Yesterday, the Supreme Court heard the oral arguments in the B.C. hearing fees case, now known as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), a case I have much blogged about as it made its way through the B.C. courts (where it was known Villardell v. Dunham, both on trial and on appeal). You can watch the hearing here, or read the rough transcript I have made. I will give an overview of the oral argument in this post, and have some comments in a separate one.
Just by way of reminder, the hearing fees at issue are imposed, in all civil cases litigated in the B.C. Supreme Court (which is a court of first instance), on the party setting the case down for trial, escalating with the trial’s length. Under the current rules, the first three days are free; days 4-10 cost 500$ per day; and subsequent days each cost 800$. The cost of any protracted trial can thus quickly become prohibitive, not only for lower-income litigants, but even for middle-class people. The rules allow a judge to exempt an “impoverished” litigant who applies for permission not to pay the fees, a term that the Court of Appeal read to extend to all litigants unable to “meet their everyday expenses if … required to pay the fees” (par. 41).
Not good enough, say the Trial Lawyers and the BC branch of the Canadian Bar Association, as well as a number of interveners, who argue that the fees impede access to justice and prevent the less well-off litigants from having their disputes resolved by courts. The provincial government, however, defends its approach, arguing that its twin objectives of cost-recovery and rationing of court time not only are legitimate within its constitutional power to administer courts, but are in fact ways of ensuring access to justice by making sure that at least some court time is available to all litigants.
When I discussed Justice McEwen’s ruling (holding the fees unconstitutional) at first instance, I noted that three threads run through his reasons: a separation of powers argument, according to which the hearing fees interfered with the constitutionally protected prerogatives of the judiciary; an individual rights argument, according to which there is a constitutionally-protected right to go to court, with which the fees interfere; and a difficult-to-characterize argument according to which the hearing fees are contrary to a certain idea(l) of what public services ought to be like. The appellants and the interveners who support them made versions of all three of these arguments, in what seemed a rather uncertain search for constitutional support the claim the hearing fees are unconstitutional.
The separation of powers argument led them to invoke section 96 of the Constitution Act, 1867, which the Supreme Court has read as protecting a core of jurisdiction of which superior courts cannot be deprived. Indeed, even the respondent, as well as some of the other provinces, conceded that at some hypothetical level, hearing fees would be so high as to prevent superior courts from having any litigants before them, thus infringing this core jurisdiction, although they argued that the fee regime at issue was not problematic in this way.
The individual rights argument took two different forms. Mostly, the right of access to courts (which the parties tended to refer to as access to justice, although ― as the provinces pointed out ― access to justice involves many different things) was said to flow from the constitutional principle of the Rule of Law, which the Supreme Court has long recognized, albeit giving it a very narrow meaning. The appellants especially relied on the Supreme Court’s decision in B.C.G.E.U. v. British Columbia (Attorney General), 2 S.C.R. 214, where Chief Justice Dickson spoke of the courts’ power, “under the rule of law,” to remove barriers to “access to courts” ― although in that case, the barriers at issue (picket lines) were physical, rather than financial. But a different argument, advanced by the West Coast Women’s Legal Education and Action Fund, was to the effect that the right of access to courts was a component of the right to liberty, and maybe also of that to the security of the person, protected by section 7 of the Canadian Charter of Rights and Freedoms, and that the hearing fees infringed this right contrary to principles of fundamental justice, due to their disproportionate effect on women and the least well-off.
The provinces vigorously resisted the Rule of Law argument. BC claimed that the constitution is limited to the documents referred to in s. 52(2) of the Constitution Act, 1982 (though the Supreme Court’s recent decision in L’affaire Nadon seems to make that claim quite implausible). Ontario argued that the Rule of Law, except a very thin version of it recognized in the Manitoba Language Rights Reference, is an aspirational concept which legislatures ought to be left free to implement in their own ways. Québec said it was only an interpretive principle ― although, interestingly, it endorsed the s. 7 of the Charter argument for the hearing fees’ unconstitutionality, which the other provinces that addressed it rejected, noting that civil justice was deliberately excluded from the Charter’s text.
As for the argument that the imposition of fees for access to courts is contrary to what public services ought to be like, it was made by Joseph Arvay on behalf of the Advocates’ Society. Mr. Arvay contended that the resolution of disputes by courts is a public good, to be paid for by the public, and not by one or both of the litigants. Courts, in this respect, are similar to public schools and hospitals, to voting and to the police. They provide general, not private benefits, and their costs should be borne by all, not by some.
Beyond this quest for a constitutional basis for the claim that there is something wrong with hearing fees, much of the debate was concerned with more practical matters. One was the role of exemptions for the less well-off litigants. All the parties arguing that hearing fees are constitutional claimed that the exemptions were an integral part of the fees scheme. Means-testing, they said, is not a new idea ― it happens all the time in the criminal context, when an accused person argues that government ought to pay for his or her lawyer’s services. And having a fee-and-exemption regime, they said, was much better than no fees at all, which would mostly benefit litigious corporations. Those opposing the fees, however, countered that while the fees were said to be imposed out of a concern for the efficiency of courts, requiring additional hearings into the litigants’ impecuniousness would only increase inefficiency, in addition to piling an additional burden on hard-up litigants. And then, there were concerns about the fairness and workability of inquiries into how people organize their finances, which would be necessary to determine who qualifies for an exemption. Justice Moldaver, at least, strongly suggested that this regime was “unworkable.”
The other more practical point that occupied much of yesterday’s argument was the effect of the hearing fees (or lack thereof) beyond the litigants required to pay them in individual cases. For the provinces ― especially B.C., of course ― the fees are a sensible way of rationing a scarce resource ― time in court. Escalating fees encourage litigants to conduct their cases efficiently, and thus free up time for everyone. The fees, even if they are a barrier for individual litigants, promote access to courts overall. Furthermore, if there were no hearing fees, there would be pressure to raise other fees (such filing ones) to help pay for the court system. Yet the hearing fees are not a rational way of promoting efficiency, countered the appellants. The length of a trial is not a good proxy for the parties’ diligence. A three-day trial, free under B.C.’s scheme, might still be much too long for a simple dispute; a twenty-day trial might be a model of good organization. And the party who has to pay the fees, the one who sets the matter down for trial, might not have the control over the trial’s length. Is it an arbitrary regime, asked Justice Moldaver? Yes, said the Trial Lawyers, as well as others.
All parties agree that, at least as a matter of political morality, it is wrong for people to be prevented from defending or asserting their legal claims by government-imposed fees. But that agreement cannot bridge the questions which the Supreme Court must now resolve. Who ought to pay for the operation of the courts? How ought these payments to be structured? And, most importantly, what ― if anything ― does the constitution have to say about that? For my own thoughts on what the Court should do, stay tuned.