BCCA Rules Civil Jury Fees Are Constitutional

On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia ("TLA") to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 20171 holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.2

Decision

Section 17 of the Jury Act3 states that a party requiring a jury in a civil matter must pay to the sheriff: (a) a sum sufficient to pay for the jury and jury process; and (b) any additional fees prescribed by the Jury Act or the Supreme Court Civil Rules4 for expenses of a jury and attendance of the sheriff or sheriff's officers. Rule 12-6(3)(b) of the Supreme Court Civil Rules states that a party requiring a civil jury trial must pay the sheriff "a sum sufficient to pay for the jury and the jury process."5

In 2013, the B.C. sheriff service issued a notice to the legal profession setting the initial deposit fee at $1,500 (required to be deposited at least 45 days before trial) and additional daily deposit fees ranging between $800 to $1,200 (depending on the stage of the trial).6 The initial fee reflects an estimate of the fees for the jury and jury process up to and including the first day of trial. The further deposits are based on daily jury fees and expenses and an estimate of the costs to the sheriff in summoning and empaneling the jury, attending in court, escorting the jury, and related administration duties. At the end of the trial, the sheriff provides the party responsible for paying the jury fees with information about the total costs associated with the trial and their breakdown.7

TLA argued, among other things, that the above provisions violated the core jurisdiction of the superior courts under s. 96 of the Constitution Act, 1867. Section 96 provides that:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

While administrative in nature on its face, s. 96 has been interpreted by the Supreme Court to protect the government from interfering with the "core jurisdiction" of the superior courts, i.e. their "historic task of... resolving disputes between individuals and deciding questions of private and public law."8

The Court of Appeal held that the...