Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)  (Constitutional law — Access to justice — Court hearing fees)

On appeal and cross-appeal from the judgment of the Court of Appeal for British Columbia, 2013 BCCA 65, 43 B.C.L.R. (5th) 217, setting aside a decision of McEwan J., 2012 BCSC 748. 

This case began as a family action. V and D were involved in a custody dispute. V went to court to have these issues resolved. In order to get a trial date, she had to undertake in advance to pay a court hearing fee. At the outset of the trial, V asked the judge to relieve her from paying the hearing fee. The judge reserved his decision on this request until the end of the trial. The parties were not represented by lawyers, and the hearing took 10 days. The hearing fee amounted to some $3,600.00 — almost the net monthly income of the family. After legal fees had depleted her savings, V could not afford the hearing fee. 

Aware that there was some authority for the proposition that hearing fees are unconstitutional, the judge invited submissions and interventions on the subject from outside parties and stayed V’s obligation to pay the hearing fee. Ultimately, the B.C. branch of the Canadian Bar Association (“CBA”), the Trial Lawyers Association of British Columbia (“Trial Lawyers”) and the Attorney General of British Columbia (“the Province”) intervened. 

The Supreme Court Rules, which were in place at the time this case began, were replaced in 2010 by the Supreme Court Civil Rules. The constitutionality of the hearing fees set out in both rules of court is challenged. The current hearing fees escalate from no fee for the first three days of trial, to five hundred dollars for days four to ten, to eight hundred dollars for each day over ten. Rule 20-5(1) of the Supreme Court Civil Rules provides for an exemption from hearing fees if the court finds that a person is” impoverished”. The exemption in place at the time of the trial provided that a judge could waive all fees for a person who is “indigent”. 

The trial judge in this case ruled that the hearing fee provision was unconstitutional. The Court of Appeal agreed that the scheme could not stand as it is, but held that if the exemption provision were expanded by reading in the words “or in need”, it would pass constitutional muster. The Trial Lawyers and CBA appeal the remedy to this Court. The Province cross-appeals on the issue of the constitutionality of the hearing fees. 

HELD (6:1):  that the appeal be allowed and the cross-appeal dismissed. 

Levying hearing fees is a permissible exercise of the Province’s jurisdiction under s. 92(14) of the Constitution Act, 1867; however, that power is not unlimited. It must be exercised in a manner that is consistent with s. 96 of theConstitution Act, 1867 and the requirements that flow by necessary implication from s. 96. Section 96 restricts the legislative competence of provincial legislatures and Parliament; neither level of government can enact legislation that removes part of the core or inherent jurisdiction of the superior courts. The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basis judicial function. Therefore, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts and impermissibly impinge on s. 96 of the Constitution Act, 1867.

The connection between access to justice and s. 96 is further supported by considerations relating to the rule of law. The s. 96 function and the rule of law are inextricably intertwined. As access to justice is fundamental to the rule of law, it is natural that s. 96 provide some degree of constitutional protection for access to justice. Concerns about the rule of law in this case are not abstract or theoretical. If people cannot bring legitimate issues to court, 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. 

Section 92(14), read in the context of the Constitution as a whole, does not give the provinces the power to administer justice in a way that denies the right of Canadians to access courts of superior jurisdiction. Any attempt to do so will run afoul of the constitutional protection for the superior courts found in s. 96 of the Constitution Act, 1867.

Hearing fees are unconstitutional when they deprive litigants of access to the superior courts. 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 hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum. But providing exemptions only to the truly impoverished may set the access bar too high. 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. It is the role of the provincial legislatures to devise a constitutionally compliant hearing fee scheme. But as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non‑frivolous or non‑vexatious litigation to court. A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them. Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims. 

The hearing fee scheme at issue in this case places an undue hardship on litigants and impedes the right of British Columbians to bring legitimate cases to court and is unconstitutional. The current exemptions do not provide sufficient discretion to the trial judge to exempt litigants from having to pay hearing fees in appropriate circumstances. 

V is excused from paying the hearing fee. The hearing fee scheme prevents access to the courts in a manner inconsistent with s. 96 of the Constitution and the underlying principle of the rule of law. It therefore falls outside the Province’s jurisdiction under s. 92(14) to administer justice. 

The proper remedy is to declare the hearing fee scheme as it stands unconstitutional and leave it to the Legislature or the Lieutenant Governor‑in‑Council to enact new provisions, should they choose to do so. “Reading in” is a remedy sparingly used, and available only where it is clear the legislature, faced with a ruling of unconstitutionality, would have made the change proposed. This condition is not met here. Further, modifying the exemption as suggested might still not 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. 

Reasons for judgment by the Chief Justice, concurring reasons by Cromwell J., dissenting reasons by Rothstein J.  Neutral citation:  2014 SCC 59.  No. 35315.