The constitutional principle respecting access to justice was given a major shot in the arm today. In what I consider to be a stunning decision, the Supreme Court of Canada has given real force and effect to this unwritten constitutional principle and ruled that British Columbia’s civil hearing fee regulations are unconstitutional. The Court is increasingly aware, it would seem. that the unwritten constitution may be as important and sometimes more important than the written one. The decision of Trial Lawyers Association et al v. British Columbia, 2014 SCC 59 is a game changer.
The Chief Justice wrote the decision for the majority (LeBel, Adella, Moldaver and Karakatsanis JJ concurring). McLachlin CJ ruled that the hearing fee regime offended the core jurisdiction of the superior courts as protected by s. 96 of the Constitution Act, 1867 by “impermissibly infring[ing] on that jurisdiction by, in effect, denying some people access to the courts” [para. 2]
The case was originally a family law matter in which Ms. Vilardell and Mr. Dunham who had a spousal relationship which had foundered had proceeded to court to try to resolve the issue of custody of their child. They represented themselves and the hearing last 10 days. The hearing fees were $3600 or about one month of the family income. Ms. Vilardell asked the court if the hearing fees could be waived. She was not “impoverished” person but the fees did represent a real financial hardship. The trial judge, Mr. Justice McEwan, raised the issue of the constitutionality of the hearing fees and invited the Attorney General to participate. In the end, the Trial Lawyers Association and the Canadian Bar Association – British Columbia Branch undertook the litigation of this important access to justice issue.
At the conclusion of the access to justice issue trial, McEwan J. held that the hearing fees constituted an unjustified infringement of the constitutional principle of access to justice: Vilardell v. Dunham, 2012 BCSC 748. The Court of Appeal allowed the appeal but held that the regulation should be construed as providing an exemption to persons who were “impoverished or in need“: Vilardell v. Dunham, 2013 BCCA 65.
In the Supreme Court, the Chief Justice found without hesitation that the Province was legitimately exercising its jurisdiction respecting the administration of justice granted to it by head 14 of s. 92 of the Constitution Act, 1867. But she noted that the Province’s power to impose hearing fees was not unlimited [paras. 24-28]:
Its power to impose hearing fees must be consistent with s. 96 of the Constitution Act, 1867 and the requirements that flow by necessary implication from s. 96. This follows from two related tenets of constitutional interpretation.
First, particular constitutional grants of power must be read together with other grants of power so that the Constitution operates as an internally consistent harmonious whole. Thus s. 92(14) does not operate in isolation. Its ambit must be determined, not only by reference to its bare wording, but with respect to other powers conferred by the Constitution. In this case, this requires us to consider s. 96 of the Constitution Act, 1867.
Second, the interpretation of s. 92(14) must be consistent not only with other express terms of the Constitution, but with requirements that “flow by necessary implication from those terms”: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 66, per Major J. As this Court has recently stated, “the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text”: Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 26 (emphasis added).
It follows that in determining the power conferred on the province over the administration of justice, including the imposition of hearing fees, by s. 92(14), the Court must consider not only the written words of that provision, but how a particular interpretation fits with other constitutional powers and the assumptions that underlie the text.
In this case, the other constitutional grant of power that must be considered is s. 96 of the Constitution Act, 1867, which has been held to guarantee the core jurisdiction of provincial superior courts throughout the country.
The Chief Justice went on to note that “[m]easures that prevent people from coming to the courts to have those issues resolved are at odds with [the] basic judicial function” of determining disputes between individuals and deciding questions of public and private law [para. 32]. She stated that “s. 92(14), read in the context of the Constitution as a whole, does not give the provinces the power to administer justice in a way that denies the right of Canadians to access courts of superior jurisdiction” [para. 43]. Any hearing fee regime would have to ensure that it does not deny the rights of Canadians of access to superior court justice.
The Chief Justice then outlined what sort factors should be considered by a province when establishing a hearing fee regime for civil disputes [paras. 44-48]:
The remaining question is how to determine when hearing fees deny access to superior courts.
Litigants with ample resources will not be denied access to the superior courts by hearing fees. Even litigants with modest resources are often capable of arranging their finances so that, with reasonable sacrifices, they may access the courts. However, when hearing fees deprive litigants of access to the superior courts, they infringe the basic right of citizens to bring their cases to court. That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the superior court.
A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum ― as tacitly recognized by the exemption in the B.C. scheme at issue here. But providing exemptions only to the truly impoverished may set the access bar too high. A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts.
Of course, hearing fees that prevent litigants from bringing frivolous or vexatious claims do not offend the Constitution. There is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency and overall access to justice.
It is the role of the provincial legislatures to devise a constitutionally compliant hearing fee scheme. But as a general rule, hearing fees must 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. A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them. Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims. This is in keeping with a long tradition in the common law of providing exemptions for classes of people who might be prevented from accessing the courts — a tradition that goes back to the Statute of Henry VII, 11 Hen. 7, c. 12, 1495, which provided relief for people who could not afford court fees.
In this case, the Chief Justice found that British Columbia’s hearing fee regime did not meet these standards. Many people who were not “impoverished” could ill afford the hearing fees – in this case, they represented one month’s worth of the family income. As well, to have to ask the court to waive the fees under the “impoverished” exemption was an affront to one’s dignity and a difficult evidentiary burden to fulfill. She found that the fees regime did not encourage efficient use of court time but rather simply less use of court time.
In the end, she could not accept the argument that the regulations be read down or with an additional exception. She found that the appropriate remedy was to strike down the hearing fee regime regulations and to resubmit the issue to the Province with a direction to consider the Court’s reasons in redrafting a new set of regulations.
Justice Cromwell used an administrative law approach to arrive at the same result. Justice Rothstein dissented.
What I find striking is that the majority of the Court relied on the unwritten constitutional principle supporting access to justice to overturn otherwise validly enacted provincial regulatory scheme. The Chief Justice’s reasoning in paragraphs 25 and 26 bears repetition:
First, particular constitutional grants of power must be read together with other grants of power so that the Constitution operates as an internally consistent harmonious whole. Thus s. 92(14) does not operate in isolation. Its ambit must be determined, not only by reference to its bare wording, but with respect to other powers conferred by the Constitution. In this case, this requires us to consider s. 96 of the Constitution Act, 1867.
Second, the interpretation of s. 92(14) must be consistent not only with other express terms of the Constitution, but with requirements that “flow by necessary implication from those terms”:…. As this Court has recently stated, “the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text”… [Reference to authorities removed]
As recent governments have discovered when they sought to override such constitutional dictates, the Supreme Court is showing itself increasingly ready to stand up and defend the jurisdiction of the courts, but more importantly the spirit and the letter of Canada’s constitution, whether it be written or not.
I remain
Constitutionally yours
Arthur Grant
