Commercial Litigation and Dispute Resolution Blog

The Supreme Court of Canada struck down the court hearing fees imposed by the province of British Columbia as being unconstitutional because they prevent access to the courts in a manner that is inconsistent with section 96 of the Constitution and the underlying principle of the rule of law.

The Case History

The SCC’s October 2, 2014 decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, arose from a family law action in the Supreme Court of British Columbia. The parties were not represented by lawyers, and the trial took 10 days. Under a schedule of hearing fees contained in the BC Supreme Court Civil Rules, the hearing fees would have amounted to $3,600, which the trial judge found was almost the net monthly income of the family.

The Rules in BC impose no fee for the first three days of trial, $500 per day for the fourth through tenth days of trial, and then $800 per day from the eleventh day onwards. The Rules also contain an exemption from paying the hearing fees if the court finds that a person is “impoverished” (or, in the words of the former rules that were in place during the trial at issue, “indigent”).

The trial judge held that the hearing fee provision was unconstitutional. The Court of Appeal agreed, but held as a matter of remedy that the provision could be saved by reading in the words “or in need” to the exemption provision.

The Majority Judgment

A majority of the SCC held that the hearing fee scheme should be struck down as unconstitutional and that the legislature should be left to enact new provisions, should they choose to do so. The court accordingly allowed the Trial Lawyers Association’s appeal with respect to the remedy and dismissed the Attorney General’s cross appeal on the finding of unconstitutionality.

The majority held that, while the province has the jurisdiction to establish hearing fees under its powers to administer justice pursuant to section 92(14) of the Constitution, 1867 it could not exercise that power in a way that violates section 96 of the Constitution, which protects the core jurisdiction of the superior courts. In the majority’s view, hearing fees that deny people access to the courts infringe on the core jurisdiction of the superior courts that is protected by section 96. The example of the litigants in the family law case before the court illustrated the adverse effect of the fees in practice. Like the trial judge, the majority found that “impoverished” must be read in its ordinary sense, and the exemption could not be expanded as the Court of Appeal had proposed. They did not accept the arguments that hearing fees promote efficiency and fairness by weeding out unmeritorious cases and encouraging shorter trials or that trial judges could address the problem through cost awards.

The Dissent

In a vigorous dissent, Justice Rothstein stated that the hearing fee scheme does not offend any constitutional right, and that courts should refrain from micromanaging the policy choices of governments when they act within the sphere of their constitutional powers. He summarized his views at paragraph 82 as follows:

In engaging, on professed constitutional grounds, the question of the affordability of government services to Canadians, the majority enters territory that is quintessentially that of the legislature. The majority looks at the question solely from the point of view of the party to litigation required to undertake to pay the hearing fee. It does not consider, and has no basis or evidence upon which to consider, the questions of the financing of court services or the impact of reduced revenues from reducing, abolishing, or expanding the exemption from paying 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. How will the government deal with reduced revenues from hearing fees? Should it reduce the provision of court services? Should it reduce the provision of other government services? Should it raise taxes? Should it incur debt? These are all questions that are relevant but that the Court is not equipped to answer. I respectfully dissent.

The Implications of the Decision

In the short term, the decision leaves the government of BC with the task, if it chooses to do so, of fashioning a new scheme of hearing fees and exemptions that would withstand constitutional scrutiny. The decision may also have implications for other provinces with similar hearing fee schemes in place. In the longer term, the decision is important in developing the constitutional requirements of access to justice. The constitutionality of other costs and financial barriers to the courts may be questioned in future cases. But Justice Rothstein’s dissent also raises important questions as to the proper limits of the court’s role in fashioning public policy, particularly when the question involves competing demands for scarce fiscal resources.