Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)
Collection
Supreme Court Judgments
Date
2014-10-02
Neutral citation
2014 SCC 59
Report
[2014] 3 SCR 31
Case number
35315
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35315
Decision Content
SUPREME COURT OF CANADA
Citation: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31
Date: 20141002
Docket: 35315
Between:
Trial Lawyers Association of British Columbia and
Canadian Bar Association — British Columbia Branch
Appellants/Respondents on cross-appeal
and
Attorney General of British Columbia
Respondent/Appellant on cross-appeal
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Alberta, Advocates’ Society, West Coast Women’s Legal Education and Action Fund and David Asper Centre for Constitutional Rights
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 69)
Reasons Concurring in Result:
(paras. 70 to 79)
Dissenting Reasons:
(paras. 80 to 117)
McLachlin C.J. (LeBel, Abella, Moldaver and Karakatsanis JJ. concurring)
Cromwell J.
Rothstein J.
Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31
Trial Lawyers Association of British
Columbia and Canadian Bar Association
— British Columbia Branch Appellants/Respondents on cross-appeal
v.
Attorney General of British Columbia Respondent/Appellant on cross-appeal
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Alberta,
Advocates’ Society,
West Coast Women’s Legal Education and Action Fund
and David Asper Centre for Constitutional Rights Interveners
Indexed as: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)
2014 SCC 59
File No.: 35315.
2014: April 14; 2014: October 2.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Courts — Access to justice — Court hearing fees — Province enacting regulations establishing graduated court hearing fees — Regulations containing exemption provision from fees for persons who are “indigent” or “impoverished” — Whether province can establish hearing fee scheme under its administration of justice power pursuant to s. 92(14) of Constitution Act, 1867 — Whether regulations imposing hearing fees denying some people access to courts infringing core jurisdiction of s. 96 superior courts — Whether provincial hearing fee scheme constitutionally valid — Constitution Act, 1867, ss. 92(14) , 96 — Court Rules Act, R.S.B.C. 1996, c. 80 — Supreme Court Rules, B.C. Reg. 221/90, as amended by B.C. Reg. 10/96 and B.C. Reg. 75/98 — Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 20-5(1).
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 — 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 $500 for days four to ten, to $800 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 (Rothstein J. dissenting): The appeal should be allowed and the cross-appeal dismissed.
Per McLachlin C.J. and LeBel, Abella, Moldaver and Karakatsanis JJ.: 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 the Constitution 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 basic 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 Act, 1867 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.
Per Cromwell J.: This case can be resolved on administrative law grounds and it is unnecessary to address the broader constitutional issues. There is a common law right of reasonable access to civil justice. This right of reasonable access may only be abrogated by clear statutory language. This common law right is preserved by the Court Rules Act. The common law right of access to civil justice allows court fees, but only if there is an exemption to ensure that no person is prevented from making an arguable claim or defence because he or she lacks the resources to carry on the proceeding. This is a flexible standard: whether a person has the ability to pay the fees depends not only on wealth and income, but also on the amount of their reasonable, necessary expenses and the magnitude of the fees. If the hearing fee exemptions cannot be interpreted to ensure that the common law right of access is not defeated, then the fees are ultra vires the Court Rules Act.
Here, the trial judge found as a fact that the hearing fees are unaffordable and therefore limit access for litigants who do not fall within the exemptions for the indigent and the impoverished. The plain meaning of the exemption, referring to persons who are “impoverished” and “indigent” cannot be interpreted to cover people of modest means who are prevented from having a trial because of the hearing fees. The hearing fees do not meet the common law standard preserved by the Court Rules Act. The exemptions under the Court Rules Act cannot be interpreted in a way that is consistent with the common law right of access to civil justice which is preserved by the Court Rules Act. Thus, the fees are ultra vires the regulation-making authority conferred by the Court Rules Act.
Per Rothstein J. (dissenting): The British Columbia hearing fee scheme does not offend any constitutional right. There is no express constitutional right to access the civil courts without hearing fees. Section 92(14) of the Constitution Act, 1867 entrusts the administration of justice in the provinces to provincial legislatures. It is well established that provinces have the power under s. 92(14) to enact laws that prescribe conditions on access to the courts. Legislatures must balance a number of important values, including providing access to courts and ensuring that those same courts are adequately funded. They are accountable to voters for the choices they make. 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.
The hearing fee scheme in this case cannot be struck down on the basis of a novel reading of s. 96 of the Constitution Act, 1867 . Section 96 protects the core jurisdiction of superior courts that is integral to their operations; however, it does not follow that legislation that places conditions on access to superior courts removes or infringes upon an aspect of their core jurisdiction. This Court has previously established a three-part test for determining whether legislation impermissibly removes an aspect of the core jurisdiction of superior courts. The majority does not apply this test because no aspect of the core jurisdiction of superior courts is removed by legislation that merely places limits on access to superior courts. In the absence of any demonstrated destruction of the core powers of the superior courts, there is no such removal sufficient to find a violation of s. 96 . Instead, the majority significantly expands what is meant by the “core jurisdiction” of the superior courts beyond what is contemplated in the text or this Court’s jurisprudence on the scope of s. 96 . The hearing fees are a financing mechanism and do not go to the very existence of the court as a judicial body or limit the types of powers it may exercise.
The unwritten principle of the rule of law does not support the striking down of legislation otherwise properly within provincial jurisdiction. The majority uses the rule of law to support reading a general constitutional right to access the superior courts into s. 96 . Section 96 requires that the existence and core jurisdiction of superior courts be preserved, but this does not, necessarily imply the general right of access to superior courts described by the majority. So long as the courts maintain their character as judicial bodies and exercise the core functions of courts, the demands of the Constitution are satisfied. In using an unwritten principle to support expanding the ambit of s. 96 to such an extent, the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text. This purported constitutional right to access the courts circumvents the careful checks and balances built into the structure of the Charter. Unlike Charter rights, rights read into s. 96 are not subject to s. 1 justification or the s. 33 notwithstanding clause.
This Court has clearly and persuasively cautioned against using the rule of law to strike down legislation. To circumvent this caution, the majority characterizes the rule of law as a limitation on the jurisdiction of provinces under s. 92(14) . 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. Reading the unwritten principle of the rule of law too broadly would also render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers. Provisions such as ss. 11(d) and 24(1) of the Charter would be unnecessary if the Constitution already contained a more general right to access superior courts. The rule of law is a vague and fundamentally disputed concept. To rely on this nebulous principle to invalidate legislation based on its content introduces uncertainty into constitutional law and undermines our system of positive law.
Even if there were a constitutional basis upon which to challenge the British Columbia hearing fee scheme, it would not be unconstitutional. The majority’s approach to determining whether hearing fees prevent litigants from accessing the courts overlooks some important contextual considerations. In particular, the majority does not account for measures that offset the burden of hearing fees or eliminate them altogether. When these measures are taken into consideration, there is no indication that the hearing fees at issue would prevent litigants from bringing meritorious legal claims.
Cases Cited
By McLachlin C.J.
Distinguished: British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873, rev’g 2005 BCCA 631, 262 D.L.R. (4th) 51; applied: MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; referred to: Pleau v. Nova Scotia (Prothonotary) (1998), 186 N.S.R. (2d) 1; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, aff’g (1985), 20 D.L.R. (4th) 399; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Schachter v. Canada, [1992] 2 S.C.R. 679.
By Cromwell J.
Referred to: Polewsky v. Home Hardware Stores Ltd. (2003), 66 O.R. (3d) 600; Fabrikant v. Canada, 2014 FCA 89, 459 N.R. 163; Toronto-Dominion Bank v. Beaton, 2012 ABQB 125, 534 A.R. 132; R. v. Lord Chancellor, Ex parte Witham, [1998] Q.B. 575; R. v. Secretary of State for the Home Department, ex p. Saleem, [2000] 4 All E.R. 814; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810.
By Rothstein J. (dissenting)
OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Singh v. Canada (Attorney General), [2000] 3 F.C. 185; De Fehr v. De Fehr, 2001 BCCA 485, 156 B.C.A.C. 240; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1.
Statutes and Regulations Cited
A Mean to help and speed poor Persons in their Suits (Eng.), 11 Hen. 7, c. 12 [Statute of Henry VII].
Canadian Charter of Rights and Freedoms, ss. 1 , 2 , 7 , 11 (d), 24(1) , 33 .
Constitution Act, 1867, ss. 92(14) , 96 .
Court Rules Act, R.S.B.C. 1996, c. 80.
Employment and Assistance Act, S.B.C. 2002, c. 40.
Employment and Assistance for Persons with Disabilities Act, S.B.C. 2002, c. 41.
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 14-1, 20-5(1), (3), App. C, Sch. 1.
Supreme Court Family Rules, B.C. Reg. 169/2009, App. C, Sch. 1.
Supreme Court Rules, B.C. Reg. 221/90 [rep. 168/2009], App. C, Sch. 1 [rep. & sub. 10/96; idem 75/98].
APPEAL and CROSS-APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Chiasson and Garson JJ.A.), 2013 BCCA 65, 43 B.C.L.R. (5th) 217, 334 B.C.A.C. 71, 572 W.A.C. 71, 359 D.L.R. (4th) 524, [2013] 7 W.W.R. 478, 286 C.R.R. (2d) 26, [2013] B.C.J. No. 243 (QL), 2013 CarswellBC 354, setting aside a decision of McEwan J., 2012 BCSC 748, 260 C.R.R. (2d) 1, [2012] B.C.J. No. 1016 (QL), 2012 CarswellBC 1485. Appeal allowed and cross-appeal dismissed, Rothstein J. dissenting.
Darrell W. Roberts, Q.C., and Chantelle M. Rajotte, for the appellant/respondent on cross-appeal the Trial Lawyers Association of British Columbia.
Sharon D. Matthews, Q.C., Melina Buckley and Michael Sobkin, for the appellant/respondent on cross-appeal the Canadian Bar Association — British Columbia Branch.
Bryant A. Mackey and J. Gareth Morley, for the respondent/appellant on cross-appeal.
Alain Préfontaine, for the intervener the Attorney General of Canada.
Rochelle Fox and Padraic Ryan, for the intervener the Attorney General of Ontario.
Alain Gingras and Dana Pescarus, for the intervener the Attorney General of Quebec.
Donald Padget, for the intervener the Attorney General of Alberta.
Joseph J. Arvay, Q.C., Kelly D. Jordan and Tim A. Dickson, for the intervener the Advocates’ Society.
Francesca V. Marzari and Kasari Govender, for the intervener the West Coast Women’s Legal Education and Action Fund.
Paul Schabas and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
The judgment of McLachlin C.J. and LeBel, Abella, Moldaver and Karakatsanis JJ. was delivered by
The Chief Justice —
I. Overview
[1] The issue in this case is whether court hearing fees imposed by the Province of British Columbia that deny some people access to the courts are constitutional. The trial judge, upheld on appeal, held that the legislation imposing the fees was unconstitutional. I agree.
[2] In my view, the fees at issue here violate s. 96 of the Constitution Act, 1867 . Although the province can establish hearing fees under its power to administer justice under s. 92(14) of the Constitution Act, 1867 , the exercise of that power must also comply with s. 96 of the Constitution Act, 1867 , which constitutionally protects the core jurisdiction of the superior courts. For the reasons discussed below, the fees impermissibly infringe on that jurisdiction by, in effect, denying some people access to the courts.
II. Facts
[3] This case began as a family action (2009 BCSC 434 (CanLII)). Ms. Vilardell and Mr. Dunham began a relationship in England and came to British Columbia, Canada, with their daughter. The relationship foundered, and the question arose — who should have custody of the child? Ms. Vilardell wanted to return with the child to Spain, her country of origin. Mr. Dunham wanted to keep the child in British Columbia. Ms. Vilardell also claimed an interest in Mr. Dunham’s house.
[4] Ms. Vilardell 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, Ms. Vilardell 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, so he could address the question of ability to pay after hearing evidence respecting the parties’ means, circumstances, and entitlement to property.
[5] The parties were not represented by lawyers, and the hearing took 10 days. The hearing fee amounted to some $3,600 — almost the net monthly income of the family (2012 BCSC 748, 260 C.R.R. (2d) 1, at para. 396). Ms. Vilardell is not an “impoverished” person in the ordinary sense of the word. She is qualified as a veterinary surgeon in Europe. She was unemployed in the year leading up to the trial; the “family” income appears to have come mainly from her partner. She had some assets, including about $10,000 in savings in a Canadian bank account, $10,000 in a Barclays Investment Savings Account in the United Kingdom, and $4,500 in a registered retirement account in Spain. However, after legal fees had depleted her savings, she could not afford the hearing fee.
[6] Aware that there was some authority for the proposition that hearing fees are unconstitutional (Pleau v. Nova Scotia (Prothonotary) (1998), 186 N.S.R. (2d) 1 (S.C.)), the judge held that the Attorney General should be given an opportunity to intervene on Ms. Vilardell’s application. He also invited submissions from the Law Society of British Columbia and the B.C. branch of the Canadian Bar Association. The judge stayed Ms. Vilardell’s obligation to pay the hearing fee pending further order.
[7] Ultimately, the B.C. branch of the Canadian Bar Association and the Trial Lawyers Association of British Columbia intervened and challenged the hearing fee scheme as unconstitutional. They argued that people like Ms. Vilardell — possessing some means but not able to pay the hearing fee — have the right to have a court adjudicate their legal disputes, and that the hearing fee regime in British Columbia essentially denies them that right.
[8] The trial judge 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 (2013 BCCA 65, 43 B.C.L.R. (5th) 217). The Trial Lawyers Association of British Columbia and the Canadian Bar Association — British Columbia Branch appeal the remedy to this Court. The Province cross-appeals on the issue of the constitutionality of the hearing fees.
III. The Legislative Regime
[9] The Supreme Court Rules, B.C. Reg. 221/90, as amended by B.C. Reg. 10/96 and B.C. Reg. 75/98, in place at the time this case began, were enacted as subordinate legislation under the Court Rules Act, R.S.B.C. 1996, c. 80. In 2010, the Supreme Court Rules were replaced by the Supreme Court Civil Rules, B.C. Reg. 168/2009. The appellants challenge the constitutionality of the hearing fees set out in both rules of court.
[10] The current hearing fees are set out in Schedule 1 of Appendix C of the Supreme Court Civil Rules and the Supreme Court Family Rules, B.C. Reg. 169/2009. The fees escalate from no fee for the first three days of trial, to $500 for days four to ten, to $800 for each day over ten.
[11] Rule 20-5(1) of the Supreme Court Civil Rules provides for an exemption from hearing fees:
If the court, on application made in accordance with subrule (3) before or after the start of a proceeding, finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding unless the court considers that the claim or defence
(a) discloses no reasonable claim or defence, as the case may be,
(b) is scandalous, frivolous or vexatious, or
(c) is otherwise an abuse of the process of the court.
[12] In B.C., the party that sets a case down for trial (usually the plaintiff) is required to undertake to pay the hearing fee — regardless of whether the trial length is based on that party’s estimate or the estimate of the other party or the court.
[13] Applications for the impoverishment exemption are usually spoken to in court, often on an ex parte basis. The registry provides the applicant with an application form, a blank affidavit, and a draft order (r. 20-5(3)).
IV. Issues
[14] This appeal raises the following issues:
1. Is B.C.’s hearing fee scheme constitutionally valid?
2. If not, what is the appropriate remedy?
[15] The appellants challenge the Province’s hearing fees on a number of grounds, including the rule of law and access to an independent judiciary.
[16] The Province argues that the hearing fee scheme is a valid exercise of the provincial power over the administration of justice under s. 92(14) of the Constitution Act, 1867 .
[17] The question arises: What, if any, are the limits of the scope of provincial authority over the administration of justice under s. 92(14) ? The authority is a wide one, but it must be exercised harmoniously with the core jurisdiction of provincial superior courts protected by s. 96 . The issue in this case comes down to whether s. 96 is infringed by legislation that imposes hearing fees that deny some people access to the courts.
V. Analysis
A. The Province Has the Power to Impose Hearing Fees
[18] The Province has the power to legislate with respect to the administration of justice under s. 92(14) of the Constitution Act, 1867 . This includes the power to charge fees for court services.
[19] Section 92(14) of the Constitution Act, 1867 provides:
92. In each Province the Legislature may exclusively make Laws in relation to . . .
. . .
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of the Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil matters in those Courts.
[20] In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873, this Court said:
The legislature has the power to pass laws in relation to the administration of justice in the province under s. 92(14) of the Constitution Act, 1867 . This implies the power of the province to impose at least some conditions on how and when people have a right to access the courts. Therefore B.C.G.E.U. cannot stand for the proposition that every limit on access to the courts is automatically unconstitutional. [Emphasis added; para. 17.]
[21] Hearing fees fall squarely within the “administration of justice” and may be used to defray some of the cost of administering the justice system, to encourage the efficient use of court resources, and to discourage frivolous or inappropriate use of the courts.
[22] It was argued that all hearing fees are unconstitutional; as courts are a “first charge on government”, charging fees for time in court is as offensive to democracy as charging fees for voting. However, this argument is flawed because it focuses on the type of the fee, rather than the real problem ― using fees to deny certain people access to the courts. Moreover, the argument raises policy issues relating to how governments should generate revenue and allocate their funds. Hearing fees paid by litigants who can afford them may be a justifiable way of making resources available for the justice system and increasing access to justice overall.
[23] I conclude that levying hearing fees is a permissible exercise of the Province’s jurisdiction under s. 92(14) of the Constitution Act, 1867 .
B. The Provinces’ Power to Impose Hearing Fees Is Not Unlimited
[24] On its face, s. 92(14) does not limit the powers of the provinces to impose hearing fees. However, that does not mean that the province can impose hearing fees in any fashion it chooses. Its power to impose hearing fees must be consistent with s. 96 of the Constitution Act, 1867 and the requirements that flow by necessary implication from s. 96 . This follows from two related tenets of constitutional interpretation.
[25] First, particular constitutional grants of power must be read together with other grants of power so that the Constitution operates as an internally consistent harmonious whole. Thus s. 92(14) does not operate in isolation. Its ambit must be determined, not only by reference to its bare wording, but with respect to other powers conferred by the Constitution. In this case, this requires us to consider s. 96 of the Constitution Act, 1867 .
[26] Second, the interpretation of s. 92(14) must be consistent not only with other express terms of the Constitution, but with requirements that “flow by necessary implication from those terms”: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 66, per Major J. As this Court has recently stated, “the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text”: Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 26 (emphasis added).
[27] It follows that in determining the power conferred on the province over the administration of justice, including the imposition of hearing fees, by s. 92(14), the Court must consider not only the written words of that provision, but how a particular interpretation fits with other constitutional powers and the assumptions that underlie the text.
[28] In this case, the other constitutional grant of power that must be considered is s. 96 of the Constitution Act, 1867 , which has been held to guarantee the core jurisdiction of provincial superior courts throughout the country.
[29] While s. 92(14) gives the provinces the responsibility for the administration of justice, s. 96 gives the federal government the power to appoint judges to the superior, district and county courts in each province. Taken together, these sections have been held to provide a constitutional basis for a unified judicial presence throughout the country: MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at paras. 11 and 52. Although the bare words of s. 96 refer to the appointment of judges, its broader import is to guarantee the core jurisdiction of provincial superior courts: Parliament and legislatures can create inferior courts and administrative tribunals, but “[t]he jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution” (MacMillan Bloedel, at para. 15). In this way, the Canadian Constitution “confers a special and inalienable status on what have come to be called the ‘section 96 courts’” (MacMillan Bloedel, at para. 52).
[30] Section 96 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: MacMillan Bloedel, at para. 37; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Provincial Judges Reference”), at para. 88.
[31] 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.
[32] 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 basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867 . As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.
[33] The jurisprudence under s. 96 supports this conclusion. The cases decided under s. 96 have been concerned either with legislation that purports to transfer an aspect of the core jurisdiction of the superior court to another decision-making body or with privative clauses that would bar judicial review: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; MacMillan Bloedel; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. 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.
[34] In Residential Tenancies, the law at issue unconstitutionally denied access to the superior courts by requiring that a certain class of cases be decided by an administrative tribunal. In Crevier, the law at issue unconstitutionally denied access to the superior courts by imposing a privative clause excluding the supervisory jurisdiction of the superior courts. In MacMillan Bloedel, the legislation at issue unconstitutionally barred access to the superior courts for a segment of society — young persons — by conferring an exclusive power on youth courts to try youths for contempt in the face of superior courts. This Court, per Lamer C.J., relied on Crevier, concluding that “[it] establishes . . . that powers which are ‘hallmarks of superior courts’ cannot be removed from those courts” (MacMillan Bloedel, at para. 35).
[35] 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.
[36] 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.
[37] This is consistent with the approach adopted by Major J. in Imperial Tobacco. The legislation here at issue ― the imposition of hearing fees ― must conform not only to the express terms of the Constitution, but to the “requirements . . . that flow by necessary implication from those terms” (para. 66). The right of Canadians to access the superior courts flows by necessary implication from the express terms of s. 96 of the Constitution Act, 1867 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.
[38] While this suffices to resolve the fundamental issue of principle in this appeal, the connection between s. 96 and access to justice is further supported by considerations relating to the rule of law. This Court affirmed that access to the courts is essential to the rule of law in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. As Dickson C.J. put it, “[t]here 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” (p. 230). The Court adopted, at p. 230, the B.C. Court of Appeal’s statement of the law ((1985), 20 D.L.R. (4th) 399, at p. 406):
. . . access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. . . . Any action that interferes with such access by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category. [Emphasis added.]
As stated more recently in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, per Karakatsanis J., “without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined” (para. 26).
[39] The s. 96 judicial function