British Columbia (Attorney General) v. Council of Canadians with Disabilities

British Columbia (Attorney General) v. Council of Canadians with Disabilities
Collection
Supreme Court Judgments
Date
2022-06-23
Neutral citation
2022 SCC 27
Case number
39430
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
British Columbia
Subjects
Civil procedure
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27
Appeal Heard: January 12 and 13, 2022 Judgment Rendered: June 23, 2022 Docket: 39430
Between: Attorney General of British Columbia Appellant/Respondent on cross-appeal
and
Council of Canadians with Disabilities Respondent/Appellant on cross-appeal
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, West Coast Prison Justice Society, Empowerment Council, Systemic Advocates in Addictions and Mental Health, Canadian Civil Liberties Association, Advocacy Centre for Tenants Ontario, ARCH Disability Law Centre, Canadian Environmental Law Association, Chinese and Southeast Asian Legal Clinic, HIV & AIDS Legal Clinic Ontario, South Asian Legal Clinic Ontario, David Asper Centre for Constitutional Rights, Ecojustice Canada Society, Trial Lawyers Association of British Columbia, National Council of Canadian Muslims, Mental Health Legal Committee, British Columbia Civil Liberties Association, Canadian Association of Refugee Lawyers, West Coast Legal Education and Action Fund, Centre for Free Expression, Federation of Asian Canadian Lawyers, Canadian Muslim Lawyers Association, John Howard Society of Canada, Queen’s Prison Law Clinic, Animal Justice, Canadian Mental Health Association (National), Canada Without Poverty, Aboriginal Council of Winnipeg Inc., End Homelessness Winnipeg Inc. and Canadian Constitution Foundation Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 124)
Wagner C.J. (Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Attorney General of British Columbia Appellant/Respondent on cross‑appeal
v.
Council of Canadians with Disabilities Respondent/Appellant on cross‑appeal
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Attorney General of Alberta,
West Coast Prison Justice Society,
Empowerment Council,
Systemic Advocates in Addictions and Mental Health,
Canadian Civil Liberties Association,
Advocacy Centre for Tenants Ontario,
ARCH Disability Law Centre,
Canadian Environmental Law Association,
Chinese and Southeast Asian Legal Clinic,
HIV & AIDS Legal Clinic Ontario,
South Asian Legal Clinic Ontario,
David Asper Centre for Constitutional Rights,
Ecojustice Canada Society,
Trial Lawyers Association of British Columbia,
National Council of Canadian Muslims,
Mental Health Legal Committee,
British Columbia Civil Liberties Association,
Canadian Association of Refugee Lawyers,
West Coast Legal Education and Action Fund,
Centre for Free Expression,
Federation of Asian Canadian Lawyers,
Canadian Muslim Lawyers Association,
John Howard Society of Canada,
Queen’s Prison Law Clinic,
Animal Justice,
Canadian Mental Health Association (National),
Canada Without Poverty,
Aboriginal Council of Winnipeg Inc.,
End Homelessness Winnipeg Inc. and
Canadian Constitution Foundation Interveners
Indexed as: British Columbia (Attorney General) v. Council of Canadians with Disabilities
2022 SCC 27
File No.: 39430.
2022: January 12, 13; 2022: June 23.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for british columbia
Civil procedure — Parties — Standing — Public interest standing —Legality — Access to justice — Sufficient factual setting for trial — Organization working on behalf of persons with disabilities initiating constitutional challenge to certain provisions of provincial mental health legislation — Attorney General successfully applying to have claim dismissed for lack of standing — Court of Appeal remitting matter for fresh consideration of public interest standing in view of its holding that principles of legality and access to justice merit particular weight in standing analysis and that application judge erred in finding that particular factual context of individual case was required — Whether legality and access to justice merit particular weight in framework governing public interest standing — Whether individual plaintiff necessary for sufficient factual setting to exist at trial — Whether organization should be granted public interest standing.
A not‑for‑profit organization working for the rights of people living with disabilities in Canada, together with two individual plaintiffs, filed a claim challenging the constitutionality of certain provisions of British Columbia’s mental health legislation. The claim asserts that the impugned provisions violate ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms by permitting physicians to administer psychiatric treatment to involuntary patients with mental disabilities without their consent and without the consent of a substitute decision‑maker. The two individual plaintiffs, who were involuntary patients affected by the impugned provisions, eventually withdrew from the litigation, leaving the organization as the sole remaining plaintiff. The organization filed an amended claim shortly thereafter seeking, among other things, public interest standing to continue the action.
The Attorney General applied to have the action dismissed on the basis that the organization lacked standing. The chambers judge allowed the application and dismissed the claim. In his view, the organization failed to satisfy the test for public interest standing set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. The organization appealed. The Court of Appeal determined that the principles of legality and of access to justice merit particular weight in the Downtown Eastside framework, and held that the chambers judge erred in finding that the claim lacked a particular factual context of an individual’s case or an individual plaintiff. The Court of Appeal allowed the appeal, set aside the order dismissing the action, and remitted the matter to the court of first instance for fresh consideration. The Attorney General appeals to the Court and the organization seeks leave to cross-appeal to be granted public interest standing.
Held: The appeal should be dismissed, leave to cross appeal granted, the cross‑appeal allowed and the organization granted public interest standing.
The principles of legality and of access to justice do not merit particular weight in the Downtown Eastside analysis. The flexible, discretionary approach to public interest standing must be guided by all the underlying purposes of standing, and no one purpose, principle or factor takes precedence in the analysis. Furthermore, a directly affected co‑plaintiff is not required for a public interest litigant to be granted standing, as long as the latter can establish a concrete and well‑developed factual setting. In the circumstances of the instant case, the interests of justice mandate that the question of standing be ruled upon by the Court; remitting the matter for reconsideration would only cause further delay. Weighing all of the Downtown Eastside factors cumulatively, flexibly and purposively, public interest standing should be granted to the organization.
The decision to grant or deny public interest standing is discretionary. The Downtown Eastside framework mandates that in exercising its discretion, a court must assess and weigh three factors: (i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a genuine interest in the matter; and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court. Under this framework, courts flexibly and purposively weigh the factors in light of the particular circumstances and in a liberal and generous manner. Each factor is to be weighed in light of the underlying purposes of limiting standing, which consist of efficiently allocating scarce judicial resources and screening out busybody litigants, ensuring that courts have the benefit of the contending points of view of those most directly affected by the issues, and ensuring that courts play their proper role within our democratic system of government. Courts must also consider the purposes that justify granting standing in their analyses, that is, giving effect to the principle of legality and ensuring access to justice. The goal in every case is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it.
Legality and access to justice have played a pivotal role in the development of public interest standing. The legality principle encompasses the ideas that state action must conform to the law and that there must be practical and effective ways to challenge the legality of state action. Legality derives from the rule of law — if people cannot challenge government actions in court, individuals cannot hold the state to account and the government will be or be seen to be above the law. Access to justice is also fundamental to the rule of law. There 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. Access to justice is symbiotically linked to public interest standing: it provides an avenue to litigate the legality of government action in spite of social, economic or psychological barriers which may preclude individuals from pursuing their legal rights.
Legality and access to justice are primarily considered in relation to the third Downtown Eastside factor, which asks whether a proposed suit is a reasonable and effective means of bringing an issue before the court. To answer the question, courts may consider the plaintiff’s capacity to bring the claim forward, whether the case is of public interest, whether there are alternative means to bring the claim forward, and the potential impact of the proceedings on others. Because legality and access to justice feature most prominently in relation to the third factor, attaching particular weight to them would effectively transform this factor into a determinative one. Though courts are encouraged to take access to justice and legality into account, they should not turn these considerations into hard and fast requirements or freestanding, independently operating tests.
The third factor also requires courts to consider the plaintiff’s capacity to bring forward the claim. To evaluate this capacity, courts should examine the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well‑developed factual setting. Though courts cannot decide constitutional issues in a factual vacuum, public interest litigation may proceed without a directly affected plaintiff. A statute’s very existence, for instance, or the manner in which it was enacted, can be challenged on the basis of legislative facts alone. A concrete and well‑developed factual setting can also be established by calling affected, or otherwise knowledgeable, non‑plaintiff witnesses. A strict requirement for a directly affected plaintiff would pose obstacles to access to justice and would undermine the principle of legality. It would also raise procedural hurdles that would deplete judicial resources. The participation of directly affected litigants is accordingly not a separate legal and evidentiary hurdle in the discretionary balancing.
What will suffice to show that a sufficiently concrete and well‑developed factual setting will be forthcoming at trial depends on the circumstances. What may satisfy the court at an early stage of the litigation may not suffice at a later stage. Likewise, the significance of a lack of evidence will vary with the nature of the claim and the pleadings. Some cases may not be heavily dependent on individual facts, but where a case is so dependent, an evidentiary basis will weigh more heavily in the balance. In assessing whether a sufficiently concrete and well‑developed factual setting will be produced at trial, a court may consider the stage of the proceedings, the pleadings, the nature of the public interest litigant, the undertakings given, and the actual evidence tendered. If standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence; that would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. However, a mere undertaking or intention to adduce evidence will generally not be enough to persuade a court that an evidentiary basis will be forthcoming.
Courts retain the ability to reconsider standing, even where it was initially granted at a preliminary stage. The ability to revisit standing acts as a fail‑safe to ensure that the plaintiff does not rest on its laurels when it has undertaken to produce a sufficient evidentiary record at trial. A defendant wishing for standing to be revisited may apply to do so if a material change has occurred that raises a serious doubt about the forthcoming nature of a sufficiently concrete and well‑developed factual setting, and where alternative litigation management strategies are inadequate to address the deficiency. A material change of this scope is most likely to occur when the parties exchange pleadings or complete the discovery stage. Material changes occurring outside of these stages will be rare. With the importance of the factual setting increasing at each step of the litigation process, the lack of a factual setting will carry more weight at the close of the discovery stage than after the exchange of pleadings. Like the initial decision on standing, a decision to revisit standing turns on the particular circumstances of the case.
Applying the Downtown Eastside framework to the facts in the instant case, the organization raises a serious issue: the constitutionality of laws that implicate the Charter rights of people with mental disabilities. Though the organization’s case is still at the pleadings stage, the issue is justiciable. Material facts are pleaded which, if proven, could support a constitutional claim. The organization has a genuine interest in the issues, and in the challenges faced by people with mental disabilities. The claim is also a reasonable and effective means of bringing the matter before the courts. The case does not turn on individual facts, and it can be inferred that a sufficiently concrete and well‑developed factual setting will be forthcoming. The organization’s claim undoubtedly raises issues of public importance that transcend its immediate interests. Granting public interest standing in this case will promote access to justice for a disadvantaged group who has historically faced serious barriers to litigating before the courts.
Cases Cited
Applied: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; considered: Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; referred to: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Hy and Zel’s Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Mackay v. Manitoba, [1989] 2 S.C.R. 357; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Morgentaler, [1988] 1 S.C.R. 30; Morgentaler v. New Brunswick, 2009 NBCA 26, 344 N.B.R. (2d) 39; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 7 , 15(1) .
Class Proceedings Act, R.S.B.C. 1996, c. 50.
Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 2(b), (c).
Mental Health Act, R.S.B.C. 1996, c. 288, s. 31(1).
Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 11(1)(b), (c).
Authors Cited
Kennedy, Gerard J., and Lorne Sossin. “Justiciability, Access to Justice and the Development of Constitutional Law in Canada” (2017), 45 Fed. L. Rev. 707.
Law Society of British Columbia, Code of Professional Conduct for British Columbia (online: https://www.lawsociety.bc.ca/Website/media/Shared/docs/publications/mm/BC-Code_2016-06.pdf; archived version: https://www.scc-csc.ca/cso-dce/2022SCC-CSC27_1_eng.pdf).
APPEAL and Cross‑appeal from a judgment of the British Columbia Court of Appeal (Frankel, Dickson and DeWitt‑Van Oosten JJ.A.), 2020 BCCA 241, 41 B.C.L.R. (6th) 47, 451 D.L.R. (4th) 225, 56 C.P.C. (8th) 231, [2020] B.C.J. No. 1326 (QL), 2020 CarswellBC 2078 (WL), setting aside a decision of Hinkson C.J., 2018 BCSC 1753, [2018] B.C.J. No. 3387 (QL), 2018 CarswellBC 2723 (WL), and remitting the matter for fresh consideration. Appeal dismissed and cross‑appeal allowed.
Mark Witten and Emily Lapper, for the appellant/respondent on cross-appeal.
Michael A. Feder, Q.C., Katherine Booth, Connor Bildfell and Kevin Love, for the respondent/appellant on cross‑appeal.
Christine Mohr, for the intervener the Attorney General of Canada.
Yashoda Ranganathan and David Tortell, for the intervener the Attorney General of Ontario.
Sharon H. Pratchler, Q.C., and Jeffrey Crawford, for the intervener the Attorney General of Saskatchewan.
Leah M. McDaniel, for the intervener the Attorney General of Alberta.
Greg J. Allen and Nojan Kamoosi, for the intervener the West Coast Prison Justice Society.
Sarah Rankin, Anita Szigeti, Ruby Dhand and Maya Kotob, for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health.
Andrew Bernstein and Alexandra Shelley, for the intervener the Canadian Civil Liberties Association.
Roberto Lattanzio and Gabriel Reznick, for the interveners the Advocacy Centre for Tenants Ontario, the ARCH Disability Law Centre, the Canadian Environmental Law Association, the Chinese and Southeast Asian Legal Clinic, the HIV & AIDS Legal Clinic Ontario and the South Asian Legal Clinic Ontario.
Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
Daniel Cheater and Margot Venton, for the intervener the Ecojustice Canada Society.
Aubin Calvert, for the intervener the Trial Lawyers Association of British Columbia.
Sameha Omer, for the intervener the National Council of Canadian Muslims.
Karen R. Spector, Kelley Bryan and C. Tess Sheldon, for the intervener the Mental Health Legal Committee.
Elin Sigurdson and Monique Pongracic‑Speier, Q.C., for the intervener the British Columbia Civil Liberties Association.
Anthony Navaneelan and Naseem Mithoowani, for the intervener the Canadian Association of Refugee Lawyers.
Jason Harman and Tim Dickson, for the intervener the West Coast Legal Education and Action Fund.
Faisal Bhabha and Madison Pearlman, for the intervener the Centre for Free Expression.
Fahad Siddiqui, for the interveners the Federation of Asian Canadian Lawyers and the Canadian Muslim Lawyers Association.
Alison M. Latimer, Q.C., for the interveners the John Howard Society of Canada and the Queen’s Prison Law Clinic.
Kaitlyn Mitchell and Scott Tinney, for the intervener Animal Justice.
Joëlle Pastora Sala and Allison Fenske, for the interveners the Canadian Mental Health Association (National), Canada Without Poverty, the Aboriginal Council of Winnipeg Inc. and End Homelessness Winnipeg Inc.
Mark Sheeley and Lipi Mishra, for the intervener the Canadian Constitution Foundation.
The judgment of the Court was delivered by
The Chief Justice —
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Facts
6
A. Council of Canadians with Disabilities
6
B. Underlying Action
8
C. Withdrawal of the Individual Plaintiffs and Amended Notice of Civil Claim
10
D. Notice of Application to Dismiss Filed by Attorney General of British Columbia
11
E. Subsequent Class Action and Personal Injury Claim
14
III. Judgments of the Courts Below
16
A. Supreme Court of British Columbia, 2018 BCSC 1753 (Hinkson C.J.)
16
(1) Serious Justiciable Issue
17
(2) Genuine Interest
18
(3) Reasonable and Effective Means
19
B. Court of Appeal for British Columbia, 2020 BCCA 241, 41 B.C.L.R. (6th) 47 (Frankel, Dickson and DeWitt-Van Oosten JJ.A.)
21
(1) Access to Justice and the Principle of Legality
22
(2) Serious Justiciable Issue
24
(3) Reasonable and Effective Means
25
(4) Prospect of Duplicative Proceeding
26
IV. Issues
27
V. Analysis
28
A. Legality and Access to Justice in the Law of Public Interest Standing
28
(1) Defining the Legality Principle and Access to Justice
33
(2) Role of Legality and Access to Justice in Developing Public Interest Standing
37
(3) Current Framework Addresses Legality and Access to Justice
41
(a) Traditional Concerns of Standing Law
44
(b) Serious Justiciable Issue
48
(c) Genuine Interest
51
(d) Reasonable and Effective Means
52
(4) Conclusion on Access to Justice and Legality in Public Interest Standing Law
56
B. Sufficient Factual Setting For Trial
60
(1) Individual Co-plaintiff Not Required
63
(2) Satisfying a Court on this Factor Will Be Context-Specific
68
(3) Ability to Revisit Standing
73
C. Application to the Facts
78
(1) Errors in the Courts Below
81
(a) Chambers Judge
81
(i) Errors With Respect to the Serious Justiciable Issue Factor
82
(ii) Errors With Respect to the Genuine Interest Factor
85
(iii) Errors With Respect to the Reasonable and Effective Means Factor
86
(b) Court of Appeal
95
(2) Downtown Eastside Framework Favours Granting Standing in the Instant Case
97
(a) Serious Justiciable Issue
98
(b) Genuine Interest
101
(c) Reasonable and Effective Means
104
(i) Plaintiff’s Capacity to Bring the Claim Forward
105
(ii) Whether the Case is of Public Interest
110
(iii) Realistic Alternative Means
111
(iv) Potential Impact of the Proceeding on the Rights of Others
117
(3) Cumulative Weighing
118
D. Special Costs
119
VI. Disposition
124
I. Overview
[1] Access to justice depends on the efficient and responsible use of court resources. Frivolous lawsuits, endless procedural delays, and unnecessary appeals increase the time and expense of litigation and waste these resources. To preserve meaningful access, courts must ensure that their resources remain available to the litigants who need them most — namely, those who advance meritorious and justiciable claims that warrant judicial attention.
[2] Public interest standing — an aspect of the law of standing — offers one route by which courts can promote access to justice and simultaneously ensure that judicial resources are put to good use (see, e.g., Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 23). Public interest standing allows individuals or organizations to bring cases of public interest before the courts even though they are not directly involved in the matter and even though their own rights are not infringed. It can therefore play a pivotal role in litigation concerning the Canadian Charter of Rights and Freedoms , where issues may have a broad effect on society as a whole as opposed to a narrow impact on a single individual.
[3] In this appeal, the Council of Canadians with Disabilities (“CCD”) seeks public interest standing to challenge the constitutionality of certain provisions of British Columbia’s mental health legislation. CCD originally filed its claim alongside two individual plaintiffs who were directly affected by the impugned provisions. The individual plaintiffs discontinued their claims, leaving CCD as the sole plaintiff. CCD sought public interest standing to continue the action on its own.
[4] The Attorney General of British Columbia (“AGBC”) applied for dismissal of CCD’s action on a summary trial. He argued that the lack of an individual plaintiff was fatal to CCD’s claim for public interest standing because, without such a plaintiff, CCD could not adduce a sufficient factual setting to resolve the constitutional issue. In response, CCD filed an affidavit in which it promised to adduce sufficient facts at trial. The Supreme Court of British Columbia granted the AGBC’s application, declined to grant CCD public interest standing, and dismissed CCD’s claim. The Court of Appeal allowed CCD’s appeal and remitted the matter to the Supreme Court of British Columbia for fresh consideration. The AGBC appeals that decision.
[5] For the reasons that follow, I would dismiss the appeal, but grant CCD public interest standing, with special costs in this Court and in the courts below.
II. Facts
A. Council of Canadians with Disabilities
[6] CCD is a national not-for-profit organization established “to ensure that the voices of persons with disabilities are heard and to advocate for Canadians with disabilities” (A.R., at p. 88). During the underlying proceedings, it had 17 national or provincial member organizations, which themselves boasted several hundred thousand members.
[7] CCD’s mandate is threefold: it promotes the equality, autonomy, and rights of people living with physical and mental disabilities in Canada. It advances this mandate through advocacy, policy development, and rights advancement work (including litigation) on behalf of people with disabilities.
B. Underlying Action
[8] On September 12, 2016, CCD and two individual plaintiffs (Mary Louise MacLaren and D.C.) filed a notice of civil claim in which they challenged the constitutionality of British Columbia’s mental health legislation. In the notice of civil claim, they alleged that certain provisions in three interrelated statutes — s. 31(1) of the Mental Health Act, R.S.B.C. 1996, c. 288, s. 2(b) and (c) of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, and s. 11(1)(b) and (c) of the Representation Agreement Act, R.S.B.C. 1996, c. 405 — violate ss. 7 and 15(1) of the Charter . Together, these provisions permit physicians to administer psychiatric treatment to involuntary patients with mental disabilities without their consent and without the consent of a substitute or supportive decision-maker under certain circumstances.
[9] Ms. MacLaren and D.C. were involuntary patients affected by the impugned provisions. In the notice of civil claim, they alleged that they had suffered harm from forced psychiatric treatment, including psychotropic medication and electroconvulsive therapy.
C. Withdrawal of the Individual Plaintiffs and Amended Notice of Civil Claim
[10] On October 25, 2017, Ms. MacLaren and D.C. discontinued their claims and withdrew from the litigation, leaving CCD as the sole remaining plaintiff. CCD filed an amended notice of civil claim shortly afterward. In the amended notice, it removed all factual allegations relating to Ms. MacLaren and D.C. and replaced them with similar allegations regarding the nature, administration, and impacts of forced psychiatric treatment on involuntary patients generally. It also added a section in which it pled that it should be granted public interest standing.
D. Notice of Application to Dismiss Filed by Attorney General of British Columbia
[11] On January 31, 2018, the AGBC filed an amended response in which he claimed that CCD did not meet the test for public interest standing and could not pursue its Charter claims without an individual plaintiff. Approximately six months later, the AGBC filed a notice of application in which he sought an order dismissing CCD’s action on the basis that CCD lacked standing to continue the action.
[12] CCD responded by filing an affidavit by Melanie Benard, the Chair of CCD’s Mental Health Committee. Ms. Benard deposed that:
1. throughout her career as a lawyer specializing in mental health law, she gained direct experience with people who have or have had mental health-related disabilities;
2. CCD is an established advocate for the rights of people with disabilities, including mental disabilities, and has brought or intervened in over 35 court cases dealing with the rights of people with disabilities, including 24 cases at the Supreme Court of Canada;
3. Charter litigation is complex, often protracted, and stressful, and it is not reasonable to expect individuals who have mental disabilities to bring and see through a constitutional challenge; and
4. CCD “intends to lead evidence from both fact and expert witnesses, including from people with direct experience” of the impact of the impugned provisions (A.R., at p. 236).
[13] Ms. Benard was not cross-examined on her affidavit.
E. Subsequent Class Action and Personal Injury Claim
[14] In October 2019 — after the Court of Appeal for British Columbia heard the appeal in the case at bar but before it rendered its decision — three private litigants commenced a class action under the Class Proceedings Act, R.S.B.C. 1996, c. 50, in which they challenge the same statutory provisions at issue in this appeal. Ms. MacLaren and another plaintiff brought a similar action for constitutional and personal injury relief, but later discontinued that claim.
[15] At present, the proposed class action has not yet been certified. The AGBC opposes certification; on October 30, 2020, he filed a response asserting that the action fails to meet the criteria for certification.
III. Judgments of the Courts Below
A. Supreme Court of British Columbia, 2018 BCSC 1753 (Hinkson C.J.)
[16] The chambers judge granted the AGBC’s summary trial application, denied CCD standing, and dismissed CCD’s claim. In his view, CCD failed to satisfy the three-part test for granting public interest standing set out by this Court in Downtown Eastside: (i) whether the claimant has advanced a serious justiciable issue, (ii) whether the claimant has a genuine interest in the issue and (iii) whether, in light of all the circumstances, the proposed suit is a reasonable and effective means of bringing the issue before the courts.
(1) Serious Justiciable Issue
[17] The chambers judge determined that CCD failed to raise a justiciable issue because its claim lacked “the indispensable factual foundation that particularizes the claim and permits the enquiry and relief sought” (para. 38 (CanLII)). He remarked that the “fundamental difficulty” with CCD’s claim was “the lack of a particular factual context of an individual’s case” (para. 37).
(2) Genuine Interest
[18] The chambers judge held that CCD’s interest “only weakly” met the “genuine interest” criterion, because CCD’s work was “more focussed on disability (particularly physical disability) and far less focussed on mental health” (paras. 44 and 53).
(3) Reasonable and Effective Means
[19] The chambers judge determined that granting CCD public interest standing would not be a reasonable and effective means of bringing the issue before the courts. He agreed that CCD had the expertise and resources to advance the claim, but remained unpersuaded of its ability to satisfy the “reasonable and effective means” factor for several reasons:
1. CCD’s undertaking to provide a robust record at trial failed to satisfy its onus to meet the test for public interest standing on summary trial, and the chambers judge doubted that CCD could put forward “a sufficiently concrete and well-developed factual setting” upon which to decide the question it had raised (para. 69);
2. CCD failed to persuade the chambers judge that it could fairly represent the interests of everyone affected by the impugned provisions, let alone “all residents of British Columbia”, to whom it referred in its amended notice of civil claim (para. 76);
3. CCD’s advocacy efforts over the last 40 years did not necessarily commend it as an advocate for those with mental health-related disabilities, given that its engagement in advocacy for mental health-related disabilities, as opposed to physical health-related disabilities, had been relatively limited; and
4. the Benard affidavit did not explain why it was unrealistic to expect individual plaintiffs who have mental disabilities and who have experienced the impacts of the impugned legislation to bring and see through a challenge to that legislation.
[20] Cumulatively weighing the three factors, the chambers judge declined to exercise his discretion to grant public interest standing and dismissed CCD’s action.
B. Court of Appeal for British Columbia, 2020 BCCA 241, 41 B.C.L.R. (6th) 47 (Frankel, Dickson and DeWitt-Van Oosten JJ.A.)
[21] The Court of Appeal for British Columbia allowed the appeal, set aside the order dismissing the action, and remitted the matter to the Supreme Court of British Columbia for fresh consideration.
(1) Access to Justice and the Principle of Legality
[22] In its analysis, the Court of Appeal began by commenting on two principles that Downtown Eastside highlighted as important features of standing law: (i) the importance of courts upholding the legality principle — the idea that state action must conform to the Constitution and must not be immunized from judicial review — and (ii) the practical realities of providing access to justice for vulnerable and marginalized citizens who are broadly affected by legislation of questionable constitutional validity.
[23] In the Court of Appeal’s view, these principles “merit particular weight in the balancing exercise a judge must undertake when deciding whether to grant or refuse public interest standing” (para. 79). While other concerns “must also be accounted for”, legality and access to justice are “the key components of the flexible and purposive approach mandated in Downtown Eastside” (para. 79).
(2) Serious Justiciable Issue
[24] The Court of Appeal held that the chambers judge had erred in requiring “a particular factual context of an individua[l] case” or an individual plaintiff for the serious justiciable issue factor (para. 114). It described CCD’s claim as a “comprehensive and systemic constitutional challenge to specific legislation that directly affects all members of a defined and identifiable group in a serious, specific and broadly-based manner regardless of the individual attributes or experiences of any particular member of the group” (para. 112). For this reason, the Court of Appeal concluded, it would be possible for CCD to establish its claim by adducing evidence from directly affected non-plaintiff and expert witnesses instead of from an individual co-plaintiff.
(3) Reasonable and Effective Means
[25] Given its conclusion on the serious justiciable issue factor, the Court of Appeal did not review the other Downtown Eastside factors. It did note, however, that the chambers judge’s analysis on the third factor did not comport with the flexible, purposive approach to standing mandated in Downtown Eastside. Specifically, it disagreed with any suggestion on the chambers judge’s part that, “if possible, it is always preferable for a public interest organization to assist an individual party in the background rather than seek public interest standing” (C.A. reasons, at para. 115 (emphasis deleted)).
(4) Prospect of Duplicative Proceeding
[26] The Court of Appeal also commented on the proposed class action. It acknowledged that the prospect of duplicative Charter challenges are relevant to — but not determinative of — applications for public interest standing. The Court of Appeal concluded that the Supreme Court of British Columbia was best placed to assess CCD’s application for public interest standing upon review of a revised record containing this new information.
IV. Issues
[27] This appeal raises three issues:
1. What role do the principles of access to justice and of legality play in the test for public interest standing, and do they merit “particular weight” in the balancing exercise a judge must undertake to grant public interest standing?
2. Without an individual co-plaintiff, how can a litigant seeking public interest standing show that its claim will be presented in a “sufficiently concrete and well-developed factual setting”? If revisiting the issue of standing at a later stage of a proceeding is necessary to ensure this setting is present, under what conditions should parties be permitted to do so?
3. Applying these principles, should CCD be granted public interest standing?
V. Analysis
A. Legality and Access to Justice in the Law of Public Interest Standing
[28] The decision to grant or deny public interest standing is discretionary (Downtown Eastside, at para. 20). In exercising its discretion, a court must cumulatively assess and weigh three factors purposively and with regard to the circumstances. These factors are: (i) whether the case raises a serious justiciable issue, (ii) whether the party bringing the action has a genuine interest in the matter, and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court (para. 2).
[29] In Downtown Eastside, this Court explained that each factor is to be “weighed . . . in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes” (para. 20). These purposes are threefold: (i) efficiently allocating scarce judicial resources and screening out “busybody” litigants; (ii) ensuring that courts have the benefit of the contending points of view of those most directly affected by the issues; and (iii) ensuring that courts play their proper role within our democratic system of government (para. 1).
[30] Courts must also consider the purposes that justify granting standing in their analyses (Downtown Eastside, at paras. 20, 23, 36, 39-43, 49-50 and 76). These purposes are twofold: (i) giving effect to the principle of legality and (ii) ensuring access to the courts, or more broadly, access to justice (paras. 20, 39-43 and 49). The goal, in every case, is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it (para. 23).
[31] Downtown Eastside remains the governing authority. Courts should strive to balance all of the purposes in light of the circumstances and in the “wise application of judicial discretion” (para. 21). It follows that they should not, as a general rule, attach “particular weight” to any one purpose, including legality and access to justice. Legality and access to justice are important — indeed, they played a pivotal role in the development of public interest standing — but they are two of many concerns that inform the Downtown Eastside analysis.
[32] To demonstrate this, I will define legality and access to justice, review their role in the development of public interest standing, and situate them