With access to justice becoming a central concern, the Supreme Court of Canada sent a strong message about the issue last week with its decision in
Trial Lawyers Association of British Columbia v. British Columbia (Attorney General).
The case related to a custody dispute that resulted in fees of $3,600 for 10 days of hearings. One of the parties couldn’t afford that amount, and the trial judge in the case eventually found the fee schedule was unconstitutional. Last week, the majority of the Supreme Court agreed with that finding. “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,” wrote Chief Justice Beverley McLachlin in last week’s ruling in the B.C. case.
“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.
While Ontario doesn’t have such fees, the case is a reminder about the need in general for governments to devise rules that are fair. One of the issues in this case that’s certainly relevant to arguments over things like legal aid is the fact that while the rules may be reasonable for the poorest litigants, they’re not really fair for those who earn modest incomes that aren’t sufficient for paying for both legal representation and steep court fees. In last week’s case, the B.C. rules now in place provide for an exemption from the fees if the court finds a person to be “impoverished.” As the Supreme Court found, that’s not good enough for those with incomes just above that threshold.
The case, then, is a good example of why we keep talking about access to justice. It also demonstrates why Canada’s political discourse of late has focused so much on the challenges facing the middle class. It’s clear that in many areas, including the justice system, governments need to do more to address that gap.
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Glenn Kauth
