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Digest of the Week — Legislature Can't Restrict Access to the Courts

Vilardell v. Dunham |
2014 CarswellBC 2873 |
Supreme Court of Canada

Civil practice and procedure | Costs | Particular items of costs | Miscellaneous

Judges and courts | Constitutional issues | Establishment of courts

Civil practice and procedure | Institution of proceedings | Proceedings in forma pauperis

Constitutional law | Distribution of legislative powers | Areas of legislation | Judicature | Miscellaneous

Constitutional law | Distribution of legislative powers | Remedies on finding of unconstitutionality


In family law action, plaintiff asked to be relieved from paying hearing fees imposed by Crown — Trial judge struck down hearing fees charged by Crown in Supreme Court trials as unconstitutional and found fees "materially hindered" access to courts — Attorney General of British Columbia's appeal was allowed — Order striking down fees was set aside and plaintiff's application to be relieved from paying fees was granted — Appellate court found that were it not for power of courts to give relief from hearing fees, they would be unconstitutional impediment to justice — Appellate court found power was found in enlarged interpretation of indigency provision — Appellate court found enlarged scope of exemption in provision in issue should be read as saying "impoverished or in need" — Appellate court found phrase was intended to cover those who could not meet their everyday expenses if they were required to pay fees — Appellate court found "in need" recognized fact that some litigants, while not destitute or impoverished, were still in need of relief or assistance in order to have their case heard before superior court — Appellate court found courts would continue to use their discretion to determine whether litigant was impoverished or in need to point that but for hearing fees, they would be able to pursue their claim, thus qualifying for exemption — Attorney General of British Columbia appealed — Appeal allowed; cross-appeal dismissed — Fees violated s. 96 of Constitution Act, 1867 — Legislating hearing fees that prevent people from accessing courts infringes on core jurisdiction of superior courts — Hearing fee scheme that does not exempt impoverished people clearly oversteps constitutional minimum, but providing exemptions only to truly impoverished may set access bar too high — Proper remedy was to declare hearing fee scheme as it stands unconstitutional and leave it to legislature or Lieutenant Governor in Council to enact new provisions.



In family law proceedings, the plaintiff asked to be relieved from paying hearing fees imposed by the Crown. The trial judge struck down the hearing fees as unconstitutional and found fees "materially hindered" access to the courts.
The Attorney General of British Columbia's appeal was allowed. The order striking down the fees was set aside and the plaintiff's application to be relieved from paying the fees was granted. The appellate court found were it not within the power of the courts to give relief from hearing fees, they would be unconstitutional impediment to justice. The power was found in an enlarged interpretation of the fee scheme's indigency provision. The appellate court found an enlarged scope of exemption should be read as saying "impoverished or in need". The phrase was intended to cover those who could not meet their everyday expenses if they were required to pay fees. The term "in need" recognized the fact that some litigants, while not destitute or impoverished, were still in need of relief or assistance in order to have their case heard before a superior court.

The appellate court found courts would continue to use their discretion to determine whether a litigant qualified for an exemption.

The Trial Lawyers Association of British Columbia and Canadian Bar Association appealed, the attorney General of British Columbia cross-appealed.

Held: The appeal was allowed and the cross-appeal dismissed.

Per McLachlin C.J.C. (LeBel, Abella, Moldaver and Karakatsanis JJ. concurring): The fees violated s. 96 of the Constitution Act, 1867. The Province has the power to legislate with respect to the administration of justice under s. 92(14) of the Act, and levying fees is a permissible exercise. However, the Province's power to impose hearing fees is not unlimited, and must take into account other constitutional powers and assumptions underlying the text. Section 96 of Act restricts the legislative competence of provincial legislatures and Parliament so that neither level of government can enact legislation that abolishes the superior courts or remove part of their core or inherent jurisdiction. Legislating hearing fees that prevent people from accessing courts infringes on the core jurisdiction of the superior courts. The legislation at issue barred access to the superior courts by imposing hearing fees that prevented some individuals from having their private and public law disputes resolved by the courts of superior jurisdiction. The province's power to impose hearing fees cannot deny people the right to have their disputes resolved in the superior courts. To do so would be to impermissibly impinge on s. 96 of Act.

When hearing fees cause undue hardship to the litigant who seeks the adjudication of the superior court, they infringe the basic rights of citizens to bring their cases to court. A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum, but providing exemptions only to the truly impoverished may set the access bar too high. As a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot bring non-frivolous or non-vexatious litigation to court for financial reasons.

In the case at bar, the Province attempted to establish a revenue-neutral trial service. The primary purpose of the hearing fee scheme was to provide an incentive for efficient use of court time and a disincentive for lengthy and inefficient trials, while the secondary purpose of the scheme was to provide sufficient revenue to offset the costs of providing civil justice. The hearing fees went beyond these purposes and limited access to courts for litigants who were not indigent or impoverished, but for whom the hearing fees were nonetheless unaffordable. This effect was unconstitutional. It was not sufficient to interpret the exemption provision so that a trial judge could waive the hearing fees in appropriate cases, as the legislation did not allow for waiving fees for anyone except the very poor. Practical concerns existed with requiring litigants to appear before the court and explain their financial circumstances. The hearing costs were not dependent on the efficiency or merit of the claim and increased with time without regard to these factors.

The proper remedy was 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.

Per Cromwell J. (concurring in result): The matter should be decided on administrative law grounds and it was unnecessary to determine the constitutional issues. There is a common law right of reasonable access to civil justice, which may only be abrogated by clear statutory language. No such language exists in the Rules of Court, 1990, which preserves the right. Subordinate legislation inconsistent with the common law right to access to civil justice was ultra vires. Court fees were permissible but only if an exception exists to ensure no person is prevented from litigation due to lack of resources. The current exemption could not be interpreted to cover people of modest means who were prevented from having a trial because of the hearing fees. The court fees were therefore ultra vires of the regulation-making authority of the Rules of Court, 1990.

Per Rothstein J. (dissenting): The appeal from the order setting aside the trial judge's order striking down the hearing fees without costs should be dismissed. The appeal from the Court of Appeal's decision to read in "or in need" to the exemption provision should be allowed. The cross-appeal should be allowed. The matter of the plaintiff's fees should be remitted to the trial judge. The fee scheme did not violate the Constitution. Courts do not have free range to micromanage the policy choices of governments acting within the sphere of their constitutional powers. The hearing fee scheme did not offend any constitutional right. The majority based its findings on an overly broad reading of s. 96 of the Constitution.

There is no express constitutional right to access the civil courts without hearing fees. Courts must respect the role and policy choices of democratically elected legislators. In the absence of a violation of a clear constitutional provision, the judiciary should defer to the policy choices of the government and legislature. The concept of core jurisdiction under s. 96 of the Constitution Act did not justify striking down the regulations.

The doctrine of the rule of could not be used to invalidate the fees. There were no gaps in the expressed terms of the constitutional text. There is no express right of general access to superior courts for civil disputes in the text of the Constitution, outside of certain instances. A purported constitutional right to access the courts circumvents the careful checks and balances built into the structure of the Canadian Charter of Rights and Freedoms, especially as rights under s. 96 of the Constitution Act, 1867 are absolute.

Dressing the rule of law in division-of-powers clothing does not disguise the fact that the rule of law, an unwritten principle, cannot be used to support striking down the hearing fee scheme. The Court was required to give effect to the text of the Constitution, rather than supplant by using the rule of law. To rely on this nebulous principle to invalidate legislation based on its content introduces uncertainty into constitutional law and undermines the system of positive law. Even if there were a constitutional basis upon which to challenge the hearing fee scheme, it should not be found unconstitutional. The updated impoverishment exception gave judges discretion to exercise its application. Financial hardships could also be alleviated through costs orders. Judges could also limit hearing fees through case management. Basing evidential findings on the basis of ten day trials skewed the relevant analysis as there was no reason to believe ten day trials were standard.

Claiming that judges must have sufficient discretion in applying exemptions to fees, and yet critiquing the very existence of the exemption provision on the basis that it requires litigants to apply to the court was an irreconcilable position. Hearing fees incentivized efficient use of court time.
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