This morning, the Supreme Court of Canada has released its judgment in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case. A five-judge majority led by the Chief Justice holds that although a province can, in principle, impose some form of fees for access to courts, the fees British Columbia levied on litigants who set their cases down for trial in the province’s courts, escalating to 800$ per day starting on the 10th day of a trial, are an unconstitutional interference with the core jurisdiction of superior courts protected by s. 96 of the Constitution Act, 1867 as interpreted in light of the Rule of Law principle. Justice Cromwell, concurring in the result, would have held that the rules imposing the fees are, in their present form, not authorized by their enabling legislation, and thus invalid. Justice Rothstein, dissenting furiously , would have found that the fees are constitutional. In this post, I will summarize the majority decision and the dissent (setting aside Justice Cromwell’s concurrence). I will comment in a separate post.
The Chief Justice holds that, as a general matter, provinces are allowed to impose hearing fees, as well as fees of other sorts, on people who go to court, pursuant to their power under subs. 92(14) of the Constitution Act, 1867, to “make Laws in relation to … [t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of the Provincial Courts.” While there is a right of access to courts, its exercise can be subject to conditions. Fees “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” (par. 21). The Chief Justice rejects the distinction that the appellants and some interveners defended at oral argument between hearing fees and fees of other kinds (such as filing fees) which courts in every province levy. The real issue, for her, is not “the type of the fee,” but whether the effect of its imposition is “to deny certain people access to the courts” (par. 22).
According to the Chief Justice, that consequence, a denial of access to courts, is prohibited by s. 96 of the Constitution Act, 1867 which acts as a limit on the province’s power over the administration of justice. On its face, s. 96 merely provides that the federal government is responsible or appointing the judges of superior courts. But it has long been held to imply the existence of an irreducible core of jurisdiction in these courts as well, which the provinces (or Parliament) cannot take away from them. The Chief Justice holds (par. 32) that hearing fees can have that effect:
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.
Thus hearing fees (or, presumably, any other court fees), cannot constitutionally “deny people the right to have their disputes resolved in the superior courts” (par. 36).
For the Chief Justice, “this suffices to resolve the fundamental issue of principle in this appeal” (par. 38). Nonetheless, she also explains at some length that her conclusion is also supported by the constitutional principle of the Rule of Law. The Rule of Law requires that people be able access courts, which in the Canadian constitutional framework means first and foremost superior courts. The Chief Justice argues (par. 40) that
[i]n the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as 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.
The Chief Justice concludes (par. 42) that
[t]he right of the province to impose hearing fees is limited by constitutional constraints. In defining those constraints, the Court does not impermissibly venture into territory that is the exclusive turf of the legislature. Rather, the Court is ensuring that the Constitution is respected.
Any fees for access to courts, the Chief Justice says, cannot “cause undue hardship to the litigant” (par. 45) ― that is, they cannot “require litigants … to sacrifice reasonable expenses in order to bring a claim” (par. 46). If hearing fees are imposed, they “must” (par. 48)
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.
The BC hearing fees regime, the Chief Justice holds, does not pass this test. It provides an exemption from fees for litigants who are “impoverished,” but the economic evidence is that the fees are so high that even those who would not ordinarily cannot be called poor cannot really afford them. It will not do to simply read the word “impoverished” broadly enough to cover middle-class litigants unable “to pay a fee that amounts to a month’s net salary” (par. 59). Requiring litigants to apply for the “impoverishment” exemption is also problematic because it may be “an affront to dignity and imposes a significant burden on the potential litigant of adducing proof of impoverishment” , a burden that will be worse in less “clear cases of impoverishment” (par. 60). Furthermore, the current escalating fees regime does not really promote efficient litigation. It penalizes those whose trials are long, not necessarily those whose trials are inefficient, and requires payment from a party who may not even have the control over the trial’s length, a problem which the possibility of an eventual compensation by way of an award of costs does not really address.
The Chief Justice considers the possibility of broadening the exemption for “impoverished” litigants by reading in the the terms “in need,” as the Court of Appeal had done, but rejects it. It is not clear, in her view, that the provincial legislature or government would have taken that approach, nor is it clear that even the broader exemption would be sufficient. The Chief Justice decides “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” (par. 68).
To Justice Rothstein, this is a usurpation (though he is too polite to use this word) of the “territory that is quintessentially that of the legislature” (par. 82). In his view, “there is no express constitutional right to access the civil courts without hearing fees” (par. 81), and absent a violation of such a clear constitutional right, courts ought to stay away from policy disagreements ― including, in this case, a policy disagreement about who should pay for the judicial system, and how. For Justice Rothstein, the conclusion that s. 92(14) of the Constitution Act, 1867, authorizes the imposition of hearing fees should be the end of the matter. He “take[s] exception to the majority striking down the British Columbia hearing fee scheme on a novel reading of s. 96 and the rule of law” (par. 85); “free (or at least affordable) access to courts is a laudable goal” (par. 86), but one for the political branches of government to realize as they see fit.
In Justice Rothstein’s view, the hearing fees do not trench on the superior courts’ core jurisdiction; limits on access are not the same thing as removals of jurisdiction. “The hearing fees,” he concludes, “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” (par. 90). Justice Rothstein faults the majority for not applying the existing test to determine whether the core jurisdiction of s. 96 courts is infringed, effectively accusing it of abandoning the law because it does not support its preferred conclusions.
Justice Rothstein is similarly unimpressed with the majority’s invocation of the underlying principle of the Rule of Law. Underlying principles might serve to fill “gaps” in the constitutional text, but there is no gap here. The constitutional text, which includes specific rights of access to courts in Charter and criminal cases, but not in other situations, must remain supreme. “In using an unwritten principle to support expanding the ambit of s. 96 to such an extent,” Justice Rothstein says, “the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text” (par. 93). Moreover, the right of access derived from s. 96 is “absolute” and not subject to the limitations and derogations which apply even to “fundamental” rights under the Charter. Justice Rothstein also points out that in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49,  2 S.C.R. 47, the Supreme Court had suggested that the Rule of Law cannot serve to strike down legislation on the basis of “its content.” To do so is to undermine both the power of the democratically elected legislatures and the certainty of the written constitution provisions.
Besides, Justice Rothstein argues, the hearing fees do not really have the unfortunate effects which the majority attributes to the. The exemption for “impoverished” litigants can apply “where the hearing fees themselves would be a source of impoverishment” (par. 107). Cost awards can offset some the impact of the hearing fees. And courts themselves have a responsibility to keep trials short, thus reducing the amount of hearing fees due. Long (and thus costly) trials are exceptional, and should be even more so, something the fees can help achieve. Finally, Justice Rothstein points to the inconsistency of the majority’s saying both that judges must have discretion to waive any hearing fees and that the process of applying for such an exemption may be a burden and an affront to the dignity of the litigants.
Justice McEwen at first instance, argued that “some things,” including access to civil courts, “are not for sale.” The Court of Appeal in effect held that selling access to courts is fine so long as it is given away for free to those “in need.” For its part, the majority of the Supreme Court seems to have some misgivings about the sale of access, but concludes that it is tolerable provided that the price is not too high. But its decision leaves some important questions unanswered, as I will argue in my next post. It also rests on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s. This is, on the whole, a very unsatisfying case.