Through Which Glass, Darkly?

Introducing a new article on the Rule of Law in two decisions of the supreme courts of Canada and the United Kingdom

I followed the challenge to the “hearing fees” that British Columbia imposed on litigants who wanted to have their day in court ― or at least their days, since an initial period was free of charge ― from its beginning as Vilardell v Dunham, 2012 BCSC 748 and to its resolution by the Supreme Court of Canada as Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, writing almost a dozen posts in the process. And then the Supreme Court of the United Kingdom decided a case that was remarkably similar to Trial Lawyers, R (Unison) v Lord Chancellor, [2017] UKSC 51, [2017] 4 All ER 903, which involved a challenge to fees charged for access to employment law tribunals. I blogged about that decision too.

The two supreme courts came to similar conclusions: the fees were invalidated in both cases, out of a concern that they prevented ordinary litigants who could not afford them from accessing the forum where their rights would be ascertained. In Trial Lawyers this was said to be a violation of section 96 of the Constitution Act, 1867; in Unison, of a common law right of access to court. Yet there was a striking contrast between the two decisions, and specifically between the ways in which they treated the Rule of Law. Trial Lawyers discusses this constitutional principle, but as something of an embarrassment, in the face of a scathing dissent by Justice Rothstein, who argues that it should not have discussed the Rule of Law at all. (He still does ― in his keynote address at this year’s Runnymede Conference, for example.) Unison‘s discussion of the Rule of Law, as a foundation of the right of access to court, is much more forthright, and sophisticated too.

This got me thinking. The result is an article that has been accepted for publication in the Common Law World Review, and which I have already posted on SSRN: “Through Which Glass Darkly? Constitutional Principle in Legality and Constitutionality Review“. The main idea is that what explains the difference in the depth and confidence with which the two courts treated the Rule of Law is that constitutional review, despite its power, is bound to be precarious in the absence of an on-point text, while legality review, although seemingly weak in that its outcome can be overturned by statute, actually makes compelling discussion of unwritten principle possible. Here is the abstract:

This article seeks to draw lessons from a comparison between the ways in which the Rule of Law is discussed in cases decided by the supreme courts of Canada and the United Kingdom on the issue of allegedly excessive fees levied on litigants seeking to access adjudication. After reviewing the factually quite similar cases of Trial Lawyers Association of British Columbia v British Columbia (Attorney General) and R (Unison) v Lord-Chancellor and it detailing these decisions’ respective constitutional settings, the article argues that, in contrast to the cursory treatment of the Rule of Law by the Supreme Court of Canada, the UK Supreme Court’s discussion is sophisticated and instructive. This suggests that legality review based on common law rights, which is not focused, and does not try to establish a connection, however tenuous, to an entrench constitutional text, may well allow for a more forthright and enlightening discussion of the principles at stake. Thus it follows that, in constitutional systems that feature strong-form judicial review based on entrenched texts, when regulations and administrative decisions are at issue, legality review should not be neglected. In those systems where strong-form judicial review is not available, legality review should not be regarded as an anomalous ersatz.

While I have argued here that Canadian courts can legitimately base their constitutional decisions on unwritten principles, rather than explicit textual provisions, in some circumstances, I do think that legality review (which, of course, Justice Cromwell favoured in Trial Lawyers) should be considered more often. Our law would be the richer for it.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

One thought on “Through Which Glass, Darkly?”

  1. At the end of your first paragraph above you refer to “fees charged for access to employment law tribunals”.

    That has me thinking again about the fees the British Columbia Labour Relations Board charges. The LRB’s web page about this – http://www.lrb.bc.ca/guidelines/lrbfeepayment.htm – links to this government Regulation – http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/10_395_2003, which I must admit I hadn’t previously seen.

    I knew about the filing fees – $100 for all but section 141 filings, which are $200. Is it conceivable that this could be challenged in court? Some people would say it’s not worth challenging such small sums.

    But my perspective is informed by putting this into the context of which I am aware. What other B.C. tribunals are authorized to charge such fees, and why were these ones introduced when they were? I can’t prove that this initiative had anything to do with my case. But the record shows that the LRB responded dramatically to the success I enjoyed with a BCSC decision issued in January 2003. The response included the Board’s bizarre “Judd” decision issued the next month. The board assigned my case to another Vice Chair (#5) who used an array of tactics to delay getting anything accomplished, but finally agreed to an in-person hearing that was scheduled for November 24. It was cancelled with this decision – https://www.canlii.org/en/bc/bclrb/doc/2003/2003canlii62734/2003canlii62734.html.

    That wasn’t the end of the litigation.

    I was of the view at the time that the introduction of filing fees – albeit nominal sums – was just one more tactic to dissuade the almost invariably self-represented duty of fair representation complainants. If this was the first implementation of filing fees for B.C. tribunals I wouldn’t be surprised if they were subsequently introduced for other tribunals. Something else I’ll have to check into.

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