For Sale! (Or To Give Away)

Last week, the BC Court of Appeal issued a decision upholding the constitutionality of the “hearing fees” imposed by the government on litigants who took their cases to trial in the province’s courts, Vilardell v. Dunham, 2013 BCCA 65. The fees had been struck down last May by the province’s Supreme Court.  “Some things are not for sale,” Justice McEwan had written in Vilardell v. Dunham, 2012 BCSC 748.  (I summarized that decision here, and commented on it here, here, and here.) According to the Court of Appeal, they are, though they must sometimes be given away fee of charge.

As a general proposition, says the Court, there is nothing wrong with hearing fees. The province has always had them, except for a relatively short period around the turn of the 20th century. Indeed, they have a very long history:

Crown hearing fees and an accompanying exemption for those who cannot pay them have been a feature of the English legal system going back to the Statute of Henry VII, 11 Henry VII, c. 12, in 1494 and which we inherited upon becoming a colony in 1858. (Par. 9)

And this history matters, the Court holds, “because it shapes the relationship between the executive and the judicial branches of government” (par. 11). Since this relationship has always taken the shape of a compromise balancing the government’s right to impose hearing fees with the courts’  “power to waive payment in forma pauperis, then the claim for a constitutional right to be free of them falls away” (par. 14).

Furthermore, the Court holds that there is no general, unqualified right of access to justice. Provincial legislatures, which are responsible for the administration of justice, have the power to impose conditions on access to courts. The Court is also unpersuaded by a Nova Scotia case in which that province’s hearing fees scheme was held to be unconstitutional.

The problem, and the only problem, with hearing fees is “their potential to impede persons who cannot afford them. Wealthy individuals and corporations may not like paying the fees but they are unlikely to alter their litigation strategy because of them” (par. 26), but for people who are not well-off, they act as a real barrier to asserting their rights in court. This upsets the compromise struck by the Statute of Henry VII (par. 21), violates the principle of the Rule of Law (par. 33), and infringes the courts’ constitutionally protected “core jurisdiction” (par. 35-36).

Accordingly, the solution the Court of Appeal chooses is not to strike down the hearing fees, as the Supreme Court had done, but to expand the exemption from the duty to pay them, so that it covers not only the “indigent,” as it did until recently, or even those on public assistance or “impoverished,” as it now does, but also those “in need.” Reading in these words, “intended to mean those who could not meet their everyday expenses if they were required to pay the fees” (par. 41), eliminates the constitutional difficulty. And, contrary to what Justice McEwan had suggested about the “indigency” exemption, since the re-crafted and expanded “exemption is focused on affordability rather than socio-economic status” (par. 37), it is not offensive to the dignity of those who have to seek it.

For my part, I think this is a poor decision, mostly because it fails to engage with some of the key problems of the hearing fees, which Justice McEwan raised in his (admittedly very imperfect) reasons. Most importantly, it does not at all address the suggestion, which I think is sound, that there is something profoundly wrong with the idea that civil justice is a service of which the litigants choose to avail themselves and for which they may legitimately be made to pay. People often do not have a choice but to litigate; nor can they always settle a case. It is one thing to punish a party who refuses a favourable offer to settle, as for example Ontario’s Rules of Civil Procedure do. It is quite another to make a party pay for going to trial regardless of the reasonableness of his position.

The judgment also, in my view, misunderstands the relationship between history and constitutional principles. History helps us ascertain the underlying principles of the constitution (and of our law more generally), but it does not define them. Ultimately, the constitutional principles are the values that underpin the law today, not necessarily those that connect it to the times of Henry VII. As the future Justice Holmes famously wrote in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897),

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

The century of civil wars separating Henry IV from Henry VII is no good warrant for this either. The Court does not explain why the compromise that was good in the times of the first Tudor monarch should still have power over us more than five centuries after his death.

Finally, the Court’s arguments both about both the law and the facts are misguided. As for the law, the concept of constitutionally protected core jurisdiction is a shaky foundation on which to rest the requirement for a capacious exemption from hearing fees, because it only applies to superior (“s. 96”) courts, and not to provincial courts. The Court simply misunderstands the concept as protecting judicial power in general rather than the power of superior courts. In any case, it does not make sense to protect the litigants’ choice to go to trial, and their choices as to the trial’s length, as an aspect of the courts’ control over their proceedings. As for the facts, the Court is surely wrong that the hearing fees―which, after all, are concededly designed to discourage trials, especially long trials, will only affect the litigation choices of those “in need.” Not the very rich or the very large corporations perhaps, but by no means only “those who could not meet their everyday expenses if they were required to pay the fees” will do their best to minimize the amount of fees they owe and thus modify their litigation strategy and perhaps refrain from asserting legitimate claims as a result of the government’s financial pressure (which, to repeat, has nothing to do with the potential reasonableness of the legal positions litigants seek to assert). The exemption crafted by the court is thus still badly underinclusive. It is also underinclusive by failing to include corporations.  A corporation, I think, cannot be described as “impoverished or in need,” without doing violence to the English language. But corporations do have the right to sue (that’s a large part of what legal personality means), and yet a small corporation can be deterred from suing, or going to trial, by the prospect of the hearing fees just as easily as an individual.

The Court of Appeal’s decision is not only mistaken, I think, but very poorly justified. It is based on misunderstandings of fact and law, and fails to address the serious issues the case raised. It accepts, unthinkingly, the proposition that justice is for sale, even if it says that it must sometimes be given away for free. I can only hope that there will be an appeal, and that the Supreme Court will take it.

Not for Sale

On to the third (and maybe last) part of my comments about the the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. On Thursday I wrote about the separation of powers aspect of the judgment; on Friday about its suggestion that there is a right to go to court. I turn now to the idea that the imposition of hearing fees is wrong not (just) because it infringes the judicial branch’s prerogatives or the rights of the citizens, but because it departs from a certain idea of what government and public services ought to be like.

This argument is related to the one about separation of powers; indeed, although Justice McEwan’s rhetoric suggests otherwise, I think it is necessary to make the separation of powers argument plausible. Taken on its own, the claim that the judiciary must be master in its own house and the legislature has no business interfering with the role of the courts by enacting rules that encourage people to settle disputes otherwise than through adjudication is incredibly far-reaching. It would make rules designed to encourage settlement (like Rule 49 of the Ontario Rules of Civil Procedure) or legislation providing for recognition and enforcement of arbitral awards constitutionally suspect ― but I don’t believe any court in Canada would think this a plausible constitutional principle. What might make the claims of impermissible interference with courts plausible here is the nature of the change imposed, rather than the mere fact that the legislature intervened in the working of the judicial branch.

The hearing fees imposed by British Columbia had the purpose and effect of “rationing” courtroom time and of making the people who actually go to court pay for the upkeep of the civil justice system. They reflected a conception of the civil justice system as a service of which people choose to avail themselves, and which benefits those who make this choice. If that’s what civil justice is, it is logical enough to make its “users” pay for it. That’s how arbitration works, for instance. But it’s not what civil justice is, says Justice McEwan. Continue reading “Not for Sale”

See You in Court!

This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.

The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.

Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law. Continue reading “See You in Court!”

Don’t Piss Off the Crocodile

As promised, I have some comments on the B.C. Supreme Court decision striking down hearing fees, which I summarized here yesterday. In fact I’ll have a lot of comments, too many for just one post. I start off today with some thoughts on what I take to be the main line of argument in Justice McEwan’s judgment: the claim that the imposition of the fees is a violation of the separation of powers, encroaching on the superior courts’ protection by the judicature provisions of the Constitution Act, 1867, and violating the principles of the Rule of Law and the independence of the judiciary.

There is a saying (in Russian anyway) that one should not piss off a crocodile before having swam across the river. Now imagine that you’re constantly swimming in that river, back and forth. You really, really don’t want to piss off the crocodile. That seems to be the message implied and to some extent explicit in Justice McEwan’s decision. The river, that’s the courts. The government, and specifically the Attorney-General, is the guy always swimming there. And the crocodile, well, that’s Justice McEwan himself (and presumably his colleagues too).

In fact, as the BC Injury Law Blog reports, all the crocodiles in the river were already quite unhappy before this particular fight came about. But now, this crocodile is mad as hell. The government thinks the river is about to burst its banks because there are too many people going in there. It has decided to build bridges (i.e. steer litigants away from the courts―in private or judicial mediation,  settlement programs, etc.) and to charge people for going into the water. The longer they stay there, the more they need to pay. But this is not really, or at least not primarily about the money. “Cost recovery is only the secondary purpose of the fees according to the AGBC. The first is rationing court time. ” (Par. 309). That, says the crocodile, changes the nature of the river. And the river is his, not the government’s, so he won’t stand for it. Continue reading “Don’t Piss Off the Crocodile”

One’s Day in Court: Priceless?

In 1998, British Columbia started charging litigant stiff “hearing fees” for each day of a civil trial. Last week, Justice McEwan of the B.C. Supreme Court issued a monster of a judgment declaring them unconstitutional. The decision is very interesting for all sorts of reasons, but it is also abusively long. Fortunately for you, I have read it – well, much of it – so you don’t have to.

Before getting into the substance of the case, I want to say a few words about the decision; specifically, about its length. First, the facts: about 175 pages; 432 numbered paragraphs, many of them including multi-paragraph block quotations; more 70 000 words. That’s the length of a mid-sized novel. For a judgment, well, jugement-fleuve is a polite way of saying it. Perhaps it is a severe case of ‘I didn’t have the time to write a short decision so I wrote a long one’, except that it took Justice McEwan more than two years to produce it. Be that as it may, judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. Justice McEwan  makes much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it. (I’m not exactly a reasonable member of the public. But I must admit that I barely skimmed the restatement – I cannot call it a summary – of the parties’ submissions, which runs for something like 250 paragraphs. I did read all of the judge’s analysis though.)

Now to the case. The facts are simple. A couple separates, and there is a dispute over whether the plaintiff, who wants to move back to Spain, can take their daughter with her. They go to trial, unrepresented by lawyers, and the trials takes up 10 hearing days. The plaintiff is hit with a “hearing fees” bill of over 3500$ (some of which the defendant might have to cover). The fees are so high, in part, because they are imposed on a sliding scale – the longer a trial is, the higher the fee imposed for each additional day. She cannot pay, and asks the court to relieve her. The court might do this by finding her to be “indigent”. Indigent litigants have traditionally been exempt from having to pay court fees. But, Justice McEwan insists, ‘indigent’ means really, really poor. So poor one can’t afford to pay a $100 filing fee, for instance. “It is an awkward word to use to describe a middle class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom” (par. 26). The exemption does not apply. The only way the plaintiff can get out of having to pay is if the fee is unconstitutional. That’s what the decision is about.

There are at least three strands of argument running through Justice McEwan’s reasons. He does not distinguish them, but they are in fact quite different. One is that the fees infringe an individual right – access to justice, the right to have one’s day in court. Another is that there is something wrong with a chooser-user-payer model of government services; a court is a public service, and should be available to all, regardless of ability to pay. The third – and I think the most significant for Justice McEwan – is that the imposition of the fees proceeds from and results in a redefinition of the courts’ role by rationing access to courtrooms and trying to steer dispute settlement to other venues. This, in Justice McEwan’s view, subordinates courts to the legislature and violates the separation and equality of the branches of government.

All of these reasons lead Justice McEwan to conclude that hearing fees are unconstitutional because they violate unwritten constitutional principles and the federal division of powers. Limiting access to courts runs counter to the Rule of Law. It is also undemocratic because court participate in the elaboration of law, and going to court thus amounts to participating in the democratic process (which is not limited to voting). A redefinition of the courts’ role, especially one that limits people’s access to courts, is beyond of provincial powers over “the Constitution, Maintenance, and Organization of Provincial Courts” under subs. 92(14) of the Constitution Act, 1867. Justice McEwan did not consider the applicability of the Charter, which was also raised in argument.

Well, that’s enough for a summary, though this only skims the surface of the judgment. I will have some comments tomorrow.