It would be forgivable to suffer from “access to justice fatigue” when every day seems to bring a new report or statistic highlighting the crisis afflicting the Canadian legal system. But the Supreme Court of Canada has provided a reason for optimism with its decision in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59. Chief Justice McLachlin, for the majority, held that British Columbia court hearing fees are unconstitutional because they deprive litigants of effective access to the civil courts.
This decision chips away at the access to justice crisis, and offers litigants and reformers several avenues of argument for future ways to fight it. It also brings to mind R v Salituro,  3 SCR 654. Both cases share the theme of respecting the proper roles of courts and legislatures.
But another aspect of Salituro sticks out too – the point that the common law develops in an “incremental” nature. Access to justice can only be achieved by following a similar course: One incremental step at a time.
The decision in Trial Lawyers is one of those steps.
What fees were at issue, and why?
The appellants alleged that two sets of BC rules of court were unconstitutional: The Supreme Court Rules, in force when this litigation started, and the Supreme Court Civil Rules, which came into force in 2010 (collectively, “the Rules”). The Rules have the status of subordinate legislation because they were enacted under BC’s Court Rules Act.
As Chief Justice McLachlin explained, the current fee structure looks like this:
- For the first 3 days of trial: No fee
- For days 4-10: $500
- For each day over 10: $800
The Rules permit a judge to exempt a party from payment, if he or she is receiving benefits under certain employment assistance legislation, “or is otherwise impoverished.” The scope of “otherwise impoverished” became a central issue in Trial Lawyers.
The case itself originated as a family law matter, with the parties disputing custody and property issues. Both parties were unrepresented at the hearing. The mother, V, who brought the case to court, sought relief from paying the hearing fee that ultimately amounted to $3,600. As McLachlin CJ put it, this was “almost the net monthly income of the family.”
The trial judge allowed the Attorney General; the Law Society of British Columbia; and the Canadian Bar Association’s BC branch to intervene to make submissions on the constitutionality of the hearing fee scheme, and stayed V’s obligation to pay in the meantime. He eventually found the scheme unconstitutional and struck it down. On appeal, the BC Court of Appeal agreed on unconstitutionality, but used the “reading in” remedy so the exemption provision would read, “…is otherwise impoverished or in need.”
How are the provisions unconstitutional?
Moving on to the Supreme Court’s constitutional analysis, one is struck by the majority’s innovative interpretation of the Constitution – particularly when this was not a Charter case, but was instead decided pursuant to the Constitution Act, 1867.
The nuts and bolts of Chief Justice McLachlin’s division of powers reasoning were as follows:
- Section 92(14) gives the province the authority to charge hearing fees, as part of its power over the administration of justice in the province.
- But there are two principles of constitutional interpretation that limit this authority:
- The express provisions of the Constitution must be read together “so that the Constitution operates as an internally consistent harmonious whole.”
- The express provisions “must be consistent not only” with each other, but also “with requirements that “‘flow by necessary implication from those terms.’”
- Applying these principles leads to section 96, which operates as a limit on the province’s authority under section 92(14). Section 96 protects “the core jurisdiction of provincial superior courts,” and “therefore restricts the legislative competence of provincial legislatures and Parliament – neither level of government can enact legislation that abolishes the superior courts or removes part of their core or inherent jurisdiction.”
So how did the Court conclude that section 96 was expansive enough to take on the mantle of protecting access to justice to the superior courts, and not just the actual jurisdiction of the courts? For one, the majority had to ask the right question:
 It is not suggested that legislating hearing fees that prevent people from accessing the courts would abolish or destroy the existence of the courts. The question is rather whether legislating hearing fees that prevent people from accessing the courts infringes on the core jurisdiction of the superior courts.
Then, the answer had to rest on a principled foundation. Chief Justice McLachlin established this foundation in three main ways, by: (1) Bringing together an interesting collection of section 96 case law and adding an access to justice gloss; (2) fleshing out the meaning of the rule of law; and (3) applying the proportionality principle from Hryniak v Mauldin, 2014 SCC 7 in a substantive sense.
Chief Justice McLachlin’s analysis on the section 96 point is lovely, logical, and worth reviewing in full. After reviewing several section 96 cases (including the law school classic Re Residential Tenancies Act, 1979) she remarked: “The thread throughout these cases is that laws may impinge on the core jurisdiction of the superior courts by denying access to the powers traditionally exercised by those courts.” She then stated:
 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.
 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.
Returning to the interpretive principles discussed above, McLachlin CJ concluded on this point by holding that:
The right of Canadians to access the superior courts flows by necessary implication from the express terms of s. 96 of the Constitution, as we have seen. It follows that the province does not have the power under s. 92(14) to enact legislation that prevents people from accessing the courts.
Next, the rule of law. Justice Rothstein in dissent (more on this later) said that “the rule of law is a vague and fundamentally disputed concept” that lawyers use to bolster “‘their particular view of what the law should be.’” The majority did not take this cynical view, but instead drew practical requirements from what can, admittedly, be an amorphous concept:
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.
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 (CanLII), 262 D.L.R. (4th) 51, at paras. 68-9, per Newbury J.A.
The third element, related to the rule of law, is proportionality. Chief Justice McLachlin cited Justice Karakatsanis’s point from Hryniakthat “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined.” Later in her reasons, Chief Justice McLachlin rejected the argument that hearing fees actually promote proportionality:
 The contention that this hearing fee regime promotes proportionality and efficiency by weeding out unmeritorious cases and encouraging shorter trials, thereby actually increasing access to the courts, does not answer the findings of the trial judge that it unconstitutionally prevents access to the courts. Moreover, the trial judge held that it is “dubious” that the hearing fees at issue here increase efficacy and fairness (para. 310). They penalize long trials simply because they are long, and do so by incremental leaps. But long trials are not necessarily inefficient. Prolonged trials may be caused by the nature of the case or the evidence. Litigants in long but efficient trials ought not to be penalized by hearing fees — particularly fees that escalate with the length of the trial.
 Moreover, the plaintiff who is required to pay the hearing fee may not control the length or efficiency of the trial — the defendant may be responsible for prolonging the matter. The ability of the trial judge to make orders for costs against such a defendant does not address the real problem — before being able to set a matter down for trial the plaintiff must undertake to pay hearing fees that may escalate through no fault of her own. If she cannot afford the prospective fees, she may reasonably conclude that she cannot bring her dispute to the court.
What is the test to determine whether court fees are unconstitutional, and how was it applied on the facts?
The test is one of “undue hardship”:
…when hearing fees deprive litigants of access to the superior courts, they infringe the basic right of citizens to bring their cases to court. That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the superior court.
A litigant can prove the fees would cause undue hardship even if he or she is not “truly impoverished”:
A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts.
The majority agreed with the trial judge that BC’s hearing fee scheme caused undue hardship.
As did her principled constitutional analysis, Chief Justice McLachlin’s discussion of undue hardship reflected a keen recognition of the reality in many courts across the country. In particular, her majority reasons:
- Reproduced evidence from an economist’s report filed at trial that explained how those not technically “impoverished” could still “have great difficulty affording the hearing fees for a 10-day trial” like this one. This report also pointed out that particular groups in Canadian society might be particularly affected by high hearing fees, including First Nations people; new immigrants; and those with disabilities.
- Recognized the disconnect between the definitions of words like “indigent” and “impoverished” and the fact that many families typically considered to be “middle class” can’t afford court time, including the litigant in this case.
- Acknowledged that requiring litigants to “come before the court, explain why they are indigent and beg the court to publicly acknowledge this status and excuse the payment of fees” may be “an affront to dignity.” (Justice Rothstein countered this in dissent, suggesting that these procedures will usually be ex parte, and litigants in family law cases already have to put their financial information before the court.)
- Maintained, at the same time, the provinces’ ability to impose “hearing fees that prevent litigants from bringing frivolous or vexatiousclaims.”
In the result, the Court agreed with the trial judge that the proper remedy was to strike down the hearing fee provisions. Chief Justice McLachlin made sure to confirm that V was “excused from paying the hearing fee.”
What did Justice Cromwell conclude?
In short and sweet concurring reasons, Justice Cromwell also added arguments to the access to justice arsenal, but based his analysis on administrative rather than constitutional law. Simply stated, he explained that “there is a common law right of reasonable access to civil justice.” These particular Rules interfere with this right by failing to “cover people of modest means who are prevented from having a trial because of the hearing fees,” and are therefore ultra vires.
Why did Justice Rothstein dissent?
The theme of judicial versus legislative competence became the focal point of Justice Rothstein’s vigorous dissent, which he began by stating: “Courts do not have free range to micromanage the policy choices of governments acting within the sphere of their constitutional powers.” His dissent should be read in full for its very different take on what the Constitution does, or does not, require when it comes to promoting access to justice.
To review a few highlights, Justice Rothstein:
- Made much of the fact that this was a division of powers case and not a Charter case, stating that “absent a violation of the Charter and within the bounds of their constitutional jurisdiction, provincial legislatures have leeway to make policy decisions regarding the allocation of funding and the recovery of costs.” In his view, the Charter already covers the field of “the particular instances in which access to courts is guaranteed,” through section 11(d), which guarantees the right to a criminal trial before an independent and impartial court, and section 24(1), which gives courts broad authority to fashion remedies for Charter violations. Furthermore, Justice Rothstein was concerned about the fact that “[u]nlike Charter rights, rights read into s. 96 are absolute. They are not subject to s. 1 justification or the s. 33 notwithstanding clause.” He questioned “why access to superior courts for civil disputes warrants even stronger protection” than the protection of Charter rights.
- Disagreed with the majority’s conception of the rule of law, emphasizing that it is an “unwritten principle” and, even if it can be viewed as a way to fill in constitutional gaps, “gaps do not exist simply because the courts believe that the text should say something that it does not.” In a pithy but pointed comment, Justice Rothstein stated: “Dressing the rule of law in division of powers clothing does not disguise the fact that the rule of law, an unwritten principle, cannot be used to support striking down the hearing fee scheme.”
- Thought that the majority took section 96 too far from its traditional interpretation.
- Used Hryniak in a different way, suggesting that trial judges can partly solve the problem by following the “case-management principle of Hryniak” to keep cases on track and thereby keep costs down. Justice Rothstein also challenged the majority’s focus on 10-day trials: “characterizing 10-day trials as the norm skews the analysis. There is no reason to believe that a 10-day trial is standard…judges have an obligation to ensure that trials do not consume unnecessarily lengthy periods.”
- Found that there was already sufficient discretion built into the BC Rules at issue, to enable a trial judge to waive payment “where the hearing fees themselves would be a source of impoverishment.”
The Supreme Court’s decision in Trial Lawyers is one piece of a much bigger, very complicated and expensive, and often disheartening puzzle. But it is a positive development nonetheless, because it shows that the highest court in the country is willing to take creative approaches to constitutional and statutory interpretation. As with Hryniak, the legacy of this case will be what parties and their counsel, public interveners, and other justice system participants make of it, and will remain another landmark on the road to access to justice.