I wrote yesterday about the oral argument which the Supreme Court heard on Monday in the case now known as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), formerly Villardell v. Dunham. At issue is the constitutionality of the “hearing fees” which British Columbia requires a litigant setting a civil case down for trial to undertake to pay. The first three days of the trial are free, the following seven cost 500$ each, and any additional day, 800$. That’s a lot of money, and while the province offers an exemption to those too “impoverished” to pay up, and accepts that “impoverished” can and ought to be interpreted as “in need,” various organizations representing the bar are arguing that the fee is unconstitutional, for one of a variety of reasons. Some of the reasons offered, which I discuss in more detail in yesterday’s post, do not persuade me. Yet there is an argument for the fees’ unconstitutionality that I find convincing.
All parties, including the B.C. government, agree that it is wrong for people to be prevented from having their day in court by the imposition of fees that they cannot pay. Not just wrong, indeed, but actually unconstitutional. The governments that defend B.C.’s hearing fees regime point to the exemption for the needy as its essential redeeming feature. But what is it that would make it unconstitutional to deny people a hearing if they cannot pay for one? The Charter, as the lawyer representing B.C. pointed out yesterday, does not protect any civil procedure rights, and section 96 of the Constitution Act, 1867, as he also pointed out, has so far only been read to protect the jurisdiction of, not to apply to the procedure before, superior courts.
Despite even the federal government taking the position that it is indeed s. 96 that would be affected by excessive hearing fees or insufficient exemptions, I am skeptical of this view, and of the broader separation of powers theme that was clearly discernible in some of the fees’ opponents’ arguments. The real issue is not that the courts are being interfered with, but that individual litigants are. I do not think it is wrong for legislatures to provide mechanisms of alternative dispute resolution, for instance, or even to encourage litigants to settle ― so long, as some of the parties noted, as this encouragement works by asking the parties to take a sober view of the merits of their case, and not by making it impossible to pursue it regardless of the merits. Too robust a view of s. 96 or of the principle of separation of powers would call such legislative efforts into question.
I am also skeptical of the argument, advanced by Joseph Avray on behalf of the advocates’ society, that the hearing fees are wrong because it is somehow impermissible for the government to charge for what is “a public good” ― understood not in its strict economic meaning, but simply as something that benefits society as a whole. Mr. Avray’s own examples show that his distinction does not work. He mentioned hospitals and schools ― but surely healthcare and education benefit the patients and the students first and foremost, as well as the public. And taking Mr. Avray at his word about education, does seriously suggest that any tuition fees in universities are unconstitutional?
That said, the idea that litigants do not profit by going to court is, I believe, correct and important. As I wrote here,
[o]nly a successful plaintiff gets something out of litigation – and even that is presumably something he was entitled to. A successful defendant doesn’t get anything, except at most a (partial) reimbursement of his fees – nor, a fortiori, a losing plaintiff or defendant.
(The one narrow exception to this, I suppose, is the plaintiff who wins punitive damages.)
The importance of this point is not, however, that it can be fashioned into a self-standing constitutional principle, but that it underscores that a litigant, whether plaintiff or defendant, comes to court not to gain a benefit, but to vindicate a right already conferred on him or her by law.
This is why the relevant constitutional principle is that of the Rule of Law. Although the Supreme Court has understood it very narrowly, even this narrow understanding encompasses the idea that “the relationship between the state and the individual must be regulated by law” (Reference re Secession of Quebec,  2 S.C.R. 217, at par. 71). This requirement is jeopardized if the government can thwart persons attempting to vindicate their legal rights, not by modifying these rights by “due process of law” (i.e. at least by enacting legislation that has this effect explicitly or by necessary implication) but by making their enforcement practically impossible.
A line of cases culminating in Air Canada v. B.C. (A.G.),  2 S.C.R. 539, to which unfortunately no party referred on Monday, illustrates this principle. Air Canada wanted to challenge the constitutionality of a law enacted by the B.C. legislature but, under old rules for suing the Crown, required a fiat ― a permission ― from the Lieutenant-Governor to do so. The provincial government advised the Lieutenant-Governor not to grant the fiat. The Supreme Court held that neither a statute nor an exercise of executive discretion (whether authorized by statute or by the royal prerogative) can be used to deny a person the means of asserting his or her constitutional rights, and thus indirectly abrogating them. Air Canada and its predecessors were constitutional cases, resting (implicitly) upon the principle of constitutionalism, but in my view it is but a small step to extend this application of constitutionalism to its cousin the Rule of Law, to which it “bears considerable similarity,” as the Supreme Court recognized in the Secession Reference (par. 72).
As I wrote here,
Our legal rights arise under the constitution, statutes, or the common law. Superior courts have jurisdiction over both constitutional and common law rights, as well as many statutory rights … Provincial legislatures cannot modify constitutional or federal statutory rights. They can modify or even extinguish rights arising under provincial statutes or the common law but, generally speaking, must do so in clear terms. … Making it impossible for people to go to court to vindicate their rights arguably amounts to their de facto abolition – yet the province cannot abolish constitutional and federal statutory rights, and further, it is abolition by stealth, which is not permissible even for provincial statutory and common law rights.
This, it seems to me, is the problem with hearing fees. Their effect, at the very least, and arguably even their purpose, is to prevent people from vindicating their legal rights whenever this vindication requires more time in court than a litigant can afford, which is contrary to the Rule of Law requirement that our relationships the government (and, to some considerable extent, with each other!) be structured by law.
Importantly, this requirement, and thus the approach based on it, does not depend on the nature of the litigants, as both the exemption regime defended by B.C. and other governments and the attempt to ground a right of access to courts in s. 7 of the Charter do. These approaches mean that it is perfectly fine to deny a small business or an NGO the right to go to court ― because such entities can neither be “impoverished” in any normal sense of the word nor benefit from s. 7 rights. Yet it seems to me that it is no less wrong to prevent them from asserting what they believe to be valid legal claims than it is to do so with individuals. Legal rights are rights regardless of what sort of person or entity happens to hold them, and the Rule of Law principle appropriately recognizes that.
Will the Supreme Court go that way? I wouldn’t bet on it. The Court has often been reluctant to rely on underlying constitutional principles, except that of judicial independence. Still, I think that this approach is at least as close, and probably closer, to the bounds of its precedents as any other that was proposed to it on Monday. The Rule of Law is, admittedly, a somewhat Protean and very contested concept, and Ontario’s lawyer had a point in arguing that to some considerable degree, it an aspirational principle the implementation of which must be left to legislatures. Still, if it is to mean anything, the Rule of Law must include the ability of citizens to claim what the law says is theirs. A government that abides by the Rule of Law can be allowed to deny them this right.