimacy of such fees.
An amended statement of claim was filed asking for relief under the impoverishment rule and a declaration hearing fees infringed a right of access to justice, offending the rule of law and was inconsistent with the Constitution. They also argued the fees violated ss. 7 and 28 of the Charter dealing with fundamental justice and gender equality.
Economic evidence showed a typical B.C. middle class family couldn’t afford to pay the fees and it was worse for single women. While impoverished persons could ask to have the fees waived, that applied only to the poor, not the middle class.
In a 178-page ruling, McEwan defended the justice system’s role in society and found the fees unconstitutional. He called out the government over its fixation on reducing costs and using fees as “an incentive for efficient use of court time and a disincentive for lengthy and inefficient trials.”
“Support for the civil courts is not seen as a cost of good government but as a discretionary expense to be minimized, amateurized (no legal aid), or privatized, wherever possible. It undermines the fundamental values of democracy, federalism and the rule of law informing the Constitution. . . . to put a ‘price on justice’ or to purport to re-imagine the courts as ‘services.’”
The B.C. Court of Appeal found “cost recovery has been a legitimate government objective for centuries.” However, it, too, felt the fees were “constitutionally suspect.” The court noted wealthy individuals and corporations are unlikely to alter their litigation strategy because of fees, so only the economically disadvantaged are discouraged from pursuing their rights. It said the indigenous exemption fell short, but it would be a “drastic step to strike down an otherwise valid enactment.”
“A more surgical response is to remedy the deficiency by reading in the under-inclusive indigency provision in the Rules to include people who are ‘in need.’
“‘In need’ recognizes the fact that some litigants, while not destitute or impoverished, are still in need of relief or assistance in order to have their case heard before a superior court.”
Now the SCC must decide if the fees are valid. Interestingly, only B.C., Saskatchewan, Yukon, and the Northwest Territories have fees yet attorneys general from Alberta, Ontario, Quebec, and the federal government are intervening.
How far will the SCC go? Will it take the read-in exit for indigents adopted by the BCCA, or adopt McEwan’s stronger words and strike down the fees?
In 2004, motorcyclist Francis Leblanc was severely injured when he was run off the road. He lacked money to sue the other driver, so borrowed $26,000 and won his case and costs. A court clerk denied his $14,000 disbursement for interest on the loan because it was not covered in the tariff. He appealed. New Brunswick Court of Appeal Chief Justice Ernest Drapeau allowed it in 2011, writing: “As the Chief Justice of Canada . . . regularly reminds us, access to justice is one of the cornerstones of the rule of law, and it behooves courts, whenever possible, to do their part in fashioning means conducive to its improvement.
Courts must walk the talk.”
Let’s see if the SCC will really “walk the talk” and send a message to governments it’s time to deal with access to justice. Take away their power to levy fees and they will hear the message loud and clear.
Jim Middlemiss can be followed on Twitter @JimMiddlemiss.