How different constitutional orders respond to attempts at denying citizens access to adjudication

The UK Supreme Court recently delivered a judgment that will, I think, be of interest to those Canadian readers who have not yet heard of it. That is because the case, R (Unison) v Lord Chancellor [2017] UKSC 51, arises out of circumstances that are fundamentally similar to those of the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. Trial Lawyers, which I summarized here, concerned a challenged to the fees that litigants had to pay for each day they argued their cases in the (trial) Supreme Court of British Columbia. Unison involved fees imposed on litigants who took their cases to tribunals charged with the resolution of employment law disputes. But the ways in which the courts addressed the legal issues highlights the differences both between the respective constitutional frameworks of Canada and the UK, and between the courts’ understandings of their roles within these frameworks.

In Trial Lawyers the majority addressed the constitutionality of hearing fees, concluding that, if they are set so high as to prevent people accessing superior courts, they would contravene section 96 of the Constitution Act, 1867, which had previously been held to protect the “core” jurisdiction of the courts to which it refers. While the Chief Justice’s opinion, for the majority, also addressed the principle of the Rule of Law, it invoked this principle only as additional support for its conclusions ― Justice Rothstein’s accusations to the contrary notwithstanding. Only Justice Cromwell, in his concurrence, proposed deciding the case on administrative law grounds, and would have held that since the hearing fees were imposed by delegated legislate made pursuant to a statute that preserved the common law right of access to courts, they could not validly interfere with this right. Yet interfere with it they did, and they were therefore invalid for that reason.

By contrast, Unison was decided on administrative law grounds ― and the principle of the Rule of Law was central to the UK Supreme Court’s reasoning. Having concluded that, as a matter of empirical fact (on which more below), the fees at issue deter substantial numbers of people from pursuing their claims, the Court asked itself whether “the text of” the statute pursuant to which the fees were imposed by the executive, “but also the constitutional principles which underlie the text, and the principles of statutory interpretation which give effect to those principles”  [65] provided authority for setting the fees at their  current level. The relevant principles included, in particular, “the constitutional right of access to justice: that is to say, access to the courts (and tribunals …)”, [65] which in turn is an aspect of the Rule of Law. They also included the idea that rights granted by a statute cannot be nullified by delegated  legislation purportedly authorized by a different statute.

The Court began with what Mark Elliott, on his excellent Public Law for Everyone blog, described as

a primer — albeit a very powerful one — on what the rule of law means … . Indeed, it is difficult to escape the conclusion that the Court felt it necessary to drive home some very fundamental propositions — ones that should not really need to be driven home — because the Government’s position indicated ignorance of or contempt for them.

As part of this “primer”, the Court emphasized that

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. … In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other. [65]

In the course of adjudicating disputes, courts both ascertain important legal principles and provides the assurance that “[p]eople and businesses … will be able to enforce their rights if they have to do so, and … that if they fail to meet their obligations, there is likely to be a remedy against them.” [71] For this assurance to be effective, “people and businesses” must be able to take their disputes to courts or tribunals, if need be.

Given the importance of access to courts and tribunals, “any hindrance or impediment
by the executive requires clear authorisation by Parliament”, [78] and the authorization will only be taken to extend so far as the achievement of its purposes requires. As Parliament did not clear empower the executive to levy fees that would prevent litigants from accessing tribunals, and as the fees at issue had precisely that effect, they must be held not to have been authorized by the statute under whose purported authority they were imposed. In addition, they “must be regarded as rendering … nugatory” [104] the rights which the tribunals are supposed to enforce, thought in the Court’s view this point this point overlapped with the Rule of Law one.

It is tempting for people used to constitutional frameworks where legislation can be invalidated for inconsistency with the supreme law to look down on a decision based on administrative law grounds, which can be overridden by legislation. Indeed, even prof. Elliott writes that “for all that the case represents a striking and robust reaffirmation of fundamental constitutional principles, it also hints at — or least raises questions about — the limits of those principles” ― within the UK constitutional context, that is. After all, if the UK executive insists on collecting prohibitive tribunal fees, it can (try to) get Parliament to enact them into statute, or explicitly allow fees to be set at levels that will result in impeded access. If the UK Parliament does either of these things, there can probably be no challenge to its decision within the UK’s internal legal order, subject to courts taking up the occasional musings of some judges about limits to Parliamentary sovereignty ― an unlikely, and at least arguably an undesirable prospect. (Prof. Elliott, mixing metaphors somewhat, describes as a “nuclear option”, and says that “we will cross this bridge if we ever come to it, while fervently hoping that we never do”.) It is better, we might be tempted to say, for courts to have at their disposal the more powerful weapons that an entrenched constitution, like that of Canada, can provide.

But, while there is a good deal of truth to this view, it is not the whole truth. Prof. Elliott suggests that

in some constitutional orders … administrative orders incompatible with the right of access to justice would be unlawful — because the constitution would withhold the authority to legislate in breach of such a fundamental right.

But things might not be so simple. Prof. Elliott does not say what “constitutional orders” he has in mind, but at least in the Canadian constitutional order, it is by no means clear that the constitution withholds the right to legislate in breach of the right of access to justice. In commenting on Trial Lawyers here, I said that not only does the reasoning of the majority opinion in Trial Lawyers “rest on shaky foundations” whose weaknesses are brutally exposed by Justice Rothstein’s dissent, but they “leave some important questions” ― questions about the limits of the constitutional principles that it applies ― “unanswered”. In particular, it is very doubtful that the right of access to superior courts constiutionalized in Trial Lawyers extends to provincial court and to administrative tribunals  (which is to say, to the sort of decision-maker at issue in Unison!), to which section 96 of the Constitution Act, 1867, on which that decision ostensibly rests, does not apply.

The legitimacy of judicial interventions to uphold fundamental constitutional principles can be questioned not only in constitutional systems that acknowledge Parliamentary sovereignty, but also in those that allow for judicial review of legislation ― if not in principle, then in (almost) any given case. The best answer to such questions is, of course, the existence of a clear constitutional provision in which the intervention at issue  can fairly be rested. In the absence of such constitutional authority, judges are apt to grasp at textual straws, and, at the risk of also mixing metaphors, we know that a house built of straw can easily be blown away. In short, the existence of an entrenched constitution does not always make for very solid decision-making.

Indeed, Unison has at least one substantial advantage over Trial Lawyers. Its discussion of the Rule of Law principle is relatively extensive and forthright. The UK Supreme Court makes no apologies about the Rule of Law being central to its decision. The majority opinion in Trial Lawyers, however, approached the Rule of Law somewhat gingerly, and insisted that it is not the main basis for its decision ― though this was not enough to mollify Justice Rothstein, who claimed that

[i]n 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. [93]

For my own part, I have argued here that Trial Lawyers should, and could have been decided on the basis of the Rule of Law principle ― though my argument was a version of the “no making rights nugatory” one that the Unison Court only briefly addressed. Perhaps the Supreme Court of Canada did not address it only because it was not put it by the parties. (The cases on which it rests in the Canadian context are not well known, I suspect.) Perhaps it would have found this argument unconvincing in any event. But I suspect that the Trial Lawyers majority would have hesitated to enlist this argument even if it were convinced by it, due to the sort of concern to which Justice Rothstein appealed (unpersuasively in my view). As Jeremy Waldron observed in “The Core of the Case against Judicial Review”, constitutional adjudication under an entrenched text is liable to pay more attention to the text than to fundamental principle. In my view, this is not always a bad thing ― but it is, admittedly, not always a good one either.

Before concluding, let me note another point of contrast between Trial Lawyers and Unison: their respective treatment of empirical data. The majority opinion in Trial Lawyers is a fairly abstract one, in the sense that its focus is very much on the legal issues. It only briefly alludes to the personal circumstances of the original plaintiff in the case, pointing out that she was “not an ‘impoverished’ person in the ordinary sense of the word” (which made her ineligible for an exemption from the fees at issue). In Unison, meanwhile, statistics and data-based hypothetical scenarios intended to expose the effect of the fees at issue take up an important place in the judgment. The Court reviewed in considerable detail the nature of the disputes to which the fees at issue applied, with the aim of showing that most of them involved parties of limited means seeking to recover small amounts (or, in some cases, to obtain non-pecuniary remedies), as well as the financial effects of these fees on economically vulnerable litigants. The Court linked the precipitous drop in the number of disputes heard to the deterrent effect of excessive, and rarely recoverable, fees, providing the factual underpinning for its legal reasoning. Later on, it also discussed the fees’ failure to raise much revenue, concluding that “it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated”. [100] In that way, Unison is similar to cases that are part of what I have been discussing here, using Kerri Froc’s label, as the  “empirical turn” in Canadian constitutional law ― while Trial Lawyers was not.

Despite originating in fairly similar circumstances, then, Trial Lawyers and Unison are quite different decisions. Each has its own logic and responds to its own concerns. But it is also true that they are both parts in delivering a unified message: that of the common law courts’ endorsement, sometimes ringing and sometimes more muted, of the value of access by the citizens to the adjudication of rights claims. Beyond the differences of strictly legal issues and methods, there is a single theme: that, as a matter of political morality, a state that purports to respect and even to create rights must not prevent citizens from asserting them.

Unintended Consequences?

When I commented on the oral arguments in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, I argued that although there was a good deal of support among the various parties and interveners for the proposition that it was section 96 of the Constitution Act, 1867, that rendered (excessive) court fees unconstitutional, this argument was problematic. Among other things, I worried that “[t]oo robust a view of s. 96 or of the principle of separation of powers would call … legislative efforts [to provide mechanisms of alternative dispute resolution, for instance, or even to encourage litigants to settle] into question.”

In the event, the Supreme Court decided the case on the basis of s. 96, holding that excessive fees were an interference with the “inherent jurisdiction” of superior courts. In criticizing that decision, I argued that “the fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction [because i]f it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.” In a post published on À bon droit last week, Olga Redko expands on these concerns, arguing that

the majority’s opinion raises the concerning possibility that the Court’s new reading of section 96 in conjunction with the rule of law principle may be used to undermine existing provincial authority over access to alternative dispute resolution, and private international law more generally.

Ms. Redko worries that the principle set out in Trial Lawyers could be invoked by a party seeking to get out of an agreement to arbitrate or a choice of forum clause giving a foreign court jurisdiction over a dispute that might be subject to the jurisdiction of the courts of a Canadian province. As she points out,

[c]ontractual clauses sending parties to binding arbitration, or designating other provincial or state courts to resolve the dispute, clearly have the effect of denying a party the right to bring a case before the Quebec Superior Court. They arguably lead to the same result with which the Court is so concerned in Trial Lawyers Association, namely hampering the creation, maintenance, and interpretation of positive laws within the province [by its superior courts].

What is more, in Ms. Redko’s view, because of the problem of state action, the principle would not apply in the same way in the provinces where agreements to arbitrate and choice of forum clauses are enforceable pursuant to legislation and those where they are so at common law. Other rules whose effect is to limit access to courts may be called into question as well. Ms. Redko concludes that

[w]e must hope that, in light of the problems presented by such an expansive view of superior courts’ inherent jurisdiction, in future cases the Supreme Court will be very careful in broadening its interpretation of what constitutes an infringement of section 96.

I obviously agree with this conclusion. However, I am perhaps more confident than Ms. Redko that the potential problems which she and I have flagged will be avoided. The idea of state action, I believe, will actually play a constructive role in distinguishing those barriers to access to superior courts that contravene s. 96 and those that do not.

If I understand her correctly, Ms. Redko assumes that in future s. 96 cases, courts apply the rule from the Charter jurisprudence, which distinguishes common law rules from from legislated ones, the Charter only (directly) applying to the latter, and not the former. For my part, I see no reason for this belief. The rule that the Charter does not apply to private common law rules is grounded in the text of s. 32 of the Charter itself, and has nothing to do with s. 96. Although that case did not involve s. 96, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Supreme Court showed that it is aware of the possibility that judicially-created rules will undermine access to justice. I trust that it would treat them in the same way as legislated rules in the context of future s. 96 litigation.

The way the idea of state action will impact such litigation is, I expect ― though perhaps I just hope ― will be to justify a distinction between barriers to access to superior courts created by the government itself ― whether by its legislative, its executive, or its judicial branch ― and those agreed to by the parties themselves. In light of the Supreme Court’s recent jurisprudence which, as Ms. Redko notes, “underscored the importance of respecting parties’ autonomy to select a mutually agreeable forum,”  I cannot believe that courts will treat choice of forum or arbitration clauses as equivalent to hearing fees. Courts will, I trust, recognize that rules of law that give effect to the parties’ intentions are different from those that hinder them.

I also think Ms. Redko somewhat misunderstands the concern of the Trial Lawyers majority with “the creation and maintenance of positive laws” (par. 40) by provincial superior courts. According to the majority,

In 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.

In the context of this paragraph, and of the opinion more generally, I think that “cannot” must be understood as “are prevented by the state from.” The worry is not about the litigants who choose to take their cases elsewhere, but about those who are left with no choice.

But there is also an intermediate class of situations, where parties are given a choice to go to a superior court, but are “nudged” or pressured not to exercise it. I am thinking, in particular of rules designed to encourage parties to settle their disputes, for example by making a party that refuses a reasonable offer to settle responsible for costs even if it wins the case on the merits. This issue was raised at oral argument in Trial Lawyers, and it is true that an expansive reading of that decision might be used to argue for the invalidity of such rules, since both their purpose and, surely, their effect, is to make some litigants forgo trials. But somehow I rather doubt that the Supreme Court would accept such an application of Trial Lawyers.

That said, these are just my guesses. I could be wrong. And even if I am right, Ms. Redko’s important post certainly shows that the constitutional theory adopted by the majority in Trial Lawyers is poorly thought through. It is susceptible of interpretations that are both undesirable from a policy perspective and inconsistent with the Supreme Court’s own recent jurisprudence. The Court’s poor choice of theory may yet turn out to be inconsequential, but it is unfortunate all the same.

Neither Here Nor There

I have summarized the Supreme Court’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, here. Over a furious dissent by Justice Rothstein, the Court held that while provinces can impose some hearing fees, the fees cannot constitutionally result in “undue hardship” on litigants, preventing them from asserting their legal claims. The Court found that the B.C. fees do not pass this test, and declared them unconstitutional. As I wrote in the conclusion of my earlier post, the majority’s reasons leave some important questions unanswered. They also rest on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s.

Perhaps most significantly in practical terms, the majority’s reasons do a poor job of answering the question of what fee or fee and exemption structure is constitutionally acceptable. The threshold the majority sets out for the acceptability of hearing fees ― that they must not cause “undue hardship” to litigants or make them “sacrifice reasonable expenses” ― strikes me as quite vague.

It also seems to have been formulated with only individual litigants in mind. But what about corporations? Not big corporations for which litigation is just another business expense, but small businesses ― say a convenience store engaged in a dispute with a supplier ― or non-profits? I suspect that to such litigants, the BC hearing fees can represent a significant expense, and perhaps a prohibitive one in some cases. But how will the “undue hardship” and “reasonable expenses” tests apply to them? Yet the majority’s rationale for finding some fees unconstitutional, which is that they interfere with the courts’ core jurisdiction and the Rule of Law, ought to apply to corporate litigants as well as to individual ones.

Most importantly, Justice Rothstein is right to point out that the majority’s pronouncements on the role that exemptions from fees can play in a constitutional hearing fees scheme are contradictory. As he explains, the majority says that “as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees” (par. 48), while also saying that making litigants “come before the court, explain why they are indigent and beg the court to publicly acknowledge this status and excuse the payment of fees” (par. 60) can be demeaning and burdensome. Whether the exemption is framed in terms of “impoverishment” or “undue hardship” changes nothing to this fact; nor does it alleviate the majority’s “concern the exemption application itself may contribute to hardship” (par. 60). It is perhaps worth recalling that, as I noted at the time, at oral argument Justice Moldaver seemed convinced that an exemption regime was “unworkable.” The majority reasons (which Justice Moldaver signed on to!) do not really address this concern.

And then, there’s the question of whether a province could impose fees for hearings in provincial court (to which s. 96 of the Constitution Act, 1867, does not apply). Or, for that matter, in administrative tribunals. Now even British Columbia seems not to impose hearing fees in provincial courts, so this particular question might be purely academic but, at least in theory, anchoring the protection of access to adjudicative fora in s. 96, as the majority does, seems to suggest that access to other adjudicators ― which, no less than superior courts, even if under their supervision, engage in the determination of private and public law rights of individuals ― is not protected.

Beyond these practical worries, which may end up generating yet more costly and time-consuming litigation if British Columbia or some other province imposes fees coupled with an “undue hardship” exemption, the majority’s reasons are theoretically weak. Section 96 is a very dubious ground on which to rest a conclusion that hearing fees are unconstitutional. Justice Rothstein is quite right that the fees do not “limit the type of powers [s. 96 courts] may exercise.” They do not, in other words, interfere with these courts’ jurisdiction as it had been understood in the s. 96 jurisprudence, which has always been concerned with the removal of types of cases (e.g. judicial review of administrative tribunals) from the superior courts’ purview. The fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction. (If it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.) As I have argued before, “the real issue [with the hearing fees] is not that the courts are being interfered with, but that individual litigants are.”

In the post just quoted, I argued that the Court should resolve the case on that ground, because hearing fees have the effect of preventing litigants from asserting their legal rights, which legislatures cannot abrogate, if at all, without clearly stating their intent to do so ― something the hearing fees do not do. So I am happy that the majority discusses the rule of law, even though it does not make that principle the main ground for its decision, and doesn’t go as far as the I would have liked. The majority is right that there cannot be a Rule of Law if people cannot assert their rights in court, and that “[i]f 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” (par. 40). To my mind, that ― rather than s. 96 of the Constitution Act, 1867 ― is the key to resolving “the fundamental issue of principle” regarding the constitutionality of hearing fees, all the more since there is already a line of cases, culminating in Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, standing for the proposition that legislatures or governments cannot indirectly deny citizens’ constitutional rights by preventing them from asserting them in court. Unfortunately, the majority does not mention this jurisprudence (which was also ignored by the parties and the interveners). Instead, it tries to link the Rule of Law to s. 96, but the connection seems to me awkward and unconvincing.

It is, perhaps, an attempt to rebut Justice Rothstein’s criticisms, though the majority opinion never addresses his dissent directly. But while I share Justice Rothstein’s skepticism at the majority’s reading of s. 96, I think that his brutal attack on its reliance on the Rule of Law misses the mark. Justice Rothstein argues that an unwritten principle, especially one so “vague and fundamentally disputed” (par. 100) as the Rule of Law, cannot justify striking down laws on the basis of their content. But it’s not the substance of a law that is at issue with the hearing fees ― it’s the fact that litigants will be unable to assert or defend their rights under any law, whatever its content. In Jeremy Waldron’s terminology, the conception of the Rule of Law that is at issue here is neither a substantive nor a formal one (both of which the Supreme Court had rejected in the past), but a procedural one. Justice Rothstein, in my view, has no answer to the majority’s point that allowing hearing fees to prevent people from defending their legal rights places the government above the law, which the Court had already said would be a Rule of Law problem.

More generally, Justice Rothstein’s approach to constitutional interpretation is unconvincing. His position is an absolutist one ― since hearing fees are not prohibited by the constitutional text, they are permissible, whatever their consequences. Yet even the B.C. government did not take that view and accepted, at oral argument, that in the absence of a suitable exemption, fees could create a constitutional problem. Justice Rothstein’s paeans to democracy mask the fact that the fees are imposed by the rules of court, not by legislation actually enacted by elected representatives of the people. They also ignore the problem of near-total ignorance of access to justice issues by the electorate, which I describe here.

The majority, at least, ends up in the right place, more or less, although its reasons leave a lot to be desired from a theoretical standpoint and fail to answer many important practical questions. Justice Rothstein makes some important points in criticizing them, but his critique ultimately fails.

For Sale, at the Right Price

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, [2005] 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.

Shifting the Culture of Rationing

As Justice Karakatsanis observed in the opening paragraph of her reasons (for the unanimous Supreme Court) in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87  “[t]rials have become increasingly expensive and protracted.” For the Supreme Court, the length and expense of trials is an access to justice problem. But (at least some) provincial governments, notably that of British Columbia, see it primarily as a budgetary problem, in that court time is a demand on the public purse ― it requires the presence of judges, court officers and other employees, the operation of buildings, etc. Accordingly, the BC government has chosen to ration court time by requiring parties who set their cases down for trial to pay escalating “hearing fees” which increase sharply if their trials get longer. The Supreme Court is now considering constitutionality of these fees, in a case about which I have written quite extensively.

A decision of Ontario’s Superior Court of Justice, Bosworth v. Coleman, 2014 ONSC 4832, delivered last month but recently highlighted by Allan Rouben, is interesting because it might help us see some of the issues the hearing fees litigation raises from a somewhat different perspective. To borrow Mr. Rouben’s description of the case, it was

a motion to enforce an agreement between the parties to limit the length of [a] trial to ten days, in exchange for the plaintiff agreeing to cap the damages. In Toronto, trials of ten days or more are placed on a long trial list and this can result in a much longer wait time for a scheduled trial. When the defendant appointed new counsel who considered the trial would take more than fifteen days, the proper management of the trial came back before the Court.

Justice Myers’ response (paras. 12-15; emphasis in the original) is worth quoting at length:

Before me, the defendants’ counsel submitted his honestly held professional view, as an officer of the court, that the trial would take more than 10 days to complete.  While I accept this view, I reject the premise underlying it.  That is, the trial will likely take more than 10 days if it proceeds in the ordinary manner in which the civil trial bar is used to proceeding.

[I]t is no longer appropriate to rest upon the historic way of doing things.  Doing things as we have always done them has created a crisis of access to justice (or inaccessibility of justice).  The Supreme Court of Canada recognized the challenge of ensuring access to civil justice in Canada … In Hryniak … at para. 1, Karakatsanis J. said that the system as we know it is broken:

Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted.

In this case, it is not the court that has sought to improve the accessibility to justice for the parties.  Rather, the parties did so themselves [by agreeing to limit the length of their trial]. …

As submitted by [the plaintiffs’ lawyer], the effect of the agreement was to take the delay, expense and distress of a long trial off the table. The issue is not whether the defendants’ counsel thinks that the trial, if conducted in a particular way, would take longer than 10 days.  Rather, the question is: can justice be achieved for the parties in a timely, affordable and efficient manner through cooperation by counsel and with assistance from the court?

In Hryniak, Justice Karakatsanis spoke of a “culture shift” that is necessary in order to make civil justice ― including the resolution of civil disputes by judges ― accessible to ordinary Canadians. Justice Myers’ opinion in Bosworth, says Mr. Rouben, is an illustration of what this culture shift will look like. It will take some effort from everybody. As Justice Myers explains (para. 21),

Improving access to the civil justice system requires all users of the system (litigants, counsel, judges and administrators) to focus on ensuring that the system provides fair and just processes short of the unaffordable, painstaking trial of yester-year.

Lawyers need to work harder, because “[i]t may take more work for counsel to prepare a short examination” than to just “raise every possible issue and ask every possible question” (para. 22). In addition (para. 23, footnote omitted),

it is very much the role of the court and the clients to promote access to justice by working with counsel to make trials shorter, run more efficiently, and thereby more affordable, timely and proportionate. For their part, judges will have to be prepared to increase their involvement and time commitment to assist the parties and counsel in case management.  This will require appropriate administrative support as was also recognized by Karakatsanis J. in Hryniak.

In short (para. 24, emphasis added),

the court should strain to assist parties with defining processes that make the civil justice system affordable and accessible for themselves as long as the result is consistent with the fair and just resolution of the dispute on the merits.

The reason I am quoting Justice Myers at such length is that his decision, even as it tends to the same end as the BC hearing fees ― a shortening of trials ― represents a very different vision of how to achieve it. Its driving concern is not convenience for the government, but access to justice for the parties. It works not by making the resolution of disputes by courts even less accessible, but by trying to reduce the inaccessibility; not by threatening the parties but by helping them. And it is more flexible than the hearing fees approach, because it recognizes that cases are not all alike, and that in some, a “fair and just resolution of the dispute” will require a lot of time despite the parties’ and the court’s best efforts. As the Supreme Court decides what to do about hearing fees, I hope that it takes note of Justice Myers’ thoughtful opinion.

I do have one concern about it though. What worries me is that the “culture shift” espoused by Justice Myers might make the already difficult position of self-represented litigants even worse. Such litigants will have an especially hard time focusing on the legally important issues and evidence. This is most obviously because they have a limited understanding of the law (both the substantive law and the law of evidence), but also because they necessarily lack the detachment between the personal story and the legal case that is, as Scott Greenfield explains in a wonderful post at his Simple Justice blog, crucial to “thinking like a lawyer” ― and to being an effective advocate. For self-represented litigants, the temptation to just throw the kitchen sink is thus especially strong. (Indeed, the case that gave rise to the BC hearing fees challenge, Vilardell v. Dunham, 2012 BCSC 748, involved a self-represented defendant. As Justice McEwan noted (paras. 19-20), it was a ten-day trial “largely a result of the thorough approach the defendant took to the case,” even though “[c]ompetent counsel might have cut the time in half, because counsel generally know how much evidence is enough.”) Steering self-represented litigants towards shorter trials thus risks imperilling their already limited ability to obtain a “fair and just resolution of the dispute on the merits.” Of course, this problem also arises, and is even worse, under the hearing fees approach. But, especially if they are going to be actively intervening in case management to shorten trials, courts need to be aware of it.

Access to Justice and Political Ignorance

I will do one last post ― for now, that is, until the Supreme Court’s judgment comes out ― prompted by the British Columbia “hearing fees” case I have been blogging about. In this post, I want to step back a little, and offer some thoughts on the bigger picture of which the “hearing fees” ― a price charged by the provincial government for time in court ― fit into the broader access to justice problem.

I’m not sure if this comes across clearly in my posts on the subject, but I am quite worked up about these fees. I think that there is something very wrong about them. While I have argued that legally, they are objectionable as a violation of the constitutional principle of the Rule of Law, the strictly legal claim cannot ― and is not intended to ― capture the feeling of injustice that these fees provoke. (That is true of any legal claim, in my view ― though others, notably my brilliant NYU colleague Emily Kidd White, might disagree.) But while legal claims are best left relatively confined and technical, as a matter of political morality, it is appropriate to denounce the hearing fees not just as violations of specific constitutional rules and principles, but as an unconscionable barricade against access to justice.

They are not the only such barricade, of course. Even in jurisdictions where there are no hearing fees, litigants are required to pay fees for any number of court “services,” including the filing of a claim. The state sanctions and enforces the cartels that limit the supply and drive up the prices of legal services, otherwise known as law societies. Judging by the backlogs in the courts, there are not enough judges and/or courtrooms to handle all the cases in a timely manner, which is a basic function of the state on any liberal  view, whether classical or social-democratic. (Indeed, it is a perceived need to ration court time that led B.C. to impose escalating “hearing fees” intended somehow to deter long trials.) And then, of course, there is the issue of funding for legal aid.

What is really depressing about all this is that these problems are almost entirely absent from the political conversation, or indeed the broader public debate. Lawyers (and judges) are the only ones to talk about at least some of them. They are self-interested, of course (lawyers especially), and although this does not make them wrong, it does mean that some problems created by their self-interest, notably the cartelization of legal services, are practically never discussed. Politicians, who are ultimately responsible for decisions about how legal services are regulated and how the justice system is funded do not discuss these issues.

This is, I suppose, just one more manifestation of the pervasive political ignorance that affects policy-making of all sorts. People are just not knowledgeable about politics, political institutions, or issues of public policy. Yet one would think that, unlike some of the more abstract problems (say that of public debt and the appropriate level of government spending) which might not affect anyone in particular (important though they are important for us collectively) and so attract few people’s attention, the problems of access to justice not only impact real people every single day, but may indeed affect anyone at some point in one’s life, whether personal (say because of a divorce) or business. Having to wait, or not being able to afford, to take one’s case to court might not be as physically painful as waiting for a surgery, but it must be wrenching all the same. Why doesn’t the suffering of people who are being denied access to justice attract the sympathy of the public opinion?

There are a couple of developments which, although not necessarily bad ― perhaps even positive ― in themselves, might be making the problem worse. One is that that relatively few politicians are lawyers, and fewer of those who are have actually practised law than might have been in the past. (I might be wrong about this… I would welcome corrections.) Of course, lawyers have no God-given right to govern, and more occupational diversity among politicians is almost certainly a good thing. But if more politicians were aware of how serious the problems of access to justice are, they might just have been doing more about them. The other relevant development is that, to the extent the politicians have in fact done something about the difficulties with access to justice in the courts, their response has mostly been to steer people out of the courts altogether, whether into alternative dispute-resolution fora or into administrative tribunals set up to take over the resolution of some common disputes that the courts would otherwise have dealt with in the past. Again, these alternative mechanisms need not be a bad thing. They might, indeed, be providing more effective forms of adjudication or fuller compensation than even a perfectly well-functioning court system would. But by relieving some of the pressure on the court system, they probably help ensure that nothing much gets done about making it into an accessible and well-functioning one.

Perhaps this is all just a self-interested rant. I am a lawyer, after all, albeit not a practising one. Of course, the public resources are limited, and there are many claims on them. Should the government spend on courts money that it is also badly needed in the schools or in the hospitals? Many people will not agree with that, even though, as I wrote here, the “existence and accessibility [of courts] are essential to what government itself is ― the kind of government we have anyway, one based on the law and not on arbitrary power.” And even if not a self-interested rant, this post is at most sad meditation. Sad, and inconclusive. 

A Puff of Smoke

I argued last week that the Supreme Court should find British Columbia’s “hearing fees,” which litigants must pay to bring a case in front of a judge, unconstitutional as a violation of the principle of the Rule of Law. But what about the Supreme Court’s decision in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, asks Duncan J. MacAuliffe on Twitter. It was the basis for my saying that “the Supreme Court has understood [the Rule of Law] very narrowly.” But doesn’t it stand for a still more far-reaching proposition?

In this (rather delayed) post, I would like to explain why I think that Imperial Tobacco does not compel the decision the principle of the Rule of Law cannot invalidate B.C.’s hearing fees.

The issue in Imperial Tobacco was the constitutionality of a B.C. statute which allowed the provincial government to sue tobacco manufacturers to recover the money the province spent on healthcare for people suffering from tobacco-related illnesses. The statute was clearly retroactive ― it was not a tort, prior its enactment, to cause the government economic damage by selling tobacco, and this retroactivity was one of the grounds on which it was challenged, the argument being that it violated the principle of the Rule of Law.

The Supreme Court rejected this claim, holding that “none of the principles that the rule of law embraces speak directly to the terms of legislation” (par. 59). Indeed, it said,

the government action constrained by the rule of law as understood [by the Court’s jurisprudence] … is, by definition, usually that of the executive and judicial branches.  Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed) (par. 60).

The Court rejected more substantive readings of the Rule of Law, encompassing requirements of prospectivity, generality, and fair civil trials. The requirements, it pointed out, “are simply broader versions of rights contained in the [Canadian Charter of Rights and Freedoms]” (par. 65), and it would be illegitimate for courts to rely on the unwritten principle of the Rule of Law as a vehicle for importing them into the constitution. Furthermore,

several constitutional principles other than the rule of law that have been recognized by this Court — most notably democracy and constitutionalism — very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the  requirements, such as judicial independence, that flow by necessary implication from those terms).  Put differently, the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box (par. 66).

This is strong (and, as I have suggested here, unfortunate) stuff. Still, I think that Imperial Tobacco can fairly easily be distinguished from  the hearing fees’ case, and should be so distinguished, because two important elements that led the Supreme Court to decide Imperial Tobacco the way it did are not present in the case of the hearing fees.

One is the “expanded-version-of-Charter-rights” claim. In my view, there isn’t really anything in the Charter that protects a limited version of the claim at issue. The Rule of Law problem with hearing fees, I have argued, is that they are an indirect and stealthy device for preventing people from asserting their constitutional, statutory, and common law rights which ostensibly still exist as a matter of law. The Charter does not speak to this issue, and thus the situation is not the same as with retroactivity and trial unfairness, which it explicitly prohibits in criminal cases, but says nothing about ― and thus tolerates ― in civil matters.

The other distinction between Imperial Tobacco and the hearings fees’ case is that in the latter, the Supreme Court’s precedents, although they are probably not, by themselves, sufficient to compel the conclusion that the fees are unconstitutional, at least point in the direction of this outcome. These precedents, notably Amax Potash Ltd. v. The Government of Saskatchewan, [1977] 2 S.C.R. 576 and Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, hold that a province cannot deny a person, whether through legislation or by an exercise of executive discretion, an opportunity to challenge the constitutionality of legislation by which it deprived him of some legal rights. In other words, they mean that no one can be stripped of his or her constitutional rights by being prevented from asserting them in court. 

Now there is a step to be made from these cases to that of the hearing fees, because what is at issue there is not just constitutional rights, but all legal rights, including some which a province can modify by legislating. But the case of Wells v. Newfoundland, [1999] 3 S.C.R. 199, stands for the proposition that even non-constitutional rights have to be extinguished by clear statutory language, not by implication or stealth.

Imperial Tobacco does not discuss these cases. It certainly stands for the proposition that a province (or Parliament) can retroactively modify legal rights. But the statute at issue there did so explicitly, rather than by barring the holders of these rights access to the courts while purporting not to touch the rights in question, so the Supreme Court did not there decide whether that was permissible. And that is the issue it has to face in the hearing fees’ case.

In approaching that issue, the Court should certainly take its own advice in Imperial Tobacco and reflect on the importance of the principles of constitutionalism and democracy. Constitutionalism, for instance, means that the province cannot prevent litigants from asserting constitutional claims (the very issue decided in Amax Potash and Air Canada), which the hearing fees will do in some cases, or for that matter from asserting their claims under federal law, which they will do in others. And democracy should mean that a regulation enacted by the provincial executive should not deny litigants rights conferred or not interfered with by democratically enacted provincial statutes, which the hearing fees will do in cases arising under provincial law.

As for the Court’s broader comments about the Rule of Law not constraining legislatures and denigrating “amorphous constitutional principles,” I think they are flatly contradicted by its own jurisprudence. Legislatures, the Court itself has recognized, are bound to maintain a legal framework. Principles can have strong legal effects, none more so than that of judicial independence (which, incidentally, happens to be a much beefed-up version of s. 99(1) of the Constitution Act, 1867). These unfortunate comments are really so much smoke ― toxic, but almost weightless, and easily blown away.